EXHIBIT 10.12
EXECUTION VERSION
REVOLVING SECURED CREDIT AND GUARANTY AGREEMENT
among
XX XXXXX OPERATING PARTNERSHIP, L. P.,
As Borrower,
XX XXXXX REALTY CORP.
AND ITS SUBSIDIARIES PARTY HERETO,
As Guarantors,
THE LENDERS PARTY HERETO,
As Lenders,
FLEET NATIONAL BANK,
As Administrative Agent for the Lenders
and As Collateral Agent for the Secured Parties,
FIRST UNION NATIONAL BANK,
As Syndication Agent for the Lenders,
SOVEREIGN BANK,
As Documentation Agent for the Lenders,
FLEET SECURITIES, INC. and
FIRST UNION SECURITIES, INC.,
As Co-Arrangers
Effective Date: December 20, 2001
TABLE OF CONTENTS
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Section 1. DEFINITIONS AND RULES OF INTERPRETATION...............................................................1
Section 1.1. Definitions.......................................................................................1
Section 1.2. Rules of Interpretation..........................................................................18
Section 2. REVOLVING SECURED CREDIT FACILITY....................................................................19
Section 2.1. Commitment to Lend; Limitation on Total Commitment...............................................19
Section 2.2. Changes in Total Commitment......................................................................19
Section 2.3. The Notes........................................................................................19
Section 2.4. Interest on Loans................................................................................20
Section 2.5. Requests for Loans...............................................................................20
Section 2.6. Conversion Options...............................................................................21
Section 2.7. Funds for Loans..................................................................................22
Section 2.8. Extension of Maturity Date.......................................................................22
Section 3. REPAYMENT OF THE LOANS...............................................................................23
Section 3.1. Maturity.........................................................................................23
Section 3.2. Mandatory Repayments of Loan.....................................................................23
Section 3.3. Optional Repayments of Loans.....................................................................23
Section 4. CERTAIN GENERAL PROVISIONS...........................................................................25
Section 4.1. Fees.............................................................................................25
Section 4.2. Commitment Fee...................................................................................25
Section 4.3. Funds for Payments...............................................................................25
Section 4.4. Computations.....................................................................................26
Section 4.5. Additional Costs, Etc............................................................................26
Section 4.6. Capital Adequacy.................................................................................27
Section 4.7. Certificate......................................................................................27
Section 4.8. Indemnity........................................................................................27
Section 4.9. Interest on Overdue Amounts......................................................................28
Section 4.10. Inability to Determine LIBOR Rate................................................................28
Section 4.11. Illegality.......................................................................................28
Section 4.12. Replacement of Lenders...........................................................................28
Section 5. STRUCTURED FINANCE COLLATERAL ASSETS; NO LIMITATION ON RECOURSE......................................29
Section 5.1. Structured Finance Collateral Assets.............................................................29
Section 5.2. Waivers by Requisite Lenders.....................................................................29
Section 5.3. Rejection of Structured Finance Collateral Assets................................................29
Section 5.4. Change in Circumstances..........................................................................30
Section 5.5. No Limitation on Recourse........................................................................30
Section 5.6. Additional Guarantors............................................................................30
Section 6. REPRESENTATIONS AND WARRANTIES.......................................................................30
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Section 6.1. Authority; Etc...................................................................................30
Section 6.2. Governmental Approvals...........................................................................32
Section 6.3. Title to Properties..............................................................................32
Section 6.4. Financial Statements.............................................................................32
Section 6.5. No Material Changes, Etc.........................................................................33
Section 6.6. Franchises, Patents, Copyrights, Etc.............................................................33
Section 6.7. Litigation.......................................................................................33
Section 6.8. No Materially Adverse Contracts, Etc.............................................................33
Section 6.9. Compliance With Other Instruments, Laws, Etc.....................................................33
Section 6.10. Tax Status.......................................................................................33
Section 6.11. Event of Default. No Default or Event of Default has occurred and is continuing hereunder........34
Section 6.12. Investment Company Act...........................................................................34
Section 6.13. Absence of Financing Statements, Etc.............................................................34
Section 6.14. Status of the Company............................................................................34
Section 6.15. Certain Transactions.............................................................................34
Section 6.16. Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans.....................................34
Section 6.17. Regulations U and X..............................................................................34
Section 6.18. Environmental Compliance.........................................................................35
Section 6.19. Subsidiaries and Affiliates......................................................................36
Section 6.20. Loan Documents...................................................................................36
Section 6.22. Indebtedness.....................................................................................36
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER................................................................38
Section 7.1. Punctual Payment.................................................................................38
Section 7.2. Maintenance of Office............................................................................38
Section 7.3. Records and Accounts.............................................................................38
Section 7.4. Financial Statements, Certificates and Information...............................................38
Section 7.5. Notices..........................................................................................40
Section 7.6. Existence; Maintenance of REIT Status; Maintenance of Properties.................................41
Section 7.7. Insurance........................................................................................41
Section 7.8. Taxes............................................................................................41
Section 7.9. Inspection of Properties and Books...............................................................42
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits...........................................42
Section 7.11. Use of Proceeds..................................................................................42
Section 7.13. Notices of Significant Transactions..............................................................43
Section 7.14. Further Assurance................................................................................43
Section 7.15. Environmental Indemnification....................................................................43
Section 7.16. Response Actions.................................................................................43
Section 7.17. Employee Benefit Plans...........................................................................43
Section 7.18. Required Interest Rate Contracts.................................................................44
Section 7.19. Forward Equity Contracts.........................................................................44
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER...........................................................45
Section 8.1. Intentionally Omitted............................................................................45
Section 8.2. Restrictions on Investments......................................................................45
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Section 8.3. Merger, Consolidation and Other Fundamental Changes..............................................47
Section 8.4. Sale of Collateral...............................................................................47
Section 8.5. Compliance with Environmental Laws...............................................................47
Section 8.6. Distributions....................................................................................47
Section 8.7. Preferred Distributions..........................................................................48
Section 8.8. Preferred Redemptions............................................................................48
Section 9. FINANCIAL COVENANTS OF THE BORROWER..................................................................48
Section 9.2. Minimum Debt Service Coverage....................................................................48
Section 9.3. Total Debt to Total Assets.......................................................................48
Section 9.4. Minimum Tangible Net Worth.......................................................................48
Section 9.5. Adjusted EBITDA to Fixed Charges.................................................................48
Section 9.6. Aggregate Occupancy Rate ........................................................................48
Section 9.7. Value of All Unencumbered Assets.................................................................48
Section 9.8. Amendments and Modifications to Section 9........................................................48
Section 10. CONDITIONS TO EFFECTIVENESS..........................................................................49
Section 10.1. Loan Documents...................................................................................49
Section 10.2. Certified Copies of Organization Documents; Good Standing Certificates ..........................49
Section 10.3. By-laws; Resolutions.............................................................................49
Section 10.4. Incumbency Certificate; Authorized Signers.......................................................49
Section 10.5. Title Insurance; Lien Searches...................................................................50
Section 10.6. Opinions of Counsel Concerning Organization, Loan Documents and Collateral.......................50
Section 10.7. Payment of Fees..................................................................................50
Section 10.8. Pledge and Security Agreement and other Collateral Documents.....................................50
Section 11. CONDITIONS TO ALL CREDIT ADVANCES....................................................................50
Section 11.1. Representations True; No Event of Default; Compliance Certificate................................50
Section 11.2. No Legal Impediment..............................................................................51
Section 11.3. Proceedings and Documents........................................................................51
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.................................................................51
Section 12.1. Events of Default and Acceleration...............................................................51
Section 12.2. Termination of Commitments.......................................................................54
Section 12.3. Remedies.........................................................................................54
Section 12.4. Distribution of Enforcement Proceeds.............................................................54
Section 13. SETOFF...............................................................................................55
Section 14. THE AGENT............................................................................................55
Section 14.1. Authorization....................................................................................55
Section 14.2. Employees and Agents.............................................................................56
Section 14.3. No Liability to Lenders..........................................................................56
Section 14.4. No Representations...............................................................................56
Section 14.5. Payments.........................................................................................56
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Section 14.6. Holders of Notes.................................................................................57
Section 14.7. Indemnity........................................................................................58
Section 14.8. Agent as Lender..................................................................................58
Section 14.9. Resignation......................................................................................58
Section 14.10. Notification of Defaults and Events of Default and other Notices................................58
Section 14.11. Duties in the Case of Enforcement................................................................58
Section 14.12. Mandatory Resignation of Agent...................................................................59
Section 14.13. Matters as to Borrower...........................................................................59
Section 14.14. Concerning the Collateral and the Collateral Documents...........................................59
Section 16. INDEMNIFICATION......................................................................................61
Section 17. SURVIVAL OF COVENANTS, ETC...........................................................................62
Section 18. GUARANTY.............................................................................................62
Section 18.1. Guaranty.........................................................................................62
Section 18.2. Obligations Unconditional........................................................................63
Section 18.3. Modifications....................................................................................63
Section 18.4. Waiver of Rights.................................................................................64
Section 18.5. Reinstatement....................................................................................64
Section 18.6. Remedies.........................................................................................64
Section 18.7. Limitation of Guaranty...........................................................................64
Section 18.8. Release of Guaranty..............................................................................65
Section 19. ASSIGNMENT; PARTICIPATIONS; ETC......................................................................65
Section 19.1. Conditions to Assignment by Lenders..............................................................65
Section 19.2. Certain Representations and Warranties; Limitations; Covenants...................................65
Section 19.3. Register.........................................................................................66
Section 19.4. New Notes........................................................................................66
Section 19.5. Participations...................................................................................67
Section 19.6. Pledge by Lender.................................................................................67
Section 19.7. No Assignment by Borrower........................................................................67
Section 19.8. Disclosure.......................................................................................68
Section 20. NOTICES, ETC.........................................................................................68
Section 22. HEADINGS.............................................................................................69
Section 23. COUNTERPARTS.........................................................................................69
Section 24. ENTIRE AGREEMENT.....................................................................................69
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.......................................................69
Section 26. CONSENTS, AMENDMENTS, WAIVERS, ETC...................................................................70
Section 27. SEVERABILITY.........................................................................................70
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Section 28. ACKNOWLEDGMENTS......................................................................................70
Section 29. USURY LIMITATION.....................................................................................71
Section 30. REPLACEMENT OF LOST NOTES............................................................................71
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Exhibit A Form of Note
Exhibit B Form of Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Pledge and Security Agreement
Exhibit E Form of Assignment and Acceptance
Schedule 1 Lenders; Domestic and LIBOR Lending Offices
Schedule 1.1 Structured Finance Collateral Assets
Schedule 1.2 Commitments and Commitment Percentages
Schedule 1.3 Related Companies, Unconsolidated Entities and Guarantors
Schedule 1.4. [INTENTIONALLY OMITTED]
Schedule 6.3 Title to Properties
Schedule 6.7 Litigation
Schedule 6.15 Insider Transactions
Schedule 6.16 Employee Benefit Plans
Schedule 6.18 Environmental Matters
Schedule 6.19 Company Assets
Schedule 6.21 Building Structural Defects, etc.
Schedule 6.22 Indebtedness
Schedule 8.2(d) Investments
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CREDIT AGREEMENT
This
REVOLVING SECURED CREDIT AND GUARANTY AGREEMENT is made as of the
20(th) day of December, 2001, by and among (i) XX XXXXX OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "Borrower"), (ii) XX XXXXX REALTY
CORP., a Maryland corporation (the "Company", and a "Guarantor", as such term is
defined herein), (iii) each of the direct and indirect Subsidiaries of the
Borrower or the Company that is a signatory hereto under the caption
"Guarantors" on the signature pages hereto or from time to time hereafter as a
"Guarantor", (iv) each of the financial institutions that is a signatory hereto
under the caption "Lenders" on the signature pages hereto or that, pursuant to
Section 19 hereof, shall become a "Lender" (individually, a "Lender" and,
collectively, the "Lenders"), (v) FLEET NATIONAL BANK, a national banking
association, as administrative agent for the Lenders hereunder and as collateral
agent for the Secured Parties under the Collateral Documents (in such
capacities, the "Agent"), (vi) FIRST UNION NATIONAL BANK, as syndication agent
for the Lenders hereunder, and (vii) SOVEREIGN BANK, as documentation agent for
the Lenders hereunder.
WHEREAS, the Borrower has requested that the Lenders provide a secured
revolving credit facility in the maximum amount of $75,000,000 (the "Facility")
to the Borrower and the Lenders have agreed to provide such Facility subject to
the terms and conditions set forth herein;
NOW, THEREFORE, to accomplish these purposes, the Agent, the Borrower, the
Guarantors and the Lenders hereby agree as follows:
Section 1. DEFINITIONS AND RULES OF INTERPRETATION
Section 1.1. Definitions. The following terms shall have the meanings
set forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
Adjusted EBITDA. For any Person for any period, EBITDA minus (i) Minimum
Capital Expenditure Reserves and (ii) straight line rent adjustments for the
applicable period.
Adjusted Net Operating Income. For any Real Estate Asset, as of any date of
determination, Net Operating Income for the three (3) month period immediately
preceding the date of determination, minus Minimum Capital Expenditures Reserves
for such period, and minus the Minimum Management Fees for such period;
provided, however, that for any Real Estate Asset acquired less than three (3)
months prior to such date of determination, such Real Estate Asset's Net
Operating Income shall be its pro forma Net Operating Income (as approved by the
Agent) for the entire fiscal quarter in which acquired.
Adjusted Unsecured Debt. The sum of Unsecured Indebtedness plus any
Obligations outstanding, whether principal, interest, fees or otherwise.
Adjusted Unencumbered Asset Value. When determined as of the end of any
fiscal quarter, the sum of (i) the Value of all Unencumbered Assets plus (ii)
75% of the aggregate
amount of Structured Finance Collateral Asset Values for all Structured Finance
Collateral Assets.
Affiliated Lenders. Any commercial bank or financial institution which is
(i) the parent corporation of any of the Lenders, (ii) a wholly-owned subsidiary
of any of the Lenders or (iii) a wholly-owned subsidiary of the parent
corporation of any of the Lenders.
Agent. Fleet National Bank acting in its capacities as sole administrative
agent for the Lenders, or any successor administrative agent appointed pursuant
to Section14 hereof, and as collateral agent for the Secured Parties pursuant to
the Collateral Documents, or any successor collateral agent appointed pursuant
to Section 14 hereof.
Agent's Head Office. The Agent's head office located at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location in the United States as
the Agent may designate from time to time.
Aggregate Occupancy Rate. With respect to the Unencumbered Assets at any
time, the ratio, as of such date, expressed as a percentage, of (i) the
summation of the amounts arrived at by multiplying (a) the Occupancy Rate of
each Unencumbered Asset by (b) the net rentable area of such Unencumbered Asset,
divided by (ii) the aggregate net rentable area of all such Unencumbered Assets.
Agreement. This
Revolving Secured Credit and Guaranty Agreement, including
the Schedules and Exhibits hereto.
Applicable LIBOR Margin. One hundred fifty (150) basis points.
Assignment and Acceptance. See Section 19.
Bankruptcy Code. Title 11 of the United States Code, 11 U.S.C. Sections
1101 et seq., as the same may be amended from time to time.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by Fleet National Bank ("Fleet") at Fleet's Head Office in Boston,
Massachusetts as its "base rate", and (b) one half of one percent (1/2%) above
the overnight federal funds effective rate as published by the Board of
Governors of the Federal Reserve System, as in effect from time to time.
Base Rate Loans. Those Loans bearing interest calculated by reference to
the Base Rate.
Borrower. As defined in the preamble hereto.
Borrowing Date. The date on which any Loan is made or is to be made, and
the date on which any Loan is converted or continued in accordance with Section
2.6.
Buildings. The buildings, structures and other improvements now or
hereafter located on the Unencumbered Assets.
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Business Day. Any day on which banking institutions in Boston,
Massachusetts, are open for the transaction of banking business and, in the case
of LIBOR Rate Loans, also a day which is a Eurodollar Business Day.
Capitalized Leases. Leases under which the discounted future rental payment
obligations are required to be capitalized on the balance sheet of the Borrower
in accordance with Generally Accepted Accounting Principles.
CERCLA. See Section 6.18.
Co-Arrangers. Fleet Securities, Inc. and Wachovia Securities, Inc. or any
of the respective successors thereto.
Code. The Internal Revenue Code of 1986, as amended and in effect from time
to time.
Collateral. "Collateral" as defined in the Pledge and Security Agreement,
or as such term is defined in any other Collateral Document.
Collateral Documents. The Pledge and Security Agreement and any other
documents executed and delivered by the Borrower or a Guarantor granting a lien
on its property to secure payment of the Obligations.
Commitment. With respect to each Lender, the amount set forth from time to
time on Schedule 1.2 hereto as the amount of such Lender's commitment to make
Loans to the Borrower.
Commitment Percentage. With respect to each Lender, the percentage set
forth from time to time on Schedule 1.2 hereto as such Lender's percentage of
the Total Commitment.
Company. As defined in the preamble hereto.
Compliance Certificate. See Section 2.5(a).
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 2.6.
Default. See Section 12.1.
Delinquent Lender. See Section 14.5(c).
Distribution. The declaration or payment of any dividend or distribution of
cash or cash equivalents to the holders of common shares of beneficial interest
in the Company or the holders of common units of limited partnership interest in
the Borrower, or any distribution to any officer, employee or director of the
Borrower or the Company, other than employee compensation consistent with past
practices.
Dollars or $. Dollars in lawful currency of the United States of America.
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Domestic Lending Office. Initially, the office of each Lender designated as
such in Schedule 1 hereto; thereafter, such other office of such Lender, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
EBITDA. With respect to any Person for any period, earnings (or losses)
before interest and taxes of such Person and its Subsidiaries for such period
plus, to the extent deducted in computing such earnings (or losses) before
interest (including, without limitation, the interest portion of payments made
under Capitalized Leases) and taxes, depreciation and amortization expense and
other non-cash charges, all as determined on a consolidated basis with respect
to such Person and its Subsidiaries in accordance with Generally Accepted
Accounting Principles; provided, however, EBITDA shall exclude earnings or
losses resulting from (i) cumulative changes in accounting practices, (ii)
discontinued operations, (iii) extraordinary items, (iv) net income or net
losses of any entity acquired in a pooling of interest transaction for the
period prior to the acquisition, (v) net income or net losses, before
depreciation and amortization, of a Subsidiary that is unavailable to the
Borrower or the Company, (vi) net income or net losses not readily convertible
into Dollars or remittable to the United States, (vii) gains and losses from the
sale of assets, and (viii) net income or net losses, before depreciation and
amortization, from corporations, partnerships, associations, joint ventures or
other entities in which the Borrower, the Company or a Related Company thereof
has a minority interest and in which neither Borrower, the Company or the
Related Companies has control, except to the extent actually received.
Effective Date. The date upon which this Agreement shall become effective
pursuant to Section 10. Unless the Agent notifies the Borrower and the Lenders
on the date hereof that some other date is the Effective Date, the Effective
Date shall be the date set forth on the first page of this Agreement.
Eligible Assignee. Any of (a) a commercial bank organized under the laws of
the United States, or any State thereof or the District of Columbia, and having
total assets in excess of $5,000,000,000; (b) a savings and loan association or
savings bank organized under the laws of the United States, or any State thereof
or the District of Columbia, and having a net worth of at least $100,000,000,
calculated in accordance with Generally Accepted Accounting Principles; (c) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development (the "OECD"), and
having total assets in excess of $5,000,000,000, provided that such bank is
acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; and (e) a finance company,
insurance company or other financial institution (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having total assets in excess of $5,000,000,000. Notwithstanding anything to
the contrary, the term Eligible Assignee shall exclude any Person controlling,
controlled by or under common control with, the Borrower or the Company.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3 (3) of ERISA currently maintained or contributed to by the Borrower or
any ERISA Affiliate, other than a Multiemployer Plan.
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Environmental Laws. See Section 6.18(a).
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower under Section 414(b) or (c) of the Code.
ERISA Event. Any of the following:
(i) a "reportable event" within the meaning of Section 4043 of ERISA
and the regulations issued thereunder with respect to any Guaranteed
Pension Plan (excluding those for which the provision for 30-day notice to
the PBGC has been waived by regulation),
(ii) the failure to meet the minimum funding standard of Section 412
of the Code with respect to any Guaranteed Pension Plan (whether or not
waived in accordance with Section 412(d) of the Code) or the failure to
make by its due date a required installment under Section 412 (m) of the
Code with respect to any Guaranteed Pension Plan or the failure to make by
its due date any required contribution to a Multiemployer Plan,
(iii) the provision by the administrator of any Guaranteed Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to
terminate such plan in a distress termination described in Section 4041(c)
of ERISA,
(iv) the withdrawal by the Borrower or any of its ERISA Affiliates
from any Guaranteed Pension Plan with two or more contributing sponsors or
the termination of any such Guaranteed Pension Plan resulting in liability
pursuant to Section 4063 or 4064 of ERISA in excess of $5,000,000.00,
(v) the institution by the PBGC of proceedings to terminate any
Guaranteed Pension Plan, or the occurrence of any event or condition which
might reasonably be expected to constitute grounds under ERISA for the
involuntary termination of, or the appointment of a trustee to administer,
any Guaranteed Pension Plan,
(vi) the imposition of liability on the Borrower or any of its ERISA
Affiliates in excess of $5,000,000.00 pursuant to Section 4062(e) or 4069
of ERISA or by reason of the application of Section 4212(c) of ERISA,
(vii) the withdrawal by the Borrower or any of its ERISA Affiliates in
a complete or partial withdrawal (within the meaning of Section 4203 and
4205 of ERISA) from any Multiemployer Plan if there is any potential
liability therefor in excess of $5,000,000.00, or the receipt by the
Borrower or any of its ERISA Affiliates of notice from any 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 or 4042 of ERISA, if such event could reasonably be expected
to result in liability being imposed on Borrower or any of its ERISA
Affiliates in excess of $5,000,000.00,
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(viii) the occurrence of an act or omission which could give rise to
the imposition on the Borrower or any of its ERISA Affiliates of fines,
penalties, taxes or related charges under Chapter 43 of the Code or under
Section 409 or 502(c), (i) or (1) or 4071 of ERISA in excess of $5,000,000
in respect of any Employee Benefit Plan,
(ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan
or the assets thereof, or against the Borrower or any of its ERISA
Affiliates in connection with any such Employee Benefit Plan,
(x) receipt from the Internal Revenue Service of notice of the failure
of any Pension Plan (or any other Benefit Plan intended to be qualified
under Section 401(a) of the Code) to qualify under Section 401(a) of the
Code, or the failure of any trust forming part of any Guaranteed Pension
Plan to qualify for exemption from taxation under Section 501(a) of the
Code, or
(xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Code or pursuant to ERISA with respect to any Guaranteed Pension
Plan.
Eurocurrency Reserve Rate. For any day with respect to a LIBOR Rate Loan,
the maximum rate (expressed as a decimal) at which any of the Lenders would be
required to maintain reserves under Regulation D of the Board of Governors of
the Federal Reserve System (or any successor or similar regulations relating to
such reserve requirements) against "Eurocurrency Liabilities" (as that term is
used in Regulation D), if such liabilities were outstanding. The Eurocurrency
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith.
