==============================================================
CREDIT AGREEMENT
Dated as of April 30, 1997
among
RECKSON OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
and
THE CHASE MANHATTAN BANK
AS ARRANGER AND ADMINISTRATIVE AGENT
and
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
AS ARRANGER AND DOCUMENTATION AGENT
=================================================================
CREDIT AGREEMENT
This Credit Agreement dated as of April 30, 1997 (as amended,
supplemented or modified from time to time, the "Agreement") is entered
---------
into among RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Reckson"), the institutions from time to time a party hereto
-------
as Lenders, whether by execution of this Agreement or an Assignment and
Acceptance, and THE CHASE MANHATTAN BANK, as Arranger and Administrative
Agent, and UNION BANK OF SWITZERLAND, NEW YORK BRANCH, as Arranger and
Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this
---------------------
Agreement shall have the following meanings, applicable both to the singular
and the plural forms of the terms defined:
"Adjusted Unencumbered NOI" means, for any period, the sum of
-------------------------
(i) the NOI from the Consolidated Businesses less the Unencumbered Capital
Expenditure Reserve Amounts for such period; (ii) the portion of NOI of the
Eligible Minority Holdings allocable to the Borrower, in accordance with GAAP
less the Unencumbered Capital Expenditure Reserve Amounts for such period;
and (iii) 50% of the portion of NOI of the Limited Minority Holdings
allocable to the Borrower in accordance with GAAP less 50% of the
Unencumbered Capital Expenditure Reserve Amounts for such period; which
amounts represent revenues earned from Real Property that is not subject to
or encumbered by Secured Indebtedness and which revenues are not subject to
any pledge, Lien or other hypothecation. The Borrower's share of NOI of the
Limited Minority Holdings included in clause (ii) hereof shall in no event
exceed fifteen percent (15%) of Adjusted Unencumbered NOI.
"Administrative Agent" means Chase.
--------------------
"Affiliate", as applied to any Person, means
---------
any other Person that directly or indirectly controls, is controlled by, or
is under common control with, that Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to vote ten
percent (10.0%) or more of the equity Securities having voting power for the
election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting equity Securities or by contract or otherwise.
"Agents" means, collectively, UBS in its capacity as
------
Documentation Agent, Chase in its capacity as Administrative Agent, each
Arranger, and each successor agent appointed pursuant to the terms of Article
-------
XII of this Agreement.
---
"Agreement" is defined in the preamble hereto.
---------
"Applicable Lending Office" means, with respect to a particular
-------------------------
Lender, (i) its Eurodollar Lending Office in respect of provisions relating
to Eurodollar Rate Loans and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to each Loan, the
-----------------
respective percentages per annum determined, at any time, based on the range
into which the Leverage Ratio then falls, in accordance with the following
table. Any change in the Applicable Margin shall be effective as of the
financial reporting dates set forth in Section 8.2 hereof or as
-----------
of the date of any Borrowing on which the Leverage Ratio changes.
Applicable Applicable
Margin for Margin for
Eurodollar Base Rate
Loans Loans
Leverage Ratio (% per annum) (% per annum)
-------------- ---------------------------------
30% or less 1.125% 0.00%
greater than 30%-35% 1.20% 0.00%
greater than 35%-50% 1.25% 0.00%
greater than 50% 1.50% 0.00125%
"Arrangers" means UBS and Chase, each appointed pursuant to the
---------
terms of Article XII of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance
-------------------------
in substantially the form of EXHIBIT A attached hereto and made a part
---------
hereof (with blanks appropriately completed) delivered to the Administrative
Agent in connection with an assignment of a Lender's interest under this
Agreement in accordance with the provisions of Section 14.1.
------------
"Authorized Financial Officer" means a chief executive officer,
----------------------------
president, chief financial officer, treasurer or other qualified senior
officer acceptable to the Administrative Agent.
"Base Rate" means, for any period, a fluctuating interest rate
---------
per annum as shall be in effect from time to time, which rate per annum shall
at all times be equal to the higher of:
(i) the rate of interest announced publicly by Chase in New York,
New York from time to time, as Chase's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum plus
----
(B) the Federal Funds Rate in effect from time to time during such
period.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
--------------
determined by reference to the Base Rate and the Applicable Margin as
provided in Section 5.1(a) or (ii) an overdue amount which was a Base Rate
--------------
Loan immediately before it became due.
"Borrower" means Reckson.
--------
"Borrower Partnership Agreement" means the Reckson
------------------------------
Partnership Agreement as such agreement may be amended, restated, modified or
supplemented from time to time with the consent of the Agents or as permitted
under Section 10.9.
------------
"Borrowing" means a borrowing consisting of Loans of the same
---------
type made, continued or converted on the same day.
"Business Day" means a day, in the applicable local time, which
------------
is not a Saturday or Sunday or a legal holiday and on which banks are not
required or permitted by law or other governmental action to close (i) in New
York, New York and (ii) in the case of Eurodollar Rate Loans, in London,
England and (iii) in the case of Letter of Credit transactions for a
particular Lender, in the place where its office for issuance or
administration of the pertinent Letter of Credit is located.
"Capital Expenditures" means, for any period, the aggregate of
--------------------
all expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity
with GAAP, are required to be included in or reflected by the Company's, the
Borrower's or any of its Subsidiaries' fixed asset accounts as reflected in
any of their respective balance sheets; provided, however,
-------- -------
Capital Expenditures shall include the sum of all expenditures by the
Consolidated Businesses and the portion of expenditures of Eligible Minority
Holdings and Limited Minority Holdings allocable to the Consolidated
Businesses for tenant improvements, leasing commissions, property level
capital expenditures (e.g., roof replacement, parking lot repairs, etc., but
not capital expenditures in connection with expansions).
"Capital Expenditure Reserve Amounts" means the greater of (i)
-----------------------------------
the sum of (a) an amount per annum equal to $0.72 multiplied by the number of
square feet for office properties owned, directly or indirectly by any of the
Consolidated Businesses or Eligible Minority Holdings or Limited Minority
Holdings; and (b) an amount per annum equal to $0.28 multiplied by the number
of square feet for industrial properties owned, directly or indirectly by any
of the Consolidated Businesses or Eligible Minority Holdings or Limited
Minority Holdings and (ii) as of the first day of each calendar quarter, an
amount equal to the actual Capital Expenditures for the immediately preceding
consecutive four calendar quarters.
"Capital Lease" means any lease of any property (whether real,
-------------
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital
-------------
stock of such Person, regardless of class or designation, and all warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls
or claims of any character with respect thereto.
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
-------------------------
marketable direct obligations issued or unconditionally guaranteed by the
United States government and backed by the full faith and credit of the
United States government; and (iii) domestic and Eurodollar certificates of
deposit and time deposits, bankers' acceptances and floating rate
certificates of deposit issued by any commercial bank organized under the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations), which, at the time of acquisition, are rated A-1 (or better)
by S&P or P-1 (or better) by Xxxxx'x provided that the
-------- ----
maturities of such Cash and Cash Equivalents shall not exceed one year.
"CERCLA" means the Comprehensive Environmental Response,
------
Compensation and Liability Act of 1980, 42 U.S.C. SectionSection 9601 et
--
seq., any amendments thereto, any successor statutes, and any regulations
---
or guidance promulgated thereunder.
"Chase" means The Chase Manhattan Bank.
-----
"Claim" means any claim or demand, by any Person, of whatsoever
-----
kind or nature for any alleged Liabilities and Costs, whether based in
contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means April 30, 1997.
------------
"Combined Equity Value" means Total Value, less Total
---------------------
Outstanding Indebtedness.
"Commercial Letter of Credit" means any documentary letter of
---------------------------
credit issued by an Issuing Bank pursuant to Section 3.1 for the account
-----------
of the Borrower, which is drawable upon presentation of documents evidencing
the sale or shipment of goods purchased by the Borrower in the ordinary
course of its business.
"Commission" means the Securities and Exchange Commission and
----------
any Person succeeding to the functions thereof.
"Company" means Reckson Associates Realty Corp., a Maryland
-------
corporation.
"Compliance Certificate" is defined in Section 8.2(b).
---------------------- --------------
"Consolidated" means consolidated, in accordance with GAAP.
------------
"Consolidated Businesses" means the Company, the Borrower,
-----------------------
Reckson FS Limited Partnership and their wholly-owned Subsidiaries.
"Construction Asset Cost" means, with respect to Property on
-----------------------
which construction of improvements has commenced (such commencement evidenced
by foundation excavation) but has not yet been completed (as such completion
shall be evidenced by a temporary or permanent certificate of occupancy
permitting use of such Property by the general public), the aggregate sums
expended on the construction of such improvements (including land acquisition
costs and other soft costs).
"Contaminant" means any waste, pollutant, hazardous substance,
-----------
toxic substance, hazardous waste, special waste, petroleum or petroleum-
derived substance or waste, radioactive materials, asbestos containing
materials (in any form or condition), polychlorinated biphenyls (PCBs), or
any constituent of any such substance or waste, and includes, but is not
limited to, these terms as defined in federal, state or local laws or
regulations.
"Contingent Obligation" as to any Person means, without
---------------------
duplication, (i) any contingent obligation of such Person required to be
shown on such Person's balance sheet in accordance with GAAP, and (ii) any
obligation required to be disclosed in the footnotes to such Person's
financial statements in accordance with GAAP, guaranteeing partially or in
whole any non-recourse Indebtedness, lease, dividend or other obligation,
exclusive of contractual indemnities (including, without limitation, any
indemnity or price-adjustment provision relating to the purchase or sale of
securities or other assets) and guarantees of non-monetary obligations (other
than guarantees of completion) which have not yet been called on or
quantified, of such Person or of any other Person. Notwithstanding the
foregoing, any litigation required to be disclosed in the footnotes to such
Person's financial statements in accordance with GAAP shall not be included
as a "Contingent Obligation" unless the same shall have been reserved for in
accordance with GAAP. The amount of any Contingent Obligation described in
clause (ii) shall be deemed to be (a) with respect to a guaranty of interest
or interest and principal, or operating income guaranty, the sum of all
payments required to be made thereunder (which in the case of an operating
income guaranty shall be deemed to be equal to the debt service for the note
secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (i) in the case of an interest or interest and
principal guaranty, the stated date of maturity of the obligation (and
commencing on the date interest could first be payable thereunder), or (ii)
in the case of an operating income guaranty, the date through which such
guaranty will remain in effect, and (b) with respect to all guarantees not
covered by the preceding clause (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
guaranty is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to
the most recent financial statements of the applicable Borrower required to
be delivered pursuant hereto. Notwithstanding anything contained herein to
the contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment has been made thereunder, at
which time any such guaranty of completion shall be deemed to be a Contingent
Obligation in an amount equal to any such claim. Subject to the preceding
sentence, (i) in the case of a joint and several guaranty given by such
Person and another Person (but only to the extent such guaranty is recourse,
directly or indirectly to the applicable Borrower), the amount of the
guaranty shall be deemed to be 100% thereof unless and only to the extent
that (X) such other Person has delivered Cash or Cash Equivalents to secure
all or any part of such Person's guaranteed obligations or (Y) such other
Person holds an Investment Grade Credit Rating from either Xxxxx'x or S&P,
and (ii) in the case of a guaranty, (whether or not joint and several) of an
obligation otherwise constituting Debt of such Person, the amount of such
guaranty shall be deemed to be only that amount in excess of the amount of
the obligation constituting Indebtedness of such Person. Notwithstanding
anything contained herein to the contrary, "Contingent Obligations" shall not
be deemed to include guarantees of loan commitments or of construction loans
to the extent the same have not been drawn.
"Contractual Obligation", as applied to any Person, means any
----------------------
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by
which it or any of its properties is bound, or to which it or any of its
properties is subject.
"Corporate Level G&A" means total corporate general and
-------------------
administrative costs, less Property Level G&A.
"Credit Rating" means the publicly announced rating of a Person
-------------
given by Xxxxx'x or S&P.
"Cure Loans" is defined in Section 4.2(b)(v)(C).
---------- ------- ------------
"Customary Permitted Liens" means
-------------------------
(i) Liens (other than Environmental Liens and Liens in favor
of the PBGC) with respect to the payment of taxes, assessments or
governmental charges or levies in all cases which are not yet due
or which are being contested in good faith by appropriate
proceedings in accordance with Section 9.4 and with
-----------
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP;
(ii) statutory and common law Liens of landlords against any
Property of the Borrower or any of its Subsidiaries;
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the
ordinary course of business for amounts which could not reasonably be
expected to result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC)
incurred or deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or
other types of social security benefits or to secure the
performance of bids, tenders, sales, contracts (other than for the
repayment of borrowed money), surety, appeal and performance bonds;
provided that (A) all such Liens do not in the aggregate
-------- ----
materially detract from the value of the Borrower's or such Subsidiary's
assets or Property or materially impair the use thereof in the operation
of their respective businesses, and (B) all Liens of attachment or
judgment and Liens securing bonds to stay judgments or in connection
with appeals which do not secure at any time an aggregate amount of
recourse Indebtedness exceeding $10,000,000; and
(v) Liens against any Property of the Borrower or any
Subsidiary of the Borrower arising with respect to zoning
restrictions, easements, licenses, reservations, covenants, rights-
of-way, utility easements, building restrictions and other similar
charges or encumbrances on the use of Real Property which do not
materially interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not
materially interfering with the conduct of the business of the
Borrower and its Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its
Subsidiaries at the time of acquisition thereof by the Borrower or
any such Subsidiary or within 180 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof, provided that the Lien encumbering the equipment
--------
or machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary;
(viii) customary restrictions imposed by licensors of
software or trademarks on users thereof;
(ix) interests of licensees and sublicensees in any
trademarks or other intellectual property license or sublicense by
the Borrower or any of its Subsidiaries; and
(x) Environmental Liens which are being contested in good
faith by appropriate proceedings.
"Designated Lender" is defined in Section 13.4.
----------------- ------------
"DOL" means the United States Department of Labor and any Person
---
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
------- -
"Domestic Lending Office" means, with respect to any Lender,
-----------------------
such Lender's office, located in the United States, specified as the
"Domestic Lending Office" under its name on the signature pages hereof or on
the Assignment and Acceptance by which it became a Lender or such other
United States office of such Lender as it may from time to time specify by
written notice to the Borrower and the Administrative Agent.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof;
-----------------
(ii) a commercial bank having total assets in excess of $5,000,000,000;
(iii) the central bank of any country which is a member of the Organization
for Economic Cooperation and Development having total assets in excess of
$10,000,000,000; or (iv) a finance company or other financial institution
reasonably acceptable to the Administrative Agent, which is regularly engaged
in making, purchasing or investing in loans and having total assets in excess
of $1,000,000,000 or is otherwise reasonably acceptable to the Administrative
Agent.
"Eligible Minority Holdings" means Minority Holdings in which
--------------------------
(i) the Company and/or the Borrower collectively have an ownership interest
of fifty percent (50%) or greater, (ii) the Borrower or the Company controls
the management of such Minority Holdings, whether as the general partner or
managing member of such Minority Holding, or otherwise, (iii) the Borrower or
the Company, as general partner, managing member or otherwise, has the
ability, in its sole discretion, to grant Liens on the assets of such
Minority Holding, and (iv) there are no restrictions on the ability of such
Minority Holding to declare distributions or dividends, as the case may be.
