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Exhibit 4.1
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF NOVEMBER 16, 1998
AMONG
DEVELOPERS DIVERSIFIED REALTY CORPORATION,
AS BORROWER
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
AS SYNDICATION AGENT
AND
FLEET NATIONAL BANK,
AS DOCUMENTATION AGENT
AND
COMMERZBANK AKTIENGESELLSCHAFT,
UBS AG, NEW YORK BRANCH,
AMSOUTH BANK, AS CO-AGENTS
AND
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
AS LENDERS
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement, dated as of November
16, 1998, is among Developers Diversified Realty Corporation, a corporation
organized under the laws of the State of Ohio (the"BORROWER"), The First
National Bank of Chicago, a national banking association, and the several banks,
financial institutions and other entities from time to time parties to this
Agreement (collectively, the "LENDERS"), The First National Bank of Chicago, not
individually, but as "ADMINISTRATIVE AGENT", Bank of America National Trust &
Savings Association, not individually, but as "SYNDICATION AGENT", Fleet
National Bank, not individually, but as "DOCUMENTATION AGENT" and Commerzbank
Aktiengesellschaft, UBS AG, New York Branch and AmSouth Bank, not individually
but as "CO-AGENTS".
RECITALS
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A. The Borrower is primarily engaged in the business of purchasing,
developing, owning, operating, leasing and managing retail, office and
industrial properties.
B. The Borrower is listed on the New York Stock Exchange and is
qualified as a real estate investment trust.
C. The Borrower, the Administrative Agent, and certain of the Lenders
entered into an Amended and Restated Credit Agreement dated as of February 24,
1998 (as amended by the First Amendment to Amended and Restated Revolving Credit
Agreement dated as of June 30, 1998, the "Prior Agreement"), pursuant to which
the Lenders that are parties thereto agreed to make loans to the Borrower in the
aggregate amount of up to $300,000,000 subject to future increase to up to
$400,000,000.
D. The Borrower has requested that the Lenders increase the amount of
loans that are available to the Borrower to the aggregate amount of $375,000,000
pursuant to the terms of this Agreement, and that the Administrative Agent act
as administrative agent for the Lenders and that certain other changes be made
to the Prior Agreement. The Administrative Agent and the Lenders have agreed to
do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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As used in this Agreement:
"ABR Applicable Margin" means, as of any date, the Applicable Margin in
effect on such date with respect to Floating Rate Advances and Floating Rate
Loans.
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"Absolute Interest Period" means, with respect to a Competitive Bid
Loan made at an Absolute Rate, a period of up to 180 days as requested by
Borrower and confirmed by a Lender but in no event extending beyond the Facility
Termination Date. If an Absolute Interest Period would end on a day which is not
a Business Day, such Absolute Interest Period shall end on the next succeeding
Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage or voting power) of the
outstanding partnership interests of a partnership.
"Administrative Agent" means The First National Bank of Chicago in its
capacity as agent for the Lenders pursuant to ARTICLE X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to ARTICLE X.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans (including without limitation Competitive Bid Loans
and Swingline Loans) made by one or more of the Lenders to the Borrower of the
same Type and, in the case of Fixed Rate Advances, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the aggregate of the
then-current Commitments of all the Lenders, which is, as of the Agreement
Execution Date, $375,000,000, subject to increases or decreases as provided in
SECTION 2.1 hereof.
"Agreement" means this Second Amended and Restated Credit Agreement, as
it may be amended or modified and in effect from time to time.
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"Agreement Execution Date" means the date this Agreement has been fully
executed and delivered by all parties hereto.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" means the applicable margin set forth in the table
in SECTION 2.4 used in calculating the interest rate applicable to the various
Types of Advances, which shall vary from time to time in accordance with
Borrower's long term unsecured debt ratings.
"Arranger" means First Chicago Capital Markets, Inc.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assessment Rate" means, for any CD Interest Period, the assessment
rate per annum (rounded upwards to the next higher multiple of 1/100 of 1% if
the rate is not such a multiple) payable to the Federal Deposit Insurance
Corporation (or any successor) by a member of the Bank Insurance Fund which is
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. ss.327.3(e) (or any successor provision) for the insurance of time
deposits at the offices of such institution in the United States, as estimated
by First Chicago on the first day of such CD Interest Period.
"Assets Under Development" means, as of any date of determination, all
Projects and expansion areas of existing Projects owned by the Consolidated
Group and the Investment Affiliates which are then treated as assets under
development under GAAP and which have been designated by the Borrower as "Assets
Under Development" in its most recent compliance certificate, both such land and
improvements under construction to be valued for purposes of this Agreement at
(i) 100% of then-current book value, as determined in accordance with GAAP, for
those Assets Under Development owned by members of the Consolidated Group and
(ii) the applicable Consolidated Group Pro Rata Share of then-current book
value, as determined in accordance with GAAP, for each Asset Under Development
owned by an Investment Affiliate; provided, however, in no event shall Assets
Under Development include (x) any Project or any expansion area of an existing
Project for more than 365 days or (y) with respect to Projects owned by
Investment Affiliates, any Project or expansion area of an existing Project
which is encumbered by a First Mortgage Receivable as designated by the
Borrower.
"Authorized Officer" means any of the President and Chief Executive
Officer, Executive Vice President and Chief Operating Officer, Vice President
and Chief Financial Officer or Vice President and General Counsel of the
Borrower, acting singly.
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"Borrower" means Developers Diversified Realty Corporation, a
corporation organized under the laws of the State of Ohio, and its successors
and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in SECTION 2.9.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Advances, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago, Illinois and New York, New York for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois and New York, New York for
the conduct of substantially all of their commercial lending activities.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"Capitalized Lease" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Equivalents" means, as of any date:
(i) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency
or instrumentality thereof having maturities of not
more than one year from such date;
(ii) mutual funds organized under the United States
Investment Company Act rated AAm or AAm-G by S&P, P-1
by Xxxxx'x and A by Fitch;
(iii) certificates of deposit or other interest-bearing
obligations of a bank or trust company which is a
member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less
than A-1 by S&P, not less than P-1 by Xxxxx'x and F-1
by Fitch (or in each case, if no bank or trust
company is so rated, the highest comparable rating
then given to any bank or trust company, but in such
case only for funds invested overnight or over a
weekend) provided that
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such investments shall mature or be redeemable upon
the option of the holders thereof on or prior to a
date one month from the date of their purchase;
(iv) certificates of deposit or other interest-bearing
obligations of a bank or trust company which is a
member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less
than A-1+ by S&P, and not less than P-1 by Xxxxx'x
and which has a long term unsecured debt rating of
not less than A1 by Xxxxx'x (or in each case, if no
bank or trust company is so rated, the highest
comparable rating then given to any bank or trust
company, but in such case only for funds invested
overnight or over a weekend) provided that such
investments shall mature or be redeemable upon the
option of the holders thereof on or prior to a date
three months from the date of their purchase;
(v) bonds or other obligations having a short term
unsecured debt rating of not less than A-1+ by S&P
and P-1+ by Xxxxx'x and having a long term debt
rating of not less than A1 by Xxxxx'x issued by or by
authority of any state of the United States, any
territory or possession of the United States,
including the Commonwealth of Puerto Rico and
agencies thereof, or any political subdivision of any
of the foregoing;
(vi) repurchase agreements issued by an entity rated not
less than A-1+ by S&P, and not less than P-1 by
Xxxxx'x which are secured by U.S. Government
securities of the type described in clause (i) of
this definition maturing on or prior to a date one
month from the date the repurchase agreement is
entered into;
(vii) short term promissory notes rated not less than A-1+
by S&P, and not less than P-1 by Xxxxx'x maturing or
to be redeemable upon the option of the holders
thereof on or prior to a date one month from the date
of their purchase; and
(viii) commercial paper (having original maturities of not
more than 365 days) rated at least A-1+ by S&P and
P-1 by Xxxxx'x and issued by a foreign or domestic
issuer who, at the time of the investment, has
outstanding long-term unsecured debt obligations
rated at least A1 by Xxxxx'x.
"CD Applicable Margin" means, as of any date with respect to any CD
Interest Period, the Applicable Margin in effect for such CD Interest Period as
determined in accordance with SECTION 2.4 hereof.
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"CD Interest Period" means, with respect to a Fixed CD Rate Advance, a
period of 30, 60, 90 or 180 days commencing on a Business Day selected by the
Borrower pursuant to this Agreement. If such CD Interest Period would end on a
day which is not a Business Day, such CD Interest Period shall end on the next
succeeding Business Day.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to SECTION 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Competitive Bid Borrowing Notice" is defined in SECTION 2.23(e).
"Competitive Bid Lender" means a Lender which has a Competitive Bid
Loan outstanding.
"Competitive Bid Loan" is a Loan made pursuant to SECTION 2.22 hereof.
"Competitive Bid Note" means the new or amended and restated promissory
note payable to the order of each Lender in the form attached hereto as EXHIBIT
A-2 to be used to evidence any Competitive Bid Loans which such Lender elects to
make (collectively, the "Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent or the Borrower, as the case may be with respect to an
Invitation for Competitive Bid Quotes in the form attached as EXHIBIT I-3 or
J-2.
"Competitive Bid Quote Request" means a written request from Borrower
to Administrative Agent in the form attached as EXHIBIT I-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"Condemnation" is defined in SECTION 7.8.
"Consolidated Capitalization Value" means, as of any date, an amount
equal to the sum of (i) Consolidated Cash Flow for the most recent period of two
consecutive fiscal quarters for which the Borrower has reported results
(excluding any portion of Consolidated Cash Flow attributable to (a) Assets
Under Development, (b) Projects owned by Investment Affiliates which are
encumbered by First Mortgage Receivables, and (c) Projects acquired
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by the Borrower or its Subsidiaries during such period) MULTIPLIED BY 2, and
DIVIDED BY 0.095 PLUS (ii) with respect to each Project so acquired by the
Borrower or its Subsidiaries during such period, the Borrower's estimated annual
Net Operating Income for such Project based on leases in existence at the date
of such acquisition DIVIDED BY 0.095.
"Consolidated Cash Flow" means, for any period, an amount equal to (a)
Funds From Operations for such period PLUS (b) Consolidated Interest Expense for
such period.
"Consolidated Debt Service" means, for any period, without duplication,
(a) Consolidated Interest Expense for such period PLUS (b) the aggregate amount
of scheduled principal payments attributable to Consolidated Outstanding
Indebtedness (excluding optional prepayments and scheduled principal payments in
respect of any such Indebtedness which is not amortized through equal periodic
installments of principal and interest over the term of such Indebtedness)
required to be made during such period by any member of the Consolidated Group
PLUS (c) a percentage of all such scheduled principal payments required to be
made during such period by any Investment Affiliate on Indebtedness taken into
account in calculating Consolidated Interest Expense, equal to the greater of
(x) the percentage of the principal amount of such Indebtedness for which any
member of the Consolidated Group is liable and (y) the Consolidated Group Pro
Rata Share of such Investment Affiliate.
"Consolidated Group" means the Borrower and all Subsidiaries which are
consolidated with it for financial reporting purposes under GAAP.
"Consolidated Group Pro Rata Share" means, with respect to any
Investment Affiliate, the percentage of the total equity ownership interests
held by the Consolidated Group in the aggregate, in such Investment Affiliate,
determined by calculating the greater of (i) the percentage of the issued and
outstanding stock, partnership interests or membership interests in such
Investment Affiliate held by the Consolidated Group in the aggregate and (ii)
the percentage of the total book value of such Investment Affiliate that would
be received by the Consolidated Group in the aggregate, upon liquidation of such
Investment Affiliate after repayment in full of all Indebtedness of such
Investment Affiliate.
"Consolidated Interest Expense" means, for any period without
duplication, the sum of (a) the amount of interest expense, determined in
accordance with GAAP, of the Consolidated Group for such period attributable to
Consolidated Outstanding Indebtedness during such period plus (b) the
Consolidated Group Pro Rata Share of any interest expense, determined in
accordance with GAAP, of any Investment Affiliate, for such period, whether
recourse or non-recourse less (c) with respect to each consolidated Subsidiary
of the Borrower in which the Borrower does not directly or indirectly hold a
100% ownership interest, a percentage of the interest expense attributable to
such consolidated Subsidiary which is included under clause (a) of this
definition and which is not related to Indebtedness which is a Guarantee
Obligation of the Borrower equal to the percentage ownership in such
consolidated Subsidiary which is not held either (i) directly or indirectly by
the Borrower, or
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(ii) by holders of operating partnership units in such consolidated Subsidiary
which are convertible into stock of the Borrower.
"Consolidated Market Value" means, as of any date, an amount equal to
the sum of (a) the Consolidated Capitalization Value as of such date, PLUS (b)
the value of Unrestricted Cash and Cash Equivalents, PLUS (c) the lesser of (i)
the value of Assets Under Development, or (ii) ten percent (10%) of the
Consolidated Capitalization Value PLUS (d) the lesser of (i) 100% of the
then-current value under GAAP of all First Mortgage Receivables or (ii) five
percent (5%) of the Consolidated Capitalization Value.
"Consolidated Net Income" means, for any period, consolidated net
income (or loss) of the Consolidated Group for such period determined on a
consolidated basis in accordance with GAAP; PLUS that portion of any amount
deducted as minority equity interest in calculating such consolidated net income
which is attributable to minority interest holders holding operating partnership
units in a member of the Consolidated Group which are convertible into stock in
the Borrower, but PROVIDED that there shall be excluded (a) the income (or
deficit) of any other Person accrued prior to the date it becomes a Subsidiary
of the Borrower or is merged into or consolidated with the Borrower or any of
its Subsidiaries and (b) the undistributed earnings of any Subsidiary which has
not furnished a Subsidiary Guaranty to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is not at the
time permitted by the terms of any contractual obligation or requirement of law
applicable to such Subsidiary.
"Consolidated Net Worth" means, as of any date of determination, an
amount equal to (a) Consolidated Market Value MINUS (b) Consolidated Outstanding
Indebtedness as of such date.
"Consolidated Outstanding Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated basis
in accordance with GAAP, plus (b) the applicable Consolidated Group Pro Rata
Share of any Indebtedness of each Investment Affiliate other than Indebtedness
of such Investment Affiliate to a member of the Consolidated Group, less (c)
with respect to each consolidated Subsidiary of the Borrower in which the
Borrower does not directly or indirectly hold a 100% ownership interest, a
percentage of any Indebtedness of such consolidated Subsidiary which is not a
Guarantee Obligation of the Borrower equal to the percentage ownership interest
in such consolidated Subsidiary which is not held directly or indirectly by the
Borrower.
"Consolidated Secured Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) the aggregate principal
amount of that portion of the Consolidated Outstanding Indebtedness which is
secured by any Lien on the Property of Borrower or its Subsidiaries, without
regard to recourse, plus (b) the excess, if any, over $5,000,000, of the sum of
(x) the aggregate principal amount of all Senior Unsecured Indebtedness of the
Subsidiaries of the Borrower which have not furnished Subsidiary Guaranties,
determined on
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a consolidated basis in accordance with GAAP and (y) a percentage of the
aggregate principal amount of all Indebtedness of each Investment Affiliate
equal to the greater of (x) the percentage of such Indebtedness for which any
member of the Consolidated Group is liable and (z) the Consolidated Group Pro
Rata Share of such Investment Affiliate.
"Consolidated Senior Unsecured Indebtedness" means, as of any date of
determination, the aggregate principal amount of all Senior Unsecured
Indebtedness of the Consolidated Group outstanding at such date, including
without limitation all the outstanding Indebtedness under this Agreement as of
such date, determined on a consolidated basis in accordance with GAAP.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in SECTION 2.10.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as such corporate base rate changes.
"Default" means an event described in Article VII.
"Designated Lender" means any Person who has been designated by a
Lender to fund Competitive Bid Loans pursuant to a Designation Agreement in the
form attached hereto as EXHIBIT L.
"Duff & Xxxxxx" means Duff & Xxxxxx, Inc. and its successors.