Event of Default. See Section 12.1.
Existing Credit Facility. The $300,000,000 unsecured credit facility
established pursuant to the Revolving Credit and Guaranty Agreement dated June
27, 2000 among Borrower, Guarantors party thereto, lenders party thereto, Fleet
National Bank, as Administrative Agent for the lenders party thereto, Xxxxxxx
Xxxxx Xxxxxx Inc., as Syndication Agent for the lenders party thereto, and
Bankers Trust Company, as Documentation Agent for the lenders party thereto, as
amended and modified by the First Amendment to Revolving Credit and Guaranty
Agreement dated as of March 30, 2001, and as it may be further amended, modified
or supplemented from time to time.
Extension Certification. See Section 2.8.
Extension Date. See Section 2.8.
Facility. The secured revolving line of credit facility provided to the
Borrower pursuant to this Agreement.
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Fixed Charges. With respect to any fiscal period of any Person, an amount
equal to the sum of (i) Interest Expense, (ii) regularly scheduled installments
of principal payable with respect to all Indebtedness of such Person, other than
balloon payments of principal at maturity, (iii) scheduled cash lease payments
or obligations with respect to Capitalized Leases of such Person plus (iv) in
the cases of the Company and the Borrower, all dividend payments due to the
holders of any preferred shares of beneficial interest of the Company and all
distributions due to the holders of any preferred limited partnership interests
in the Borrower.
Fixed Rate Prepayment Fee. See Section 3.3.
Forward Purchase Contract. With respect to any Person, a purchase agreement
entered into by such Person for the fee or leasehold purchase of an office
property to be constructed.
Funds From Operations. Consolidated net income (loss) of the Borrower and
its Subsidiaries before extraordinary items, computed in accordance with
Generally Accepted Accounting Principles, plus, to the extent deducted in
determining net income (loss) and without duplication, (i) gains (or losses)
from debt restructuring and sales of property (or adjustments to basis of
properties or other assets), (ii) non-recurring charges, (iii) provisions for
losses, (iv) real estate related depreciation, amortization and other non-cash
charges (excluding amortization of financing costs), and (v) amortization of
organizational expenses minus, to the extent included in net income (loss) and
without duplication, (a) non-recurring income (loss) and (b) equity income
(loss) from unconsolidated partnerships and joint ventures less the
proportionate share of Funds From Operations of such partnerships and joint
ventures, which adjustments shall be calculated on a consistent basis.
Generally Accepted Accounting Principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
in the United States and (b) consistently applied with past financial statements
of the Borrower adopting the same principles; provided that a certified public
accountant would, insofar as the use of such accounting principles is pertinent,
be in a position to deliver an unqualified opinion (other than a qualification
regarding changes in Generally Accepted Accounting Principles) as to financial
statements in which such principles have been properly applied.
Ground Lease. A leasehold interest in land and/or the improvements thereon.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guaranteed Obligations. Collectively,
(i) the payment, as and when due, or by stated maturity,
acceleration, or otherwise, of the Notes and all other amounts due and
payable under the other Loan Documents to the Agent and the Lenders at such
times and in the manner provided for in the Loan Documents, including
interest accruing from and after the date of the commencement of a
bankruptcy case against the Borrower or a Guarantor, and
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(ii) the payment of all other obligations of the Borrower under the
Loan Documents that can be performed by the payment of monies, either to
the Agent and the Lenders directly or by reimbursement of advances by them,
including, without limitation, the payment of income and other taxes by the
Borrower.
Guarantor. Each of the Company, any direct or indirect Subsidiary of the
Borrower or the Company owning any interest in a Structured Finance Collateral
Asset, and any other Subsidiaries of the Borrower or the Company which execute
and deliver this Agreement as a Guarantor.
Guaranty. See Section 18.1.
Hazardous Materials. See Section 6.18(b).
Indebtedness. For any Person, without duplication, (i)(a) all indebtedness
of such Person for borrowed money and (b) all obligations of such Person to pay
a deferred purchase price for property or services, including, but not limited
to, obligations under Forward Purchase Contracts, having met all conditions of
repayment thereof but for the passage of time, (ii) all indebtedness of such
Person evidenced by a note, bond, debenture or similar instrument, (iii) the
outstanding undrawn amount of all letters of credit issued for the account of
such Person and, without duplication, all un-reimbursed amounts drawn
thereunder, (iv) all indebtedness of any other person or entity secured by any
Lien on any property owned by such Person, whether or not such indebtedness has
been assumed, (v) indebtedness of others guaranteed by such Person (including,
without limitation, indebtedness of a partnership for which such Person, if a
general partner, would be liable as a matter of law or contractually), but only
to the extent of the specific amount guaranteed as a matter of contract or law,
provided that for purposes of this definition the term "guarantee" shall not
include the guarantee of customary non-recourse carve-outs (including, but not
limited to, claims for fraud, misrepresentation, or environmental law
violations), (vi) all payment obligations of such Person under any Interest Rate
Contracts and currency swaps and similar agreements, to the extent such
liabilities are material and are reported or are required under Generally
Accepted Accounting Principles to be reported by such Person in its financial
statements, (vii) all indebtedness and liabilities of such Person secured by any
Lien or mortgage on any property of such Person, whether or not the same would
be classified as a liability on a balance sheet, (viii) the liability of such
Person in respect of banker's acceptances and the estimated liability under any
participating mortgage, convertible mortgage or similar arrangement, (ix) the
aggregate principal amount of rentals or other consideration payable by such
Person in accordance with Generally Accepted Accounting Principles over the
remaining unexpired term of all Capitalized Leases of such Person, (x) all
outstanding monetary judgments or decrees by a court or courts of competent
jurisdiction entered against such Person, (xi) all convertible debt and
subordinated debt owed by such Person, (xii) all preferred partnership interests
and preferred stock issued by such Person that, in either case, are redeemable
prior to the Maturity Date for cash on a mandatory basis, a cash equivalent, a
note receivable or similar instrument or are convertible prior to the Maturity
Date on a mandatory basis to Indebtedness as defined herein (other than
Indebtedness described in clauses (iii), (ix), or (x) of this definition),
(xiii) all customary trade payables and accrued expenses more than sixty (60)
days past due, (xiv) expected amortization of tenant costs and leasing
commissions over such Person's next twelve succeeding fiscal months, and (xv)
all obligations, liabilities, reserves and any other items
-8-
which are listed as a liability on a balance sheet of such Person determined on
a consolidated basis in accordance with Generally Accepted Accounting
Principles, but excluding all general contingency reserves and reserves for
deferred income taxes and investment credit, and excluding debt covered by
escrows and security deposits fully funded by cash or cash equivalents.
Interest Expense. For any Person for any Period, with respect to all
Indebtedness of such Person, an amount equal to the sum of the following with
respect to all Indebtedness of such Person: (i) total interest expense, accrued
in accordance with Generally Accepted Accounting Principles, plus (ii) all
capitalized interest determined in accordance with Generally Accepted Accounting
Principles, but only to the extent that such capitalized interest is not covered
by an interest reserve established under a loan facility (such as capitalized
construction interest provided for in a construction loan).
Interest Payment Date. As to any Base Rate Loan or LIBOR Rate Loan, the
first day of each calendar month.
Interest Period. With respect to each Loan, (a) initially, the period
commencing on the Borrowing Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request:
(i) for any Base Rate Loan, the day on which such Base Rate Loan is paid in full
or converted to a LIBOR Rate Loan; and (ii) for any LIBOR Rate Loan, 7 days (but
only to the extent available in the Eurodollar market to all Lenders), 1, 2, or
3 months; and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Loan and ending on the last day of
one of the periods set forth above, as selected by the Borrower in a Conversion
Request; provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(A) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a Eurodollar Business Day, that Interest
Period shall be extended to the next succeeding Eurodollar 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 Eurodollar Business Day;
(B) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the next
succeeding Business Day;
(C) if the Borrower shall fail to give notice as provided in Section
2.6, the Borrower shall be deemed to have requested a conversion of the affected
LIBOR Rate Loan to a Base Rate Loan on the last day of the then current Interest
Period with respect thereto;
(D) any Interest Period relating to any LIBOR Rate Loan that begins on
the last Eurodollar 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 Eurodollar Business Day of a
calendar month;
(E) no more than four (4) Interest Periods relating to LIBOR Rate
Loans may be outstanding at any one time; and
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(F) the Borrower may not select any Interest Period relating to any
LIBOR Rate Loan that would extend beyond the Maturity Date.
Interest Rate Contracts. Interest rate swap, cap, collar or similar
agreements providing for interest rate protection.
Investments. In any Person, any loan, advance, or extension of credit to or
for the account of, any guaranty, endorsement (other than for collection in the
ordinary course of business) or other direct or indirect contingent liability in
connection with the obligations, capital interests or equity distributions of,
any ownership, purchase or acquisition of any capital interests, business,
assets, obligations or securities of, or any other interest in or capital
contribution to, such Person.
Leases. Leases, licenses and agreements whether written or oral, relating
to the use or occupation of space in the Buildings located on the Unencumbered
Assets by persons other than the owner thereof.
Lenders. As defined in the preamble hereto.
LIBOR Lending Office. Initially, the office of each Lender designated as
such in Schedule 1 hereto; thereafter, such other office of such Lender, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan, the
rate per annum equal to the quotient (rounded upwards to the nearest 1/1000 of
one percent) of (a) the rate per annum for deposits in Dollars in the London
interbank market for a period equal in length to such Interest Period which
appears on Telerate Page 3750 as of 11:00 a.m. (London, England time) two
Eurodollar Business Days prior to the beginning of such Interest Period, divided
by (b) a number equal to 1.00 minus the Eurocurrency Reserve Rate.
LIBOR Rate Loans. Loans bearing interest calculated by reference to the
LIBOR Rate.
Lien. Any lien, encumbrance, mortgage, deed of trust, pledge, restriction
or other security interest. If title to any Real Estate Asset is held by a
Subsidiary of Borrower or an Unconsolidated Entity then any pledge or assignment
of Borrower's stock, partnership interest, limited liability company interest or
other ownership interest in such Subsidiary or Unconsolidated Entity shall be
deemed to be a Lien on the Real Estate Assets owned by such Subsidiary or
Unconsolidated Entity.
Loan Documents. This Agreement, the Notes, the Collateral Documents, and
any and all other agreements, documents and instruments now or hereafter
evidencing, securing or otherwise relating to the Loans.
Loan Request. See Section 2.5.
Loans. Loans made or to be made by the Lenders to the Borrower pursuant to
Section 2.1 and Section 2.5.
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Majority Lenders. As of any date, the Lenders whose aggregate Commitments
constitute at least fifty-one percent (51%) of the Total Commitment provided
that the Commitments of any Delinquent Lenders shall be disregarded when
determining the Majority Lenders.
Material Adverse Effect. Any condition which has a material adverse effect
on (i) the business, operations, properties, assets or condition (financial or
otherwise) of the Borrower, the Company and any other Guarantors, taken as a
whole, or (ii) the ability of the Borrower, the Company or any other Guarantor
to perform its obligations under the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the remedies or material rights
of the Agent or the Lenders thereunder.
Maturity Date. December 20, 2003, subject to extension pursuant to Section
2.8 hereof, or such earlier date on which the Loans shall become due and payable
pursuant to the terms hereof.
Maximum Credit Amount. As of any date of determination, the lesser of
(i) the Total Commitment and
(ii) the sum of
(A) 50% of the aggregate Structured Finance Collateral Asset Values
of all Structured Finance Collateral Assets that are 100%
beneficially owned by the Borrower and/or any Guarantor plus
(B) the lesser of (x) $37,500,000 and (y) 25% of the aggregate
Structured Finance Collateral Asset Values of all Structured
Finance Collateral Assets that are less than 100% beneficially
owned by the Borrower and/or any Guarantor.
Minimum Capital Expenditure Reserves. For any Real Estate Asset, $0.40 per
net rentable square foot of such Real Estate Asset per annum, or, for any
shorter period, such amount multiplied by a fraction the numerator of which is
the length of the applicable period in months (or portions thereof) and the
denominator of which is 12.
Minimum Management Fees. Shall mean the greater of (i) three percent (3%)
of Rents from the related Real Estate Asset for the three (3) month period
immediately preceding the calculation, and (ii) the actual management fees paid
by the Borrower and the Related Companies with respect to such Real Estate Asset
during such three (3) month period.
Mortgage. Any mortgage, deed of trust, or other security instrument that
creates a Lien on a class B (or better) office property (including the
development of same) or assets related thereto to secure Indebtedness.
Mortgage Loan. Any Indebtedness the payment or performance of which is
secured by a Mortgage.
Mortgage Note. Any instrument, document or agreement evidencing a Mortgage
Loan.
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Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA contributed to by the Borrower or any ERISA Affiliate.
Net Offering Proceeds. All cash proceeds received after the Effective Date
by the Borrower or the Company as a result of the sale of common, preferred or
other classes of stock of the Company or the issuance of limited partnership
interests in the Borrower less customary costs and discounts of issuance paid by
Company or Borrower in connection therewith.
Net Operating Income. With respect to any Real Estate Asset, for the period
of determination, the Rents derived from the customary operation of such Real
Estate Asset, less operating expenses attributable to such Real Estate Asset,
and shall include only the sum of (i) the Rents received or expected to be
received, and earned in accordance with Generally Accepted Accounting
Principles, pursuant to Leases in place, plus (ii) other income actually
received and earned in accordance with Generally Accepted Accounting Principles
with respect to such Real Estate Asset, plus (iii) rent loss or business
interruption insurance proceeds received or expected to be received during or
relating to such period due to a casualty that has occurred prior to the date of
calculation plus (iv) parking or other income, less operating expenses actually
paid or payable on an accrual basis in accordance with Generally Accepted
Accounting Principles attributable to such Real Estate Asset during such period,
as set forth on operating statements and schedules reasonably satisfactory to
Agent. Net Operating Income shall be calculated in accordance with customary
accounting principles applicable to real estate. Notwithstanding the foregoing,
Net Operating Income shall not include (i) any condemnation or insurance
proceeds (excluding rent loss or business interruption insurance proceeds as
described above), (ii) any proceeds resulting from the sale, exchange, transfer,
financing or refinancing of all or any portion of the Real Estate Asset for
which it is to be determined, (iii) amounts received from tenants as security
deposits unless actually applied toward the payment of rent or additional rent
in accordance with the terms of such tenant's lease, (iv) interest income and
(v) any type of income otherwise included in Net Operating Income but paid
directly by any tenant to a Person other than Borrower or a Guarantor or other
Related Company or their respective agents or representatives.
Notes. See Section 2.3.
Obligations. All indebtedness, obligations and liabilities of the Borrower
or any Guarantor to any of the Lenders and the Agent, individually or
collectively, under this Agreement, the other Loan Documents or in respect of
any of the Loans or the Notes or other instruments at any time evidencing any
thereof, whether existing on the date of this Agreement or arising or incurred
hereafter, direct or indirect, joint or several, absolute or contingent, matured
or unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law of otherwise.
Outstanding Obligations. As of any date of determination, the sum of the
outstanding principal amount of the Loans.
Occupancy Rate. With respect to an Unencumbered Asset at any time, the
ratio, as of such date, expressed as a percentage, of (i) the net rentable area
of such Unencumbered Asset leased to tenants paying rent pursuant to, and to the
extent required under, Leases other than
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Leases which are in material default, to (ii) the net rentable area of such
Unencumbered Asset. For purposes of this definition, if a tenant has sublet all
or a portion of the premises demised under its Lease, and such subtenant is
actually occupying such premises or portion thereof, the tenant shall be deemed
to be actually occupying such premises or portion thereof, as the case may be.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Developments. The construction of any new buildings or the
construction of additions expanding existing buildings or the rehabilitation of
existing buildings (other than normal refurbishing of common areas and tenant
fit up work when one tenant leases space previously occupied by another tenant)
relating to any Real Estate Assets of the Borrower, any Guarantor or any of the
other Related Companies, including (but not limited to) Forward Purchase
Contracts, having met all conditions of payment thereof but for the passage of
time, and each Permitted Development shall be counted for purposes of Section
8.2 from the time of commencement of the applicable construction work until a
final certificate of occupancy has been issued with respect to such project in
the amount of the total projected cost of such project.
Permitted Liens. The following Liens, security interests and other
encumbrances:
(i) liens to secure taxes, assessments and other governmental
charges in respect of obligations not overdue, the Indebtedness with respect to
which is permitted hereunder;
(ii) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(iii) liens in respect of judgments or awards, the Indebtedness with
respect to which is permitted hereunder;
(iv) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens which are either covered by a full indemnity from a
creditworthy indemnitor or have been in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue, the Indebtedness
with respect to which is permitted hereunder; and
(v) encumbrances consisting of easements, rights of way, Leases,
covenants, restrictions on the use of real property and defects and
irregularities in the title thereto; and other minor liens or encumbrances none
of which in the opinion of the Borrower interferes materially with the use of
the property affected in the ordinary conduct of the business of the Borrower,
and which matters (x) do not individually or in the aggregate have a materially
adverse effect on the value of the Unencumbered Asset and (y) do not make title
to such property unmarketable by the conveyancing standards in effect where such
property is located.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
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Pledge and Security Agreement. The pledge and security agreement, in
substantially the form of Exhibit D hereto, executed by each Person pledging an
interest in the Collateral and delivered to the Agent, as collateral agent for
the Secured Parties, on or before the Effective Date.
Preferred Distribution. The declaration or payment of any dividend or
distribution of cash or cash equivalents to the holders of preferred shares of
beneficial interest in the Company or the holders of preferred units of limited
partnership interest of the Borrower.
Prepayment Date. See Section 3.3.
Properties. All Real Estate Assets, Real Estate, and all other assets,
including, without limitation, intangibles and personalty owned by the Borrower
or any of the Related Companies.
Prudential Facility. See Section 7.12.
Real Estate. All real property at any time owned, leased (as lessee or
sublessee) or operated by the Borrower, any Guarantor, or any of the Related
Companies or any Unconsolidated Entity.
Real Estate Assets. Those fixed and tangible properties consisting of land,
buildings and/or other improvements owned by the Borrower, by any Guarantor, by
any of the Related Companies or by any Unconsolidated Entity at the relevant
time of reference thereto, but excluding all leaseholds other than leaseholds
under Ground Leases which either have an unexpired term (including unexercised
renewals options exercisable at the option of the lessee) of at least 20 years
or contain a purchase option for nominal consideration.
Real Estate Effective Control Assets. Those Investments in mortgages and
mortgage participations owned by the Borrower or by any Guarantor as to which
the Borrower has demonstrated to the Agent, in the Agent's discretion, that
Borrower or a Guarantor has control of the decision-making functions of
management and leasing of such mortgaged properties, has control of the economic
benefits of such mortgaged properties, and holds an option to purchase such
mortgaged properties.
Record. The grid attached to any Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Lender
with respect to any Loan referred to in such Note.
Recourse Indebtedness. All Indebtedness except Indebtedness with respect to
which recourse for payment is contractually limited (except for customary
exclusions) to specific assets encumbered by a lien securing such Indebtedness.
Register. See Section 19.3.
Related Companies. The entities listed and described on Schedule 1.3
hereto, being all of the Subsidiaries of the Borrower and the Company as of the
Effective Date, or thereafter, any entity whose financial statements are
consolidated or combined with the Company's pursuant to Generally Accepted
Accounting Principles, or any ERISA Affiliate.
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Release. A release, spillage, leaking, pumping, pouring, emitting,
emptying, discharge, injection, escape, disposal or dumping of Hazardous
Material.
Rents. All rents, issues, profits, royalties, receipts, revenues, accounts
receivable, and income, including fixed, additional and percentage rents,
occupancy charges, operating expense reimbursements, reimbursements for
increases in taxes, sums paid by tenants to the Borrower or the Related
Companies to reimburse the Borrower or the Related Companies for amounts
originally paid or to be paid by the Borrower or the Related Companies or their
respective agents or affiliates for which such tenants were liable, as, for
example, tenant improvements costs in excess of any work letter, lease takeover
costs, moving expenses and tax and operating expense pass-throughs for which a
tenant is solely liable, parking income, recoveries for common area maintenance
expense, tax, insurance, utility and service charges and contributions, proceeds
of sale of electricity, gas, heating, air-conditioning and other utilities and
services, deficiency rents and liquidated damages, and other benefits.
Requisite Lenders. As of any date, the Lenders whose aggregate Commitments
constitute at least sixty-six and two-thirds percent (66(2/3)%) of the Total
Commitment provided that the Commitments of any Delinquent Lenders shall be
disregarded when determining the Requisite Lenders.
Responsible Officer. With respect to the Company, any one of its Chairman,
President, Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, Treasurer, Executive Vice Presidents or Senior Vice Presidents.
Secured Parties. The Lenders and the Agent, as collateral agent for the
benefit of the Lenders.
Structured Finance Collateral Asset. Each Structured Finance Investment set
forth on Schedule 1.1, as such Schedule may be amended or supplemented from time
to time, and any other Structured Finance Investment which at the date of
determination, (i) is beneficially owned in whole or in part by Borrower or one
of the Guarantors; (ii) is unencumbered by any Liens; (iii) (A) if a Mortgage
Loan, is not greater than ninety (90) days past due, (B) if a loan secured by
partnership or membership interests or a membership agreement, is not greater
than ninety (90) days past due, or (C) if a preferred equity Investment, there
are no dividends in arrears for a period of more than ninety (90) days; (iv) is
pledged to the Agent for the benefit of the Lenders as Collateral to secure the
Obligations, and (v) is approved as a "Structured Finance Collateral Asset" by
both (x) the Requisite Lenders in their sole discretion and (y) each of Fleet
National Bank, First Union National Bank, and Sovereign Bank, to the extent each
of them shall be as of such date of determination a Lender holding a Commitment
of at least $15,000,000, in each case in their sole respective discretion (which
shall not be unreasonably delayed). Each asset which satisfies the conditions
set forth in this definition shall be deemed to be a Structured Finance
Collateral Asset only during such periods of time as Borrower has included the
same on the list of Structured Finance Collateral Assets attached to the most
recent Compliance Certificate delivered hereunder.
Structured Finance Collateral Asset Value. With respect to any Structured
Finance Collateral Asset, when determined as of the last day of any fiscal
quarter, the product of (A) the
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percentage (stated as a fraction) of Borrower's or the Guarantors' aggregate
beneficial ownership interest in the Structured Finance Collateral Asset times
(B) the lesser of (i) the stated face value of Structured Finance Collateral
Asset (taking into account principal amortization), (ii) the purchase price paid
for the Structured Finance Collateral Asset by the Borrower and/or the
Guarantors, and (iii) the book value of the Structured Finance Collateral Asset
as determined by Generally Accepted Accounting Principles.