As used in this definition only, the term "control" shall mean the authority
to make major management decisions in its sole discretion and the management
of day-to-day operations of such entity.
"Environmental, Health or Safety Requirements of Law" means all
---------------------------------------------------
Requirements of Law derived from or relating to any federal, state or local
law, ordinance, rule, regulation, Permit, license or other binding
determination of any Governmental Authority relating to, imposing liability
or standards concerning, or otherwise addressing the environment, health
and/or safety, including, but not limited to the Clean Air Act, the Clean
Water Act, CERCLA, RCRA, any so-called "Superfund" or "Superlien" law, the
Toxic Substances Control Act and OSHA, and public health codes, each as from
time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental
------------------
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable
-----------------------------------
Requirement of Law that conditions, restricts, prohibits or requires any
notification or disclosure triggered by the transfer, sale, lease or closure
of any Property or deed or title for any Property for environmental reasons,
including, but not limited to, any so-called "Environmental Cleanup
Responsibility Act" or "Responsible Property Transfer Act".
"Equipment" means equipment used in connection
---------
with the maintenance of Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, 29 U.S.C. SectionSection 1000 et seq., any amendments thereto, any
-- ---
successor statutes, and any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of
---------------
the same controlled group of corporations (within the meaning of
Section 414(b) of the Internal Revenue Code) as the Borrower; (ii) a
partnership or other trade or business (whether or not incorporated) which is
under common control (within the meaning of Section 414(c) of the Internal
Revenue Code) with the Borrower; and (iii) a member of the same affiliated
service group (within the meaning of Section 414(m) of the Internal Revenue
Code) as the Borrower, any corporation described in clause (i) above or any
partnership or trade or business described in clause (ii) above.
"ERISA Termination Event" means (i) a Reportable Event with
-----------------------
respect to any Benefit Plan; (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Benefit Plan during a plan year in which the Borrower or
such ERISA Affiliate was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of 20% of Benefit Plan participants who are
employees of the Borrower or any ERISA Affiliate; (iii) the imposition of an
obligation on the Borrower or any ERISA Affiliate under Section 4041 of ERISA
to provide affected parties written notice of intent to terminate a Benefit
Plan in a distress termination described in Section 4041(c) of ERISA; (iv)
the institution by the PBGC of proceedings to terminate a Benefit Plan; (v)
any event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer,
any Benefit Plan; or (vi) the partial or complete withdrawal of the Borrower
or any ERISA Affiliate from a Multiemployer Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the
--------------------
Affiliate of such Lender (if any) set forth below such Lender's name under
the heading "Eurodollar Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrower
and the Administrative Agent.
"Eurodollar Interest Period" is defined in Section 5.2(b).
-------------------------- --------------
"Eurodollar Interest Rate Determination Date" is defined in
-------------------------------------------
Section 5.2(c).
--------------
"Eurodollar Lending Office" means, with respect to any Lender,
-------------------------
such Lender's office (if any) specified as the "Eurodollar Lending Office"
under its name on the signature pages hereof or on the Assignment and
Acceptance by which it became a Lender or such other office or offices of
such Lender as it may from time to time specify by written notice to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Eurodollar Interest Period, an
---------------
interest rate per annum equal to the rate per annum obtained by multiplying
(a) a rate per annum equal to the rate for U.S. dollar deposits with
maturities comparable to such Eurodollar Interest Period which appears on
Telerate Page 3750 as of 11:00 a.m., London time, two (2) Business Days prior
to the commencement of such Eurodollar Interest Period, provided, however,
that if such rate does not appear on Telerate Page 3750, the "Eurodollar
Rate" applicable to a particular Eurodollar Interest Period shall mean a rate
per annum equal to the rate at which U.S. dollar deposits in an amount
approximately equal to the principal balance (or the portion thereof which
will bear interest at a rate determined by reference to the Eurodollar Rate
during the Eurodollar Interest Period to which such Eurodollar Rate is
applicable in accordance with the provisions hereof), and with maturities
comparable to the last day of the Eurodollar Interest Period with respect to
which such Eurodollar Rate is applicable, are offered in immediately
available funds in the London Interbank Market to the London office of Chase
by leading banks in the Eurodollar market at 11:00 a.m., London time, two (2)
Business Days prior to the commencement of the Eurodollar Interest Period to
which such Eurodollar Rate is applicable, by (b) a fraction (expressed as a
decimal) the numerator of which shall be the number one and the denominator
of which shall be the number one minus the Eurodollar Reserve
-----
Percentage for such Eurodollar Interest Period.
"Eurodollar Rate Loan" means (i) a Loan which bears interest at
--------------------
a rate determined by reference to the Eurodollar Rate and the Applicable
Margin for Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an
overdue amount which was a
--------------
Eurodollar Loan immediately before it became due.
"Eurodollar Reserve Percentage" means, for any day, that
-----------------------------
percentage which is in effect on such day, as prescribed by the Federal
Reserve Board for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York, New
York with deposits exceeding five billion Dollars in respect of "Eurocurrency
Liabilities" (or in respect of any other category of liabilities which
includes deposits by reference to which the interest rate on Eurodollar Rate
Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any bank to United
States residents).
"Event of Default" means any of the occurrences set forth in
----------------
Section 11.1 after the expiration of any applicable grace period and the
------------
giving of any applicable notice, in each case as expressly provided in
Section 11.1.
------------
"Existing Permitted Liens" shall mean each of the Liens set
------------------------
forth on SCHEDULE 1.1.1 hereto.
"FAD" means "funds available for distribution" and shall mean,
---
for any period, FFO less (i) Capital Expenditures, for such period, whether
payable or accrued as a liability, (ii) adjustments to account for rents on
an accrual (rather than GAAP) basis for such period, and (iii) free rent and
accrued rent with respect to tenants that are more than 90 days in arrears in
the payment of rent for such period.
"Federal Funds Rate" means, for any period, a fluctuating
------------------
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published
for such day (or, if such day is not a Business Day in New York, New York,
for the next preceding Business Day) in New York, New York by the Federal
Reserve Bank of New York, or if such rate is not so published for any day
which is a Business Day in New York, New York, the average of the quotations
for such day on transactions by the Reference Bank, as determined by the
Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the
---------------------
Federal Reserve System or any Governmental Authority succeeding to its
functions.
"FFO" means "funds from operations" as defined in the National
---
Association of Real Estate Investment Trusts ("NAREIT") White Paper on
------
Funds From Operations as approved by the NAREIT Board of Governors on March
3, 1995.
"Financial Statements" means (i) quarterly and annual
--------------------
consolidated statements of income and retained earnings, statements of cash
flow, and balance sheets, prepared in accordance with GAAP, consistently
applied, and (ii) such other financial statements of the Borrower, the
Company and the other Consolidated Businesses or Minority Holdings that the
Company shall routinely and regularly prepare and that the Arrangers or the
Requisite Lenders may from time to time reasonably request.
"Fiscal Year" means the fiscal year of the Company and the
-----------
Borrower for accounting and tax purposes, which shall be the 12-month period
ending on December 31 of each calendar year.
"Fixed Charges" means, with respect to any fiscal period, the
-------------
sum of (a) Total Interest Expense and (b) the aggregate of all scheduled
principal payments on Total Outstanding Indebtedness according to GAAP made
or required to be made during such fiscal period for the Consolidated
Businesses and Minority Holdings (but excluding balloon payments of principal
due upon the stated maturity of an Indebtedness), and (c) the aggregate of
all dividends payable on the Company's or any of its consolidated
Subsidiaries' preferred stock not owned by the Company or any of its
Affiliates.
"Funding Date" means, with respect to any Loan, the date of
------------
funding of such Loan.
"GAAP" means generally accepted accounting principles set forth
----
in the opinions and pronouncements of the American Institute of Certified
Public Accountants' Accounting Principles Board and Financial Accounting
Standards Board or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession as in effect
on the Closing Date (unless otherwise specified herein as in effect on
another date or dates).
"General Partner" means the Company and any successor general
---------------
partner(s) of the Borrower.
"Governmental Approval" means all right, title and interest in
---------------------
any existing or future certificates, licenses, permits, variances,
authorizations and approvals issued by any Governmental Authority having
jurisdiction with respect to any Project.
"Governmental Authority" means any nation or government, any
----------------------
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranty" shall mean the Guaranty Agreement, dated as of the
--------
date hereof, made by the Company and Reckson FS Limited Partnership for the
benefit of the Lenders.
"Improvements" means all buildings, fixtures, structures,
------------
parking areas, landscaping and all other improvements whether existing now or
hereafter constructed, together with all machinery and mechanical,
electrical, HVAC and plumbing systems presently located thereon and used in
the operation thereof, excluding (a) any such items owned by utility service
providers, (b) any such items owned by tenants or other third-parties
unaffiliated with the Borrower and (c) any items of personal property.
"Indebtedness", as applied to any Person, means, at any time,
------------
without duplication, (a) all indebtedness, obligations or other liabilities
of such Person (whether consolidated or representing the proportionate
interest in any other Person) (i) for borrowed money (including construction
loans) or evidenced by debt securities, debentures, acceptances, notes or
other similar instruments, and any accrued interest and fees relating
thereto, (ii) under profit payment agreements or in respect of obligations to
redeem, repurchase or exchange any Securities of such Person or to pay
dividends in respect of any preferred stock (but only to the extent that such
Person shall be contractually obligated to pay the same), (iii) with respect
to letters of credit issued for such Person's account, (iv) to pay the
deferred purchase price of property or services, except accounts payable and
accrued expenses arising in the ordinary course of business, (v) in respect
of Capital Leases, (vi) which are Contingent Obligations or (vii) under
indemnities but only at such time as a claim shall have been made thereunder;
(b) all indebtedness, obligations or other liabilities of such Person or
others secured by a Lien on any property of such Person, whether or not such
indebtedness, obligations or liabilities are assumed by such Person, all as
of such time; (c) all indebtedness, obligations or other liabilities of such
Person in respect of interest rate contracts and foreign exchange contracts,
net of liabilities owed to such Person by the counterparties thereon; (d) all
preferred stock subject (upon the occurrence of any contingency or otherwise)
to mandatory redemption; and (e) all Contractual Obligations with respect to
any of the foregoing.
"Indemnified Matters" is defined in Section 14.3.
------------------- ------------
"Indemnitees" is defined in Section 14.3.
----------- ------------
"Initial Funding Date" means the date on or after the Closing
--------------------
Date, on which all of the conditions described in Section 6.1 have been
-----------
satisfied (or waived) in a manner satisfactory to the Administrative Agent
and the Lenders and on which the initial Loans under this Agreement are made
by the Lenders to the Borrower.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
---------------------
as amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase
----------
or other acquisition by that Person of Securities, or of a beneficial
interest in Securities, issued by any other Person, (ii) any purchase by that
Person of all or substantially all of the assets of a business conducted by
another Person, (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any
other Person, including all Indebtedness to such Person arising from a sale
of property by such Person other than in the ordinary course of its business,
and (iv) any purchase or other acquisition by that Person of Real Property,
whether directly or indirectly. The amount of any Investment shall be the
original cost of such Investment, without any adjustments for increases or
decreases in value or write-ups, write-downs or write-offs with respect to
such Investment.
"Investment Grade" means (i) with respect to Xxxxx'x a Credit
----------------
Rating of Baa3 or higher and (ii) with respect to S&P, a Credit Rating of
BBB- or higher.
"IRS" means the Internal Revenue Service and any Person
---
succeeding to the functions thereof.
"Issuing Bank" means Chase and UBS.
------------
"knowledge" with reference to the Company, the Borrower or any
---------
Subsidiary of the Borrower, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without
limitation, interviewing and questioning such other Persons as the Company,
the Borrower or such Subsidiary of the Borrower, as applicable, deems
reasonably necessary).
"Lease" means a lease, license, concession agreement or other
-----
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments thereof
and all side letters or side agreements relating thereto.
"Lender" means each of the Arrangers, the Administrative Agent,
------
Documentation Agent, and each financial institution a signatory hereto as a
Lender as of the Closing Date and, at any other given time, each financial
institution which is a party hereto as a Arranger, Administrative Agent,
Documentation Agent or Lender, whether as a signatory hereto or pursuant to
an Assignment and Acceptance, and regardless of the capacity in which such
entity is acting (i.e. whether as Administrative Agent, Documentation Agent,
Arranger, or Lender).
"Letter of Credit" means any Commercial Letter of Credit or
----------------
Standby Letter of Credit.
"Letter of Credit Fee" is defined in Section
--------------------
5.3(a).
"Letter of Credit Obligations" means, at any particular time,
----------------------------
the sum of (i) all outstanding Reimbursement Obligations, and (ii) the
aggregate undrawn face amount of all outstanding Letters of Credit, and (iii)
the aggregate face amount of all Letters of Credit requested by the Borrower
but not yet issued.
"Letter of Credit Reimbursement Agreement" means, with respect
----------------------------------------
to a Letter of Credit, such form of application therefor and form of
reimbursement agreement therefor (whether in a single or several documents,
taken together) as an Issuing Bank may employ in the ordinary course of
business for its own account, with such modifications thereto as may be
agreed upon by such Issuing Bank and the Borrower and as are not materially
adverse (in the judgment of such Issuing Bank and the Administrative Agent)
to the interests of the Lenders; provided, however,
-------- -------
in the event of any conflict between the terms of any Letter of Credit
Reimbursement Agreement and this Agreement, the terms of this Agreement shall
control.
"Leverage Ratio" means the ratio, expressed as a percentage, of
--------------
the Total Outstanding Indebtedness to the Total Value.
"Liabilities and Costs" means all liabilities, obligations,
---------------------
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful
or wanton injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without limitation,
attorney, expert and consulting fees and costs of investigation, feasibility
or Remedial Action studies), fines, penalties and monetary sanctions,
interest, direct or indirect, known or unknown, absolute or contingent, past,
present or future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, conditional sale agreement, deposit arrangement, security
interest, encumbrance, lien (statutory or other and including, without
limitation, any Environmental Lien), preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever in
respect of any property of a Person, whether granted voluntarily or imposed
by law, and includes the interest of a lessor under a Capital Lease or under
any financing lease having substantially the same economic effect as any of
the foregoing and the filing of any financing statement or similar notice
(other than a financing statement filed by a "true" lessor pursuant to
Section 9-408 of the Uniform Commercial Code), naming the owner of such
property as debtor, under the Uniform Commercial Code or other comparable law
of any jurisdiction.
"Limited Minority Holdings" means Minority Holdings which do not
-------------------------
qualify as Eligible Minority Holdings but for which (i) there are no
restrictions on the ability of such Minority Holding to declare distributions
or dividends, as the case may be, and (ii) an acceptable buy/sell agreement
exists, as determined by the Arrangers in their sole discretion. As used in
this definition, the term "acceptable buy/sell agreement" shall mean an
agreement whereby either party thereto may exercise the rights given therein
to buy or sell a percentage interest in the Minority Holding in whole, as the
case may be, for any reason, and the other party thereto must sell or buy,
for cash, the percentage interest in the Minority Holding in whole, upon the
terms and conditions set forth in the agreement.
