Exhibit 10.66
--------------------------------------------------------------------------------
TERM LOAN AGREEMENT
DATED AS OF JANUARY 13, 2006
AMONG
RECKSON OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
AND
XXXXXXX XXXXX MORTGAGE COMPANY,
AS ADMINISTRATIVE AGENT
AND
XXXXXXX SACHS MORTGAGE COMPANY,
AS LEAD ARRANGER AND SOLE BOOKRUNNER
--------------------------------------------------------------------------------
ARTICLE I. DEFINITIONS..............................................1
1.1. Certain Defined Terms........................................1
1.2. Computation of Time Periods.................................26
1.3. Accounting Terms............................................26
1.4. Other Terms.................................................26
1.5. Rules of Interpretation.....................................27
ARTICLE II. AMOUNTS AND TERMS OF LOANS..............................27
2.1. Loans.......................................................27
2.2. Use of Proceeds of Loans....................................28
2.3. Term Loan Maturity Date.....................................28
2.4. Authorized Agents...........................................29
ARTICLE III. INTENTIONALLY OMITTED...................................30
ARTICLE IV. PAYMENTS AND PREPAYMENTS................................30
4.1. Prepayments.................................................30
4.2. Payments....................................................31
4.3. Promise to Repay; Evidence of Indebtedness..................33
ARTICLE V. INTEREST AND FEES.......................................34
5.1. Interest on the Loans and other Obligations.................34
5.2. Special Provisions Governing Eurodollar Rate Loans..........36
ARTICLE VI. CONDITIONS TO LOANS.....................................39
6.1. Conditions Precedent to the Loans...........................39
ARTICLE VII. REPRESENTATIONS AND WARRANTIES..........................40
7.1. Representations and Warranties of the Borrower..............40
ARTICLE VIII. REPORTING COVENANTS.....................................48
8.1. Borrower Accounting Practices...............................48
8.2. Financial Reports...........................................48
8.3. Events of Default...........................................51
8.4. Lawsuits....................................................51
8.5. Insurance...................................................52
8.6. ERISA Notices...............................................52
8.7. Environmental Notices.......................................53
8.8. Labor Matters...............................................54
8.9. Notices of Asset Sales and/or Acquisitions..................54
8.10. Notices of Joint Ventures...................................55
8.11. Tenant Notifications........................................55
8.12. Other Reports...............................................55
8.13. Other Information...........................................55
ARTICLE IX. AFFIRMATIVE COVENANTS...................................55
9.1. Existence. Etc..............................................56
9.2. Powers; Conduct of Business.................................56
9.3. Compliance with Laws. Etc...................................56
9.4. Payment of Taxes and Claims.................................56
9.5. Insurance...................................................56
9.6. Inspection of Property, Books and Records Discussions.......57
9.7. ERISA Compliance............................................57
9.8. Maintenance of Property.....................................57
9.9. Company Status..............................................57
9.10. Ownership of Projects, Joint Ventures and Property..........57
9.11. [Intentionally Omitted.]....................................57
9.12. Additional Guarantors; Solvency of Guarantors...............57
9.13. Further Assurances..........................................58
9.14. Distributions in the Ordinary Course........................58
ARTICLE X. NEGATIVE COVENANTS......................................58
10.1. Intentionally Omitted.......................................58
10.2. Liens.......................................................59
10.3. Intentionally Omitted.......................................59
10.4. Conduct of Business.........................................59
10.5. Transactions with Partners and Affiliates...................59
10.6. Restriction on Fundamental Changes..........................59
10.7. Margin Regulations; Securities Laws.........................60
10.8. ERISA.......................................................60
10.9. Organizational Documents....................................60
10.10. Fiscal Year.................................................61
10.11. Financial Covenants.........................................61
-ii-
10.12. Negative Covenants with respect to the Company..............62
ARTICLE XI. EVENTS OF DEFAULT; RIGHTS AND REMEDIES..................63
11.1. Events of Default...........................................63
11.2. Rights and Remedies.........................................66
ARTICLE XII. THE AGENTS..............................................67
12.1. Appointment.................................................67
12.2. Nature of Duties............................................67
12.3. Right to Request Instructions...............................68
12.4. Reliance....................................................68
12.5. Indemnification.............................................68
12.6. Agents Individually.........................................68
12.7. Successor Agents............................................69
12.8. Relations Among the Lenders.................................69
12.9. Standard of Care............................................69
ARTICLE XIII. YIELD PROTECTION........................................69
13.1. Taxes.......................................................69
13.2. Increased Capital...........................................72
13.3. Changes; Legal Restrictions.................................72
13.4. Replacement of Certain Lenders..............................73
13.5. Mitigation..................................................73
ARTICLE XIV. MISCELLANEOUS...........................................73
14.1. Assignments and Participations..............................73
14.2. Expenses....................................................75
14.3. Indemnity...................................................76
14.4. Change in Accounting Principles.............................76
14.5. Intentionally Omitted.......................................77
14.6. Ratable Sharing.............................................77
14.7. Amendments and Waivers......................................77
14.8. Notices.....................................................79
14.9. Survival of Warranties and Agreements.......................79
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative.......79
14.11. Payments Set Aside..........................................80
-iii-
14.12. Severability................................................80
14.13. Headings....................................................80
14.14. Governing Law...............................................80
14.15. Limitation of Liability.....................................80
14.16. Successors and Assigns......................................80
14.17. Certain Consents and Waivers of the Borrower................80
14.18. Counterparts; Effectiveness; Inconsistencies................82
14.19. Limitation on Agreements....................................82
14.20. Disclaimers.................................................82
14.21. Entire Agreement............................................82
14.22. Confidentiality.............................................82
14.23. Intentionally Omitted.......................................83
14.24. USA Patriot Act.............................................83
-iv-
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Note
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Notice of Conversion /Continuation
Exhibit E List of Closing Documents
Exhibit F Form of Compliance Certificate to Accompany Reports
Exhibit G Sample of Calculations of Financial Covenants
Exhibit H Form of Guaranty
Schedule EEP Eligible Encumbered Properties
Schedule EG Eligible Ground Lease
Schedule LC Lenders' Commitments and Notice Addresses
Schedule 1.1.1 Existing Permitted Liens
Schedule 1.1.2 Permitted Securities Options
Schedule 7.1-A Organizational Documents
Schedule 7.1-C Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Partnership Agreement
Schedule 7.1-H Indebtedness for Borrowed Money; Contingent
Obligations
Schedule 7.1-I Pending Actions
Schedule 7.1-P Environmental Matters
Schedule 7.1-Q ERISA Matters
Schedule 7.1-R Securities Activities
Schedule 7.1-T Insurance Policies
-v-
TERM LOAN AGREEMENT
This Term Loan Agreement, dated as of January 13, 2006 (as amended,
supplemented or modified from time to time, the "AGREEMENT"), is entered into
among RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("RECKSON"), the institutions from time to time a party hereto as Lenders,
whether by execution of this Agreement or an Assignment and Acceptance, XXXXXXX
XXXXX MORTGAGE COMPANY, as Administrative Agent, and XXXXXXX SACHS MORTGAGE
COMPANY, as Lead Arranger and Sole Bookrunner.
RECITALS
WHEREAS, Reckson desires that the Administrative Agent and the Lenders
party hereto provide a term loan facility in an aggregate amount of
$250,000,000; and
WHEREAS, the Administrative Agent and the other Lenders party hereto
have agreed to make the requested term loan facility available to Reckson in
accordance with the terms and provisions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1. CERTAIN DEFINED TERMS. The following terms used in this Agreement
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"ACQUISITION" means that certain purchase by Reckson Cross Westchester
LLC and other Subsidiaries of the Borrower of certain properties in Westchester
County, New York pursuant to that certain Real Estate Purchase and Sale
Agreement, effective as of December 7, 2005, between Xxxxxxxxx Properties I
Corporation, Xxxxxxxxx Properties II Corporation, Xxxxxxxxx Properties III
Corporation, Xxxxxxxxx Properties V Corporation, collectively, as Seller, and
Reckson Cross Westchester LLC, as Buyer.
"ACQUISITION PROPERTIES" means the Real Property acquired by the
Borrower pursuant to the Acquisition.
"ADJUSTED UNENCUMBERED NOI" means, for the prior calendar quarter, the
sum of (i) NOI from the Consolidated Businesses attributable to Unencumbered
Projects and Unencumbered New York City Assets which are wholly-owned or
ground-leased by a Consolidated Business; plus (ii) the Borrower's pro rata
share of NOI from Joint Ventures attributable to Unencumbered Projects and
Unencumbered New York City Assets in which the Borrower's beneficial economic
interest in such Joint Ventures is 51% or greater, provided the sale or
financing of any Property owned or ground-leased by such Joint Venture is
substantially controlled by the Borrower, subject to customary provisions set
forth in the organizational documents of such Joint Venture with respect to
financings, sales or rights of first refusal granted to other members of such
Joint Venture; plus (iii) the Borrower's pro rata share of NOI from Joint
Ventures attributable to Unencumbered Projects and Unencumbered New York City
Assets in which the Borrower's beneficial economic interest is less than 51%,
provided that a majority of the beneficial economic interests in such Joint
Ventures that is not owned by the Consolidated Businesses is owned or controlled
by Qualified Joint Venture Partners; plus (iv) the Borrower's pro rata share of
Net Income attributable to other Unencumbered assets including Performing Notes
(exclusive of Investment Funds, land and development, and service company
income); plus (v) NOI from Eligible Encumbered Properties; less (vi) the
quotient of Capital Expenditure Coverage Reserve Amounts for such period
relating to such Unencumbered assets and Eligible Encumbered Properties, divided
by four (4);
provided, clause (ii) above shall not exceed twenty percent (20%) of Adjusted
Unencumbered NOI; clause (iii) above shall not exceed ten percent (10%) of
Adjusted Unencumbered NOI; and clause (iv) above shall not exceed fifteen
percent (15%) of Adjusted Unencumbered NOI.
"ADMINISTRATIVE AGENT" means GSMC, in its capacity as administrative
agent for the Lenders.
"AFFILIATE", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote ten percent (10%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"AGENTS" means, together, GSMC in its capacity as Administrative Agent,
the Arranger, and each successor agent appointed pursuant to the terms of
Article XII of this Agreement.
"AGREEMENT" has the meaning set forth in the preamble hereto.
"APPLICABLE LENDING OFFICE" means, with respect to a particular Lender,
(i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"APPLICABLE MARGIN" means, with respect to each Loan, the respective
percentages per annum determined based on the range into which the Borrower's
Credit Rating then falls, in accordance with the following table. Any change in
the Borrower's Credit Rating causing it to move to a different range on the
table shall to the extent set forth below effect an immediate change in the
Applicable Margin. The Borrower shall notify the Administrative Agent in writing
promptly after becoming aware of any change in any of its Credit Ratings. The
Borrower shall maintain Credit Ratings from at least two (2) Rating Agencies,
one of which must be Xxxxx'x or S&P so long as such Persons are in the business
of providing debt ratings for the REIT industry; provided that if the Borrower
fails to maintain at least two Credit Ratings, the Applicable Margin shall be
based upon an S&P rating of less than BBB- in the table below. In the event that
the Borrower receives two (2) Credit Ratings that are not equivalent, the
Applicable Margin shall be determined by the lower of such two (2) Credit
Ratings, at least one of which shall be an Investment Grade Rating. In the event
the Borrower receives more than two (2) Credit Ratings and such Credit Ratings
are not equivalent, the Applicable Margin shall be determined by the lower of
the two highest ratings; provided that each of said two (2) highest ratings
shall be Investment Grade Ratings and at least one of which shall be an
Investment Grade Rating from S&P or Xxxxx'x.
-2-
Range of Applicable
the Borrower's Applicable Margin for
Credit Rating Margin for Euro Base Rate
(S&P/Xxxxx'x Dollar Loans Loans
or other Ratings) (% per annum) (% per annum)
----------------- ------------- -------------
A-/A3 or their equivalent or 0.50 0
higher
BBB+/Baa1 or their equivalent 0.525 0
BBB/Baa2 or their equivalent 0.60 0
BBB-/Baa3 or their equivalent 0.80 0
Below BBB-/Baa3 or their 1.10 0
equivalent or unrated
The Administrative Agent shall notify the Lenders in writing promptly after it
obtains knowledge of any change in the Borrower's Credit Rating which shall
effect a change in the Applicable Margin.
"ARRANGER" means GSMC, appointed pursuant to the terms of Article XII
of this Agreement.
"ASSET SALE" shall have the meaning assigned to such term in the
definition of "Net Cash Proceeds".
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance in
substantially the form of Exhibit A attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"AUTHORIZED FINANCIAL OFFICER" means a chief executive officer,
president, chief financial officer, treasurer or other qualified senior officer
acceptable to the Administrative Agent.
"BASE RATE" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by Citibank, N.A.
in New York, New York from time to time, as Citibank, N.A.'s prime
rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum
plus (B) the Federal Funds Rate in effect from time to time during such
period.
-3-
Any change in the Base Rate shall result in a corresponding change on the same
day in the rate of interest accruing from and after such day on the unpaid
balance of any Base Rate Loan.
"BASE RATE LOAN" means (i) a Loan which bears interest at a rate
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a), or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"BENEFIT PLAN" means an employee benefit plan defined in Section 3(3)
of ERISA in respect of which the Borrower or any ERISA Affiliate (i) is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA or (ii) has assumed or is otherwise subject to any
liability.
"BORROWER" means Reckson.
"BORROWER PARTNERSHIP AGREEMENT" means the Reckson Partnership
Agreement as such agreement may be amended, restated, modified or supplemented
from time to time with the consent of the Agents or as permitted under Section
10.9.
"BORROWING" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"BUDGETED CONSTRUCTION COST" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of or
described as vacant buildings, but excluding TI Work and excluding work prior to
erection of the structure of the building) has commenced and is proceeding to
completion in the ordinary course but has not yet been completed (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public), the aggregate
full-budgeted costs of construction of such Improvements (including land
acquisition costs and other soft costs and TI Work relating to such Property, in
accordance with GAAP); provided that Budgeted Construction Cost shall exclude
build-to-suit Projects that are seventy-five percent (75%) pre-leased or
Projects which are less than seventy-five percent (75%) pre-leased but have a
pro-forma yield of ten percent (10%) or more, based upon executed leases and the
cost of acquisition plus the estimated cost to complete the same, which
estimated cost to complete shall be determined in a manner reasonably acceptable
to the Administrative Agent.
"BUSINESS DAY" means a day, in the applicable local time, which is not
a Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England.
"CAPITAL EXPENDITURE VALUATION RESERVE AMOUNTS" means the sum of (a) an
amount per annum equal to $0.40 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint Ventures;
(b) an amount per annum equal to $0.15 multiplied by the number of square feet
for industrial properties owned or ground leased, directly or indirectly, by any
of the Consolidated Businesses or Joint Ventures; and (c) an amount per annum
equal to $0.50 multiplied by the number of square feet for New York City Assets;
provided that all properties that are subject to a Triple Net Lease shall be
excluded from the foregoing calculation of the Capital Expenditure Valuation
Reserve Amounts.
-4-
"CAPITAL EXPENDITURE COVERAGE RESERVE AMOUNTS" means the sum of (a) an
amount per annum equal to $1.25 multiplied by the number of square feet for
office properties (other than New York City Assets) owned or ground leased,
directly or indirectly, by any of the Consolidated Businesses or Joint Ventures;
(b) an amount per annum equal to $0.40 multiplied by the number of square feet
for industrial properties owned or ground leased, directly or indirectly, by any
of the Consolidated Businesses or Joint Ventures; and (c) an amount per annum
equal to $1.75 multiplied by the number of square feet for New York City Assets
provided that all properties that are subject to a Triple Net Lease shall be
excluded from the foregoing calculation of the Capital Expenditure Coverage
Reserve Amounts.
"CAPITAL LEASE" means any lease of any property (whether real, personal
or mixed) by a Person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"CAPITAL MARKETS TRANSACTION" means the issuance by the Company, the
Borrower or any of their respective Subsidiaries after the Closing Date of (a)
of debt securities (excluding mortgage financings or borrowings under the
Existing Revolving Credit Agreement or this Agreement) or (b) common or
preferred equity or equity equivalent securities, including partnership
interests, limited liability company interests and convertible securities
(however designated, and whether voting or non-voting, but excluding equity not
issued for the purpose of raising cash (including, but not limited to, equity
issued upon exercise of options or upon awards to company executives or
trustees, equity issued under any dividend reinvestment plan and equity
securities issued in private placements to a limited number of institutional
investors in connection with joint venture transactions)) issued in the public
or private capital markets pursuant to an underwriting or placement agreement
(or similar agreement performing the same function as an underwriting or
placement agreement).
"CAPITAL STOCK" means, with respect to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"CASH AND CASH EQUIVALENTS" means unrestricted (i) cash, (ii)
marketable direct obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Xxxxx'x
provided that the maturities of such Cash and Cash Equivalents shall not exceed
one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. xx.xx. 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidelines promulgated
thereunder.
"CLAIM" means any claim or demand, by any Person, of whatsoever kind or
nature for any alleged Liabilities and Costs, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
-5-
"CLOSING DATE" means January 13, 2006.
"COMBINED EQUITY VALUE" means Total Value, less Total Outstanding
Indebtedness.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMPANY" means Reckson Associates Realty Corp., a Maryland
corporation.
"COMPLIANCE CERTIFICATE" has the meaning set forth in Section 8.2(b).
"CONSOLIDATED" means consolidated, in accordance with GAAP, but
excluding the effects of consolidation under Interpretation No. 46 of the
Financial Accounting Standards Board.
"CONSOLIDATED BUSINESSES" means the Company, the Borrower, Reckson FS
Limited Partnership, Metropolitan, MOP and their wholly-owned Subsidiaries.
"CONSTRUCTION ASSET COST" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of or
described as vacant buildings, but excluding TI Work and excluding work prior to
erection of the structure of the building) has commenced and is proceeding to
completion in the ordinary course but has not yet been completed (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public), the aggregate
sums incurred and paid on the construction of such Improvements (including land
acquisition costs and other soft costs and TI Work relating to such Property, in
accordance with GAAP). Any such Property shall continue to be valued (for
financial covenant compliance purposes) at its Construction Asset Cost until the
end of four (4) consecutive quarters following such completion (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public).
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in any
form or condition), polychlorinated biphenyls (PCBs), or any constituent of any
such substance or waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
"CONTINGENT OBLIGATION" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements in
accordance with GAAP, which obligation guarantees partially or in whole any
non-recourse Indebtedness, lease, dividend or other obligation, exclusive of
contractual indemnities (including, without limitation, any Non-Recourse
Carve-Outs, any indemnity or price-adjustment provision relating to the purchase
or sale of securities or other assets) and guarantees of non-monetary
obligations (other than guarantees of completion) which have not yet been called
on or quantified, of such Person or of any other Person. Notwithstanding the
foregoing, any litigation required to be disclosed in the footnotes to such
Person's financial statements in accordance with GAAP shall not be included as a
"Contingent Obligation" unless the same shall have been reserved for in
accordance with GAAP. The amount of any Contingent Obligation described in
clause (ii) shall be deemed to be (a) with respect to a guaranty of interest or
interest and principal, or operating income guaranty, the sum of all payments
required to be made thereunder (which in the case of an operating income
guaranty shall be deemed to be equal to the debt service for the note secured
thereby), calculated at the interest rate applicable to such Indebtedness,
through (i) in the case of an interest or interest and principal guaranty, the
stated date of maturity of the obligation (and commencing on the date interest
could first be payable thereunder), or (ii) in the case of an operating income
guaranty, the date through which such guaranty will remain in effect, and (b)
with respect to all guarantees not covered by the preceding clause (a) an amount
equal to the stated or determinable amount of the primary obligation in respect
of which such guaranty is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as recorded on the balance sheet and on the
footnotes to the most recent financial statements of the Borrower required to be
delivered pursuant hereto; provided that in no event shall the amount of
Contingent Obligations with respect to any guaranties relating to a loan exceed
the principal amount of such loan. Notwithstanding anything contained herein to
the contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment has been made thereunder, at
which time any such guaranty of completion shall be deemed to be a Contingent
Obligation in an amount equal to any such claim. Subject to the preceding
sentence, (i) in the case of a joint and several guaranty given by such Person
and another Person (but only to the extent such guaranty is recourse, directly
or indirectly to the Borrower), the amount of the guaranty shall be deemed to be
100% thereof unless and only to the extent that (X) such other Person has
delivered Cash or Cash Equivalents to secure all or any part of such Person's
guaranteed obligations or (Y) such other Person holds an Investment Grade Rating
from either Xxxxx'x or S&P, and (ii) in the case of a guaranty (whether or not
joint and several) of an obligation otherwise constituting Debt of such Person,
the amount of such guaranty shall be deemed to be only that amount in excess of
the amount of the obligation constituting Indebtedness of such Person.
Notwithstanding anything contained herein to the contrary, "Contingent
Obligations" shall not be deemed to include guarantees of loan commitments or of
construction loans to the extent the same have not been drawn.
-6-
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any Securities issued by that Person or any indenture, mortgage, deed of
trust, security agreement, pledge agreement, guaranty, contract, undertaking,
agreement or instrument to which that Person is a party or by which it or any of
its properties is bound, or to which it or any of its properties is subject.
"CREDIT RATING" means the ratings assigned by not less than two of the
Rating Agencies (at least one of which shall be S&P or Xxxxx'x) to the
Borrower's senior long-term unsecured indebtedness. The decision on which two,
or in certain cases three, Rating Agencies to use shall be made by the Borrower
so long as one of such Rating Agencies shall be Xxxxx'x or S&P.
"CUSTOMARY PERMITTED LIENS" means
(i) Liens (other than Environmental Liens and Liens in favor
of the PBGC) with respect to the payment of taxes, assessments or
governmental charges or levies in all cases which are not yet due or
which are being contested in good faith by appropriate proceedings in
accordance with Section 9.4, and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP;
(ii) statutory and common law Liens of landlords against any
Property of the Borrower or any of its Subsidiaries;
-7-
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the
ordinary course of business for amounts which could not reasonably be
expected to result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC) incurred
or deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety,
appeal and performance bonds; provided that (A) all such Liens do not
in the aggregate materially detract from the value of the Borrower's or
such Subsidiary's assets or Property or materially impair the use
thereof in the operation of their respective businesses, and (B) all
Liens of attachment or judgment and Liens securing bonds to stay
judgments or in connection with appeals which do not secure at any time
an aggregate amount of recourse Indebtedness exceeding $10,000,000;
(v) Liens against any Property of the Borrower or any
Subsidiary of the Borrower arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of Real Property which do not materially
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not
materially interfering with the conduct of the business of the Borrower
and its Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its Subsidiaries
at the time of acquisition thereof by the Borrower or any such
Subsidiary or within 180 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof,
provided that the Lien encumbering the equipment or machinery so
acquired does not encumber any other asset of the Borrower or such
Subsidiary;
(viii) customary restrictions imposed by licensors of software
or trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks
or other intellectual property license or sublicense by the Borrower or
any of its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being
contested in good faith by appropriate proceedings.
"DESIGNATED LENDER" has the meaning set forth in Section 13.4.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLARS" AND "$" mean the lawful money of the United States.
-8-
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, such
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on SCHEDULE LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"ELIGIBLE ASSIGNEE" means (i) a Lender or a Lender Affiliate; (ii) a
commercial bank having total assets in excess of $1,000,000,000; (iii) the
central bank of any country which is a member of the organization for Economic
Cooperation and Development having total assets in excess of $10,000,000,000; or
(iv) a finance company or other financial institution reasonably acceptable to
the Administrative Agent, which is regularly engaged in making, purchasing or
investing in loans and having total assets in excess of $1,000,000,000 or is
otherwise reasonably acceptable to the Administrative Agent.
"ELIGIBLE CASH 1031 PROCEEDS" means the cash proceeds held by a
"qualified intermediary" from the sale of Real Property, which proceeds are
intended to be used by such qualified intermediary to acquire one or more
"replacement properties" that are of "like-kind" to such Real Property in an
exchange that qualifies as a tax-free exchange under Section 1031 of the
Internal Revenue Code, and no portion of which proceeds the Borrower, the
Company or any Affiliate has the right to receive, pledge, borrow or otherwise
obtain the benefits of until such time as provided under the applicable
"exchange agreement" (as such terms in quotations are defined in Treasury
Regulations Section 1.1031(k)-1(g)(4) (the "REGULATIONS")) or until such
exchange is terminated. Upon the cash proceeds no longer being held by such
qualified intermediary pursuant to the Regulations or otherwise no longer
qualifying under the Regulations for like-kind exchange treatment, such proceeds
shall cease being Eligible Cash 1031 Proceeds.
"ELIGIBLE ENCUMBERED PROPERTIES" means the Projects and New York City
Assets listed on SCHEDULE EEP, so long as (a) such Projects and New York City
Assets are owned and ground leased by the Borrower or a Guarantor and would
otherwise satisfy the requirements of an Unencumbered Project or an Unencumbered
New York City Asset, except that such Project or New York City Asset is subject
to a lien which is not a Customary Permitted Lien, (b) the Indebtedness secured
by the Lien on such Project or New York City Asset that exists on the Closing
Date is not (x) amended or modified in any manner that would increase the
principal amount or postpone the maturity date thereof or (y) refinanced or
replaced with new Indebtedness having a principal amount greater than or a
maturity date later than the Indebtedness being refinanced or replaced, (c) the
Indebtedness secured by the Lien on such Project or New York City Asset has not
been accelerated, unless such acceleration is rescinded and (d) no default or
event of default under any mortgage or other loan document relating to the
Indebtedness secured by the Lien on such Project or New York City Asset has
occurred and is continuing, which default or event of default then subjects such
Indebtedness to acceleration or then permits such Indebtedness to be accelerated
under any such mortgage or other loan document, unless such default or event of
default is cured or waived.