"Environmental Laws" means any and all foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect, in each case to the extent the
foregoing are applicable to the Borrower or any Subsidiary or any of their
respective assets or Projects.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Equity Value" means, with respect to a Subsidiary owned as of the
Agreement Execution Date or owned and in operation for a period of two or more
consecutive full fiscal quarters after February 24, 1998, by the Borrower or one
of its other Subsidiaries, an
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amount equal to (a) the product of (i) the sum of net income (or loss) for the
most recent two consecutive fiscal quarters without giving effect to
depreciation and amortization, gains or losses from extraordinary items, gains
or losses on sales of real estate, and gains or losses on investments in
marketable securities for such period, PLUS the amount of interest expense for
such period on the aggregate principal amount of the Indebtedness of such
Subsidiary, MULTIPLIED BY (ii) 2, DIVIDED BY (b) 0.095, and then MINUS (c)
Indebtedness of the Subsidiary as of the date of determination. For any
Subsidiary formed or purchased after February 24, 1998, until it or its
Properties have been owned and operated by the Borrower or one of its other
Subsidiaries for two or more consecutive full fiscal quarters, "Equity Value"
shall mean the Borrower's estimated annual Net Operating Income for the Projects
owned by such Subsidiary based on leases in existence at the date such
Subsidiary is formed or purchased DIVIDED by 0.095, and then MINUS the
Indebtedness of such Subsidiary as of the date of determination.
"Facility Fee" is defined in SECTION 2.5.
"Facility Fee Rate" is, as of any date, the percentage established in
accordance with the terms of SECTION 2.4.
"Facility Termination Date" means April 30, 2001.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financeable Ground Lease" means, a ground lease satisfactory to the
Required Lenders and the Administrative Agent's counsel in their reasonable
discretion, which must provide protections for a potential leasehold mortgagee
("MORTGAGEE") which include, among other things (i) a remaining term, including
any optional extension terms exercisable unilaterally by the tenant, of no less
than 25 years from the Agreement Execution Date, (ii) that the ground lease will
not be terminated until the Mortgagee has received notice of a default, has had
a reasonable opportunity to cure or complete foreclosure, and has failed to do
so, (iii) provision for a new lease on the same terms to the Mortgagee as tenant
if the ground lease is terminated for any reason, (iv) non-merger of the fee and
leasehold estates, (v) transferability of the tenant's interest under the ground
lease without any requirement for consent of the ground lessor unless based on
reasonable objective criteria as to the creditworthiness of the transferee, and
(vi) that insurance proceeds and condemnation awards
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(from the fee interest as well as the leasehold interest) will be applied
pursuant to the terms of the applicable leasehold mortgage.
"Financial Undertaking" of a Person means (i) any transaction which is
the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheet of such Person, or (ii)
any agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options.
"First Mortgage Receivable" means any Indebtedness owing to a member of
the Consolidated Group which is secured by a first-priority mortgage or deed of
trust on commercial real estate having a value in excess of the amount of such
Indebtedness and which has been designated by the Borrower as a "First Mortgage
Receivable" in its most recent compliance certificate.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Fitch" means Fitch Investor Services, Inc. and its successors.
"Fixed CD Base Rate" means, with respect to a Fixed CD Rate Advance for
the relevant CD Interest Period, the rate determined by the Administrative Agent
to be the arithmetic average of the prevailing bid rates quoted to the
Administrative Agent at or before 10 a.m. (Chicago time) on the first day of
such CD Interest Period by three New York or Chicago certificate of deposit
dealers of recognized standing selected by the Administrative Agent in its sole
discretion for the purchase at face value of certificates of deposit of First
Chicago in the approximate amount of First Chicago's relevant Fixed CD Rate Loan
and having a maturity approximately equal to such CD Interest Period.
"Fixed CD Rate" means, with respect to a Fixed CD Rate Advance for the
relevant CD Interest Period, a rate per annum equal to the sum of (i) the
quotient of (a) the Fixed CD Base Rate applicable to such CD Interest Period,
divided by (b) one minus the Reserve Requirement (expressed as a decimal)
applicable to such CD Interest Period, plus (ii) the Assessment Rate applicable
to such CD Interest Period, plus (iii) the CD Applicable Margin in effect on the
day that such Fixed CD Base Rate was determined. The Fixed CD Rate shall be
rounded to the next higher multiple of 1/100 of 1% if the rate is not such a
multiple.
"Fixed CD Rate Advance" means an Advance which bears interest at a
Fixed CD Rate.
"Fixed CD Rate Loan" means a Loan which bears interest at a Fixed CD
Rate.
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"Fixed Rate" means the Fixed CD Rate, the Absolute Rate or the LIBOR
Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) ABR Applicable Margin for such day,
in each case changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount actually
disbursed and outstanding to Borrower by such Lender at such time (including
Swingline Loans and Competitive Bid Loans), and the denominator of which is the
total amount disbursed and outstanding to Borrower by all of the Lenders at such
time (including Swingline Loans and Competitive Bid Loans).
"Funds From Operations" means, for any period, the sum of (i)
Consolidated Net Income for such period, excluding (a) gains (losses) on sales
of property, (b) non-recurring charges and extraordinary items, and (c) non-cash
charges (including, without limitation, depreciation and amortization, and
equity gains (losses) from each Investment Affiliate included therein, but
excluding any amortization of deferred finance costs), PLUS (ii) the applicable
Consolidated Group Pro Rata Share of funds from operations of each Investment
Affiliate that is due to the Consolidated Group for such period, all determined
on a consistent basis. With regard to the foregoing sentence, for each
consolidated Subsidiary of the Borrower in which the Borrower does not directly
or indirectly hold a 100% ownership interest, each of clauses (a), (b) and (c)
shall exclude the portion of such item attributable to minority interest holders
which do not hold operating partnership units convertible to stock in the
Borrower.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in SECTION 6.1.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee Obligation" means, as to any Person (the "GUARANTEEING
PERSON"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another
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Person (including, without limitation, any bank under any Letter of Credit) to
induce the creation of which the guaranteeing person has issued a reimbursement,
counter-indemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "PRIMARY OBLIGOR") in
any manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; PROVIDED, HOWEVER, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the
maximum stated amount of the primary obligation relating to such Guarantee
Obligation (or, if less, the maximum stated liability set forth in the
instrument embodying such Guarantee Obligation), PROVIDED, that in the absence
of any such stated amount or stated liability, the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good faith.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money including without limitation
any repurchase obligation or liability of such Person with respect to
securities, accounts or notes receivable sold by such Person, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), to the extent
such obligations constitute indebtedness for the purposes of GAAP, (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) all Capitalized Lease Obligations, (e) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person, (f) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated Indebtedness of the Consolidated Group , Guarantee
Obligations of one member of the Consolidated Group in respect of primary
obligations of any other member of the Consolidated Group), (g) all
reimbursement obligations of such Person for letters of credit and other
contingent liabilities, and (h) all liabilities secured by any lien (other than
liens for taxes not yet due and payable) on any property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof.
"Interest Period" means an Absolute Interest Period, a CD Interest
Period or a LIBOR Interest Period.
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15
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of any other Person
made by such Person.
"Investment Affiliate" means any Person in which the Consolidated
Group, directly or indirectly, has an ownership interest, whose financial
results are not consolidated under GAAP with the financial results of the
Consolidated Group.
"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent in the form attached as EXHIBIT I-2 for
Competitive Bid Loans made pursuant to SECTION 2.23, and a written notice to the
Lenders from the Borrower in the form of EXHIBIT J-1 for Competitive Bid Loans
made pursuant to SECTION 2.24.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, their respective successors and assigns and any other lending
institutions that subsequently become parties to this Agreement.
"Lending Installation" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"LIBOR Advance" means an Advance that bears interest at the LIBOR Rate,
whether a ratable Advance based on the LIBOR Applicable Margin or a Competitive
Bid Loan based on a Competitive LIBOR Margin.
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Interest Period, the Applicable Margin in effect for such LIBOR Interest
Period as determined in accordance with SECTION 2.4 hereof.
"LIBOR Base Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the rate determined by the Administrative Agent
to be the rate at which deposits in U.S. dollars are offered by First Chicago to
first-class banks in the London interbank market at approximately 11 a.m.
(London time) two Business Days prior to the first day of such LIBOR Interest
Period, in the approximate amount of First Chicago's share of the relevant LIBOR
Advance and having a maturity approximately equal to such LIBOR Interest Period.
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16
"LIBOR Interest Period" means a period of one, two, three or six months
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Such LIBOR Interest Period shall end on (but exclude) the day which
corresponds numerically to such date one, two, three or six months thereafter,
provided, however, that if there is no such numerically corresponding day in
such next, second, third or sixth succeeding month, such LIBOR Interest Period
shall end on the last Business Day of such next, second, third or sixth
succeeding month. If a LIBOR Interest Period would otherwise end on a day which
is not a Business Day, such LIBOR Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such LIBOR Interest Period shall end
on the immediately preceding Business Day.
"LIBOR Loan" means a Loan which bears interest at a LIBOR Rate.
"LIBOR Rate" means, with respect to a LIBOR Advance for the relevant
LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate
applicable to such LIBOR Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such LIBOR Interest Period,
plus (ii) in the case of ratable LIBOR Advances, the LIBOR Applicable Margin in
effect from time to time during such LIBOR Interest Period, or in the case of
LIBOR Advances made as Competitive Bid Loans, the Competitive LIBOR Margin
established in the Competitive Bid Quote applicable to such Competitive Bid
Loan. The LIBOR Rate shall be rounded to the next higher 1/100 of 1% if the rate
is not a multiple of 1/100 of 1%.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, the Subsidiary
Guaranty, and any other document from time to time evidencing or securing
indebtedness incurred by the Borrower under this Agreement, as any of the
foregoing may be amended or modified from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
obligations under the Loan Documents, or (iii) the validity or enforceability of
any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental
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Law, including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Maximum Legal Rate" means the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and as
provided for herein or in the Note or other Loan Documents, under the laws of
such state or states whose laws are held by any court of competent jurisdiction
to govern the interest rate provisions of the Loan.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Operating Income" means, with respect to any Project for any
period, "property rental and other income" (as determined by GAAP) attributable
to such Project accruing for such period MINUS the amount of all expenses (as
determined in accordance with GAAP) incurred in connection with and directly
attributable to the ownership and operation of such Project for such period,
including, without limitation, Management Fees and amounts accrued for the
payment of real estate taxes and insurance premiums, but excluding interest
expense or other debt service charges and any non-cash charges such as
depreciation or amortization of financing costs. As used herein "Management
Fees", means, with respect to each Project for any period, an amount equal to
(i) three percent (3%) of the aggregate base rent and percentage rent due and
payable under leases with anchor tenants at such Project, PLUS (ii) five percent
(5%) of the aggregate base rent and percentage rent due and payable under leases
with tenants other than anchor tenants at such Project.
"Note" means a new (in the case of Lenders not parties to the Prior
Agreement) or an amended and restated (in the case of Lenders parties to the
Prior Agreement) promissory note, in substantially the form of EXHIBIT A-1
hereto, duly executed by the Borrower and payable to the order of a Lender in
the amount of its Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Notice of Assignment" is defined in SECTION 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Administrative Agent or any indemnified party hereunder
arising under the Loan Documents.
"Participants" is defined in SECTION 12.2.1.
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"Payment Date" means, with respect to the payment of interest accrued
on any Advance, the first day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means for each Lender the ratio that such Lender's
Commitment bears to the Aggregate Commitment, expressed as a percentage.
"Permitted Acquisitions" are defined in SECTION 6.15.
"Permitted Liens" are defined in SECTION 6.16.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Prior Agreement" is defined in RECITAL C.
"Project" means any real estate asset owned by Borrower or any of its
Subsidiaries or any Investment Affiliate, and operated or intended to be
operated as a retail, office or industrial property.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in SECTION 12.3.1.
"Recourse Indebtedness" means any Indebtedness of Borrower or any of
its Subsidiaries with respect to which the liability of the obligor is not
limited to the obligor's interest in specified assets securing such
Indebtedness, subject to customary limited exceptions for certain acts or types
of liability.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or
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official interpretation of said Board of Governors relating to the extension of
credit by banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66
2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to a CD Interest Period or a
LIBOR Interest Period, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves) which is imposed under
Regulation D on new non-personal time deposits of $100,000 or more with a
maturity equal to that of such CD Interest Period (in the case of Fixed CD Rate
Advances) or on Eurocurrency liabilities (in the case of LIBOR Advances).
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Senior Unsecured Indebtedness" means all Indebtedness other than
Subordinated Indebtedness of any Person that is not secured by a Lien on any
asset of such Person.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Subordinated Indebtedness" means Indebtedness which is contractually
subordinated to the Obligations on terms reasonably acceptable to the
Administrative Agent, including, without limitation, the Borrower's 7%
Convertible Subordinated Debentures Due 1999.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person
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and one or more of its Subsidiaries, or (ii) any partnership, association, joint
venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Subsidiary Guarantor" means each Subsidiary of the Borrower which is
required to execute a Subsidiary Guaranty pursuant to SECTION 6.13.
"Subsidiary Guaranty" means the guaranty to be executed and delivered
by certain Subsidiaries of the Borrower, substantially in the form of EXHIBIT F,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the assets of the Consolidated Group as would be shown in the consolidated
financial statements of the Consolidated Group as at the beginning of the
twelve-month period ending with the month in which such determination is made,
or (ii) is responsible for more than 10% of the consolidated net sales or of the
consolidated net income of the Consolidated Group as reflected in the financial
statements referred to in clause (i) above.
"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Lender" shall mean Administrative Agent, in its capacity as
a Lender.
"Swingline Loans" means loans of up to $10,000,000 made by the
Swingline Lender in accordance with SECTION 2.21 hereof.
"Transferee" is defined in SECTION 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance, LIBOR Advance or Fixed CD Rate Advance.
"Unencumbered Asset" means, with respect to any Project located in the
United States 100% of which is owned in fee simple or ground leased by the
Borrower or a Subsidiary Guarantor (provided that a Project which is ground
leased shall be included as an Unencumbered Asset only if such ground lease is a
Financeable Ground Lease) which, as of any date of determination, (a) is not
subject to any Liens or claims (including restrictions on transferability or
assignability) of any kind (including any such Lien, claim or restriction
imposed by the organizational documents of any Subsidiary Guarantor) other than
Permitted Liens set forth in SECTIONS 6.16(i) THROUGH 6.16(iv)), (b) is not
subject to any agreement (including (i) any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset, and
(ii) if applicable, the organizational documents of any
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Subsidiary Guarantor) which prohibits or limits the ability of the Borrower or
any Subsidiary Guarantor to create, incur, assume or suffer to exist any Lien
upon any assets or Capital Stock of the Borrower or any Subsidiary Guarantor,
including, without limitation, any negative pledge or similar covenant or
restriction, (c) is not subject to any agreement (including any agreement
governing Indebtedness incurred in order to finance or refinance the acquisition
of such asset) which entitles any Person to the benefit of any Lien (other than
Permitted Liens set forth in SECTIONS 6.16(i) THROUGH 6.16(iv)) on any assets or
Capital Stock of the Borrower or any Subsidiary Guarantor, or would entitle any
Person to the benefit of any Lien (other than Permitted Liens set forth in
SECTIONS 6.16(i) THROUGH 6.16(iv)) on such assets or Capital Stock upon the
occurrence of any contingency (including, without limitation, pursuant to an
"equal and ratable" clause), and (d) has been improved with an income-producing
building or buildings which are substantially completed and occupied. For the
purposes of this Agreement, any Project of a Subsidiary Guarantor shall not be
deemed to be unencumbered unless both (i) such Project and (ii) all Capital
Stock of such Subsidiary Guarantor held by the Borrower is unencumbered.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unrestricted Cash and Cash Equivalents" means, in the aggregate, all
cash and Cash Equivalents which are not pledged or otherwise restricted for the
benefit of any creditor and which are owned by members of the Consolidated Group
or Investment Affiliates, to be valued for purposes of this Agreement at (i)
100% of its then-current book value, as determined under GAAP, for any such
items owned by a member of the Consolidated Group or (ii) the applicable
Consolidated Group Pro Rata Share of its then-current book value, as determined
under GAAP, for any such items owned by an Investment Affiliate.