"Limited Partners" means those Persons who from time to time are
----------------
limited partners of the Borrower; and "Limited Partner" means each of the
---------------
Limited Partners, individually.
"Loan Account" is defined in Section 4.3(b).
------------ --------------
"Loan Documents" means this Agreement, the Notes and the
--------------
Guaranty.
"Loan" means a loan made by a Lender pursuant to Section 2.1;
---- -----------
provided that, if any such loan or loans (or portions thereof) are combined
or subdivided pursuant to a Notice of Conversion/Continuation, the term
"Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Management Company" means, collectively, (i) Reckson Management
------------------
Group, Inc., a Delaware corporation and its wholly-owned or controlled
Subsidiaries and (ii) such other property management companies controlled
(directly or indirectly) by the Company for which the Borrower has previously
provided the Administrative Agent with: (1) notice of such property
management company, and (2) evidence reasonably satisfactory to the
Administrative Agent that such property management company is controlled
(directly or indirectly) by the Company.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation U and Regulation G.
"Material Adverse Effect" means a material adverse effect upon
-----------------------
(i) the financial condition or assets of the Company, the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform
its material obligations under the Loan Documents, (iii) the ability of the
Company or Reckson FS Limited Partnership to perform its material obligations
under the Guaranty, or (iv) the ability of the Lenders or the Administrative
Agent to enforce any of the Loan Documents.
"Maximum Revolving Credit Amount" means, at any particular time,
-------------------------------
the Revolving Credit Commitments at such time.
"Minority Holdings" means any interests in partnerships, joint
-----------------
ventures, limited liability companies, trusts, associations and corporations
held or owned by the Borrower and/or the Company which are not wholly-owned
by the Borrower and/or the Company.
"Moody's" means Xxxxx'x Investor Services, Inc.
-------
"Multiemployer Plan" means a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Borrower or any ERISA Affiliate
or in respect of which the Borrower or any ERISA Affiliate has assumed any
liability.
"Net Cash Proceeds" means all cash when and as received in
-----------------
connection with the sale or refinancing of any asset, less reasonable costs
and expenses, repayment of secured indebtedness with respect to the
applicable asset, and net of an amount equal to taxable capital gains and
real estate transfer taxes payable in connection with any asset sale.
"Net Offering Proceeds" means all cash or other
---------------------
assets received by the Company as a result of the sale of common shares,
preferred shares, partnership interests, limited liability company interests,
convertible securities or other ownership or equity interests in the Company,
less customary costs, expenses and discounts of issuance paid by the Company.
"NOI" means (x) net operating income determined in accordance
---
with GAAP, adjusted, however, to exclude free rent and accrued rent with
respect to tenants that are more than 90 days in arrears in the payment of
rent, and further adjusted to omit the straight line treatment of rent, so as
to account for rent on an accrual basis, and further adjusted to deduct
management fees, less (y) Property Level G&A.
"Non Pro Rata Loan" is defined in Section 4.2 (b)(v).
----------------- ------------------
"Note" means a promissory note in the form attached hereto as
----
EXHIBIT B payable to a Lender, evidencing certain of the Obligations of
---------
the Borrower to such Lender and executed by the Borrower as required by
Section 4.3(a), as the same may be amended, supplemented, modified or
--------------
restated from time to time; "Notes" means, collectively, all of such Notes
-----
outstanding at any given time.
"Notice of Borrowing" means a notice substantially in the form
-------------------
of EXHIBIT C attached hereto and made a part hereof.
---------
"Notice of Conversion/Continuation" means a notice substantially
---------------------------------
in the form of EXHIBIT D attached hereto and made a part hereof with
---------
respect to a proposed conversion or continuation of a Loan pursuant to
Section 5.1(c).
--------------
"Obligations" means all Loans, advances, debts, liabilities and
-----------
monetary obligations owing by the Borrower to the Administrative Agent, the
Documentation Agent, any other Lender, or any Person entitled to
indemnification pursuant to Section 15.3 of this Agreement, of any kind or
------------
nature, arising under this Agreement, the Notes or any other Loan Document.
The term includes, without limitation, all interest, charges, reasonable
expenses, fees, reasonable attorneys' fees and disbursements and any other
sum chargeable to the Borrower under this Agreement or any other Loan
Document.
"Officer's Certificate" means, as to a corporation, a
---------------------
certificate executed on behalf of such corporation by the chairman of its
board of directors (if an officer of such corporation) or its chief executive
officer, president, any of its vice-presidents, its chief financial officer,
or its treasurer and, as to a partnership, a certificate executed on behalf
of such partnership by the chairman of the board of directors (if an officer
of such corporation) or chief executive officer, president, any vice-
president, or treasurer of the general partner of such partnership.
"Operating Account" is defined in Section 9.11 hereof.
----------------- ------------
"Operating Lease" means, as applied to any Person, any lease of
---------------
any property (whether real, personal or mixed) by that Person as lessee which
is not a Capital Lease.
"Opportunity Fund" is defined in Section 10.4 hereof.
---------------- ------------
"Organizational Documents" means, with respect to any
------------------------
corporation, limited liability company, or partnership (i) the
articles/certificate of incorporation (or the equivalent organizational
documents) of such corporation or limited liability company, (ii) the
partnership agreement executed by the partners in the partnership, (iii) the
by-laws (or the equivalent governing documents) of the corporation, limited
liability company or partnership, and (iv) any document setting forth the
designation, amount and/or relative rights, limitations and preferences of
any class or series of such corporation's Capital Stock or such limited
liability company's or partnership's equity or ownership interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29
----
U.S.C. SectionSection 651 et seq., any amendments thereto, any successor
-- ---
statutes and any regulations or guidance promulgated thereunder.
"PBGC" means the Pension Benefit Guaranty Corporation and any
----
Person succeeding to the functions thereof.
"Permits" means any permit, consent, approval,
-------
authorization license, variance, or permission required from any Person,
including any Governmental Approvals.
"Permitted Securities Options" means the subscriptions, options,
----------------------------
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's
Capital Stock identified as such on SCHEDULE 1.1.2.
--------------
"Person" means any natural person, corporation, limited
------
liability company, limited partnership, general partnership, joint stock
company, joint venture, association, company, trust, bank, trust company,
land trust, business trust or other organization, whether or not a legal
entity, and any Governmental Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of
----
ERISA in respect of which the Borrower or any ERISA Affiliate (i) is, or
within the immediately preceding six (6) years was, an "employer" as defined
in Section 3(5) of ERISA or (ii) has assumed or is otherwise subject to any
liability.
"Potential Event of Default" means an event which, with the
--------------------------
giving of notice or the lapse of time, or both, would constitute an Event of
Default.
"Prepayment Date" is defined in Section 4.1(d).
--------------- --------------
"Project" means any office or industrial properties owned,
-------
directly or indirectly, by any of the Consolidated Businesses or Minority
Holdings.
"Property" means any Real Property or personal property, plant,
--------
building, facility, structure, equipment, General Intangible, Receivable, or
other asset owned or leased by any Consolidated Business or any Minority
Holding. The definition of "Property" shall specifically exclude items of
Real Property or personal property owned or leased by members of the Reckler
family.
"Property Level G&A" means general and administrative expenses
------------------
allocated to the Properties.
"Pro Rata Share" means, with respect to any Lender, the
--------------
percentage obtained by dividing (i) the sum of such Lender's Revolving Credit
Commitment (in each case, as adjusted from time to time in accordance with
the provisions of this Agreement or any Assignment and Acceptance to which
such Lender is a party) by (ii) the aggregate amount of all of the Revolving
Credit Commitments.
"Qualified Lease" means any Lease (a) which is a direct ground
---------------
lease granted by the fee owner of real property, (b) which may be transferred
and/or assigned without the consent of the lessor (or as to which the Lease
expressly provides that (i) such Lease may be transferred and/or assigned
with the consent of the lessor and (ii) such consent shall not be
unreasonably withheld or delayed), (c) which has a remaining term (including
any renewal terms exercisable at the sole option of the lessee) of at least
forty (40) years, (d) under which no material default has occurred and is
continuing, (e) with respect to which a security interest may be granted
without the consent of the lessor, and (f) which contains lender protection
provisions reasonably acceptable to the Administrative Agent including,
without limitation, provisions to the effect that (i) the lessor shall notify
any holder of a security interest in such Lease of the occurrence of any
default by the lessee under such Lease and shall afford such holder the right
to cure such default, and (ii) in the event that such Lease is terminated,
such holder shall have the option to enter into a new lease having terms
substantially identical to those contained in the terminated Lease. Upon the
submission to the Administrative Agent of a written request to review the
lender protection provisions and other terms or a proposed Qualified Lease,
the Administrative Agent shall respond by accepting or rejecting such lease
as conforming to the terms of this definition within five (5) Business Days
following receipt of such request, such acceptance not to be unreasonably
withheld.
"Quarterly Capital Expenditure Reserve Amounts" means, as of the
---------------------------------------------
first day of any calendar quarter for the immediately preceding quarter, one
quarter of the Capital Expenditure Reserve Amounts.
"RCRA" means the Resource Conservation and Recovery Act of 1976,
----
42 U.S.C. SectionSection 6901 et seq., any amendments thereto, any
-- ----
successor statutes, and any regulations or guidance promulgated thereunder.
"Real Property" means all of the Borrower's present and future
-------------
right, title and interest (including, without limitation, any leasehold
estate) in (i) any plots, pieces or parcels of land, (ii) any Improvements of
every nature whatsoever (the rights and interests described in clauses (i)
and (ii) above being the "Premises"), (iii) all easements, rights of way,
gores of land or any lands occupied by streets, ways, alleys, passages, sewer
rights, water courses, water rights and powers, and public places adjoining
such land, and any other interests in property constituting appurtenances to
the Premises, or which hereafter shall in any way belong, relate or be
appurtenant thereto and (iv) all other rights and privileges thereunto
belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the
rights and interests described in clause (iii) above.
"Reckson" means Reckson Operating Partnership, L.P., a Delaware
-------
limited partnership.
"Recourse Secured Indebtedness Limitation" has the meaning set
----------------------------------------
forth in Section 10.11 hereof.
-------------
"Reference Bank" means Chase.
--------------
"Register" is defined in Section 14.1(c).
-------- ---------------
"Regulation A" means Regulation A of the Federal Reserve Board
------------
as in effect from time to time.
"Regulation G" means Regulation G of the Federal Reserve Board
------------
as in effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board
------------
as in effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board
------------
as in effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board
------------
as in effect from time to time.
"Reimbursement Date" is defined in Section 3.1(d)(i)(A).
------------------ --------------------
"Reimbursement Obligations" means the aggregate non-contingent
-------------------------
reimbursement or repayment obligations of the Borrower with respect to
amounts drawn under Letters of Credit.
"REIT" means a domestic trust or corporation that qualifies as a
----
real estate investment trust under the provisions of Sections 856, et seq. of
the Internal Revenue Code. -- ---
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or
into or out of any Property, including the movement of Contaminants through
or in the air, soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up,
---------------
remove, treat or in any other way address Contaminants in the indoor or
outdoor environment; (ii) prevent the Release or threat of Release or
minimize the further Release of Contaminants; or (iii) investigate and
determine if a remedial response is needed and to design such a response and
post-remedial investigation, monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in Section
----------------
4043(b) of ERISA and the regulations promulgated thereunder as in effect from
time to time but not including any such event as to which the thirty (30) day
notice requirement has been waived by applicable PBGC regulations.
"Requirements of Law" means, as to any Person, the charter and
-------------------
by-laws or other organizational or governing documents of such Person, and
any law, rule or regulation, or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property
is subject including, without limitation, the Securities Act, the Securities
Exchange Act, Regulations G, T, U and X, ERISA, the Fair Labor Standards Act,
the Worker Adjustment and Retraining Notification Act, Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or Permit and Environmental,
Health or Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the
-----------------
aggregate, are greater than sixty-six and two-thirds percent (66.67%);
provided, however, that, in the event any of the Lenders shall have failed
-------- -------
to fund its Pro Rata Share of any Loan requested by the Borrower which such
Lenders are obligated to fund under the terms of this Agreement and any such
failure has not been cured as provided in Section 4.2(b)(v)(B),
--------------------
then for so long as such failure continues, "Requisite Lenders" means
-----------------
Lenders (excluding all Lenders whose failure to fund their respective Pro
Rata Shares of such Loans have not been so cured) whose Pro Rata Shares
represent more than sixty-six and two-thirds percent (66.67%) of the
aggregate Pro Rata Shares of such Lenders; provided, further, however,
-------- ------- -------
that, in the event that the Revolving Credit Commitments have been terminated
pursuant to the terms of this Agreement, "Requisite Lenders"
-----------------
means Lenders (without regard to such Lenders' performance of their
respective obligations hereunder) whose aggregate ratable shares (stated as a
percentage) of the aggregate outstanding principal balance of all Loans are
greater than sixty six and two thirds percent (66.67%).
"Revolving Credit Availability" means, at any particular time,
-----------------------------
the amount by which the Maximum Revolving Credit Amount at such time exceeds
the Revolving Credit Obligations at such time.
"Revolving Credit Commitment" means, with respect to any Lender,
---------------------------
the obligation of such Lender to make Loans and to participate in Letters of
Credit pursuant to the terms and conditions of this Agreement, and which
shall not exceed the principal amount set forth opposite such Lender's name
under the heading "Revolving Credit Commitment" on the signature pages hereof
or the signature page of the Assignment and Acceptance by which it became a
Lender, as modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable Assignment and Acceptance, and "Revolving
---------
Credit Commitments" means the aggregate principal amount of the Revolving
------------------
Credit Commitments of all the Lenders, the maximum amount of which shall be
$175,000,000 as reduced from time to time pursuant to Section 4.1.
-----------
"Revolving Credit Obligations" means, at any particular time,
----------------------------
the sum of (i) the outstanding principal amount of the Loans at such time,
plus (ii) the Letter of Credit Obligations at such time.
"Revolving Credit Period" means the period from the Initial
-----------------------
Funding Date to the Business Day next preceding the Revolving Credit
Termination Date.
"Revolving Credit Termination Date" means the earlier to occur
---------------------------------
of (i) April __, 2000 (or, if not a Business Day, the next preceding Business
Day); and (ii) the date of termination of the Revolving Credit Commitments
pursuant to the terms of this Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of
---
The McGraw Hill Companies, Inc.
"Secured Indebtedness" means any Indebtedness secured by a Lien.
--------------------
"Secured Loan-to-Value Ratio" means, the ratio, expressed as a
---------------------------
percentage, of the aggregate amount of any Secured Indebtedness as of the
date of the determination to the value with respect to such Real Property
encumbered thereby as of such date, which value shall be determined by
reference to the formula set forth in the definition of "Total Value" with
respect to each such Real Property.
"Securities" means any stock, shares, voting trust certificates,
----------
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise,
or in general any instruments commonly known as "securities", including,
without limitation, any "security" as such term is defined in Section 8-102
of the Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended
--------------
from time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of
-----------------------
1934, as amended from time to time, and any successor statute.