"ELIGIBLE GROUND LEASE" means a ground lease that (a) has a minimum
remaining term of twenty-five (25) years, including tenant controlled options,
as of any date of determination, (b) has customary notice rights, default cure
rights, new lease rights in the event of bankruptcy of the tenant and other
customary provisions for the benefit of a leasehold mortgagee or has equivalent
protection for a leasehold permanent mortgagee by a subordination to such
leasehold permanent mortgagee of the landlord's fee interest, and (c) is
otherwise acceptable for non-recourse leasehold mortgage financing under
customary lending requirements. The Eligible Ground Leases as of the date of
this Agreement are listed on SCHEDULE EG.
-9-
"ELIGIBLE NET CASH PROCEEDS" means (a) until such time as the aggregate
Net Cash Proceeds from all Asset Sales after the Closing Date equals or exceeds
$100,000,000, all Net Cash Proceeds from any Asset Sale that results in
$50,000,000 or more of Net Cash Proceeds and (b) thereafter (and excluding, for
the avoidance of doubt, the first $100,000,000 of Net Cash Proceeds from Asset
Sales that result in less than $50,000,000 of Net Cash Proceeds), all Net Cash
Proceeds from any Asset Sale, but only with respect to Asset Sales that result
in less than $50,000,000 of Net Cash Proceeds, to the extent that the aggregate
Net Cash Proceeds from such Asset Sales exceed $2,500,000.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable Requirement
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"EQUIPMENT" means equipment used in connection with the maintenance of
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. xx.xx. 1000 et seq., any amendments thereto, any successor statutes, and
any regulations or guidelines promulgated thereunder.
"ERISA AFFILIATE" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414 (b) of
the Internal Revenue Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414 (c) of the Internal Revenue Code) with the Borrower; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414 (m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA TERMINATION EVENT" means (i) a Reportable Event with respect to
any Benefit Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower or
any ERISA Affiliate from a Benefit Plan during a plan year in which the Borrower
or such ERISA Affiliate was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of 20% of Benefit Plan participants who are employees
of the Borrower or any ERISA Affiliate; (iii) the imposition of an obligation on
the Borrower or any ERISA Affiliate under Section 4041 of ERISA to provide
affected parties written notice of intent to terminate a Benefit Plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the institution
by the PBGC of proceedings to terminate a Benefit Plan; (v) any event or
condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Benefit Plan;
or (vi) the partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan.
-10-
"EURODOLLAR AFFILIATE" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on SCHEDULE LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender or such Lender Affiliate
as it may from time to time specify by written notice to the Borrower and the
Administrative Agent.
"EURODOLLAR INTEREST PERIOD" has the meaning set forth in Section
5.2(b).
"EURODOLLAR INTEREST RATE DETERMINATION DATE" has the meaning set forth
in Section 5.2(c).
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on SCHEDULE LC hereto or as set forth in the Assignment and Acceptance by
which it became a Lender or such other office or offices of such Lender as it
may from time to time specify by written notice to the Borrower and the
Administrative Agent.
"EURODOLLAR RATE" means, for any Eurodollar Interest Period with
respect to any Eurodollar Rate Loan, an interest rate per annum equal to the
rate per annum obtained by multiplying (a) a rate per annum equal to the rate
for Dollar deposits with maturities comparable to such Eurodollar Interest
Period which appears on Telerate Page 3750 as of 11:00 a.m., London time, two
(2) Business Days prior to the commencement of such Eurodollar Interest Period,
provided, however, that if such rate does not appear on Telerate Page 3750, the
"Eurodollar Rate" applicable to a particular Eurodollar Interest Period shall
mean a rate per annum equal to the rate at which Dollar deposits in an amount
approximately equal to the principal balance (or the portion thereof which will
bear interest at a rate determined by reference to the Eurodollar Rate during
the Eurodollar Interest Period to which such Eurodollar Rate is applicable in
accordance with the provisions hereof), and with maturities comparable to the
last day of the Eurodollar Interest Period with respect to which such Eurodollar
Rate is applicable, are offered in immediately available funds in the London
Interbank Market to the London office of Citibank, N.A. by leading banks in the
Eurodollar market at 11:00 a.m., London time, two (2) Business Days prior to the
commencement of the Eurodollar Interest Period to which such Eurodollar Rate is
applicable, by (b) a fraction (expressed as a decimal) the numerator of which
shall be the number one and the denominator of which shall be the number one
minus the Eurodollar Reserve Percentage for each day during such Eurodollar
Interest Period.
"EURODOLLAR RATE LOAN" means (i) a Loan which bears interest at a rate
determined by reference to the Eurodollar Rate and the Applicable Margin for
Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue amount
which was a Eurodollar Rate Loan immediately before it became due.
-11-
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
which is in effect on such day, as prescribed by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York, New York with deposits exceeding five
billion Dollars in respect of "Eurocurrency Liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Rate Loans is determined or any category of
extensions of credit or other assets which includes loans by a non United States
office of any bank to United States residents).
"EVENT OF DEFAULT" means any of the occurrences set forth in Section
11.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 11.1.
"EXISTING PERMITTED LIENS" means each of the Liens set forth on
SCHEDULE 1.1.1.
"EXISTING REVOLVING CREDIT AGREEMENT" means that certain Third Amended
and Restated Credit Agreement, dated as of August 6, 2004, among the Borrower,
the institutions from time to time a party thereto as Lenders, and JPMorgan
Chase Bank, as Administrative Agent, as amended by that certain Amendment No. 1
dated as of May 11, 2005 and that certain Amendment No. 2 dated as of June 20,
2005.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on such transactions
by the Reference Bank, as determined by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"FFO" means "funds from operations" as defined in accordance with
resolutions adopted by the Board of Governors of the National Association of
Real Estate Investment Trusts as in effect from time to time; provided that FFO
shall (i) be based on net income after payment of distributions to holders of
preferred partnership units in the Borrower and distributions necessary to pay
holders of preferred stock of the Company and (ii) at all times exclude (a)
charges for impairment losses from property sales and (b) non-recurring charges.
"FINANCIAL STATEMENTS" means (i) quarterly and annual consolidated
statements of income and retained earnings, statements of cash flow, and balance
sheets, prepared in accordance with GAAP, consistently applied, and (ii) such
other financial statements of the Borrower, the Company and the other
Consolidated Businesses or Joint Ventures that the Company shall routinely and
regularly prepare and that the Arranger or the Requisite Lenders may from time
to time reasonably request.
"FISCAL YEAR" means the fiscal year of the Company and the Borrower for
accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
-12-
"FITCH" means Fitch Ratings, a division of Fitch, Inc. or any successor
thereto.
"FIXED CHARGES" means, with respect to any fiscal period, the sum of
(a) Total Interest Expense, (b) the aggregate of all scheduled principal
payments on Total Outstanding Indebtedness according to GAAP made or required to
be made during such fiscal period for the Consolidated Businesses and Joint
Ventures (but excluding balloon payments of principal due upon the stated
maturity of an Indebtedness), provided that only the Consolidated Businesses'
pro rata share of the Joint Ventures' scheduled principal payments are to be
included, and (c) the aggregate of all dividends or distributions payable
(whether paid or accrued) on all preferred stock and other preferred securities
or preferential arrangements of the Consolidated Businesses, including, without
limitation, preferred distributions payable to holders of preferred OP Units. As
used herein, "OP Units" means limited partnership interests in Reckson.
"FUNDING DATE" means the date on or after the Closing Date on which all
of the conditions described in Section 6.1 have been satisfied (or waived) in a
manner satisfactory to the Administrative Agent and the Lenders and on which the
Term Loan under this Agreement is made by the Lenders to the Borrower.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"GENERAL PARTNER" means the Company and any successor general
partner(s) of the Borrower.
"GOVERNMENTAL APPROVAL" means all right, title and interest in any
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GSMC" means Xxxxxxx Xxxxx Mortgage Company.
"GUARANTIES" means, collectively, the Unconditional Guaranties of
Payment, made by each of the Company, Reckson FS Limited Partnership and the
other Guarantors for the benefit of the Lenders, in substantially the form of
Exhibit H hereto.
"GUARANTORS" means, collectively, the Company, Reckson FS Limited
Partnership, 000 Xxxxxxxx Xxxxx XXX, Xxxxxxxxxxxx, XXX, 275 Broadhollow LLC,
0000 Xxxxxxxxxx Xxxxxxxxx LLC, Reckson 1 Giralda LLC, Reckson 7 Giralda Owner
LLC, Reckson 300 Broadhollow LLC, Reckson 1185 Avenue of the Americas LLC,
Magnolia Associates, Ltd., Reckson Plaza LLC, Reckson Cross Westchester LLC,
Reckson Cross Westchester II LLC, Reckson Cross Westchester III LLC, Reckson
Cross Westchester IV LLC, Reckson Cross Westchester V LLC, and any other
Affiliate of the Borrower executing a Guaranty. Any Guarantor that is the owner
or ground lessee of an Unencumbered Project or Unencumbered New York City Asset
shall be a wholly-owned Subsidiary of the Borrower.
-13-
"IMPROVEMENTS" means all buildings, fixtures, structures, parking
areas, landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower and
(c) any items of personal property.
"INDEBTEDNESS", as applied to any Person, means, at any time, without
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar instruments,
and any accrued interest and fees relating thereto, (ii) under profit payment
agreements or in respect of obligations to redeem, repurchase or exchange any
Securities of such Person or to pay dividends in respect of any preferred stock
(but only to the extent that such Person shall be contractually obligated to pay
the same), (iii) with respect to letters of credit, bankers' acceptances or
similar facilities issued for such Person's account or for which such Person
otherwise has reimbursement obligations, other than any undrawn letter of credit
to the extent that such letter of credit supports any Contractual Obligation
with a term of less than ninety (90) days, (iv) to pay the deferred purchase
price of property or services, except accounts payable and accrued expenses
arising in the ordinary course of business, (v) in respect of Capital Leases or
so-called synthetic leases, (vi) which are Contingent Obligations or (vii) under
indemnities but only at such time as a claim shall have been made thereunder;
(b) all indebtedness, obligations or other liabilities of such Person or others
secured by a Lien on any property of such Person, whether or not such
indebtedness, obligations or liabilities are assumed by such Person, all as of
such time, but in a case of obligations of others not assumed by such Person an
amount not in excess of the value of such property; (c) all indebtedness,
obligations or other liabilities of such Person in respect of interest rate
contracts, derivatives contracts and foreign exchange contracts, net of
liabilities owed to such Person by the counterparties thereon; (d) all preferred
stock and preferred equity interests subject (upon the occurrence of any
contingency or otherwise) to mandatory redemption in cash by the holder of such
preferred stock or equity interest; (e) all preferred stock and preferred equity
interests in any Consolidated Business (other than the Company and the Borrower)
which has not provided a Guaranty of the Obligations; and (f) all Contractual
Obligations with respect to any of the foregoing.
"INDEMNIFIED MATTERS" has the meaning set forth in Section 14.3.
"INDEMNITEES" has the meaning set forth in Section 14.3.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidelines promulgated thereunder.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business, and (iv) any
purchase or other acquisition by that Person of Real Property, whether directly
or indirectly. The amount of any Investment shall be the original cost of such
Investment (together with all capital improvement costs thereafter paid or
incurred with respect to such Investment in accordance with GAAP), without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment.
-14-
"INVESTMENT FUNDS" means (i) Reckson Strategic Venture Partners LLC,
and (ii) a Person in which FrontLine Capital Group or a Subsidiary thereof is a
general partner or a managing member, in the case of a partnership or limited
liability company, and which, in the case of a corporation, has the right to
elect a majority of the board of directors.
"INVESTMENT GRADE RATING" means a rating for a Person's senior
long-term unsecured debt of BBB- or better from S&P, and a rating of Baa3 or
better from Xxxxx'x or a rating equivalent to the foregoing from Fitch or
another Rating Agency.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"JOINT VENTURES" means any interests in partnerships, joint ventures,
limited liability companies, trusts, associations and corporations held or owned
directly or indirectly by the Borrower and/or the Company which are not
wholly-owned by the Borrower and/or the Company (other than Investment Funds or
any affiliated or unaffiliated operating company that the Borrower includes
under clause (vii) of the definition of Total Value, subject to the limitation
of $100,000,000 investments (valued at the lower of cost or market in accordance
with GAAP)).
"JOINT VENTURE UNENCUMBERED VALUE" means the portion of Total
Unencumbered Value from Joint Ventures attributable to Unencumbered Projects and
Unencumbered New York City Assets.
"KNOWLEDGE" with reference to the Company, the Borrower or any
Subsidiary of any of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Company, the Borrower or
such Subsidiary, as applicable, deems reasonably necessary).
"LAND/DEVELOPMENT UNENCUMBERED VALUE" means the portion of Total
Unencumbered Value which is attributable to Unencumbered assets consisting of
land and Projects under development.
"LEASE" means a lease, license, concession agreement or other agreement
providing for the use or occupancy of any portion of any Project, including all
amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
"LENDER" means each financial institution a signatory hereto as a
Lender as of the Closing Date and, at any other given time, each financial
institution which is a party hereto as Lender, whether as a signatory hereto or
pursuant to an Assignment and Acceptance.
"LENDER AFFILIATE" means with respect to any Lender an Affiliate of
such Lender.
"LETTER AGREEMENT" means the letter agreement dated as of the date
hereof among the Borrower, the Administrative Agent and the Arranger.
-15-
"LIABILITIES AND COSTS" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing.
"LIMITED PARTNERS" means those Persons who from time to time are
limited partners of the Borrower; and "LIMITED PARTNER" means each of the
Limited Partners, individually.
"LOAN" means a Term Loan made by a Lender pursuant to Section 2.1;
provided, that if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Loan"
shall refer to the combined principal amount resulting from such combination or
to each of the separate principal amounts resulting from such subdivision, as
the case may be.
"LOAN ACCOUNT" has the meaning set forth in Section 4.3(b).
"LOAN DOCUMENTS" means this Agreement, the Notes and the Guaranties.
"MANAGEMENT COMPANY" means, collectively (i) Reckson Management Group,
Inc., a Delaware corporation, RANY Management Group, Inc. and their respective
wholly-owned or controlled Subsidiaries and (ii) such other property management
companies controlled (directly or indirectly) by the Company or the Borrower and
which property management companies manage properties owned by the Company, the
Borrower and its Subsidiaries and for which the Borrower has previously provided
the Administrative Agent with: (1) notice of such property management company,
(2) evidence reasonably satisfactory to the Administrative Agent that such
property management company is controlled (directly or indirectly) by the
Company or the Borrower, and (3) evidence reasonably satisfactory to the
Administrative Agent that such property management company manages properties
owned, in whole or in part by the Company or the Borrower or its Subsidiaries.
"MARGIN STOCK" means "margin stock" or "margin security" as such terms
are defined in Regulation U and Regulation X.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
financial condition or assets of the Company, the Borrower and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of the
Guarantors to perform their material obligations under the Guaranties, or (iv)
the ability of the Lenders or the Administrative Agent to enforce any of the
Loan Documents.
-16-
"METROPOLITAN" means Metropolitan Partners, LLC, a Delaware limited
liability company, in which the Borrower currently owns 100% of the common
equity interests.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MOP" means Metropolitan Operating Partnership, L.P., a Delaware
limited partnership, and a Subsidiary of Metropolitan.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any ERISA Affiliate or in respect
of which the Borrower or any ERISA Affiliate has assumed any liability.
"NET CASH PROCEEDS" means all cash (whether proceeds, dividends, or
distributions) when and as received in connection with the sale, financing or
refinancing of any Real Property or other Real Property asset (including
interests in Joint Ventures and Subsidiaries that own Real Property) or multiple
Real Properties or Real Property assets in a single transaction (an "ASSET
SALE"), less reasonable costs and expenses, repayment of secured indebtedness
with respect to the applicable asset, repayment of loans under the Existing
Revolving Credit Agreement required by Section 8.9 of the Existing Revolving
Credit Agreement, and net of an amount equal to taxable capital gains and real
estate transfer taxes payable in connection with any asset sale.
"NET INCOME" means, with respect to any Person, the net income of such
Person determined in accordance with GAAP.
"NET OFFERING PROCEEDS" means all cash or other assets received by the
Company or the Borrower or their respective Subsidiaries as a result of a
Capital Markets Transaction, less customary costs, expenses and discounts of
issuance paid by the Company, the Borrower or such Subsidiary, as the case may
be.
"NEW YORK CITY ASSET" means (i) Real Property which is Class A office
property located in the borough of Manhattan, New York, New York or (ii) Real
Property which is Class A office property located in any other borough of New
York, New York and is substantially similar to Class A office properties located
in the borough of Manhattan, New York, New York, and in each case which is owned
or ground-leased by one of the Consolidated Businesses or Joint Ventures
"NOI" means (x) net operating income determined in accordance with
GAAP, before gains or losses from extraordinary items relating to any Real
Property, plus (y) (i) any interest expense relating to such Real Property, (ii)
depreciation and amortization relating to such Real Property, and (iii) Property
Level G&A to the extent included in the calculation of net operating income,
less (z) (i) free rent and accrued rent with respect to tenants that are more
than 90 days in arrears in the payment of rent, and further adjusted to omit the
straight line treatment of rent, so as to account for rent on an accrual basis,
(ii) any interest income relating to such Real Property, and (iii) the greater
of Property Level G&A to the extent included in the calculation of net operating
income and an amount equal to 2% of gross revenues with respect to such Real
Property.
"NON PRO RATA LOAN" has the meaning set forth in Section 4.2(b)(iv).
"NON-RECOURSE CARVE-OUTS" means exceptions to non-recourse obligations,
such as fraud, misappropriation, waste, environmental liabilities, improper
transfer and breach of restrictions on further financing and breach of single
purpose entity covenants, which are usual and customary in secured transactions
involving institutional lenders or securitized financings and recourse to single
purpose entities that are Consolidated Businesses which have no material assets
other than the Real Property or Properties which are the subject of the Secured
Indebtedness.
-17-
"NOTE" has the meaning set forth in Section 4.3(a).
"NOTICE OF BORROWING" means a notice substantially in the form of
Exhibit C attached hereto and made a part hereof.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in the
form of EXHIBIT D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"OBLIGATIONS" means all Loans, advances, debts, liabilities and
monetary obligations owing by the Borrower to the Administrative Agent, any
Lender, or any Person entitled to indemnification pursuant to Section 14.3 of
this Agreement, of any kind or nature, arising under this Agreement, the Notes
or any other Loan Document. The term includes, without limitation, all interest,
charges, reasonable expenses, fees, reasonable attorneys' fees and disbursements
and any other sum chargeable to the Borrower under this Agreement or any other
Loan Document.
"OFFICER'S CERTIFICATE" means, as to a corporation, a certificate
executed on behalf of such corporation by the chairman of its board of directors
(if an officer of such corporation) or its chief executive officer, president,
any of its vice-presidents, its chief financial officer, or its treasurer and,
as to a partnership, a certificate executed on behalf of such partnership by the
chairman of the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president, or treasurer of the general
partner of such partnership.
"OPERATING LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"ORGANIZATIONAL DOCUMENTS" means, with respect to any corporation,
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in such partnership, (iii) the by-laws (or the equivalent governing
documents) of such corporation, limited liability company or partnership, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's Capital
Stock or such limited liability company's or partnership's equity or ownership
interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
xx.xx. 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidelines promulgated thereunder.
"OTHER MANAGEMENT COMPANY" means property management companies
controlled (directly or indirectly) by the Company or the Borrower which may
manage properties owned by third parties.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
-18-
"PERFORMING NOTES" means mortgage notes, notes receivable and other
investments in Real Property (other than investments in or loans to, directly or
indirectly, an Investment Fund, or joint venture arrangements with an Investment
Fund, or an affiliated or unaffiliated operating company in which such
Investment Fund or joint venture arrangements with an Investment Fund owns an
equity interest), valued at the lower of cost or market in accordance with GAAP
and which are not more than 30 days past due or otherwise in default; provided,
that, in the case of mortgage notes, notes receivable and other investments in
Real Property that generate cash and non-cash payments, such mortgage notes,
notes receivable and other investments in Real Property shall be treated as
Performing Notes whose value is determined solely by reference to the cash
payments and references to the income generated by the Performing Notes shall
include only the cash payments which have current payments payable in cash.
"PERMITS" means any permit, consent, approval, authorization license,
variance, or permission required from any Person, including any Governmental
Approvals.
"PERMITTED SECURITIES OPTIONS" means the subscriptions, options,
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on SCHEDULE 1.1.2.
"PERSON" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"PLAN" means a Benefit Plan or a Multiemployer Plan.
"POTENTIAL EVENT OF DEFAULT" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"PRE-APPROVED LENDER" means any Person and its Affiliates that are not
(or not reasonably likely to become), in the reasonable judgment of the Lender
making the assignment, direct, material competitors with Borrower and its
Affiliates in the development, operation or management of real estate in the
areas in which the Borrowers and its Affiliates operate.
"PREPAYMENT DATE" has the meaning set forth in Section 4.1(c).
"PROJECT" means any office or industrial properties owned or
ground-leased, directly or indirectly, by any of the Consolidated Businesses or
Joint Ventures.
"PROPERTY" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or any Joint Venture.
The definition of "Property" shall specifically exclude items of Real Property
or personal property owned or leased by members of the Rechler family.
"PROPERTY LEVEL G&A" means general and administrative expenses
allocated to the Properties.
"PRO RATA SHARE" means, with respect to any Lender, (a) prior to the
making of the Term Loan or the expiration of the Term Loan Commitments, the
percentage set forth on SCHEDULE LC and (b) after the Funding Date, the
percentage obtained by dividing (i) the aggregate amount of such Lender's Loans
(as may be adjusted from time to time in accordance with the provisions of this
Agreement or any Assignment and Acceptance to which such Lender is a party), by
(ii) the aggregate amount of all of the Lenders' Loans.
-19-
"QUALIFIED JOINT VENTURE PARTNERS" means (a) pension funds, insurance
companies, banks, investment banks or similar institutional entities, each with
significant experience in making investments in commercial real estate and (b)
commercial real estate companies of similar quality and experience.
"QUARTERLY COMPLIANCE CERTIFICATES" has the meaning set forth in
Section 8.2(a)(iii).
"RATING AGENCY" means Xxxxx'x, S&P, Fitch or another
nationally-recognized rating agency reasonably satisfactory to the
Administrative Agent.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. xx.xx. 6901 et seq., any amendments thereto, any successor statutes, and
any regulations or guidelines promulgated thereunder.
"REAL PROPERTY" means all of the Borrower's and the Consolidated
Businesses' present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any Improvements of every nature whatsoever (the rights and interests
described in clauses (i) and (ii) above being the "PREMISES"), (iii) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining such land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto, and (iv) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the rights and interests described in clause (iii) above.
"RECKSON" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"REFERENCE BANK" means Citibank, N.A.
"REGISTER" has the meaning set forth in Section 14.1(c).
"REGULATION A" means Regulation A of the Federal Reserve Board as in
effect from time to time.
"REGULATION T" means Regulation T of the Federal Reserve Board as in
effect from time to time.
"REGULATION U" means Regulation U of the Federal Reserve Board as in
effect from time to time.
"REGULATION X" means Regulation X of the Federal Reserve Board as in
effect from time to time.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et seq., of the
Internal Revenue Code.
-20-
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
"REMEDIAL ACTION" means actions required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent the Release or threat of Release or minimize the further Release of
Contaminants; or (iii) investigate and determine if a remedial response is
needed and to design such a response and post-remedial investigation,
monitoring, operation and maintenance and care.
"REPORTABLE EVENT" means any of the events described in Section 4043(c)
of ERISA and the regulations promulgated thereunder as in effect from time to
time but not including any such event as to which the thirty (30) day notice
requirement has been waived by applicable PBGC regulations.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit and Environmental, Health or
Safety Requirement of Law.
"REQUISITE LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66.67%); provided, however, that, in the event any of the Lenders shall have
failed to fund its Pro Rata Share of the Loans which such Lenders are obligated
to fund under the terms of this Agreement and any such failure has not been
cured as provided in Section 4.2(b)(iv)(B), then for so long as such failure
continues, "Requisite Lenders" means Lenders (excluding all Lenders whose
failure to fund their respective Pro Rata Shares of such Loans have not been so
cured) whose Pro Rata Shares represent sixty-six and two-thirds percent (66.67%)
or more of the aggregate Pro Rata Shares of such Lenders.
"RESTRICTED PAYMENT" has the meaning set forth in Section 10.11(h).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"SECURITIES" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
obligations.
-21-
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time, and any successor statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"SERVICING EBITDA" means, with respect to the Management Company or any
other service company owned by the Borrower or the Company, as of the first day
of each fiscal quarter for the immediately preceding fiscal quarter, an amount,
determined in accordance with GAAP, equal to (i) total earnings relating to such
companies' operations adjusted to exclude amounts that are more than 90 days
delinquent, less (ii) total operating expenses relating to such operations,
including corporate marketing, general and administrative expenses.
"SOLVENT", when used with respect to any Person, means that at the time
of determination:
(i) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts become
absolute and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments)
as they mature; and
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"SUBSIDIARY" of a Person means any corporation, limited liability
company, general or limited partnership, or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned or controlled by such Person, one or more of
the other subsidiaries of such Person or any combination thereof.
"TAXES" has the meaning set forth in Section 13.1(a).
"TELERATE PAGE 3750" means the display known as "Telerate Page 3750"
(or such other page as may replace Telerate Page 3750 as the display of such
service (other than Telerate Service) as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association interest settlement rates for U.S. Dollar
deposits).