"Value of Unencumbered Assets" means, as of any date, the amount
determined by dividing the Net Operating Income for each Project which is an
Unencumbered Asset as of such date for a calculation period which shall be
either the immediately preceding two (2) full fiscal quarters or, if so
requested by Borrower or the Administrative Agent, the one (1) immediately
preceding full fiscal quarter and the then current partial quarter (in all cases
as annualized) by 0.095, provided that not more than 15% of the Value of
Unencumbered Assets shall be attributable to Unencumbered Assets which are
ground leased. If a Project has been acquired during such calculation period
then Borrower shall be entitled to include pro forma Net Operating Income (based
on leases in existence at the date of such acquisition) from such Project for
the entire calculation period in the foregoing calculation, except for purposes
of the financial covenant comparing the Net Operating Income from Unencumbered
Assets to Consolidated Interest Expense under SECTION 6.21(iv). If a Project is
no longer
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owned as of the date of determination, then no value shall be included based on
capitalizing Net Operating Income from such Project, except for purposes of such
financial covenant comparing the Net Operating Income from Unencumbered Assets
to Consolidated Interest Expense under SECTION 6.21(iv).
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDIT
----------
2.1. COMMITMENTS; REDUCTION OR INCREASE IN AGGREGATE COMMITMENT.
Subject to the terms and conditions of this Agreement, Lenders severally agree
to make Advances through the Administrative Agent to Borrower from time to time
prior to the Facility Termination Date, PROVIDED THAT the making of any such
Advance will not cause the outstanding principal balance of all Loans (including
all Advances, Swingline Loans and Competitive Bid Loans) to exceed the
then-current Aggregate Commitment. The Advances may be ratable Floating Rate
Advances, ratable Fixed Rate Advances, non-pro rata Swingline Loans or non-pro
rata Competitive Bid Loans. Except for Swingline Loans and Competitive Bid
Loans, each Lender shall fund its Percentage of each such Advance and no Lender
will be required to fund any amounts which, when aggregated with such Lender's
Percentage of (i) all other Advances (other than Competitive Bid Loans) then
outstanding and (ii) all Swingline Advances, would exceed such Lender's
then-current Commitment. This facility ("FACILITY") is a revolving credit
facility and, subject to the provisions of this Agreement, Borrower may request
Advances hereunder, repay such Advances and reborrow Advances at any time prior
to the Facility Termination Date.
The Borrower shall have the right, upon not less than five (5) Business
Days' irrevocable notice to the Administrative Agent, to terminate the Aggregate
Commitment in its entirety or, from time to time, to reduce the amount of the
Aggregate Commitment PROVIDED that no such termination or reduction shall be
permitted if, after giving effect thereto and to any payments of Advances made
on the effective date thereof, the aggregate principal amount of the Advances
then outstanding would exceed the remaining Aggregate Commitment,
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subject to the provisions of the following grammatical paragraph. Any such
reduction shall be in an amount equal to $5,000,000 or a whole multiple thereof
and shall reduce permanently the Aggregate Commitment. Any such reduction shall
reduce the Commitments of all of the Lenders ratably in proportion to their
respective Commitments and, unless otherwise agreed by the Swingline Lender,
shall reduce the maximum amount of Swingline Advances permitted hereunder by the
same proportion.
The Borrower shall also have the right from time to time to increase
the Aggregate Commitment up to a maximum of $400,000,000 by either adding new
banks as Lenders (subject to the Administrative Agent's prior written approval
of the identity of such new banks) or obtaining the agreement, which shall be at
such Lender's or Lenders' sole discretion, of one or more of the then-current
Lenders to increase its or their Commitments. Such increases shall be evidenced
by the execution and delivery of an Amendment Regarding Increase in the form of
Exhibit K attached hereto by the Borrower, the Administrative Agent and the new
bank or existing Lender providing such additional Commitment, a copy of which
shall be forwarded to each Lender by the Administrative Agent promptly after
execution thereof. On the effective date of each such increase in the Aggregate
Commitment, the Borrower and the Administrative Agent shall cause the new or
existing Lenders providing such increase, by either funding more than its or
their Percentage of new ratable Advances made on such date or purchasing shares
of outstanding ratable Loans held by the other Lenders or a combination thereof,
to hold its or their Percentage of all ratable Advances outstanding at the close
of business on such day. The Lenders agree to cooperate in any required sale and
purchase of outstanding ratable Advances to achieve such result, provided that
if any such required sale results in a prepayment of any outstanding ratable
Fixed Rate Advances, Borrower shall make all payments required by SECTION 3.4 to
Lenders. In no event will such new or existing Lenders providing the increase be
required to fund or purchase a portion of any Competitive Bid Loan or Swingline
Loan to comply with this Section on such date. In no event shall the Aggregate
Commitment exceed $400,000,000 without the approval of all of the Lenders.
2.2. FINAL PRINCIPAL PAYMENT. Any outstanding Advances and all other
unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.3. RATABLE AND NONRATABLE LOANS. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in proportion to their
respective Percentages, except for Swingline Loans which shall be made by the
Swingline Lender in accordance with Section 2.21 and Competitive Bid Loans which
may be made on a non-pro rata basis by one or more of the Lenders in accordance
with SECTIONS 2.23 and 2.24.
2.4. APPLICABLE MARGINS. Each of the ABR Applicable Margin, the CD
Applicable Margin and the LIBOR Applicable Margin to be used in calculating the
interest rate applicable to different Types of Advances and the Facility Fee
Rate to be used in calculating the Facility Fee shall vary from time to time in
accordance with the higher of Borrower's then applicable Xxxxx'x debt rating and
S&P's debt rating unless one of such two ratings is
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more than one rating category lower than the other, in which case the average of
the two different Applicable Margins and the average of the two different
Facility Fee Rates shall be used. The Applicable Margins shall be adjusted
effective on the next Business Day following any change in Borrower's Xxxxx'x
debt rating and/or S&P's debt rating, as the case may be. The applicable debt
ratings, the Applicable Margins and Facility Fee Rate are set forth in the
following table:
=============================== ============================ ================== =================== ================
LIBOR/CD ABR
APPLICABLE APPLICABLE FACILITY
S&P RATING XXXXX'X RATING MARGIN MARGIN FEE RATE
------------------------------- ---------------------------- ------------------ ------------------- ----------------
A- or higher A3 or higher 0.65% 0.00% 0.15%
------------------------------- ---------------------------- ------------------ ------------------- ----------------
BBB+ Baa1 0.75% 0.00% 0.15%
------------------------------- ---------------------------- ------------------ ------------------- ----------------
BBB Baa2 0.85% 0.00% 0.15%
------------------------------- ---------------------------- ------------------ ------------------- ----------------
BBB- Baa3 1.00% 0.00% 0.15%
------------------------------- ---------------------------- ------------------ ------------------- ----------------
Less than BBB- Less than Baa3 1.15% 0.15% 0.25%
=============================== ============================ ================== =================== ================
In the event that either S&P or Xxxxx'x shall discontinue their ratings of the
REIT industry or the Borrower, the Borrower may seek a debt rating from another
substitute rating agency reasonably satisfactory to the Administrative Agent and
the Borrower. For the period from the date of such discontinuance until the
first to occur of (i) the date the Borrower receives a debt rating from such new
rating agency or (ii) a date 180 days after such discontinuance, the single
rating from S&P or Xxxxx'x, as the case may be, shall be used to determine the
Applicable Margin and the Facility Fee Rate. If the debt rating of the Borrower
from such new rating agency is not received within such 180 day period, or if
both S&P and Xxxxx'x shall discontinue their ratings of the REIT industry or the
Borrower, the Applicable Margin to be used for the calculation of interest on
Advances hereunder shall be the highest Applicable Margin for each Type and the
Facility Fee to be used for the calculation of the Facility Fee shall be the
highest rate shown above.
If a rating agency downgrade or discontinuance results in an increase
in the ABR Applicable Margin, the CD Applicable Margin or the LIBOR Applicable
Margin or in the Facility Fee Rate and if such increase is reversed and the
affected Applicable Margin or Facility Fee Rate is restored within ninety (90)
days thereafter, at Borrower's request, Borrower shall receive a credit against
interest next due the Lenders equal to (i) interest accrued at the differential
between such Applicable Margins plus (ii) the differential in the Facility Fees
accruing from time to time during such period of downgrade or discontinuance.
2.5. FACILITY FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee (the "FACILITY FEE")
calculated for each day after the Agreement Execution Date through the Facility
Termination Date at a per annum rate equal to the Facility Fee Rate in effect
for such day (converted to a per diem rate) times the Aggregate Commitment as of
such day. The Facility Fee shall be payable quarterly in arrears on the last day
of each calendar quarter hereafter beginning December 31, 1998 and on the
Facility Termination Date. Notwithstanding the foregoing, all accrued Facility
Fees
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shall be payable on the effective date of any reduction in the Aggregate
Commitment or any termination of the obligations of the Lenders to make Loans
hereunder.
2.6. OTHER FEES. The Borrower agrees to pay all fees payable to the
Administrative Agent and the Arranger pursuant to the Borrower's letter
agreement with the Administrative Agent and the Arranger dated August 31, 1998.
The Borrower shall also pay the fee due to the Administrative Agent in
connection with certain Competitive Bid Loans as provided in Section 2.23
hereof.
2.7. MINIMUM AMOUNT OF EACH ADVANCE. Each Advance shall be in the
minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof); provided, however, that any Floating Rate Advance may be in the amount
of the unused Aggregate Commitment.
2.8. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all or any part of outstanding Floating Rate
Advances without prior notice to the Administrative Agent. A Fixed Rate Advance
may be paid on the last day of the applicable Interest Period or, if and only if
the Borrower pays any amounts due to the Lenders under SECTIONS 3.4 and 3.5 as a
result of such prepayment, on a day prior to such last day. Notwithstanding the
foregoing, in no event shall Borrower have the right to prepay a Competitive Bid
Loan without the consent of the applicable Competitive Bid Lender.
2.9. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
The Borrower shall select the Type of Advance and, in the case of each Fixed
Rate Advance, the Interest Period applicable to each Advance from time to time.
The Borrower shall give the Administrative Agent irrevocable notice (a
"Borrowing Notice") (i) not later than 9:00 a.m. Chicago time on the Borrowing
Date of each Floating Rate Advance, (ii) not later than 10:00 a.m. Chicago time,
at least one (1) Business Day before the Borrowing Date for each Fixed CD Rate
Advance, (iii) not later than 10:00 a.m. Chicago time, at least three (3)
Business Days before the Borrowing Date for each LIBOR Advance, and (iv) not
later than 2:00 p.m. Chicago time on the Borrowing Date for each Swingline Loan,
specifying:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected (which must be a
Floating Rate Advance in the case of the Swingline
Loans), and
(iv) in the case of each Fixed Rate Advance, the Interest
Period applicable thereto.
The Administrative Agent shall provide a copy to the Lenders by
facsimile of each Borrowing Notice and each Conversion/Continuation Notice not
later than the close of
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business on the Business Day it is received. Each Lender shall make available
its Loan or Loans, in funds immediately available in Chicago to the
Administrative Agent at its address specified pursuant to ARTICLE XIII on each
Borrowing Date not later than (i) 10:00 a.m. (Chicago time), in the case of
Floating Rate Advances which have been requested by a Borrowing Notice given to
the Administrative Agent not later than 3:00 p.m. (Chicago time) on the Business
Day immediately preceding such Borrowing Date, or (ii) noon (Chicago time) in
the case of all other Advances (other than Swingline Loans), and 4:00 p.m.
(Chicago time) for all Swingline Loans. The Administrative Agent will make the
funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
No Interest Period may end after the Facility Termination Date and,
unless the Lenders otherwise agree in writing, in no event may there be more
than five (5) different Interest Periods for LIBOR Advances outstanding at any
one time.
2.10. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Fixed Rate Advances. Each Fixed Rate
Advance of any Type shall continue as a Fixed Rate Advance of such Type until
the end of the then applicable Interest Period therefor, at which time such
Fixed Rate Advance shall be automatically converted into a Floating Rate Advance
unless the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Fixed Rate Advance either continue as a Fixed Rate Advance of such
Type for the same or another Interest Period or be converted to an Advance of
another Type. Subject to the terms of SECTION 2.7, the Borrower may elect from
time to time to convert all or any part of an Advance of any Type into any other
Type or Types of Advances; provided that any conversion of any Fixed Rate
Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto. The Borrower shall give the Administrative Agent irrevocable
notice (a "Conversion/Continuation Notice") of each conversion of an Advance to
a Fixed Rate Advance or continuation of a Fixed Rate Advance not later than
10:00 a.m. (Chicago time) at least one Business Day, in the case of a conversion
into a Fixed CD Rate Advance or a continuation of a Fixed CD Rate Advance, or
three Business Days, in the case of a conversion into or continuation of a LIBOR
Advance, prior to the date of the requested conversion or continuation,
specifying:
(i) the requested date which shall be a Business Day, of
such conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is
to be converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the
case of a conversion into or
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continuation of a Fixed Rate Advance, the duration of
the Interest Period applicable thereto.
2.11. CHANGES IN INTEREST RATE, ETC. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a Fixed Rate
Advance into a Floating Rate Advance pursuant to SECTION 2.10 to but excluding
the date it becomes due or is converted into a Fixed Rate Advance pursuant to
SECTION 2.10 hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Fixed Rate Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such Fixed Rate Advance.
2.12. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.9 or 2.10, during the continuance of a Default
or Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of SECTION 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Fixed Rate Advance. During the continuance of a
Default the Required Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of SECTION 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each Fixed Rate Advance
shall bear interest for the remainder of the applicable Interest Period at the
rate otherwise applicable to such Interest Period plus 2% per annum and (ii)
each Floating Rate Advance shall bear interest at a rate per annum equal to the
Floating Rate otherwise applicable to the Floating Rate Advance plus 2% per
annum.
2.13. Method of Payment.
------------------
(i) All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in
immediately available funds to the Administrative
Agent at the Administrative Agent's address specified
pursuant to ARTICLE XIII, or at any other Lending
Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower,
by noon (local time) on the date when due and shall
be applied ratably by the Administrative Agent among
the Lenders.
(ii) As provided elsewhere herein, all Lenders' interests
in the Advances and the Loan Documents shall be
ratable undivided interests and none of such Lenders'
interests shall have priority over the others. Each
payment delivered to the Administrative Agent for the
account of any
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Lender or amount to be applied or paid by the
Administrative Agent to any Lender shall be paid
promptly (on the same day as received by the
Administrative Agent if received prior to noon (local
time) on such day and otherwise on the next Business
Day) by the Administrative Agent to such Lender in
the same type of funds that the Administrative Agent
received at its address specified pursuant to ARTICLE
XIII or at any Lending Installation specified in a
notice received by the Administrative Agent from such
Lender. Payments received by the Administrative Agent
but not timely funded to the Lenders shall bear
interest payable by the Administrative Agent at the
Federal Funds Effective Rate from the date due until
the date paid. The Administrative Agent is hereby
authorized to charge the account of the Borrower
maintained with First Chicago for each payment of
principal, interest and fees as it becomes due
hereunder.
2.14. NOTES; TELEPHONIC NOTICES. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note, provided, however, that the failure to so record
shall not affect the Borrower's obligations under such Note. The Borrower hereby
authorizes the Lenders and the Administrative Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to transfer funds
based on telephonic notices made by any Authorized Officer. The Borrower agrees
to deliver promptly to the Administrative Agent a written confirmation, if such
confirmation is requested by the Administrative Agent or any Lender, of each
telephonic notice signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
shall govern absent manifest error.
2.15. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, at maturity, whether by
acceleration or otherwise, and upon any termination of the Aggregate Commitment
in its entirety under SECTION 2.1 hereof. Interest accrued on each Fixed Rate
Advance shall be payable on the last day of the Interest Period applicable to
such Fixed Rate Advance or any earlier date on which such Fixed Rate Advance is
prepaid, at maturity, whether by acceleration or otherwise, and upon any
termination of the Aggregate Commitment in its entirety under SECTION 2.1
hereof. Interest and Facility Fees shall be calculated for actual days elapsed
on the basis of a 360-day year. Interest shall be payable for the day an Advance
is made but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
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2.16. NOTIFICATION OF ADVANCES, INTEREST RATES AND PREPAYMENTS. The
Administrative Agent will notify each Lender of the contents of each Borrowing
Notice, Conversion/Continuation Notice, and repayment notice received by it
hereunder not later than the close of business on the Business Day such notice
is received by the Administrative Agent. The Administrative Agent will notify
each Lender of the interest rate applicable to each Fixed Rate Advance promptly
upon determination of such interest rate and will give each Lender prompt notice
of each change in the Alternate Base Rate.