"Servicing EBITDA" means, with respect to the
----------------
Management Company or any other service company owned by the Borrower or the
Company, as of the first day of each fiscal quarter for the immediately
preceding fiscal quarter, an amount, determined in accordance with GAAP,
equal to (i) total revenues relating to such companies' operations adjusted
to exclude amounts that are more than 90 days delinquent, less (ii) total
----
operating expenses relating to such operations, including corporate marketing,
general and administrative expenses.
"Solvent", when used with respect to any Person, means that at
-------
the time of determination:
(i) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation,
contingent liabilities); and
(ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts
become absolute and matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments)
as they mature; and
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Standby Letter of Credit" means any letter of credit issued by
------------------------
an Issuing Bank pursuant to Section 3.1 for the account of the Borrower,
-----------
which is not a Commercial Letter of Credit.
"Subsidiary" of a Person means any corporation, limited
----------
liability company, general or limited partnership, or other entity of which
securities or other ownership interests having ordinary voting power to elect
a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned or controlled by such
Person, one or more of the other subsidiaries of such Person or any
combination thereof.
"Taxes" is defined in Section 13.1(a).
----- ---------------
"Telerate Page 3750" means the display designated
------------------
as "Page 3750" on the Associated Press-Dow Xxxxx Telerate Service (or such
other page as may replace Page 3750 on the Associated Press-Dow Xxxxx
Telerate Service or such other service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association interest settlement rates for U.S. Dollar
deposits). Any Eurodollar Rate determined on the basis of the rate displayed
on Telerate Page 3750 in accordance with the provisions hereof shall be
displayed by the Associated Press-Dow Xxxxx Telerate Service within one hour
of the time when such rate is first displayed by such service.
"Tenant Allowance" means a cash allowance paid to a tenant by
----------------
the landlord pursuant to a Lease.
"TI Work" means any construction or other "build-out" of tenant
-------
leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant's furniture, fixtures and equipment) performed
pursuant to the terms of such Leases, whether or not such tenant improvement
work is performed by or on behalf of the landlord or as part of a Tenant
Allowance.
"Total Adjusted EBITDA" means, for any period, the sum of (w)
---------------------
with respect to any office or industrial Project or Minority Holding, which
is owned by the Borrower or the Consolidated Businesses as of the first day
of each calendar quarter for the immediately preceding quarter, an amount
equal to NOI relating to such Project or Minority Holding for the immediately
preceding quarter, less Quarterly Capital Expenditure Reserve Amounts for
such period; (x) net income derived from interest on cash balances and notes
held by the Consolidated Businesses secured by Liens on Real Property; and
(y) Servicing EBITDA of the Management Company or other such service
companies for the immediately preceding quarter, less (z) general and
administrative expenses for such period.
"Total Interest Expense" means, for any period, the sum of (i)
----------------------
interest expense of the Consolidated Businesses paid during such period and
(ii) interest expense of the Consolidated Businesses accrued and/or
capitalized for such period and (iii) the portion of the interest expense of
Minority Holdings allocable to the Borrower in accordance with GAAP and paid
during such period and (iv) the portion of the interest expense of Minority
Holdings allocable to the Borrower in accordance with GAAP and accrued and/or
capitalized for such period, in each case including participating interest
expense but excluding extraordinary interest expense, and net of amortization
of deferred costs associated with new financings or refinancings of existing
Indebtedness.
"Total Outstanding Indebtedness" means, for any period, the sum
------------------------------
of (i) the amount of Indebtedness of the Consolidated Businesses set forth on
the then most recent quarterly financial statements of the Borrower, prepared
in accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, and (ii) the
outstanding amount of Minority Holding Indebtedness allocable in accordance
with GAAP to any of the Consolidated Businesses as of the time of
determination, plus any additional Minority Holding Indebtedness incurred by
the Minority Holdings allocable in accordance with GAAP to any of the
Consolidated Businesses as of the time of determination, and (iii) the
Contingent Obligations of the Consolidated Businesses and, to the extent
allocable to the Consolidated Businesses in accordance with GAAP, of the
Minority Holdings.
"Total Outstanding Indebtedness Limitation" has the meaning set
-----------------------------------------
forth in Section 10.11 hereof.
-------------
"Total Secured Outstanding Indebtedness Limitation" has the
-------------------------------------------------
meaning set forth in Section 10.11 hereof.
-------------
"Total Unsecured Outstanding Indebtedness" means that portion of
----------------------------------------
Total Outstanding Indebtedness that is not secured by a Lien.
"Total Value" means (A) the sum of (i) Valuation NOI divided by
-----------
an annual interest rate equal to 9.5%; (ii) the Investment in office and
industrial Projects owned by the Consolidated Businesses for less than four
fiscal quarters which have not achieved an occupancy rate of 85% for one
fiscal quarter; (iii) unrestricted Cash and Cash Equivalents; (iv)
Construction Asset Cost, which credit will be limited to ten percent (10%) of
Total Value; (v) Investments in notes secured by mortgages on the Property of
any Person; (vi) the Investments in Real Property not constituting Projects
or Minority Holdings; (vii) Servicing EBITDA of the Management Company or
other such service companies for the immediately preceding four consecutive
quarters divided by an annual interest rate equal to twenty percent (20%);
and (viii) any investment (based on the actual cash investment) in any
Opportunity Fund, less (B) the quotient of (x) the sum of the Capital
Expenditure Reserve Amounts for such period, and Corporate Level G&A for such
period, divided by (y) an annual interest rate equal to 9.5%. Notwithstanding
anything contained herein to the contrary, prior to the date which is ninety
(90) days from the date hereof, Total Value shall not be deemed to include
value attributable to the property commonly known as 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx.
"Treasury Rate" means, as of any date, a rate equal to the
-------------
annual yield to maturity on the U.S. Treasury Constant Maturity Series with a
ten year maturity, as such yield is reported in Federal Reserve Statistical
Release H.15 -- Selected Interest Rates, published most recently prior to the
date the applicable Treasury Rate is being determined. Such yield shall be
determined by straight line linear interpolation between the yields reported
in Release H.15, if necessary. In the event Release H.15 is no longer
published, the Administrative Agent shall select, in its reasonable
discretion, an alternate basis for the determination of Treasury yield for
U.S. Treasury Constant Maturity Series with ten year maturities.
"UBS" means Union Bank of Switzerland, New York Branch.
---
"Unencumbered Capital Expenditure Reserve Amounts" means, for
------------------------------------------------
any period, the aggregate of Capital Expenditures Reserve Amounts with
respect to Real Property that is not subject to or encumbered by Secured
Indebtedness.
"Uniform Commercial Code" means the Uniform Commercial Code as
-----------------------
enacted in the State of New York, as it may be amended from time to time.
"Unsecured Interest Expense" means the interest expense paid,
--------------------------
accrued or capitalized on the Total Unsecured Outstanding Indebtedness for
the applicable period.
"Unused Commitment Fee" is defined in Section 5.3 (b).
--------------------- ---------------
"Unused Commitment Fee Percentage" means the
--------------------------------
applicable percentage per annum determined, at any time, based on the range
into which the Leverage Ratio then falls, in accordance with the following
table.
Leverage Ratio Percentage Fee
-------------- --------------
30% or less 0.15%
greater than 30%-35% 0.15%
greater than 35%-50% 0.20%
greater than 50% 0.25%
"Unused Facility" shall mean the amount, calculated daily, by
---------------
which the Revolving Credit Commitments exceed the sum of (i) the outstanding
principal amount of the Loans, plus (ii) the outstanding Reimbursement
Obligations, plus (iii) the aggregate undrawn face amount of all outstanding
Letters of Credit.
"Valuation NOI" means, the sum of (x) with respect to any office
-------------
or industrial Project or Minority Holding, which has been owned by the
Borrower for not less than four consecutive quarters, as of the first day of
each fiscal quarter for the immediately preceding consecutive four fiscal
quarters, an amount equal to NOI relating to such Project or Minority Holding
for such period, and (y) with respect to any office or industrial Project or
Minority Holding, which has been owned by the Borrower for less than four
consecutive quarters but which has achieved an occupancy rate of not less
than 85% for the immediately preceding quarter (including new construction),
as of the first day of each quarter until such time as such Project or
Minority Holding shall qualify under clause (x) hereof, an amount equal to
the product of (i) the NOI relating to such Project or Minority Holding for
the immediately preceding quarter, and (ii) four (4). An example of the
foregoing calculation is set forth on EXHIBIT G hereto.
---------
1.2. Computation of Time Periods. In this Agreement, in the
---------------------------
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding". Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days are
expressly prescribed. Any period determined hereunder by reference to a
month or months or year or years shall end on the day in the relevant
calendar month in the relevant year, if applicable, immediately preceding the
date numerically corresponding to the first day of such period, provided that
-------- ----
if such period commences on the last day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month
during which such period is to end), such period shall, unless otherwise
expressly required by the other provisions of this Agreement, end on the
last day of the calendar month.
1.3. Accounting Terms. Subject to Section 14.4, for purposes
---------------- ------------
of this Agreement, all accounting terms not otherwise defined herein shall
have the meanings assigned to them in conformity with GAAP.
1.4. Other Terms. All other terms contained in this Agreement
-----------
shall, unless the context indicates otherwise, have the meanings assigned to
such terms by the Uniform Commercial Code to the extent the same are defined
therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
-----
(a) Availability. Subject to the terms and conditions set
------------
forth in this Agreement, each Lender hereby severally and not jointly agrees
to make revolving loans, in Dollars (each individually, a "Loan"
----
and, collectively, the "Loans") to the Borrower from time to time during
-----
the Revolving Credit Period, in an amount not to exceed such Lender's Pro
Rata Share of the Revolving Credit Availability at such time. All Loans
comprising the same Borrowing under this Agreement shall be made by the
Lenders simultaneously and proportionately to their then respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any
failure by any other Lender to perform its obligation to make a Loan
hereunder nor shall the Revolving Credit Commitment of any Lender be
increased or decreased as a result of any such failure. Subject to the
provisions of this Agreement, the Borrower may repay any outstanding Loan on
any day which is a Business Day and any amounts so repaid may be reborrowed,
up to the amount available under this Section 2.1(a) at the
--------------
time of such Borrowing, until the Business Day next preceding the Revolving
Credit Termination Date. Each requested Borrowing of Loans funded on any
Funding Date shall be in a principal amount of at least $3,000,000 and with
integral multiples of $500,000; provided, however, that if the aggregate
Revolving Credit Commitments outstanding at the time of such requested
Borrowing is less than $3,000,000, then the requested Borrowing shall be for
the total amount of such outstanding aggregate Revolving Credit Commitments.
(b) Notice of Borrowing. When the Borrower desires to borrow
-------------------
under this Section 2.1, it shall deliver to the Administrative Agent a
-----------
Notice of Borrowing, signed by it (i) no later than 12:00 noon (New York
time) on the Business Day immediately preceding the proposed Funding Date, in
the case of a Borrowing of Base Rate Loans and (ii) no later than 11:00 a.m.
(New York time) at least three (3) Business Days in advance of the proposed
Funding Date, in the case of a Borrowing of Eurodollar Rate Loans; provided,
--------
however, that no more than two (2) Borrowings may be made
-------
within any five (5) Business Day period. Such Notice of Borrowing shall
specify (i) the proposed Funding Date (which shall be a Business Day), (ii)
the amount of the proposed Borrowing, (iii) the Revolving Credit Availability
as of the date of such Notice of Borrowing, (iv) whether the proposed
Borrowing will be of Base Rate Loans or Eurodollar Rate Loans, (v) in the
case of Eurodollar Rate Loans, the requested Eurodollar Interest Period and
(vi) instructions for the disbursement of the proceeds of the proposed
Borrowing. Any Notice of Borrowing (or telephonic notice in lieu thereof)
given pursuant to this Section 2.1(b) shall be irrevocable.
--------------
(c) Making of Loans. (i) Promptly after receipt of a Notice
---------------
of Borrowing under Section 2.1(b), the Administrative Agent shall notify
--------------
each Lender by facsimile transmission, or other similar form of transmission,
of the proposed Borrowing (which notice to the Lenders, in the case of a
Borrowing of Eurodollar Rate Loans, shall be at least three (3) Business Days
in advance of the proposed Funding Date for such Loans). Each Lender shall
deposit an amount equal to its Pro Rata Share of the Borrowing requested by
the Borrower with the Administrative Agent at its office in New York, New
York, in immediately available funds, not later than 12:00 noon. (New York
time) on the respective Funding Date therefor. Subject to the fulfillment of
the conditions precedent set forth in Section 6.1 or Section 6.2, as
----------- -----------
applicable, the Administrative Agent shall make the proceeds of such amounts
received by it available to the Borrower at the Administrative Agent's office
in New York, New York on such Funding Date (or on the date received if later
than such Funding Date) and shall disburse such proceeds in accordance with
the Borrower's disbursement instructions set forth in the applicable Notice
of Borrowing. The failure of any Lender to deposit the amount described above
with the Administrative Agent on the applicable Funding Date shall not relieve
any other Lender of its obligations hereunder to make its Loan on such Funding
Date. In the event the conditions precedent set forth in Section 6.1 or
-----------
6.2 are not fulfilled as of the proposed Funding Date for any Borrowing,
---
the Administrative Agent shall promptly return, by wire transfer of
immediately available funds, the amount deposited by each Lender to such
Lender.
(ii) Unless the Administrative Agent shall have been notified by
any Lender on the Business Day immediately preceding the applicable Funding
Date in respect of any Borrowing that such Lender does not intend to fund its
Loan requested to be made on such Funding Date, the Administrative Agent may
assume that such Lender has funded its Loan and is depositing the proceeds
thereof with the Administrative Agent on the Funding Date therefor, and the
Administrative Agent in its sole discretion may, but shall not be obligated
to, disburse a corresponding amount to the Borrower on the applicable Funding
Date. If the Loan proceeds corresponding to that amount are advanced to the
Borrower by the Administrative Agent but are not in fact deposited with the
Administrative Agent by such Lender on or prior to the applicable Funding
Date, such Lender agrees to pay, and in addition the Borrower agrees to
repay, to the Administrative Agent forthwith on demand such corresponding
amount, together with interest thereon, for each day from the date such
amount is disbursed to or for the benefit of the Borrower until the date such
amount is paid or repaid to the Administrative Agent, at the interest rate
applicable to such Borrowing. If such Lender shall pay to the Administrative
Agent the corresponding amount, the amount so paid shall constitute such
Lender's Loan, and if both such Lender and the Borrower shall pay and repay
such corresponding amount, the Administrative Agent shall promptly pay to the
Borrower such corresponding amount. This Section 2.1(c)(ii) does not relieve
------------------
any Lender of its obligation to make its Loan on any applicable Funding Date.