"TENANT ALLOWANCE" means a cash allowance paid to a tenant by the
landlord pursuant to a Lease.
"TERM LOAN" is defined in Section 2.1(a) hereof.
-22-
"TERM LOAN COMMITMENT" means, with respect to any Lender, the
obligation of such Lender to make Loans pursuant to the terms and conditions of
this Agreement, and which shall not exceed the principal amount set forth
opposite such Lender's name on SCHEDULE LC hereto or in the Assignment and
Acceptance by which it became a Lender, as modified from time to time pursuant
to the terms of this Agreement or to give effect to any applicable Assignment
and Acceptance, and "TERM LOAN COMMITMENTS" means the aggregate principal amount
of the Term Loan Commitments of all the Lenders, the maximum amount of which
shall be $250,000,000.
"TERM LOAN MATURITY DATE" means April 13, 2006, subject to extension to
July 13, 2006 as provided in Section 2.3(b); provided, that if such date shall
fall on a day that is not a Business Day, then the Term Loan Maturity Date shall
be the preceding Business Day.
"TERM LOAN OBLIGATIONS" means, at any particular time, the outstanding
principal amount of the Loans at such time.
"TI WORK" means any construction or other "build out" of tenant
leasehold improvement to the space demised to the applicable tenant under a
Lease (excluding such tenant's furniture, fixtures and equipment) performed
pursuant to the terms of such Lease, whether or not such tenant improvement work
is performed by or on behalf of the landlord or as part of a Tenant Allowance.
"TOTAL ADJUSTED EBITDA" means, for any quarterly period, (i) net income
determined in accordance with GAAP, plus (ii) Total Interest Expense,
depreciation and amortization deducted in the calculation of such net income,
plus (iii) taxes on income deducted in the calculation of such net income, less
(iv) the gains (and plus the losses) from extraordinary items, asset sales,
write-ups, debt forgiveness, asset impairments, xxxx to market adjustments for
marketable securities or fair market valuation adjustments for derivatives
included in the calculation of such net income, less (v) the Capital Expenditure
Coverage Reserve Amounts divided by four.
"TOTAL INTEREST EXPENSE" means the sum of (i) interest expense of the
Consolidated Businesses paid during such period and (ii) interest expense of the
Consolidated Businesses accrued and/or capitalized for such period and (iii) the
pro-rata portion of the interest expense of Joint Ventures allocable to the
Borrower and paid during such period and (iv) the pro-rata portion of the
interest expense of Joint Ventures allocable to the Borrower accrued and/or
capitalized for such period, in each case including participating interest
expense but excluding extraordinary interest expense, and net of amortization of
deferred costs associated with new financings or refinancings of existing
Indebtedness.
"TOTAL OUTSTANDING INDEBTEDNESS" means, for any period, the sum of (i)
the amount of Indebtedness of the Consolidated Businesses set forth on the then
most recent quarterly financial statements of the Borrower, prepared in
accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, less any Indebtedness
repaid by the Consolidated Businesses since the time of such statements, and
(ii) the outstanding amount of Joint Venture Indebtedness set forth on the then
most recent quarterly financial statements of the Borrower or the applicable
Joint Venture, prepared in accordance with GAAP, plus any additional Joint
Venture Indebtedness incurred by the Joint Ventures since the time of such
statements, less any Indebtedness repaid by the Joint Ventures since the time of
such statements; provided that all of the foregoing shall only include the
Consolidated Businesses' pro rata share of the outstanding and additional
Indebtedness, as the case may be, with respect to any Joint Venture, and (iii)
the Contingent Obligations of the Consolidated Businesses and the pro-rata
portion of Contingent Obligations of the Joint Ventures allocable to the
Consolidated Businesses.
-23-
"TOTAL RECOURSE SECURED OUTSTANDING INDEBTEDNESS" means Total Secured
Outstanding Indebtedness under the terms of which any of the Consolidated
Businesses guarantees or is directly obligated for any portion of such
Indebtedness or interest payments thereon (other than Non-Recourse Carve-Outs),
including, without limitation, the pro rata share of such recourse Indebtedness
of Joint Ventures allocable to any of the Consolidated Businesses.
"TOTAL SECURED OUTSTANDING INDEBTEDNESS" means the sum of (i) that
portion of Total Outstanding Indebtedness that is secured by a Lien, including,
without duplication, the pro rata share of such Indebtedness that is Joint
Venture Indebtedness allocable to any of the Consolidated Businesses, plus (ii)
that portion of Total Outstanding Indebtedness attributable to Consolidated
Subsidiaries of the Borrower (or the Joint Ventures) which is recourse to the
Borrower or any of the Consolidated Subsidiaries (other than Non-Recourse
Carve-Outs), regardless of whether it is secured by a Lien (it being understood
that this definition shall not include the Loans hereunder).
"TOTAL UNENCUMBERED VALUE" means the portion of Total Value
attributable to (x) Unencumbered assets (including, without limitation, the
Unencumbered New York City Assets and the other Unencumbered Projects, but
excluding Investment Funds and service company income) owned or ground-leased
under an Eligible Ground Lease by the Consolidated Businesses and the Joint
Ventures and (y) the Eligible Encumbered Properties, subject to the limitations
set forth in the next paragraph and the following conditions and limitations:
(i) only the amount of unrestricted Cash and Cash Equivalents in excess of
$40,000,000 shall be included; (ii) Joint Venture Unencumbered Value for Joint
Ventures in which the Borrower's beneficial economic interest is fifty-one
percent (51%) or greater shall be included, provided the sale or financing of
any Property owned or ground-leased by such Joint Venture is substantially
controlled by the Borrower, subject to customary provisions set forth in the
organizational documents of such Joint Venture with respect to financings, sales
or rights of first refusal granted to other members of such Joint Venture; (iii)
Joint Venture Unencumbered Value for Joint Ventures in which the Borrower's
beneficial economic interest is less than fifty-one percent (51%) shall be
included, provided that a majority of the beneficial economic interests in such
Joint Ventures that are not owned by the Consolidated Businesses is owned or
controlled by Qualified Joint Venture Partners; (iv) the portion of Total
Unencumbered Value attributable to Performing Notes shall be included; (v)
Land/Development Unencumbered Value shall be included; and (vi) the portion of
Total Unencumbered Value attributable to Unencumbered office and industrial
Projects owned or ground-leased under an Eligible Ground Lease by the
Consolidated Businesses for less than four (4) fiscal quarters and which have
received a certificate of occupancy shall be included.
Clause (ii) above shall not exceed twenty percent (20%) of Total
Unencumbered Value. Clause (iii) shall not exceed ten percent (10%) of Total
Unencumbered Value. Clause (iv) above shall not exceed fifteen percent (15%) of
Total Unencumbered Value. Clause (v) above shall not exceed ten percent (10%) of
Total Unencumbered Value. The sum of clauses (iii), (iv) and (v) above shall not
exceed twenty percent (20%) of Total Unencumbered Value.
"TOTAL UNSECURED OUTSTANDING INDEBTEDNESS" means the sum of (a) that
portion of Total Outstanding Indebtedness that is not secured by a Lien plus (b)
that portion of Total Outstanding Indebtedness that is secured by a Lien on an
Eligible Encumbered Property. Without limiting the foregoing, Total Unsecured
Outstanding Indebtedness shall include, without double counting, (i) all amounts
outstanding under this Agreement, (ii) all Indebtedness of the Consolidated
Businesses, including the Consolidated Businesses' pro rata share of
Indebtedness of Joint Ventures, which is not secured by a Lien, (iii) all
outstanding undrawn letters of credit of the Consolidated Businesses (and the
pro rata share of such letters of credit allocable to any of the Consolidated
Businesses) less those outstanding undrawn letters of credit for the benefit of
any tenant, prospective tenant or lender at any Real Property to secure the
Consolidated Businesses' leasing obligations relating to tenant improvement work
or third party leasing commissions which have previously been paid, as evidenced
by a schedule provided by the Borrower to the Administrative Agent upon the
request of the Administrative Agent.
-24-
"TOTAL VALUE" means (a) the sum of (i) Valuation NOI divided by (A)
seven and one-half percent (7.50%) for all New York City Assets, (B) eight and
three-quarter percent (8.75%) for all other office Real Property, and (C) nine
percent (9.00%) for industrial Real Property; (ii) the Investment in office and
industrial Projects owned or ground-leased by the Consolidated Businesses for
less than four fiscal quarters; (iii) unrestricted Cash and Cash Equivalents;
(iv) land cost (at book value) and Construction Asset Cost, which credit will be
limited to fifteen percent (15%) of Total Value (exclusive of build-to-suit
Projects that are seventy-five percent (75%) pre-leased or Projects which are
less than seventy-five percent (75%) pre-leased but have a pro-forma yield of
ten percent (10%) or more, based upon executed leases and the cost of
acquisition plus the estimated cost to complete the same, which estimated cost
to complete shall be determined in a manner reasonably acceptable to the
Administrative Agent and the Syndication Agent); (v) NOI from all other Real
Property not otherwise set forth in this definition, divided by twelve percent
(12%); (vi) Servicing EBITDA of the Management Company or other such service
companies for the immediately preceding four (4) consecutive quarters, divided
by twenty percent (20%); (vii) any investment in or loan to (based on the actual
cash investment in or loan to), directly or indirectly, an affiliated or
unaffiliated operating company and investments in or loans to Investment Funds
either directly or indirectly or joint venture arrangements with Investment
Funds, which credit will be limited to $100,000,000 (valued at the lower of cost
or market in accordance with GAAP), other than (x) investments in, loans to, or
joint venture arrangements with Joint Ventures and (y) Performing Notes; (viii)
Performing Notes, which credit will be limited in the aggregate to fifteen
percent (15%) of Total Value; and (ix) Eligible Cash 1031 Proceeds;
less (b) the quotient of the Capital Expenditure Valuation Reserve
Amounts for such period, divided by (A) seven and one-half percent (7.50%) for
all New York City Assets, (B) eight and three-quarter percent (8.75%) for all
other office Property, and (C) nine percent (9.00%) for industrial Property;
provided, the sum of items (a) (iv), (vii) and (viii) above shall not
exceed twenty-five percent (25%) of Total Value.
"UNENCUMBERED" means, with respect to any asset (other than a Project
or a New York City Asset) as of any date of determination, that such asset, the
equity interests in such asset and the revenues generated by such asset are not
subject to any Liens (excluding Customary Permitted Liens) or preferred equity
interests.
"UNENCUMBERED NEW YORK CITY ASSET" means any Unencumbered Project that
is a New York City Asset.
"UNENCUMBERED PROJECT" means any Project located in the United States
that on any date of determination: (a) is owned or ground-leased under an
Eligible Ground Lease, (b) is not subject (nor are any equity interests therein
subject) to any Liens (excluding Customary Permitted Liens) or preferred equity
interests, (c) has been improved with Improvements which (except for any
portions of the Project being restored or renovated) (1) have been issued a
certificate of occupancy (where available) or is otherwise lawfully occupied for
its intended use, and (2) are fully operational, including in each case, an
Unencumbered Project that is being renovated or restored and such renovation is
proceeding to completion without undue delay from Permit denial, construction
delays or otherwise, (d) has not been the subject of an event or occurrence that
has had a Material Adverse Effect, and (e) if owned or ground leased by a
wholly-owned Subsidiary of the Borrower, such Subsidiary has executed and
delivered a Guaranty.
-25-
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as enacted
in the State of New York, as it may be amended from time to time.
"UNSECURED INTEREST EXPENSE" means the interest expense paid, accrued
or capitalized on the Total Unsecured Outstanding Indebtedness for the
applicable period.
"VALUATION NOI" means, with respect to any office or industrial Project
or any office or industrial Joint Venture (exclusive of projects under
development) which has been owned or ground-leased by the Borrower for not less
than four consecutive quarters, as of the first day of each fiscal quarter, an
amount equal to the NOI relating to such Project or the Borrower's pro rata
share of such Joint Venture for the immediately preceding consecutive four
fiscal quarters.
"WHOLLY-OWNED" means, with respect to the ownership of any asset by any
Person, that such Person owns 100% of the voting and economic interests in such
asset; provided that, with the written approval of the Administrative Agent,
such Person may be deemed to wholly-own an asset if it owns less than 100% of
the voting and economic interests in such asset so long as such Person owns 100%
of the interests generally having the right to vote with respect to such asset
and at least 90% of the economic interests in such asset.
1.2. COMPUTATION OF TIME PERIODS. In this Agreement, in the computation
of periods of time from a specified date to a later specified date, the word
"FROM" means "from and including" and the words "TO" and "UNTIL" each mean "to
but excluding". Periods of days referred to in this Agreement shall be counted
in calendar days unless Business Days are expressly prescribed. Any period
determined hereunder by reference to a month or months or year or years shall
end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
1.3. ACCOUNTING TERMS. Subject to Section 14.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. OTHER TERMS. All other terms contained in this Agreement shall,
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
-26-
1.5. 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.
(a) The singular includes the plural and the plural includes the
singular.
(b) A reference to any law includes any amendment or modification
to such law.
(c) A reference to any Person includes its permitted successors
and permitted assigns.
(d) The words "include", "includes" and "including" are not
limiting.
(e) Reference to a particular "Section" refers to that section of
this Agreement unless otherwise indicated, and reference to a particular
"Exhibit" or "Schedule" refers to that exhibit or schedule to this Agreement
unless otherwise indicated.
ARTICLE II.
AMOUNTS AND TERMS OF LOANS
2.1. LOANS.
(a) Commitment to Lend. Subject to the terms and conditions set
forth in this Agreement, each Lender hereby severally and not jointly agrees to
make a term loan, in Dollars (the "TERM LOAN") to the Borrower on the Funding
Date, in an amount equal to such Lender's Pro Rata Share of the principal amount
of $250,000,000. The aggregate amount of the Term Loan to be made hereunder
shall not exceed Two Hundred Fifty Million Dollars ($250,000,000). The Term Loan
shall be made by the Lenders simultaneously and proportionately to their then
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make a Term Loan hereunder nor shall the Term Loan Commitment of any Lender be
increased or decreased as a result of any such failure. The Term Loan
Commitments, with respect to the making of the Term Loan (and not with respect
to the obligations of the Lenders to convert or continue any Loans), shall
expire on January 20, 2006.
(b) Notice of Borrowing. The Borrower shall provide to the
Administrative Agent a Notice of Borrowing, signed by it (x) no later than 12:00
noon (New York time) on the Business Day immediately preceding the proposed
Funding Date, in the case of a Borrowing of Base Rate Loans and (y) no later
than 11:00 a.m. (New York time) at least three (3) Business Days in advance of
the proposed Funding Date, in the case of a Borrowing of Eurodollar Rate Loans.
The Notice of Borrowing shall specify (i) the proposed Funding Date (which shall
be a Business Day), (ii) the amount of the proposed Borrowing, (iii) whether the
proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (iv) in
the case of Eurodollar Rate Loans, the requested Eurodollar Interest Period, (v)
instructions for the disbursement of the proceeds of the proposed Borrowing,
(vi) an Officer's Certificate of the Borrower with respect to compliance with
(including calculation thereof) Sections 10.11(a) and 10.11(e), and (vii) that
no Potential Event of Default or Event of Default shall have occurred and be
continuing or would result therefrom. Any Notice of Borrowing given pursuant to
this Section 2.1(b) shall be irrevocable.
-27-
(c) Making of Term Loans. (i) Each Lender shall deposit an amount
equal to its Pro Rata Share of the Term Loan with the Administrative Agent at
its office in New York, New York, in immediately available funds, not later than
12:00 noon (New York time) on the Funding Date. Subject to the fulfillment of
the conditions precedent set forth in Section 6.1, the Administrative Agent
shall make the proceeds of such amounts received by it available to the Borrower
at the Administrative Agent's office in New York, New York on the Funding Date
(or on the date received if later than such Funding Date) and shall disburse
such proceeds in accordance with the Borrower's disbursement instructions as set
forth in the Notice of Borrowing. The failure of any Lender to deposit the
amount described above with the Administrative Agent on the Funding Date shall
not relieve any other Lender of its obligations hereunder to make its Term Loan
on the Funding Date. In the event the conditions precedent set forth in Section
6.1 are not fulfilled as of the Funding Date, the Administrative Agent shall
promptly return, by wire transfer of immediately available funds, the amount
deposited by each Lender to such Lender.
(ii) The Administrative Agent may assume that each Lender has
funded its Term Loan and is depositing the proceeds thereof with the
Administrative Agent on the Funding Date, and the Administrative Agent in its
sole discretion may, but shall not be obligated to, disburse a corresponding
amount to the Borrower on the Funding Date. If the Term Loan proceeds
corresponding to that amount are advanced to the Borrower by the Administrative
Agent but are not in fact deposited with the Administrative Agent by such Lender
on or prior to the Funding Date, such Lender agrees to pay, and in addition the
Borrower, agrees to repay, to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from the date
such amount is disbursed to or for the benefit of the Borrower until the date
such amount is paid or repaid to the Administrative Agent, at the average
Federal Funds Rate for such period. If such Lender shall pay to the
Administrative Agent the corresponding amount, the amount so paid shall
constitute such Lender's Term Loan as of the Funding Date, and if both such
Lender and the Borrower shall pay and repay such corresponding amount, the
Administrative Agent shall promptly pay to the Borrower such corresponding
amount. This Section 2.1(c)(ii) does not relieve any Lender of its obligation to
make its Term Loan on the Funding Date.
2.2. USE OF PROCEEDS OF LOANS. The proceeds of the Loans issued for the
account of the Borrower hereunder shall be used for the purposes of general
working capital needs of the Borrower and other general corporate purposes,
including acquisitions.
2.3. TERM LOAN MATURITY DATE. (a) The Borrower promises to pay the Term
Loan Obligations and all other Obligations in full on the Term Loan Maturity
Date.
(b) So long as (x) no Potential Event of Default or Event of
Default has occurred and is continuing and (y) the representations and
warranties of the Borrower set forth in this Agreement are true and correct in
all material respects on and as of such election date (or, if such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date), the Borrower may elect at least
fifteen (15) days prior to the Term Loan Maturity Date, to extend the Term Loan
Maturity Date for three (3) months as provided in this Section 2.3(b) by
providing written notice of such election to the Administrative Agent (which
shall promptly notify each of the Lenders). Such notice shall include a
confirmation in writing from the Borrower of its agreement to comply with the
covenant set forth in Section 2.3(c) and a certification as to the matters set
forth in clauses (x) and (y) in the preceding sentence. If on the initial Term
Loan Maturity Date (i) no Potential Event of Default under Section 11.1(a)(ii)
or Section 11.1(f) or Event of Default has occurred and is continuing, (ii) the
Borrower pays to the Administrative Agent, for the pro rata benefit of the
Lenders based on their Pro Rata Shares, an extension fee equal to 0.25% of the
then outstanding principal amount of the Loans, and (iii) the Borrower has given
written notice to the Administrative Agent of such election to extend the Term
Loan Maturity Date within the time frame set forth in this Section 2.3(b), the
Term Loan Maturity Date shall be extended to June __, 2006 (the period from the
initial Term Loan Maturity Date until the Term Loan Maturity Date as so extended
being referred to herein as the "Extension Period").
-28-
(c) The exercise of the Borrower's extension option pursuant to
Section 2.3(b) shall constitute and be deemed an agreement by the Borrower to
deliver to the Administrative Agent, on or prior to the Term Loan Maturity Date
(unless the Obligations are repaid in full prior to such date), mortgages on the
Acquisition Properties and related title insurance and legal opinions, in each
case reasonably satisfactory to the Administrative Agent. To facilitate such
delivery, the Administrative Agent shall perform its legal due diligence,
including title, environmental, survey and zoning review, and the Borrower and
the Administrative Agent shall negotiate the forms of the mortgages, title
insurance and legal opinions, promptly after the commencement of the Extension
Period. The Borrower shall cooperate diligently with the Administrative Agent in
delivering the due diligence materials requested by the Administrative Agent and
negotiating the mortgages, title insurance and legal opinions, and the Borrower
shall pay all reasonable expenses of the Administrative Agent associated
therewith, including title search, environmental, survey and zoning report
costs, reasonable legal fees and, if mortgages are recorded, all applicable
mortgage recording taxes and title insurance premiums. The Borrower shall
execute, notarize and deliver such mortgages to the Administrative Agent on or
before the Term Loan Maturity Date (as extended), but the Administrative Agent
shall not record same unless the Obligations are not repaid in full on or prior
to the Term Loan Maturity Date (as extended).
2.4. AUTHORIZED AGENTS. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request the Term Loan and to request a conversion/continuation of any Loan and
containing a specimen signature of each such employee or agent. The employees
and agents so authorized shall also be authorized to act for the Borrower in
respect of all other matters relating to the Loan Documents. The Administrative
Agent, the Arranger, and the Lenders shall be entitled to rely conclusively on
such employee's or agent's authority to request the Term Loan or such
conversion/continuation until the Administrative Agent and the Arranger receive
written notice to the contrary. Neither the Administrative Agent nor the
Arranger shall have any duty to verify the authenticity of the signature
appearing on the Notice of Borrowing or any Notice of Conversion/Continuation or
any other document, and, with respect to an oral request for such
conversion/continuation, the Administrative Agent and the Arranger shall have no
duty to verify the identity of any person representing himself or herself as one
of the employees or agents authorized to make such request or otherwise to act
on behalf of the Borrower. None of the Administrative Agent, the Arranger or the
Lenders shall incur any liability to the Borrower or any other Person in acting
upon any telephonic or facsimile notice referred to above which the
Administrative Agent or the Arranger believe to have been given by a person duly
authorized to act on behalf of the Borrower and the Borrower hereby indemnifies
and holds harmless the Administrative Agent, the Arranger and each Lender from
any loss or expense the Administrative Agent, the Arranger or the Lenders might
incur in acting in good faith as provided in this Section 2.4; provided,
however, that Borrower shall not indemnify the applicable party for acts
resulting from its own gross negligence or willful misconduct.
-29-
ARTICLE III.
INTENTIONALLY OMITTED
ARTICLE IV.
PAYMENTS AND PREPAYMENTS
4.1. PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower may, at any time and from
time to time, prepay the Loans, in part or in their entirety, subject to the
following limitations. The Borrower shall give at least three (3) Business Days
prior written notice to the Administrative Agent (which the Administrative Agent
shall promptly transmit to each Lender) of any prepayment in the entirety to be
made prior to the occurrence of an Event of Default, which notice of prepayment
shall specify the date (which shall be a Business Day) of prepayment. When
notice of prepayment is delivered as provided herein, the outstanding principal
amount of the Loans on the prepayment date specified in such notice shall become
due and payable on such prepayment date. Each voluntary partial prepayment of
the Loans shall be in a minimum amount of $1,000,000 and in integral multiples
of $500,000 in excess of that amount (or such lesser amount in the event the
unpaid principal amount of any Loan is less than such minimum prepayment
amount). Eurodollar Rate Loans may be prepaid in part or in their entirety only
upon payment of the amounts described in Section 5.2(f). Any amounts repaid
pursuant to this Agreement may not be reborrowed.
(b) No Penalty. The prepayments and payments in respect of
reductions and terminations described in clause (a) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(c) Mandatory Prepayment.
(i) If at any time from and after the Closing Date: (i) the
Company or the Borrower merges or consolidates with another Person and
the Company or Borrower, as the case may be, is not the surviving
entity and does not control the management of such surviving entity, or
(ii) the Company, the Borrower, any of its Affiliates or Consolidated
Subsidiaries or the Management Company ceases to provide property
management and leasing services to at least 80% of the total number of
Projects in which the Borrower has a direct ownership interest (the
date any such event shall occur being the "PREPAYMENT DATE"), the
Borrower shall prepay the Loans in their entirety as if the Prepayment
Date were the Term Loan Maturity Date. The Borrower shall immediately
make such prepayment together with interest accrued to the date of the
prepayment on the principal amount prepaid.
(ii) If the Borrower, the Company or any Subsidiary receives
any Net Offering Proceeds or any Eligible Net Cash Proceeds, the
Borrower shall apply 100% of such Net Offering Proceeds and Eligible
Net Cash Proceeds to the prepayment of the Loans on the date such Net
Offering Proceeds or Eligible Net Cash Proceeds are received until such
time as the outstanding principal amount of the Loans on such date is
less than 60% of the excess, if any, of (a) the aggregate purchase
price of the Acquisition Properties which are Unencumbered over (b) the
aggregate book value of the Acquisition Properties that have been sold,
transferred or otherwise disposed of by the Borrower and its
Subsidiaries since the Closing Date.
-30-
In connection with the prepayment of any Loan prior to the maturity thereof, the
Borrower shall also pay accrued interest to the date of such prepayment on the
amount prepaid and any applicable expenses pursuant to Section 5.2(f). Each such
prepayment shall be applied to prepay ratably the Loans of the Lenders in
accordance with Section 4.2(b). Any such repayment shall be applied first to
Base Rate Loans and second to Eurodollar Rate Loans. Amounts prepaid pursuant to
this Section 4.1(c) may not be reborrowed. Such prepayment shall not affect any
rights and remedies that the Agents and Lenders may otherwise have hereunder.
4.2. PAYMENTS.
(a) Manner and Time of Payment. All payments of principal of and
interest on the Loans and other Obligations (including, without limitation, fees
and expenses) which are payable to the Administrative Agent, the Arranger or any
Lender shall be made without condition or reservation of right, in immediately
available funds, delivered to the Administrative Agent not later than 12:00 noon
(New York time) on the date and at the place due, to such account of the
Administrative Agent (or Arranger) as it may designate, for the account of the
Administrative Agent, the Arranger, or such Lender, as the case may be; and
funds received by the Administrative Agent (or Arranger) not later than 12:00
noon (New York time) on any given Business Day shall be credited against payment
to be made that day and funds received by the Administrative Agent (or Arranger)
after that time shall be deemed to have been paid on the next succeeding
Business Day. Payments actually received by the Administrative Agent for the
account of the Lenders, or any of them, shall be paid to them by the
Administrative Agent promptly after receipt thereof.