Structured Finance Investment. Any of the following Investments in (or in
entities whose Investments are primarily in): (i) Mortgages, Mortgage Loans, and
Mortgage Notes, (ii) mezzanine or bridge financing loans secured by partnership
or equivalent equity interests in the borrower thereof or (iii) a preferred
equity Investments (including preferred limited partnership or limited liability
company interests) (including, but not limited to, single-asset or limited-asset
collateralized mortgage backed securities and in entities owning (or leasing
pursuant to a Ground Lease) class B (or better) office properties located in the
city of New York, New York, any of Westchester, Rockland, Nassau, or Suffolk
Counties in the state of New York, Fairfield County in the state of Connecticut,
or any of Xxxxxx County, Monmouth County or any county north thereof in the
state of New Jersey, but subject in all cases to the Lenders' approval as set
forth in clause (v) of the definition of Structured Finance Collateral Asset.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent or other controlling Person shall at any time own
directly or indirectly through a Subsidiary or Subsidiaries at least a majority
(by number of votes) of the outstanding Voting Interests.
Tangible Net Worth. The book value of all of the assets of the Borrower and
the Related Companies minus the book value of all of the liabilities of the
Borrower and the Related Companies minus all intangibles determined in
accordance with Generally Accepted Accounting Principles.
Telerate Page 3750. The display designated as "Page 3750" on the Telerate
Service, or such other page as may replace Page 3750 on that service or any such
service as may be nominated by the British Bankers' Association as the
information vender for the purpose of displaying British Bankers' Association
interest settlement rates for U.S. Dollar deposits.
Total Assets. As of any date of determination, the sum of the following,
without duplication: (i) the Value of All Unencumbered Assets, plus (ii) the
aggregate Adjusted Net Operating Income for the fiscal quarter immediately
preceding such date, annualized, for all Real Estate Assets (other than
Unencumbered Assets) and Real Estate Effective Control Assets owned or leased by
the Borrower, the Company or one of their respective Subsidiaries other than
Real Estate Assets referred to in clause (iii) of this definition, divided by
nine and one-half percent (9.5%), plus (iii) the aggregate purchase price of all
Real Estate Assets (other than Unencumbered Assets but including Forward
Purchase Contracts having met all conditions of repayment thereof but for the
passage of time) and Real Estate Effective Control Assets acquired or initially
leased by the Borrower, the Company and their respective Subsidiaries within the
fiscal quarter immediately preceding such date, multiplied by ninety-five
percent (95.0%), plus (iv) the book value of unrestricted cash and cash
equivalents of the Borrower, the Company and their respective Subsidiaries, plus
(v) the aggregate book value of all Investments
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of the Borrower, the Company and their respective Subsidiaries (other than Real
Estate Effective Control Assets) permitted under Section 8.2 hereof.
Total Commitment. The sum of the Commitments of the Lenders, as in effect
from time to time.
Total Debt. The sum of (without duplication) all Indebtedness of the
Borrower and the Company included in the liabilities portion of the Borrower's
and the Company's balance sheets prepared in accordance with Generally Accepted
Accounting Principles as of the end of the most recent fiscal quarter for which
financial statements have been provided pursuant to Section 7.4.
Type. As to any Loan its nature as a Base Rate Loan or a LIBOR Rate Loan.
Unconsolidated Entity. As of any date, any Person in whom the Borrower, the
Company or any Related Company holds an Investment, other than an Investment in
entities which meet the definition of Unconsolidated Entity solely as a result
of the Borrower, the Company or any Related Company having made a Structured
Finance Investment therein, and whose financial results would not be
consolidated under Generally Accepted Accounting Principles with the financial
statements of the Borrower, if such statements were prepared as of such date.
Unconsolidated Entities existing on the date hereof are set forth in Schedule
1.3.
Unencumbered Asset. At all times, any Real Estate Asset identified as an
"Unencumbered Asset" under the Existing Credit Facility at such time, provided,
however, that if the Existing Credit Facility is no longer outstanding, then any
Real Estate Asset that would have qualified as an "Unencumbered Asset" under the
Existing Credit Facility if the same had not been terminated.
Unencumbered Asset Value. With respect to any Unencumbered Asset at any
time, an amount computed as follows: (i) for any Unencumbered Asset owned or
leased by the Borrower or the Guarantors other than Unencumbered Assets referred
to in clause (ii) of this definition, the Adjusted Net Operating Income for such
Unencumbered Asset for the fiscal quarter immediately preceding such date,
annualized, divided by nine and one-half percent (9.5%), or (ii) for any
Unencumbered Asset acquired or initially leased by the Borrower or the
Guarantors within the fiscal quarter immediately preceding such date, the
purchase price of such Unencumbered Asset multiplied by ninety-five percent
(95.0%).
Unsecured Indebtedness. All Indebtedness of Borrower or of any of the
Related Companies which is not secured by a Lien on any Properties including,
without limitation, the Outstanding Obligations and any Indebtedness evidenced
by any bonds, debentures, notes or other debt securities presently outstanding
or which may be hereafter issued by Borrower or by the Company. Unsecured
Indebtedness shall not include accrued ordinary operating expenses payable on a
current basis.
Unused Amount. See Section 4.2
Value of All Unencumbered Assets. When determined as of the end of a fiscal
quarter, an amount computed as follows: the sum of (i) the aggregate Adjusted
Net Operating Income for
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the fiscal quarter immediately preceding such date, annualized, for all
Unencumbered Assets owned or leased by the Borrower, the Guarantors or any of
their respective Subsidiaries other than Unencumbered Properties referred to in
clause (ii) of this definition, divided by nine and one-half percent (9.5%),
plus (ii) the aggregate purchase price of all Unencumbered Assets acquired or
initially leased by the Borrower, the Guarantors or any of their respective
Subsidiaries within the fiscal quarter immediately preceding such date,
multiplied by ninety-five percent (95.0%); provided, however, that after making
such computation, the Value of All Unencumbered Assets shall be reduced by the
amount by which the Unencumbered Asset Value of any single Unencumbered Asset
exceeds (i) during the period to and including the first anniversary of the
"Effective Date", as such term is defined in the Existing Credit Facility, forty
percent (40%) of the Value of All Unencumbered Assets as so computed, and (ii)
after the first anniversary of the "Effective Date", as such term is defined in
the Existing Credit Facility, thirty-five percent (35%) of the Value of All
Unencumbered Assets as so computed.
Variable Rate Indebtedness. The Loans and all other Indebtedness of the
Borrower which bears interest at a rate which is not fixed either through
maturity or for a term of at least thirty-six (36) months from the date that
such fixed rate became effective.
Voting Interests. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
Section 1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by Generally Accepted Accounting Principles applied on
a consistent basis by the accounting entity to which they refer and, except as
otherwise expressly stated, all use of accounting terms with respect to the
Borrower shall reflect the consolidation of the financial statements of Borrower
and the Related Companies.
(f) The words "include", "includes" and "including" are
not limiting.
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(g) All terms not specifically defined herein or by
Generally Accepted Accounting Principles, which terms are defined in the Uniform
Commercial Code as in effect in New York, have the meanings assigned to them
therein.
(h) Reference to a particular "Section" refers to that
section of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
(j) The words "so long as any Loan or Note is outstanding"
shall mean so long as such Loan or Note is not indefeasibly paid in full in
cash.
Section 2. REVOLVING SECURED CREDIT FACILITY
Section 2.1. Commitment to Lend; Limitation on Total Commitment.
Subject to the provisions of Section 2.5 and the other terms and conditions set
forth in this Agreement, each of the Lenders severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time
between the Effective Date and the Maturity Date upon notice by the Borrower to
the Agent given in accordance with Section 2.5, such sums as are requested by
the Borrower up to a maximum aggregate principal amount of the Outstanding
Obligations (after giving effect to all amounts requested) at any one time equal
to such Lender's Commitment, provided that the sum of the Outstanding
Obligations (after giving effect to all amounts requested) shall not at any time
exceed the Maximum Credit Amount. The Loans shall be made pro rata in accordance
with each Lender's Commitment Percentage and the Lenders shall at all times
immediately adjust INTER SE any inconsistency between each Lender's outstanding
principal amount and each Lender's Commitment. Each request for a Loan hereunder
shall constitute a representation and warranty by the Borrower that the
conditions set forth in Section 10 or Section 11 (whichever is applicable) have
been satisfied on the date of such request and will be satisfied on the proposed
Borrowing Date of the requested Loan, provided that the making of such
representation and warranty by Borrower shall not limit the right of any Lender
not to lend upon a determination by the Requisite Lenders that such conditions
have not been satisfied.
Section 2.2. Changes in Total Commitment. The Borrower shall have the
right at any time upon at least ten (10) Business Days' prior written notice to
the Agent (which shall promptly notify each Lender), to reduce by $1,000,000 or
an integral multiple of $1,000,000 in excess thereof the unborrowed portion of
the then Total Commitment, provided that the Total Commitment shall not be
reduced to less than $50,000,000, whereupon the Commitments of the Lenders shall
be reduced pro rata in accordance with their respective Commitment Percentages
by the amount specified in such notice. Upon the effective date of any such
reduction, the Borrower shall pay to the Agent for the respective accounts of
the Lenders the full amount of any commitment fee required under Section 4.2
hereof then accrued and unpaid on the amount of the reduction. No reduction of
the Commitments may be reinstated.
Section 2.3. The Notes. The Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit A hereto
(each a "Note"), and completed with appropriate insertions. One Note shall be
payable to the order of each Lender in an aggregate
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principal amount equal to such Lender's Commitment. The Borrower irrevocably
authorizes each Lender to make or cause to be made, at or about the time of the
Borrowing Date of any Loan or at the time of receipt of any payment of principal
on such Lender's Note, an appropriate notation on such Lender's Record
reflecting the making of such Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Loans set forth on such Lender's Record
shall (absent manifest error) be prima facie evidence of the principal amount
thereof owing and unpaid to such Lender, but the failure to record, or any error
in so recording, any such amount on the Record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any Note to make
payments of principal of or interest on any Note when due.
Section 2.4. Interest on Loans.
(a) Each Base Rate Loan shall bear interest commencing
with the Borrowing Date thereof at the rate equal to the Base Rate.
(b) Each LIBOR Rate Loan shall bear interest for the
period commencing with the Borrowing Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate equal to the Applicable
LIBOR Margin per annum above the LIBOR Rate determined for such Interest Period.
(c) The Borrower unconditionally promises, in accordance
with and subject to the provisions of the Loan Documents, to pay interest on
each Loan in arrears on each Interest Payment Date with respect thereto and,
with respect to any LIBOR Rate Loan, on the last day of the Interest Period with
respect thereto.
Section 2.5. Requests for Loans.
(a) The Borrower shall give to the Agent written notice in
the form of Exhibit B hereto of each Loan requested hereunder (a "Loan Request")
no less than (a) one (1) Business Day prior to the proposed Borrowing Date of
any Base Rate Loan and (b) three (3) Eurodollar Business Days prior to the
proposed Borrowing Date of any LIBOR Rate Loan. Each such notice shall specify
(i) the principal amount of the Loan requested, (ii) the proposed Borrowing Date
of such Loan, (iii) the Interest Period for such Loan, and (iv) the Type of such
Loan, and shall be accompanied by a statement in the form of Exhibit C hereto
signed by a Responsible Officer setting forth in reasonable detail computations
evidencing compliance with the covenants contained in Section 9.1 through
Section 9.5 hereof after giving effect to such requested Loan (a "Compliance
Certificate"). On the same day as the receipt of a Loan Request for a Base Rate
Loan, and within one (1) Business Day after receipt of a Loan Request for a
LIBOR Rate Loan, the Agent shall provide to each of the Lenders by facsimile a
copy of such Loan Request and accompanying Compliance Certificate and each
Lender shall, within 24 hours thereafter (if such following day is a Business
Day, and if not, before 10:30 AM Boston time on the next succeeding Business
Day), notify the Agent if it believes that any of the conditions contained in
Section 11 of this Agreement has not been met or waived. If such a notice is
given, Agent shall poll the Lenders, and the Requisite Lenders shall promptly
determine whether all of the conditions contained in Section 11 of this
Agreement have been met or waived. If no such notice is given by any Lender or
if following such notice the Requisite Lenders determine that the conditions
contained in Section 11 have been met or waived, or, in any event, if all
conditions in Section 11 have in fact been met or waived,
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Agent shall notify the Lenders that each of the Lenders shall be obligated to
fund its Commitment Percentage of the requested Loans. Each such Loan Request
shall be irrevocable and binding on the Borrower and the Borrower shall be
obligated to accept the Loan requested from the Lenders on the proposed
Borrowing Date. Each Loan Request shall be in a minimum aggregate amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof. The Borrower
shall be allowed up to two (2) Loan Requests per month.
(b) Notwithstanding anything contained in Section 2.5(a)
to the contrary, in the event that the making of a requested Loan would cause
non-compliance with any of the covenants contained in Section 9.1 through
Section 9.7 hereof, the Agent may, in its sole discretion, reduce the amount of
the Loan Request to an amount which would enable the Borrower to maintain
compliance with such otherwise defaulted covenant or covenants and Borrower
shall accept the Loan made pursuant to such reduced Loan Request.
Section 2.6. Conversion Options.
(a) The Borrower may elect from time to time to convert
any outstanding Loan to a Loan of another Type, provided that (i) with respect
to any such conversion of a LIBOR Rate Loan to a Base Rate Loan, the Borrower
shall give the Agent at least three (3) Business Days prior written notice of
such election; (ii) with respect to any such conversion of a LIBOR Rate Loan
into a Base Rate Loan, such conversion shall only be made on the last day of the
Interest Period with respect thereto; (iii) subject to the further proviso at
the end of this section and subject to Section 2.6(b) and Section 2.6(d) hereof
with respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan,
the Borrower shall give the Agent at least three (3) Eurodollar Business Days
prior written notice of such election and (iv) no Loan may be converted into a
LIBOR Rate Loan when any Default or Event of Default has occurred and is
continuing. The Agent shall promptly notify the Lenders of any such request
received. On the date on which such conversion is being made, each Lender shall
take such action as is necessary to transfer its Commitment Percentage of such
Loans to its Domestic Lending Office or its LIBOR Lending Office, as the case
may be. All or any part of outstanding Loans of any Type may be converted as
provided herein, provided further that each Conversion Request relating to the
conversion of a Base Rate Loan to a LIBOR Rate Loan shall be for an amount equal
to $1,000,000 (unless the aggregate outstanding principal amount of Loans is
less than $1,000,000) or an integral multiple of $100,000 in excess thereof and
shall be irrevocable by the Borrower.
(b) Any Loans of any Type may be continued as such upon
the expiration of an Interest Period with respect thereto by compliance by the
Borrower with the notice provisions contained in Section 2.6(a); provided that
no LIBOR Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating thereto ending
during the continuance of any Default or Event of Default of which the officers
of the Agent active upon the Borrower's account have actual knowledge.
(c) In the event that the Borrower does not notify the
Agent of its election hereunder with respect to any Loan, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
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(d) The Borrower may not request a LIBOR Rate Loan
pursuant to Section 2.5, elect to convert a Base Rate Loan to a LIBOR Rate Loan
pursuant to Section 2.6(a) or elect to continue a LIBOR Rate Loan pursuant to
Section 2.6(b) if, after giving effect thereto, there would be greater than four
(4) LIBOR Rate Loans outstanding. Any Loan Request for a LIBOR Rate Loan that
would create greater than four (4) LIBOR Rate Loans outstanding shall be deemed
to be a Loan Request for a Base Rate Loan.
Section 2.7. Funds for Loans.
(a) Subject to Section 2.5 and other provisions of this
Agreement, not later than 1:00 p.m. (Boston time) on the proposed Borrowing Date
of any Loans, each of the Lenders will make available to the Agent, at the
Agent's Head Office, in immediately available funds, the amount of such Lender's
Commitment Percentage of the amount of the requested Loans. Upon receipt from
each Lender of such amount, and upon receipt of the documents required by
Sections 10 or 11 (whichever is applicable) and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Agent will make
available to the Borrower the aggregate amount of such Loans made available to
the Agent by the Lenders. The failure or refusal of any Lender to make available
to the Agent at the aforesaid time and place on any Borrowing Date the amount of
its Commitment Percentage of the requested Loans shall not relieve any other
Lender from its several obligation hereunder to make available to the Agent the
amount of such other Lender's Commitment Percentage of any requested Loans but
shall not obligate any other Lender or Agent to fund more than its Commitment
Percentage of the requested Loans or to increase its Commitment Percentage.
(b) The Agent may, unless notified to the contrary by any
Lender prior to a Borrowing Date, assume that such Lender has made available to
the Agent on such Borrowing Date the amount of such Lender's Commitment
Percentage of the Loans to be made on such Borrowing Date, and the Agent may
(but it shall not be required to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If any Lender makes available
to the Agent such amount on a date after such Borrowing Date, such Lender shall
pay to the Agent on demand an amount equal to the product of (i) the average
computed for the period referred to in clause (iii) below, of the weighted
average interest rate paid by the Agent for federal funds acquired by the Agent
during each day included in such period, times (ii) the amount of such Lender's
Commitment Percentage of such Loans, times (iii) a fraction, the numerator of
which is the number of days or portion thereof that elapsed from and including
such Borrowing Date to the date on which the amount of such Lender's Commitment
Percentage of such Loans shall become immediately available to the Agent, and
the denominator of which is 365. A statement of the Agent submitted to such
Lender with respect to any amounts owing under this paragraph shall be prima
facie evidence of the amount due and owing to the Agent by such Lender.
Section 2.8. Extension of Maturity Date. On any Business Day not more
than ninety (90) but at least thirty (30) days prior to December 20, 2003, the
Borrower, by written notice to the Agent, may request an extension of the
Maturity Date to December 20, 2004. The obligation of each Lender to extend the
Maturity Date as requested by the Borrower is subject to the condition precedent
that the Borrower shall deliver to the Agent and the Lenders written
certification (the
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"Extension Certification") that, as of the original Maturity Date of December
20, 2003 (the "Extension Date"), the following statements are true:
(a) the representations and warranties contained in this Agreement and the
other Loan Documents are, subject to the exceptions described in clauses
(i), (ii) and (iii) of Section 11.1 hereof, correct on and as of the
Extension Date, before and after giving effect to such extension, as though
made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date);
(b) the stated maturity date of the Existing Credit Facility is later than
December 20, 2004; and
(c) no Default or Event of Default shall have occurred and be continuing or
would occur as a result of the extension requested.
Upon timely notice by Borrower pursuant to the first sentence of this Section
2.8 and delivery by the Borrower to the Agent and the Lenders of the Extension
Certification on the Extension Date, the Maturity Date shall, effective as of
the Extension Date, be December 20, 2004.
Section 3. REPAYMENT OF THE LOANS
Section 3.1. Maturity. The Borrower unconditionally promises, in
accordance with, and subject to, the provisions of the Loan Documents, to pay on
the Maturity Date, and there shall become absolutely due and payable on the
Maturity Date, all of the Loans outstanding on such date, together with any and
all accrued and unpaid interest and charges thereon.
Section 3.2. Mandatory Repayments of Loan. If at any time the sum of
the Outstanding Obligations exceeds the Maximum Credit Amount, then the Borrower
shall immediately pay the amount of such excess to the Agent for the respective
accounts of the Lenders for application to the Loans, provided, however, that if
as of the end of any fiscal quarter of the Borrower the sum of the Outstanding
Obligations exceeds the Maximum Credit Amount by less than $100,000 solely as a
result of principal amortization within such fiscal quarter with respect to a
Structured Finance Collateral Asset (as certified to by a Responsible Officer of
the Company (on behalf of the Borrower and as demonstrated on the compliance
statement required pursuant to Section 6.4 hereof for such fiscal quarter), no
repayment shall be required under this Section 3.2.
Section 3.3. Optional Repayments of Loans. The Borrower shall have the
right, at its election, to repay the outstanding amount of the Loans, as a whole
or in part, on any Business Day, without penalty or premium; provided that the
full or partial prepayment of the outstanding amount of any LIBOR Rate Loans
made pursuant to this Section 3.3 may be made only on the last day of the
Interest Period relating thereto, except as set forth below in this Section 3.3.
The Borrower shall give the Agent no later than 10:00 a.m., Boston time, at
least one (1) Business Day's prior written notice of any prepayment pursuant to
this Section 3.3 of any Base Rate Loans and three (3) Eurodollar Business Days'
notice of any proposed repayment pursuant to this Section 3.3 of any LIBOR Rate
Loans, specifying the proposed date of payment of Loans and the principal amount
to be paid. The Agent shall promptly notify each Lender of the principal amount
of such payment to be
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received by such Lender. Each such partial prepayment of the Loans shall be in
an integral multiple of $1,000,000 (or, if the aggregate outstanding principal
amount of Loans is less than $1,000,000, the full amount thereof) provided that
if partial prepayment is received in connection with payment received from an
underlying obligor or other party to a Structured Finance Collateral Asset, the
amount so received may be prepaid and, to the extent requested by the Agent,
shall be accompanied by the payment of all charges outstanding on all Loans and
of accrued interest on the principal repaid to the date of payment. Unless
otherwise requested by the Borrower, the principal payments so received shall be
applied first to the principal of Base Rate Loans and then to the principal of
LIBOR Rate Loans. Notwithstanding anything contained herein to the contrary, the
Borrower may make a full or partial prepayment of a LIBOR Rate Loan on a date
other than the last day of the Interest Period relating thereto, if all such
optional prepayments (in whole or in part) on such Loans shall be accompanied
by, and the Borrower hereby promises to pay, a prepayment fee in an amount
determined by the Agent in the following manner:
(a) Fixed Rate Prepayment Fee. Borrower acknowledges that
prepayment or acceleration of a LIBOR Rate Loan during an Interest Period shall
result in the Lenders incurring additional costs, expenses and/or liabilities
and that it is extremely difficult and impractical to ascertain the extent of
such costs, expenses and/or liabilities. (For all purposes of this Section, any
Loan not being made as a LIBOR Rate Loan in accordance with the Loan Request
therefor, as a result of Borrower's cancellation thereof, shall be treated as if
such LIBOR Rate Loan had been prepaid.) Therefore, on the date a LIBOR Rate Loan
is prepaid or the date all sums payable hereunder become due and payable, by
acceleration or otherwise ("Prepayment Date"), Borrower will pay to Agent, for
the account of each Lender, (in addition to all other sums then owing), an
amount ("Fixed Rate Prepayment Fee") determined by the Agent as follows: The
current rate for United States Treasury securities (bills on a discounted basis
shall be converted to a bond equivalent) with a maturity date closest to the end
of the Interest Period as to which prepayment is made, shall be subtracted from
the interest rate applicable to the LIBOR Rate Loan being prepaid. If the result
is zero or a negative number, there shall be no Fixed Rate Prepayment Fee. If
the result is a positive number, then the resulting percentage shall be
multiplied by the amount of the LIBOR Rate Loan being prepaid. The resulting
amount shall be divided by 360 and multiplied by the number of days remaining in
the Interest Period as to which the prepayment is being made. The resulting
amount shall be the Fixed Rate Prepayment Fee.
(b) Upon the written notice to Borrower from Agent,
Borrower shall immediately pay to Agent, for the account of the Lenders, the
Fixed Rate Prepayment Fee. Such written notice (which shall include calculations
in reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the parties hereto.