2.17. LENDING INSTALLATIONS. Subject to SECTION 3.5, each Lender may
book its Loans at any Lending Installation selected by such Lender and may
change its Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation and the Notes shall be deemed held
by each Lender for the benefit of such Lending Installation. Each Lender may, by
written or telex notice to the Administrative Agent and the Borrower, designate
a Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
2.18. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the time at which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (i) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day or (ii) in the case of payment by
the Borrower, the interest rate applicable to the relevant Loan. If such Lender
so repays such amount and interest thereon to the Administrative Agent within
one Business Day after such demand, all interest accruing on the Loan not funded
by such Lender during such period shall be payable to such Lender when received
from the Borrower.
2.19. WITHHOLDING TAX EXEMPTION. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Borrower and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the
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Borrower and the Administrative Agent two additional copies of such form (or a
successor form) on or before the date that such form expires (currently, three
successive calendar years for Form 1001 and one calendar year for Form 4224) or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent forms so delivered by it, and such amendments thereto or extensions
or renewals thereof as may be reasonably requested by the Borrower or the
Administrative Agent, in each case certifying that such Lender is entitled to
receive payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
2.20. REPLACEMENT OF LENDERS UNDER CERTAIN CIRCUMSTANCES. The Borrower
shall be permitted to replace any Lender which (a) is not capable of receiving
payments without any deduction or withholding of United States federal income
tax pursuant to SECTION 2.19, or (b) cannot maintain its Fixed Rate Loans at a
suitable Lending Installation pursuant to SECTION 3.3, with a replacement bank
or other financial institution; PROVIDED that (i) such replacement does not
conflict with any applicable legal or regulatory requirements affecting the
Lenders, (ii) no Default or (after notice thereof to Borrower) no Unmatured
Default shall have occurred and be continuing at the time of such replacement,
(iii) the Borrower shall repay (or the replacement bank or institution shall
purchase, at par) all Loans and other amounts owing to such replaced Lender
prior to the date of replacement, (iv) the Borrower shall be liable to such
replaced Lender under SECTIONS 3.4 and 3.5 if any Fixed Rate Loan owing to such
replaced Lender shall be prepaid (or purchased) other than on the last day of
the Interest Period relating thereto, (v) the replacement bank or institution,
if not already a Lender, and the terms and conditions of such replacement, shall
be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
SECTION 12.3 (provided that the Borrower shall be obligated to pay the
processing fee referred to therein), (vii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to SECTION 2.19 and (viii) any such replacement shall not be
deemed to be a waiver of any rights which the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
2.21. SWINGLINE LOANS. In addition to the other options available to
Borrower hereunder, up to $10,000,000 of the Swingline Lender's Commitment,
shall be available for Swingline Loans subject to the following terms and
conditions. Swingline Loans shall be made available for same day borrowings
provided that notice is given in accordance with SECTION 2.9 hereof. Unless
otherwise approved in writing by the Required Lenders, no Swingline Loan may be
made by the Swingline Lender if the Swingline Lender has either given or
received written notice that a Default has occurred prior to making such
Swingline
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Loan unless such Default has theretofore been cured or waived in accordance with
the terms hereof. All Swingline Loans shall bear interest at the Floating Rate
and shall be deemed to be Floating Rate Advances. In no event shall the
Swingline Lender be required to fund a Swingline Loan if it would increase the
total aggregate outstanding Loans (including Swingline Loans but not including
Competitive Bid Loans) by Swingline Lender hereunder to an amount in excess of
its Commitment. Upon request of the Swingline Lender made to all the Lenders,
each Lender irrevocably agrees to purchase its Percentage of any Swingline Loan
made by the Swingline Lender regardless of whether the conditions for
disbursement are satisfied at the time of such purchase, including the existence
of an Event of Default hereunder provided no Lender shall be required to have
total outstanding Loans (other than Competitive Bid Loans) in an amount greater
than its Commitment. Such purchase shall take place on the date of the request
by Swingline Lender so long as such request is made by noon (Chicago time),
otherwise on the Business Day following such request. All requests for purchase
shall be in writing. From and after the date it is so purchased, each such
Swingline Loan shall, to the extent purchased, (i) be treated as a Loan made by
the purchasing Lenders and not by the selling Lender for all purposes under this
Agreement and the payment of the purchase price by a Lender shall be deemed to
be the making of a Loan by such Lender and shall constitute outstanding
principal under such Lender's Note, and (ii) shall no longer be considered a
Swingline Loan except that all interest accruing on or attributable to such
Swingline Loan for the period prior to the date of such purchase shall be paid
when due by the Borrower to the Administrative Agent for the benefit of the
Swingline Lender and all such amounts accruing on or attributable to such Loans
for the period from and after the date of such purchase shall be paid when due
by the Borrower to the Administrative Agent for the benefit of the purchasing
Lenders. If prior to purchasing its Percentage of a Swingline Loan one of the
events described in SECTION 7.7 OR 7.8 shall have occurred and such event
prevents the consummation of the purchase contemplated by preceding provisions,
each Lender will purchase an undivided participating interest in the outstanding
Swingline Loan in an amount equal to its Percentage of such Swingline Loan. From
and after the date of each Lender's purchase of its participating interest in a
Swingline Loan, if the Swingline Lender receives any payment on account thereof,
the Swingline Lender will distribute to such Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
was received by the Swingline Lender and is required to be returned to the
Borrower, each Lender will return to the Swingline Lender any portion thereof
previously distributed by the Swingline Lender to it. If any Lender fails to so
purchase its Percentage of any Swingline Loan, such Lender shall be deemed to be
a Defaulting Lender hereunder. No Swingline Loan shall be outstanding for more
than five (5) days at a time and Swingline Loans shall not be outstanding for
more than a total of ten (10) days during any month.
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2.22. Competitive Bid Loans.
----------------------
(a) COMPETITIVE BID OPTION. In addition to ratable Advances
pursuant to SECTION 2.3, but subject to the terms and conditions of
this Agreement (including, without limitation the limitation set forth
in SECTION 2.1 as to the maximum amount of all outstanding Advances,
including Swingline Loans and Competitive Bid Loans), the Borrower may,
as set forth in SECTIONS 2.23 or 2.24, request the Lenders, prior to
the Facility Termination Date, to make offers to make Competitive Bid
Loans to the Borrower. Each Lender may, but shall have no obligation
to, make such offers and the Borrower may, but shall have no obligation
to, accept any such offers in the manner set forth in SECTION 2.23 or
SECTION 2.24, as the case may be. Competitive Bid Loans shall be
evidenced by the Competitive Bid Notes. Borrower shall not have the
right to request a Competitive Bid Loan at any time that a Default
exists. If Borrower elects to have Administrative Agent administer the
Competitive Bid Loan process, the procedures set forth in SECTION 2.23
shall apply. If Borrower elects to administer the Competitive Bid Loan
process itself, the procedures set forth in SECTION 2.24 shall apply.
(b) GENERAL TERMS. Any Competitive Bid Loan shall not reduce
the Commitment of the Lender making such Competitive Bid Loan, and each
such Lender shall continue to be obligated to fund its full Percentage
of all pro rata Advances under the Facility. In no event can the
aggregate amount of all Competitive Bid Loans at any time exceed fifty
percent (50%) of the then Aggregate Commitment. Notwithstanding
anything to the contrary in SECTION 2.10, Competitive Bid Loans may not
be continued or converted and, if not repaid at the end of the Interest
Period applicable thereto, shall (subject to the conditions set forth
in this Agreement) be replaced by new Competitive Bid Loans made in
accordance with SECTION 2.23 or SECTION 2.24 or by ratable Advances in
accordance with SECTION 2.9.
(c) FUNDING OF COMPETITIVE BID LOANS. Each Lender that is to
make a Competitive Bid Loan shall, before 2:00 p.m. (Chicago time) on
the date of such Competitive Bid Loan specified in the notice received
from the Borrower make available the amount of such Competitive Bid
Loan to the Administrative Agent. If such Lender also has an
outstanding Competitive Bid Loan that is payable on such date, the
Borrower agrees that such Lender may fund only the net increase, if
any, in such new Competitive Bid Loan over the principal balance of
such outstanding Competitive Bid Loan and such outstanding Competitive
Bid Loan shall be deemed advanced by the Lender to the Borrower on the
terms of the new Competitive Bid Loan. Upon fulfillment of the
applicable conditions to disbursement and after receipt of such funds,
the Administrative Agent will make such funds available to the Borrower
at the Administrative Agent's aforesaid address.
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2.23. Agent Administered Competitive Bid Loans.
-----------------------------------------
(a) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes to
request offers to make Competitive Bid Loans under this SECTION 2.23,
it shall transmit to the Administrative Agent by telecopy a Competitive
Bid Quote Request substantially in the form of EXHIBIT I-1 hereto so as
to be received no later than (i) 10:00 a.m. (Chicago time) at least
five Business Days prior to the Borrowing Date proposed therein, in the
case of a request for a Competitive LIBOR Margin or (ii) 9:00 a.m.
(Chicago time) at least one Business Day prior to the Borrowing Date
proposed therein, in the case of a request for an Absolute Rate
specifying:
(i) the proposed Borrowing Date for the
proposed Competitive Bid Loan,
(ii) the requested aggregate principal amount of
such Competitive Bid Loan which shall be at least $5,000,000
and in an integral multiple of $1,000,000,
(iii) whether the Competitive Bid Quotes
requested are to set forth a Competitive LIBOR Margin or an
Absolute Rate, or both, and
(iv) the LIBOR Interest Period, if a Competitive
LIBOR Margin is requested, or the Absolute Interest Period, if
an Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more
than one (but not more than five) Interest Periods in a single
Competitive Bid Quote Request. No Competitive Bid Quote Request shall
be given within five Business Days (or such other number of days as the
Borrower and the Administrative Agent may agree) of any other
Competitive Bid Quote Request or Invitation for Competitive Bid Quotes.
A Competitive Bid Quote Request that does not conform substantially to
the form of EXHIBIT I-1 hereto shall be rejected, and the
Administrative Agent shall promptly notify the Borrower of such
rejection by telecopy.
(b) INVITATION FOR COMPETITIVE BID QUOTES. Promptly and in any
event before the close of business on the same Business Day of receipt
of a Competitive Bid Quote Request that is not rejected pursuant to
SECTION 2.23(a), the Administrative Agent shall send to each of the
Lenders by telecopy an Invitation for Competitive Bid Quotes
substantially in the form of EXHIBIT I-2 hereto, which shall constitute
an invitation by the Borrower to each Lender to submit Competitive Bid
Quotes offering to make the Competitive Bid Loans to which such
Competitive Bid Quote Request relates in accordance with this SECTION
2.23.
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(c) Submission and Contents of Competitive Bid Quotes.
-------------------------------------------------
(i) Each Lender may, in its sole discretion,
submit a Competitive Bid Quote containing an offer or offers
to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this SECTION 2.23(c) and must
be submitted to the Administrative Agent by telex or telecopy
at its offices not later than (a) 2:00 p.m. (Chicago time) at
least four Business Days prior to the proposed Borrowing Date,
in the case of a request for a Competitive LIBOR Margin or (b)
9:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case
upon reasonable prior notice to the Lenders, such other time
and date as the Borrower and the Administrative Agent may
agree); PROVIDED that Competitive Bid Quotes submitted by
First Chicago may only be submitted if the Administrative
Agent or First Chicago notifies the Borrower of the terms of
the offer or offers contained therein no later than 30 minutes
prior to the latest time at which the relevant Competitive Bid
Quotes must be submitted by the other Lenders. Subject to the
Borrower's compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made shall
be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of EXHIBIT I-3 hereto and shall in any
case specify:
(a) the proposed Borrowing Date,
which shall be the same as that set forth in
the applicable Invitation for Competitive
Bid Quotes,
(b) the principal amount of the
Competitive Bid Loan for which each such
offer is being made, which principal amount
(1) may be greater than, less than or equal
to the Commitment of the quoting Lender, (2)
must be at least $5,000,000 and an integral
multiple of $1,000,000, and (3) may not
exceed the principal amount of Competitive
Bid Loans for which offers are requested,
(c) as applicable, the Competitive
LIBOR Margin and Absolute Rate offered for
each such Competitive Bid Loan,
(d) the minimum amount, if any, of
the Competitive Bid Loan which may be
accepted by the Borrower, and
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(e) the identity of the quoting
Lender, provided that such Competitive Bid
Loan may be funded by such Lender's
Designated Lender as provided in Section
2.23(h), regardless of whether that is
specified in the Competitive Bid Quote.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
(a) is not substantially in the form
of EXHIBIT I-3 hereto or does not specify
all of the information required by SECTION
2.23(c)(ii),
(b) contains qualifying, conditional
or similar language, other than any such
language contained in EXHIBIT I-3 hereto,
(c) proposes terms other than or in
addition to those set forth in the
applicable Invitation for Competitive Bid
Quotes, or
(d) arrives after the time set forth
in SECTION 2.23(c)(i).
If any Competitive Bid Quote shall be rejected pursuant to this SECTION
2.23(c)(iii), then the Administrative Agent shall notify the relevant
Lender of such rejection as soon as practical.
(d) NOTICE TO BORROWER. The Administrative Agent shall
promptly notify the Borrower of the terms (i) of any Competitive Bid
Quote submitted by a Lender that is in accordance with SECTION 2.23(c)
and (ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted
by such Lender with respect to the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote shall be disregarded by the
Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's
notice to the Borrower shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each
Interest Period specified in the related Competitive Bid Quote Request
and the respective principal amounts and Competitive LIBOR Margins or
Absolute Rate, as the case may be, so offered.
(e) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (i) 6:00
p.m. (Chicago time) at least four Business Days prior to the proposed
Borrowing Date in the case of a request for a Competitive LIBOR Margin
or (ii) 10:00 a.m. (Chicago
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time) on the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior notice to the
Lenders, such other time and date as the Borrower and the
Administrative Agent may agree), the Borrower shall notify the
Administrative Agent of its acceptance or rejection of the offers so
submitted to it pursuant to SECTION 2.23(d); PROVIDED, HOWEVER, that
the failure by the Borrower to give such notice to the Administrative
Agent shall be deemed to be a rejection of all such offers. In the case
of acceptance, such notice (a "COMPETITIVE BID BORROWING NOTICE") shall
specify the aggregate principal amount of offers for each Interest
Period that are accepted and the applicable interest rate. The
Administrative Agent shall immediately advise the Lenders making the
accepted offers of the contents of the Competitive Bid Borrowing
Notice. The Borrower may accept any Competitive Bid Quote in whole or
in part (subject to the terms of SECTION 2.23(c)(iii)); PROVIDED that:
(i) the aggregate principal amount of all
Competitive Bid Loans to be disbursed on a given Borrowing
Date may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request,
(ii) acceptance of offers may only be made on
the basis of ascending Competitive LIBOR Margins or Absolute
Rates, as the case may be, and
(iii) the Borrower may not accept any offer that
is described in SECTION 2.23(c)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(f) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by
two or more Lenders with the same Competitive LIBOR Margins or Absolute
Rates, as the case may be, for a greater aggregate principal amount
than the amount in respect of which offers are accepted for the related
Interest Period, the principal amount of Competitive Bid Loans in
respect of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in such
multiples, not greater than $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amount of
such offers PROVIDED, however, that no Lender shall be allocated any
Competitive Bid Loan which is less than the minimum amount which such
Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The Administrative Agent
shall promptly, but in any event on the same Business Day, notify each
Lender of its receipt of a Competitive Bid Borrowing Notice and the
principal amounts of the Competitive Bid Loans allocated to each
participating Lender.