(b) Apportionment of Payments. (i) Subject to the provisions of
Section 4.2(b)(iv), all payments of principal and interest in respect of
outstanding Loans, all payments of fees and all other payments in respect of any
other Obligations, shall be allocated among such of the Lenders as are entitled
thereto, in proportion to their respective Pro Rata Shares or otherwise as
provided herein. Subject to the provisions of Section 4.2(b)(ii), all such
payments and any other amounts received by the Administrative Agent from or for
the benefit of the Borrower shall be applied in the following order:
(A) to pay principal of and interest on any portion
of the Loans which the Administrative Agent may have advanced on
behalf of any Lender other than GSMC for which the Administrative
Agent has not then been reimbursed by such Lender or the Borrower;
(B) to pay all other Obligations then due and
payable, and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of its Loans shall be applied first, to repay its outstanding Base Rate Loans,
and then to repay its outstanding Eurodollar Rate Loans with those Eurodollar
Rate Loans which have earlier expiring Eurodollar Interest Periods being repaid
prior to those which have later expiring Eurodollar Interest Periods.
-31-
(ii) After the occurrence of an Event of Default and while the
same is continuing which results in an acceleration of the Obligations
in accordance with Section 11.2, the Administrative Agent shall apply
all payments in respect of any Obligations in the following order:
(A) first, to pay principal of and interest on any
portion of the Loans which the Administrative Agent may have
advanced on behalf of any Lender other than GSMC for which the
Administrative Agent has not then been reimbursed by such Lender
or the Borrower;
(B) second, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the
Administrative Agent;
(C) third, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the
Lenders;
(D) fourth, to pay interest due in respect of Loans;
(E) fifth, to the ratable payment or prepayment of
principal outstanding on Loans; and
(F) sixth, to the ratable payment of all other
Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the Lenders as among themselves. The
order of priority set forth in clauses (A) and (B) of this Section 4.2(b)(ii)
may be changed only with the prior written consent of the Administrative Agent.
(iii) Subject to Section 4.2(b)(iv), the Administrative Agent
shall promptly distribute to the Arranger and each Lender at its
primary address set forth on SCHEDULE LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender, or at such other
address as a Lender may request in writing, such funds as such Person
may be entitled to receive, subject to the provisions of Article XII;
provided that the Administrative Agent shall under no circumstances be
bound to inquire into or determine the validity, scope or priority of
any interest or entitlement of any Lender and may suspend all payments
or seek appropriate relief (including, without limitation, instructions
from the Requisite Lenders or an action in the nature of interpleader)
in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby.
(iv) In the event that any Lender fails to fund its Pro Rata
Share of the Term Loan which such Lender is obligated to fund under the
terms of this Agreement (the funded portion of the Term Loan being
hereinafter referred to as a "NON PRO RATA LOAN"), until the earlier of
such Lender's cure of such failure and the termination of the Term Loan
Commitments, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower and otherwise required to be
applied to such Lender's share of all other Obligations pursuant to the
terms of this Agreement shall be advanced to the Borrower by the
Administrative Agent on behalf of such Lender to cure, in full or in
part, such failure by such Lender, but shall nevertheless be deemed to
have been paid to such Lender in satisfaction of such other
Obligations. Notwithstanding anything in this Agreement to the
contrary:
-32-
(A) the foregoing provisions of this Section
4.2(b)(iv) shall apply only with respect to the proceeds of
payments of Obligations and shall not affect the conversion or
continuation of Loans pursuant to Section 5.1(c);
(B) a Lender shall be deemed to have cured its
failure to fund its Pro Rata Share of the Term Loan at such time
as an amount equal to such Lender's original Pro Rata Share of the
requested principal portion of the Term Loan is fully funded to
the Borrower, whether made by such Lender itself or by operation
of the terms of this Section 4.2(b)(iv), and whether or not the
Non Pro Rata Loan with respect thereto has been repaid, converted
or continued; and
(C) regardless of whether or not an Event of Default
has occurred or is continuing, and notwithstanding the
instructions of the Borrower as to its desired application, all
repayments of principal which, in accordance with the other terms
of this Section 4.2, would be applied to its outstanding Base Rate
Loans shall be applied first, ratably to its Base Rate Loans
constituting Non Pro Rata Loans and second, ratably to its Base
Rate Loans other than those constituting Non Pro Rata Loans.
(c) Payments on Non-Business Days. Whenever any payment to be made
by the Borrower hereunder or under the Notes is stated to be due on a day which
is not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 5.2(b)(iii), the next preceding
Business Day).
4.3. PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS.
(a) Promise to Repay. The Borrower hereby agrees to pay when due,
without setoff or counterclaim, the principal amount of the Term Loan which is
made to it, and further agrees to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the Notes. The Borrower shall
execute and deliver to each Lender on or prior to the Closing Date, a promissory
note, in the form of EXHIBIT B attached hereto with blanks appropriately
completed, evidencing the Term Loans and thereafter shall execute and deliver
such other promissory notes as are necessary to evidence the Term Loans made to
it owing to the Lenders after giving effect to any assignment thereof pursuant
to Section 14.1, all in the form of EXHIBIT B attached hereto with blanks
appropriately completed (all such promissory notes and all amendments thereto,
replacements thereof and substitutions therefor being collectively referred to
as the "NOTES"; and "NOTE" means any one of the Notes).
(b) Loan Account. Each Lender shall maintain in accordance with
its usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Indebtedness of the Borrower to such Lender from time to time, including the
amount of principal and interest payable and paid to such Lender from time to
time hereunder and under the Notes.
(c) Control Account. The Register maintained by the Administrative
Agent pursuant to Section 14.1(c) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of the Loans made hereunder, any conversion or
continuation of the Loans, including the type of Loan and any Eurodollar
Interest Period applicable thereto, (ii) the effective date and amount of each
Assignment and Acceptance delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder or under the
Notes and (iv) the amount of any sum received by the Administrative Agent from
the Borrower hereunder and each Lender's share thereof.
-33-
(d) Entries Binding. The entries made in the Register and each
Loan Account shall be conclusive and binding for all purposes, absent manifest
error.
(e) No Recourse. Notwithstanding anything contained in this
Agreement, any Note, or the Guaranties to the contrary, it is expressly
understood and agreed that nothing herein or therein shall be construed as
creating any liability on any Limited Partner, or any partner, officer,
shareholder or director of any Limited Partner or any officer, trustee, member,
director, or employee of the Borrower or any Guarantor, to pay any of the
Obligations other than liability arising under applicable law from or in
connection with (i) its own fraud or (ii) the misappropriation or misapplication
by it of proceeds of the Loans; but nothing contained in this Section 4.3(e)
shall be construed to prevent the exercise of any remedy allowed to the
Administrative Agent, the Arranger or the Lenders by law or by the terms of this
Agreement or the other Loan Documents which does not relate to or result in such
an obligation by any Limited Partner or such other Persons to pay money.
ARTICLE V.
INTEREST AND FEES
5.1. INTEREST ON THE LOANS AND OTHER OBLIGATIONS.
(a) Rate of Interest. All Loans and the outstanding principal
balance of all other Obligations shall bear interest on the unpaid principal
amount thereof from the Funding Date and such other Obligations are due and
payable until paid in full, except as otherwise provided in Section 5.1(d), as
follows:
(i) If a Base Rate Loan or such other Obligation, at
a rate per annum equal to the sum of (A) the Base Rate, as in
effect from time to time as interest accrues, plus (B) the then
Applicable Margin for Base Rate Loans; and
(ii) If a Eurodollar Rate Loan, at a rate per annum
equal to the sum of (A) the Eurodollar Rate determined for the
applicable Eurodollar Interest Period, plus (B) the then
Applicable Margin for Eurodollar Loans.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time the Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, the Borrower may not select the Eurodollar Rate as the
applicable basis for determining the rate of interest on such a Loan if at the
time of such selection an Event of Default has occurred and is continuing or if
Eurodollar Rate Loans are not available pursuant to Section 5.2(d) or (e). If on
any day any Loan is outstanding with respect to which notice has not been timely
delivered to the Administrative Agent in accordance with the terms of this
Agreement specifying the basis for determining the rate of interest on that day,
then for that day interest on that Loan shall be determined by reference to the
Base Rate.
-34-
(b) Interest Payments. (i) Interest accrued on each Loan, whether
a Base Rate Loan or a Eurodollar Loan shall be calculated on the last day of
each calendar month and shall be payable in arrears (A) on the first day of each
calendar month, commencing on the first such day following the Funding Date, (B)
upon the payment or prepayment thereof in full or in part, and (C) if not
theretofore paid in full, at maturity (whether by acceleration or otherwise) of
the Loan.
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and shall
be payable in arrears (A) on the first (1st) Business Day of each calendar
month, commencing on the first such day following the incurrence of such
Obligation, (B) upon repayment thereof in full or in part, and (C) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise).
(c) Conversion or Continuation. (i) The Borrower shall have the
option (A) to convert at any time all or any part of outstanding Base Rate Loans
to Eurodollar Rate Loans; (B) to convert all or any part of outstanding
Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the
same date to Base Rate Loans on such expiration date; or (C) to continue all or
any part of outstanding Eurodollar Rate Loans having Eurodollar Interest Periods
which expire on the same date as Eurodollar Rate Loans, and the succeeding
Eurodollar Interest Period of such continued Loans shall commence on such
expiration date; provided, however, no such outstanding Loan may be continued
as, or be converted into, a Eurodollar Rate Loan (i) if the continuation of, or
the conversion into, would violate any of the provisions of Section 5.2 or (ii)
if an Event of Default has occurred and is continuing. Any conversion into or
continuation of Eurodollar Rate Loans under this Section 5.1(c) shall be in a
minimum amount of $3,000,000 and in integral multiples of $500,000 in excess of
that amount, except in the case of a conversion into or a continuation of the
entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
Borrower shall deliver a Notice of Conversion/Continuation to the Administrative
Agent no later than 11:00 a.m. (New York time) at least three (3) Business Days
in advance of the proposed conversion/continuation date. A Notice of
Conversion/Continuation shall specify (A) the proposed conversion/continuation
date (which shall be a Business Day), (B) the principal amount of the Loan to be
converted/continued, (C) whether such Loan shall be converted and/or continued,
and (D) in the case of a conversion to, or continuation of, a Eurodollar Rate
Loan, the requested Eurodollar Interest Period. Promptly after receipt of a
Notice of Conversion/Continuation under this Section 5.1(c)(ii), the
Administrative Agent shall notify each Lender by facsimile transmission, or
other similar written form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for conversion
to, or continuation of, a Loan (or telephonic notice in lieu thereof) given
pursuant to this Section 5.1(c)(ii) shall be irrevocable, and the Borrower shall
be bound to convert or continue in accordance therewith. In the event no Notice
of Conversion/Continuation is delivered as and when specified in this Section
5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the
expiration of the Eurodollar Interest Period applicable thereto, such Loans
shall automatically be converted to a Base Rate Loan.
(d) Default Interest. Notwithstanding the rates of interest
specified in Section 5.1(a) or elsewhere in this Agreement, effective
immediately upon the occurrence of an Event of Default, and for as long
thereafter as such Event of Default shall be continuing, the principal balance
of the Loans and other Obligations shall bear interest at a rate equal to (A) in
the case of any Eurodollar Rate Loans outstanding as of the date of occurrence
of any Event of Default, the sum of (x) the applicable Eurodollar Rate, plus (y)
six percent (6.0%) per annum, and (B) in the case of any Base Rate Loan
(including any Eurodollar Loan that is converted to a Base Rate Loan at
maturity) the sum of (x) the Base Rate, as in effect from time to time as
interest accrues, plus (y) five percent (5.0%) per annum.
-35-
(e) Computation of Interest. Interest on all obligations shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the Funding Date or the first day of a Eurodollar Interest Period, as the
case may be, shall be included and the date of payment or the expiration date of
a Eurodollar Interest Period, as the case may be, shall be excluded.
(f) Eurodollar Rate Information. Upon the request of the Borrower,
the Administrative Agent shall promptly provide to the Borrower such information
with respect to the applicable Eurodollar Rate as may be so requested.
5.2. SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan
shall be in a minimum principal amount of $3,000,000 and in integral multiples
of $500,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving notice
as set forth in Section 5.1(c), the Borrower shall have the option, subject to
the other provisions of this Section 5.2, to select an interest period (each, a
"EURODOLLAR INTEREST PERIOD") to apply to the Loans described in such notice,
subject to the following provisions:
(i) The Borrower may only select a Eurodollar Interest Period
of one, two, or three months in duration;
(ii) In the case of immediately successive Eurodollar Interest
Periods, each successive Eurodollar Interest Period shall commence on
the day on which the next preceding Eurodollar Interest Period expires;
(iii) If any Eurodollar Interest Period would otherwise expire
on a day which is not a Business Day, such Eurodollar Interest Period
shall be extended to expire on the next succeeding Business Day if the
next succeeding Business Day occurs in the same calendar month, and if
there will be no succeeding Business Day in such calendar month, such
Eurodollar Interest Period shall expire on the immediately preceding
Business Day;
(iv) The Borrower may not select a Eurodollar Interest Period
as to any Loan if such Eurodollar Interest Period terminates later than
the Term Loan Maturity Date;
(v) The Borrower may not select a Eurodollar Interest Period
with respect to any portion of principal of a Loan which extends beyond
a date on which the Borrower is required to make a scheduled payment of
such portion of principal of which the Borrower is aware on the date of
such request, in the case of a payment pursuant to Section 4.1(c)
hereof; and
-36-
(vi) There shall be no more than five (5) Eurodollar Interest
Periods in effect at any time with respect to Eurodollar Rate Loans.
(c) Determination of Eurodollar Interest Rate. As soon as practicable
on the second Business Day prior to the first day of each Eurodollar Interest
Period (the "EURODOLLAR INTEREST RATE DETERMINATION DATE"), the Administrative
Agent shall determine (pursuant to the procedures set forth in the definition of
"Eurodollar Rate") the interest rate which shall apply to the Eurodollar Rate
Loans for which an interest rate is then being determined for the applicable
Eurodollar Interest Period and shall promptly give notice thereof (in writing or
by telephone or by facsimile confirmed in writing) to the Borrower and to each
Lender. The Administrative Agent's determination shall be presumed to be
correct, absent manifest error, and shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the event
that at least one (1) Business Day before any Eurodollar Interest Rate
Determination Date:
(i) the Administrative Agent is advised by the Reference Bank
that deposits in Dollars (in the applicable amounts) are not being
offered by the Reference Bank in the London interbank market for such
Eurodollar Interest Period;
(ii) the Administrative Agent determines that adequate and
fair means do not exist for ascertaining the applicable interest rates
by reference to which the Eurodollar Rate then being determined is to
be fixed; or
(iii) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate for Eurodollar Rate Loans to be continued or
converted will not adequately reflect the cost to such Requisite
Lenders of obtaining funds in Dollars in the London interbank market in
an amount substantially equal to such Lenders' Eurodollar Rate Loans in
Dollars and for a period equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon (until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist)
the right of the Borrower to elect to have Loans bear interest based upon the
Eurodollar Rate shall be suspended and each outstanding Eurodollar Rate Loan
shall be converted into a Base Rate Loan on the last day of the then current
Eurodollar Interest Period therefor, notwithstanding any prior election by the
Borrower to the contrary.
(e) Illegality. (i) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurodollar Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Governmental Authority (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful or would result in costs or penalties), then, and in any such event,
such Lender may give notice of that determination, in writing, to the Borrower
and the Administrative Agent, and the Administrative Agent shall promptly
transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i),
(A) the Borrower's right to request from such Lender and such Lender's
obligation, if any, to make Eurodollar Rate Loans to the Borrower shall
be immediately suspended, and (B) if the affected Eurodollar Rate Loan
or Loans are then outstanding, the Borrower shall immediately, or if
permitted by applicable law, no later than the date permitted thereby,
upon at least one (1) Business Day's prior written notice to the
Administrative Agent and the affected Lender, convert each such Loan
into a Base Rate Loan.
-37-
(iii) If at any time after a Lender gives notice under Section
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar
Rate Loans, such Lender shall promptly give notice of that
determination, in writing, to the Borrower and the Administrative
Agent, and the Administrative Agent shall promptly transmit the notice
to each other Lender. The Borrower's right to request, and such
Lender's obligation, if any, to make Eurodollar Rate Loans to the
Borrower shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be paid by the
Borrower pursuant to Section 5.1 and Article XIII, the Borrower shall compensate
each Lender, upon demand, for all losses, expenses and liabilities (including,
without limitation, any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain such Lender's Eurodollar Rate Loans or to the Borrower, but excluding
any loss of Applicable Margin on the relevant Loans) which that Lender may
sustain (i) if for any reason a conversion into or continuation of Eurodollar
Rate Loans does not occur on a date specified therefor in a Notice of
Conversion/Continuation given by the Borrower or in a telephonic request by it
for conversion/continuation or a successive Eurodollar Interest Period does not
commence after notice therefor is given pursuant to Section 5.1(c), other than
pursuant to Sections 5.2(d) or (e), or (ii) if for any reason any Eurodollar
Rate Loan is prepaid (other than pursuant to Section 5.2(d) or (e)) or converted
on a date which is not the last day of the applicable Eurodollar Interest Period
or (iii) as a consequence of any failure by the Borrower to repay a Eurodollar
Rate Loan when required by the terms of this Agreement. The Lender making demand
for such compensation shall deliver to the Borrower concurrently with such
demand a written statement in reasonable detail as to such losses, expenses and
liabilities, and this statement shall be conclusive as to the amount of
compensation due to that Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of, its Eurodollar
Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No
Lender shall be entitled, however, to receive any greater amount under Sections
4.2 or 5.2(f) or Article XIII as a result of the transfer of any such Eurodollar
Rate Loan to any office (other than such Eurodollar Lending Office) or any
Affiliate (other than such Eurodollar Affiliate) than such Lender would have
been entitled to receive immediately prior thereto, unless (i) the transfer
occurred at a time when circumstances giving rise to the claim for such greater
amount did not exist and (ii) such claim would have arisen even if such transfer
had not occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take into
account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by such Lender of its right to collect such amount for any
future period.
-38-
(j) Application of Mandatory Prepayments. The principal amount of any
mandatory prepayment pursuant to Section 4.1(c) hereof, shall be applied, first,
to the outstanding Base Rate Loans and then, to the outstanding Eurodollar Rate
Loans. Unless the Borrower otherwise pays breakage costs in accordance with
Section 5.2(f), the Administrative Agent shall hold such principal amounts
allocated for prepayment of Eurodollar Rate Loans until the end of the
applicable Eurodollar Interest Periods) and, during the interim period, shall
invest said sums in Cash Equivalents. Interest earned thereon shall be forwarded
to the Borrower upon the payment of the Eurodollar Rate Loans at the end of said
Eurodollar Interest Period. Interest shall continue to accrue on the principal
amount of such Eurodollar Rate Loans until so paid.
ARTICLE VI.
CONDITIONS TO LOANS
6.1. CONDITIONS PRECEDENT TO THE LOANS. The obligation of each Lender
on the Funding Date to make the Term Loan requested to be made by it shall be
subject to the satisfaction of all of the following conditions precedent:
(a) Documents. The Administrative Agent shall have received on or
before the Funding Date all of the following:
(i) this Agreement, the Notes, and, to the extent not
otherwise specifically referenced in this Section 6.1(a), all other
Loan Documents and agreements, documents and instruments described in
the List of Closing Documents attached hereto as EXHIBIT E and made a
part hereof, each duly executed, and in form and substance satisfactory
to the Agents; without limiting the foregoing, the Borrower hereby
directs its counsel, Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx LLP to
prepare and deliver to the Agents, the Lenders, and Xxxxxxx XxXxxxxxx
LLP the legal opinions referred to in such List of Closing Documents;
and
(ii) such additional documentation as the Agents may
reasonably request.
(b) No Legal Impediments. No law, regulation, order, judgment or decree
of any Governmental Authority shall, and the Administrative Agent shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the Term Loan on the Funding Date
or (ii) impose or result in the imposition of a Material Adverse Effect.
(c) No Change in Condition. No change in the business, assets,
management, operations, financial condition or prospects of the Borrower or any
of its Properties shall have occurred since September 30, 2005 which change, in
the judgment of the Administrative Agent, will have a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the Arranger
and the Lenders, or as permitted under the Existing Revolving Credit Agreement
(including as set forth on Schedule 6.1(d) thereto), since September 30, 2005,
neither the Borrower nor the Company shall have (i) entered into any (as
determined in good faith by the Administrative Agent) commitment or transaction,
including, without limitation, transactions for borrowings and capital
expenditures, which are not in the ordinary course of the Borrower's business,
(ii) declared or paid any dividends or other distributions other than in the
ordinary course of business, (iii) established compensation or employee benefit
plans, or (iv) redeemed or issued any equity Securities.
-39-
(e) No Loss of Material Agreements and Licenses. Since September 30,
2005, no agreement or license relating to the business, operations or employee
relations of the Borrower or any of its Real Properties shall have been
terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent, would result in a Material
Adverse Effect.
(f) No Market Changes. Since the Closing Date no material adverse
change shall have occurred in the conditions in the capital markets.
(g) No Default. No Event of Default or Potential Event of Default shall
have occurred and be continuing or would result from the making of the Loans.
(h) Representations and Warranties. As of the Funding Date, both before
and after giving effect to the Loans, all of the representations and warranties
of the Borrower contained in Sections 7.1, 9.12(b) and 9.14 and all of the
representations of the Borrower and the Guarantors in any other Loan Document
(other than representations and warranties which expressly speak as of a
different date) shall be true and correct in all material respects.
(i) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the accounts of the Agents and the Lenders, as
applicable, all fees due and payable on or before the Funding Date and all
expenses due and payable on or before the Funding Date, including, without
limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
(j) No Legal Impediments. No law, regulation, order, judgment or decree
of any Governmental Authority shall, and the Administrative Agent shall not have
received from such Lender notice that, in the reasonable judgment of such
Lender, litigation is pending or threatened which is likely to, enjoin, prohibit
or restrain such Lender's making of the Loan.
(k) Acquisition. The Administrative Agent shall receive evidence
satisfactory to it of the closing of the Acquisition substantially concurrently
with the funding of the Term Loan on the Closing Date.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
7.1. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. In order to induce
the Lenders to enter into this Agreement and to make the Loans and the other
financial accommodations to the Borrower described herein, the Borrower hereby
represents and warrants to each Lender that the following statements are true,
correct and complete:
(a) Organization; Powers. (i) The Borrower (A) is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, (B) is duly qualified to do business and is in good
standing under the laws of each jurisdiction in which failure to be so qualified
and in good standing will have a Material Adverse Effect, (C) has all requisite
power and authority to own, operate and encumber its Property and to conduct its
business as presently conducted and as proposed to be conducted in connection
with and following the consummation of the transactions contemplated by this
Agreement, and (D) is a partnership for federal income tax purposes.
-40-
(ii) The Company (A) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland, (B) is
duly authorized and qualified to do business and is in good standing under the
laws of each jurisdiction in which failure to be so qualified and in good
standing will have a Material Adverse Effect, and (C) has all requisite
corporate power and authority to own, operate and encumber its Property and to
conduct its business as presently conducted.
(iii) True, correct and complete copies of the Organizational
Documents of the Borrower and the Company identified on SCHEDULE 7.1-A have been
delivered to Administrative Agent, each of which is in full force and effect,
has not been modified or amended except to the extent set forth or indicated
therein or as otherwise permitted hereby and, to the best of the Borrower's
knowledge, there are no defaults under such Organizational Documents and no
events which, with the passage of time or giving of notice or both, would
constitute a default under such Organizational Documents. Borrower shall update
SCHEDULE 7.1-A from time to time in order to keep said Schedule true and
correct.
(iv) Neither the Borrower nor the Company is a "foreign
person" within the meaning of Section 1445 of the Internal Revenue Code.
(b) Authority. (i) The Company has the requisite power and
authority to execute and deliver this Agreement on behalf of the Borrower and
each of the other Loan Documents which are required to be executed on behalf of
the Borrower as required by this Agreement. The Company is the Person who has
executed this Agreement and such other Loan Documents on behalf of the Borrower
and is the sole general partner of the Borrower.
(ii) The execution, delivery and performance of each of the
Loan Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership powers,
have been duly authorized by all necessary partnership action (and, in the case
of the Company acting on behalf of the Borrower in connection therewith, all
necessary corporate action of the Company) and such authorization has not been
rescinded. No other partnership or corporate action or proceedings on the part
of the Borrower or the Company is necessary to consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower is a
party has been duly executed and delivered on behalf of the Borrower and
constitutes the Borrower's legal, valid and binding obligation, enforceable
against the Borrower in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally or by general principles of equity
regardless of whether enforcement is considered in a proceeding at law or in
equity. Each of the Loan Documents to which Borrower is a party is in full force
and effect and all the terms, provisions, agreements and conditions set forth
therein and required to be performed or complied with by the Company, the
Borrower and the Borrower's Subsidiaries on or before the Funding Date have been
performed or complied with, and no Potential Event of Default or Event of
Default exists.