2.2. Use of Proceeds of Loans and Letters of Credit. The
----------------------------------------------
proceeds of the Loans and the Letters of Credit issued for the account of the
Borrower hereunder may be used for the purposes of:
(a) investments in direct or indirect interests in industrial and
office Projects (and notes secured by such properties) similar to and
consistent with the types of Projects owned and/or operated by the Borrower
on the Closing Date, located in the northeastern and Mid-Atlantic regions;
(b) renovation and redevelopment of Properties owned and operated
by the Borrower;
(c) funding of TI Work and Tenant Allowances;
(d) financing expansions, renovations and new construction related
to Properties owned and operated by the Borrower;
(e) refinancing of existing Indebtedness for borrowed money
secured by Projects;
(f) funding, directly or indirectly, of investments in an
Opportunity Fund; and
(g) working capital needs of the Borrower, provided, however, that
in no event, shall more than 10% of the Loan Amount be advanced for working
capital.
2.3. Revolving Credit Termination Date. (a) The Revolving
---------------------------------
Credit Commitments shall terminate, and all outstanding Revolving Credit
Obligations shall be paid in full (or, in the case of unmatured Letter of
Credit Obligations, provision for payment in cash shall be made to the
satisfaction of the Lenders actually issuing Letters of Credit and the
Requisite Lenders), on the Revolving Credit Termination Date. Each Lender's
obligation to make Loans shall terminate on the Business Day next preceding
the Revolving Credit Termination Date.
2.4. Maximum Credit Facility. Notwithstanding anything in this
-----------------------
Agreement to the contrary, in no event shall the aggregate principal
Revolving Credit Obligations exceed the Maximum Revolving Credit Amount.
2.5. Authorized Agents. On the Closing Date and from time to
-----------------
time thereafter, the Borrower shall deliver to the Administrative Agent an
Officer's Certificate setting forth the names of the employees and agents
authorized to request Loans and Letters of Credit and to request a
conversion/continuation of any Loan and containing a specimen signature of
each such employee or agent. The employees and agents so authorized shall
also be authorized to act for the Borrower in respect of all other matters
relating to the Loan Documents. The Administrative Agent, the Documentation
Agent, the Arrangers, the Lenders and any Issuing Bank shall be entitled to
rely conclusively on such employee's or agent's authority to request such
Loan or Letter of Credit or such conversion/continuation until the
Administrative Agent and the Arrangers receive written notice to the
contrary. None of the Administrative Agent or the Arrangers shall have any
duty to verify the authenticity of the signature appearing on any written
Notice of Borrowing or Notice of Conversion/Continuation or any other
document, and, with respect to an oral request for such a Loan or Letter of
Credit or such conversion/continuation, the Administrative Agent and the
Arrangers shall have no duty to verify the identity of any person
representing himself or herself as one of the employees or agents authorized
to make such request or otherwise to act on behalf of the Borrower. None of
the Administrative Agent, the Arrangers or the Lenders shall incur any
liability to the Borrower or any other Person in acting upon any telephonic
or facsimile notice referred to above which the Administrative Agent or the
Arrangers believes to have been given by a person duly authorized to act on
behalf of the Borrower and the Borrower hereby indemnifies and holds harmless
the Administrative Agent, each Arranger and each other Lender from any loss
or expense the Administrative Agent, the Arrangers or the Lenders might incur
in acting in good faith as provided in this Section 2.5; provided, however,
-------- -------
that Borrower shall not indemnify the applicable party for acts resulting from
its own gross negligence or wilful misconduct.
ARTICLE III
LETTERS OF CREDIT
3.1. Letters of Credit. Subject to the terms and conditions
-----------------
set forth in this Agreement, including, without limitation, Section
-------
3.1(c)(ii), each Issuing Bank hereby severally agrees to issue for the
----------
account of the Borrower one or more Letters of Credit, subject to the
following provisions:
(a) Types and Amounts. An Issuing Bank shall not have any
-----------------
obligation to issue, amend or extend, and shall not issue, amend or extend,
any Letter of Credit at any time:
(i) if the aggregate Letter of Credit Obligations with
respect to such Issuing Bank, after giving effect to the issuance,
amendment or extension of the Letter of Credit requested hereunder,
shall exceed any limit imposed by law or regulation upon such
Issuing Bank;
(ii) if, immediately after giving effect to the issuance,
amendment or extension of such Letter of Credit, (1) the Letter of
Credit Obligations at such time would exceed $10,000,000 or (2) the
Revolving Credit Obligations at such time would exceed the Maximum
Revolving Credit Amount at such time, or (3) one or more of the
conditions precedent contained in Sections 6.1 or 6.2, as
applicable, would not on such date be satisfied, unless such
conditions are thereafter satisfied and written notice of such
satisfaction is given to such Issuing Bank by the Administrative
Agent (and such Issuing Bank shall not otherwise be required to
determine that, or take notice whether, the conditions precedent
set forth in Sections 6.1 or 6.2, as applicable, have been
satisfied);
(iii) which has an expiration date later than the earlier of
(A) the date one (1) year after the date of issuance (without
regard to any automatic renewal provisions thereof) or (B) the
Business Day next preceding the scheduled Revolving Credit
Termination Date; or
(iv) which is in a currency other than Dollars.
(b) Conditions. In addition to being subject to the
----------
satisfaction of the conditions precedent contained in Sections 6.1 and
------------
6.2, as applicable, the obligation of an Issuing Bank to issue, amend or
---
extend any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(i) if the Issuing Bank so requests, the Borrower shall have
executed and delivered to such Issuing Bank and the Administrative
Agent a Letter of Credit Reimbursement Agreement and such other
documents and materials as may be required pursuant to the terms
thereof; and
(ii) the terms of the proposed Letter of Credit shall be
satisfactory to the Issuing Bank in its sole discretion.
(c) Issuance of Letters of Credit. (i) The Borrower shall
-----------------------------
give the Administrative Agent written notice that it requires the issuance a
Letter of Credit not later than 11:00 a.m. (New York time) on the third (3rd)
Business Day preceding the requested date for issuance thereof under this
Agreement. Such notice shall be irrevocable unless and until such request is
denied by the Issuing Bank and shall specify (A) that the requested Letter of
Credit is either a Commercial Letter of Credit or a Standby Letter of Credit,
(B) that such Letter of Credit is solely for the account of the Borrower,
(C) the stated amount of the Letter of Credit requested, (D) the effective
date (which shall be a Business Day) of issuance of such Letter of Credit,
(E) the date on which such Letter of Credit is to expire (which shall be a
Business Day and no later than the Business Day immediately preceding the
scheduled Revolving Credit Termination Date), (F) the Person for whose
benefit such Letter of Credit is to be issued, (G) other relevant terms of
such Letter of Credit, (H) the Revolving Credit Availability at such time,
and (I) the amount of the then outstanding Letter of Credit Obligations.
(ii) The Arrangers shall jointly select one Arranger to act as
Issuing Bank with respect to such Letter of Credit, which selection shall be
in the sole discretion of the Arrangers. If such Arranger declines to issue
the Letter of Credit, the Arrangers shall jointly select an alternative
Lender to issue such Letter of Credit.
(iii) The selected Arranger (if not the Administrative Agent)
shall give the Administrative Agent written notice, or telephonic notice
confirmed promptly thereafter in writing, of the issuance, amendment or
extension of a Letter of Credit (which notice the Administrative Agent shall
promptly transmit by telegram, facsimile transmission, or similar
transmission to the Borrower and each Lender).
(d) Reimbursement Obligations; Duties of Issuing Banks and
------------------------------------------------------
other Lenders.
-------------
(i) Notwithstanding any provisions to the contrary in any Letter
of Credit Reimbursement Agreement:
(A) the Borrower shall reimburse the Issuing Bank for amounts
drawn under its Letter of Credit, in Dollars, no later than the
date (the "Reimbursement Date") which is the earlier of
------------------
(I) the time specified in the applicable Letter of Credit
Reimbursement Agreement and (II) three (3) Business Days after the
Borrower receives written notice from the Issuing Bank that payment
has been made under such Letter of Credit by the Issuing Bank; and
(B) all Reimbursement Obligations with respect to any Letter
of Credit shall bear interest at the rate applicable to
Base Rate Loans in accordance with Section 5.1(a) from the date
--------------
of the relevant drawing under such Letter of Credit until the
Reimbursement Date and thereafter at the rate applicable to Base
Rate Loans in accordance with Section 5.1(d).
--------------
(ii) The Issuing Bank shall give the Administrative Agent written
notice, or telephonic notice confirmed promptly thereafter in writing, of all
drawings under a Letter of Credit and the payment (or the failure to pay when
due) by the Borrower on account of a Reimbursement Obligation (which notice
the Administrative Agent shall promptly transmit by telegram, facsimile
transmission or similar transmission to each Lender).
(iii) Solely as between the Issuing Banks and the other Lenders, in
determining whether to pay under any Letter of Credit, the Issuing Bank shall
have no obligation to the other Lenders other than to confirm that any
documents required to be delivered under a respective Letter of Credit appear
to have been delivered and that they appear on their face to comply with the
requirements of such Letter of Credit.
(e) Participations. (i) Immediately upon issuance by an
--------------
Issuing Bank of any Letter of Credit in accordance with the procedures set
forth in this Section 3.1, each Lender shall be deemed to have irrevocably
-----------
and unconditionally purchased and received from that Issuing Bank, without
recourse or warranty, an undivided interest and participation in such Letter
of Credit to the extent of such Lender's Pro Rata Share, including, without
limitation, all obligations of the Borrower with respect thereto (other than
amounts owing to the Issuing Bank under Section 3.1(g)) and
--------------
any security therefor and guaranty pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter of
Credit and the Borrower does not repay such amount to the Issuing Bank on the
Reimbursement Date, the Issuing Bank shall promptly notify the Administrative
Agent, which shall promptly notify each other Lender, and each Lender shall
promptly and unconditionally pay to the Administrative Agent for the account
of such Issuing Bank, in immediately available funds, the amount of such
Lender's Pro Rata Share of such payment (net of that portion of such payment,
if any, made by such Issuing Bank in its capacity as an issuer of a Letter of
Credit), and the Administrative Agent shall promptly pay to such Issuing Bank
such amounts received by it, and any other amounts received by the
Administrative Agent for such Issuing Bank's account, pursuant to this
Section 3.1(e). If a Lender does not make its Pro Rata Share of the amount
--------------
of such payment available to the Administrative Agent, such Lender agrees to
pay to the Administrative Agent for the account of the Issuing Bank, forthwith
on demand, such amount together with interest thereon at the interest rate
then applicable to Base Rate Loans in accordance with Section 5.1(a).
--------------
The failure of any Lender to make available to the Administrative Agent for
the account of an Issuing Bank its Pro Rata Share of any such payment shall
neither relieve any other Lender of its obligation hereunder to make available
to the Administrative Agent for the account of such Issuing Bank such other
Lender's Pro Rata Share of any payment on the date such payment is to be made
nor increase the obligation of any other Lender to make such payment to the
Administrative Agent.
(iii) Whenever an Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as to which the
Administrative Agent has previously received payments from any other Lender
for the account of such Issuing Bank pursuant to this Section
-------
3.1(e), such Issuing Bank shall promptly pay to the Administrative Agent
------
and the Administrative Agent shall promptly pay to each other Lender an
amount equal to such other Lender's Pro Rata Share thereof. Each such
payment shall be made by such reimbursed Issuing Bank or the Administrative
Agent, as the case may be, on the Business Day on which such Person receives
the funds paid to such Person pursuant to the preceding sentence, if received
prior to 11:00 a.m. (New York time) on such Business Day, and otherwise on
the next succeeding Business Day.
(iv) The Issuing Banks shall furnish the Lenders copies of any
Letter of Credit, Letter of Credit Reimbursement Agreement, and related
amendment to which such Issuing Bank is party and such other documentation as
may be deemed reasonable.
(v) The obligations of a Lender to make payments to the
Administrative Agent for the account of any Issuing Bank with respect to a
Letter of Credit shall be irrevocable, shall not be subject to any
qualification or exception whatsoever except willful misconduct or gross
negligence of such Issuing Bank, and shall be honored in accordance with this
Article III (irrespective of the satisfaction of the conditions
-----------
described in Sections 6.1 and 6.2, as applicable) under all circumstances,
------------ ---
including, without limitation, any of the following circumstances:
(A) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of a beneficiary
named in a Letter of Credit (or any Person for whom any such
transferee may be acting), any Lender, or any other Person, whether
in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the account party
and beneficiary named in any Letter of Credit);
(C) any draft, certificate or any other document presented
under the Letter of Credit having been determined to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(E) any failure by that Issuing Bank to make any reports
required pursuant to Section 3.1(h) or the inaccuracy of any
--------------
such report; or
(F) the occurrence of any Event of Default or Potential Event
of Default.
(f) Payment of Reimbursement Obligations. (i) The Borrower
------------------------------------
unconditionally agrees to pay to each Issuing Bank, in Dollars, the amount of
all Reimbursement Obligations, interest and other amounts payable to such
Issuing Bank under or in connection with the Letters of Credit when such
amounts are due and payable, irrespective of any claim, setoff, defense or
other right which the Borrower may have at any time against any Issuing Bank
or any other Person.
(ii) In the event any payment by the Borrower received by an
Issuing Bank with respect to a Letter of Credit and distributed by the
Administrative Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from such Issuing Bank in
connection with any receivership, liquidation or bankruptcy proceeding, each
Lender which received such distribution shall, upon demand by such Issuing
Bank, contribute such Lender's Pro Rata Share of the amount set aside,
avoided or recovered together with interest at the rate required to be paid
by such Issuing Bank upon the amount required to be repaid by it.
(g) Letter of Credit Fee Charges. In connection with
----------------------------
each Letter of Credit, Borrower hereby covenants to pay to the Administrative
Agent the following fees each payable quarterly in arrears (on the first
Banking Day of each calendar quarter following the issuance of each Letter of
Credit): (1) a fee for the account of the Lenders, computed daily on the
amount of the Letter of Credit issued and outstanding at a rate per annum
equal to the "Banks' L/C Fee Rate" (as hereinafter defined) and (2) a fee,
for the Issuing Bank's own account, computed daily on the amount of the
Letter of Credit issued and outstanding at a rate per annum equal to 0.125%.
For purposes of this Agreement, the "Banks' L/C Fee Rate" shall mean, at any
time, a rate per annum equal to the Applicable Margin for Eurodollar Rate
Loans less 0.125% per annum. It is understood and agreed that the last
----
installment of the fees provided for in this paragraph (g) with respect
to any particular Letter of Credit shall be due and payable on the first day
of the fiscal quarter following the return, undrawn, or cancellation of such
Letter of Credit. In addition, the Borrower shall pay to each Issuing Bank,
solely for its own account, the standard charges assessed by such Issuing Bank
in connection with the issuance, administration, amendment and payment or
cancellation of Letters of Credit and such compensation in respect of such
Letters of Credit for the Borrower's account as may be agreed upon by the
Borrower and such Issuing Bank in writing from time to time.