(g) ADMINISTRATION FEE. The Borrower hereby agrees to pay to
the Administrative Agent an administration fee of $2,500 per each
Competitive Bid Quote
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Request transmitted by the Borrower to the Administrative Agent
pursuant to SECTION 2.23(a). Such administration fees, if not paid at
the time of the applicable Competitive Bid Quote Request shall be
payable monthly in arrears on the first Business Day of each month and
on the Facility Termination Date (or such earlier date on which the
Aggregate Commitment shall terminate or be cancelled).
(h) DESIGNATED LENDERS. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in
SECTION 2.23(c)(ii)(E). Any Designated Lender which funds a Competitive
Bid Loan shall on and after the time of such funding become the obligee
under such Competitive Bid Loan and be entitled to receive payments
thereof when due. No Lender shall be relieved of its obligation to fund
a Competitive Bid Loan, and no Designated Lender shall assume such
obligation, prior to the time such Competitive Bid Loan is funded.
2.24. Competitive Bid Loans Administered by Borrower.
----------------------------------------------
(a) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes to
request offers to make Competitive Bid Loans under this SECTION 2.24,
it shall transmit to the Lenders and Administrative Agent by telecopy
an Invitation for Competitive Bid Quote substantially in the form of
EXHIBIT J-1 hereto so as to be received no later than (i) 10:00 a.m.
(Chicago time) at least five Business Days prior to the Borrowing Date
proposed therein, in the case of a request for a Competitive LIBOR
Margin or (ii) 9:00 a.m. (Chicago time) at least one Business Day prior
to the Borrowing Date proposed therein, in the case of a request for an
Absolute Rate specifying:
(i) the proposed Borrowing Date for the
proposed Competitive Bid Loan,
(ii) the requested aggregate principal amount of
such Competitive Bid Loan which shall be at least $5,000,000
and in an integral multiple of $1,000,000,
(iii) whether the Competitive Bid Quotes
requested are to set forth a Competitive LIBOR Margin or an
Absolute Rate, or both, and
(iv) the LIBOR Interest Period, if a Competitive
LIBOR Margin is requested, or the Absolute Interest Period, if
an Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more
than one (but not more than five) Interest Periods in a single
Competitive Bid Quote. No Invitation for Competitive Bid Quote shall be
given within five Business Days (or such other number of days as the
Borrower and the Administrative Agent may agree) of any other
Invitation for Competitive Bid Quote.
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(b) Submission and Contents of Competitive Bid Quotes.
--------------------------------------------------
(i) Each Lender may, in its sole discretion,
submit a Competitive Bid Quote containing an offer or offers
to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this SECTION 2.24(b) and must
be submitted to the Borrower by telex or telecopy at its
offices not later than (a) 2:00 p.m. (Chicago time) at least
four Business Days prior to the proposed Borrowing Date, in
the case of a request for a Competitive LIBOR Margin or (b)
9:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case
upon reasonable prior notice to the Lenders, such other time
and date as the Borrower and the Administrative Agent may
agree). Subject to the Borrower's compliance with all other
conditions to disbursement herein, any Competitive Bid Quote
so made shall be irrevocable except with the written consent
of the Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of EXHIBIT J-2 hereto and shall in any
case specify:
(a) the proposed Borrowing Date,
which shall be the same as that set forth in
the applicable Invitation for Competitive
Bid Quotes,
(b) the principal amount of the
Competitive Bid Loan for which each such
offer is being made, which principal amount
(1) may be greater than, less than or equal
to the Commitment of the quoting Lender, (2)
must be at least $5,000,000 and an integral
multiple of $1,000,000, and (3) may not
exceed the principal amount of Competitive
Bid Loans for which offers are requested,
(c) as applicable, the Competitive
LIBOR Margin and Absolute Rate offered for
each such Competitive Bid Loan,
(d) the minimum amount, if any, of
the Competitive Bid Loan which may be
accepted by the Borrower, and
(e) the identity of the quoting
Lender, provided that such Competitive Bid
Loan may be funded by such Lender's
Designated Lender as provided in SECTION
2.24(E), regardless of whether that is
specified in the Competitive Bid Quote.
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(iii) The Borrower shall reject any Competitive
Bid Quote that:
(a) is not substantially in the form
of EXHIBIT J-2 hereto or does not specify
all of the information required by SECTION
2.24(b)(ii),
(b) contains qualifying, conditional
or similar language, other than any such
language contained in EXHIBIT J-2 hereto,
(c) proposes terms other than or in
addition to those set forth in the
applicable Invitation for Competitive Bid
Quotes, or
(d) arrives after the time set forth
in SECTION 2.24(b)(i).
If any Competitive Bid Quote shall be rejected pursuant to this SECTION
2.24(b)(iii), then the Borrower shall notify the relevant Lender of
such rejection as soon as practical.
(c) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (i) 6:00
p.m. (Chicago time) at least four Business Days prior to the proposed
Borrowing Date in the case of a request for a Competitive LIBOR Margin
or (ii) 10:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case upon
reasonable prior notice to the Lenders, such other time and date as the
Borrower and the Administrative Agent may agree), the Borrower shall
notify the Lenders and Administrative Agent of its acceptance or
rejection of the offers submitted to it pursuant to SECTION 2.24(b);
PROVIDED, HOWEVER, that the failure by the Borrower to give such notice
to the Lenders and Administrative Agent shall be deemed to be a
rejection of all such offers. In the case of acceptance, such notice to
each Lender and the Administrative Agent shall specify the aggregate
principal amount of offers for each Interest Period that are accepted
and the applicable interest rate. The Borrower may accept any
Competitive Bid Quote in whole or in part (subject to the terms of
SECTION 2.24(b)(iii)); PROVIDED that:
(i) the aggregate principal amount of all
Competitive Bid Loans to be disbursed on a given Borrowing
Date may not exceed the applicable amount set forth in the
related Invitation for Competitive Bid Quote,
(ii) acceptance of offers may only be made on
the basis of ascending Competitive LIBOR Margins or Absolute
Rates, as the case may be, and
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(iii) the Borrower may not accept any offer that
is described in SECTION 2.24(b)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(d) ALLOCATION BY BORROWER. If offers are made by two or more
Lenders with the same Competitive LIBOR Margins or Absolute Rates, as
the case may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the Borrower among
such Lenders as nearly as possible (in such multiples, not greater than
$1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amount of such offers PROVIDED,
however, that no Lender shall be allocated any Competitive Bid Loan
which is less than the minimum amount which such Lender has indicated
that it is willing to accept. Allocations by the Borrower of the
amounts of Competitive Bid Loans shall be conclusive in the absence of
manifest error.
(e) DESIGNATED LENDERS. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in
SECTION 2.24(b)(ii)(E). Any Designated Lender which funds a Competitive
Bid Loan shall on and after the time of such funding become the obligee
under such Competitive Bid Loan and be entitled to receive payments
thereof when due. No Lender shall be relieved of its obligation to fund
a Competitive Bid Loan, and no Designated Lender shall assume such
obligation, prior to the time such Competitive Bid Loan is funded.
2.25. APPLICATION OF MONEYS RECEIVED. All moneys collected or received
by the Administrative Agent on account of the Facility directly or indirectly,
shall be applied in the following order of priority:
(i) to the payment of all reasonable costs incurred in
the collection of such moneys of which the Administrative Agent shall
have given notice to the Borrower;
(ii) to the reimbursement of any yield protection due to
any of the Lenders in accordance with SECTION 3.1;
(iii) to the payment of the Facility Fee to the Lenders,
if then due, and to the payment of all fees to the Administrative
Agent;
(iv) to payment of the full amount of interest and
principal on the Swingline Loans;
(v) first to interest until paid in full and then to
principal for all Lenders (other than Defaulting Lenders) (i) as
allocated by the Borrower (unless a
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Default exists) between Competitive Bid Loans and ratable Advances (the
amount allocated to ratable Advances to be distributed in accordance
with the Percentages of the Lenders) or (ii) if an Event of Default
exists, in accordance with the respective Funded Percentages of the
Lenders;
(vi) any other sums due to the Administrative Agent or
any Lender under any of the Loan Documents; and
(vii) to the payment of any sums due to each Defaulting
Lender as their respective Percentages appear (provided that
Administrative Agent shall have the right to set-off against such sums
any amounts due from such Defaulting Lender).
2.26. USURY. This Agreement and each Note and Competitive Bid Note are
subject to the express condition that at no time shall Borrower be obligated or
required to pay interest on the principal balance of the Loan at a rate which
could subject any Lender (including the Swingline Lender) to either civil or
criminal liability as a result of being in excess of the Maximum Legal Rate. If
by the terms of this Agreement or the Loan Documents, Borrower is at any time
required or obligated to pay interest on the principal balance due hereunder at
a rate in excess of the Maximum Legal Rate, the interest rate or the Default
Rate, as the case may be, shall be deemed to be immediately reduced to the
Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate
shall be deemed to have been payments in reduction of principal and not on
account of the interest due hereunder. All sums paid or agreed to be paid to
Lender for the use, forbearance, or detention of the sums due under the Loan,
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term of the Loan until payment
in full so that the rate or amount of interest on account of the Loan does not
exceed the Maximum Legal Rate of interest from time to time in effect and
applicable to the Loan for so long as the Loan is outstanding.
ARTICLE III
CHANGE IN CIRCUMSTANCES
-----------------------
3.1. YIELD PROTECTION. If (i) any change in any law, governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) in effect on the Agreement Execution Date, or a
change in any interpretation thereof, or the compliance by any Lender therewith,
or (ii) the enactment following the Agreement Execution Date of any new law,
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance by any Lender therewith, results in:
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(i) any Lender or any applicable Lending Installation
being subjected to any tax, duty, charge or
withholding on or from payments due from the Borrower
(excluding federal taxation of the overall net income
of any Lender or applicable Lending Installation), or
the basis of taxation of payments to any Lender in
respect of its Loans or other amounts due it
hereunder being changed, or
(ii) any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of,
deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments
taken into account in determining the interest rate
applicable to Fixed Rate Advances) being imposed,
increased or deemed applicable, or
(iii) any other condition being imposed the result of which
is to increase the cost to any Lender or any
applicable Lending Installation of making, funding or
maintaining loans or reduces any amount receivable by
any Lender or any applicable Lending Installation in
connection with loans, or any Lender or any
applicable Lending Installation being required to
make any payment calculated by reference to the
amount of loans held or interest received by it, by
an amount deemed material by such Lender,
then, within 30 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender in good faith determines is attributable to making,
funding and maintaining its Loans and its Commitment.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender in good
faith determines the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change (as hereinafter
defined), then, within 30 days of demand by such Lender, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender in good faith
determines is attributable to this Agreement, its Loans or its obligation to
make Loans hereunder (after taking into account such Lender's policies as to
capital adequacy). "CHANGE" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by
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regulatory authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and Supervisory Practices
Entitled "International Convergence of Capital Measurements and Capital
Standards," including transition rules, and any amendments to such regulations
adopted prior to the date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender in good faith
determines that maintenance of any of its Fixed Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, the Administrative Agent shall suspend
the availability of the affected Type of Advance and require any Fixed Rate
Advances of the affected Type to be repaid; or if the Required Lenders in good
faith determine that (i) deposits of a type or maturity appropriate to match
fund Fixed Rate Advances are not available, the Administrative Agent shall
suspend the availability of the affected Type of Advance with respect to any
Fixed Rate Advances made after the date of any such determination, or (ii) an
interest rate applicable to a Type of Advance does not accurately reflect the
cost of making a Fixed Rate Advance of such Type, then, if for any reason
whatsoever the provisions of SECTION 3.1 are inapplicable, the Administrative
Agent shall suspend the availability of the affected Type of Advance with
respect to any Fixed Rate Advances made after the date of any such
determination.
3.4. FUNDING INDEMNIFICATION. If any payment of a ratable Fixed Rate
Advance or a Competitive Bid Loan occurs on a date which is not the last day of
the applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a ratable Fixed Rate Advance or a Competitive Bid Loan is not made
on the date specified by Borrower for any reason other than default by one or
more of the Lenders, Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including without limitation any loss or
cost in liquidating or employing deposits acquired to fund or maintain the
ratable Fixed Rate Advance or Competitive Bid Loan, as the case may be, and
shall pay all such losses or costs within 15 days after written demand therefor.
Without limitation of any losses arising from changes in the Fixed Rate adverse
to the Lenders, in no event will the administrative cost payable by the Borrower
as a result of such early payment or failure to make an advance exceed $250 per
occurrence per Lender. Nothing in this Section 3.4 shall authorize the
prepayment of a Competitive Bid Loan prior to the end of the applicable Interest
Period.
3.5. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Fixed Rate Loans to reduce any liability of the
Borrower to such Lender under SECTIONS 3.1 and 3.2 or to avoid the
unavailability of a Type of Advance under SECTION 3.3, so long as such
designation is not disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender as to the amount due, if any, under SECTIONS
3.1, 3.2 or 3.4. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a Fixed
Rate Loan shall be calculated as though each Lender funded its
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Fixed Rate Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Fixed Rate
applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement shall
be payable on demand after receipt by the Borrower of the written statement. The
obligations of the Borrower under SECTIONS 3.1, 3.2 and 3.4 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1. INITIAL ADVANCE. The Lenders shall not be required to make the
initial Advance hereunder unless (a) the Borrower shall, prior to or
concurrently with such initial Advance, have paid all fees due and payable to
the Lenders and the Administrative Agent hereunder, and (b) the Borrower shall
have furnished to the Administrative Agent, with sufficient copies for the
Lenders, the following:
(i) The duly executed originals of the Loan Documents,
including the Notes, payable to the order of each of
the Lenders, this Agreement and the Subsidiary
Guaranty;
(ii) (a) Certificates of good standing for the Borrower
and each Subsidiary Guarantor, from the State of Ohio
for the Borrower and the states of organization of
each Subsidiary Guarantor, certified by the
appropriate governmental officer and dated not more
than thirty (30) days prior to the Agreement
Execution Date, and (b) foreign qualification
certificates for the Borrower and each Subsidiary
Guarantor, certified by the appropriate governmental
officer and dated not more than two years prior to
the Agreement Execution Date (with telephonic updates
as practical not more than 10 days prior to the
Agreement Execution Date), for each other
jurisdiction where the failure of the Borrower or
such Subsidiary Guarantor to so qualify or be
licensed (if required) would have a Material Adverse
Effect;
(iii) Copies of the formation documents (including code of
regulations, if appropriate) of the Borrower and each
Subsidiary Guarantor, certified by an officer of the
Borrower or such Subsidiary Guarantor, as
appropriate, together with all amendments thereto;
(iv) Incumbency certificates, executed by officers of the
Borrower and each Subsidiary Guarantor, which shall
identify by name and title and bear the signature of
the Persons authorized to sign the Loan Documents and
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to make borrowings hereunder on behalf of the
Borrower, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower or
any such Subsidiary Guarantor;
(v) Copies, certified by a Secretary or an Assistant
Secretary of the Borrower and each Subsidiary
Guarantor, of the Board of Directors' resolutions
(and resolutions of other bodies, if any are
reasonably deemed necessary by counsel for any
Lender) authorizing the Advances provided for herein,
with respect to the Borrower, and the execution,
delivery and performance of the Loan Documents to be
executed and delivered by the Borrower and each
Subsidiary Guarantor hereunder;
(vi) A written opinion of the Borrower's and Subsidiary
Guarantors' counsel, addressed to the Lenders in
substantially the form of EXHIBIT B hereto or such
other form as the Administrative Agent may reasonably
approve;
(vii) A certificate, signed by an officer of the Borrower,
stating that on the initial Borrowing Date no Default
or Unmatured Default has occurred and is continuing
and that all representations and warranties of the
Borrower are true and correct as of the initial
Borrowing Date provided that such certificate is in
fact true and correct;
(viii) The most recent financial statements of the Borrower;
(ix) UCC financing statement, judgment, and tax lien
searches with respect to the Borrower from the State
of Ohio;
(x) Written money transfer instructions, in substantially
the form of EXHIBIT E hereto, addressed to the
Administrative Agent and signed by an Authorized
Officer, together with such other related money
transfer authorizations as the Administrative Agent
may have reasonably requested;
(xi) A pro forma compliance certificate in the form of
EXHIBIT C as of September 30, 1998, executed by the
Borrower's chief financial officer or chief
accounting officer prepared on the assumption that
the other Indebtedness of Borrower being repaid by
the initial Advance hereunder was replaced by
Advances hereunder for the period covered by such
certificate;
(xii) Evidence that the Commitments of any lenders under
the Prior Agreement which are not Lenders under this
Agreement (the "EXITING
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LENDERS") have been properly terminated and all
amounts due to the Exiting Lenders have been paid, or
will be, paid out of the proceeds of the initial
Advance hereunder; and
(xiii) Such other documents as any Lender or its counsel may
have reasonably requested, the form and substance of
which documents shall be reasonably acceptable to the
parties and their respective counsel.