-41-
(c) Subsidiaries; Ownership of Capital Stock and Partnership
Interests. (i) SCHEDULE 7.1-C (A) contains a diagram indicating the corporate
structure of the Company, the Borrower and any other Person in which the Company
or the Borrower holds a direct or indirect partnership, joint venture or other
equity interest indicating the nature of such interest with respect to each
Person included in such diagram; and (B) accurately sets forth (1) the correct
legal name of such Person, the jurisdiction of its incorporation or organization
and the jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding shares
or interests of each class of equity Securities of the Company, the Borrower and
the Subsidiaries of the Borrower, and (3) the ownership interest of the
Borrower, the Company and the Subsidiaries of the Borrower in all Joint
Ventures. None of such issued and outstanding Securities is subject to any
vesting, redemption, or repurchase agreement, and there are no warrants or
options (other than Permitted Securities options) outstanding with respect to
such Securities, except as noted on SCHEDULE 7.1-C. The outstanding Capital
Stock of the Company is duly authorized, validly issued, fully paid and
nonassessable and the outstanding Securities of the Borrower and its
Subsidiaries are duly authorized and validly issued. Attached hereto as part of
SCHEDULE 7.1-C is a true, accurate and complete copy of the Borrower Partnership
Agreement as in effect on the Closing Date and the Borrower Partnership
Agreement has not been amended, supplemented, replaced, restated or otherwise
modified in any respect since the Closing Date, except as otherwise permitted
hereby. Borrower shall update SCHEDULE 7.1-C as of the first day of each fiscal
quarter, and shall deliver the same together with the Quarterly Compliance
Certificates, to the extent required, in order to keep said Schedule true and
correct.
(ii) Except where failure would not have a Material Adverse
Effect, each of the Subsidiaries of the Borrower: (A) is a corporation, limited
liability company or partnership, as indicated on SCHEDULE 7.1-C, duly organized
or formed, validly existing and, if applicable, in good standing under the laws
of the jurisdiction of its organization, (B) is duly qualified to do business
and, if applicable, is in good standing under the laws of each jurisdiction in
which failure to be so qualified and in good standing would have a Material
Adverse Effect, and (C) has all requisite power and authority to own, operate
and encumber its Property and to conduct its business as presently conducted and
as proposed to be conducted hereafter.
(iii) As to each Guarantor, a provision similar, as applicable
to (a), (b) and (c) above shall be included in each such Subsidiary's Guaranty,
and the Borrower shall be deemed to make for itself and on behalf of such
Subsidiary a representation as to such provisions.
(d) No Conflict. The execution, delivery and performance of each
of the Loan Documents to which the Borrower, the Company or any Guarantor is a
party, and the consummation of the transactions expressly contemplated thereby
respectively, do not and will not (i) conflict with the Organizational Documents
of the Borrower, the Company or any Guarantor, (ii) conflict with, result in a
breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law or material Contractual Obligation of the
Borrower, the Company or any Guarantor, or require termination of any such
material Contractual Obligation which would subject the Administrative Agent or
any of the other Lenders to any liability, (iii) result in or require the
creation or imposition of any Lien whatsoever upon any of the Property or assets
of the Borrower, the Company or any Guarantor, or (iv) require any approval of
shareholders of the Company (other than such approvals that have been obtained
and are in full force and effect).
-42-
(e) Governmental Consents. The execution, delivery and performance
of each of the Loan Documents to which the Borrower, the Company or any
Guarantor is a party and the consummation of the transactions expressly
contemplated thereby do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by any Governmental
Authority, except filings, consents or notices which have been made, obtained or
given.
(f) Governmental Regulation. None of the Borrower, the Company or
the Guarantors is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness as contemplated by
this Agreement.
(g) Financial Position. Complete and accurate copies of the
following financial statements and materials have been delivered to the
Administrative Agent: annual unaudited financial statements of the Borrower,
annual audited financial statements of the Company for the fiscal year ended
December 31, 2004 and unaudited financial statements of the Company for the
fiscal quarter ended September 30, 2005. All annual financial statements of the
Borrower shall be accompanied by an Officer's Certificate of the Borrower, and
shall be certified by the Chief Financial Officer of the Borrower as fairly
presenting in all material respects the financial position of the Borrower. All
financial statements included in such materials were prepared in all material
respects in conformity with GAAP, except as otherwise noted therein, and fairly
present in all material respects the respective consolidated financial positions
as of the date referred to therein, and the consolidated results of operations
and cash flows for each of the periods covered thereby of the Borrower and the
Company. Neither the Borrower nor the Company has any Contingent Obligation,
contingent liability or liability for any taxes, long-term leases or commitments
not reflected in its financial statements delivered to the Administrative Agent
on or prior to the Closing Date or otherwise disclosed to the Administrative
Agent and the Lenders in writing on or prior to the Closing Date, which will
have a Material Adverse Effect.
(h) Indebtedness. SCHEDULE 7.1-H sets forth, as of September 30,
2005, all Indebtedness for borrowed money of each of the Borrower, the Company
and their respective Subsidiaries and, except as set forth on SCHEDULE 7.1-H,
there are no defaults in the payment of principal of or interest on any such
Indebtedness and no payments thereunder have been deferred or extended beyond
their stated maturity and there has been no material change in the type or
amount of such Indebtedness (except for the repayment of certain Indebtedness)
since September 30, 2005.
(i) Litigation; Adverse Effects. Except as set forth in SCHEDULE
7.1-I, as of the Closing Date, there is no action, suit, proceeding,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Company, the Borrower or any of their respective Subsidiaries, or any Property
of any of them (i) challenging the validity or the enforceability of any of the
Loan Documents, (ii) which is reasonably likely to result in any Material
Adverse Effect, or (iii) under the Racketeering Influenced and Corrupt
Organizations Act or any similar federal or state statute where such Person is a
defendant in a criminal indictment that provides for the forfeiture of assets to
any Governmental Authority as a potential criminal penalty. There is no material
loss contingency within the meaning of GAAP which has not been reflected in the
consolidated financial statements of the Company and the Borrower. None of the
Company, the Borrower or any Subsidiary of the Borrower is (A) in violation of
any applicable Requirements of Law which violation will have or is reasonably
likely to have a Material Adverse Effect, or (B) in default with respect to any
final judgment, writ, injunction, restraining order or order of any nature,
decree, rule or regulation of any court or Governmental Authority which will
have a Material Adverse Effect.
-43-
(j) No Material Adverse Effect. Since September 30, 2005, there
has occurred no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
(l) Payment of Taxes. All material tax returns, reports and
similar statements or filings of the Company, the Borrower and their respective
Subsidiaries required to be filed have been timely filed (or extensions to file
have been obtained), and, except for Customary Permitted Liens, all material
taxes, assessments, fees and other charges of Governmental Authorities thereupon
and upon or relating to their respective Properties, assets, receipts, sales,
use, payroll, employment, income, licenses and franchises which are shown in
such returns or reports to be due and payable have been paid, except to the
extent (i) such taxes, assessments, fees and other charges of Governmental
Authorities are being contested in good faith by an appropriate proceeding
diligently pursued as permitted by the terms of Section 9.4 and (ii) such taxes,
assessments, fees and other charges of Governmental Authorities pertain to
Property of the Borrower or any of its Subsidiaries and the non-payment of the
amounts thereof would not, individually or in the aggregate, result in a
Material Adverse Effect. All other material taxes (including, without
limitation, real estate taxes), assessments, fees and other governmental charges
upon or relating to the respective Properties of the Borrower and its
Subsidiaries which are due and payable have been paid, except for Customary
Permitted Liens and except to the extent described in clauses (i) and (ii)
hereinabove. The Borrower has no knowledge of any proposed tax assessment
against the Borrower, any of its Subsidiaries, or any of the Projects that will
have or is reasonably likely to have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower, neither the
Company, the Borrower nor any of their Subsidiaries has received any written
notice or citation, nor has actual knowledge, that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any
condition exists which, with the giving of notice or the lapse of time or both,
would constitute a default with respect to any such Contractual Obligation; in
each case, except where such default or defaults, if any, will not have a
Material Adverse Effect.
(n) Disclosure. The representations and warranties of the Borrower
and the Guarantors contained in the Loan Documents, and all certificates and
other documents delivered to the Administrative Agent or any Lender pursuant to
the terms thereof, do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, taken as a whole, not misleading. Notwithstanding the foregoing, the
Lenders acknowledge that the Borrower shall not have liability under this clause
(n) with respect to its projections of future events or for any financial
projections.
(o) Requirements of Law. Each of the Borrower and each of its
Subsidiaries is in compliance with all Requirements of Law applicable to it and
its respective businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have a Material Adverse Effect.
-44-
(p) Environmental Matters.
(i) Except as disclosed on SCHEDULE 7.1-P (the Borrower shall
update SCHEDULE 7.1-P as of the first day of each fiscal quarter, and deliver
the same together with the Quarterly Compliance Certificates, to the extent
required, in order to keep said Schedule true and correct):
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply with all
applicable Environmental, Health or Safety Requirements of
Law, except to the extent any failure to do so would not have
a Material Adverse Effect;
(B) the Borrower and each of its Subsidiaries have
obtained all material environmental, health and safety Permits
necessary for their respective operations, and all such
Permits are in good standing and the holder of each such
Permit is currently in compliance with all terms and
conditions of such Permits, except to the extent any failure
to do so would not have a Material Adverse Effect;
(C) to the knowledge of the Borrower, none of the
Borrower, its Subsidiaries or any of their respective present
or past Properties or operations are subject to or are the
subject of any investigation of any Governmental Authority,
judicial or administrative proceeding, order, judgment or
decree, negotiations, agreement or settlement respecting (I)
any Remedial Action, (II) any Claims or Liabilities and Costs
arising from the Release or threatened Release of a
Contaminant into the environment, or (III) any violation of or
liability under any Environmental, Health or Safety
Requirement of Law, except to the extent none of the foregoing
would have a Material Adverse Effect;
(D) none of Borrower or any of its Subsidiaries has
filed any notice under any applicable Requirement of Law (I)
reporting a Release of a Contaminant; (II) indicating past or
present treatment, storage or disposal of a hazardous waste,
as that term is defined under 40 C.F.R. Part 261 or any state
equivalent; or (III) reporting a violation of any applicable
Environmental, Health or Safety Requirement of Law with
respect to any of the foregoing, the substance of which would
have a Material Adverse Effect;
(E) none of the Borrower's or any of its
Subsidiaries' present or past Property is listed or, to the
knowledge of the Borrower, proposed for listing on the
National Priorities List ("NPL") pursuant to CERCLA or on the
Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or any similar state list
of sites requiring Remedial Action;
(F) to the knowledge of the Borrower, none of the
Borrower or any of its Subsidiaries has sent or directly
arranged for the transport of any waste to any site listed or
proposed for listing on the NPL, CERCLIS or any similar state
list;
-45-
(G) to the best of the Borrower's knowledge, there is
not now, and to the Borrower's knowledge there has never been,
on or in any Project (I) any treatment, recycling, storage
away from the site of generation or disposal of any hazardous
waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent, (II) any solid waste management facility,
(III) any underground storage tanks the presence or use of
which is in violation of applicable Environmental, Health or
Safety Requirements of Law, (IV) any asbestos-containing
material which, in its present state, such Person has any
reason to believe could subject such Person or its Property to
Liabilities and Costs arising out of or relating to
environmental, health or safety matters that would result in a
Material Adverse Effect; or (V) any polychlorinated biphenyls
(PCB) used in hydraulic oils, electrical transformers or other
Equipment, which, in any such case, would subject the Borrower
or its Subsidiaries or their respective Properties to
Liabilities and Costs arising out of or relating to
environmental, health or safety matters that would result in a
Material Adverse Effect;
(H) to the knowledge of the Borrower, none of the
Borrower or any of its Subsidiaries has received any notice or
Claim to the effect that any of such Persons is or may be
liable to any Person as a result of the Release or threatened
Release of a Contaminant into the environment which would
result in a Material Adverse Effect;
(I) none of the Borrower or any of its Subsidiaries
has any contingent liability in connection with any Release or
threatened Release of any Contaminants into the environment
which will result in a Material Adverse Effect;
(J) no Environmental Lien has attached to any
Property of the Borrower or any of its Subsidiaries (other
than those otherwise permitted hereunder) or which do not
constitute an Event of Default; and
(K) no Property of the Borrower or any of its
Subsidiaries is subject to any Environmental Property Transfer
Act, or to the extent such acts are applicable to any such
Property, the Borrower and/or such Subsidiary whose Property
is subject thereto has complied in all material respects with
the requirements of such acts.
(q) ERISA. As of the date hereof, neither the Borrower nor any
ERISA Affiliate maintains or contributes to any Benefit Plan or Multiemployer
Plan other than those listed on SCHEDULE 7.1-Q hereto. Each Plan which is
intended to be qualified under Section 401(a) of the Internal Revenue Code as
currently in effect has been determined by the IRS to be so qualified, and each
trust related to any such Plan has been determined to be exempt from federal
income tax under Section 501(a) of the Internal Revenue Code as currently in
effect. Except as disclosed in SCHEDULE 7.1-Q, neither the Borrower nor any of
its Subsidiaries maintains or contributes to any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA that provides benefits to employees
after termination of employment other than as required by Section 601 of ERISA.
The Borrower and each of its Subsidiaries is in compliance in all material
respects with the responsibilities, obligations and duties imposed on it by
ERISA, the Internal Revenue Code and regulations promulgated thereunder with
respect to all Plans. No Benefit Plan has incurred any accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412 (a) of the
Internal Revenue Code) whether or not waived. Neither the Borrower nor any ERISA
Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i)
has engaged in a nonexempt prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code or (ii) has taken or failed to take
any action which would constitute or result in an ERISA Termination Event.
Neither the Borrower nor any ERISA Affiliate is subject to any liability under
Sections 4063, 4064, or 4204 of ERISA which would have a Material Adverse
Effect. Neither the Borrower nor any ERISA Affiliate is subject to any liability
under Sections 4069 or 4212 (c) of ERISA or has incurred any liability to the
PBGC which remains outstanding other than the payment of premiums, and there are
no premium payments which have become due which are unpaid. Schedule B to the
most recent annual report filed with the IRS with respect to each Benefit Plan
has been furnished to the Administrative Agent and is complete and accurate in
all material respects. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the
Benefit Plan relating to such Schedule B. Neither the Borrower nor any ERISA
Affiliate has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan which would have a Material
Adverse Effect. Neither the Borrower, nor any ERISA Affiliate has failed to make
a required installment or any other required payment under Section 412 of the
Internal Revenue Code on or before the due date for such installment or other
payment. Neither the Borrower nor any ERISA Affiliate is required to provide
security to a Benefit Plan under Section 401(a)(29) of the Internal Revenue Code
due to a Benefit Plan amendment that results in an increase in current liability
for the plan year. Except as disclosed on SCHEDULE 7.1-Q, which shall be updated
by Borrower as of the first day of each fiscal quarter, to the extent required,
neither the Borrower nor any of its Subsidiaries has, by reason of the
transactions contemplated hereby, any obligation to make any payment to any
employee pursuant to any Plan or existing contract or arrangement.
-46-
(r) Securities Activities. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock except as described on SCHEDULE 7.L-R.
(s) Solvency. After giving effect to the Term Loans to be made on
the Funding Date, the Acquisition, and the disbursement of the proceeds of such
Term Loan pursuant to the Borrower's instructions, each of the Borrower and each
Guarantor is Solvent.
(t) Insurance. SCHEDULE 7.1-T accurately sets forth as of the
Closing Date all insurance policies and programs currently in effect with
respect to the respective Property and assets and business of the Borrower and
its Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. The Borrower has delivered
to the Administrative Agent certificates of insurance or other satisfactory
evidence of all insurance policies set forth on SCHEDULE 7.1-T. Such insurance
policies and programs or their replacements obtained in compliance with Section
9.5 are currently in full force and effect, in compliance with the requirements
of Section 9.5 hereof and provide coverage against such casualties and
contingencies as are commercially reasonable and in accordance with the
customary and general practices of businesses having similar operations and real
estate portfolios in similar geographic areas and are in amounts, containing
such terms, in such forms and for such periods as are reasonable and prudent for
such businesses. Borrower shall update SCHEDULE 7.1-T, to the extent required,
in order to keep said Schedule true and correct.
-47-
(u) REIT Status. The Company qualifies as a REIT under the
Internal Revenue Code.
(v) Ownership of Projects, Joint Ventures and Property. Ownership
of all wholly owned Projects, Joint Ventures and other Property of the
Consolidated Businesses is held by the Borrower and its Subsidiaries and is not
held directly by the Company.
(w) Title to Properties. The Borrower, the Guarantors and their
respective Subsidiaries that own Real Property each has good title to all of its
respective Real Property purported to be owned by it, including, without
limitation, that:
(a) Either (i) the Borrower or (ii) a Guarantor is the owner
of or the holder of a fee or ground leasehold interest (under an Eligible Ground
Lease) in the Unencumbered Projects and Unencumbered New York City Assets which
are wholly-owned or ground-leased by the Borrower and the Consolidated
Businesses, free from any Lien, except for Customary Permitted Liens, or
preferred equity interest.
(b) The Company, the Borrower and their Consolidated
Subsidiaries will, as of the Closing Date, own all of the assets as reflected in
the financial statements of the Borrower and the Company described in Section
7.1(g) or acquired since the date of such financial statements (except property
and assets sold or otherwise disposed of in the ordinary course of business
since that date).
ARTICLE VIII.
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Term Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to Section 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent thereto:
8.1. BORROWER ACCOUNTING PRACTICES. The Borrower shall maintain, and
cause each of its consolidated Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in conformity with GAAP.
8.2. FINANCIAL REPORTS. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders):
(a) Quarterly Reports.
(i) Borrower Quarterly Financial Reports. As soon as practicable,
and in any event within forty-five (45) days after the end of each
fiscal quarter in each Fiscal Year (other than the last fiscal quarter
in each Fiscal Year), a consolidated balance sheet of the Borrower and
the related consolidated statements of income and cash flow of the
Borrower (to be prepared and delivered quarterly in conjunction with
the other reports delivered hereunder at the end of each fiscal
quarter) for each such fiscal quarter, and, in comparative form, the
corresponding figures for the corresponding dates and periods of the
previous Fiscal Year, certified by an Authorized Financial Officer of
the Borrower as fairly presenting in all material respects the
consolidated financial position of the Borrower as of the dates
indicated and the consolidated results of its operations and cash flow
for the months indicated in accordance with GAAP, subject to normal
adjustments.
-48-
(ii) Company Quarterly Financial Reports. As soon as practicable,
and in any event within forty-five (45) days after the end of each
fiscal quarter in each Fiscal Year (other than the last fiscal quarter
in each Fiscal Year), the Financial Statements of the Company and its
consolidated Subsidiaries on Form 10-Q as at the end of such period and
a report setting forth in comparative form the corresponding figures
for the corresponding dates and period of the previous Fiscal Year,
certified by an Authorized Financial Officer of the Company as fairly
presenting in all material respects the consolidated financial position
of the Company and its consolidated Subsidiaries as at the date
indicated and the consolidated results of their operations and cash
flow for the period indicated in accordance with GAAP, subject to
normal adjustments.
(iii) Quarterly Compliance Certificates. Together with each
delivery of any quarterly report pursuant to paragraph (a)(i) of this
Section 8.2, Officer's Certificates of the Borrower and the Company in
the form of EXHIBIT F hereto (the "QUARTERLY COMPLIANCE CERTIFICATES"),
signed by the Borrower's and the Company's respective Authorized
Financial Officers representing and certifying (1) that the Authorized
Financial Officer signatory thereto has reviewed the terms of the Loan
Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the consolidated
financial condition of the Company and its Consolidated Subsidiaries,
for the fiscal quarter covered by such reports, that such review has
not disclosed the existence during or at the end of such fiscal
quarter, and that such officer does not have knowledge of the existence
as at the date of such Officer's Certificate, of an Event of Default or
Potential Event of Default or mandatory prepayment event, or, if any
such condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower or
any of their Subsidiaries has taken, is taking and proposes to take
with respect thereto; (2) the calculations in the form of EXHIBIT G
hereto for the period then ended which demonstrate whether there has
been compliance with the covenants and financial ratios set forth in
Sections 9.9, 9.11, 10.2, 10.6, 10.7, 10.11, and 10.12 hereof and, when
applicable, that no Event of Default described in Section 11.1 exists,
(3) a schedule of the Borrower's outstanding Indebtedness, including
the amount, maturity, interest rate and amortization requirements, as
well as such other information regarding such Indebtedness as may be
reasonably requested by the Administrative Agent, (4) a schedule of
Total Adjusted EBITDA, and (5) a schedule of Adjusted Unencumbered NOI.
(b) Annual Reports.
(i) Borrower Financial Statements. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year,
the Financial Statements of the Borrower and its Subsidiaries as at the
end of such Fiscal Year, accompanied by an Officer's Certificate of the
Borrower, signed by the Chief Financial Officer of the Borrower, that
such Financial Statements fairly present in all material respects the
consolidated financial position of the Borrower and its Subsidiaries as
of the dates indicated and the results of their operations and cash
flow for the periods indicated in conformity with GAAP consistently
applied, and which Officer's Certificate shall explain any
inconsistencies between the Financial Statements of the Borrower and
the Financial Statements of the Company.
-49-
(ii) Company Financial Statements. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year,
(i) the Financial Statements of the Company and its consolidated
Subsidiaries on Form 10-K as at the end of such Fiscal Year and a
report setting forth in comparative form the corresponding figures from
the consolidated Financial Statements of the Company and its
Subsidiaries as of the end of and for the prior Fiscal Year; (ii) a
report with respect thereto of Ernst & Young LLP or other independent
certified public accountants acceptable to the Administrative Agent (it
being understood that any "Big Four" certified public accountants are
acceptable to the Administrative Agent), which report shall be
unqualified and shall state that such financial statements fairly
present the consolidated financial position of the Company and its
consolidated Subsidiaries as at the dates indicated and the results of
their operations and cash flow for the periods indicated in conformity
with GAAP (except for changes with which Ernst & Young LLP or any such
other independent certified public accountants, if applicable, shall
concur and which shall have been disclosed in the notes to the
financial statements) (which report shall be subject to the
confidentiality limitations set forth herein); and (iii) in the event
that the report referred to in clause (ii) above is qualified, a copy
of the management letter or any similar report delivered to the Company
or to any officer or employee thereof by such independent certified
public accountants in connection with such financial statements. The
Administrative Agent and each Lender (through the Administrative Agent)
may, with the consent of the Company (which consent shall not be
unreasonably withheld), communicate directly with such accountants,
with any such communication to occur together with a representative of
the Company, at the expense of the Administrative Agent (or the Lender
requesting such communication), upon reasonable notice and at
reasonable times during normal business hours.
(iii) Annual Compliance Certificates. Together with each delivery
of any annual report pursuant to clauses (i) and (ii) of this Section
8.2(b), Officer's Certificates of the Borrower and the Company in the
form of EXHIBIT F hereto (the "ANNUAL COMPLIANCE CERTIFICATES" and,
collectively with the Quarterly Compliance Certificates, the
"COMPLIANCE CERTIFICATES"), signed by the Borrower's and the Company's
respective Authorized Financial Officers, representing and certifying
(1) that the officer signatory thereto has reviewed the terms of the
Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the consolidated
financial condition of the Company and its consolidated Subsidiaries,
for the accounting period covered by such reports, that such review has
not disclosed the existence at the end of such accounting period, and
that such officer does not have knowledge of the existence as at the
date of such Officer's Certificate, of an Event of Default or Potential
Event of Default or mandatory prepayment event, or, if any such
condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower or
any of their Subsidiaries has taken, is taking and proposes to take
with respect thereto; (2) the calculations in the form of EXHIBIT G
hereto for the period then ended which demonstrate whether there has
been compliance with the covenants and financial ratios set forth in
Sections 9.9, 9.11, 10.2, 10.6, 10.7, 10.11, and 10.12 hereof and, when
applicable, that no Event of Default described in Section 11.1 exists,
(3) a schedule of the Borrower's outstanding Indebtedness including the
amount, maturity, interest rate and amortization requirements, as well
as such other information regarding such Indebtedness as may be
reasonably requested by the Administrative Agent, (4) a schedule of
Total Adjusted EBITDA and (5) a schedule of Adjusted Unencumbered NOI.
-50-
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in any
event within ninety (90) days after the end of each Fiscal Year, a
written report, in form reasonably satisfactory to the Administrative
Agent, of all bankruptcy proceedings filed by or against any tenant of
any of the Projects, which tenant occupies three and one half percent
(3.5%) or more of the gross leasable area in the Projects in the
aggregate. The Borrower shall deliver to the Administrative Agent and
the Lenders, immediately upon the Borrower's learning thereof, of any
bankruptcy proceedings filed by or against, or the cessation of
business or operations of, any tenant of any of the Projects which
tenant occupies three and one half percent (3.5%) or more of the gross
leasable area in the Projects in the aggregate.
(v) Update of Schedule 7.1-C. As soon as practicable, and in any
event within ninety (90) days after the end of each Fiscal Year, the
Borrower shall deliver an update of Schedule 7.1-C.
8.3. EVENTS OF DEFAULT. Promptly upon the Borrower obtaining knowledge
(a) of any condition or event which constitutes an Event of Default or Potential
Event of Default; (b) that any Person has given any notice to the Borrower or
any Subsidiary of the Borrower or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section
11.1(e); or (c) of any condition or event which has a Material Adverse Effect,
the Borrower shall deliver to the Administrative Agent (with copies for each of
the Lenders) an Officer's Certificate specifying (i) the nature and period of
existence of any such claimed default, Event of Default, Potential Event of
Default, condition or event, (ii) the notice given or action taken by such
Person in connection therewith, and (iii) what action the Borrower has taken, is
taking and proposes to take with respect thereto.