(c) Borrower understands, agrees and acknowledges the
following: (i) no Lender has any obligation to purchase, sell and/or match funds
in connection with the use of the LIBOR Rate as a basis for calculating the rate
of interest on a LIBOR Rate Loan; (ii) the LIBOR Rate is used merely as a
reference in determining such rate; and (iii) Borrower has accepted the LIBOR
Rate as a reasonable and fair basis for calculating such rate and a Fixed Rate
Prepayment Fee. Borrower further agrees to pay the Fixed Rate Prepayment Fee, if
any, whether or not a Lender elects to purchase, sell and/or match funds.
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Section 4. CERTAIN GENERAL PROVISIONS
Section 4.1. Fees. On the Effective Date, the Borrower shall pay to
each of the Lenders hereunder, the fees in the amounts specified in the
respective fee agreements among the Borrower and each of the Lenders.
Section 4.2. Commitment Fee. The Borrower shall pay to the Agent for
the accounts of the Lenders in accordance with their respective Commitment
Percentages a commitment fee calculated at the rate of 25 basis points per annum
on the average daily amount by which the Total Commitment (as it may have been
reduced pursuant to Section 2.2) exceeds the Outstanding Obligations (such
excess, the "Unused Amount"). The commitment fee shall be payable on the basis
of the applicable annual rate quarterly in arrears on or before the third
Business Day of each calendar quarter for the immediately preceding calendar
quarter commencing on April 3, 2002, with a final payment on the Maturity Date
or any earlier date on which the Commitments shall terminate.
Section 4.3. Funds for Payments.
(a) All payments of principal, interest, closing fees,
commitment fees and any other amounts due hereunder (other than as provided in
Section 4.1, Section 4.5 and Section 4.6) or under any of the other Loan
Documents, and all prepayments, shall be made to the Agent, for the respective
accounts of the Lenders, at the Agent's Head Office, in each case in Dollars in
immediately available funds.
(b) All payments by the Borrower hereunder and under any
of the other Loan Documents shall be made without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory liens, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount payable
by it hereunder or under any of the other Loan Documents, the Borrower shall pay
to the Agent, for the account of the Lenders or (as the case may be) the Agent,
on the date on which such amount is due and payable hereunder or under such
other Loan Document, such additional amount in Dollars as shall be necessary to
enable the Lenders or the Agent to receive the same net amount which the Lenders
or the Agent would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.
(c) In the event that Borrower is obligated to pay any
additional amounts described in clause (b) above in respect of any Lender's
Loan, such Lender shall make commercially reasonable efforts to change the
jurisdiction of its lending office if, in the reasonable judgment of such
Lender, doing so would eliminate or reduce Borrower's obligation to pay such
additional amounts and would not be disadvantageous to such Lender.
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(d) All payments shall be applied first to the payment of
all fees, expenses and other amounts due to the Agent and the Lenders (excluding
principal and interest), then to accrued interest, and the balance on account of
outstanding principal; provided, however, that after an Event of Default
hereunder, payments will be applied to the obligations of the Borrower to the
Agent as the Requisite Lenders determine in their sole discretion.
Section 4.4. Computations. All computations of interest on the Loans
and of other fees to the extent applicable shall be based on a 360-day year and
paid for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to LIBOR Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension.
Section 4.5. Additional Costs, Etc. If any change from and after the
date hereof in any present or future applicable law which expression, as used
herein, includes statutes, rules and regulations thereunder and interpretations
thereof by any competent court or by any governmental or other regulatory body
or official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Lender or the Agent by any
central bank or other fiscal, monetary or other authority (whether or not having
the force of law), shall:
(a) subject any Lender or the Agent to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with respect
to this Agreement, the other Loan Documents, such Lender's Commitment or the
Loans (other than taxes based upon or measured by the income or profits of such
Lender or the Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Lender of the
principal of or the interest on any Loans or any other amounts payable to any
Lender under this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or Loans by, or commitments of an office of
any Lender, or
(d) impose on any Lender any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, the Commitment, or any class of Loans or commitments of which any of the
Loans or the Commitment forms a part;
and the result of any of the foregoing is
(i) to increase the cost to such Lender of making,
funding, issuing, renewing, extending or maintaining any of the Loans or such
Lender's Commitment, or
(ii) to reduce the amount of principal, interest or other
amount payable to such Lender or the Agent hereunder on account of the
Commitments or any of the Loans, or
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(iii) to require such Lender or the Agent to make any
payment or to forego any interest or other sum payable hereunder, the amount of
which payment or foregone interest or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Lender or the
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Lender
or (as the case may be) the Agent at any time and from time to time and as often
as the occasion therefor may arise, pay to such Lender or the Agent, to the
extent permitted by law, such additional amounts as will be sufficient to
compensate such Lender or the Agent for such additional cost, reduction, payment
or foregone interest or other sum.
Section 4.6. Capital Adequacy. If any present or future law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) or the interpretation thereof by a court or
governmental authority with appropriate jurisdiction affects the amount of
capital required or expected to be maintained by banks or bank holding companies
and any Lender or the Agent determines that the amount of capital required to be
maintained by it is increased by or based upon the existence of the Loans made
or deemed to be made pursuant hereto, then such Lender or the Agent may notify
the Borrower of such fact, and the Borrower shall pay to such Lender or the
Agent from time to time on demand, as an additional fee payable hereunder, such
amount as such Lender or the Agent shall determine in good faith and certify in
a notice to the Borrower to be an amount that will adequately compensate such
Lender or the Agent in light of these circumstances for its increased costs of
maintaining such capital. Each Lender and the Agent shall allocate such cost
increases among its customers in good faith and on an equitable basis.
Section 4.7. Certificate. Each Lender shall notify the Borrower and the
Agent of any event occurring after the Effective Date entitling such Lender to
compensation under Section 4.5 or Section 4.6 as promptly as practicable. A
certificate setting forth any additional amounts payable pursuant to Sections
4.5 or 4.6 and a brief explanation of such amounts which are due, submitted by
any Lender or the Agent to the Borrower, shall be prima facie evidence that such
amounts are due and owing.
Section 4.8. Indemnity. In addition to the other provisions of this
Agreement regarding any such matters, the Borrower agrees to indemnify each
Lender and to hold each Lender harmless from and against any loss or reasonable
cost or expense (including loss of anticipated profits) that such Lender may
sustain or incur as a consequence of (a) a default by the Borrower in payment of
the principal amount of or any interest on any LIBOR Rate Loans as and when due
and payable, including any such loss or expense caused by Borrower's breach or
other default and arising from interest or fees payable by such Lender to
lenders of funds obtained by it in order to maintain its LIBOR Rate Loans, (b) a
default by the Borrower in making a borrowing or conversion after the Borrower
has given (or is deemed to have given) a Loan Request or a Conversion Request,
and (c) the making of any payment of a LIBOR Rate Loan or the making of any
conversion of a LIBOR Rate Loan to a Base Rate Loan on a day that is not the
last day of the applicable Interest Period with respect thereto, including
interest or fees payable by such Lender to lenders of funds obtained by it in
order to maintain any such LIBOR Rate Loan (including, but not limited to, any
fees payable under Section 3.3(a) hereof).
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Section 4.9. Interest on Overdue Amounts. Overdue principal and (to the
extent permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents, including
amounts owed from and after the occurrence of an Event of Default, shall bear
interest compounded monthly and payable on demand at a rate per annum equal to
four percent (4%) above the Base Rate until such amount shall be paid in full
(after as well as before judgment).
Section 4.10. Inability to Determine LIBOR Rate. In the event, prior to
the commencement of any Interest Period relating to any LIBOR Rate Loan, the
Agent shall reasonably determine that adequate and reasonable methods do not
exist for ascertaining the LIBOR Rate that would otherwise determine the rate of
interest to be applicable to any LIBOR Rate Loan during any Interest Period, the
Agent shall forthwith give notice of such determination (which shall be
conclusive and binding on the Borrower) to the Borrower. In such event (a) any
Loan Request with respect to LIBOR Rate Loans shall be automatically withdrawn
and shall be deemed a request for Base Rate Loans, (b) each then outstanding
LIBOR Rate Loan will automatically, on the last day of the then current Interest
Period thereof, become a Base Rate Loan, and (c) the obligations of the Lenders
to make LIBOR Rate Loans shall be suspended until the Agent determines that the
circumstances giving rise to such suspension no longer exist, whereupon the
Agent shall so notify the Borrower.
Section 4.11. Illegality. Notwithstanding any other provisions herein,
if any present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain LIBOR Rate Loans, such Lender shall forthwith give notice of
such circumstances to the Borrower and the Agent and thereupon (a) the
Commitment of such Lender to make LIBOR Rate Loans or convert Loans of another
Type to LIBOR Rate Loans shall forthwith be suspended and (b) the LIBOR Rate
Loans then outstanding shall be converted automatically to Base Rate Loans on
the last day of each Interest Period applicable to such LIBOR Rate Loans or
within such earlier period as may be required by law. The Borrower hereby agrees
promptly to pay to the Agent for the account of such Lender, upon demand, any
additional amounts necessary to compensate such Lender for any costs incurred by
such Lender in making any conversion in accordance with this Section 4.11,
including any interest or fees payable by such Lender to lenders of funds
obtained by it in order to make or maintain its LIBOR Rate Loans hereunder.
Section 4.12. Replacement of Lenders. If Agent or any of the Lenders
shall make a notice or demand upon the Borrower pursuant to Section 4.3, Section
4.5, Section 4.6, or Section 4.11 based on circumstances or laws which are not
generally applicable to the Lenders organized under the laws of the United
States or any State thereof, the Borrower shall have the right to replace such
Lender with an Eligible Assignee selected by the Borrower and approved by the
Agent (which consent shall not be unreasonably withheld or delayed). In such
event the assignment shall take place as promptly as reasonably practicable on a
date set by the Agent at which time the assigning Lender and the Eligible
Assignee shall enter into an Assignment and Acceptance as contemplated by
Section 19.1 (and clause (c) or (d) thereof shall not be applicable) and the
assigning Lender shall receive from the Eligible Assignee or the Borrower a sum
equal to the outstanding principal amount of the Loans owed to the assigning
Lender together with accrued interest thereon plus the accrued commitment fee
under Section 4.2 allocated to the assigning Lender, and the replaced Lender
shall be
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released from all of the obligations of a Lender hereunder from and after the
effective date of its replacement.
Section 5. STRUCTURED FINANCE COLLATERAL ASSETS; NO LIMITATION ON
RECOURSE
Section 5.1. Structured Finance Collateral Assets.
(a) The Borrower represents and warrants that each of the Structured
Finance Collateral Assets listed on Schedule 1.1 will on the Effective Date
satisfy all of the conditions set forth in the definition of Structured Finance
Collateral Asset. The Lenders confirm that each of the Structured Finance
Collateral Assets listed on Schedule 1.1 is, on the Effective Date, accepted as
a Structured Finance Collateral Asset. From time to time during the term of this
Agreement, upon the written consent of both (x) the Requisite Lenders in their
sole discretion and (y) each of Fleet National Bank, First Union National Bank,
and Sovereign Bank, to the extent each of them shall be as of such date of
determination a Lender holding a Commitment of at least $15,000,000, in each
case in their sole respective discretion (which in each case of (x) and (y)
consent shall not be unreasonably delayed), additional assets may become
Structured Finance Collateral Assets and certain assets which previously
satisfied the conditions set forth in the definition of Structured Finance
Collateral Asset may cease to be Structured Finance Collateral Assets by virtue
of payment of the underlying obligations, creation of Liens or other reasons.
There shall be attached to each Compliance Certificate delivered pursuant to
Section 7.4(d) or Section 7.13 an updated listing of the Structured Finance
Collateral Assets relied upon by the Borrower in computing the covenants set
forth in Section 5 in such Compliance Certificate. Compliance Certificates
delivered pursuant to Section 2.5(a) shall include an updated listing of the
Structured Finance Collateral Assets and shall include such updated listing
whenever a redetermination of the Structured Finance Collateral Assets Values
for all Structured Finance Collateral Assets based on such an updated listing
would result in a material decrease (from that shown on the most recently
delivered Compliance Certificate) in the Structured Finance Collateral Assets
Values for all Structured Finance Collateral Assets by virtue of payment of the
underlying obligations, creation of Liens or other reasons.
Section 5.2. Waivers by Requisite Lenders. If any asset fails to
satisfy any of the requirements contained in the definition of Structured
Finance Collateral Asset then the applicable asset may nevertheless be deemed to
be a Structured Finance Collateral Asset hereunder if both (x) the Requisite
Lenders in their sole discretion and (y) each of Fleet National Bank, First
Union National Bank, and Sovereign Bank, to the extent each of them shall be as
of such date of determination a Lender holding a Commitment of at least
$15,000,000, in each case in their sole respective discretion, vote to accept
such asset as a Structured Finance Collateral Asset.
Section 5.3. Rejection of Structured Finance Collateral Assets. If at
any time the Agent reasonably determines that any asset listed as a Structured
Finance Collateral Asset by the Borrower does not satisfy all of the
requirements of the definition of Structured Finance Collateral Asset other than
clause (v) thereof (to the extent not waived by the Requisite Lenders pursuant
to Section 5.2), it may upon three (3) Business Day's notice to the Borrower
reject a Structured Finance Collateral Asset by notice to the Borrower, and if
the Agent so requests the Borrower
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shall revise the applicable Compliance Certificate to reflect the resulting
change in the Structured Finance Collateral Asset Values.
Section 5.4. Change in Circumstances. If at any time during the term of
this Agreement Borrower becomes aware that any of the applicable representations
contained in Section 6 are no longer accurate with respect to any Structured
Finance Collateral Asset, it will promptly so notify the Agent and either
request a waiver pursuant to Section 5.2 or confirm that such asset is no longer
a Structured Finance Collateral Asset. If any waiver so requested is not granted
by the Requisite Lenders or the Agent, as applicable, within ten (10) Business
Days the Agent shall reject the applicable Structured Finance Collateral Asset
pursuant to Section 5.3.
Section 5.5. No Limitation on Recourse. The Obligations are full
recourse obligations of the Borrower and, to the extent provided in this
Agreement, of the Guarantors, and all of their respective assets and other
properties shall be available for the indefeasible payment in full in cash and
performance of the Obligations as and when due and payable.
Section 5.6. Additional Guarantors. If Borrower desires that an asset
owned by a Related Company which is not previously a Guarantor become a
Structured Finance Collateral Asset, then provided that the applicable Related
Company is a direct or indirect Subsidiary of Borrower or any Guarantor, such
Related Company may become a Guarantor upon delivery to the Agent of the
following, all in form and substance reasonably satisfactory to the Agent: (a) a
supplement to this Agreement executed and delivered by the such proposed
Guarantor assenting to be bound by all the terms of the Loan Documents as a
Guarantor, and (b) good standing certificates, general partner certificates,
secretary certificates, opinions of counsel and such other documents as may be
reasonably requested by the Agent. The Agent shall promptly provide copies of
said documents to the Lenders.
Section 6. REPRESENTATIONS AND WARRANTIES. The Borrower and the
Guarantors jointly and severally represent and warrant to the Agent and each of
the Lenders as follows:
Section 6.1. Authority; Etc.
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(a) Organization; Good Standing. The Company (i) is a
Maryland corporation duly organized, validly existing and in good standing under
the laws of the State of Maryland, (ii) has all requisite power to own its
properties and conduct its business as now conducted and as presently
contemplated, and (iii) to the extent required by law is in good standing as a
foreign entity and is duly authorized to do business in the States in which any
of the Collateral is located and in each other jurisdiction where such
qualification is necessary except where a failure to be so qualified in such
other jurisdiction would not have a Material Adverse Effect. The Borrower is a
Delaware limited partnership, and each of the Borrower and each Guarantor is
duly organized, validly existing and in good standing under the laws of the
State of its formation, has all requisite power to own its properties and
conduct its business as presently contemplated and is duly authorized to do
business in the States in which any of the Collateral owned by it is located and
in each other jurisdiction where such qualification is necessary except where a
failure to be so qualified in such other jurisdiction would not have a Material
Adverse Effect.
(b) Authorization. The execution, delivery and performance
of this Agreement and the other Loan Documents to which the Borrower is or is to
become a party and the transactions contemplated hereby and thereby (i) are
within the authority of the Borrower, (ii) have been duly authorized by all
necessary proceedings on the part of the Borrower and the Company as general
partner of Borrower, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which the
Borrower or the Company is subject or any judgment, order, writ, injunction,
license or permit applicable to the Borrower or the Company and (iv) do not
conflict with any provision of the Borrower's partnership agreement or Company's
charter documents or bylaws, or any agreement (except agreements as to which
such a conflict would not result in a Material Adverse Effect) or other
instrument binding upon, the Borrower or the Company or to which any of their
properties are subject. The execution, delivery and performance of this
Agreement or the other Loan Documents to which any Guarantor is or is to become
a party and the transactions contemplated hereby and thereby (i) are within the
authority of such Guarantor, (ii) have been duly authorized by all necessary
proceedings on the part of such Guarantor, (iii) do not conflict with or result
in any breach or contravention of any provision of law, statute, rule or
regulation to which such Guarantor is subject or any judgment, order, writ,
injunction, license or permit applicable to such Guarantor and (iv) do not
conflict with any provision of such Guarantor's charter documents or bylaws,
partnership agreement, declaration of trust, or any agreement (except agreements
as to which such a conflict would not result in a Material Adverse Effect) or
other instrument binding upon such Guarantor or to which any of such Guarantor's
properties are subject.
(c) Enforceability. The execution and delivery of this
Agreement, the other Loan Documents to which the Borrower is or is to become a
party will result in valid and legally binding obligations of the Borrower
enforceable against it in accordance with the respective terms and provisions
hereof and thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought. The execution and delivery of this Agreement and the other Loan
Documents to which any Guarantor is or is to become a party will result in valid
and legally binding obligations of such Guarantor enforceable against such
Guarantor in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by
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bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
Section 6.2. Governmental Approvals. The execution, delivery and
performance by the Borrower and each Guarantor of this Agreement and the other
Loan Documents to which the Borrower or such Guarantor is or is to become a
party and the transactions contemplated hereby and thereby do not require the
approval or consent of, or filing with, any governmental agency or authority
other than those already obtained.
Section 6.3. Title to Properties.
(a) Either the Borrower or a Guarantor holds good and
unencumbered title to their respective legal and beneficial interest in the
Structured Finance Collateral Assets, subject to no Liens other than those in
favor of the Agent under the Loan Documents.
(b) Except as indicated on Schedule 6.3 hereto, the
Borrower or a Subsidiary holds good and marketable fee simple title to, or holds
a marketable leasehold interest pursuant to a Ground Lease of, all of the
properties reflected in the balance sheet of the Borrower as at December 31,
2000 or acquired since that date (except properties sold or otherwise disposed
of in the ordinary course of business since that date).
Section 6.4. Financial Statements. The following financial statements
have been furnished to the Agent.
(a) A balance sheet of the Company as of December 31,
2000, and a statement of operations and statement of cash flows of the Company
for the fiscal year then ended, a balance sheet of the Borrower as of December
31, 2000, and a statement of operations and statement of cash flows of the
Borrower for the fiscal year then ended, all accompanied by an auditor's report
prepared without qualification by Ernst & Young. Such balance sheets and
statements of operations and of cash flows have been prepared in accordance with
Generally Accepted Accounting Principles and fairly present the financial
condition of the Borrower and the Company, respectively as at the close of
business on the date thereof and the results of operations and cash flows for
the fiscal year then ended. There are no contingent liabilities of the Borrower
or the Company, respectively, as of such date involving material amounts, known
to the officers of the Company not disclosed in said balance sheet and the
related notes thereto.
(b) A balance sheet and a statement of operations and
statement of cash flows of the Company and a balance sheet and a statement of
operations and statement of cash flows of the Borrower for each of the fiscal
quarters of the Company ended since December 31, 2000 but prior to the Effective
Date for which the Company has filed form 10-Q with the SEC, which the Company's
Responsible Officer certifies has been prepared in accordance with Generally
Accepted Accounting Principles consistent with those used in the preparation of
the annual audited statements delivered pursuant to paragraph (a) above and
fairly represents the financial condition of the Company and the Borrower,
respectively, as at the close of business on the dates thereof and the results
of operations and of cash flows for the fiscal quarters then ended (subject
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to year-end adjustments). There are no contingent liabilities of the Borrower or
the Company as of such dates involving material amounts, known to the officers
of the Company, not disclosed in such balance sheets and the related notes
thereto.
Section 6.5. No Material Changes, Etc. Since September 30, 2001, there
has occurred no material adverse change in the financial condition or assets or
business of the Borrower as shown on or reflected in the balance sheet of the
Borrower as of September 30, 2001, or the statement of income for the fiscal
year then ended, other than changes in the ordinary course of business that have
not had any Material Adverse Effect either individually or in the aggregate.
Section 6.6. Franchises, Patents, Copyrights, Etc. The Borrower and
each Guarantor possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others, except to the extent the Borrower's or such
Guarantor's failure to possess the same does not have a Material Adverse Effect.
Section 6.7. Litigation. Except as listed and described on Schedule 6.7
hereto, there are no actions, suits, proceedings or investigations of any kind
pending or, to Borrower's knowledge, threatened against the Borrower, any
Guarantor or any of the Related Companies before any court, tribunal or
administrative agency or board that, if adversely determined, might, either in
any case or in the aggregate, have a Material Adverse Effect or materially
impair the right of the Borrower, any Guarantor or any of the Related Companies
to carry on business substantially as now conducted by it, or which question the
validity of this Agreement or any of the other Loan Documents, any action taken
or to be taken pursuant hereto or thereto, or which would result in a Lien on
any Structured Finance Collateral Asset.
Section 6.8. No Materially Adverse Contracts, Etc. Neither the Borrower
nor the Company nor any other Guarantor is subject to any charter, trust or
other legal restriction, or any judgment, decree, order, rule or regulation that
has or is expected in the future to have a Material Adverse Effect. Neither the
Borrower nor the Company is a party to any contract or agreement that has or is
expected, in the judgment of the Company's officers, to have any Material
Adverse Effect.
Section 6.9. Compliance With Other Instruments, Laws, Etc. Neither the
Borrower nor the Company nor any other Guarantor is in violation of any
provision of the Borrower's partnership agreement or of the Company's charter
documents, by-laws, or any agreement or instrument to which it may be subject or
by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that could result in the imposition of substantial penalties or have a
Material Adverse Effect.
Section 6.10. Tax Status. Each of the Borrower and the Company and each
other Guarantor (a) has made or filed all federal and state income and all other
tax returns, reports and declarations required by any jurisdiction to which it
is subject, and (b) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings. There
are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company know of no basis
for any such claim.
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Section 6.11. Event of Default. No Default or Event of Default has
occurred and is continuing hereunder. No "Default" or "Event of Default" (as
such terms are defined in the Existing Credit Facility) has occurred and is
continuing under the Existing Credit Facility.
Section 6.12. Investment Company Act. Neither the Borrower nor the
Company is an "investment company", or an "affiliated company" or a "principal
underwriter" of an "investment company", as such terms are defined in the
Investment Company Act of 1940.