Notwithstanding anything in this SECTION 4.1 to the contrary, Borrower shall not
have to furnish or cause to be furnished to the Administrative Agent any
certificates or other documentation listed in this SECTION 4.1 to the extent
such documentation was provided to the Administrative Agent in connection with
the Prior Agreement and Borrower certifies, in form and substance reasonably
satisfactory to the Administrative Agent, that there has been no material change
in the facts and circumstances described in the documentation since the date it
was previously furnished to the Administrative Agent in connection with the
Prior Agreement.
4.2. EACH ADVANCE. The Lenders shall not be required to make any
Advance unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in
ARTICLE V are true and correct as of such Borrowing
Date with respect to Borrower and to any Subsidiary
in existence on such Borrowing Date, except to the
extent any such representation or warranty is stated
to relate solely to an earlier date, in which case
such representation or warranty shall be true and
correct on and as of such earlier date.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in SECTIONS 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Lenders that:
5.1. EXISTENCE. Borrower is a corporation duly organized and validly
existing under the laws of the State of Ohio, with its principal place of
business in Xxxxxxxx Hills, Ohio and is duly qualified as a foreign corporation,
properly licensed (if required), in good
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standing and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except where the failure to be
so qualified, licensed and in good standing and to have the requisite authority
would not have a Material Adverse Effect. Each of Borrower's Subsidiaries is
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.
5.2. AUTHORIZATION AND VALIDITY. The Borrower has the corporate power
and authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper corporate proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by the Borrower of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries or the
Borrower's or any Subsidiary's articles of incorporation or by-laws, or the
provisions of any indenture, instrument or agreement to which the Borrower or
any of its Subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, except
where such violation, conflict or default would not have a Material Adverse
Effect, or result in the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents other than the filing of
a copy of this Agreement, or the filing of information concerning this
Agreement, with the Securities and Exchange Commission.
5.4. FINANCIAL STATEMENTS; MATERIAL ADVERSE CHANGE. All consolidated
financial statements of the Borrower and its Subsidiaries heretofore or
hereafter delivered to the Lenders were prepared in accordance with GAAP in
effect on the preparation date of such statements and fairly present in all
material respects the consolidated financial condition and operations of the
Borrower and its Subsidiaries at such date and the consolidated results of their
operations for the period then ended, subject, in the case of interim financial
statements, to normal and customary year-end adjustments. From the preparation
date of the most recent financial statements delivered to the Lenders through
the Agreement Execution Date, there was no change in the business, properties,
or condition (financial or otherwise) of
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the Borrower and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.5. TAXES. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. No tax liens have been filed and remain outstanding
for amounts in excess of $250,000. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.6. LITIGATION AND GUARANTEE OBLIGATIONS. Except as set forth on
SCHEDULE 3 hereto or as set forth in written notice to the Administrative Agent
from time to time, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect. Notwithstanding the disclosure of the litigation identified on SCHEDULE
3 the Borrower, based on consultation with its counsel, represents that the
Borrower is unlikely to suffer any material adverse result in such litigation.
The Borrower has no material contingent obligations not provided for or
disclosed in the financial statements referred to in SECTION 6.1 or as set forth
in written notices to the Administrative Agent given from time to time after the
Agreement Execution Date on or about the date such material contingent
obligations are incurred.
5.7. SUBSIDIARIES. SCHEDULE 1 hereto contains, as of the Agreement
Execution Date, an accurate list of all of the presently existing Subsidiaries
of the Borrower, setting forth their respective jurisdictions of incorporation
or formation and the percentage of their respective capital stock or partnership
or membership interest owned by the Borrower or other Subsidiaries. All of the
issued and outstanding shares of capital stock of such Subsidiaries that are
corporations have been duly authorized and issued and are fully paid and
non-assessable.
5.8. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $1,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans in excess of $250,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other members of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan.
5.9. ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower or any of its
Subsidiaries to
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the Administrative Agent or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all other such
factual information hereafter furnished by or on behalf of the Borrower or any
of its Subsidiaries to the Administrative Agent or any Lender will be, to the
knowledge of Borrower, true and accurate (taken as a whole) on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole)
not misleading in light of the circumstances and purposes for which such
information was provided at such time.
5.10. REGULATION U. The Borrower has not used the proceeds of any
Advance to buy or carry any margin stock (as defined in Regulation U) in
violation of the terms of this Agreement.
5.11. MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could have a Material Adverse Effect, or (ii) any agreement or instrument
evidencing or governing Indebtedness, which default would constitute a Default
hereunder.
5.12. COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property, except for any
non-compliance which would not have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action could have a Material Adverse Effect.
5.13. OWNERSHIP OF PROPERTIES. Except as set forth on SCHEDULE 2
hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
have good and marketable title, free of all Liens other than those permitted by
SECTION 6.16, to all of the Property and assets reflected in the financial
statements as owned by it.
5.14. INVESTMENT COMPANY ACT. Neither the Borrower nor any Subsidiary
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.15. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an
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"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
5.16. SOLVENCY. (i) Immediately after the Agreement Execution Date and
immediately following the making of each Loan and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
the Borrower and its Subsidiaries on a consolidated basis, at a fair valuation,
will exceed the debts and liabilities, subordinated, contingent or otherwise, of
the Borrower and its Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the Property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be required to pay
the probable liability of the Borrower and its Subsidiaries on a consolidated
basis on their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
the Borrower and its Subsidiaries on a consolidated basis will be able to pay
their debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
5.17. INSURANCE. The Borrower and its Subsidiaries carry insurance on
their Projects with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar Projects
in localities where the Borrower and its Subsidiaries operate, including,
without limitation:
(i) Property and casualty insurance (including coverage
for flood and other water damage for any Project
located within a 100-year flood plain) in the amount
of the replacement cost of the improvements at the
Project;
(ii) Builder's risk insurance for any Project under
construction in the amount of the construction cost
of such Project;
(iii) Loss of rental income insurance in the amount not
less than one year's gross revenues from the
Projects; and
(iv) Comprehensive general liability insurance in the
amount of $20,000,000 per occurrence.
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5.18. REIT STATUS. The Borrower is in good standing on the New York
Stock Exchange, is qualified as a real estate investment trust and currently is
in compliance in all material respects with all provisions of the Code
applicable to the qualification of the Borrower as a real estate investment
trust.
5.19. ENVIRONMENTAL MATTERS. Each of the following representations and
warranties is true and correct on and as of the Agreement Execution Date except
to the extent that the facts and circumstances giving rise to any such failure
to be so true and correct, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect:
(a) To the best knowledge of the Borrower, the Projects of the
Borrower and its Subsidiaries do not contain any Materials of
Environmental Concern in amounts or concentrations which constitute a
violation of, or could reasonably give rise to liability of the
Borrower or any Subsidiary under, Environmental Laws.
(b) To the best knowledge of the Borrower, (i) the Projects of
the Borrower and its Subsidiaries and all operations at the Projects
are in compliance with all applicable Environmental Laws, and (ii) with
respect to all Projects owned by the Borrower and/or its Subsidiaries
(x) for at least two (2) years, have in the last two years, or (y) for
less than two (2) years, have for such period of ownership, been in
compliance in all material respects with all applicable Environmental
Laws.
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Projects,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Projects of the Borrower and its Subsidiaries in violation of, or in a
manner or to a location which could reasonably give rise to liability
of the Borrower or any Subsidiary under, Environmental Laws, nor have
any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Projects of the Borrower and
its Subsidiaries in violation of, or in a manner that could give rise
to liability of the Borrower or any Subsidiary under, any applicable
Environmental Laws.
(e) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any of its
Subsidiaries is or, to the Borrower's knowledge, will be named as a
party with respect to the Projects of the Borrower and its
Subsidiaries, nor are there any consent decrees or other decrees,
consent orders, administrative order or other orders, or other
administrative of judicial requirements
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outstanding under any Environmental Law with respect to the Projects of
the Borrower and its Subsidiaries.
(f) To the best knowledge of the Borrower, there has been no
release or threat of release of Materials of Environmental Concern at
or from the Projects of the Borrower and its Subsidiaries, or arising
from or related to the operations of the Borrower and its Subsidiaries
in connection with the Projects in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws.
ARTICLE VI
COVENANTS
---------
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with GAAP, and furnish to the Lenders:
(i) As soon as available, but in any event not later than
45 days after the close of each fiscal quarter, for
the Borrower and its Subsidiaries, an unaudited
consolidated balance sheet as of the close of each
such period and the related unaudited consolidated
statements of income and retained earnings and of
cash flows of the Borrower and its Subsidiaries for
such period and the portion of the fiscal year
through the end of such period, setting forth in each
case in comparative form the figures for the previous
year, all certified by the Borrower's chief financial
officer or chief accounting officer;
(ii) As soon as available, but in any event not later than
45 days after the close of each fiscal quarter, for
the Borrower and its Subsidiaries, the following
reports in form and substance reasonably satisfactory
to the Lenders, all certified by the entity's chief
financial officer or chief accounting officer: a
statement of Funds From Operations, a statement of
cash flows for each individual Project, a statement
detailing Consolidated Outstanding Indebtedness,
Consolidated Secured Indebtedness, and Consolidated
Senior Unsecured Indebtedness, Consolidated Cash Flow
(with a breakdown between Unencumbered Assets and
other assets), a listing of capital expenditures, a
report listing and describing all newly acquired
Projects, including their net operating income, cash
flow, cost and secured or unsecured
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Indebtedness assumed in connection with such
acquisition, if any, summary information and such
other information on all Projects as may be
reasonably requested;
(iii) As soon as available, but in any event not later than
90 days after the close of each fiscal year, for the
Borrower and its Subsidiaries, audited financial
statements, including a consolidated balance sheet as
at the end of such year and the related consolidated
statements of income and retained earnings and of
cash flows for such year, setting forth in each case
in comparative form the figures for the previous
year, without a "going concern" or like qualification
or exception, or qualification arising out of the
scope of the audit, prepared by Price Waterhouse (or
other independent certified public accountants of
nationally recognized standing reasonably acceptable
to Administrative Agent);
(iv) As soon as available, but in any event not later than
90 days after the close of each fiscal year, for the
Borrower and its Subsidiaries, a statement detailing
the contributions to Consolidated Cash Flow from each
individual Project for the prior fiscal year in form
and substance reasonably satisfactory to the Lenders,
certified by the entity's chief financial officer or
chief accounting officer;
(v) Together with the quarterly and annual financial
statements required hereunder, a compliance
certificate in substantially the form of EXHIBIT C
hereto signed by the Borrower's chief financial
officer or chief accounting officer showing the
calculations and computations necessary to determine
compliance with this Agreement and stating that, to
such officer's knowledge, no Default or Unmatured
Default exists, or if, to such officer's knowledge,
any Default or Unmatured Default exists, stating the
nature and status thereof;
(vi) As soon as possible and in any event within 10 days
after a responsible officer of the Borrower knows
that any Reportable Event has occurred with respect
to any Plan, a statement, signed by the chief
financial officer of the Borrower, describing said
Reportable Event and the action which the Borrower
proposes to take with respect thereto;
(vii) As soon as possible and in any event within 10 days
after receipt by a responsible officer of the
Borrower, a copy of (a) any notice or claim to the
effect that the Borrower or any of its Subsidiaries
is or may be liable to any Person as a result of the
release by the Borrower, any of its Subsidiaries, or
any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice
alleging any violation of any federal, state or local
environmental, health or safety
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54
law or regulation by the Borrower or any of its
Subsidiaries, which, in either case, could have a
Material Adverse Effect;
(viii) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so
furnished;
(ix) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly,
monthly or other reports and any other public
information which the Borrower or any of its
Subsidiaries files with the Securities Exchange
Commission; and
(x) Such other information (including, without
limitation, financial statements for the Borrower and
non-financial information) as the Administrative
Agent or any Lender may from time to time reasonably
request.
6.2. USE OF PROCEEDS. The Borrower will, and will cause each of its
Subsidiaries to, use the proceeds of the Advances for the general corporate
purposes of the Borrower, including working capital needs, the repayment of
Indebtedness, financing for property acquisitions of new Projects, construction
of new improvements or expansions of existing improvements on Projects, and to
repay outstanding Advances. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances (i) to purchase or carry
any "margin stock" (as defined in Regulation U) if such usage could constitute a
violation of Regulation U by any Lender, (ii) to fund any purchase of, or offer
for, any Capital Stock of any Person, unless such Person has consented to such
offer prior to any public announcements relating thereto, or (iii) to make any
Acquisition other than a Permitted Acquisition.
6.3. NOTICE OF DEFAULT. The Borrower will give, and will cause each of
its Subsidiaries to give, prompt notice in writing to the Lenders of the
occurrence of any Default or Unmatured Default and of any other development,
financial or otherwise, which could reasonably be expected to have a Material
Adverse Effect.
6.4. CONDUCT OF BUSINESS. The Borrower will do, and will cause each of
its Subsidiaries to do, all things necessary to remain duly incorporated or duly
qualified, validly existing and in good standing as a real estate investment
trust, corporation, general partnership or limited partnership, as the case may
be, in its jurisdiction of incorporation/formation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted and to carry on and conduct their businesses in substantially the same
manner as they are presently conducted where the failure to do so could
reasonably be expected to have a Material Adverse Effect and, specifically,
neither the Borrower nor its Subsidiaries may undertake any business other than
the acquisition,
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55
development, ownership, management, operation and leasing of retail, office or
industrial properties, and ancillary businesses specifically related to such
types of properties.
6.5. TAXES. The Borrower will pay, and will cause each of its
Subsidiaries to pay, when due all taxes, assessments and governmental charges
and levies upon them of their income, profits or Projects, except those which
are being contested in good faith by appropriate proceedings and with respect to
which adequate reserves have been set aside.
6.6. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurance
companies insurance on all their Property in such amounts and covering such
risks as is consistent with sound business practice, and the Borrower will
furnish to any Lender upon reasonable request full information as to the
insurance carried.
6.7. COMPLIANCE WITH LAWS. The Borrower will, and will cause each of
its Subsidiaries to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which they may be subject, the
violation of which could reasonably be expected to have a Material Adverse
Effect.
6.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
of its Subsidiaries to, do all things necessary to maintain, preserve, protect
and keep their respective Projects and Properties, reasonably necessary for the
continuous operation of the Projects, in good repair, working order and
condition, ordinary wear and tear excepted.
6.9. INSPECTION. The Borrower will, and will cause each of its
Subsidiaries to, permit the Lenders upon reasonable notice, by their respective
representatives and agents, to inspect any of the Projects, corporate books and
financial records of the Borrower and each of its Subsidiaries, to examine and
make copies of the books of accounts and other financial records of the Borrower
and each of its Subsidiaries, and to discuss the affairs, finances and accounts
of the Borrower and each of its Subsidiaries with officers thereof, and to be
advised as to the same by, their respective officers at such reasonable times
and intervals as the Lenders may designate.
6.10. MAINTENANCE OF STATUS. The Borrower shall at all times (i)
remain a corporation listed and in good standing on the New York Stock Exchange,
and (ii) maintain its status as a real estate investment trust in compliance
with all applicable provisions of the Code relating to such status.
6.11. DIVIDENDS. Provided there is no then-existing Default or (after
notice thereof to Borrower) Unmatured Default hereunder, the Borrower and its
Subsidiaries shall be permitted to declare and pay dividends on their Capital
Stock from time to time in amounts determined by Borrower, PROVIDED, HOWEVER,
that in no event shall Borrower declare or pay dividends on its Capital Stock if
(a) dividends paid on account of any fiscal quarter, in the aggregate, would
exceed 95% of Funds From Operations for such fiscal quarter, or (b)
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56
dividends paid on account of any fiscal year, in the aggregate, would exceed 90%
of Funds From Operations for such fiscal year. Notwithstanding the foregoing,
the Borrower shall be permitted at all times to distribute whatever amount of
dividends is necessary to maintain its tax status as a real estate investment
trust.