8.4. LAWSUITS. (i) Promptly upon the Borrower's obtaining knowledge of
the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries not previously disclosed pursuant to Section 7.1(i),
which action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general allegations or
circumstances which expose, in the Borrower's reasonable judgment, the Borrower
or any of its Subsidiaries to liability in an amount aggregating $1,000,000 or
more and is not covered by the Borrower's or such Subsidiary's insurance, the
Borrower shall give written notice thereof to the Administrative Agent (with
copies for each of the Lenders) and provide such other information as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; (ii) as soon as practicable and in any event
within forty-five (45) days after the end of each fiscal quarter of the
Borrower, the Borrower shall provide a written quarterly report to the
Administrative Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration in an amount equal to or in excess of $50,000,000 (to the extent not
previously reported) against or affecting the Borrower or any of its
Subsidiaries or any Property of the Borrower or any of its Subsidiaries not
previously disclosed by the Borrower to the Administrative Agent and the
Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (iii) in addition to the requirements set
forth in clauses (i) and (ii) of this Section 8.4, the Borrower upon request of
the Administrative Agent or the Requisite Lenders shall promptly give written
notice of the status of any action, suit, proceeding, governmental investigation
or arbitration covered by a report delivered pursuant to clause (i) or (ii)
above and provide such other information as may be reasonably requested and
available to it to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters. Notwithstanding the foregoing, the Borrower
shall not be required to disclose any information which is subject to the
attorney-client privilege.
-51-
8.5. INSURANCE. As soon as practicable and in any event by January 31st
of each calendar year, the Borrower shall deliver to the Administrative Agent
(with copies for each of the Lenders) (i) a report in form and substance
reasonably satisfactory to the Administrative Agent, outlining all insurance
coverage maintained as of the date of such report by the Borrower and its
Subsidiaries and the duration of such coverage and (ii) an Officer's Certificate
signed by an Authorized Financial Officer of the Borrower certifying that all
premiums with respect to such coverage have been paid when due.
8.6. ERISA NOTICES. The Borrower shall deliver or cause to be delivered
to the Administrative Agent (with copies for each of the Lenders), at the
Borrower's expense, the following information and notices as soon as reasonably
possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know that an ERISA Termination Event has
occurred, a written statement of an Authorized Financial Officer of the Borrower
describing such ERISA Termination Event and the action, if any, which the
Borrower or any ERISA Affiliate has taken, is taking or proposes to take with
respect thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or
has reason to know that a non-exempt prohibited transaction (as defined in
Sections 406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred with respect to the Borrower, any ERISA Affiliate or any Plan, a
statement of an Authorized Financial Officer of the Borrower describing such
transaction with respect to the Borrower, any ERISA Affiliate or any Plan and
the action which the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the same
with the DOL, IRS or PBGC, copies of each annual report (Form 5500 series),
including Schedule B thereto, filed with respect to each Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan, copies of
each such report;
(e) within fifteen (15) Business Days after the filing of the same
with the IRS, a copy of each funding waiver request filed with respect to any
Benefit Plan and all written communications received by the Borrower or any
ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of any
material increase in the benefits of any existing Benefit Plan or Multiemployer
Plan or the establishment of any new Benefit Plan or the commencement of
contributions to any Benefit Plan or Multiemployer Plan to which the Borrower or
any ERISA Affiliate to which the Borrower or any ERISA Affiliate was not
previously contributing, notification of such increase, establishment or
commencement;
-52-
(g) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan, copies of each
such notice;
(h) within fifteen (15) Business Days after the Borrower or any of
its Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Internal Revenue Code, copies of each such letter to the extent any of the
foregoing would have a Material Adverse Effect;
(i) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due date
for such installment or payment which failure has not been cured, a notification
of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know (i) a Multiemployer Plan has been
terminated, (ii) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (iii) the PBGC has instituted or
has given written notice that it will institute proceedings under Section 4042
of ERISA to terminate a Multiemployer Plan, notification of such termination,
intention to terminate, or institution of proceedings. For purposes of this
Section 8.6, the Borrower and any ERISA Affiliate shall be deemed to know all
facts known by the "Administrator" of any Plan of which the Borrower or any
ERISA Affiliate is the plan sponsor.
8.7. ENVIRONMENTAL NOTICES. The Borrower shall notify the
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon any officer of the Borrower responsible for the environmental matters at
any Property of the Borrower learning thereof, of any of the following (together
with any material documents and correspondence received or sent in connection
therewith):
(a) notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release or
threatened Release of any Contaminant into the environment, if such liability
would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is subject
to investigation by any Governmental Authority evaluating whether any Remedial
Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment which would have a Material Adverse Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
-53-
(d) notice of violation by the Borrower or any of its Subsidiaries
of any Environmental, Health or Safety Requirement of Law which violation would
have a Material Adverse Effect;
(e) commencement or written threat of any judicial or
administrative proceeding alleging a violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law, which
would result in a Material Adverse Effect; or
(f) any proposed acquisition of stock, assets, real estate, or
leasing of Property by the Borrower or any of its Subsidiaries that would
subject the Borrower or any of its Subsidiaries to environmental, health or
safety Liabilities and Costs which would result in a Material Adverse Effect.
8.8. LABOR MATTERS. The Borrower shall notify the Administrative Agent
(with copies for each of the Lenders) in writing, promptly upon the Borrower's
learning thereof, of any labor dispute to which the Borrower or any of its
Subsidiaries is reasonably expected to become a party (including, without
limitation, any strikes, lockouts or other disputes relating to any Property of
such Persons and other facilities) which would result in a Material Adverse
Effect.
8.9. NOTICES OF ASSET SALES AND/OR ACQUISITIONS. The Borrower shall
deliver to the Administrative Agent and the Lenders written notice of each of
the following events affecting the Company, the Borrower or their respective
Subsidiaries not less than five (5) Business Days prior to the occurrence
thereof: (a) (i) an Asset Sale or (ii) the sale of assets other than Real
Property, in a single transaction or series of related transactions after the
date hereof and within the two preceding calendar quarter periods, for
consideration in excess of $50,000,000, (b) an acquisition of assets, in a
single transaction or series of related transactions within the two preceding
calendar quarter period, for consideration in excess of $50,000,000, (c) the
grant of a Lien with respect to (i) an Unencumbered Project or Unencumbered New
York City Asset or (ii) assets (other than Real Property), in a single
transaction or series of related transactions within the two preceding calendar
quarter periods, for consideration in excess of $50,000,000, and (d) a release
from an escrow account of the proceeds of a qualified, deferred exchange under
ss.1031 of the Internal Revenue Code. In addition, simultaneously with delivery
of any such notice, the Borrower shall deliver to the Administrative Agent a
certificate of an Authorized Officer certifying that Borrower is in compliance
with this Agreement and the other Loan Documents both on a historical basis and
on a pro forma basis, exclusive of the property sold, transferred and/or
encumbered and inclusive of the property to be acquired or the indebtedness to
be incurred.
To the extent such proposed transaction would result in a failure to comply with
the covenants set forth herein or in the Existing Revolving Credit Agreement,
the Borrower shall (i) apply the proceeds of such transaction (together with
such additional amounts as may be required), to prepay the Obligations and the
Obligations under the Existing Revolving Credit Agreement in an aggregate
amount, as determined by the Administrative Agent, equal to that which would be
required to reduce the Obligations and the Obligations under the Existing
Revolving Credit Agreement so that Borrower will be in compliance with the
covenants set forth herein and in the Existing Revolving Credit Agreement upon
the consummation of the contemplated transaction (with such application to the
Obligations and the Obligations under the Existing Revolving Credit Agreement
being made at the determination of the Borrower), to the extent such proceeds
are not applied pursuant to clauses (ii) or (iii); (ii) to the extent
applicable, segregate the net proceeds of such transaction in an escrow account
with the Administrative Agent or with a financial institution reasonably
acceptable to the Administrative Agent (including the Administrative Agent under
the Existing Revolving Credit Agreement) and apply such net proceeds solely to a
qualified, deferred exchange under ss.1031 of the Internal Revenue Code that
results in compliance with the covenants set forth herein and in the Existing
Revolving Credit Agreement upon the consummation of the contemplated
transaction, or with the prior written approval of the Requisite Lenders to
another use, to the extent such proceeds are not applied pursuant to clauses (i)
or (iii); or (iii) to the extent applicable, complete an exchange of such assets
for other real property of equivalent value under ss.1031 of the Internal
Revenue Code that results in compliance with the covenants set forth herein and
in the Existing Revolving Credit Agreement upon the consummation of the
contemplated transaction, to the extent such proceeds are not applied pursuant
to clauses (i) or (ii). The Borrower shall also apply the Eligible Net Cash
Proceeds of any Asset Sale as required by Section 4.1(c)(ii) hereof.
-54-
8.10. NOTICES OF JOINT VENTURES. The Borrower shall deliver to the
Administrative Agent and the Lenders written notice of each of the following not
less than two (2) Business Days prior to the occurrence thereof: (a) the
acquisition of an interest in a Joint Venture in excess of $5,000,000, (b) the
investment of an amount in excess of $5,000,000 in a Joint Venture of which the
Administrative Agent and the Lenders have not previously received notice, and
(c) the sale of an interest in a Subsidiary that results in the same becoming a
Joint Venture. Simultaneously with the delivery of the Compliance Certificates,
the Borrower shall deliver to the Administrative Agent and the Lenders written
notice of the formation of any other Joint Venture.
8.11. TENANT NOTIFICATIONS. The Borrower shall promptly notify the
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than three and one half percent (3.5%)
of the Borrower's share of annual base rent (as reported in the Borrower's most
recent quarterly financial statements) is attributable to such tenant.
8.12. OTHER REPORTS. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders)
copies of all financial statements and reports, if any, sent or made available
generally by the Company and/or the Borrower to its respective Securities
holders, including, without limitation, supplemental quarterly forms, or (to the
extent not otherwise provided hereunder), all press releases made available
generally by the Company and/or the Borrower or any of its Subsidiaries to the
public concerning material adverse developments in the business of the Company,
the Borrower or any such Subsidiary and all material notifications received by
the Company, the Borrower or their Subsidiaries pursuant to the Securities
Exchange Act and the rules promulgated thereunder.
8.13. OTHER INFORMATION. Promptly upon receiving a request therefor
from the Administrative Agent or the Arranger, the Borrower shall prepare and
deliver to the Administrative Agent (with copies for each of the Lenders) such
other information with respect to the Company, the Borrower, or any of their
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent or the Arranger, including without limitation, rent rolls,
title reports, environmental site assessments, and tax returns.
ARTICLE IX.
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Term Loan Commitments
are outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 14.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent:
-55-
9.1. EXISTENCE. ETC. The Borrower shall, and shall cause each of its
Subsidiaries and the Company to, at all times maintain its corporate existence
or existence as a limited partnership, limited liability company or joint
venture, as applicable, and preserve and keep, or cause to be preserved and
kept, in full force and effect its rights and franchises material to its
businesses, except where the loss or termination of such rights and franchises
will not have a Material Adverse Effect.
9.2. POWERS; CONDUCT OF BUSINESS. The Borrower shall remain qualified,
and shall cause each of its Subsidiaries and the Company to qualify and remain
qualified, to do business and maintain its good standing in each jurisdiction in
which the nature of its business and the ownership of its Property requires it
to be so qualified and in good standing if the failure to do so will have a
Material Adverse Effect.
9.3. COMPLIANCE WITH LAWS. ETC. The Borrower shall, and shall cause
each of its Subsidiaries and the Company to, (a) comply with all Requirements of
Law and all restrictive covenants affecting such Person or the business,
Property or operations of such Person, and (b) obtain and maintain as needed all
Permits necessary for its operations (including, without limitation, the
operation of the Projects) and maintain such Permits in good standing, except
where noncompliance with either clause (a) or (b) above will not have a Material
Adverse Effect.
9.4. PAYMENT OF TAXES AND CLAIMS. (a) The Borrower shall pay, and cause
each of its Subsidiaries and the Company to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
Property or assets or in respect of any of its franchises, licenses, receipts,
sales, use, payroll, employment, business, income or Property before any penalty
or interest accrues thereon, and (ii) all material Claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 10.2 or a Customary Permitted Lien for property
taxes and assessments not yet due upon any of the Borrower's, the Company's or
any of the Borrower's Subsidiaries' Property, prior to the time when any penalty
or fine shall be incurred with respect thereto; provided, however, that no such
taxes, assessments, fees and governmental charges referred to in clause (i)
above or Claims referred to in clause (ii) above need be paid if being contested
in good faith by appropriate proceedings diligently instituted and conducted and
if such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
9.5. INSURANCE. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries or tenants to maintain, in
full force and effect the insurance policies and programs listed on SCHEDULE
7.1-T or substantially similar policies and programs or other policies and
programs as are reasonably acceptable to the Administrative Agent. All such
policies and programs shall be maintained (a) with insurers having an Xxxxxx X.
Best Company, Inc. rating of "A" or better (or if approved by the Administrative
Agent, a rating of "A-") and a financial size category of not less than VIII or
(b) in the case of (i) insurance maintained by tenants, pursuant to insurance
programs, including self-insurance, supported by creditworthy entities which do
not satisfy clause (a) above or (ii) a program by which a tenant (or any
guarantor of tenant) undertakes obligations that are substantially the same as
would be covered by the insurance referred to in this Section, by a tenant (or
any guarantor) that is a creditworthy entity, in each case consistent with
normal industry practice and reasonably acceptable to the Administrative Agent;
provided that a tenant (or any guarantor) that is, or has senior unsecured long
term debt that is, rated at least "A" (or its equivalent) by any Rating Agency
shall be deemed to have acceptable creditworthiness by the Administrative Agent.
-56-
9.6. INSPECTION OF PROPERTY, BOOKS AND RECORDS DISCUSSIONS. The
Borrower shall permit, and cause each of its Subsidiaries and the Company to
permit, any authorized representative(s) designated by the Administrative Agent,
the Arranger or any Lender (coordinated through the Administrative Agent) to
visit and inspect any of the Projects, to examine, audit, and check their
respective financial and accounting records, books, journals, orders, receipts
and any correspondence and other data relating to their respective businesses or
the transactions contemplated hereby (including, without limitation, in
connection with environmental compliance, hazard or liability), and to discuss
their affairs, finances and accounts with their officers and independent
certified public accountants, upon reasonable notice and at such reasonable
times during normal business hours, as often as may be reasonably requested.
Each such visitation and inspection shall be at such visitor's expense. The
Borrower shall keep and maintain, and cause its Subsidiaries to keep and
maintain, in all material respects proper books of record and account in which
entries are made in conformity with GAAP.
9.7. ERISA COMPLIANCE. The Borrower shall, and shall cause each of its
Subsidiaries and ERISA Affiliates to, establish, maintain and operate all
Benefit Plans to comply in all material respects with the provisions of ERISA,
the Internal Revenue Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans.
9.8. MAINTENANCE OF PROPERTY. The Borrower shall, and shall cause each
of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair (ordinary wear and tear excepted), and not permit, commit or suffer any
waste or abandonment of any such Property and from time to time shall make or
cause to be made all material repairs, renewals and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same; provided, however, that such Property may be altered or
renovated in the ordinary course of business of the Borrower or such applicable
Subsidiary. Without any limitation on the foregoing, the Borrower shall maintain
each Project that is an office or industrial Project as an office or industrial
Project.
9.9. COMPANY STATUS. The Borrower shall cause the Company to, and the
Company shall, at all times (1) remain a publicly traded company listed on the
New York Stock Exchange; (2) maintain its status as a REIT under the Internal
Revenue Code, and (3) retain direct or indirect management and control of the
Borrower.
9.10. OWNERSHIP OF PROJECTS, JOINT VENTURES AND PROPERTY. The ownership
of substantially all wholly owned Projects, Joint Ventures and other Property of
the Consolidated Businesses shall be held by the Borrower and its Subsidiaries
and shall not be held directly by the Company.
9.11. [INTENTIONALLY OMITTED.]
9.12. ADDITIONAL GUARANTORS; SOLVENCY OF GUARANTORS.
-57-
(a) If, after the Closing Date, a Subsidiary of the Borrower that
is not a Guarantor acquires any Real Property that then or thereafter qualifies
under the definition of Unencumbered Project or Unencumbered New York City Asset
or any other Unencumbered asset and such Property or asset is directly or
indirectly wholly-owned or ground leased by the Borrower, the Borrower shall
cause such Person (which Person must be or become a wholly-owned Subsidiary of
the Borrower) to execute and deliver a Guaranty to the Administrative Agent and
the Lenders in substantially the form of EXHIBIT H hereto. Such Guaranty shall
evidence consideration and equivalent value.
(b) The Borrower, the Company, and each other Guarantor are
Solvent. The Borrower and the Company each acknowledge that, subject to the
indefeasible payment and performance in full of the Obligations, the rights of
contribution among each of them and the other Guarantors are in accordance with
applicable laws and in accordance with each such Person's benefits under the
Loans and this Agreement. The Borrower further acknowledges that, subject to the
indefeasible payment and performance in full of the Obligations, the rights of
subrogation of the Guarantors as against the Borrower and the Company are in
accordance with applicable laws.
(c) Other than during the continuance of a Potential Event of
Default or Event of Default, at the request of the Borrower following the
delivery of the certificate of an Authorized Officer in accordance with Section
8.9 hereof, the Guaranty of any Guarantor shall be released by the
Administrative Agent if and when all of the Real Property owned or ground-leased
by such Guarantor shall cease (not thereby creating a Potential Event of Default
or Event of Default) to be an Unencumbered Project or Unencumbered New York City
Asset which is wholly-owned by a Consolidated Business, provided the foregoing
shall never permit the release of the Company.
9.13. FURTHER ASSURANCES. The Borrower will, and will cause each
Guarantor to, cooperate with, and to cause each of its Subsidiaries to cooperate
with, the Administrative Agent and the Lenders and execute such further
instruments and documents as the Lenders or the Administrative Agent shall
reasonably request to carry out to their reasonable satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
9.14. DISTRIBUTIONS IN THE ORDINARY COURSE. In the ordinary course of
business the Borrower causes all of its Subsidiaries to make net transfers of
cash and cash equivalents upstream to the Borrower and the Company, and shall
continue to follow such ordinary course of business. The Borrower shall not make
net transfers of cash and cash equivalents downstream to its Subsidiaries except
in the ordinary course of business consistent with past practice.
ARTICLE X.
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Term Loan Commitments are outstanding and thereafter
until payment in full of all of the Obligations (other than indemnities pursuant
to Section 14.3 not yet due), unless the Requisite Lenders shall otherwise give
prior written consent:
10.1. INTENTIONALLY OMITTED.
-58-
10.2. LIENS. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien (i)
that is not permitted under the Existing Revolving Credit Agreement or (ii) if
the Existing Revolving Credit Agreement is no longer in effect, on or with
respect to any Property, except:
(a) Liens with respect to Capital Leases of Equipment entered into
in the ordinary course of business of the Borrower or its Subsidiaries pursuant
to which the aggregate Indebtedness under such Capital Leases does not exceed
$1,000,000 for any Project;
(b) Existing Permitted Liens;
(c) Liens securing permitted Secured Indebtedness; provided that
the incurrence of such Liens shall be subject to compliance with Section 4.1(c)
and Section 8.9 hereof; and
(d) Customary Permitted Liens.
10.3. INTENTIONALLY OMITTED.
10.4. CONDUCT OF BUSINESS. Neither the Borrower nor any of its
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, re-developing, financing, leasing and
managing predominantly office and industrial Projects and portfolios of like
Projects, (b) any business or activities which are substantially similar,
related or incidental thereto, (c) investments in and loans to Investment Funds,
FrontLine Capital Group, Subsidiaries, Affiliates and Joint Ventures and
unaffiliated entities (to the extent permitted hereunder) and (d) other
activities referred to in Section 2.2 hereof.
10.5. TRANSACTIONS WITH PARTNERS AND AFFILIATES. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder or
holders of more than five percent (5%) of any class of equity Securities of the
Borrower, or with any Affiliate of the Borrower which is not its Subsidiary or
the Company, unless such transaction is determined by the Board of Directors of
the Company to be no less favorable to the Borrower or any of its Subsidiaries,
as applicable, than those that might be obtained in an arm's length transaction
at the time from Persons who are not such a holder or Affiliate (other than
transactions referred to in Section 2.2). Nothing contained in this Section 10.5
shall prohibit (a) increases in compensation and benefits for officers and
employees of the Company, the Borrower or any of its Subsidiaries; (b) payment
of officers', managers', trustees', directors', partners' and other similar
indemnities; (c) performance of any obligations arising under the Loan
Documents; or (d) loans to Persons in connection with such Person's contribution
of Real Property to the Consolidated Businesses or Joint Ventures.
10.6. RESTRICTION ON FUNDAMENTAL CHANGES. The Borrower shall not, and
shall not permit any of the Guarantors to, enter into any merger, consolidation
or amalgamation, or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or substantially all of the
Borrower's or such Guarantor's business or Property, whether now or hereafter
acquired, except in connection with issuance, transfer, conversion or repurchase
of limited partnership interests in the Borrower. Notwithstanding the foregoing,
(a) the Borrower or a Guarantor shall be permitted to merge, consolidate or
amalgamate with another Person so long as the Borrower or such Guarantor, as the
case may be, is the surviving Person following such merger, consolidation or
amalgamation, (b) a Guarantor (other than the Company) shall be permitted to
merge, consolidate or amalgamate with or into the Borrower or another Guarantor,
and (c) so long as no Potential Event of Default or Event of Default has
occurred and is continuing and following the delivery by the Borrower to the
Administrative Agent of a certificate of an Authorized Officer certifying that
Borrower is in compliance with this Agreement and the other Loan Documents on a
pro forma basis, exclusive of the properties owned by a Guarantor, such
Guarantor (other than the Company) shall be permitted to merge, consolidate or
amalgamate with or into another Person.
-59-
10.7. MARGIN REGULATIONS; SECURITIES LAWS. Neither the Borrower nor any
of its Subsidiaries shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
10.8. ERISA. The Borrower shall not and shall not permit any of its
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections 406
of ERISA or 4975 of the Internal Revenue Code for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the DOL, except to the extent engaging in such transaction would
not have a Material Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as defined
in Sections 302 of ERISA and 412 of the Internal Revenue Code), with respect to
any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any Benefit
Plan;
(d) terminate any Benefit Plan which would result in any liability
of Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer
Plan which Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining thereto,
except to the extent such failure would not have a Material Adverse Effect;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before the due
date for such installment or other payment; or
(g) amend a Benefit Plan resulting in an increase in current
liability for the plan year such that the Borrower or any ERISA Affiliate is
required to provide security to such Plan under Section 401(a)(29) of the
Internal Revenue Code.
10.9. ORGANIZATIONAL DOCUMENTS. Neither the Company nor the Borrower
shall, and the Borrower shall not permit any Guarantor to, amend, modify or
otherwise change any of the terms or provisions in any of their respective
Organizational Documents as in effect on the Closing Date, except amendments to
effect (a) a change of name of the Borrower or such Guarantor, provided that the
Borrower shall have provided the Administrative Agent with thirty (30) days
prior written notice of any such name change, or (b) changes that would not
affect such Organizational Documents in any material manner not otherwise
prohibited under this Agreement.
-60-
10.10. FISCAL YEAR. Neither the Company, the Borrower nor any of their
Subsidiaries shall change its Fiscal Year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
10.11. FINANCIAL COVENANTS.
(a) Indebtedness. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to ("INCUR") any Indebtedness,
except:
(i) Total Outstanding Indebtedness which would not exceed
sixty percent (60%) of Total Value as of the date of incurrence;
provided that if the Borrower or its Subsidiaries shall have Incurred
any Indebtedness in connection with the acquisition of any material
Real Property during the previous 120 days, the Borrower or its
Subsidiaries may Incur Indebtedness (the "INCURRENCE") that would cause
Total Outstanding Indebtedness to exceed sixty percent (60%) of Total
Value so long as (x) Total Outstanding Indebtedness does not exceed
sixty-five percent (65%) of Total Value and (y) Total Outstanding
Indebtedness is reduced to sixty percent (60%) or less of Total Value
within 240 days after the date of the Incurrence (with such reduction
to be certified in writing to the Administrative Agent by the
Borrower);
(ii) Total Secured Outstanding Indebtedness which would not
exceed forty percent (40%) of Total Value as of the date of incurrence,
or
(iii) Total Recourse Secured Outstanding Indebtedness which
would not exceed ten percent (10%) of Total Value as of the date of
incurrence..
(b) Minimum Combined Equity Value. The Combined Equity Value shall
at no time be less than $1,250,000,000, plus an amount equal to seventy percent
(70%) of all Net Offering Proceeds received by the Company after June 20, 2005.
(c) Intentionally Omitted.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first day
of each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Adjusted Unencumbered NOI to (ii) Unsecured Interest Expense shall
not be less than 2.0 to 1.0.
(e) Limitation on Total Unsecured Outstanding Indebtedness. As of
the first day of each calendar quarter for the immediately preceding calendar
quarter, the ratio of (i) Total Unsecured Outstanding Indebtedness to (ii) Total
Unencumbered Value (including Eligible Cash 1031 Proceeds, to the extent not
already included) shall not exceed 0.60 to 1.0.
-61-
(f) Minimum Total Interest Coverage Ratio. As of the first day of
each calendar quarter for the immediately preceding calendar quarter, the ratio
of (i) Total Adjusted EBITDA to (ii) Total Interest Expense shall not be less
than 2.0 to 1.0.
(g) Minimum Fixed Charge Coverage Ratio. As of the first day of
each calendar quarter for the immediately preceding calendar quarter, the ratio
of (i) Total Adjusted EBITDA to (ii) Fixed Charges shall not be less than 1.60
to 1.0.