(h) Letter of Credit Reporting Requirements. Each Issuing Bank
---------------------------------------
shall, no later than the tenth (10th) Business Day following the last day of
each calendar quarter, provide to the Administrative Agent, the Borrower, and
each other Lender separate schedules for Commercial Letters of Credit and
Standby Letters of Credit issued as Letters of Credit, in form and substance
reasonably satisfactory to the Administrative Agent, setting forth the
aggregate Letter of Credit Obligations outstanding to it at the end of each
month and, to the extent not otherwise provided in accordance with the
provisions of Section 3.1(c)(ii), any information requested by the
------------------
Administrative Agent or the Borrower relating to the date of
issue, account party, amount, expiration date and reference number of each
Letter of Credit issued by it.
(i) Indemnification; Exoneration. (i) In addition to all
----------------------------
other amounts payable to an Issuing Bank, the Borrower hereby agrees to
defend, indemnify, and save the Administrative Agent, each Issuing Bank, and
each other Lender harmless from and against any and all claims, demands,
liabilities, penalties, damages, losses (other than loss of profits),
reasonable costs, reasonable charges and reasonable expenses (including
reasonable attorneys' fees but excluding taxes) which the Administrative
Agent, the Issuing Banks, or such other Lender may incur or be subject to as
a consequence, direct or indirect, of (A) the issuance of any Letter of
Credit other than as a result of the gross negligence or willful misconduct
of the Issuing Bank, as determined by a court of competent jurisdiction, or
(B) the failure of the Issuing Bank to honor a drawing under such Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of
any present or future de jure or de facto government or Governmental Authority.
-- ---- -- -----
(ii) As between the Borrower on the one hand and the Lenders on the
other hand, the Borrower assumes all risks of the acts and omissions of, or
misuse of Letters of Credit by, the respective beneficiaries of the Letters
of Credit. In furtherance and not in limitation of the foregoing, subject to
the provisions of the Letter of Credit Reimbursement Agreements, the
Administrative Agent, the Issuing Banks and the other Lenders shall not be
responsible for: (A) the form, validity, legality, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letters of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the validity, legality or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (C) failure of the beneficiary of a Letter of
Credit to duly comply with conditions required in order to draw upon such
Letter of Credit; (D) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (E) errors in interpretation of
technical terms; (F) any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any Letter of Credit
or of the proceeds thereof; (G) the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of Credit;
and (H) any consequences arising from causes beyond the control of the
Administrative Agent, the Issuing Banks or the other Lenders, other than any
of the foregoing resulting from the gross negligence or wilful misconduct of
the Issuing Bank.
3.2. Obligations Several. The obligations of the
-------------------
Administrative Agent, each Issuing Bank, and each other Lender under this
Article III are several and not joint, and no Issuing Bank or other
-----------
Lender shall be responsible for the obligation to issue Letters of Credit or
participation obligation hereunder, respectively, of any other Issuing Bank
or other Lender.
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Revolving Credit Commitments.
-------------------------------------------------------
(a) Voluntary Prepayments. The Borrower may, at any time and
---------------------
from time to time, prepay the Loans in part or in their entirety, subject to
the following limitations. The Borrower shall give at least five (5) Business
Days' prior written notice to the Administrative Agent (which the
Administrative Agent shall promptly transmit to each Lender) of any
prepayment in the entirety to be made prior to the occurrence of an Event of
Default, which notice of prepayment shall specify the date (which shall be a
Business Day) of prepayment. When notice of prepayment is delivered as
provided herein, the outstanding principal amount of the Loans on the
prepayment date specified in the notice shall become due and payable on such
prepayment date. Each voluntary partial prepayment of the Loans shall be in a
minimum amount of $1,000,000 and in integral multiples of $500,000 in excess
of that amount (or such lesser amount in the event the unpaid principal
amount of any Loan is less than such minimum prepayment amount). Eurodollar
Rate Loans may be prepaid in part or in their entirety only upon payment of
the amounts described in Section 5.2(f).
--------------
(b) Voluntary Reductions In Revolving Credit Commitments. The
----------------------------------------------------
Borrower may, upon at least five (5) days' prior written notice to the
Administrative Agent (which the Administrative Agent shall promptly transmit
to each Lender), at any time and from time to time, terminate in whole or
permanently reduce in part the Revolving Credit Commitments, provided that
-------- ----
(i) the Borrower shall have made whatever payment may be
required to reduce the Revolving Credit Obligations to an amount less than or
equal to the Revolving Credit Commitments as reduced, which amount shall
become due and payable on the date specified in such notice and (ii) in the
case of a reduction, the minimum Revolving Credit Commitments that shall
remain outstanding shall be $100,000,000. Any partial reduction of the
Revolving Credit Commitments shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $1,000,000 in excess of that amount, and
shall reduce the Revolving Credit Commitment of each Lender proportionately
in accordance with its Pro Rata Share. Any notice of termination or
reduction given to the Administrative Agent under this Section 4.1(b) shall
--------------
specify the date (which shall be a Business Day) of such termination or
reduction and, with respect to a partial reduction, the aggregate principal
amount thereof.
(c) No Penalty. The prepayments and payments in respect of
----------
reductions and terminations described in clauses (a) and (b) of this Section
-------
4.1 may be made without premium or penalty (except as provided in
---
Section 5.2(f)).
---------------
(d) Mandatory Prepayment. If at any time from and after the
--------------------
Closing Date, the Company, the Borrower, or any of its consolidated
Subsidiaries receives proceeds from the sale or refinancing of an
unencumbered Project, the Borrower shall be required to prepay a portion of
the Loan in an amount equal to the Net Cash Proceeds received.
Notwithstanding the foregoing, in no event shall the Borrower be required to
prepay any portion of the Loan in the event that the property commonly known
as 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx is sold or refinanced on or
before the date which is ninety (90) days from the date hereof. If at any
time from and after the Closing Date: (i) the Company or the Borrower merges
or consolidates with another Person and the Company or Borrower, as the case
may be, is not the surviving entity, or (ii) the Company, the Borrower, any
of its Affiliates or consolidated Subsidiaries or the Management Company
ceases to provide property management and leasing services to at least 80% of
the total number of Projects in which the Borrower has an ownership interest
(the date any such event shall occur being the "Prepayment Date"), the
---------------
Borrower shall be required to prepay the Loans in their entirety as if the
Prepayment Date were the Revolving Credit Termination Date and, the Revolving
Credit Commitment thereupon shall be terminated. The Borrower shall
immediately make such prepayment together with interest accrued to the date of
the prepayment on the principal amount prepaid and shall return or cause to
be returned all Letters of Credit to the applicable Lender. In connection
with the prepayment of any Loan prior to the maturity thereof, the Borrower
shall also pay any applicable expenses pursuant to Section 5.2(f). Each
--------------
such prepayment shall be applied to prepay ratably the Loans of the Lenders.
Amounts prepaid pursuant to this Section 4.1(d) (other than amounts
--------------
prepaid pursuant to the first sentence of this Section 4.1(d)) may not be
--------------
reborrowed. As used in this Section 4.1(d) only, the phrase "sells,
--------------
transfers, assigns or conveys" shall not include (i) sales or conveyances
among Borrower and any of its consolidated Subsidiaries, or (ii) mortgages or
other security interests secured by Real Property or other Property.
4.2. Payments.
--------
(a) Manner and Time of Payment. All payments of principal of
--------------------------
and interest on the Loans and Reimbursement Obligations and other Obligations
(including, without limitation, fees and expenses) which are payable to the
Administrative Agent, the Arrangers or any other Lender shall be made without
condition or reservation of right, in immediately available funds, delivered
to the Administrative Agent not later than 12:00 noon (New York time) on the
date and at the place due, to such account of the Administrative Agent (or
such Arranger) as it may designate, for the account of the Administrative
Agent, an Arranger, or such other Lender, as the case may be; and funds
received by the Administrative Agent (or such Arranger), including, without
limitation, funds in respect of any Loans to be made on that date, not later
than 12:00 noon (New York time) on any given Business Day shall be credited
against payment to be made that day and funds received by the Administrative
Agent (or such Arranger) after that time shall be deemed to have been paid on
the next succeeding Business Day. Payments actually received by the
Administrative Agent for the account of the Documentation Agent and the
Lenders, or any of them, shall be paid to them by the Administrative Agent
promptly after receipt thereof.
(b) Apportionment of Payments. (i) Subject to the provisions
-------------------------
of Section 4.2(b)(v), all payments of principal and interest in respect of
-----------------
outstanding Loans, all payments in respect of Reimbursement Obligations, all
payments of fees and all other payments in respect of any other Obligations,
shall be allocated among such of the Lenders as are entitled thereto, in
proportion to their respective Pro Rata Shares or otherwise as provided
herein. Subject to the provisions of Section 4.2(b)(ii), all
------------------
such payments and any other amounts received by the Administrative Agent from
or for the benefit of the Borrower shall be applied in the following order:
(A) to pay principal of and interest on any portion of the Loans
which the Administrative Agent may have advanced on behalf of any Lender
other than Chase for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrower,
(B) to pay all other Obligations then due and payable, and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in
respect of Loans shall be applied first, to repay outstanding Base Rate
-----
Loans, and then to repay outstanding Eurodollar Rate Loans with those
----
Eurodollar Rate Loans which have earlier expiring Eurodollar Interest Periods
being repaid prior to those which have later expiring Eurodollar Interest
Periods.
(ii) After the occurrence of an Event of Default and while the same
is continuing which results in an acceleration of the Obligations in
accordance with Section 11.2, the Administrative Agent shall apply all
------------
payments in respect of any Obligations in the following order:
(A) first, to pay principal of and interest on any portion of
the Loans which the Administrative Agent may have advanced on
behalf of any Lender other than Chase for which the Administrative
Agent has not then been reimbursed by such Lender or the Borrower;
(B) second, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the
Administrative Agent;
(C) third, to pay principal of and interest on Letter of
Credit Obligations (or, to the extent such Obligations are
contingent, deposited with the Administrative Agent to provide cash
collateral in respect of such Obligations);
(D) fourth, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Lenders;
(E) fifth, to pay interest due in respect of Loans;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on Loans; and
(G) seventh, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
------------------
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the other Lenders as among
themselves. The order of priority set forth in clauses (A) and (B) of this
Section 4.2(b)(ii) may be changed only with the prior written consent of the
------------------
Administrative Agent.
(iii) The Administrative Agent, in its sole discretion subject
only to the terms of this Section 4.2(b)(iii), may pay from the proceeds
-------------------
of Loans made to the Borrower hereunder, whether made following a request by
the Borrower pursuant to Section 2.1 or a deemed request as provided in
-----------
this Section 4.2(b)(iii), all amounts payable by the Borrower hereunder,
-------------------
including, without limitation, amounts payable with respect to payments of
principal, interest, Reimbursement Obligations and fees. The Borrower hereby
irrevocably authorizes the Lenders to make Loans, which Loans shall be Base
Rate Loans, in each case, upon notice from the Administrative Agent as
described in the following sentence for the purpose of paying principal,
interest, Reimbursement Obligations and fees due from the Borrower, and
agrees that all such Loans so made shall be deemed to have been requested by
it pursuant to Section 2.1 as of the date of the aforementioned notice.
-----------
The Administrative Agent shall request Loans on behalf of the Borrower as
described in the preceding sentence by notifying the Lenders by facsimile
transmission or other similar form of transmission (which notice the
Administrative Agent shall thereafter promptly transmit to the Borrower), of
the amount and Funding Date of the proposed Borrowing and that such Borrowing
is being requested on the Borrower's behalf pursuant to this Section
-------
4.2(b)(iii). On the proposed Funding Date, the Lenders shall make the
-----------
requested Loans in accordance with the procedures and subject to the conditions
specified in Section 2.1.
-----------
(iv) Subject to Section 4.2(b)(v), the Administrative Agent
-----------------
shall promptly distribute to each Arranger and each other Lender at its
primary address set forth on the appropriate signature page hereof or the
signature page to the Assignment and Acceptance by which it became a Lender,
or at such other address as a Lender may request in writing, such funds as
such Person may be entitled to receive, subject to the provisions of Article
-------
XII; provided that the Administrative Agent shall under no
---
circumstances be bound to inquire into or determine the validity, scope or
priority of any interest or entitlement of any Lender and may suspend all
payments or seek appropriate relief (including, without limitation,
instructions from the Requisite Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata Share
of any Loan requested by the Borrower which such Lender is obligated to fund
under the terms of this Agreement (the funded portion of such Loan being
hereinafter referred to as a "Non Pro Rata Loan"), until the earlier
-----------------
of such Lender's cure of such failure and the termination of the Revolving
Credit Commitments, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower and otherwise required to be applied to
such Lender's share of all other Obligations pursuant to the terms of this
Agreement shall be advanced to the Borrower by the Administrative Agent on
behalf of such Lender to cure, in full or in part, such failure by such
Lender, but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(A) the foregoing provisions of this Section 4.2(b)(v)
-----------------
shall apply only with respect to the proceeds of payments of Obligations and
shall not affect the conversion or continuation of Loans pursuant to Section
-------
5.1(c);
------
(B) a Lender shall be deemed to have cured its failure to
fund its Pro Rata Share of any Loan at such time as an amount equal
to such Lender's original Pro Rata Share of the requested principal
portion of such Loan is fully funded to the Borrower, whether made
by such Lender itself or by operation of the terms of this Section
-------
4.2(b)(v), and whether or not the Non Pro Rata Loan with respect
---------
thereto has been repaid, converted or continued;
(C) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Pro Rata Share of any
Loan ("Cure Loans") shall bear interest at the Base Rate in
----------
effect from time to time, and for all other purposes of this Agreement
shall be treated as if they were Base Rate Loans; and
(D) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions of
the Borrower as to its desired application, all repayments of
principal which, in accordance with the other terms of this Section
-------
4.2, would be applied to the outstanding Base Rate Loans
---
shall be applied first, ratably to all Base Rate Loans constituting
-----
Non Pro Rata Loans, second, ratably to Base Rate Loans other than
------
those constituting Non Pro Rata Loans or Cure Loans and, third,
-----
ratably to Base Rate Loans constituting Cure Loans.
(c) Payments on Non-Business Days. Whenever any payment to be
-----------------------------
made by the Borrower hereunder or under the Notes is stated to be due on a
day which is not a Business Day, the payment shall instead be due on the next
succeeding Business Day (or, as set forth in Section 5.2(b)(iii), the
-------------------
next preceding Business Day).
4.3. Promise to Repay; Evidence of Indebtedness.
------------------------------------------
(a) Promise to Repay. The Borrower hereby agrees to pay when
----------------
due the principal amount of each Loan which is made to it, and further agrees
to pay all unpaid interest accrued thereon, in accordance with the terms of
this Agreement and the Notes. The Borrower shall execute and deliver to each
Lender on the Closing Date, a promissory note, in the form of Exhibit B
---------
attached hereto with blanks appropriately completed, evidencing the Loans and
thereafter shall execute and deliver such other promissory notes as are
necessary to evidence the Loans owing to the Lenders after giving effect to
any assignment thereof pursuant to Section 14.1, all in the form of Exhibit B
------------ ---------
attached hereto with blanks appropriately completed (all such promissory notes
and all amendments thereto, replacements thereof and substitutions therefor
being collectively referred to as the "Notes"; and "Note" means any one of the
----- ----
Notes).