6.12. MERGER; SALE OF ASSETS. The Borrower will not, nor will it
permit any of its Subsidiaries to, enter into any merger (other than mergers in
which such entity is the survivor), consolidation, reorganization or liquidation
or transfer or otherwise dispose of all or a Substantial Portion of their
Properties, except for such transactions that occur between Wholly-Owned
Subsidiaries or between Borrower and a Wholly-Owned Subsidiary or as otherwise
approved in advance by the Required Lenders.
6.13. DELIVERY OF SUBSIDIARY GUARANTIES. Borrower shall cause each of
its existing Subsidiaries listed on SCHEDULE 6 to execute and deliver to the
Agent the Subsidiary Guaranty. Borrower shall promptly notify Administrative
Agent of any planned formation or acquisition of any additional Subsidiaries.
Within 10 days after Borrower forms or acquires any Subsidiary other than a
Subsidiary which is a single-purpose entity formed solely for the purpose of
owning Projects in connection with securitized Indebtedness and which has
restrictions on the creation of additional Indebtedness and other safeguards
typically imposed on such single-purpose entities in securitized financings,
Borrower shall cause such Subsidiary to execute and deliver to the
Administrative Agent a Subsidiary Guaranty.
6.14. SALE AND LEASEBACK. The Borrower will not, nor will it permit
any of its Subsidiaries to, sell or transfer a Substantial Portion of its
Property in order to concurrently or subsequently lease such Property as lessee.
6.15. ACQUISITIONS AND INVESTMENTS. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or become or remain a partner in any
partnership or joint venture, or to make any Acquisition of any Person, except:
(i) Cash Equivalents;
(ii) Investments in existing Subsidiaries, Investments in
Subsidiaries formed for the purpose of acquiring
Properties, Investments in joint ventures and
partnerships engaged solely in the business of
purchasing, developing, owning, operating, leasing
and managing retail properties and office and
industrial properties, and Investments in existence
on the date hereof and described in SCHEDULE 1
hereto;
(iii) transactions permitted pursuant to SECTION 6.12; and
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57
(iv) Acquisitions of Persons whose primary operations
consist of the ownership, development, operation and
management of retail, office or industrial
properties;
provided that, after giving effect to such Acquisitions and Investments,
Borrower continues to comply with all its covenants herein. Acquisitions
permitted pursuant to this SECTION 6.15 shall be deemed to be "PERMITTED
ACQUISITIONS".
6.16. LIENS. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges
or levies on its Property if the same shall not at
the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith
and by appropriate proceedings and for which adequate
reserves shall have been set aside on its books;
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar
liens arising in the ordinary course of business
which secure payment of obligations not more than 60
days past due or which are being contested in good
faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its
books;
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance,
old age pensions, or other social security or
retirement benefits, or similar legislation;
(iv) Easements, restrictions and such other encumbrances
or charges against real property as are of a nature
generally existing with respect to properties of a
similar character and which do not in any material
way affect the marketability of the same or interfere
with the use thereof in the business of the Borrower
or its Subsidiaries;
(v) Liens on Projects existing on the date hereof which
secure Indebtedness as described in SCHEDULE 2
hereto; and
(vi) Liens other than Liens described in subsections (i)
through (iv) above arising in connection with any
Indebtedness permitted hereunder to the extent such
Liens will not result in a Default in any of
Borrower's covenants herein.
Liens permitted pursuant to this SECTION 6.16 shall be deemed to be "PERMITTED
LIENS".
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58
6.17. AFFILIATES. The Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.18. FINANCIAL UNDERTAKINGS. The Borrower will not enter into or
remain liable upon, nor will it permit any Subsidiary to enter into or remain
liable upon, any Financial Undertaking, except to the extent required to protect
the Borrower and its Subsidiaries against increases in interest payable by them
under variable interest Indebtedness.
6.19. VARIABLE INTEREST INDEBTEDNESS. The Borrower and its
Subsidiaries shall not at any time permit the outstanding principal balance of
Indebtedness which bears interest at an interest rate that is not fixed through
the maturity date of such Indebtedness to exceed $500,000,000, unless all of
such Indebtedness in excess of $500,000,000 is subject to a swap, rate cap or
other interest rate management program approved by the Administrative Agent that
effectively converts the interest rate on such excess to a fixed rate.
6.20. CONSOLIDATED NET WORTH. The Borrower shall maintain a
Consolidated Net Worth of not less than the sum of (i) $650,000,000 plus (ii)
ninety percent (90%) of the aggregate proceeds received by the Borrower (net of
customary related fees and expenses) in connection with any offering of stock in
the Borrower after December 31, 1997 and on or prior to the date such
determination of Consolidated Net Worth is made.
6.21. INDEBTEDNESS AND CASH FLOW COVENANTS. The Borrower on a
consolidated basis with its Subsidiaries shall not permit:
(i) Consolidated Outstanding Indebtedness to exceed
fifty-five percent (55%) of Consolidated Market
Value, as of any date;
(ii) Consolidated Secured Indebtedness to exceed
thirty-five percent (35%) of Consolidated Market
Value, as of the last day of any fiscal quarter;
(iii) the Value of Unencumbered Assets to be less than 1.75
times the Consolidated Senior Unsecured Indebtedness,
as of any date;
(iv) the aggregate Net Operating Income for the two (2)
most recent fiscal quarters of the Consolidated Group
for which results have been reported under SECTION
6.1 from all Unencumbered Assets qualifying for
inclusion in the Value of Unencumbered Assets as of
the date of determination to be less than 1.75 times
the portion of Consolidated Interest Expense for such
two (2) fiscal quarters attributable to
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Consolidated Senior Unsecured Indebtedness, as of the
last day of any fiscal quarter; and
(v) Consolidated Cash Flow to be less than 2.0 times the
Consolidated Debt Service, based on the most recent
two (2) fiscal quarters, for which the Consolidated
Group has reported results under SECTION 6.1,
annualized, as of the last day of any fiscal quarter.
6.22. ENVIRONMENTAL MATTERS. Borrower and its Subsidiaries shall:
(a) Comply with, and use all reasonable efforts to ensure
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and use all
reasonable efforts to ensure that all tenants and subtenants obtain and
comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws, except to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect; provided
that in no event shall the Borrower or its Subsidiaries be required to
modify the terms of leases, or renewals thereof, with existing tenants
(i) at Projects owned by the Borrower or its Subsidiaries as of the
date hereof, or (ii) at Projects hereafter acquired by the Borrower or
its Subsidiaries as of the date of such acquisition, to add provisions
to such effect.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws, except to the extent that (i) the same
are being contested in good faith by appropriate proceedings and the
pendency of such proceedings could not be reasonably expected to have a
Material Adverse Effect, or (ii) the Borrower has determined in good
faith that contesting the same is not in the best interests of the
Borrower and its Subsidiaries and the failure to contest the same could
not be reasonably expected to have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless Administrative Agent
and each Lender, and their respective officers and directors, from and
against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature
known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or liability under
any Environmental Laws applicable to the operations of the Borrower,
its Subsidiaries or the Projects, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification
therefor. This indemnity shall continue in full force and effect
regardless of the termination of this Agreement.
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(d) Prior to the acquisition of a new Project after the
Agreement Execution Date, perform or cause to be performed an
environmental investigation which investigation shall at a minimum
comply with the specifications and procedures attached hereto as
EXHIBIT G. In connection with any such investigation, Borrower shall
cause to be prepared a report of such investigation, to be made
available to any Lenders upon reasonable request, for informational
purposes and to assure compliance with the specifications and
procedures.
ARTICLE VII
DEFAULTS
--------
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Nonpayment of any principal payment on any Note when due.
7.2 Nonpayment of interest upon any Note or of any Facility Fee or
other payment Obligations under any of the Loan Documents within five (5)
Business Days after the same becomes due.
7.3. The breach of any of the terms or provisions of SECTIONS 6.2 and
6.10 through 6.21.
7.4. Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Loan, or
any material certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
7.5. The breach by the Borrower (other than a breach which
constitutes a Default under SECTION 7.1, 7.2, 7.3 or 7.4) of any of the terms or
provisions of this Agreement which is not remedied within fifteen (15) days
after written notice from the Administrative Agent or any Lender.
7.6. Failure of the Borrower or any of its Subsidiaries to pay when
due (a) any Recourse Indebtedness in excess of $10,000,000 in the aggregate or
(b) any Indebtedness, whether or not Recourse Indebtedness, in excess of
$20,000,000 in the aggregate; or the default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or condition contained in
any agreement, or any other event shall occur or condition exist, which causes
or permits (a) any Recourse Indebtedness of the Borrower or any of its
Subsidiaries in excess of $10,000,000 in the aggregate or (b) any Indebtedness,
whether or not Recourse Indebtedness, in excess of $20,000,000 in the aggregate
to be due and payable
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or required to be prepaid (other than by a regularly scheduled payment) prior to
the stated maturity thereof (provided that the failure to pay any such
Indebtedness shall not constitute a Default so long as the Borrower or its
Subsidiaries is diligently contesting the payment of the same by appropriate
legal proceedings and the Borrower or its Subsidiaries have set aside, in a
manner reasonably satisfactory to Administrative Agent, a sufficient reserve to
repay such Indebtedness plus all accrued interest thereon calculated at the
default rate thereunder and costs of enforcement in the event of an adverse
outcome).
7.7. The Borrower, or any Subsidiary having more than $10,000,000 of
Equity Value, shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
SECTION 7.7, (vi) fail to contest in good faith any appointment or proceeding
described in SECTION 7.8 or (vii) admit in writing its inability to pay its
debts generally as they become due.
7.8. A receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any Subsidiary having more than
$10,000,000 of Equity Value, or for any Substantial Portion of the Property of
the Borrower or such Subsidiary, or a proceeding described in SECTION 7.7(iv)
shall be instituted against the Borrower or any such Subsidiary and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of ninety (90) consecutive days.
7.9. The Borrower or any of its Subsidiaries shall fail within sixty
(60) days to pay, bond or otherwise discharge any judgments or orders for the
payment of money in an amount which, when added to all other judgments or orders
outstanding against Borrower or any Subsidiary would exceed $10,000,000 in the
aggregate, which have not been stayed on appeal or otherwise appropriately
contested in good faith.
7.10. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $1,000,000 or requires
payments exceeding $500,000 per annum.
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7.11. The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $500,000.
7.12. Failure to remediate within the time period permitted by law or
governmental order, after all administrative hearings and appeals have been
concluded (or within a reasonable time in light of the nature of the problem if
no specific time period is so established), environmental problems at Properties
owned by the Borrower or any of its Subsidiaries or Investment Affiliates if the
estimated costs of remediation at all such Properties in the aggregate exceed
$20,000,000.
7.13. The occurrence of any "Default" as defined in any Loan Document
or the breach of any of the terms or provisions of any Loan Document, which
default or breach continues beyond any period of grace therein provided.
7.14. The occurrence of any Material Adverse Effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
----------------------------------------------
8.1. ACCELERATION. If any Default described in SECTION 7.7 or 7.8
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Administrative Agent or any Lender. If any other Default occurs, the
Required Lenders, at any time prior to the date that such Default has been fully
cured, may terminate or suspend the obligations of the Lenders to make Loans
hereunder, or declare the Obligations to be due and payable, or both, whereupon
(i) the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives and (ii) the Administrative Agent, as directed by the
Required Lenders (or if no such direction is given within 30 days after a
request for direction, as the Administrative Agent deems in the best interests
of the Lenders, in its sole discretion), shall use its good faith efforts to
collect, including without limitation, by filing and diligently pursuing
judicial action, all amounts owed by the Borrower and any Subsidiary Guarantor
under the Loan Documents.
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If, after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans hereunder as a
result of any Default (other than any Default as described in SECTION 7.7 or 7.8
with respect to the Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, all of the Lenders
(in their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this ARTICLE VIII and
the right of the Borrower, solely with the agreement of the Administrative Agent
and such new banks or existing Lenders as may provide new or increased
Commitments, to increase the Aggregate Commitment as described in Section 2.1
above, the Required Lenders (or the Administrative Agent with the consent in
writing of the Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or the
Borrower hereunder or waiving any Default hereunder; provided, however, that no
such supplemental agreement or waiver shall, without the consent of all Lenders:
(i) Extend the Facility Termination Date or forgive all
or any portion of the principal amount of any Loan or
accrued interest thereon or the Facility Fee, reduce
the Applicable Margins or any accepted Absolute Rate
(or modify any definition herein which would have the
effect of reducing the Applicable Margins or any
accepted Absolute Rate) or the underlying interest
rate options or extend the time of payment of any
such principal, interest or Facility Fees.
(ii) Release any Subsidiary Guarantor from the Subsidiary
Guaranty or any other future guarantor from any
liability it may undertake with respect to the
Obligations.
(iii) Reduce the percentage specified in the definition of
Required Lenders.
(iv) Increase the Aggregate Commitment beyond
$400,000,000.
(v) Permit the Borrower to assign its rights under this
Agreement.
(vi) Amend SECTIONS 2.3, 2.13(ii), 2.25, 8.1, 8.2, 11.2 or
the definition of Required Lenders.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent.
8.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of
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a Loan notwithstanding the existence of a Default or the inability of the
Borrower to satisfy the conditions precedent to such Loan shall not constitute
any waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to SECTION 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Administrative Agent and the Lenders until the Obligations have
been paid in full.
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Notes and
the making of the Loans herein contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. TAXES. Any taxes (excluding taxes on the overall net income of
any Lender) or other similar assessments or charges made by any governmental or
revenue authority in respect of the Loan Documents shall be paid by the
Borrower, together with interest and penalties, if any.
9.4. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Administrative Agent and the Lenders
and supersede all prior commitments, agreements and understandings among the
Borrower, the Administrative Agent and the Lenders relating to the subject
matter thereof.
9.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be
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construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
9.7. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the
Administrative Agent for any costs, internal charges and out-of-pocket expenses
(including, without limitation, all reasonable fees for consultants and fees and
reasonable expenses for attorneys for the Administrative Agent, which attorneys
may be employees of the Administrative Agent) paid or incurred by the
Administrative Agent in connection with the amendment, modification, and
enforcement of the Loan Documents. The Borrower also agrees to reimburse the
Administrative Agent and the Lenders for any reasonable costs, internal charges
and out-of-pocket expenses (including, without limitation, all fees and
reasonable expenses for attorneys for the Administrative Agent and the Lenders,
which attorneys may be employees of the Administrative Agent or the Lenders)
paid or incurred by the Administrative Agent or any Lender in connection with
the collection and enforcement of the Loan Documents (including, without
limitation, any workout). The Borrower further agrees to indemnify the
Administrative Agent, the Syndication Agent, the Documentation Agent and each
Lender, its directors and officers against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the
Administrative Agent, the Syndication Agent, the Documentation Agent or any
Lender is a party thereto) which any of them may pay or incur arising out of or
relating to this Agreement, the other Loan Documents, the Projects, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder, except to the extent
that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The obligations of the
Borrower under this Section shall survive the termination of this Agreement.
9.8. NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.9. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP.
9.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.11. NONLIABILITY OF LENDERS. The relationship between the Borrower,
on the one hand, and the Lenders and the Administrative Agent, on the other,
shall be solely that of
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borrower and lender. Neither the Administrative Agent nor any Lender shall have
any fiduciary responsibilities to the Borrower. Neither the Administrative Agent
nor any Lender undertakes any responsibility to the Borrower to review or inform
the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
9.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL
BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
9.14. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
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ARTICLE X
THE ADMINISTRATIVE AGENT
------------------------
10.1. APPOINTMENT. The First National Bank of Chicago is hereby
appointed Administrative Agent hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Administrative Agent to act as
the agent of such Lender. The Administrative Agent agrees to act as such upon
the express conditions contained in this ARTICLE 10. The Administrative Agent
shall not have a fiduciary relationship in respect of the Borrower or any Lender
by reason of this Agreement.