(h) Maximum Dividend Payout Ratio. The Borrower shall not make any
Restricted Payment during any of its fiscal quarters, which, when added to all
Restricted Payments made during the three immediately preceding fiscal quarters,
exceeds the greater of (i) 90% of FFO of the Borrower, and (ii) the amounts
required to maintain the Company's status as a REIT under the Internal Revenue
Code, and, provided an Event of Default shall not have occurred and be
continuing, to avoid federal income and excise tax liability. For purposes of
this provision, "RESTRICTED PAYMENT" means any cash dividend or other cash
distribution on any interest in the Borrower's common operating partnership
units or on any of the Borrower's common partnership interests or other common
equity interests (except dividends or distributions payable solely in interests
in operating partnership units, partnership interests, or other equity interests
or in rights to subscribe for or purchase interests in its operating partnership
units, partnership interests, or other equity interests and except dividends or
distributions which are necessary to pay dividends or distributions on preferred
stock or other preferred equity interests of the Company).
(i) Development Activities. As of the first day of each calendar
quarter for the immediately preceding calendar quarter, the ratio of (i)
Budgeted Construction Cost to (ii) Total Value shall not exceed 0.20 to 1.0.
(j) Negative Pledge. From and after the date hereof, neither the
Borrower nor the Company will, and will not permit any of their respective
Subsidiaries, to enter into any agreement containing any provision prohibiting
the creation or assumption of any Lien upon its properties, revenues or assets
(other than with respect to (i) prohibitions on subordinate liens or
prohibitions on pledges of direct or indirect ownership interests (other than
pledges of direct ownership interests in the Borrower or any Subsidiary that
owns an Unencumbered Project or Unencumbered New York City Asset) set forth in a
mortgage on a particular property, (ii) customary restrictions contained in the
Organizational Documents of a Joint Venture, or (iii) restrictions contained in
the Organizational Documents of the Borrower on the ability of its general
partner and limited partner to pledge and transfer partnership interests in the
Borrower), whether now owned or hereafter acquired, or restricting the ability
of the Borrower to amend or modify this Agreement or any other Loan Document.
10.12. NEGATIVE COVENANTS WITH RESPECT TO THE COMPANY.
(a) From and after the date hereof, the Company will not acquire
any assets of any nature whatsoever other than additional units in the Borrower,
Cash or Cash Equivalents in the ordinary course of business or in connection
with the payment of dividends.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except (i) as imposed by
operation of law on the Company in its capacity as the general partner of the
Borrower, (ii) Indebtedness, the net proceeds of which are contributed to the
Borrower simultaneously with the incurrence thereof by the Company, (iii)
guarantees of Indebtedness which are recourse to the Borrower, (iv) in
connection with the payment of a declared dividend and (v) otherwise as imposed
by law.
-62-
(c) From and after the date hereof, the Company will not retain
any Net Offering Proceeds, and the same will be contributed by the Company to
the Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation,
or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, any of its business or assets, including its interests
in the Borrower. Notwithstanding the foregoing, the Company shall be permitted
to merge with another Person so long as the Company is the surviving Person
following such merger.
ARTICLE XI.
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. EVENTS OF DEFAULT. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall fail to
pay (i) when due any principal payment on the Obligations which is due on the
Term Loan Maturity Date or pursuant to the terms of Section 2.1(a), Section 2.4,
Section 4.1(a), or Section 4.1(c) or (ii) when due, any interest payment on the
obligations, provided, however, that the Borrower shall be entitled to a five
(5) day grace period with respect to any interest payment but not more than one
time in any twelve (12) month period during the term hereof, or (iii) when due,
any principal payment on the Obligations not referenced in clauses (i) or (ii)
hereinabove or (iv) when due, any fees due pursuant to the terms of Section 5.3
and such default shall continue for five (5) days.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on such Person under Sections 2.3(c), 9.1, 9.4, 9.5, 9.10, or Article X.
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Borrower or any of the parties to the
Guaranties to the Administrative Agent, the Arranger or any Lender herein or by
the Borrower or any of the parties to the Guaranties or any of their
Subsidiaries in any of the other Loan Documents or in any statement or
certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made or deemed made or given.
(d) Other Defaults. The Borrower shall default in the performance
of or compliance with any terms contained in this Agreement (other than as
identified in paragraphs (a), (b) or (c) of this Section 11.1), or any default
or event of default shall occur under any of the other Loan Documents, and such
default or event of default shall continue for thirty (30) days after receipt of
written notice from the Administrative Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or
event of default shall occur and be continuing, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any recourse
Indebtedness (other than the Obligations) of the Company, the Borrower or their
Subsidiaries aggregating more than $10,000,000, and the effect thereof is to
cause an acceleration, mandatory redemption or other required repurchase of such
Indebtedness, or permit the holder(s) of such Indebtedness to accelerate the
maturity of any such Indebtedness or require a redemption or other repurchase of
such Indebtedness; or any such Indebtedness shall be otherwise declared to be
due and payable (by acceleration or otherwise) or required to be prepaid,
redeemed or otherwise repurchased by the Borrower or any of its Subsidiaries
(other than by a regularly scheduled required prepayment) prior to the stated
maturity thereof; or any such Indebtedness shall not be repaid at maturity
(after taking into account grace and cure periods).
-63-
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the
Company, the Borrower or any of its Subsidiaries to which $25,000,000
or more of the Combined Equity Value is attributable, and the petition
shall not be dismissed, stayed, bonded or discharged within sixty (60)
days after commencement of the case; or a court having jurisdiction in
the premises shall enter a decree or order for relief in respect of the
Company, the Borrower or any such Subsidiaries of the Borrower in an
involuntary case, under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect; or any other similar relief
shall be granted under any applicable federal, state, local or foreign
law; or the respective board of directors of the Company, or General
Partner or Limited Partners of the Borrower or the board of directors
or partners of any such Subsidiaries of the Borrower (or any committee
thereof) adopts any resolution or otherwise authorizes any action to
approve any of the foregoing.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Company, the Borrower or any of their Subsidiaries to which $25,000,000
or more of the Combined Equity Value is attributable, or over all or a
substantial part of the Property of the Company, the Borrower or any of
such Subsidiaries, shall be entered; or an interim receiver, trustee or
other custodian of the Company, the Borrower or any of such
Subsidiaries or of all or a substantial part of the Property of the
Company, the Borrower or any of such Subsidiaries shall be appointed or
a warrant of attachment, execution or similar process against any
substantial part of the Property of any of the Company, the Borrower,
or any of such Subsidiaries shall be issued and any such event shall
not be stayed, dismissed, bonded or discharged within sixty (60) days
after entry, appointment or issuance; or the respective board of
directors of any of the Company or General Partners or Limited Partners
of the Borrower or the board of directors or partners of any of
Borrower's Subsidiaries (or any committee thereof) adopts any
resolution or otherwise authorizes any action to approve any of the
foregoing.
(g) Voluntary Bankruptcy; Appointment of Receiver. Etc. The
Company, the Borrower or any of their Subsidiaries to which $25,000,000 or more
of the Combined Equity Value is attributable, shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its Property; or the Company, the Borrower or any of such Subsidiaries
shall make any assignment for the benefit of creditors or shall be unable or
fail, or admit in writing its inability, to pay its debts as such debts become
due.
-64-
(h) Judgments and Unpermitted Liens.
(i) Any money judgment (other than a money judgment covered by
insurance as to which the insurance company has acknowledged coverage),
writ or warrant of attachment, or similar process against the Borrower
or any of its Subsidiaries or any of their respective assets involving
in any case an amount in excess of $5,000,000 (other than with respect
to Claims arising out of non-recourse Indebtedness) is entered and
shall remain undischarged, unvacated, unbonded or unstayed for a period
of sixty (60) days or in any event later than five (5) days prior to
the date of any proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien is filed
against the Borrower which is not discharged of record, bonded over or
otherwise secured to the satisfaction of the Administrative Agent
within sixty (60) days after the filing thereof or the date upon which
the Administrative Agent receives actual knowledge of the filing
thereof for an amount which, either separately or when aggregated with
the amount of any judgments described in clause (i) above, equals or
exceeds $5,000,000.
(iii) An Environmental Lien is filed against any Project with
respect to Claims in an amount which, either separately or when
aggregated with the amount of all other such Environmental Liens,
equals or exceeds $5,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered
against the Borrower or any Guarantor decreeing its involuntary dissolution or
split up; or the Borrower or any Guarantor shall otherwise dissolve or cease to
exist except as specifically permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document
ceases to be in full force and effect or the Borrower or any Guarantor seeks to
repudiate its obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs
which the Administrative Agent believes could subject any of the Borrower or any
ERISA Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit Plan
applies under Section 412 (d) of the Internal Revenue Code for a waiver of the
minimum funding standards of Section 412 (a) of the Internal Revenue Code and
the Administrative Agent believes that the substantial business hardship upon
which the application for the waiver is based could subject either the Borrower
or any ERISA Affiliate to liability in excess of $500,000.
(m) Material Adverse Effect. An event shall occur which has a
Material Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company shall
fail to comply with Section 9.9, or any representation or warranty contained in
Section 7.1(a)(ii), (b), (d), (l), or (o) shall be false or misleading in any
material respect on the date as of which made.
-65-
(o) Merger or Liquidation of the Company, the Borrower. The
Company shall merge or liquidate with or into any other Person and, as a result
thereof and after giving effect thereto, (i) the Company is not the surviving
Person or (ii) such merger or liquidation would effect an acquisition of or
Investment in any Person which is prohibited or results in a Potential Event of
Default or an Event of Default under the terms of this Agreement. The Borrower
shall merge or liquidate with or into any other Person and, as a result thereof
and after giving effect thereto, (i) the Borrower is not the surviving Person or
(ii) such merger or liquidation would effect an acquisition of or Investment in
any Person which is prohibited or results in a Potential Event of Default or an
Event of Default under the terms of this Agreement.
(p) Existing Revolving Credit Agreement. An "Event of Default"
shall occur under the Existing Revolving Credit Agreement.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 14.7.
11.2. RIGHTS AND REMEDIES.
(a) Acceleration and Termination. Upon the occurrence of any Event
of Default described in Sections 11.1(f) or 11.1(g), the Term Loan Commitments
shall automatically and immediately terminate and the unpaid principal amount
of, and any and all accrued interest on, the Obligations and all accrued fees
and other Obligations shall automatically become immediately due and payable,
without presentment, demand, or protest or other requirements of any kind
(including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and of acceleration), all
of which are hereby expressly waived by the Borrower, and, upon the occurrence
and during the continuance of any other Event of Default, the Administrative
Agent shall at the request, or may with the consent, of the Lenders whose Pro
Rata Shares, in the aggregate, are greater than fifty-one percent (51%), by
written notice to the Borrower, (i) declare that the Term Loan Commitments are
terminated, whereupon the Term Loan Commitments and the obligation of each
Lender to convert or continue any Loan hereunder shall immediately terminate,
and/or (ii) declare the unpaid principal amount of and any and all accrued and
unpaid interest on the Obligations and all other Obligations to be, and the same
shall thereupon be, immediately due and payable, without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower.
(b) Rescission. If within ninety (90) days after termination of
the Term Loan Commitments and/or acceleration of the maturity of the Loans, the
Borrower shall pay all arrears of interest and all payments on account of
principal of the Loans which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Potential Events of Default (other than nonpayment of principal of
and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 14.7, then upon
the written consent of the Requisite Lenders and written notice to the Borrower,
the termination of the Term Loan Commitments and/or the acceleration and their
consequences may be rescinded and annulled; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right or
remedy consequent thereon. The provisions of the preceding sentence are intended
merely to bind the Lenders to a decision which may be made at the election of
the Requisite Lenders; they are not intended to benefit the Borrower and do not
give the Borrower the right to require the Lenders to rescind or annul any
acceleration hereunder, even if the conditions set forth herein are met.
-66-
(c) Enforcement. The Borrower acknowledges that in the event the
Borrower, the Guarantors or any of their Subsidiaries fails to perform, observe
or discharge any of their respective obligations or liabilities under this
Agreement or any other Loan Document, any remedy of law may prove to be
inadequate relief to the Administrative Agent, the Arranger and the Lenders;
therefore, the Borrower agrees that the Administrative Agent, the Arranger and
the Lenders shall be entitled to temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages.
ARTICLE XII.
THE AGENTS
12.1. APPOINTMENT. (a) Each Lender hereby designates and appoints GSMC
as the Administrative Agent, and the Arranger as the arrangers of such Lender
under this Agreement, and each Lender hereby irrevocably authorizes the
Administrative Agent, and the Arranger to take such actions on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers in each case only as are set forth herein or therein together with
such other powers as are reasonably incidental thereto. The Administrative Agent
and the Arranger each agrees to act as such on the express conditions contained
in this Article XII.
(b) The provisions of this Article XII are solely for the benefit
of the Administrative Agent, the Arranger and the Lenders, and neither the
Borrower, the Company nor any Subsidiary of the Borrower shall have any rights
to rely on or enforce any of the provisions hereof (other than as expressly set
forth in Section 12.7). In performing its respective functions and duties under
this Agreement, the Administrative Agent and the Arranger shall act solely as
agents of the Lenders and do not assume and shall not be deemed to have assumed
any obligation or relationship of agency, trustee or fiduciary with or for the
Company, the Borrower or any Subsidiary of the Borrower. The Administrative
Agent and the Arranger may perform any of their respective duties hereunder, or
under the other Loan Documents, by or through their respective agents or
employees.
12.2. NATURE OF DUTIES. The Administrative Agent and the Arranger shall
not have any duties or responsibilities except those expressly set forth in this
Agreement or in the other Loan Documents. The duties of the Administrative Agent
and the Arranger shall be mechanical and administrative in nature. Neither the
Administrative Agent nor the Arranger shall have by reason of this Agreement a
fiduciary relationship in respect of any Lender. Nothing in this Agreement or
any of the other Loan Documents, expressed or implied, is intended to or shall
be construed to impose upon the Administrative Agent or the Arranger any
obligations in respect of this Agreement or any of the other Loan Documents
except as expressly set forth herein or therein. The Administrative Agent and
the Arranger each hereby agrees that its duties shall include providing copies
of documents received by such Agent from the Borrower which are reasonably
requested by any Lender, furnishing copies of documents to each Lender, upon
request, of documents sent by such Agent to the Borrower and promptly notifying
each Lender upon its obtaining actual knowledge of the occurrence of any Event
of Default hereunder. In addition, the Administrative Agent shall deliver to
each Lender, promptly after receipt thereof, copies of those documents and
reports received by it pursuant to Sections 8.2, 8.3, 8.4, 8.7 and 8.12.
-67-
12.3. RIGHT TO REQUEST INSTRUCTIONS. The Administrative Agent and the
Arranger may at any time request instructions from the Lenders with respect to
any actions or approvals which by the terms of any of the Loan Documents such
Agent is permitted or required to take or to grant, and such Agent shall be
absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any Person for
refraining from any action or withholding any approval under any of the Loan
Documents until it shall have received such instructions from those Lenders from
whom such Agent is required to obtain such instructions for the pertinent matter
in accordance with the Loan Documents. Without limiting the generality of the
foregoing, such Agent shall take any action, or refrain from taking any action,
which is permitted by the terms of the Loan Documents upon receipt of
instructions from those Lenders from whom such Agent is required to obtain such
instructions for the pertinent matter in accordance with the Loan Documents,
provided, that no Lender shall have any right of action whatsoever against the
Administrative Agent or the Arranger as a result of such Agent acting or
refraining from acting under the Loan Documents in accordance with the
instructions of the Requisite Lenders or, where required by the express terms of
this Agreement, a greater proportion of the Lenders.
12.4. RELIANCE. The Administrative Agent and the Arranger shall each be
entitled to rely upon any written notices, statements, certificates, orders or
other documents believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the other Loan Documents and its
duties hereunder or thereunder, upon advice of legal counsel (including counsel
for the Borrower), independent public accountants and other experts selected by
it.
12.5. INDEMNIFICATION. To the extent that the Administrative Agent or
the Arranger is not reimbursed and indemnified by the Borrower, the Lenders will
reimburse and indemnify such Agent for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, and
reasonable costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against it in any way relating
to or arising out of the Loan Documents or any action taken or omitted by such
Agent under the Loan Documents, in proportion to each Lender's Pro Rata Share.
Notwithstanding anything to the contrary contained herein, neither the
Administrative Agent nor the Arranger shall be indemnified to the extent such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs and expenses result from such Person's gross negligence, willful
misconduct or breach of this Article XII. Such Agent agrees to refund to the
Lenders any of the foregoing amounts paid to it by the Lenders which amounts are
subsequently recovered by such Agent from the Borrower or any other Person on
behalf of the Borrower. The obligations of the Lenders under this Section 12.5
shall survive the payment in full of the Loans and all other Obligations and the
termination of this Agreement.
12.6. AGENTS INDIVIDUALLY. With respect to their respective Pro Rata
Share of the Term Loan Commitments hereunder, if any, and the Loans made by
them, if any, the Persons serving as the Administrative Agent and the Arranger
shall have and may exercise the same rights and powers hereunder and are subject
to the same obligations and liabilities as and to the extent set forth herein
for any Lender. The terms "LENDERS" or "REQUISITE LENDERS" or any similar terms
shall, unless the context clearly otherwise indicates or such Lender has
assigned its interest hereunder, include GSMC in its individual capacity as a
Lender or as one of the Requisite Lenders. GSMC and each of its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with the Borrower or any of its Subsidiaries as
if GSMC were not acting as an Agent or Arranger pursuant hereto.
-68-
12.7. SUCCESSOR AGENTS.
(a) Resignation. Any Agent may resign from the performance of all
its functions and duties hereunder at any time by giving at least thirty (30)
Business Days' prior written notice to the Borrower and the Lenders, unless
applicable law requires a shorter notice period or that there be no notice
period, in which instance such applicable law shall control. Such resignation
shall take effect upon the acceptance by a successor Agent of appointment
pursuant to this Section 12.7.
(b) Appointment by Requisite Lenders. Upon any such resignation
becoming effective, the Requisite Lenders shall have the right to appoint a
successor Administrative Agent selected from among the Lenders with the prior
written consent of the Borrower (so long as no Event of Default then exists),
which consent shall not be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor Administrative
Agent shall not have been appointed within the thirty (30) Business Day or
shorter period provided in paragraph (a) of this Section 12.7, the retiring
Agent shall then appoint a successor Agent who shall serve as Administrative
Agent until such time, if any, as the Requisite Lenders appoint a successor
Agent as provided above with the prior written consent of the Borrower (so long
as no Event of Default then exists) which shall not be unreasonably withheld,
provided, however, that such successor Administrative Agent shall have total
assets of not less than $10,000,000,000.
(d) Rights of the Successor and Retiring Agents. Upon the
acceptance of any appointment as Administrative 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 under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this Agreement.
12.8. RELATIONS AMONG THE LENDERS. Each Lender agrees that it will not
take any legal action, or institute any actions or proceedings, against the
Borrower or any other obligor hereunder with respect to any of the Obligations,
without the prior written consent of the Lenders. Without limiting the
generality of the foregoing, no Lender may accelerate or otherwise enforce its
portion of the obligations, or unilaterally terminate its Term Loan Commitment
except in accordance with Section 11.2(a).
12.9. STANDARD OF CARE. The Administrative Agent and the Arranger shall
administer the Loans in the same manner that such Agent administers loans made
for its own account.
ARTICLE XIII.
YIELD PROTECTION
13.1. TAXES.
(a) Payment of Taxes. Any and all payments by the Borrower
hereunder or under the Notes or other documents evidencing any Obligations of
such Person shall be made, in accordance with Section 4.2, free and clear of and
without reduction for any and all present or future taxes, levies, imposts,
deductions, charges, withholdings, and all stamp or documentary taxes, excise
taxes, ad valorem taxes and other taxes which arise from the execution, delivery
or registration, or from payment or performance under, or otherwise with respect
to, any of the Loan Documents or the Term Loan Obligations and all other
liabilities with respect thereto excluding, in the case of each Lender, taxes
imposed on or measured by net income or overall gross receipts and capital and
franchise taxes imposed on it by (i) the United States, (ii) the Governmental
Authority of the jurisdiction in which such Lender's Applicable Lending Office
is located or any political subdivision thereof or (iii) the Governmental
Authority in which such Person is organized, managed and controlled or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges and withholdings being hereinafter referred to as "TAXES").
Except as otherwise provided herein, if the Borrower shall be required by law to
withhold or deduct any Taxes from or in respect of any sum payable hereunder or
under any such Note or document to any Lender, (x) the sum payable to such
Lender shall be increased as may be necessary so that after making all required
withholding or deductions (including withholding or deductions applicable to
additional sums payable under this Section 13.1) such Lender receives an amount
equal to the sum it would have received had no such withholding or deductions
been made, (y) the Borrower shall make such withholding or deductions, and (z)
the Borrower shall pay the full amount withheld or deducted to the relevant
taxation authority or other authority in accordance with applicable law.
-69-
(b) Indemnification. Except as otherwise provided herein, the
Borrower will indemnify each Lender against, and reimburse each Lender within
ten (10) Business Days after written demand for, the full amount of all Taxes
(including, without limitation, any Taxes imposed by any Governmental Authority
on amounts payable under this Section 13.1 and any additional income or
franchise taxes resulting therefrom) incurred or paid by such Lender and any
liability (including penalties, interest, and out-of-pocket expenses paid to
third parties) arising therefrom or with respect thereto, whether or not such
Taxes were lawfully payable, to the extent not paid by the Borrower pursuant to
this Section 13.1. A certificate as to any additional amount payable to any
Person under this Section 13.1 submitted by it to the Borrower shall, absent
manifest error, be final, conclusive and binding upon all parties hereto. Each
Lender agrees, within a reasonable time after receiving a written request from
the Borrower, to provide the Borrower and the Administrative Agent with such
certificates and other documents as are reasonably required, and take such other
actions as are reasonably necessary to claim such exemptions as such Lender may
be entitled to claim in respect of all or a portion of any Taxes which are
otherwise required to be paid or deducted or withheld pursuant to this Section
13.1 in respect of any payments under this Agreement or under the other Loan
Documents. If any Lender receives any refund with respect to any Taxes, such
Lender shall promptly remit such refund to the Borrower.
(c) Receipts. Within thirty (30) days after the date of any
payment of Taxes by the Borrower, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 14.8, the original
or a certified copy of a receipt evidencing payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender that is not
created or organized under the laws of the United States or a political
subdivision thereof shall deliver to each of the Borrower and the Administrative
Agent on the Closing Date or the date on which such Lender becomes a Lender
pursuant to Section 14.1 hereof a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender to the effect that such
Lender is eligible to receive payments hereunder and under the Notes without
deduction or withholding of United States federal income tax (I) under the
provisions of an applicable tax treaty concluded by the United States (in which
case the certificate shall be accompanied by two duly completed copies of IRS
Form W-8BEN (or any successor or substitute form or forms)) or (II) under
Sections 1441(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form W-8ECI
(or any successor or substitute form or forms)).
-70-
(ii) Each Lender referred to in Section 13.1(d)(i) further
agrees to deliver to each of the Borrower and the Administrative Agent from time
to time, a true and accurate certificate executed in duplicate by a duly
authorized officer of such Lender before or promptly upon the occurrence of any
event requiring a change in the most recent certificate previously delivered by
it to the Borrower and the Administrative Agent pursuant to this Section
13.1(d). Each certificate required to be delivered pursuant to this Section
13.1(d)(ii) shall certify as to one of the following:
(A) that such Lender can continue to receive payments
hereunder and under the Notes without deduction or withholding
of United States federal income tax;
(B) that such Lender cannot continue to receive
payments hereunder and under the Notes without deduction or
withholding of United States federal income tax as specified
therein but does not require additional payments pursuant to
Section 13.1(a) because it is entitled to recover the full
amount of any such deduction or withholding from a source
other than the Borrower; or
(C) that such Lender is no longer capable of
receiving payments hereunder and under the Notes without
deduction or withholding of United States federal income tax
as specified therein and that it is not capable of recovering
the full amount of the same from a source other than the
Borrower.
Each such Lender agrees to deliver to each of the Borrower and the
Administrative Agent further duly completed copies of the above-mentioned IRS
forms on or before the earlier of (x) the date that any such form expires or
becomes obsolete or otherwise is required to be resubmitted as a condition to
obtaining an exemption from withholding from United States federal income tax
and (y) fifteen (15) days after the occurrence of any event requiring a change
in the most recent form previously delivered by such Lender to the Borrower and
Administrative Agent, unless any change in treaty, law, regulation, or official
interpretation thereof which would render such form inapplicable or which would
prevent such Lender from duly completing and delivering such form has occurred
prior to the date on which any such delivery would otherwise be required and
such Lender promptly advises the Borrower that it is not capable of receiving
payments hereunder and under the Notes without any deduction or withholding of
United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in
this Section 13.1, the Borrower will not be required to make any additional
payment to or for the account of any Lender under Section 13.1(a) or (b) by
reason of (x) a breach by such Lender of any certification or representation set
forth in any form furnished to the Borrower under this Section 13.1(d), or (y)
such Lender's failure or inability to furnish, if required to do so, under this
Section 13.1(d) an original or renewal of a Form W-8ECI or Form W-8BEN (or
successor form), as applicable, unless such failure or inability results from a
change (after the date such Lender became a Lender party hereto) in any
applicable law or regulation or in the interpretation thereof by any regulatory
authority (including without limitation any change in any applicable tax
treaty).