(b) Loan Account. Each Lender shall maintain in accordance
------------
with its usual practice an account or accounts (a "Loan Account")
------------
evidencing the Indebtedness of the Borrower to such Lender resulting from
each Loan owing to such Lender from time to time, including the amount of
principal and interest payable and paid to such Lender from time to time
hereunder and under the Notes.
(c) Control Account. The Register maintained by the
---------------
Administrative Agent pursuant to Section 14.1(c) shall include a control
---------------
account, and a subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of each Borrowing made
hereunder, the type of Loan comprising such Borrowing and any Eurodollar
Interest Period applicable thereto, (ii) the effective date and amount of
each Assignment and Acceptance delivered to and accepted by it and the
parties thereto, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender
hereunder or under the Notes and (iv) the amount of any sum received by the
Administrative Agent from the Borrower hereunder and each Lender's share
thereof.
(d) Entries Binding. The entries made in the Register and each
---------------
Loan Account shall be conclusive and binding for all purposes, absent
manifest error.
(e) No Recourse. Notwithstanding anything contained in this
-----------
Agreement, any Note, or the Guaranty to the contrary, it is expressly
understood and agreed that nothing herein or therein shall be construed as
creating any liability on any Limited Partner or the general partner of
Reckson FS Limited Partnership, or any partner, officer, shareholder or
director of any Limited Partner or the general partner of Reckson FS Limited
Partnership or any officer, director, or employee of the Borrower or either
Guarantor, to pay any of the Obligations other than liability arising under
applicable law from or in connection with (i) its own fraud or (ii) the
misappropriation or misapplication by it of proceeds of the Loans; but
nothing contained in this Section 4.3(e) shall be construed to
--------------
prevent the exercise of any remedy allowed to the Administrative Agent, the
Arrangers or the Lenders by law or by the terms of this Agreement or the
other Loan Documents which does not relate to or result in such an obligation
by any Limited Partner or the general partner of Reckson FS Limited
Partnership or such other Persons to pay money.
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations.
-------------------------------------------
(a) Rate of Interest. All Loans and the outstanding principal
----------------
balance of all other Obligations shall bear interest on the unpaid principal
amount thereof from the date such Loans are made and such other Obligations
are due and payable until paid in full, except as otherwise provided in
Section 5.1(d), as follows:
--------------
(i) If a Base Rate Loan or such other Obligation, at a rate
per annum equal to the sum of (A) the Base Rate, as in effect from
time to time as interest accrues, plus (B) the then Applicalbe
----
Margin for Base Rate Loans; and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to
the sum of (A) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period, plus (B) the then Applicable Margin
----
for Eurodollar Loans.
The applicable basis for determining the rate of interest on the Loans shall
be selected by the Borrower at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, the Borrower may not select the
-------- -------
Eurodollar Rate as the applicable basis for determining the rate of interest
on such a Loan if at the time of such selection an Event of Default has
occurred and is continuing. If on any day any Loan is outstanding with
respect to which notice has not been timely delivered to the Administrative
Agent in accordance with the terms of this Agreement specifying the basis for
determining the rate of interest on that day, then for that day interest on
that Loan shall be determined by reference to the Base Rate.
(b) Interest Payments. (i) Interest accrued on each Loan,
-----------------
whether a Base Rate Loan or a Eurodollar Loan shall be calculated on the last
day of each calendar month and shall be payable in arrears (A) on the first
day of each calendar month, commencing on the first such day following the
making of such Loan, (B) upon the payment or prepayment thereof in full or in
part, and (C) if not theretofore paid in full, at maturity (whether by
acceleration or otherwise) of such Loan.
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and
shall be payable in arrears (A) on the first day of each calendar month,
commencing on the first such day following the incurrence of such Obligation,
(B) upon repayment thereof in full or in part, and (C) if not theretofore
paid in full, at the time such other Obligation becomes due and payable
(whether by acceleration or otherwise).
(c) Conversion or Continuation. (i) The Borrower shall have
--------------------------
the option (A) to convert at any time all or any part of outstanding Base
Rate Loans to Eurodollar Rate Loans; (B) to convert all or any part of
outstanding Eurodollar Rate Loans having Eurodollar Interest Periods which
expire on the same date to Base Rate Loans on such expiration date; or (C) to
continue all or any part of outstanding Eurodollar Rate Loans having
Eurodollar Interest Periods which expire on the same date as Eurodollar Rate
Loans, and the succeeding Eurodollar Interest Period of such continued Loans
shall commence on such expiration date; provided, however,
-------- -------
no such outstanding Loan may be continued as, or be converted into, a
Eurodollar Rate Loan (i) if the continuation of, or the conversion into,
would violate any of the provisions of Section 5.2 or (ii) if an Event
-----------
of Default has occurred and is continuing. Any conversion into or
continuation of Eurodollar Rate Loans under this Section 5.1(c) shall be
--------------
in a minimum amount of $3,000,000 and in integral multiples of $500,000 in
excess of that amount, except in the case of a conversion into or a
continuation of an entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
-----------------
Borrower shall deliver a Notice of Conversion/Continuation to the
Administrative Agent no later than 11:00 a.m. (New York time) at least three
(3) Business Days in advance of the proposed conversion/continuation date. A
Notice of Conversion/Continuation shall specify (A) the proposed
conversion/continuation date (which shall be a Business Day), (B) the
principal amount of the Loan to be converted/continued, (C) whether such Loan
shall be converted and/or continued, and (D) in the case of a conversion to,
or continuation of, a Eurodollar Rate Loan, the requested Eurodollar Interest
Period. Promptly after receipt of a Notice of Conversion/Continuation under
this Section 5.1(c)(ii), the Administrative Agent shall notify each Lender by
------------------
facsimile transmission, or other similar form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for conversion
to, or continuation of, a Loan (or telephonic notice in lieu thereof) given
pursuant to this Section 5.1(c)(ii) shall be irrevocable, and the Borrower
------------------
shall be bound to convert or continue in accordance therewith. In the event no
Notice of Conversion/Continuation is delivered as and when specified in this
Section 5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the
------------------
expiration of the Eurodollar Interest Period applicable thereto, such Loans
shall automatically be converted to a Base Rate Loan.
(d) Default Interest. Notwithstanding the rates of interest
----------------
specified in Section 5.1(a) or elsewhere in this Agreement, effective
--------------
immediately upon the occurrence of an Event of Default, and for as long
thereafter as such Event of Default shall be continuing, the principal
balance of all Loans and other Obligations shall bear interest at a rate
equal to (A) in the case of any Eurodollar Rate Loans outstanding as of the
date of occurrence of any Event of Default, the sum of (x) the applicable
Eurodollar Rate, plus (y) six percent (6.0%) per annum, and (B)
----
in the case of any Base Rate Loan (including any Eurodollar Loan that is
converted to a Base Rate Loan at maturity) the sum of (x) the Base Rate, as
in effect from time to time as interest accrues, plus (y) five percent
----
(5.0%) per annum.
(e) Computation of Interest. Interest on all Obligations shall
-----------------------
be computed on the basis of the actual number of days elapsed in the period
during which interest accrues and a year of 360 days. In computing interest
on any Loan, the date of the making of the Loan or the first day of a
Eurodollar Interest Period, as the case may be, shall be included and the
date of payment or the expiration date of a Eurodollar Interest Period, as
the case may be, shall be excluded; provided, however, if a
-------- -------
Loan is repaid on the same day on which it is made, one (1) day's interest
shall be paid on such Loan.
(f) Eurodollar Rate Information. Upon the request of the
---------------------------
Borrower, the Administrative Agent shall promptly provide to the Borrower
such information with respect to the applicable Eurodollar Rate as may be so
requested.
5.2. Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan
-------------------------------
shall be in a minimum principal amount of $3,000,000 and in integral
multiples of $500,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving
-------------------------------------------
notice as set forth in Section 2.1(b) (with respect to a Borrowing of
--------------
Eurodollar Rate Loans) or Section 5.1(c) (with respect to a conversion
--------------
into or continuation of Eurodollar Rate Loans), the Borrower shall have the
option, subject to the other provisions of this Section 5.2, to select
-----------
an interest period (each, a "Eurodollar Interest Period") to apply to the
--------------------------
Loans described in such notice, subject to the following provisions:
(i) The Borrower may only select, as to a particular
Borrowing of Eurodollar Rate Loans, a Eurodollar Interest Period of
one, two, three or six months in duration;
(ii) In the case of immediately successive Eurodollar Interest
Periods applicable to a Borrowing of Eurodollar Rate Loans, each
successive Eurodollar Interest Period shall commence on the day on
which the next preceding Eurodollar Interest Period expires;
(iii) If any Eurodollar Interest Period would otherwise
expire on a day which is not a Business Day, such Eurodollar
Interest Period shall be extended to expire on the next succeeding
Business Day if the next succeeding Business Day occurs in the same
calendar month, and if there will be no succeeding Business Day in
such calendar month, the Eurodollar Interest Period shall expire on
the immediately preceding Business Day;
(iv) The Borrower may not select a Eurodollar Interest Period
as to any Loan if such Eurodollar Interest Period terminates later
than the Revolving Credit Termination Date;
(v) The Borrower may not select a Eurodollar Interest Period
with respect to any portion of principal of a Loan which extends
beyond a date on which the Borrower is required to make a scheduled
payment of such portion of principal of which the Borrower is aware
on the date of such request, in the case of a payment pursuant to
Section 4.1(d) hereof; and
--------------
(vi) There shall be no more than seven (7) Eurodollar
Interest Periods in effect at any one time with respect to
Eurodollar Rate Loans.
(c) Determination of Eurodollar Interest Rate. As soon as
-----------------------------------------
practicable on the second Business Day prior to the first day of each
Eurodollar Interest Period (the "Eurodollar Interest Rate Determination
--------------------------------------
Date"), the Administrative Agent shall determine (pursuant to the
----
procedures set forth in the definition of "Eurodollar Rate") the interest
rate which shall apply to the Eurodollar Rate Loans for which an interest
rate is then being determined for the applicable Eurodollar Interest Period
and shall promptly give notice thereof (in writing or by telephone or by
facsimile confirmed in writing) to the Borrower and to each Lender. The
Administrative Agent's determination shall be presumed to be correct, absent
manifest error, and shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In
---------------------------------------------------
the event that at least one (1) Business Day before the Eurodollar Interest
Rate Determination Date:
(i) the Administrative Agent is advised by the Reference Bank
that deposits in Dollars (in the applicable amounts) are not being
offered by the Reference Bank in the London interbank market for
such Eurodollar Interest Period; or
(ii) the Administrative Agent determines that adequate and
fair means do not exist for ascertaining the applicable interest
rates by reference to which the Eurodollar Rate then being
determined is to be fixed; or
(iii) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate for Eurodollar Rate Loans comprising such
Borrowing will not adequately reflect the cost to such Requisite
Lenders of obtaining funds in Dollars in the London interbank
market in the amount substantially equal to such Lenders'
Eurodollar Rate Loans in Dollars and for a period equal to such
Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon (until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist) the
right of the Borrower to elect to have Loans bear interest based upon the
Eurodollar Rate shall be suspended and each outstanding Eurodollar Rate Loan
shall be converted into a Base Rate Loan on the last day of the then current
Eurodollar Interest Period therefor, notwithstanding any prior election by
the Borrower to the contrary.
(e) Illegality. (i) If at any time any Lender determines
----------
(which determination shall, absent manifest error, be final and conclusive
and binding upon all parties) that the making or continuation of any
Eurodollar Rate Loan has become unlawful or impermissible by compliance by
that Lender with any law, governmental rule, regulation or order of any
Governmental Authority (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful or would result in costs or
penalties), then, and in any such event, such Lender may give notice of that
determination, in writing, to the Borrower and the Administrative Agent, and
the Administrative Agent shall promptly transmit the notice to each other
Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i),
-----------------
(A) the Borrower's right to request from such Lender and such Lender's
obligation, if any, to make Eurodollar Rate Loans shall be immediately
suspended, and such Lender shall make a Base Rate Loan as part of any
requested Borrowing of Eurodollar Rate Loans and (B) if the affected
Eurodollar Rate Loan or Loans are then outstanding, the Borrower shall
immediately, or if permitted by applicable law, no later than the date
permitted thereby, upon at least one (1) Business Day's prior written notice
to the Administrative Agent and the affected Lender, convert each such Loan
into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
-------
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate
---------
Loans, such Lender shall promptly give notice of that determination, in
writing, to the Borrower and the Administrative Agent, and the Administrative
Agent shall promptly transmit the notice to each other Lender. The
Borrower's right to request, and such Lender's obligation, if any, to make
Eurodollar Rate Loans shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be
------------
paid by the Borrower pursuant to Section 5.1 and Article XIII, the
----------- ------------
Borrower shall compensate each Lender, upon demand, for all losses, expenses
and liabilities (including, without limitation, any loss or expense incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain such Lender's Eurodollar Rate
Loans to the Borrower but excluding any loss of Applicable Margin on the
relevant Loans) which that Lender may sustain (i) if for any reason a
Borrowing, conversion into or continuation of Eurodollar Rate Loans does not
occur on a date specified therefor in a Notice of Borrowing or a Notice of
Conversion/Continuation given by the Borrower or in a telephonic request by
it for borrowing or conversion/continuation or a successive Eurodollar
Interest Period does not commence after notice therefor is given pursuant to
Section 5.1(c), other than pursuant to Sections 5.2(d) or (e), or (ii) if
-------------- ----------------------
for any reason any Eurodollar Rate Loan is prepaid (other than pursuant to
Section 4.1(d) or Section 5.2(d) or (e)) on a date which is not the last
-------------- ----------------------
day of the applicable Eurodollar Interest Period or (iii) as a consequence
of any failure by the Borrower to repay a Eurodollar Rate Loan when required
by the terms of this Agreement. The Lender making demand for such compensation
shall deliver to the Borrower concurrently with such demand a written statement
in reasonable detail as to such losses, expenses and liabilities, and this
statement shall be conclusive as to the amount of compensation due to that
Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans. Any Lender may make,
--------------------------------
carry or transfer Eurodollar Rate Loans at, to, or for the account of, its
Eurodollar Lending Office or Eurodollar Affiliate or its other offices or
Affiliates. No Lender shall be entitled, however, to receive any greater
amount under Sections 4.2 or 5.2(f) or Article XIII as a result of the
------------ ------ ------------
transfer of any such Eurodollar Rate Loan to any office (other than such
Eurodollar Lending Office) or any Affiliate (other than such Eurodollar
Affiliate) than such Lender would have been entitled to receive immediately
prior thereto, unless (i) the transfer occurred at a time when circumstances
giving rise to the claim for such greater amount did not exist and (ii) such
claim would have arisen even if such transfer had not occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other
------------------------
Affiliate of any Lender shall be deemed a party to this Agreement or shall
have any liability or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to
------------------------
take into account the Eurodollar Reserve Percentage when calculating interest
due on Eurodollar Rate Loans shall not constitute, whether by course of
dealing or otherwise, a waiver by such Lender of its right to collect such
amount for any future period.