10.2. POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent. The Administrative Agent shall
administer this Agreement in the same manner and with the same standard of care
as it administers similar agreements for its own account.
10.3. GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for (i) any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct; or
(ii) any determination by the Administrative Agent that compliance with any law
or any governmental or quasi-governmental rule, regulation, order, policy,
guideline or directive (whether or not having the force of law) requires the
Advances and Commitments hereunder to be classified as being part of a "highly
leveraged transaction". The foregoing shall not limit the liability of the
Administrative Agent for a breach of its express obligations and undertakings to
the Lenders hereunder which continues after written notice to the Administrative
Agent of such breach and its failure to cure such breach within a reasonable
time after such notice.
10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in ARTICLE IV, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith. Except as otherwise specifically provided herein, the Administrative
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Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrower to the Administrative Agent at such
time, but is voluntarily furnished by the Borrower to the Administrative Agent
(either in its capacity as Administrative Agent or in its individual capacity).
Notwithstanding anything to the contrary herein, Administrative Agent shall make
available promptly after the Agreement Execution Date to any Lender copies of
all Loan Documents in its possession which are requested by any such Lender.
Administrative Agent shall also furnish to all Lenders promptly after such items
are available in final form copies of Default notices issued to the Borrower,
amendments to any Loan Documents being proposed by the Administrative Agent or
the Borrower, financial statements of the Borrower required hereunder,
compliance certificates from the Borrower required by this Agreement or any
other notice or communication from the Borrower specifically relating to this
Agreement which is actually received by the Administrative Agent. Promptly after
the Administrative Agent has actual knowledge of the occurrence of a Default
hereunder, the Administrative Agent shall so notify the Lenders.
10.5. ACTION ON INSTRUCTIONS OF LENDERS. Notwithstanding anything
herein to the contrary, the Administrative Agent shall in all cases be fully
protected in so acting, or refraining from acting, hereunder and under any other
Loan Document in accordance with written instructions signed by the Required
Lenders or all of the Lenders, as the case may be, and such instructions and any
action taken or failure to act pursuant to such written instructions shall be
binding on all of the Lenders and on all holders of Notes and on the
Administrative Agent.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative Agent of its
duties as Administrative Agent hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning all matters pertaining to the agency hereby
created and its duties hereunder and under any other Loan Document.
10.7. RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8. ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (i) for any amounts not reimbursed by
the Borrower for which the Administrative Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Administrative Agent on behalf of the
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Lenders, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents, if not paid by Borrower and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any other document delivered
in connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct or a breach of the
Administrative Agent's express obligations and undertakings to the Lenders which
is not cured after written notice and within the period described in SECTION
10.3. To the extent any amounts so paid by Lenders are thereafter recovered by
the Administrative Agent from the Borrower or any Subsidiary Guarantor or
otherwise, such recovered amount shall be remitted to the Lenders making such
payment on a pro rata basis in accordance with their respective portions of such
payment. The obligations of the Lenders and the Administrative Agent under this
SECTION 10.8 shall survive payment of the Obligations and termination of this
Agreement.
10.9. RIGHTS AS A LENDER. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document as any Lender and may exercise the same as
though it were not the Administrative Agent, and the term "Lender" or "Lenders"
shall, at any time when the Administrative Agent is a Lender, unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Administrative Agent, in its individual capacity, is not obligated to remain a
Lender but if the Administrative Agent is no longer a Lender, the Administrative
Agent shall resign and a successor shall be appointed as described in SECTION
10.11. The rights and duties of the Administrative Agent are separate from its
rights and duties as a Lender and no transfer of all or any part of the
Administrative Agent's Commitment or its interest as a Lender in the Loans
hereunder shall be deemed to transfer any of its rights and duties as
Administrative Agent to its successor or successors as a Lender.
10.10. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
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10.11. SUCCESSOR ADMINISTRATIVE AGENT. Except as otherwise provided
below, First Chicago shall serve as Administrative Agent at all times during the
term of this Facility. First Chicago may resign as Administrative Agent in the
event (x) First Chicago and Borrower shall mutually agree in writing or (y) an
Event of Default shall occur and be continuing under the Loan Documents, or (z)
First Chicago shall determine, in its sole reasonable discretion, that because
of its other banking relationships with Borrower and/or Borrower's Affiliates at
the time of such decision First Chicago's resignation as Administrative Agent
would be necessary in order to avoid creating an appearance of impropriety on
the part of First Chicago. First Chicago shall also resign as Administrative
Agent, within 30 days after receipt of a written request from (a) any Lender, if
the Administrative Agent's Commitment, after giving effect to any assignments or
reductions hereunder, is less than the lower of (i) 10% of the then-current
Aggregate Commitment or (ii) the highest Commitment amount then held by any
Lender. First Chicago (or any successor Administrative Agent) may be removed as
Administrative Agent by written notice received by Administrative Agent from the
Required Lenders at any time with cause (i.e., a breach by First Chicago (or any
successor Administrative Agent) of its duties as Administrative Agent hereunder)
or for gross negligence or willful misconduct. Upon any such resignation, the
Required Lenders shall have the right to appoint, on behalf of the Borrower and
the Lenders, a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Required Lenders within thirty days
after the resigning Administrative Agent's giving notice of its intention to
resign or receiving such a request to resign, then the resigning Administrative
Agent shall, prior to the effective date of its resignation, appoint, on behalf
of the Borrower and the Lenders, a successor Administrative Agent. No successor
Administrative Agent shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment. Any such successor
Administrative Agent shall be a commercial bank having capital and retained
earnings of at least $50,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the resigning Administrative
Agent. Upon the effectiveness of the resignation of the Administrative Agent,
the resigning Administrative Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation of an Administrative Agent, the provisions of this Article XI
shall continue in effect for the benefit of such Administrative Agent in respect
of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
------------------------
11.1. SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender to
or for the credit or account of the Borrower may be offset and applied toward
the payment of the Obligations owing to such Lender at any time prior to the
date that such Default has been fully cured, whether or not the Obligations, or
any part hereof, shall then be due.
11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
SECTIONS 3.1, 3.2 or 3.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
-------------------------------------------------
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with SECTION 12.3. Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of the Borrower or the Administrative Agent,
assign all or any portion of its rights under this Agreement and its Notes to a
Federal Reserve Bank; provided, however, that no such assignment shall release
the transferor Lender from its obligations hereunder. The Administrative Agent
may treat the payee of any Note as the owner thereof for all purposes hereof
unless and until such payee complies with SECTION 12.3 in the case of an
assignment thereof or, in the case of any
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other transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
12.2. PARTICIPATIONS.
---------------
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in
the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks, financial institutions,
pension funds, or any other funds or entities ("PARTICIPANTS")
participating interests in any Loan owing to such Lender, any Note held
by such Lender, any Commitment of such Lender or any other interest of
such Lender under the Loan Documents. In the event of any such sale by
a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests,
and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect
to any Loan or Commitment in which such Participant has an interest
which forgives principal, interest or fees or reduces the interest rate
or fees payable with respect to any such Loan or Commitment or
postpones any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Loan or Commitment or
releases any Subsidiary from the Subsidiary Guaranty.
12.2.3. BENEFIT OF SETOFF. The Borrower agrees that each
Participant which has previously advised the Borrower in writing of its
purchase of a participation in a Lender's interest in its Loans shall
be deemed to have the right of setoff provided in SECTION 11.1 in
respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan
Documents. Each Lender shall retain the right of setoff provided in
SECTION 11.1 with respect to the amount of participating interests sold
to each Participant, provided that such Lender and Participant may not
each setoff amounts against the same portion of the Obligations, so as
to collect the same amount from the Borrower twice. The Lenders agree
to share with each Participant, and each Participant, by exercising the
right of setoff provided in SECTION
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11.1, agrees to share with each Lender, any amount received pursuant to
the exercise of its right of setoff, such amounts to be shared in
accordance with SECTION 11.2 as if each Participant were a Lender.
12.3. ASSIGNMENTS.
------------
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time assign to any of such Lender's affiliates or to one or more
banks, financial institutions or pension funds, or with the prior
approval of the Borrower, which shall not be unreasonably withheld or
delayed, any other entity ("PURCHASERS") all or any portion of its
rights and obligations under the Loan Documents. Notwithstanding the
foregoing, no approval of the Borrower shall be required for any such
assignment if a Default has occurred and is then continuing. Such
assignment shall be substantially in the form of EXHIBIT D hereto or in
such other form as may be agreed to by the parties thereto. The consent
of the Administrative Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Lender or
an Affiliate thereof. Such consent shall not be unreasonably withheld.
12.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the
form attached as Exhibit "I" to EXHIBIT D hereto (a "NOTICE OF
ASSIGNMENT"), together with any consents required by SECTION 12.3.1,
and (ii) payment of a $3,500 fee by the assignor or assignee to the
Administrative Agent for processing such assignment, such assignment
shall become effective on the effective date specified in such Notice
of Assignment. The Notice of Assignment shall contain a representation
by the Purchaser to the effect that none of the consideration used to
make the purchase of the Commitment and Loans under the applicable
assignment agreement are "plan assets" as defined under ERISA and that
the rights and interests of the Purchaser in and under the Loan
Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as
if it were an original party hereto, and no further consent or action
by the Borrower, the Lenders or the Administrative Agent shall be
required to release the transferor Lender, and the transferor Lender
shall automatically be released on the effective date of such
assignment, with respect to the percentage of the Aggregate Commitment
and Loans assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this SECTION 12.3.2, the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts
reflecting their Commitment, as adjusted pursuant to such assignment.
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12.4. DISSEMINATION OF INFORMATION. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "TRANSFEREE") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, subject to
SECTION 12.6.
12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of SECTION 2.19.
12.6. CONFIDENTIALITY. The Administrative Agent and Lenders agree to
take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all non-public information provided to them by the Borrower
or by any other Person on the Borrower's behalf in connection with the Loan
Documents and agree and undertake that neither they nor any of their Affiliates
shall disclose any such information for any purpose or in any manner other than
pursuant to the terms contemplated by the Loan Documents. The Administrative
Agent and each Lender may disclose such information (1) at the request of any
regulatory authority with jurisdiction over the Administrative Agent and/or the
Lenders or in connection with an examination of such Person by any such
authority, (2) pursuant to subpoena or other process of a court having
jurisdiction over the Administrative Agent and/or the Lenders, (3) when required
to do so in accordance with the provisions of any applicable law, (4) at the
express direction of any other governmental authority, with jurisdiction over
the Administrative Agent and/or the Lenders, of any State of the United States
of America or of any other jurisdiction in which such Person conducts its
business, (5) to such Person's independent auditors, attorneys and other
professional advisors, (6) if such information has become public other than
through disclosure by such Person or any Lender, (7) in connection with any
litigation involving such Person, and (8) to any Affiliate of such Person which
agrees to be bound by this SECTION 12.6. Notwithstanding the foregoing, the
Borrower authorizes each of the Administrative Agent and each Lender to disclose
to any prospective or actual Transferee such financial and other information in
its possession (i) which has been delivered to such Person pursuant to the Loan
Documents or which has been delivered to such Person by the Borrower prior to
entering into the Loan Documents, or (ii) which is reasonably necessary to
effectuate the purposes of this Agreement and the Loan Documents; provided that,
unless otherwise agreed by the Borrower, such Transferee shall agree to keep
such information confidential to the same extent required to the Administrative
Agent or any Lender, as applicable, hereunder.
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ARTICLE XIII
NOTICES
-------
13.1. GIVING NOTICE. Except as otherwise permitted by SECTION 2.14
with respect to borrowing notices, all notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
13.2. CHANGE OF ADDRESS. The Borrower, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President & CFO
-----------------------------------
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxx 00000-0000
Phone: 216/000-0000
Facsimile: 216/247-1118
Attention: Xxxxx X. Xxxxxxxx
COMMITMENTS:
------------
$53,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Percentage of Aggregate Individually and as Administrative Agent
Commitment: 14.13333%
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Vice President
------------------------------------
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/732-1117
Attention: Real Estate Finance Department
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$50,000,000 BANK OF AMERICA NATIONAL TRUST
Percentage of Aggregate & SAVINGS ASSOCIATION, a national banking
Commitment: 13.33333% association
By: /s/ Xxxxxxx X. Xxxx, Xx.
---------------------------------------
Print Name: Xxxxxxx X. Xxxx, Xx.
-------------------------------
Title: Vice President
------------------------------------
000 Xxxxx XxXxxxx Xxxxxx, 00-X
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/974-4970
Attention: Xxxxxxx X. Xxxx, Xx., Vice
President
$40,000,000 COMMERZBANK AKTIENGESELLSCHAFT
Percentage of Aggregate
Commitment: 10.66667%
By: /s/ J. Xxxxxxx Shortly
---------------------------------------
Print Name: J. Xxxxxxx Shortly
-------------------------------
Title: Senior Vice President
------------------------------------
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/435-1485
Attention: Xxxxxxx Shortly
$50,000,000 FLEET NATIONAL BANK
Percentage of Aggregate
Commitment: 13.33333%
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Vice President
------------------------------------
00 Xxxxx Xxxxxx, XX/XX/X00X
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Phone: 617/000-0000
Facsimile: 617/346-3220
Attention: Xxxxxx Xxxxxx, Vice President
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$35,000,000 UBS AG, NEW YORK BRANCH
Percentage of Aggregate
Commitment: 9.33333%
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Print Name: Xxxxx Xxxxxxx
-------------------------------
Title: Associate Director
------------------------------------
And By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Print Name: Xxxxxxx X. Xxxx
------------------------------
Title: Executive Director
------------------------------------
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Phone: 212/000-0000
Facsimile: 212/821-4138
Attention: Xxxxxx Xxxxxxxx
$30,000,000 AMSOUTH BANK
Percentage of Aggregate
Commitment: 8.00000%
By: /s/ Xxxxxxxx Xxxxx
---------------------------------------
Print Name: Xxxxxxxx Xxxxx
-------------------------------
Title: Vice President
------------------------------------
0000 0xx Xxxxxx, Xxxxx
XxXxxxx Xxxxx Sonat Tower, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Phone: 205/000-0000
Facsimile: 205/326-4075
Attention: Xxxxxxxx Xxxxx, Vice President
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$25,000,000 PNC BANK, NATIONAL ASSOCIATION
Percentage of Aggregate
Commitment: 6.66667%
By: /s/ Xxxxx Xxxx
---------------------------------------
Print Name: Xxxxx Xxxx
-------------------------------
Title: Vice President
------------------------------------
One PNC Plaza
249 5th Avenue, Mail Stop P1-XXXX-19-2
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Phone: 412/000-0000
Facsimile: 412/762-6500
Attention: Xxxx Xxxx
$16,000,000 COMERICA BANK
Percentage of Aggregate
Commitment: 4.26667%
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Account Officer
------------------------------------
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Phone: 313/000-0000
Facsimile: 313/222-9295
Attention: Xxxxx Xxxxxxxx, Vice President
$20,000,000 FIRST UNION NATIONAL BANK
Percentage of Aggregate
Commitment: 5.33333%
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxxxxxx
-------------------------------
Title: Director
------------------------------------
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Phone: 704/000-0000
Facsimile: 704/383-6205
Attention: Xxxxxx X. Xxxxxxxx
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$16,000,000 MELLON BANK, N.A.
Percentage of Aggregate
Commitment: 4.26667%
By: ???
---------------------------------------
Print Name: ????
-------------------------------
Title: ????
------------------------------------
Xxx Xxxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Phone: 412/000-0000
Facsimile: 412/234-8657
Attention: Xxx Xxxxxxxx
$20,000,000 HUNTINGTON NATIONAL BANK
Percentage of Aggregate
Commitment: 5.33333%
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Print Name: Xxxxxx X. Xxxx
-------------------------------
Title: Vice President
------------------------------------
Mail Code - cm17
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/515-6369
Attention: Xxxxx Xxxx, Vice President
$20,000,000 HIBERNIA NATIONAL BANK
Percentage of Aggregate
Commitment: 5.33333%
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Print Name: Xxxxx Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------------
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Phone: 504/000-0000
Facsimile: 504/533-2042
Attention: Xxxxx Xxxxx
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