Section 6.13. Absence of Financing Statements, Etc. There is no
financing statement, security agreement, chattel mortgage, real estate mortgage,
equipment lease, financing lease, option, encumbrance or other document
existing, filed or recorded with any filing records, registry, or other public
office, that purports to cover, affect or give notice of any present or possible
future lien or encumbrance on, or security interest in, any Structured Finance
Collateral Asset, other than as required by the Pledge and Security Agreement in
favor of the Agent.
Section 6.14. Status of the Company. The Company (i) is a real estate
investment trust as defined in Section 856 of the Code (or any successor
provision thereto), (ii) has not revoked its election to be a real estate
investment trust, (iii) has not engaged in any "prohibited transactions" as
defined in Section 856(b)(6)(iii) of the Code (or any successor provision
thereto), and (iv) for its current "tax year" (as defined in the Code) is, and
for all prior tax years subsequent to its election to be a real estate
investment trust has been, entitled to a dividends paid deduction which meets
the requirements of Section 857 of the Internal Revenue Code. The common stock
of the Company is listed for trading on the New York Stock Exchange.
Section 6.15. Certain Transactions. Except as set forth on Schedule 6.15
hereto, none of the officers or employees of the Borrower or any Guarantor is
presently a party to any transaction with the Borrower or any Guarantor (other
than for services as employees, officers and trustees), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, trustee or such employee or, to the
knowledge of the Borrower and the Company, any corporation, partnership, trust
or other entity in which any officer, trustee or any such employee or natural
Person related to such officer, trustee or employee or other Person in which
such officer, trustee or employee has a direct or indirect beneficial interest
has a substantial interest or is an officer or trustee.
Section 6.16. Benefit Plans; Multiemployer Plans; Guaranteed Pension
Plans. As of the date hereof, neither the Borrower nor any ERISA Affiliate
maintains or contributes to any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan, except as may be set forth on Schedule 6.16. To the
extent that Borrower or any ERISA Affiliate hereafter maintains or contributes
to any Employee Benefit Plan or Guaranteed Pension Plan, it shall at all times
do so in compliance with Section 7.17 hereof. None of the assets of the Borrower
or any of the Guarantors is "plan assets" of any Employee Benefit Plan for
purposes of Title I of ERISA.
Section 6.17. Regulations U and X. No portion of any Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of Governors
of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
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Section 6.18. Environmental Compliance. Except as disclosed in Schedule
6.18 hereto, to the best knowledge of the Borrower:
(a) The Borrower, the Guarantors and the Related Companies
are in compliance with all Environmental Laws pertaining to any hazardous waste,
as defined by 42 U.S.C. Section 9601(5), any Hazardous Materials as defined by
42 U.S.C. Section 9601(14), any pollutant or contaminant as defined by 42 U.S.C.
Section 9601(33) or any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Materials") the failure with which to comply would have a Material Adverse
Effect. None of the Properties and no other property used by the Borrower, the
Guarantors or the Related Companies is included or proposed for inclusion on the
National Priorities List issued pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), or on
the Comprehensive Environmental Response Compensation and Liability Information
System maintained by the United States Environmental Protection Agency (the
"EPA") or on any analogous list maintained by any other Governmental Authority
and has not otherwise been identified by the EPA as a potential CERCLA site.
(b) The Borrower, the Guarantors and the Related Companies
have not, at any time, and, to the actual knowledge of the Borrower, no other
Person has at any time, used, handled, stored, buried, retained, refined,
transported, processed, manufactured, generated, produced, spilled, released,
allowed to seep, escape or xxxxx, or pumped, poured, emitted, emptied,
discharged, injected, dumped, transferred or otherwise disposed of, any
Hazardous Materials at or about the Real Estate Assets or any other real
property owned or occupied by the Borrower, any Guarantor or any Related
Company, except (i) for use and storage for use of reasonable amounts of
ordinary supplies and other substances customarily used in the operation of
commercial office buildings; provided, however, that such use and/or storage for
use is in substantial compliance with applicable Environmental Law, or (ii)
where such action is not reasonably expected to have a Material Adverse Effect.
(c) No actions, suits, or proceedings have been commenced,
are pending or, to the actual knowledge of the Borrower, are threatened in
writing with respect to any Environmental Law governing the use, manufacture,
storage, treatment, Release, disposal, transportation, or processing of
Hazardous Materials with respect to any Real Estate Asset or any part thereof
which could have a Material Adverse Effect. The Borrower, the Guarantors and the
Related Companies have received no written notice of and have no actual
knowledge of any fact, condition, occurrence or circumstance which could
reasonably be expected to give rise to a claim under or pursuant to any existing
Environmental Law pertaining to Hazardous Materials on, in, under or originating
from any Real Estate Asset or any part thereof or any other real property owned
or occupied by the Borrower or any Guarantor or arising out of the conduct of
any Borrower or any Guarantor, including claims for the presence of Hazardous
Materials at any other property, which in any case is reasonably expected to
have a Material Adverse Effect.
(d) Other than as set forth in reviews, reports and
surveys copies of which have been delivered to the Agent, there have occurred no
uses, manufactures, storage, treatments, Releases, disposals, transportation, or
processing of Hazardous Materials with respect to any Real Estate Asset except
those which, taken as a whole, would not have a Material Adverse Effect.
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Section 6.19. Subsidiaries and Affiliates. The Borrower has no
Subsidiaries except for the Related Companies listed on Schedule 1.3 and does
not have an ownership interest in any entity whose financial statements are not
consolidated with the Borrower's except for the Unconsolidated Entities listed
on Schedule 1.3. Except as set forth on Schedule 6.19: (a) the Company is not a
partner in any partnership other than Borrower and is not a member of any
limited liability company and (b) the Company owns no material assets other than
its partnership interest in Borrower.
Section 6.20. Loan Documents. All of the representations and warranties
of the Borrower or any Guarantor made in the other Loan Documents or any
document or instrument delivered or to be delivered to the Agent or the Lenders
pursuant to or in connection with any of such Loan Documents are true and
correct in all material respects.
Section 6.21. [Intentionally Omitted].
Section 6.22. Indebtedness. The Borrower and the Guarantors have no
Indebtedness except (a) as set forth on Schedule 6.22 hereto and (b) as
otherwise permitted by this Agreement. Schedule 6.22 hereto accurately sets
forth the outstanding principal amounts and the maturity dates of all
Indebtedness for borrowed money of the Borrower and the Guarantors and certain
of the Related Companies and identifies the holders of the obligations
thereunder as of the Effective Date.
Section 6.23. Title/Status of Structured Finance Assets.
(a) [Intentionally Omitted].
(b) The Borrower and the Guarantors have good title to
their respective ownership interests in each Structured Finance Collateral
Asset, free and clear of any Liens other than the Liens of the Loan Documents.
Except to the extent, if any, expressly set forth in the documents evidencing or
securing such Structured Finance Collateral Asset and the Borrower's or the
Guarantors' interests therein, which documents have been delivered to the Agent,
(a) the Borrower and the Guarantors have not waived, modified, altered,
satisfied, cancelled or subordinated any of documents evidencing or securing any
of the Structured Finance Collateral Assets in any material respect, and (b) the
real property underlying such Structured Finance Collateral Asset has not been
released from the lien of any such Structured Finance Collateral Asset, nor has
any maker been released from its obligations under any such Structured Finance
Collateral Asset.
(c) To the best knowledge of the Borrower and the
Guarantors, each Structured Finance Collateral Asset is the legal, valid and
binding obligation of each party obligated thereunder, enforceable against such
party in accordance with its terms, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
similar laws affecting creditors' rights generally. Except as set forth on
SCHEDULE 6.23, each Structured Finance Collateral Asset which is a Mortgage
creates a valid Lien in the property which is the subject of such Mortgage Note.
(d) To the actual knowledge of Borrower and the
Guarantors, each Structured Finance Collateral Asset was made in compliance with
all applicable laws, and does not violate
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any usury or similar law regulating the applicable maximum permitted rates of
interest for loans, extensions of credit or forbearances.
(e) To the actual knowledge of Borrower and the
Guarantors, each Structured Finance Collateral Asset evidences an undisputed,
bona fide transaction completed in accordance in all material respects with the
terms and provisions contained in any documents related thereto, and is genuine
and free from adverse claims, setoffs, default, defenses, retainages, holdbacks
and conditions precedent of any kind or character; and Borrower and the
Guarantors have no notice from underlying obligator contesting the validity or
collectability of any such Structured Finance Collateral Asset.
(f) To the actual knowledge of Borrower and the
Guarantors, there is no proceeding pending for the total or partial condemnation
of any property subject to a Structured Finance Collateral Asset; each property
subject to such Structured Finance Collateral Asset is being used for the
operation of a property, is in good repair and free and clear of any damage that
would affect materially and adversely the value of the property subject to such
Structured Finance Collateral Asset.
(g) [Intentionally Omitted].
(h) Neither Borrower nor the Guarantors nor any of their
Subsidiaries has received notice that any real property underlying a Structured
Finance Collateral Asset violates or fails to conform with any law, ordinance,
regulation, standard, license or certificate in any manner that would cause a
Material Adverse Effect.
(i) [Intentionally Omitted].
(j) [Intentionally Omitted].
(k) [Intentionally Omitted].
(l) To the actual knowledge of Borrower and the
Guarantors, for those properties subject to a Structured Finance Collateral
Asset in which the respective maker holds a leasehold estate, (i) the related
Ground Lease is in full force and effect except as permitted by the applicable
Structured Finance Collateral Asset and has not been modified or amended in any
manner whatsoever, and (ii) there are no material defaults under such Ground
Lease and no event has occurred, which but for the passage of time, or notice,
or both, would constitute a material default under such Ground Lease.
(m) Except to the extent permitted under the definition
of "Structured Finance Collateral Asset,"(i) no Structured Finance Collateral
Asset is in default beyond the expiration of any applicable grace or notice
periods, and (ii) during the preceding twelve (12) months or such lesser period
as Borrower or Guarantor has owned the Structured Finance Collateral Asset,
there has been no default in the payment of regularly scheduled principal and
interest thereunder.
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Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER. Borrower covenants
and agrees as follows, so long as any Loan or Note is outstanding or the Lenders
have any obligations to make Loans:
Section 7.1. Punctual Payment. The Borrower will unconditionally duly
and punctually pay the principal and interest on the Loans and all other amounts
provided for in the Notes, this Agreement, and the other Loan Documents all in
accordance with the terms of the Notes, this Agreement and the other Loan
Documents.
Section 7.2. Maintenance of Office. The Borrower will maintain its
chief executive office in New York, New York or at such other place in the
United States Of America as the Borrower shall designate upon written notice to
the Agent to be delivered within fifteen (15) days of such change, where
notices, presentations and demands to or upon the Borrower in respect of the
Loan Documents may be given or made.
Section 7.3. Records and Accounts. The Borrower will, and will cause
its Subsidiaries to, keep true and accurate records and books of account in
which full, true and correct entries will be made in accordance with Generally
Accepted Accounting Principles.
Section 7.4. Financial Statements, Certificates and Information. The
Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later
than ninety (90) days after the end of each fiscal year of the Borrower,
(i) the audited balance sheets of the Borrower and of the Company at the
end of such year, and the related audited statements of operations and
statements of cash flows for such year, each setting forth in comparative
form the figures for the previous fiscal year and all such statements to be
in reasonable detail, prepared in accordance with Generally Accepted
Accounting Principles on a consolidated basis including the Borrower and
the Related Companies, and accompanied by an auditor's report prepared
without qualification by Ernst & Young or by such other independent
certified public accountant as may be selected by Borrower and reasonably
acceptable to the Agent; and
(ii) to the extent available to the Borrower, with respect to the
Structured Finance Collateral Assets, annual operating and capital budgets,
rent rolls (indicating leasing status and rental rates, and pending lease
expirations), management reports and operating statements with respect to
each property subject to a Structured Finance Collateral Asset all to be
held by the Agent and the Lenders confidentially in accordance with
standard practices;
(b) as soon as practicable, but in any event not later
than forty-five (45) days after the end of each of the first three (3) fiscal
quarters during each fiscal year of the Borrower,
(i) copies of the unaudited balance sheets of the Borrower and of the
Company as at the end of such quarter, and the related unaudited statements
of operations for the portion of the Borrower's fiscal year then elapsed,
all in reasonable detail and
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prepared in accordance with Generally Accepted Accounting Principles,
together with a certification by the principal financial or accounting
officer of the Company that the information contained in such financial
statements fairly presents the financial position of the Borrower and of
the Company on the date thereof (subject to year-end adjustments);
provided, however, that for so long as the Borrower and the Company are
filing form 10-Q with the Securities and Exchange Commission ("SEC"), the
delivery of a copy thereof pursuant to paragraph (e) of this Section 7.4
shall be deemed to satisfy this clause (i) of this paragraph (b); and
(ii) to the extent available to the Borrower, with respect to the
Structured Finance Collateral Assets, rent rolls (indicating leasing status
and rental rates, and pending lease expirations) and operating statements
with respect to each property subject to a Structured Finance Collateral
Asset.
(c) [Intentionally Omitted];
(d) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a Compliance
Certificate signed by a Responsible Officer of the Company (on behalf of the
Borrower) and setting forth in reasonable detail computations evidencing
compliance with the covenants contained herein and (if applicable)
reconciliations to reflect changes in Generally Accepted Accounting Principles
since the relevant date;
(e) as soon as practicable, but in any event not later
than ninety (90) days after the end of each fiscal year of the Company, copies
of the Form 10-K statement filed with the SEC for such fiscal year, and as soon
as practicable, but in any event not later than forty-five (45) days after the
end of each fiscal quarter, copies of the Form 10-Q statement filed with the SEC
for such fiscal quarter, provided that in either case if the SEC has granted an
extension for the filing of such statements, Borrower shall deliver such
statements to the Agent simultaneously with the filing thereof with the SEC;
(f) promptly following the filing or mailing thereof,
copies of all other material of a financial nature filed with the SEC or sent to
the shareholders of the Company or to the limited partners of the Borrower and
copies of all corporate press releases promptly upon the issuance thereof;
(g) from time to time as the Agent may reasonably request,
all material notices, financial data and other information delivered to them by
the obligor under any Structured Finance Collateral Asset as a condition of the
contractual terms of such Structured Finance Collateral Asset; and
(h) from time to time such other financial data and
information as the Agent may reasonably request including, without limitation,
financial statements of any Unconsolidated Entities, it being understood and
agreed to by the Borrower and the Guarantors that any information that the
Borrower or any Guarantor may reasonably require or otherwise request as a
contractual right as a holder of a Structured Finance Collateral Asset may be
reasonably requested by the Agent provided that the Borrower will not be in
default hereunder if it fails to
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obtain same after reasonable efforts. All such information shall be held by the
Agent and Lenders in a confidential manner in accordance with standard
practices.
Section 7.5. Notices.
(a) Defaults. The Borrower will promptly notify the Agent
in writing (and the Agent shall immediately thereafter notify the Lenders) of
the occurrence of any Default or Event of Default. If any Person shall give any
notice or take any other action in respect of a claimed default (whether or not
constituting a Default or an Event of Default under this Agreement) under any
note, evidence of Indebtedness, indenture or other obligation to which or with
respect to which the Borrower, Guarantor or any of the Related Companies is a
party or obligor, whether as principal or surety, and if the principal amount
thereof exceeds $3,000,000, and such default would permit the holder of such
note or obligation or other evidence of Indebtedness to accelerate the maturity
thereof, the Borrower shall forthwith give written notice thereof to the Agent
and each of the Lenders, describing the notice or action and the nature of the
claimed default.
(b) Environmental Events. The Borrower will promptly
notify the Agent in writing (and the Agent shall promptly thereafter notify the
Lenders) of any of the following events: (i) upon Borrower's obtaining knowledge
of any violation of any Environmental Law regarding any property which is
subject to any Structured Finance Collateral Asset or any Real Estate or
Borrower's operations which violation could have a Material Adverse Effect; (ii)
upon Borrower's obtaining knowledge of any potential or known Release, or threat
of Release, of any Hazardous Material at, from, or into any property which is
subject to any Structured Finance Collateral Asset or any Real Estate which it
reports in writing or is reportable by it in writing to any governmental
authority and which is material in amount or nature or which could materially
affect the value of such Structured Finance Collateral Asset or which could have
a Material Adverse Effect; (iii) upon Borrower's receipt of any notice of
violation of any Environmental Laws or of any Release or threatened Release of
Hazardous Materials, including a notice or claim of liability or potential
responsibility from any third party (including without limitation any federal,
state or local governmental officials) and including notice of any formal
inquiry, proceeding, demand, investigation or other action with regard to (A)
Borrower's or any Person's operation of any property which is subject to any
Structured Finance Collateral Asset or any Real Estate if the same would have a
Material Adverse Effect, (B) contamination on, from or into any property which
is subject to any Structured Finance Collateral Asset or any Real Estate if the
same would have a Material Adverse Effect, or (C) investigation or remediation
of off-site locations at which Borrower or any of its predecessors are alleged
to have directly or indirectly disposed of Hazardous Materials; or (iv) upon
Borrower's obtaining knowledge that any expense or loss has been incurred by
such governmental authority in connection with the assessment, containment,
removal or remediation of any Hazardous Materials with respect to which
Borrower, Guarantor or any of the Related Companies may be liable or for which a
lien may be imposed on a Structured Finance Collateral Asset or any property
which is subject to any Structured Finance Collateral Asset.
(c) Notification of Liens Against Structured Finance
Collateral Assets or Other Material Claims. The Borrower will, promptly upon
becoming aware thereof, notify the Agent in writing (and the Agent shall
promptly thereafter notify the Lenders) of any Liens placed upon
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or attaching to any Structured Finance Collateral Assets or of any other setoff,
claims (including environmental claims), withholdings or other defenses to any
Structured Finance Collateral Asset.
(d) Notice of Litigation and Judgments. The Borrower will
give notice to the Agent in writing (and the Agent shall promptly thereafter
notify the Lenders) within fifteen (15) days of becoming aware of any litigation
or proceedings threatened in writing or any pending litigation and proceedings
affecting any of the Structured Finance Collateral Assets or affecting the
Borrower, any Guarantor or any of the Related Companies or to which the
Borrower, any Guarantor or any of the Related Companies is or is to become a
party involving an uninsured claim (or as to which the insurer reserves rights)
against the Borrower, any Guarantor or any of the Related Companies that at the
time of giving of notice could reasonably be expected to have a Material Adverse
Effect, and stating the nature and status of such litigation or proceedings. The
Borrower will give notice to the Agent, in writing, in form and detail
satisfactory to the Agent, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against the Borrower in an amount in excess of
$1,000,000.
Section 7.6. Existence; Maintenance of REIT Status; Maintenance of
Properties. The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its status as a "qualified real
estate investment trust" under Section 856 of the Code and the existence of
Borrower as a Delaware limited partnership. The common shares of beneficial
interest of the Company will at all times be listed for trading on either the
New York Stock Exchange or one of the other major stock exchanges. The Borrower
will do or cause to be done all things necessary to preserve and keep in full
force all of its rights and franchises which in the judgment of the Borrower may
be necessary to properly and advantageously conduct the businesses being
conducted by it, the Company, any of the Guarantors or any of the Related
Companies. The Borrower (a) will cause all of the properties used or useful in
the conduct of the business of Borrower, the Company, any of the Guarantors or
any of the Related Companies to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment, (b) will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times, and (c) will continue to engage primarily
in the businesses now conducted by it and in related businesses.
Section 7.7. Insurance. With respect to the Real Estate Assets and
other properties and businesses of Borrower, the Guarantors and the Related
Companies, the Borrower will maintain or cause to be maintained insurance with
financially sound and reputable insurers against such casualties and
contingencies as shall be in accordance with the general practices of businesses
engaged in similar activities in similar geographic areas and in amounts,
containing such terms, in such forms and for such periods as may be reasonable
and prudent. Commercial general liability insurance shall include an excess
liability policy with limits of at least $50,000,000.
Section 7.8. Taxes. The Borrower will pay or will cause to be paid real
estate taxes, other taxes, assessments and other governmental charges against
the Real Estate Assets and the Structured Finance Collateral Assets (but shall
have no obligation by reason of this Section 7.8 to pay any taxes on real
property other than properties owned by the Borrower or any Related
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Company) before the same become delinquent, and will duly pay and discharge, or
cause to be paid and discharged, before the same shall become overdue, all
taxes, assessments and other governmental charges imposed upon it and its other
properties, sales and activities, or any part thereof, or upon the income or
profits therefrom, as well as all claims for labor, materials, or supplies that
if unpaid might by law become a lien or charge upon any of its properties;
provided that any such tax, assessment, charge, levy or claim need not be paid
if the validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if the Borrower shall have set aside on its books
adequate reserves with respect thereto; and provided further that the Borrower
will pay all such taxes, assessments, charges, levies or claims forthwith upon
the commencement of proceedings to foreclose any lien that may have attached as
security therefor.
Section 7.9. Inspection of Properties and Books. The Borrower shall
permit the Lenders, through the Agent or any of the Lenders' other designated
representatives, to examine and review any of the documentation related to any
of the Structured Finance Collateral Assets, to examine the books of account of
the Borrower, the Company, the other Guarantors and the Related Companies (and
to make copies thereof and extracts therefrom) and to discuss the affairs,
finances and accounts of the Borrower with, and to be advised as to the same by,
its officers, all at such reasonable times and intervals as the Agent or any
Lender may reasonably request.
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits.
The Borrower and the Company will comply, and will cause each Guarantor and all
Related Companies to comply, with (a) all applicable laws and regulations now or
hereafter in effect wherever its business is conducted, including all
Environmental Laws, (b) the provisions of all applicable partnership agreements,
charter documents and by-laws, (c) all agreements and instruments to which it is
a party or by which it or any of its Real Estate Assets may be bound including
Ground Leases, and (d) all applicable decrees, orders, and judgments except
(with respect to (a) through (d) above) to the extent such non-compliance would
not have a Material Adverse Effect. If at any time any permit or authorization
from any governmental Person shall become necessary or required in order that
the Borrower or any Guarantor may fulfill or be in compliance with any of its
obligations hereunder or under any of the Loan Documents or under any of the
Collateral Documents, the Borrower will immediately take or cause to be taken
all reasonable steps within the power of the Borrower to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Lenders with evidence thereof.
Section 7.11. Use of Proceeds. Subject to the provisions of Section 2.5
hereof, the proceeds of the Loans may be used by the Borrower to pay the
Prudential Facility, the costs and expenses of closing this Facility and for
making Structured Finance Investments, provided, however, that no portion of any
Loan may be used for the purpose of purchasing or carrying any "margin security"
or "margin stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 7.12. Payment of Prudential Loan Facility. Borrower agrees to
use the initial advance of Loans on the Effective Date to pay in full all loans
and other obligations outstanding under its revolving credit facility (the
"Prudential Facility") pursuant to that certain Amended and Restated Credit
Agreement dated as of November 30, 2000 among Borrower, and Prudential
Securities Credit Corp., LLC, as lender, as the same may have been amended from
time to time.
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Section 7.13. Notices of Significant Transactions. The Borrower will
notify the Agent in writing prior to the closing of any of the following
transactions pursuant to a single transaction or a series of related
transactions:
(a) The sale or transfer of one or more Real Estate Assets
for an aggregate sales price or other consideration of $25,000,000 or more.