-71-
13.2. INCREASED CAPITAL. If after the date hereof any Lender determines
that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender or banks or financial institutions generally (whether or not having the
force of law), compliance with which affects the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender and (ii) the amount of such capital is increased by or based upon the
making or maintenance by any Lender of its Loans, any Lender's participation in
or obligation to participate in the Loans or other advances made hereunder or
the existence of any Lender's obligation to make Loans then, in any such case,
within ten (10) Business Days after written demand by such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall immediately pay
to the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation therefor. Such demand shall be accompanied by a
statement as to the amount of such compensation and include a brief summary of
the basis for such demand. Such statement shall be conclusive and binding for
all purposes, absent manifest error.
13.3. CHANGES; LEGAL RESTRICTIONS. If after the date hereof any Lender
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or
Eurodollar Affiliate) to charges (other than taxes) of any kind which such
Lender reasonably determines to be applicable to the Term Loan Commitments of
the Lenders to make Eurodollar Rate Loans or change the basis of taxation of
payments to that Lender of principal, fees, interest, or any other amount
payable hereunder with respect to Eurodollar Rate Loans (other than taxes
covered by Section 13.1(a) hereof and taxes excluded in Section 13.1(a) hereof);
or
(b) imposes, modifies, or holds applicable, in the determination
of a Lender, any reserve, special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other liabilities in
or for the account of, advances or loans by, commitments made, or other credit
extended by, or any other acquisition of funds by, a Lender or any Applicable
Lending Office or Eurodollar Affiliate of that Lender in respect of Eurodollar
Loans;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Term Loan Commitment; then, in
any such case, within ten (10) Business Days after written demand by such Lender
(with a copy of such demand to the Administrative Agent), the Borrower shall
immediately pay to the Administrative Agent for the account of such Lender, from
time to time as specified by such Lender, such amount or amounts as may be
necessary to compensate such Lender or its Eurodollar Affiliate for any such
additional cost incurred or reduced amount received. Such demand shall be
accompanied by a statement as to the amount of such compensation and include a
brief summary of the basis for such demand. Such statement shall be conclusive
and binding for all purposes, absent manifest error.
-72-
13.4. REPLACEMENT OF CERTAIN LENDERS. In the event a Lender (a
"DESIGNATED LENDER") shall have (i) requested additional compensation from the
Borrower under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of the Term Loan or (iii) failed to make any
Loan at the Eurodollar Rate, the Borrower may, at its sole election, make
written demand on such Designated Lender (with a copy to the Administrative
Agent) for the Designated Lender to assign, and such Designated Lender shall
assign pursuant to one or more duly executed Assignment and Acceptances to one
or more Eligible Assignees which the Borrower or the Administrative Agent shall
have identified for such purpose, all of such Designated Lender's right and
obligations under this Agreement, the Notes and the other Loan Documents
(including, without limitation, its Term Loan Commitment, all Loans owing to it
and all other Obligations owing to it) in accordance with Section 14.1. All
out-of-pocket expenses incurred by the Administrative Agent in connection with
the foregoing shall be for the sole account of the Borrower and shall constitute
Obligations hereunder. In no event shall Borrower's election under the
provisions of this Section 13.4 affect its obligation to pay the additional
compensation required under either Section 13.1, Section 13.2 or Section 13.3.
13.5. MITIGATION. Each Lender shall notify the Borrower of any event
occurring after the date of this Agreement entitling such Lender to compensation
under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but in any event,
within 45 days, after such Lender obtains actual knowledge thereof; provided
that (i) if any Lender fails to give such notice within 45 days after it obtains
actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to Sections 13.1, 13.2 or 13.3 in respect of any
costs resulting from such event, only be entitled to payment under Sections
13.1, 13.2 or 13.3 for costs incurred from and after the date 45 days prior to
the date that such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender, be disadvantageous to such Lender.
ARTICLE XIV.
MISCELLANEOUS
14.1. ASSIGNMENTS AND PARTICIPATIONS.
(a) Assignments. No assignments or participations of any Lender's
rights or obligations under this Agreement shall be made except in accordance
with this Section 14.1. Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all of its rights and obligations with respect to the Loans) in accordance with
the provisions of this Section 14.1.
(b) Limitations on Assignments. Each assignment shall be subject
to the following conditions: (i) each assignment shall be of a constant, and not
a varying, ratable percentage of all of the assigning Lender's rights and
obligations under this Agreement and, in the case of a partial assignment to an
assignee which is not a Lender or a Lender Affiliate, shall be in a minimum
principal amount of $5,000,000 (and the assignor shall maintain a minimum amount
of $5,000,000 for its own account unless the assignor shall assign or
participate its entire interest), (ii) each such assignment shall be to an
Eligible Assignee, (iii) (A) so long as no Event of Default has occurred and is
continuing, each assignment shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld);
provided that, no such consent of the Administrative Agent shall be required for
an assignment by any Lender to any of its Lender Affiliates, so long as such
Lender Affiliate is an Eligible Assignee, and (B) so long as no Event of Default
has occurred and is continuing, each assignment to an assignee which is not a
Lender, a Lender Affiliate or a Pre-Approved Lender shall be subject to the
approval of the Borrower (which approval shall not be unreasonably withheld and
shall be deemed to have been given if the Borrower fails to object to such
proposed assignment within five (5) Business Days of its receipt of a request
for approval), and (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance. Upon such execution, delivery,
acceptance and recording in the Register, from and after the effective date
specified in each Assignment and Acceptance and agreed to by the Administrative
Agent, (A) the assignee thereunder shall, in addition to any rights and
obligations hereunder held by it immediately prior to such effective date, if
any, have the rights and obligations hereunder that have been assigned to it
pursuant to such Assignment and Acceptance and shall, to the fullest extent
permitted by law, have the same rights and benefits hereunder as if it were an
original Lender hereunder, (B) the assigning Lender shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (except as otherwise provided
in Section 14.9) and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the remaining
portion of such assigning Lender's rights and obligations under this Agreement,
the assigning Lender shall cease to be a party hereto, except as otherwise
provided in Section 14.9) and (C) the Borrower shall execute and deliver to the
assignee thereunder a Note evidencing its obligations to such assignee with
respect to the Loans.
-73-
(c) The Register. The Administrative Agent shall maintain at its
address referred to in Section 14.8 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders, the Term Loan Commitment
of, and the principal amount of the Loans owing to, each Lender from time to
time and whether such Lender is an original Lender or the assignee of another
Lender pursuant to an Assignment and Acceptance. The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the other Lenders and each other party to
a Loan Document 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 or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance executed
by the assigning Lender and an Assignee and a processing and recordation fee of
$3,500 (payable by the assignee to the Administrative Agent), the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
compliance with this Agreement and in substantially the form of EXHIBIT A
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower.
(e) Participations. Each Lender may sell participations to one or
more other financial institutions or other Persons in or to all or a portion of
its rights and obligations under and in respect of any and all facilities under
this Agreement (including, without limitation, all or a portion of its Term Loan
Commitment hereunder and the Loans owing to it); provided, however, that (i)
such Lender's obligations under this Agreement (including, without limitation,
its Term Loan Commitment hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, (iv)
each participation (other than a participation to an Affiliate) shall be in a
minimum amount of $5,000,000, and (v) such participant's rights to agree or to
restrict such Lender's ability to agree to the modification, waiver or release
of any of the terms of the Loan Documents, to consent to any action or failure
to act by any party to any of the Loan Documents or any of their respective
Affiliates, or to exercise or refrain from exercising any powers or rights which
any Lender may have under or in respect of the Loan Documents, shall be limited
to the right to consent to any (A) increase in the Term Loan Commitment of the
Lender from whom such participant purchased a participation, (B) reduction of
the principal of, or rate or amount of interest on the Loans subject to such
participation (other than by the payment or prepayment thereof), (C)
postponement of any date fixed for any payment of principal of, or interest on,
the Loans) subject to such participation and (D) release of any guarantor of the
Obligations.
-74-
(f) Information Regarding the Borrower. Any Lender may, subject to
the provisions of Section 14.22, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
14.1, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower or its Subsidiaries
furnished to such Lender by the Administrative Agent or by or on behalf of the
Borrower.
(g) Payment to Participants. Anything in this Agreement to the
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties required hereby as if no such participation had been
sold.
(h) Lenders' Creation of Security Interests. Notwithstanding any
other provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by it)
in favor of any Person.
14.2. EXPENSES.
(a) Generally. The Borrower agrees promptly upon demand to pay, or
reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of counsel to the Administrative Agent (but not of other legal
counsel) and for all other reasonable out-of-pocket costs and expenses incurred
by the Administrative Agent or the Arranger in connection with (i) the
preparation, negotiation, and execution of the Loan Documents; (ii) the
preparation, negotiation, execution, syndication and interpretation of this
Agreement (including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article VI), the Loan
Documents, and the making of the Loans and other extensions of credit hereunder;
(iii) any amendments, consents, waivers, assignments, restatements, or
supplements to any of the Loan Documents and the preparation, negotiation, and
execution of the same; and (iv) any other amendments, modifications, agreements,
assignments, restatements or supplements to any of the Loan Documents requested
by Borrower and the preparation, negotiation, and execution of the same.
(b) After Default. The Borrower further agrees to pay or reimburse
the Administrative Agent, the Arranger and each of the Lenders upon demand for
all reasonable out-of-pocket costs and expenses, including, without limitation,
reasonable attorneys' fees (including allocated costs of internal counsel and
costs of settlement) incurred by the such entity after the occurrence and during
the continuance of an Event of Default (i) in enforcing any Loan Document or
Obligation, the collection of any Obligation or exercising or enforcing any
other right or remedy available by reason of such Event of Default; or (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or in any insolvency
or bankruptcy proceeding; (iii) in commencing, defending or intervening in any
litigation or in filing a petition, complaint, answer, motion or other pleadings
in any legal proceeding relating to the Obligations, a Project, or any of the
Consolidated Businesses and related to or arising out of the transactions
contemplated hereby or by any of the other Loan Documents; and (iv) in taking
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) described in clauses (i) through (iii) above.
-75-
14.3. INDEMNITY. The Borrower further agrees (a) to defend, protect,
indemnify, and hold harmless the Administrative Agent, the Arranger and each and
all of the Lenders and each of their respective officers, directors, employees,
attorneys and agents (collectively, the "INDEMNITEES") from and against any and
all liabilities, obligations, losses (other than loss of profits), damages,
penalties, actions, judgments, suits, claims, reasonable costs, reasonable
expenses and reasonable disbursements (excluding any taxes and including,
without limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents, the making of the Loans, the use or intended use of the proceeds of
the Loans hereunder, or any of the other transactions contemplated by the Loan
Documents, or (ii) any Liabilities and Costs relating to violation of any
Environmental, Health or Safety Requirements of Law, the past, present or future
operations of the Borrower, any of its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future environmental, health
or safety condition of any respective Property of the Borrower or any of its
Subsidiaries, the presence of asbestos-containing materials at any respective
Property of the Borrower or any of its Subsidiaries, or the Release or
threatened Release of any Contaminant into the environment (collectively, the
"INDEMNIFIED MATTERS"); provided, however, the Borrower shall have no obligation
to an Indemnitee hereunder with respect to Indemnified Matters caused by or
resulting from the willful misconduct or gross negligence of such Indemnitee, as
determined by a court of competent jurisdiction in a non-appealable final
judgment; and provided further that payment of the costs of preparation of the
Loan Documents shall be governed by Section 14.2(a) hereof; and (b) not to
assert any claim against any of the Indemnitees, on any theory of liability, for
consequential or punitive damages arising out of, or in any way in connection
with, the Term Loan Commitments, the Obligations, or the other matters governed
by this Agreement and the other Loan Documents. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall contribute the maximum portion which it is permitted
to pay and satisfy under applicable law, to the payment and satisfaction of all
Indemnified Matters incurred by the Indemnitees.
14.4. CHANGE IN ACCOUNTING PRINCIPLES. If any change in the accounting
principles used in the preparation of the most recent financial statements
referred to in Sections 8.1 or 8.2 are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Company or the Borrower as applicable, with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the covenants, standards or terms found in Article X,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the Borrower shall be the same after such changes as if such changes had not
been made; provided, however, no change in GAAP that would affect the method of
calculation of any of the covenants, standards or terms shall be given effect in
such calculations until such provisions are amended, in a manner satisfactory to
the Administrative Agent and the Borrower, to so reflect such change in
accounting principles.
-76-
14.5. INTENTIONALLY OMITTED.
14.6. RATABLE SHARING. The Lenders agree among themselves that (i) with
respect to all amounts received by them which are applicable to the payment of
the Obligations (excluding the costs, fees and other payments described in
Sections 5.2(f), and 5.3, Article XIII and Section 14.1) equitable adjustment
will be made so that, in effect, all such amounts will be shared among them
ratably in accordance with their Pro Rata Shares, whether received by voluntary
payment, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross-action or by the enforcement of any or all of the
Obligations (excluding the costs, fees and other payments described in Sections
5.2(f), and 5.3, Article XIII and Section 14.1), (ii) if any of them shall by
voluntary payment or by the exercise of any right of counterclaim, setoff,
banker's lien or otherwise, receive payment of a proportion of the aggregate
amount of the Obligations held by it, which is greater than the amount which
such Lender is entitled to receive hereunder, the Lender receiving such excess
payment shall purchase, without recourse or warranty, an undivided interest and
participation (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in such Obligations owed to the others so that all such
recoveries with respect to such obligations shall be applied ratably in
accordance with their Pro Rata Shares; provided, however, that if all or part of
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such recovery.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 14.6 may, to the fullest extent permitted by
law, exercise all its rights of payment with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation.
14.7. AMENDMENTS AND WAIVERS.
(a) General Provisions. Unless otherwise provided for or required
in this Agreement, no amendment or modification of any provision of this
Agreement or any of the other Loan Documents shall be effective without the
written agreement of the Requisite Lenders (which the Requisite Lenders shall
have the right to grant or withhold in their sole discretion) and the Borrower;
provided, however, that the Borrower's agreement shall not be required for any
amendment or modification of Sections 12.1 through 12.8 (other than Section
12.7). In the event that the Administrative Agent shall request the agreement of
the Lenders to any amendment, modification or waiver, if any Lender shall fail
to respond to any such request within fifteen (15) days after receipt of such
request, such Lender's approval thereto shall be deemed to have been given;
provided, however, that such request shall state, in capital letters that
"FAILURE TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT,
SHALL BE DEEMED CONSENT TO THE ENCLOSED REQUEST". No termination or waiver of
any provision of this Agreement or any of the other Loan Documents, or consent
to any departure by the Borrower therefrom, shall be effective without the
written or deemed concurrence of the Requisite Lenders, which the Requisite
Lenders shall have the right to grant or withhold in their sole discretion. All
amendments, waivers and consents not specifically reserved to the Administrative
Agent, the Arranger or the Lenders in Section 14.7(b), 14.7(c), and in other
provisions of this Agreement shall require only the approval of the Requisite
Lenders. Any waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given. No notice to or demand on
the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
-77-
(b) Amendments, Consents and Waivers by Affected Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1
(except with respect to a condition based upon another provision of
this Agreement, the waiver of which requires only the concurrence of
the Requisite Lenders),
(ii) change the amount of such Lender's Term Loan Commitment
(other than pursuant to an assignment permitted under Section 14.1),
(iii) reduction of the principal of, or the rate or amount of
interest on, the Loans, or any fees or other amounts payable to such
Lender (other than by the payment or prepayment thereof), and
(iv) postponement or extension of any date (other than the
Term Loan Maturity Date postponement or extension of which is governed
by Section 14.7(c)(i)) fixed for any payment of principal of, or
interest on, the Loans or any fees or other amounts payable to such
Lender (except with respect to any modifications of the application
provisions relating to prepayments of Loans and other Obligations which
are governed by Section 4.2(b)).
(c) Amendments, Consents and Waivers by All Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement of the Term Loan Maturity Date;
(ii) change in the definition of Requisite Lenders or in the
aggregate Pro Rata Share of the Lenders which shall be required for the
Lenders or any of them to take action hereunder or under the other Loan
Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by the Borrower,
(v) waiver of any Event of Default under Section 11.1(a),
Section 11.1(f) or Section 11.1(g), and
(vi) amendment or release of the Guaranties, except in
connection with the permitted sale of an Unencumbered Project or
Unencumbered New York City Asset by a Guarantor.
-78-
(d) Administrative Agent Authority. Subject to the second
succeeding sentence of this subsection (d), the Administrative Agent may, but
shall have no obligation to, with the written concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of that Lender.
Notwithstanding anything to the contrary contained in this Section 14.7, no
amendment, modification, waiver or consent shall affect the rights or duties of
the Administrative Agent under this Agreement and the other Loan Documents,
unless made in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action. Notwithstanding anything herein to
the contrary, in the event that the Borrower shall have requested, in writing,
that any Lender agree to an amendment, modification, waiver or consent with
respect to any particular provision or provisions of this Agreement or the other
Loan Documents, and such Lender shall have failed to state, in writing, that it
either agrees or disagrees (in full or in part) with all such requests (in the
case of its statement of agreement, subject to satisfactory documentation and
such other conditions it may specify) within fifteen (15) days after such
request, then such Lender hereby irrevocably authorizes the Administrative Agent
to agree or disagree, in full or in part, and in the Administrative Agent's sole
discretion, to such requests on behalf of such Lender as such Lender's
attorney-in-fact and to execute and deliver any writing approved by the
Administrative Agent which evidences such agreement as such Lender's duly
authorized agent for such purposes; provided, however, that such request shall
state, in capital letters that "FAILURE TO RESPOND TO THIS REQUEST WITHIN
FIFTEEN (15) DAYS AFTER RECEIPT, SHALL BE DEEMED AUTHORIZATION TO THE
ADMINISTRATIVE AGENT WITH RESPECT TO THE ENCLOSED REQUEST".
14.8. NOTICES. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent by facsimile transmission or by
courier service or United States certified mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to Articles II, IV or XII shall not be effective
until received by the Administrative Agent. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 14.8) shall be (i) for the Borrower, as set forth on
its signature page to this Agreement, and (ii) for the Lenders, as set forth on
SCHEDULE LC hereto or on the applicable Assignment and Acceptance by which such
party became a Lender hereunder, or, as to each party, at such other address as
may be designated by such party in a written notice to all of the other parties
to this Agreement.
14.9. SURVIVAL OF WARRANTIES AND AGREEMENTS. All representations and
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and, in the case of any Lender that may assign any
interest in its Term Loan Commitment, or Loans hereunder, shall survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder, and, except for the representations and warranties,
the termination of this Agreement other than any of the foregoing set forth in
Section 13.1 or Section 13.2 or Section 13.3 or Section 5.2(f), which shall
survive for thirty (30) days after termination of this Agreement.
14.10. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of the Administrative Agent or any Lender in the
exercise of any power, right or privilege under any of the Loan Documents shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude any other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
the Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
-79-
14.11. PAYMENTS SET ASIDE. To the extent that the Borrower makes a
payment or payments to the Administrative Agent, the Arranger or any Lender or
any such Person exercises its rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all right and remedies therefor, shall be revived and continued in full
force and effect as if such payment had not been made or such enforcement or
setoff had not occurred.
14.12. SEVERABILITY. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
14.13. HEADINGS. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
14.14. GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
14.15. LIMITATION OF LIABILITY. No claim may be made by any Lender, the
Arranger, the Administrative Agent, or any other Person against any Lender
(acting in any capacity hereunder) or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and
each Lender, the Arranger and the Administrative Agent hereby waives, releases
and agrees not to xxx upon any such claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
14.16. SUCCESSORS AND ASSIGNS. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. Except as otherwise
provided in Section 10.6, the rights and obligations hereunder of the Borrower,
or any interest therein, may not be assigned without the written consent of all
Lenders (and any such attempted assignment without such consent shall be null
and void).
14.17. CERTAIN CONSENTS AND WAIVERS OF THE BORROWER.
(a) Personal Jurisdiction. (i) EACH OF THE AGENTS, THE LENDERS,
AND THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION
OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN
CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. EACH OF THE AGENTS, THE LENDERS AND THE BORROWER AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. EACH OF THE AGENTS, THE LENDERS, AND THE BORROWER WAIVES IN ALL
DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE DISPUTE.
-80-
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE
THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY
LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE
LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY LENDER. THE BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR ANY
LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) Service of Process. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWER'S PROCESS AGENT OR THE BORROWER'S NOTICE
ADDRESS SPECIFIED IN SECTION 14.8 HEREOF, SUCH SERVICE TO BECOME EFFECTIVE UPON
RECEIPT. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE AGENTS AND THE LENDERS AND
THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
-81-
14.18. COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES. This Agreement and
any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
each Agent and Lender on the Closing Date. This Agreement and each of the other
Loan Documents shall be construed to the extent reasonable to be consistent one
with the other, but to the extent that the terms and conditions of this
Agreement are actually inconsistent with the terms and conditions of any other
Loan Document, this Agreement shall govern.
14.19. LIMITATION ON AGREEMENTS. All agreements between the Borrower,
the Administrative Agent, the Arranger and each Lender in the Loan Documents are
hereby expressly limited so that in no event shall any of the Loans or other
amounts payable by the Borrower under any of the Loan Documents be directly or
indirectly secured (within the meaning of Regulation U) by Margin Stock.
14.20. DISCLAIMERS. The Administrative Agent, the Arranger and the
Lenders shall not be liable to any contractor, subcontractor, supplier, laborer,
architect, engineer, tenant or other party for services performed or materials
supplied in connection with any work performed on the Projects, including any TI
Work. The Administrative Agent, the Arranger and the Lenders shall not be liable
for any debts or claims accruing in favor of any such parties against the
Borrower or others or against any of the Projects. The Borrower is not and shall
not be an agent of any Agent, the Arranger or the Lenders for any purposes and
none of the Lenders, the Arranger, or the Agents shall be deemed partners or
joint venturers with Borrower. None of the Administrative Agent, the Arranger or
the Lenders shall be deemed to be in privity of contract with any contractor or
provider of services to any Project, nor shall any payment of funds directly to
a contractor or subcontractor or provider of services be deemed to create any
third party beneficiary status or recognition of same by any of the
Administrative Agent, the Arranger or the Lenders and the Borrower agrees to
hold the Administrative Agent, the Arranger and the Lenders harmless from any of
the damages and expenses resulting from such a construction of the relationship
of the parties or any assertion thereof.
14.21. ENTIRE AGREEMENT. This Agreement, taken together with all of the
other Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
14.22. CONFIDENTIALITY. Each of the Agents, the Arranger and the
Lenders agrees to keep confidential all non-public information provided to it by
the Borrower pursuant to this Agreement that is designated by the Borrower as
confidential; provided that nothing herein shall prevent the Agents or the
Lenders from disclosing any such information (a) to the Agents, any other Lender
or any Lender Affiliate (provided such Lender Affiliate is made aware of the
confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant or any actual or prospective counterparty (or its advisors) to any
swap or derivative transactions relating to the Borrower and its Obligations
(provided such Person is made aware of the confidentiality of such information
and agrees to keep such information confidential), (c) to the employees,
directors, agents, attorneys, accountants and other professional advisors of any
Lender, Assignee, Participant, prospective Assignee or Participant who are
advised of the provisions of this Section, (d) upon the request or demand of any
Governmental Authority having or asserting jurisdiction over either Agent or any
Lender, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(f) if requested or required to do so in connection with the exercise of any
remedy hereunder or under any other Loan Document, (g) upon the advice of
counsel that such disclosure is required by law, (h) with the consent of the
Borrower, (i) in connection with any litigation to which any Agent, Arranger or
Lender is a party, or (j) to the extent such information becomes publicly
available other than as a result of a breach of this Section 14.22 or becomes
available to any Agent, Arranger or Lender on a nonconfidential basis from a
source other than the Borrower.
-82-
14.23. INTENTIONALLY OMITTED.
14.24. USA PATRIOT ACT. Each of the Lenders hereby notifies Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.L.107-56 (signed into law October 26, 2001)) (the "ACT"), it is required to
obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information that
will allow such Bank to identify Borrower in accordance with the Act. Neither
the execution and delivery of the Notes and the other Loan Documents by the
Borrower nor the use of the proceeds of the Loans, will violate the Trading with
the Enemy Act, as amended, or any of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or the Anti-Terrorism Order or any enabling legislation or executive
order relating to any of the same. Without limiting the generality of the
foregoing, none of the Borrower, the Company, nor any of their respective
Subsidiaries (a) is or will become a blocked person described in Section 1 of
the Anti-Terrorism Order or (b) engages or will engage in any dealings or
transactions or be otherwise associated with any such blocked person in any
manner which violates applicable law or regulation.
[Remainder of Page Intentionally Left Blank--Signature Pages to Follow]
-83-
IN WITNESS WHEREOF the undersigned have duly executed this Agreement as
a sealed instrument as of the date first set forth above.
BORROWER:
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
By: ________________________________
Name:
Title:
Address for Notices:
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Taxpayer Identification Number: 00-0000000
[Signature page to Term Loan Agreement]
LENDER:
XXXXXXX XXXXX MORTGAGE COMPANY,
individually and as Administrative Agent
By: Xxxxxxx Sachs Real Estate Funding Corp.,
its General Partner
By: ________________________________
Name:
Title:
[Signature page to Term Loan Agreement]
SCHEDULE XX
X. ADMINISTRATIVE AGENT
Xxxxxxx Sachs Mortgage Company
Notice Address: Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
II. LENDERS
x. Xxxxxxx Xxxxx Mortgage Company
Notice Address, Domestic and Eurodollar Xxxxxxx Sachs Mortgage Company
Lending Office: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
Eurodollar Affiliate: None
Pro Rata Share: 100%
Term Loan Commitment: $250,000,000.00