(b) The sale or transfer of the ownership interest of
Borrower or any of the Related Companies in any of the Related Companies or the
Unconsolidated Entities if the aggregate consideration received by the Borrower
or the Related Companies in connection with such transaction exceeds
$15,000,000.
Each notice given pursuant to this Section 7.13 shall be accompanied by a
Compliance Certificate including an updated list of Structured Finance
Collateral Assets and demonstrating in reasonable detail compliance, after
giving effect to the proposed transaction, with the covenants contained in
Section 9.1 through Section 9.5.
Section 7.14. Further Assurance. The Borrower and the Guarantors will
cooperate with the Agent and the Lenders and execute such further instruments
and documents and perform such further acts as the Agent and the Lenders shall
reasonably request to carry out the transactions contemplated by this Agreement
and the other Loan Documents.
Section 7.15. Environmental Indemnification. The Borrower and the
Guarantors jointly and severally covenant and agree that they will indemnify and
hold the Agent and each Lender harmless from and against any and all claims,
expense, damage, loss or liability incurred by the Agent or any Lender
(including all reasonable costs of legal representation incurred by the Agent or
any Lender, but excluding, as applicable, for the Agent or a Lender any claim,
expense, damage, loss or liability as a result of the gross negligence or
willful misconduct of the Agent or such Lender) relating to (a) any Release or
threatened Release of Hazardous Materials on any property subject to any
Structured Finance Collateral Asset or any Real Estate; (b) any violation of any
Environmental Laws with respect to conditions at any property subject to any
Structured Finance Collateral Asset or any Real Estate or the operations
conducted thereon; or (c) the investigation or remediation of off-site locations
at which the Borrower or its predecessors are alleged to have directly or
indirectly disposed of Hazardous Materials. It is expressly acknowledged by the
Borrower and the Guarantors that this covenant of indemnification shall survive
the payment of the Loans and shall inure to the benefit of the Agent and the
Lenders, and their successors and assigns.
Section 7.16. Response Actions. The Borrower and the Guarantors jointly
and severally covenant and agree that if any Release or disposal of Hazardous
Materials shall occur or shall have occurred on any Real Estate if the same
would have a Material Adverse Effect, the Borrower will cause the prompt
containment and removal of such Hazardous Materials and remediation of such Real
Estate as necessary to comply with all Environmental Laws or to preserve the
value of such Real Estate to the extent necessary to avoid a Material Adverse
Effect.
Section 7.17. Employee Benefit Plans.
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(a) Representation. The Borrower and its ERISA Affiliates
do not currently maintain or contribute to any Employee Benefit Plan, Guaranteed
Pension Plan or Multiemployer Plan, except as set forth on Schedule 6.16.
(b) Notice. The Borrower will obtain the consent of the
Agent prior to the establishment of any Employee Benefit Plan or Guaranteed
Pension Plan not listed on Schedule 6.16 by the Borrower or any ERISA Affiliate.
(c) In General. Each Employee Benefit Plan maintained by
the Borrower or any ERISA Affiliate will be operated in compliance in all
material respects with the provisions of ERISA and, to the extent applicable,
the Code, including but not limited to the provisions thereunder respecting
prohibited transactions.
(d) Terminability of Welfare Plans. With respect to each
Employee Benefit Plan maintained by the Borrower or an ERISA Affiliate which is
an employee welfare benefit plan within the meaning of Section 3(1) or Section
3(2)(B) of ERISA, each such plan provides that the Borrower, or the ERISA
Affiliate, as the case may be, has the right to terminate each such plan at any
time (or at any time subsequent to the expiration of any applicable bargaining
agreement) without liability other than liability to pay claims incurred prior
to the date of termination.
(e) Multiemployer Plans. Without the consent of the Agent,
the Borrower will not enter into, maintain or contribute to, any Multiemployer
Plan other that a Multiemployer Plan listed on Schedule 6.16.
(f) Unfunded or Underfunded Liabilities. The Borrower will
not, at any time, have accruing unfunded or underfunded liabilities with respect
to any Employee Benefit Plan, Guaranteed Pension Plan or Multiemployer Plan
which, in the aggregate, would exceed $5,000,000, and will take all reasonable
steps to prevent the occurrence of any condition with respect to any
Multiemployer Plan that would create a withdrawal liability in excess of
$5,000,000.
Section 7.18. Required Interest Rate Contracts. During all periods in
which the LIBOR Rate (as determined in accordance with the terms of this
Agreement) for Interest Periods of one month exceeds seven per cent (7.0%), the
Borrower shall maintain in effect Interest Rate Contracts with counterparties
and in form reasonably satisfactory to the Agent covering that portion of
Borrower's Variable Rate Indebtedness equal to the amount by which Borrower's
Variable Rate Indebtedness (other than any such Variable Rate Indebtedness
hedged by Interest Rate Contracts with a term expiring no earlier than the
earlier of the Maturity Date or the maturity of the Indebtedness so hedged)
exceeds 30% of Total Debt.
Section 7.19. Forward Equity Contracts. If Borrower shall enter into any
forward equity contracts, Borrower shall only settle same by the delivery of
stock.
Section 7.20. Title/Status of Structured Finance Assets.
(a) Borrower and the Guarantors shall own and hold good
title to their respective interest in each Structured Finance Collateral Asset
free and clear of any Liens other than the Liens of the Loan Documents.
Borrower, the Guarantors, and their Subsidiaries shall
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not waive, modify, alter, satisfy, cancel or subordinate any Structured Finance
Collateral Asset in any respect if the effect of such waiver, modification,
alteration, satisfaction, cancellation or subordination is to cause a default
under any covenant of this Agreement or any of the other Loan Documents.
(b) Each Structured Finance Collateral Asset shall be the
legal, valid and binding obligation of each party obligated thereunder,
enforceable against such party in accordance with its terms, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting creditors' rights
generally. Each Mortgage which is a Structured Finance Collateral Asset shall
create a valid Lien in the property which is the subject of the Mortgage Note.
Each Structured Finance Collateral Asset shall be made in compliance with all
applicable laws and shall not violate any usury or similar law regulating the
applicable maximum permitted rates of interest of loans, extensions of credit or
forbearances. Each Structured Finance Collateral Asset shall be free from
adverse claims, setoffs, default, defenses, retainages, holdbacks and conditions
precedent of any kind or character. In anticipation of a joint venture between
the Borrower and The Prudential Insurance Company of America or an affiliate
thereof with respect to the Structured Finance Collateral Asset known as Starret
Lehigh and as more particularly described on Schedule 1.1 hereto, each of the
Lenders acknowledges the Borrower's intention to restructure the ownership of
Green Funding W26 LLC by assignment, amendment or otherwise, provided, however,
that (i) each of the Lenders expressly reserves the right, in all cases, to
review and approve any such restructuring, and (ii) the Borrower hereby agrees
to provide such documentation as the Lenders may reasonably request in
connection with their due diligence review of such restructuring.
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
covenants and agrees as follows, so long as any Loan or Note is outstanding or
the Lenders have any obligation to make any Loans:
Section 8.1 Intentionally Omitted.
Section 8.2. Restrictions on Investments. The Borrower will not, and
will not permit Guarantor or any of the Related Companies to make or permit to
exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the
United States of America, Federal Home Loan Mortgage Corporation, Federal
National Mortgage Association or any agency or instrumentality of the United
States of America provided such obligations are backed by the full faith and
credit of the United States of America, that mature within one (1) year from the
date of purchase by the Borrower;
(b) demand deposits, certificates of deposit, money market
accounts, bankers acceptances eurodollar time deposits and time deposits of
United States banks having total assets in excess of $1,000,000,000 or
repurchase obligations with a term of not more than 7 days with such banks for
underlying securities of the type described in clause (a) of this Section 8.2;
(c) securities commonly known as "commercial paper" issued
by a corporation organized and existing under the laws of the United States of
America or any state thereof that at
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the time of purchase have been rated and the ratings for which are not less than
" P 1 " if rated by Xxxxx'x Investors Services, Inc., and not less than "A 1"
if rated by Standard and Poor's and participations in short term commercial
loans made to such corporations by a commercial bank which provides cash
management services to the Borrower;
(d) Investments existing or contemplated on the date
hereof and listed on Schedule 8.2(d) hereto;
(e) Investments made in the ordinary course of the
Borrower's business in Interest Rate Contracts;
(f) Intentionally Omitted;
(g) direct Investments in class B (or better) office
properties (including the development of same) located in the city of New York,
New York, any of Westchester, Rockland, Nassau, or Suffolk Counties in the state
of New York, Fairfield County in the state of Connecticut, or any of Xxxxxx
County, Monmouth County or any county north thereof in the state of New Jersey,
including fee simple and leasehold interests, in Real Estate Effective Control
Assets, and in consolidated joint ventures in which the Borrower or its
wholly-owned Subsidiary owns at least a 75% beneficial interest and has the
right to control policy and management of the subject joint venture; and
(h) Investments in the following categories so long as the
aggregate amount, without duplication, of all Investments described in this
paragraph (h) does not exceed, at any time, twenty-five percent (25%) of Total
Assets and the aggregate amount of each of the following categories of
Investments does not exceed the specified percentage of Total Assets set forth
in the following table:
Category of Investment Maximum Percentage of Total Assets
---------------------------------------------------------------------------------------------------------
Permitted Developments (calculated at total project cost) 10%
Unconsolidated Entities primarily engaged in the business 20%
of development or ownership of class B (or better) office
real estate located in the greater New York City area
(calculated at book value of such Investment)
Investment in properties (including the development of 2%
same) acquired in accordance with the provisions of
Section 1031 of the Code (single tenant, triple net
leased to tenant rated "A" or better by Standard & Poor's
Ratings Group or Xxxxx'x Investors Services, Inc.,
minimum remaining lease term of 15 years)
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Structured Finance Investments 15%
Other Investments in Real Estate Assets (including land) 10%
and in entities primarily engaged in the business of
owning such assets
Other Investments not otherwise specifically identified 10%
in this Section 8.2
Section 8.3. Merger, Consolidation and Other Fundamental Changes. The
Borrower will not, and will not permit the Company to, consolidate with or merge
into any other Person or Persons, or sell, convey, assign, transfer, lease or
otherwise dispose of all or substantially all of their respective business,
property or fixed assets taken as a whole to any other Person, provided,
however, that this Section 8.3 shall not be applicable to any merger or
consolidation with respect to which all of the following are satisfied: (1) the
surviving entity is Borrower, the Company or any Guarantor Subsidiary and there
is no substantial change in senior management of the Company, (2) the other
entity or entities involved in such merger or consolidation are engaged in the
same line of business as Borrower, and (3) following such transaction, the
Borrower and the Company will not be in breach of any of the covenants,
representations or warranties of this Agreement. Except as set forth on Schedule
6.19, the Company will not own or acquire any material assets other than its
partnership interests in the Borrower.
Section 8.4. Sale of Collateral. Neither the Borrower nor any Guarantor
may sell, transfer or otherwise dispose of any Collateral unless all conditions
precedent for the release of the Liens of the Secured Parties in such Collateral
set forth in Section 14.14(b) have occurred.
Section 8.5. Compliance with Environmental Laws. The Borrower will not
do, and will not permit the Company, any Guarantor or any of the other Related
Companies to do, any of the following: (a) use any of the Real Estate or any
portion thereof as a facility for the handling, processing, storage or disposal
of Hazardous Materials except for immaterial amounts of Hazardous Materials used
in the routine maintenance and operation of the Real Estate and in compliance
with applicable law, (b) cause or permit to be located on any of the Real Estate
any underground tank or other underground storage receptacle for Hazardous
Materials except in material compliance with Environmental Laws, (c) generate
any Hazardous Materials on any of the Real Estate except in material compliance
with Environmental Laws, or (d) conduct any activity at any Real Estate or use
any Real Estate in any manner so as to cause a Release.
Section 8.6. Distributions. Borrower shall not permit the total
Distributions by it and the Company during any fiscal year to exceed 90% of
Funds from Operations for such year, except that such limitation on
Distributions may be exceeded to the extent necessary for the Company to
maintain its REIT status. During any period when any Default or Event of Default
has occurred and is continuing the total Distributions by the Borrower and the
Company will not exceed the minimum amount necessary for the Company to maintain
its REIT status. The Guarantor Subsidiaries will not make any Distributions
except Distributions to Borrower or to the Company or to any Guarantor.
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Section 8.7. Preferred Distributions. During any period when any Event
of Default has occurred and is continuing no Preferred Distributions will be
made.
Section 8.8. Preferred Redemptions. No payments of cash or cash
equivalents by Borrower or the Company as consideration for the mandatory
redemption or retirement of any preferred shares of beneficial interest in the
Company, or any preferred units of limited partnership interest in Borrower,
shall be made out of the proceeds of Indebtedness of the Borrower or any
Guarantor.
Section 9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower and the
Company covenant and agree as follows, so long as any Loan or Note is
outstanding or any Lender has any obligation to make any Loan:
Section 9.1. Adjusted Unsecured Debt Coverage. The Borrower will not at
any time permit Adjusted Unsecured Debt to exceed 65% of Adjusted Unencumbered
Asset Value.
Section 9.2. Minimum Debt Service Coverage. The Borrower will not at
any time permit the ratio of Adjusted EBITDA for the Borrower, the Company and
the Related Companies (on a consolidated basis in accordance with GAAP), to
Interest Expense for the Borrower, the Company and the Related Companies (on a
consolidated basis in accordance with GAAP), to be less than 2.0 to 1.0 for any
fiscal quarter of Borrower.
Section 9.3. Total Debt to Total Assets. The Borrower and the Company
will not at any time permit Total Debt to exceed fifty-five percent (55%) of
Total Assets.
Section 9.4. Minimum Tangible Net Worth. The Borrower and the Company
will not at any time permit the Tangible Net Worth of the Borrower and the
Company to be less than an amount equal to the sum of (i) $612,000,000 plus (ii)
75% of the amount of Net Offering Proceeds.
Section 9.5. Adjusted EBITDA to Fixed Charges. The Borrower and the
Company will not at any time permit the ratio of its Adjusted EBITDA for the
Borrower, the Company and the Related Companies (on a consolidated basis in
accordance with GAAP) to Fixed Charges of the Borrower, the Company and the
Related Companies (on a consolidated basis in accordance with GAAP) to be less
than 1.75 to 1.0 for any fiscal quarter.
Section 9.6. Aggregate Occupancy Rate. The Borrower will not at any
time permit the Aggregate Occupancy Rate to be less than eighty-five percent
(85%).
Section 9.7. Value of All Unencumbered Assets. (i) The Borrower will
not at any time permit the outstanding balance of Unsecured Indebtedness to be
greater than fifty five percent (55%) of the Value of All Unencumbered Assets.
(ii) The Borrower will not at any time permit the Value of All Unencumbered
Assets to be less than or equal to $150,000,000.
Section 9.8. Amendments and Modifications to Section 9. (i)
Notwithstanding anything in this Agreement to the contrary, none of the
provisions of any of the foregoing Sections 9.1 through 9.7 of
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this Agreement, and no Default or Event of Default arising from a breach of any
of the provisions of any of the foregoing Sections 9.1 through 9.7 of this
Agreement, may be amended, modified or waived without the written consent of the
Requisite Lenders.
(ii) For purposes of the foregoing Sections 9.1 through 9.7 of this
Agreement, if any change in Generally Accepted Accounting Principles after the
Effective Date results in a material change in the calculation to be performed
in any such section solely as a result of such change in Generally Accepted
Accounting Principles, the Lenders and the Borrower shall negotiate in good
faith a modification of any such covenants so that the economic effect of the
calculation of such covenant(s) using Generally Accepted Accounting Principles
as so changed is as close as feasible to what the economic effect of the
calculation of such covenant(s) would have been using Generally Accepted
Accounting Principles as in effect as of the Effective Date.
Section 10. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective when each of the following conditions precedent have been satisfied:
Section 10.1. Loan Documents. Each of this Agreement and the Notes shall
have been duly executed and delivered by the respective parties thereto.
Section 10.2. Certified Copies of Organization Documents; Good Standing
Certificates. The Agent shall have received (i) a Certificate of the Company to
which there shall be attached complete copies of the Borrower's Limited
Partnership Agreement and its Certificate of Limited Partnership, certified as
of a recent date by the Secretary of State of Delaware, (ii) Certificates of
Good Standing for the Borrower from the State of New York, (iii) a copy of the
Company's articles of incorporation certified as of a recent date by the
Maryland Secretary of State, (iv) Certificates of Good Standing for the Company
from the State of Maryland and each State in which a Structured Finance
Collateral Asset is located, and (v) certificates of good standing and
certificates from the Borrower certifying as to true and complete copies of
articles of incorporation, limited liability company agreements, partnership
agreements or certificates of limited partnership, as the case may be, of each
of the other Guarantors.
Section 10.3. By-laws; Resolutions. All action on the part of the
Borrower and each Guarantor necessary for the valid execution, delivery and
performance by the Borrower and each Guarantor of this Agreement and the other
Loan Documents to which it is or is to become a party shall have been duly and
effectively taken, and evidence thereof satisfactory to the Agent shall have
been provided to the Agent. The Agent shall have received from the Company true
copies of its by-laws and the resolutions adopted by its Board of Directors
authorizing the transactions described herein, each certified by its secretary
to be true and complete and in effect on the Effective Date.
Section 10.4. Incumbency Certificate; Authorized Signers. The Agent
shall have received from the Company an incumbency certificate, dated as of the
Effective Date, signed by a duly authorized officer of the Company and giving
the name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign, in the name and on behalf of the Company (in its own
capacity and as general partner on behalf of Borrower and on behalf of each
Guarantor which is a partnership), each of the Loan Documents to which the
Borrower or any Guarantor is
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or is to become a party; (b) to make Loan Requests and Conversion Requests; and
(c) to give notices and to take other action on behalf of the Borrower under the
Loan Documents.
Section 10.5. Title Insurance; Lien Searches. The Agent shall have
received, to the extent available to the Company, reasonably satisfactory
evidence of title insurance respecting each of the properties subject to the
Structured Finance Collateral Assets by way of copies of the most recent fully
effective title insurance policies (or marked and signed title insurance binders
to the extent such policies have not been issued or are not other otherwise
available).
Section 10.6. Opinions of Counsel Concerning Organization, Loan
Documents and Collateral. Each of the Lenders and the Agent shall have received
favorable opinions from Borrower's counsel addressed to the Lenders and the
Agent and dated as of the Effective Date, in form and substance satisfactory to
the Agent.
Section 10.7. Payment of Fees. The Borrower shall have paid to the Agent
the fees pursuant to Section 4.1 and shall have paid all other expenses as
provided in Section 15 hereof then outstanding.
Section 10.8. Pledge and Security Agreement and other Collateral
Documents. The Borrower and the Guarantors shall have executed and delivered the
Pledge and Security Agreement and any other Collateral Documents, duly executed
by the Borrower and each Guarantor, together with:
(i) evidence reasonably satisfactory to the Agent that the
Agent (for the benefit of the Secured Parties) has a valid and perfected
first priority security interest in the Collateral, including (x) such
documents duly executed by the Borrower and each Guarantor as the Agent may
reasonably request with respect to the perfection of its security interests
in the Collateral (including financing statements under the UCC, security
agreements and other applicable documents under the laws of any
jurisdiction with respect to the perfection of Liens created by the Pledge
and Security Agreement), (y) copies of UCC search reports as of a recent
date listing all effective financing statements that name the Borrower or
any Guarantor as debtor, together with copies of such financing statements,
none of which shall cover the Collateral except for those which shall be
terminated on the Effective Date, and (z) evidence of termination and
release of any existing Liens (including UCC-3 termination statements,
releases and pay-off letters in respect of the Prudential Facility);
(ii) all notes and other instruments representing
Collateral (in form and substance reasonably satisfactory to the Agent)
being pledged pursuant to the Pledge and Security Agreement duly endorsed
in favor of the Agent or in blank.
Section 11. CONDITIONS TO ALL CREDIT ADVANCES. The obligations of the
Lenders to make any Loan, whether on or after the Effective Date, shall also be
subject to the satisfaction of the following conditions precedent:
Section 11.1. Representations True; No Event of Default; Compliance
Certificate. Each of the representations and warranties of the Borrower and the
Company contained in this Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in
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connection with this Agreement shall be true as of the date as of which they
were made and shall also be true at and as of the time of the making of such
Loan, with the same effect as if made at and as of that time (except (i) to the
extent of changes resulting from transactions contemplated or permitted by this
Agreement and the other Loan Documents, (ii) to the extent of changes occurring
in the ordinary course of business that singly or in the aggregate are not
materially adverse, and (iii) to the extent that such representations and
warranties relate expressly to an earlier date); the Borrower shall have
performed and complied with all terms and conditions herein required to be
performed by it or prior to the Borrowing Date of such Loan; and no Default or
Event of Default shall have occurred and be continuing on the date of any Loan
Request or on the Borrowing Date of such Loan. Each of the Lenders shall have
received a Compliance Certificate of the Borrower signed by a Responsible
Officer to such effect, which certificate will include, without limitation,
computations evidencing compliance with the covenants contained in Section 9.1
through Section 9.5 hereof after giving effect to such requested Loan.
Section 11.2. No Legal Impediment. No change shall have occurred in any
law or regulations thereunder or interpretations thereof that in the reasonable
opinion of any Lender would make it illegal for such Lender to make such Loan.
Section 11.3. Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Agreement, the other Loan Documents
and all other documents incident thereto shall be reasonably satisfactory in
substance and in form to the Agent, and the Lenders shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Agent may reasonably request.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC
Section 12.1. Events of Default and Acceleration. If any of the
following events ("Events of Default" or, if the giving of notice or the lapse
of time or both is required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Loans when the same shall become due and payable;
(b) the Borrower shall fail to pay any interest on the
Loans or any other sums due hereunder or under any of the other Loan Documents
(other than principal) within five (5) days after the same shall become due and
payable;
(c) the Borrower or the Company shall fail to comply with
any of its covenants contained in Section 7.5, Section 7.7, Section 7.13,
Section 7.20, Section 8 or Section 9 hereof or the first or second sentences of
Section 7.6;
(d) the Borrower or any Guarantor shall fail to perform
any other term, covenant or agreement contained herein or in any of the other
Loan Documents (other than those specified elsewhere in this Section 12) for
thirty (30) days after written notice of such failure from Agent to the
Borrower;
(e) any representation or warranty of the Borrower in this
Agreement, any of the other Loan Documents or any other document or instrument
delivered pursuant to or in
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connection with this Agreement, shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) (i) any "Event of Default", as such term is defined in
the Existing Credit Facility, shall have occurred and be continuing under the
Existing Credit Facility, whether or not the maturity of any obligations issued
thereunder have been accelerated; or (ii) the Borrower, the Company, any
Guarantor, any of the Related Companies or any Unconsolidated Entity shall fail
to pay at maturity, or within any applicable period of grace, any Recourse
Indebtedness (other than the Existing Credit Facility), or shall fail to observe
or perform any material term, covenant or agreement contained in any agreement
by which it is bound, evidencing or securing Recourse Indebtedness (other than
the Existing Credit Facility) for such period of time as would permit (assuming
the giving of appropriate notice if required) the holder or holders thereof or
of any obligations issued thereunder to accelerate the maturity thereof, and in
any event, such failure shall continue for thirty (30) days, unless the
aggregate amount of all such defaulted Recourse Indebtedness is less than
$5,000,000.00;
(g) the Borrower, the Company, any Guarantor, any of the
Related Companies or any Unconsolidated Entity shall fail to pay at maturity, or
within any applicable period of grace, any Indebtedness other than Recourse
Indebtedness, or shall fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing Indebtedness other than Recourse Indebtedness for such period of time
as would permit (assuming the giving of appropriate notice if required) the
holder or holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof, and in any event, such failure shall continue for thirty
(30) days, unless the aggregate amount of all such defaulted Indebtedness other
than Recourse Indebtedness plus the amount of any unsatisfied judgments is less
than $15,000,000.00;
(h) (i) any of the Borrower, the Company or any Guarantor
shall make an assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or become
due, or shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of any substantial part of its properties or
shall commence any case or other proceeding under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, or
shall take any action to authorize or in furtherance of any of the foregoing, or
if any such petition or application shall be filed or any such case or other
proceeding shall be commenced against any such Person and such Person shall
indicate its approval thereof, consent thereto or acquiescence therein, or (ii)
any of the events described in clause (i) of this paragraph shall occur with
respect to any other Related Company or any Unconsolidated Entity and such event
shall have a Material Adverse Effect;
(i) (i) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the Borrower, the
Company, or any Guarantor bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered in
respect of the Borrower, the Company, or any Guarantor in an involuntary case
under federal bankruptcy laws as now or hereafter constituted or (ii) any of the
events described in clause (i) of this paragraph shall occur with respect to any
other Related Company or any Unconsolidated Entity and such event shall have a
Material Adverse Effect;
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(j) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty days, whether or not consecutive, any
uninsured final judgment against the Borrower that, with other outstanding
uninsured final judgments, undischarged, against the Borrower, the Company or
any of the Related Companies, exceeds in the aggregate $5,000,000.00;
(k) if any of the Loan Documents or any material provision
of any Loan Documents shall be unenforceable, cancelled, terminated, revoked or
rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Agent, or any action
at law, suit or in equity or other legal proceeding to make unenforceable,
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or any Guarantor, or any court or any other governmental
or regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
in accordance with the terms thereof;
(l) one or more ERISA Events occurs which individually or
in the aggregate results in or might reasonably be expected to result in
liability of the Borrower or any of its ERISA Affiliates in excess of $5,000,000
at any one time during the term of this Agreement; or if, at any one time, there
exists an amount of unfunded pension liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Guaranteed
Pension Plans (excluding for purposes of such computation any Guaranteed Pension
Plans with respect to which assets exceed benefit liabilities), which exceeds
$5,000,000;
(m) the Borrower or any Guarantor shall be indicted for a
federal crime, a punishment for which could include the forfeiture of any assets
of the Borrower;
(n) the Borrower shall fail to pay, observe or perform any
term, covenant, condition or agreement contained in any agreement, document or
instrument evidencing, securing or otherwise relating to any Indebtedness of the
Borrower to any Lender (other than the Obligations) within any applicable period
of grace provided for in such agreement, document or instrument;
(o) any Material Adverse Effect shall occur;
(p) any "Event of Default", as defined in any of the other
Loan Documents shall occur; or
(q) any Collateral Document shall for any reason cease to
create a valid Lien on any of the Collateral purported to be covered thereby or,
except as permitted by the Loan Documents, such Lien shall cease to be a
perfected and first priority Lien or the Borrower or any Guarantor shall so
state in writing;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Requisite Lenders shall, by notice in writing
to the Borrower declare all amounts owing with respect to this Agreement, the
Notes and the other Loan Documents to be, and they shall thereupon forthwith
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
Borrower; provided that in the event of any Event of Default specified in
Sections 12.1(h) or 12.1(i), all such
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amounts shall become immediately due and payable automatically and without any
requirement of notice from the Agent or action by the Requisite Lenders.
Section 12.2. Termination of Commitments. If any one or more Events of
Default specified in Section 12.1(h) or Section 12.1(i) shall occur, any unused
portion of the Commitments hereunder shall forthwith terminate and the Lenders
shall be relieved of all obligations to make Loans to the Borrower. If any other
Event of Default shall have occurred and be continuing, the Agent, at the
direction of the Majority Lenders, may by notice to the Borrower terminate the
unused portion of the Commitments hereunder and upon such notice being given
such unused portion of the Commitments hereunder shall terminate immediately and
the Lenders shall be relieved of all further obligations to make Loans. No
termination of the Commitments hereunder shall relieve the Borrower of any of
the Obligations or any of its existing obligations to any Lender arising under
other agreements or instruments.
Section 12.3. Remedies. In case any one or more of the Events of Default
shall have occurred, and whether or not the Requisite Lenders shall have
accelerated the maturity of the Loans pursuant to Section 12.1, each Lender, if
owed any amount with respect to the Loans, may, with the consent of the
Requisite Lenders, direct the Agent to proceed to protect and enforce the rights
and remedies of the Agent and the Lenders under this Agreement, the Notes, the
Collateral Documents or any of the other Loan Documents by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement, the
Collateral Documents, the other Loan Documents or any instrument pursuant to
which the Obligations are evidenced and, if any amount shall have become due, by
declaration or otherwise, to proceed to enforce the payment thereof or any other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Agent or the holder of any Note is intended to be exclusive of any
other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or any other provision of law.
Section 12.4. Distribution of Enforcement Proceeds. In the event that,
following the occurrence or during the continuance of any Default or Event of
Default, the Agent or any Lender as the case may be, receives any monies in
connection with the enforcement of any of the Loan Documents, such monies shall
be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent in connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the rights,
remedies, powers and privileges of the Agent or the Lenders under this Agreement
or any of the other Loan Documents or in support of any provision of adequate
indemnity to the Agent against any taxes or liens which by law shall have, or
may have, priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Requisite Lenders may determine; provided, however, that
distribution in respect of such Obligations shall be made among the Lenders pro
rata in accordance with each Lender's respective Commitment Percentage;
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(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Requisite Lenders and the
Agent of all of the Obligations, to the payment of any obligations required to
be paid pursuant to Section 9-504(1)(c) of the Uniform Commercial Code of the
State of New York; and
(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are legally entitled thereto.
Section 13. SETOFF. During the continuance of any Event of Default,
any deposits (general or specific, time or demand, provisional or final,
regardless of currency, maturity, or the branch of where such deposits are held)
or other sums credited by or due from any of the Lenders to the Borrower, the
Company or any of the other Guarantors and any securities or other property of
the Borrower, the Company or any of the other Guarantors in the possession of
such Lender may be applied to or set off against the payment of Obligations and
any and all other liabilities, direct, or indirect, absolute or contingent, due
or to become due, now existing or hereafter arising, of the Borrower to such
Lender. Each of the Lenders agrees with each other Lender that (a) if an amount
to be set off is to be applied to Indebtedness of the Borrower, the Company or
any of the other Guarantors to such Lender, other than Indebtedness evidenced by
the Notes held by such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness evidenced by all such Notes held by
such Lender, and (b) if such Lender shall receive from the Borrower, the Company
or any of the other Guarantors, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Notes held by such Lender by proceedings against the Borrower, the
Company or any of the other Guarantors at law or in equity or by proof thereof
in bankruptcy, reorganization, liquidation, receivership or similar proceedings,
or otherwise, and shall retain and apply to the payment of the Note or Notes
held by such Lender any amount in excess of its ratable portion of the payments
received by all of the Lenders with respect to the Notes held by all of the
Lenders, such Lender will make such disposition and arrangements with the other
Lenders with respect to such excess, either by way of distribution, pro tanto
assignment of claims, subrogation or otherwise as shall result in each Lender
receiving in respect of the Notes held by it its proportionate payment as
contemplated by this Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Lender, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
Section 14. THE AGENT
Section 14.1. Authorization. The Agent is authorized to take such action
on behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related documents
delegated to the Agent, together with such powers as are reasonably incident
thereto, provided that no duties or responsibilities not expressly assumed
herein or therein shall be implied to have been assumed by the Agent. The
relationship between the Agent and the Lenders is and shall be that of agent and
principal only, and nothing contained in this Agreement or any of the other Loan
Documents shall be construed to constitute the Agent as a trustee for any
Lender.
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Section 14.2. Employees and Agents. The Agent may exercise its powers
and execute its duties by or through employees or agents and shall be entitled
to take, and to rely on, advice of counsel concerning all matters pertaining to
its rights and duties under this Agreement and the other Loan Documents. The
Agent may utilize the services of such Persons as the Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of
such Persons shall be paid by the Borrower.
Section 14.3. No Liability to Lenders. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable to any
Lender for any waiver, consent or approval given or any action taken, or omitted
to be taken, in good faith by it or them hereunder or under any of the other
Loan Documents, or in connection herewith or therewith, or be responsible for
the consequences of any oversight or error of judgment whatsoever, except that
the Agent or such other Person, as the case may be, shall be liable for losses
due to its willful misconduct or gross negligence.
Section 14.4. No Representations. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any of
the other Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or in
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes. The Agent shall not be bound to ascertain whether any
notice, consent, waiver or request delivered to it by the Borrower or any
Guarantor or any holder of any of the Notes shall have been duly authorized or
is true, accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Lenders, with respect to the credit worthiness or financial
condition of the Borrower, the Company or any of the other Guarantors. Each
Lender acknowledges that it has, independently and without reliance upon the
Agent or any other Lender, and based upon such information and documents as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender has been independently represented by separate
counsel on all matters regarding this Agreement.
Section 14.5. Payments.
(a) A payment by the Borrower to the Agent hereunder or any of the other
Loan Documents for the account of any Lender shall constitute a payment to such
Lender subject to the pro rata rights to repayment based upon the Commitment
Percentage of each Lender. Neither the Borrower nor any Guarantor shall have any
obligation to see to the proper application by Agent of any amounts paid by any
of them to the Agent for the account of the Lenders. The Agent agrees promptly
to distribute to each Lender such Lender's pro rata share of payments received
by the Agent for the account of the Lenders except as otherwise expressly
provided herein or in any of the other Loan Documents.
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(b) If in the opinion of the Agent the distribution of any amount received
by it in such capacity hereunder, under the Notes or under any of the other Loan
Documents might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction shall adjudge that
any amount received and distributed by the Agent is to be repaid, each Person to
whom any such distribution shall have been made shall either repay to the Agent
its proportionate share of the amount so adjudged to be repaid or shall pay over
the same in such manner and to such Persons as shall be determined by such
court.
(c) Notwithstanding anything to the contrary contained in this Agreement
or any of the other Loan Documents, any Lender that fails (i) to make available
to the Agent its pro rata share of any Loan or (ii) to comply with the
provisions of Section 13 with respect to making dispositions and arrangements
with the other Lenders, where such Lender's share of any payment received,
whether by setoff or otherwise, is in excess of its pro rata share of such
payments due and payable to all of the Lenders, in each case as, when and to the
full extent required by the provisions of this Agreement, or to adjust promptly
such Lender's outstanding principal and its pro rata Commitment Percentage as
provided in Section 2.1 hereof, shall be deemed delinquent (a "Delinquent
Lender") and shall be deemed a Delinquent Lender until such time as such
delinquency is satisfied. A Delinquent Lender shall be deemed to have assigned
any and all payments due to it from the Borrower under the Loan Documents,
whether on account of outstanding Loans, interest, fees or otherwise, to the
remaining nondelinquent Lenders for application to, and reduction of, their
respective pro rata shares of all outstanding Loans. The Delinquent Lender
hereby authorizes the Agent to distribute such payments to the nondelinquent
Lenders in proportion to their respective pro rata shares of all outstanding
Loans. A Delinquent Lender shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned payments to
all outstanding Loans of the nondelinquent Lenders, the Lenders' respective pro
rata shares of all outstanding Loans have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
(d) If any amount which the Agent is required to distribute to the Lenders
pursuant to this Section 14.5 is actually distributed to any Lender on a date
which is later than the first Business Day following the Agent's receipt of the
corresponding payment from the Borrower, the Agent shall pay to such Lender on
demand an amount equal to the product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted average interest rate paid by
the Agent for federal funds acquired by the Agent during each day included in
such period, times (ii) the amount of such late distribution to such Lender,
times (iii) a fraction, the numerator of which is the number of days or portion
thereof that elapsed from and including the second Business Day after the
Agent's receipt of such corresponding payment from the Borrower to the date on
which the amount so required to be distributed to such Lender actually is
distributed, and the denominator of which is 365.
Section 14.6. Holders of Notes. The Agent may deem and treat the payee
of any Note as the absolute owner or purchaser thereof for all purposes hereof
until it shall have been furnished in writing with a different name by such
payee or by a subsequent holder assignee or transferee.
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Section 14.7. Indemnity. The Lenders ratably agree hereby to indemnify
and hold harmless the Agent from and against any and all claims, actions and
suits (whether groundless or otherwise), losses, damages, costs, expenses
(including any expenses for which the Agent has not been reimbursed by the
Borrower and the Guarantors as required by Section 15), and liabilities of every
nature and character arising out of or related to this Agreement, the Notes, or
any of the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Agent's actions taken hereunder or thereunder, except
to the extent that any of the same shall be directly caused by the Agent's
willful misconduct or gross negligence.
Section 14.8. Agent as Lender. In its individual capacity, Fleet
National Bank shall have the same obligations and the same rights, powers and
privileges in respect to its Commitment and the Loans made by it, and as the
holder of any of the Notes as it would have were it not also the Agent.
Section 14.9. Resignation. The Agent may resign at any time by giving
sixty (60) days, prior written notice thereof to the Lenders and the Borrower;
provided, however, that unless an Event of Default has occurred and is
continuing, Fleet National Bank may not voluntarily resign as Agent under the
provisions of this Agreement without the Borrower's consent. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, appointment of such successor Agent shall be subject to the
reasonable approval of the Borrower. If no successor Agent shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within thirty (30) days after the giving of notice of resignation or removal or
if the Borrower (to the extent it has approval rights with respect to the
successor Agent) has disapproved or failed to approve a successor agent within
such period, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a financial institution having a rating of not
less than A2/P2 or its equivalent by Standard & Poor's Corporation. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations as Agent hereunder.
After any retiring Agent's resignation, the provisions of this Agreement and the
other Loan Documents shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
Section 14.10. Notification of Defaults and Events of Default and other
Notices. Each Lender hereby agrees that, upon learning of the existence of a
Default or an Event of Default, it shall promptly notify the Agent thereof. The
Agent hereby agrees that upon receipt of any notice under this Section 14.10, or
upon it otherwise learning of the existence of a Default or an Event of Default,
it shall promptly notify the other Lenders of the existence of such Default or
Event of Default. The Agent shall also promptly provide each Lender with a copy
of any notices which the Agent receives from the Borrower pursuant to Section
7.5 or Section 7.13.
Section 14.11. Duties in the Case of Enforcement. In case one of more
Events of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent may, with the
consent of the Requisite Lenders (which consents may be obtained orally in
emergency situations), and the Agent shall, if (a) so requested by the Requisite
Lenders and (b) the Lenders have provided to the Agent such additional
indemnities
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and assurances against expenses and liabilities as the Agent may reasonably
request, proceed to enforce the provisions of the Loan Documents and exercise
all or any such other legal and equitable and other rights or remedies as it may
have. The Requisite Lenders may direct the Agent in writing as to the method and
the extent of any such enforcement actions, the Lenders hereby agreeing to
indemnify and hold the Agent harmless from all liabilities incurred in respect
of all actions taken or omitted in accordance with such directions, provided
that the Agent need not comply with any such direction to the extent that the
Agent reasonably believes the Agent's compliance with such direction to be
unlawful or commercially unreasonable in any applicable jurisdiction.
Section 14.12. Mandatory Resignation of Agent. The Agent shall be
obligated to resign in accordance with, and subject to, the provisions of
Section 14.9, without the consent of the Borrower, upon the written request of
Lenders whose aggregate Commitments constitute at least sixty-six percent (66%)
of the Total Commitment excluding the Commitment of the Lender which is then the
Agent hereunder, provided such request is made for cause (provided, however,
than in the case of a request for resignation of Fleet National Bank, as Agent,
such cause must constitute gross negligence or willful misconduct), and provided
further that the successor Agent actively administers credits of similar size
and complexity to this Agreement and the Loans.
Section 14.13. Matters as to Borrower. (a) Except as expressly set forth
in this Agreement, Borrower shall have no obligation to cause Agent or any of
the Lenders to perform their respective obligations under this Agreement.
(b) Notwithstanding that a matter in question requires the consent,
approval or direction of any or all of the Lenders, Borrower may rely
exclusively on the written notice of Agent (which shall include evidence that
such consent, approval or direction shall have been obtained in accordance with
the provisions of Section 26 hereof, if applicable) that such consent, approval,
or direction has been given or obtained to bind the Lenders.
Section 14.14. Concerning the Collateral and the Collateral Documents.
(a) Each Lender agrees that any action taken by the Agent or the Requisite
Lenders (or, where required by the express terms of this Agreement, a greater
proportion of the Lenders) in accordance with the provisions of this Agreement
or of the other Loan Documents, and the exercise by the Agent or the Requisite
Lenders (or, where so required, such greater proportion) of the powers set forth
herein or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all of the Lenders. Without
limiting the generality of the foregoing, the Agent shall have the sole and
exclusive right and authority to (i) act as the disbursing and collecting agent
for the Lenders with respect to all payments and collections arising in
connection with the Collateral Documents; (ii) execute and deliver each
Collateral Document and accept delivery of each such agreement delivered by the
Borrower, any Guarantor or any of their respective Subsidiaries; (iii) act as
collateral agent for the Lenders for purposes of the perfection of all security
interests and Liens created by such agreements and all other purposes stated in
the Collateral Documents; (iv) manage, supervise and otherwise deal with the
Collateral; (v) take such action as is necessary or desirable to maintain the
perfection and priority of the security interests and Liens created or purported
to be created by the Collateral Documents; and (vi) except as may be otherwise
specifically restricted by the terms hereof or of any other Loan Document,
exercise all remedies given to the Agent and the Lenders as secured
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parties with respect to the Collateral under the Collateral Documents relating
thereto, applicable law or otherwise.
(b) Provided that no Event of Default has occurred and is
continuing (but subject to the provisions of clause (ii) of this paragraph (b)),
each of the Lenders hereby directs, in accordance with the terms hereof, the
Agent to release any Lien held by the Agent for the benefit of the Lenders and
the Agent hereby agrees that it shall release any such Lien:
(i) against all of the Collateral, upon
termination of the Commitments and payment
and satisfaction in full of all Loans and all
other Obligations which have matured and
which the Agent has been notified in writing
are then due and payable;
(ii) against any Collateral sold or disposed of by
the Borrower or a Guarantor or paid off by
the underlying borrower or obligor, or no
longer necessary to satisfy the Maximum
Credit Amount limitation, which Collateral is
specified to the Agent by the Borrower upon
at least seven (7) days written notice,
provided that (x) for so long as no Event of
Default has occurred and is continuing, the
principal amount of the Obligations is
prepaid to the extent necessary to make the
principal amount of the Obligations no more
than equal to the Maximum Credit Amount after
giving effect to the release of the
Collateral (as certified to by the chief
financial officer of the Borrower), and (y)
during the occurrence and continuance of an
Event of Default, (i) the Obligations are
prepaid in an amount equal to 100% of the
proceeds received by the Borrower from the
sale or other disposition of such Collateral
and (ii) the consent of the Requisite Lenders
is obtained; and
(iii) against any part of the Collateral, if such
release is consented to by the Requisite
Lenders.
Each of the Lenders hereby directs the Agent (and the Agent hereby agrees) to
execute and deliver or file such termination and partial release statements and
do such other things as are necessary to release Liens to be released pursuant
to this Section 14.14 promptly upon the effectiveness of any such release.
Section 15. EXPENSES. The Borrower and each of the Guarantors jointly
and severally agree to pay (a) the reasonable costs of producing and reproducing
this Agreement, the other Loan Documents and the other agreements and
instruments mentioned herein, (b) any taxes (including any interest and
penalties in respect thereto) payable by the Agent or any of the Lenders (other
than taxes based upon the Agent's or any Lender's net income), including any
recording, mortgage, documentary or intangibles taxes in connection with the
Loan Documents, or other taxes payable on or with respect to the transactions
contemplated by this Agreement, including any taxes payable by the Agent or any
of the Lenders after the Effective Date (the Borrower hereby agreeing to
indemnify the Lenders with respect thereto), (c) all title examination costs,
recording costs and the reasonable fees, expenses and disbursements of the
Agent's counsel or
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any local counsel to the Agent incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, and amendments, modifications, approvals, consents or waivers
hereto or hereunder, (d) the fees, costs, expenses and disbursements of the
Agent incurred in connection with the preparation, administration or
interpretation of the Loan Documents and other instruments mentioned herein
including, without limitation, the costs incurred by the Agent in connection
with its inspection of the Structured Finance Collateral Assets and the
properties subject thereto, and the fees and disbursements of the Agent's
counsel and the Borrower's legal counsel in preparing documentation, (e) legal
fees and expenses incurred in connection with the Agent's (or any Lenders')
review and analysis of any documentation relating to any Structured Finance
Collateral Asset which the Borrower requests to become Collateral after the date
of this Agreement, (f) all reasonable out-of-pocket expenses (including
reasonable attorneys' fees and costs, which attorneys may be employees of any
Lender or the Agent and the fees and costs of appraisers, engineers, investment
bankers, surveyors or other experts retained by the Agent or any Lender in
connection with any such enforcement proceedings) incurred by any Lender or the
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrower or the Guarantors or the
administration thereof after the occurrence of a Default or Event of Default
(including, without limitation, expenses incurred in any restructuring and/or
"workout" of the Loans), and (ii) any litigation, proceeding or dispute whether
arising hereunder or otherwise, in any way related to the Agent's or the
Lender's relationship with the Borrower, the Company, any Unconsolidated Entity
or any of the Related Companies (but not including any dispute between the Agent
(or any Lender) and any other Lender), (g) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, and (h) all
costs incurred by the Agent in the future in connection with its reasonable
inspection of the Structured Finance Collateral Assets. The covenants of this
Section 15 shall survive payment or satisfaction of payment of amounts owing
with respect to the Notes.
Section 16. INDEMNIFICATION. The Borrower and each of the Guarantors
hereby jointly and severally agree to indemnify and hold harmless the Agent and
the Lenders and the shareholders, directors, agents, officers, subsidiaries, and
affiliates of the Agent and the Lenders from and against any and all claims,
actions or causes of action and suits whether groundless or otherwise, and from
and against any and all Liabilities, losses, settlement payments, obligations,
damages and expenses of every nature and character arising out of this Agreement
or any of the other Loan Documents or the transactions contemplated hereby or
which otherwise arise in connection with the financing including, without
limitation except to the extent directly caused by the gross negligence or
willful misconduct of a Lender or the Agent or any of the aforementioned
indemnified parties (but such limitation on indemnification shall only apply to
the Agent or Lender or any of the aforementioned indemnified parties being
grossly negligent or committing willful misconduct), (a) any actual or proposed
use by the Borrower of the proceeds of any of the Loans, (b) any actual or
alleged infringement of any patent, copyright, trademark, service xxxx or
similar right of the Borrower or any of the Guarantors, (c) the Borrower or any
of the Guarantors entering into or performing this Agreement or any of the other
Loan Documents, (d) with respect to the Borrower or any of the Guarantors and
their respective properties, the violation of any Environmental Law, the Release
or threatened Release of any Hazardous Materials or any action, suit, proceeding
or investigation brought or threatened with respect to any Hazardous Materials
(including, but not limited to claims with respect to wrongful
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death, personal injury or damage to property), (e) any cost, claim liability,
damage or expense in connection with any harm the Borrower or any of the
Guarantors may be found to have caused in the role of a broker, in each case
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding, or (f) any interest of the Lenders or the Agent arising out of or as
a result of the Collateral or the Collateral Documents, including, but not
limited to, interests owned or held as Secured Parties and interests owned or
held as a result of the exercise of remedies under the Loan Documents. In
litigation, or the preparation therefor, the Lenders and the Agent shall each be
entitled to select their own separate counsel and, in addition to the foregoing
indemnity, the Borrower and each of the Guarantors jointly and severally agree
to pay promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Borrower or any of the Guarantors under this
Section 16 are unenforceable for any reason, the Borrower and each of the
Guarantors jointly and severally agree to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The provisions of this Section 16 shall survive the repayment of
the Loans and the termination of the obligations of the Lenders hereunder and
shall continue in full force and effect as to the Lenders so long as the
possibility of any such claim, action, cause of action or suit exists.
Section 17. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower or any Guarantor pursuant hereto shall be deemed to have been
relied upon by the Lenders and the Agent, notwithstanding any investigation
heretofore or hereafter made by it, and shall survive the making by the Lenders
of the Loans, as herein contemplated, and shall continue in full force and
effect so long as any amount due under this Agreement or the Notes or any of the
other Loan Documents remains outstanding or the Lenders have any obligation to
make any Loans. The indemnification obligations of the Borrower and the
Guarantors provided herein and the other Loan Documents shall survive the full
repayment of amounts due and the termination of the obligations of the Lenders
hereunder and thereunder to the extent provided herein and therein. All
statements contained in any certificate or other paper delivered to the Agent or
any Lender at any time by or on behalf of the Borrower or any of the Guarantors
pursuant hereto or in connection with the transactions contemplated hereby
(other than third party reports, such as engineering reports and environmental
studies) shall constitute representations and warranties by the Borrower or any
of the Guarantors hereunder.
Section 18. GUARANTY.
Section 18.1. Guaranty. Subject to Section 18.7 below, each of the
Guarantors hereby, jointly and severally, unconditionally guarantees to each
Lender and the Agent the prompt payment of the Guaranteed Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by acceleration
or otherwise) (the "Guaranty"). The Guarantors additionally, jointly and
severally, unconditionally guarantee to each Lender and the Agent the timely
performance of all other obligations of the Borrower under the Loan Documents.
This Guaranty is a guaranty of payment and not of collection and is a continuing
guaranty and shall apply to Guaranteed Obligations whenever arising.
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Section 18.2. Obligations Unconditional. The obligations of the
Guarantors hereunder are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Guaranteed
Obligations or any of the Loan Documents, or any other agreement or instrument
referred to therein, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Guarantor agrees that this Guaranty may be enforced by the Agent, on behalf
of the Lenders, without necessity at any time of resorting to or exhausting any
other security or collateral and without the necessity at any time of having
recourse to the Notes, any other of the Loan Documents or the Collateral, and
each Guarantor hereby waives the right to require the Lenders to proceed against
the Borrower or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. Each Guarantor
further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor of the
Guaranteed Obligations for amounts paid under this Guaranty until such time as
the Lenders have been paid in full, all Commitments under this Agreement have
been terminated, and no Person or governmental authority shall have any right to
request any return or reimbursement of funds from the Lenders in connection with
monies received under the Loan Documents. Each Guarantor further agrees that
nothing contained herein shall prevent the Agent or the Lenders from suing on
the Notes or any of the other Loan Documents or foreclosing their security
interest in or Lien on the Collateral or from exercising any other rights
available to them under this Agreement, the Notes, any other of the Loan
Documents, or any other instrument of security, if any, and the exercise of any
of the aforesaid rights and the completion of any foreclosure proceedings shall
not constitute a discharge of any Guarantor's obligations hereunder; it being
the purpose and intent of each Guarantor that its obligations hereunder shall be
absolute, independent and unconditional under any and all circumstances. Neither
any Guarantor's obligations under this Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation
of the liability of the Borrower or by reason of the bankruptcy or insolvency of
the Borrower. Each Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Guaranteed Obligations and notice of or proof
of reliance of by, the Agent or any Lender upon this Guaranty or acceptance of
this Guaranty. The Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guaranty. All dealings between the
Borrowers and any of the Guarantors, on the one hand, and the Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Guaranty.
Section 18.3. Modifications. Each Guarantor agrees that (a) all or any
part of the security now or hereafter held for the Guaranteed Obligations, if
any, may be exchanged, compromised or surrendered from time to time; (b) the
Lenders shall not have any obligation to protect, perfect, secure or insure any
such security interests, Liens or encumbrances now or hereafter held, if any,
for the Guaranteed Obligations or the properties subject thereto; (c) the time
or place of payment of the Guaranteed Obligations may be changed or extended, in
whole or in part, to a time certain or otherwise, and may be renewed or
accelerated, in whole or in part; (d) the Borrower and any other party liable
for payment under the Loan Documents may be granted indulgences generally; (e)
any of the provisions of the Notes or any of the other Loan Documents may be
modified, amended or waived; (f) any party (including any co-guarantor) liable
for the payment thereof
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may be granted indulgences or be released; and (g) any deposit balance for the
credit of the Borrower or any other party liable for the payment of the
Guaranteed Obligations or liable upon any security therefor may be released, in
whole or in part, at, before or after the stated, extended or accelerated
maturity of the Guaranteed Obligations, all without notice to or further assent
by such Guarantor, which shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release. Each Guarantor hereby appoints the Borrower as its agent
to execute and deliver any amendments to or modifications or waivers of the Loan
Documents, and the Agent and the Lenders may rely on such appointment until such
time as a Guarantor advises the Agent and the Lenders in writing that the
Borrower is no longer authorized to so act as its agent.
Section 18.4. Waiver of Rights. Each Guarantor expressly waives to the
fullest extent permitted by applicable law: (a) notice of acceptance of this
Guaranty by the Lenders and of all extensions of credit to the Borrower by the
Lenders; (b) presentment and demand for payment or performance of any of the
Guaranteed Obligations; (c) protest and notice of dishonor or of default (except
as specifically required in this Agreement) with respect to the Guaranteed
Obligations or with respect to any security therefor: (d) notice of the Lenders
obtaining, amending, substituting for, releasing, waiving or modifying any
security interest, Lien or encumbrance, if any, hereafter securing the
Guaranteed Obligations, or the Lenders' subordinating, compromising, discharging
or releasing such security interests, Liens or encumbrances, if any; (e) all
other notices to which such Guarantor might otherwise be entitled; and (f)
demand for payment under this Guaranty.
Section 18.5. Reinstatement. The obligations of the Guarantors under
this Section 18 shall be automatically reinstated if and to the extent that for
any reason any payment by or on behalf of any Person in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor agrees that it
will indemnify the Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees of counsel) incurred by
the Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
Section 18.6. Remedies. The Guarantors agree that, as between the
Guarantors, on the one hand, and the Agent and the Lenders, on the other hand,
the Guaranteed Obligations may be declared to be forthwith due and payable as
provided in Section 12 hereof (and shall be deemed to have become automatically
due and payable in the circumstances provided in Section 12 hereof)
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing such Guaranteed Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or such Guaranteed Obligations being deemed to have
become automatically due and payable), such Guaranteed Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable
by the Guarantors.
Section 18.7. Limitation of Guaranty. Notwithstanding any provision to
the contrary contained herein or in any of the other Loan Documents, to the
extent the obligations of any Guarantor
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shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the obligations of such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
Section 18.8. Release of Guaranty. Upon consummation of the sale,
conveyance, pledge or other transfer of all of the stock or other evidence of
beneficial or legal ownership, or a sale, mortgage or pledge of all or
substantially all of the assets, of any Guarantor other than the Company, so
long as the transfer of Collateral pledged by such Guarantor is otherwise
permitted under the terms of this Agreement, and so long as no Default or Event
of Default shall have occurred and be continuing, the Guaranty of such
Guarantor, and all of its obligations and liabilities under the Loan Documents,
shall be, and shall be deemed to be, released and discharged, and upon the
request of such released Guarantor, the Agent shall acknowledge such release in
writing.
Section 19. ASSIGNMENT; PARTICIPATIONS; ETC.
Section 19.1. Conditions to Assignment by Lenders. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment Percentage and Commitment and the same
portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent shall have given its prior written consent to such
assignment, which consent shall not be unreasonably withheld or delayed, except
that such consent shall not be needed with respect to an assignment from a
Lender to either one of its Affiliated Lenders or to another Lender hereunder,
(b) each such assignment shall be of a portion (or which may be all) of the
assigning Lender's rights and obligations under this Agreement relating to a
specified Commitment amount and Commitment Percentage, (c) each assignment shall
be in an amount of not less than $5,000,000 and in integral multiples of
$1,000,000, (d) each Lender either shall assign all of its Commitment and cease
to be a Lender hereunder or shall retain, free of any such assignment, an amount
of its Commitment of not less than $5,000,000, and (e) the parties to such
assignment shall execute and deliver to the Agent, for recording in the Register
(as hereinafter defined), an Assignment and Acceptance, substantially in the
form of Exhibit E hereto (an "Assignment and Acceptance"), together with any
Notes subject to such assignment. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days after
the execution thereof, (i) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder, and (ii) the assigning Lender shall, to the
extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in Section 19.3, be released from its obligations
under this Agreement.
Section 19.2. Certain Representations and Warranties; Limitations;
Covenants. By executing and delivering an Assignment and Acceptance, the parties
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned
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thereby free and clear of any adverse claim, the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto; (b) the assigning Lender makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or observance by
the Borrower or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of their obligations under this Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (c) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 6.4 and Section 7.4 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (d) such assignee will,
independently and without reliance upon the assigning Lender, the Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement, (e) such assignee represents and
warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as "Agent" on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto; (g) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender; and (h) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance.
Section 19.3 Register. The Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitment Percentages of, and principal amount of the Loans owing to the
Lenders from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower and the Lenders at any reasonable time and from time
to time upon reasonable prior notice. From and after the Effective Date, upon
each such recordation, the assigning Lender agrees to pay to the Agent a
registration fee in the sum of $3,500.00. The Agent may, without action by any
other party, amend Schedules 1 and 1.2 hereof to reflect the recording of any
such assignments and shall immediately forward a copy of any such amendment to
Borrower.
Section 19.4. New Notes. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with each Note
subject to such assignment, the Agent shall (a) record the information contained
therein in the Register, and (b) give prompt notice thereof to the Borrower and
the Lenders (other than the assigning Lender). Within five (5) Business Days
after receipt of such notice, the Borrower, at its own expense, shall execute
and deliver to the Agent, in exchange for each surrendered Note, a new Note to
the order of such Eligible Assignee in an amount equal to the amount assumed by
such Eligible Assignee pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained some portion of its Loans
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hereunder, a new Note to the order of the assigning Lender in an amount equal to
the amount retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes and that they do not constitute a
novation, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes. Within five (5) days of issuance of any new Notes
pursuant to this Section 19.4, the Borrower shall deliver an opinion of counsel,
addressed to the Lenders and the Agent, relating to the due authorization,
execution and delivery of such new Notes and the legality, validity and binding
effect thereof, and that the Obligations evidenced by the new Notes have the
same validity and enforceability as if given on the Effective Date, in form and
substance reasonably satisfactory to the Lenders who are the holders of such new
Notes. The surrendered Notes shall be held by the Agent in escrow and shall be
deemed cancelled and returned to the Borrower simultaneously upon the issuance
and receipt by the Agent of, and in exchange for, the New Notes.
Section 19.5. Participations. Each Lender may sell participations to one
or more banks or other entities of all or a portion of such Lender's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
the Agent shall have given its prior written consent to such participation,
which consent shall not be unreasonably withheld or delayed, except that any
Lender may sell participations to its Affiliated Lenders without such consent,
(b) each such participation, other than participations to its Affiliated Lenders
or to another Lender hereunder, shall be in an amount of not less than
$5,000,000, (c) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrower and the Lender shall
continue to exercise all approvals, disapprovals and other functions of a
Lender, (d) the only rights granted to the participant pursuant to such
participation arrangements with respect to waivers, amendments or modifications
of the Loan Documents shall be the rights to approve the vote of the Lender as
to waivers, amendments or modifications that would reduce the principal of or
the interest rate on any Loans, extend the term or increase the amount of the
Commitment of such Lender as it relates to such participant, reduce the amount
of any fees to which such participant is entitled or extend any regularly
scheduled payment date for principal or interest, (e) except in the case of
sales or participations consummated during the occurrence and continuance of a
Default or an Event of Default, such participant would have qualified as an
Eligible Assignee, and (f) no participant which is not a Lender hereunder shall
have the right to grant further participations or assign its rights, obligations
or interests under such participation to other Persons without the prior written
consent of the Agent. The Agent shall promptly advise the Borrower in writing of
any such sale or participation.
Section 19.6. Pledge by Lender. Any Lender may at any time pledge all or
any portion of its interest and rights under this Agreement (including all or
any portion of its Note) to any of the twelve Federal Reserve Banks organized
under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such
pledge or the enforcement thereof shall release the pledgor Lender from its
obligations hereunder or under any of the other Loan Documents.
Section 19.7. No Assignment by Borrower. Neither the Borrower nor any
Guarantor shall assign or transfer any of its rights or obligations under any of
the Loan Documents without the prior written consent of each of the Lenders, and
any such attempted assignment shall be null and void.
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Section 19.8. Disclosure. Each of the Borrower and the Guarantors agrees
that in addition to disclosures made in accordance with standard banking
practices any Lender may disclose information obtained by such Lender pursuant
to this Agreement to assignees or participants and potential assignees or
participants hereunder subject to customary banking confidentiality practices.
Section 20. NOTICES, ETC. Except as otherwise expressly provided in
this Agreement, all notices and other communications made or required to be
given pursuant to this Agreement or the Notes shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier, or sent by telegraph,
telecopy, telefax or telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Borrower, the Company or any of the
Guarantors, at XX Xxxxx Operating Partnership, L.P., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (telecopy number 212-216-1785), Attention: Chief Financial
Officer and General Counsel, with a copy to Xxxxxx Xxxxxxx, Esq., Xxxxxxxxx
Xxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telecopy number
212-801-6400), or at such other address for notice as the Borrower shall last
have furnished in writing to the Agent; and
(b) if to the Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Structured Real Estate, or such other address
for notice as the Agent shall last have furnished in writing to the Borrower.
(c) if to any Lender, at such Lender's address set forth
on Schedule 1, hereto, or such other address for notice as such Lender shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND
SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF SUCH STATE. EACH OF THE BORROWER, THE GUARANTORS, THE AGENT AND THE LENDERS
AGREES THAT ANY SUIT BY IT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE CITY OF NEW YORK, STATE
OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND BORROWER CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY AGENT OR ANY LENDER AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE
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UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN Section 20. EACH OF THE
BORROWER, THE GUARANTORS, THE AGENT AND THE LENDERS HEREBY WAIVE ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. IN ADDITION TO THE
COURTS OF THE CITY OF NEW YORK, STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN, THE AGENT OR ANY LENDER MAY BRING ACTION(S) FOR ENFORCEMENT ON A
NONEXCLUSIVE BASIS WHERE ANY COLLATERAL EXISTS AND EACH OF THE BORROWER, THE
GUARANTORS, THE AGENT AND THE LENDERS CONSENTS TO THE NON-EXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER, THE GUARANTORS, THE AGENT AND THE LENDERS BY MAIL AT THE ADDRESS
SPECIFIED IN Section 20.
Section 22. HEADINGS. The captions in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 23. COUNTERPARTS. This Agreement and any amendment hereof may
be executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
Section 24. ENTIRE AGREEMENT. The Loan Documents and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in Section 26.
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. EACH OF
THE BORROWER, THE GUARANTORS, THE AGENT AND THE LENDERS HEREBY WAIVES ITS RIGHT
TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, EACH
OF THE BORROWER AND THE GUARANTORS HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM
OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWER AND THE GUARANTORS (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR ANY LENDER
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR SUCH LENDER WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE
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LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
Section 26. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
specifically set forth herein or in any other Loan Document, any consent or
approval required or permitted by this Agreement may be given, and any term of
this Agreement or of any other instrument related hereto or mentioned herein may
be amended, and the performance or observance by the Borrower and the Guarantors
of any terms of this Agreement or such other instrument or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Requisite Lenders, and, in the case of
amendments, with the written consent of the Borrower other than amendments to
schedules made in the ordinary course as contemplated by this Agreement.
Notwithstanding the foregoing, (i) the rate of interest on, and the term or
amount of, the Notes or the date of any payment due hereunder or thereunder,
(ii) the amount of the Commitments of the Lenders (other than changes in
Commitments pursuant to Assignments under Section 19 or pursuant to changes in
the Total Commitment under Section 2.2), (iii) the amount of any fee payable to
a Lender hereunder, (iv) any provision herein or in any of the Loan Documents
which expressly requires consent of all the Lenders (including this Section 26),
(v) the funding provisions of Section 2.5 and Section 2.7 hereof, (vi) the
rights, duties and obligations of the Agent specified in Section 14 hereof, and
(vii) the definitions of Majority Lenders or Requisite Lenders, may not be
amended or compliance therewith waived without the written consent of each
Lender affected thereby, nor may the Agent release the Borrower or any Guarantor
from its liability with respect to the Obligations (other than pursuant to
Section 18.8), without first obtaining the written consent of all the Lenders.
Unless otherwise directed by the Agent, any request for amendment or waiver
shall be made on no less than ten (10) Business Days notice to the Lenders.
Unless otherwise directed by the Agent, the failure of a Lender to respond to a
request for waiver or amendment shall be deemed to constitute such Lender's
consent to such waiver or amendment requested (unless such waiver or amendment
requires the consent of all Lenders). No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
Section 27. SEVERABILITY. The provisions of this Agreement are
severable, and if any one clause or provision hereof shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
Section 28. ACKNOWLEDGMENTS. Each of the Borrower and the Guarantors
hereby acknowledges that: (i) neither the Agent nor any Lender has any fiduciary
relationship with, or fiduciary duty to, the Borrower and the Guarantors arising
out of or in connection with this
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Agreement or any of the other Loan Documents; (ii) the relationship in
connection herewith between the Agent and the Lenders, on the one hand, and the
Borrower and each Guarantor, on the other hand, is solely that of creditor and
debtor and (iii) no joint venture or partnership among any of the parties hereto
is created hereby or by the other Loan Documents, or otherwise exists by virtue
of the Facility or the Loans.
Section 29. USURY LIMITATION. If, at any time, the rate of interest,
together with all amounts which constitute interest and which are reserved,
charged or taken by the Agent or the Lenders as compensation for fees, services
or expenses incidental to the making, negotiating or collection of the loan
evidenced hereby, shall be deemed by any competent court of law, governmental
agency or tribunal to exceed the maximum rate of interest permitted to be
charged by the Agent or the Lenders to the Borrower under Applicable Law, then,
during such time as such rate of interest would be deemed excessive, that
portion of each sum paid attributable to that portion of such interest rate that
exceeds the maximum rate of interest so permitted shall be deemed a voluntary
prepayment of principal; provided, however, that in the event there is a change
in Applicable Law which results in a higher permissible rate of interest, then
this Agreement shall be governed by such new law as of its effective date.
Section 30. REPLACEMENT OF LOST NOTES. Upon receipt of an affidavit of
an officer of a Lender as to the loss, theft, destruction or mutilation of a
Note or any other security document which is not of public record, and, in the
case of any such loss, theft, destruction or mutilation, upon cancellation of
such Note or other security document, the Borrower will issue, in lieu thereof,
a replacement note or other security document in the same principal amount
thereof and otherwise of like tenor.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as a sealed instrument as of the date first set forth above.
BORROWER:
XX XXXXX OPERATING PARTNERSHIP, L.P.
By: XX XXXXX REALTY CORP., its general
partner
By:
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
GUARANTOR:
XX XXXXX REALTY CORP.
By:
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
GUARANTOR:
Green 1412 Preferred LLC,
a Delaware limited liability company
By: XX Xxxxx Operating Partnership, L.P.,
a Delaware limited partnership,
its managing member
By: XX Xxxxx Realty Corp.,
a Maryland corporation,
its general partner
By:
---------------------------
Name: Xxxx Xxxxxxxx
Title: President
GUARANTOR:
SLG 0000 Xxxxxxxx Funding LLC,
a New York limited liability company
By: eEmerge, Inc.,
a Delaware corporation,
its managing member
By:
---------------------------
Name: Xxxxxx Xxxxxxx
Title: President
GUARANTOR:
GREEN FUNDING W26 LLC,
a New York limited liability company
By: XX Xxxxx Funding LLC,
a Delaware limited liability company,
its managing member
By: XX Xxxxx Operating Partnership, L.P.,
a Delaware limited partnership,
its managing member
By: XX Xxxxx Realty Corp.,
a Maryland corporation,
its general partner
By:
---------------------------
Name: Xxxx Xxxxxxxx
Title: President
ADMINISTRATIVE AGENT AND COLLATERAL AGENT:
FLEET NATIONAL BANK,
As Administrative Agent and
Collateral Agent
By:
----------------------------------
Name:
Title:
LENDER:
FLEET NATIONAL BANK,
By:
-------------------------------
Name:
Title:
LENDER:
FIRST UNION NATIONAL BANK
By:
-------------------------------
Name:
Title:
LENDER:
SOVEREIGN BANK
By:
-------------------------------
Name:
Title:
SCHEDULE 1
Lenders; Domestic and LIBOR Lending Offices
FLEET NATIONAL BANK
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Structured Real Estate
Fax: (000) 000-0000
Tel: (000) 000-0000
FIRST UNION NATIONAL BANK
Wachovia Securities
000 X. Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
XXXXXXXXX XXXX
00 Xxxxx Xxxxxx
XX 0XXX 0411
Xxxxxx, XX 00000
Attn: T. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
SCHEDULE 1.2
Commitments and Commitment Percentages
Financial Institution Commitment Commitment Percentage
-----------------------------------------------------------------------------------------------------
Fleet National Bank $ 25,000,000 33.3333%
-----------------------------------------------------------------------------------------------------
First Union National Bank $ 25,000,000 33.3333%
-----------------------------------------------------------------------------------------------------
Sovereign Bank $ 25,000,000 33.3333%
-----------------------------------------------------------------------------------------------------
TOTALS $ 75,000,000 100%
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