(j) Application of Mandatory Prepayments. The principal amount
------------------------------------
of any mandatory prepayment pursuant to Section 4.1(d) hereof, shall be
--------------
applied, first, to the outstanding Base Rate Loans and then, to the
outstanding Eurodollar Rate Loans. The Administrative Agent shall hold such
principal amounts allocated for prepayment of Eurodollar Rate Loans until the
end of the applicable Eurodollar Interest Period(s) and, during the interim
period, shall invest said sums in Cash Equivalents. Interest earned thereon
shall be forwarded to the Borrower upon the payment of the Eurodollar Rate
Loans at the end of said Eurodollar Interest Period.
5.3. Fees.
----
(a) Letter of Credit Fee. The Borrower shall pay to the
--------------------
Administrative Agent, for the account of the Lenders in proportion to their
interests in respective undrawn Letters of Credit, a Letter of Credit Fee as
more particularly set forth in Section 3.1(g) hereof.
(b) Unused Commitment Fee. The Borrower shall pay to the
---------------------
Administrative Agent, for the account of the Lenders based on their
respective Pro Rata Shares, a fee (the "Unused Commitment Fee"),
---------------------
accruing at a per annum rate equal to the then applicable Unused Commitment
Fee Percentage on the Unused Facility, such fee being payable monthly, in
arrears, commencing on the first day of the fiscal month next succeeding the
Closing Date, and on the first day of each fiscal month thereafter.
Notwithstanding the foregoing, in the event that any Lender fails to fund its
Pro Rata Share of any Loan requested by the Borrower which such Lender is
obligated to fund under the terms of this Agreement, (A) such Lender shall
not be entitled to any portion of the Unused Commitment Fee with respect to
its Revolving Credit Commitment until such failure has been cured in
accordance with Section 4.2(b)(v)(B) and (B) until such time, the Unused
-------------------- ---
Commitment Fee shall accrue in favor of the Lenders which have funded their
respective Pro Rata Shares of such requested Loan, shall be allocated among
such performing Lenders ratably based upon their relative Revolving Credit
Commitments, and shall be calculated based upon the average amount by which
the aggregate Revolving Credit Commitments of such performing Lenders exceeds
the sum of (I) the outstanding principal amount of the Loans owing to such
performing Lenders, and (II) the outstanding Reimbursement Obligations owing
to such performing Lenders, and (III) the aggregate participation interests of
such performing Lenders arising pursuant to Section 3.1(e) with respect to
--------------
undrawn and outstanding Letters of Credit.
(c) Calculation and Payment of Fees. All fees shall be
-------------------------------
calculated on the basis of the actual number of days elapsed in a 360-day
year. All fees shall be payable in addition to, and not in lieu of,
interest, compensation, expense reimbursements, indemnification and other
Obligations. Fees shall be payable to the Administrative Agent at its office
in New York, New York in immediately available funds unless otherwise set
forth herein. All fees shall be fully earned and nonrefundable when paid.
All fees due to any Arranger or any other Lender, including, without
limitation, those referred to in this Section 5.3, shall bear interest, if
-----------
not paid when due, at the interest rate specified in Section 5.1(d) and shall
--------------
constitute Obligations.
ARTICLE VI
CONDITIONS TO LOANS AND LETTERS OF CREDIT
6.1. Conditions Precedent to the Initial Loans and Letters of
--------------------------------------------------------
Credit. The obligation of each Lender on the Initial Funding Date to make
------
any Loan requested to be made by it, and to issue Letters of Credit, shall be
subject to the satisfaction of all of the following conditions precedent:
(a) Documents. The Administrative Agent shall have received on
---------
or before the Initial Funding Date all of the following:
(i) this Agreement, the Notes, and, to the extent not
otherwise specifically referenced in this Section 6.1(a), all
--------------
other Loan Documents and agreements, documents and instruments described in
the List of Closing Documents attached hereto as EXHIBIT E and made a
---------
part hereof, each duly executed, and in form and substance satisfactory to
the Agents; without limiting the foregoing, the Borrower hereby directs its
counsel, Xxxxx & xxxx LLP to prepare and deliver to the Agents, the Lenders,
and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP the legal opinions referred to
in such List of Closing Documents; and
(ii) such additional documentation as the Agents may reasonably
request.
(b) No Legal Impediments. No law, regulation, order, judgment
--------------------
or decree of any Governmental Authority shall, and the Administrative Agent
shall not have received any notice that litigation is pending or threatened
which is likely to (i) enjoin, prohibit or restrain the making of the Loans
and/or the issuance of Letters of Credit on the Initial Funding Date or (ii)
impose or result in the imposition of a Material Adverse Effect.
(c) No Change in Condition. No change in the business, assets,
----------------------
management, operations, financial condition or prospects of the Borrower or
any of its Properties shall have occurred since December 31, 1996 which
change, in the judgment of the Administrative Agent and the Documentation
Agent, will have a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the
------------------------------
Arrangers and the Lenders, since December 31, 1996, neither the Borrower nor
the Company shall have (i) entered into any (as determined in good faith by
the Administrative Agent and the Documentation Agent) commitment or
transaction, including, without limitation, transactions for borrowings and
capital expenditures, which are not in the ordinary course of the Borrower's
business, (ii) declared or paid any dividends or other distributions, (iii)
established compensation or employee benefit plans, or (iv) redeemed or
issued any equity Securities.
(e) No Loss of Material Agreements and Licenses. Since
-------------------------------------------
December 31, 1996, no agreement or license relating to the business,
operations or employee relations of the Borrower or any of its Real
Properties shall have been terminated, modified, revoked, breached or
declared to be in default, the termination, modification, revocation, breach
or default under which, in the reasonable judgment of the Administrative
Agent and the Documentation Agent, would result in a Material Adverse Effect.
(f) No Market Changes. Since the Closing Date no material
-----------------
adverse change shall have occurred in the conditions in the capital markets.
(g) No Default. No Event of Default or Potential Event of
----------
Default shall have occurred and be continuing or would result from the making
of the Loans or the issuance of any Letter of Credit.
(h) Representations and Warranties. All of the representations
------------------------------
and warranties contained in Section 7.1 and in any of the other Loan
-----------
Documents shall be true and correct in all material respects on and as of the
Initial Funding Date.
(i) Termination of Existing Credit Agreement. Simultaneously
----------------------------------------
with the making of the Initial Loan, the following existing credit agreement
of Borrower (A) shall have been terminated, all amounts due to the lenders
thereunder shall have been paid in full and all collateral held by the
lenders thereunder (if any) released and reconveyed or (B) the termination,
release and reconveyance documents shall have been executed and delivered to
the Title Company to be held in escrow pending receipt of pay-off amounts by
such Lender: the Amended and Restated Loan Agreement, dated as of February
22, 1996, by and among Borrower and the institutions parties thereto as
lender and collateral agent.
(j) Fees and Expenses Paid. There shall have been paid to the
----------------------
Administrative Agent, for the accounts of the Agents and the other Lenders,
as applicable, all fees due and payable on or before the Initial Funding Date
and all expenses due and payable on or before the Initial Funding Date,
including, without limitation, reasonable attorneys' fees and expenses, and
other costs and expenses incurred in connection with the Loan Documents.
6.2. Conditions Precedent to All Subsequent Loans and
-------------------------------------------------
Letters of Credit. The obligation of each Lender to make any Loan
-----------------
requested to be made by it on any date after the Initial Funding Date and the
agreement of each Lender to issue any Letter of Credit on any date after the
Initial Funding Date is subject to the following conditions precedent as of
each such date:
(a) Representations and Warranties. As of such date, both
------------------------------
before and after giving effect to the Loans to be made or the Letter of
Credit to be issued on such date, all of the representations and warranties
of the Borrower contained in Section 7.1 and in any other Loan
-----------
Document (other than representations and warranties which expressly speak as
of a different date) shall be true and correct in all material respects.
(b) No Defaults. No Event of Default or Potential Event of
-----------
Default shall have occurred and be continuing or would result from the making
of the requested Loan or issuance of the requested Letter of Credit.
(c) No Legal Impediments. No law, regulation, order, judgment
--------------------
or decree of any Governmental Authority shall, and the Administrative Agent
shall not have received from such Lender notice that, in the reasonable
judgment of such Lender, litigation is pending or threatened which is likely
to, enjoin, prohibit or restrain such Lender's making of the requested Loan
or participation in or issuance of the requested Letter of Credit.
(d) No Material Adverse Effect. The Borrower has not received
--------------------------
written notice from the Requisite Lenders that an event has occurred since
the date of this Agreement which has had and continues to have, or is
reasonably likely to have, a Material Adverse Effect.
Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing with respect to a Loan, each acceptance by the Borrower of the
proceeds of each Loan made hereunder, each submission by the Borrower to a
Lender of a request for issuance of a Letter of Credit and the issuance of
such Letter of Credit, shall constitute a representation and warranty by the
Borrower as of the Funding Date in respect of such Loan and the date of
issuance of such Letter of Credit, that all the conditions contained in this
Section 6.2 have been satisfied or waived in accordance with Section
-----------
14.7 (it being understood that with respect to the condition set forth in
Section 6.2(c), the same shall constitute a representation and warranty by
--------------
the Borrower only to the extent that the Borrower shall have knowledge of any
of the events set forth therein).
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower. In order
----------------------------------------------
to induce the Lenders to enter into this Agreement and to make the Loans and
the other financial accommodations to the Borrower and to issue the Letters
of Credit described herein, the Borrower hereby represents and warrants to
each Lender that the following statements are true, correct and complete:
(a) Organization; Powers. (i) The Borrower (A) is a limited
--------------------
partnership duly organized, validly existing and in good standing under the
laws of the State of Delaware, (B) is duly qualified to do business and is in
good standing under the laws of each jurisdiction in which failure to be so
qualified and in good standing will have a Material Adverse Effect, (C) has
all requisite power and authority to own, operate and encumber its Property
and to conduct its business as presently conducted and as proposed to be
conducted in connection with and following the consummation of the
transactions contemplated by this Agreement, and (D) is a partnership for
federal income tax purposes.
(ii) The Company (A) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland (B) is
duly authorized and qualified to do business and is in good standing under
the laws of each jurisdiction in which failure to be so qualified and in good
standing will have a Material Adverse Effect, and (C) has all requisite
corporate power and authority to own, operate and encumber its Property and
to conduct its business as presently conducted.
(iii) True, correct and complete copies of the Organizational
Documents of the Borrower and the Company identified on SCHEDULE 7.1-A
--------------
have been delivered to the Administrative Agent, each of which is in full
force and effect, has not been modified or amended except to the extent set
forth indicated therein or as otherwise permitted hereby and, to the best of
the Borrower's knowledge, there are no defaults under such Organizational
Documents and no events which, with the passage of time or giving of notice
or both, would constitute a default under such Organizational Documents.
Borrower shall update SCHEDULE 7.1-A from time to time in order to keep
--------------
said Schedule true and correct.
(iv) Neither the Borrower nor the Company are "foreign persons"
within the meaning of Section 1445 of the Internal Revenue Code.
(b) Authority. (i) The Company has the requisite power and
---------
authority to execute and deliver this Agreement on behalf of the Borrower and
each of the other Loan Documents which are required to be executed on behalf
of the Borrower as required by this Agreement. The Company is the Person who
has executed this Agreement and such other Loan Documents on behalf of the
Borrower and is the sole general partner of the Borrower.
(ii) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership
powers, have been duly authorized by all necessary partnership action (and,
in the case of the Company acting on behalf of the Borrower in connection
therewith, all necessary corporate action of the Company) and such
authorization has not been rescinded. No other partnership or corporate
action or proceedings on the part of the Borrower or the Company is necessary
to consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower is a party
has been duly executed and delivered on behalf of the Borrower and
constitutes the Borrower's legal, valid and binding obligation, enforceable
against the Borrower in accordance with its terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by general principles
of equity regardless of whether enforcement is considered in a proceeding at
law or in equity. Each of the Loan Documents to which Borrower is a party is
in full force and effect and all the terms, provisions, agreements and
conditions set forth therein and required to be performed or complied with by
the Company, the Borrower and the Borrower's Subsidiaries on or before the
Initial Funding Date have been performed or complied with, and no Potential
Event of Default, Event of Default exists hereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership
--------------------------------------------------------
Interests. (i) SCHEDULE 7.1-C (A) contains a diagram indicating the
--------- --------------
corporate structure of the Company, the Borrower, and any other Person in
which the Company or the Borrower holds a direct or indirect partnership,
joint venture or other equity interest indicating the nature of such interest
with respect to each Person included in such diagram; and (B) accurately sets
forth (1) the correct legal name of such Person, the jurisdiction of its
incorporation or organization and the jurisdictions in which it is qualified
to transact business as a foreign corporation, or otherwise, and (2) the
authorized, issued and outstanding shares or interests of each class of
equity Securities of the Company, the Borrower and the Subsidiaries of the
Borrower, and (3) the ownership interest of the Borrower, the Company and the
Subsidiaries of the Borrower in all Minority Holdings. None of such issued
and outstanding Securities is subject to any vesting, redemption, or
repurchase agreement, and there are no warrants or options (other than
Permitted Securities Options) outstanding with respect to such Securities,
except as noted on SCHEDULE 7.1-C. The outstanding Capital Stock of the
--------------
Company is duly authorized, validly issued, fully paid and nonassessable and
the outstanding Securities of the Borrower and its Subsidiaries are duly
authorized and validly issued. Attached hereto as part of SCHEDULE 7.1-C is a
--------------
true, accurate and complete copy of the Borrower Partnership Agreement as
in effect on the Closing Date and such Partnership Agreement has not been
amended, supplemented, replaced, restated or otherwise modified in any respect
since the Closing Date, except as otherwise permitted hereby. Borrower shall
update SCHEDULE 7.1-C as of the first day of each fiscal quarter, and shall
--------------
deliver the same together with the Quarterly Compliance Certificates, to the
extent required, in order to keep said Schedule true and correct.
(ii) Except where failure would not have a Material Adverse Effect
on the Borrower, each Subsidiary: (A) is a corporation or partnership, as
indicated on SCHEDULE 7.1-C, duly organized, validly
--------------
existing and, if applicable, in good standing under the laws of the
jurisdiction of its organization, (B) is duly qualified to do business and,
if applicable, is in good standing under the laws of each jurisdiction in
which failure to be so qualified and in good standing would have a Material
Adverse Effect, and (C) has all requisite power and authority to own, operate
and encumber its Property and to conduct its business as presently conducted
and as proposed to be conducted hereafter.
(d) No Conflict. The execution, delivery and performance of
-----------
each of the Loan Documents to which the Borrower is a party do not and will
not (i) conflict with the Organizational Documents of the Borrower or the
Company, (ii) conflict with, result in a breach of or constitute (with or
without notice or lapse of time or both) a default under any Requirement of
Law or material Contractual Obligation of the Borrower or the Company, or
require termination of any such material Contractual Obligation which would
subject the Administrative Agent or any of the other Lenders to any
liability, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the Property or assets of the Borrower or the Company,
or (iv) require any approval of shareholders of the Company.
(e) Governmental Consents. The execution, delivery and
---------------------
performance of each of the Loan Documents to which the Borrower is a party do
not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by any Governmental Authority, except
filings, consents or notices which have been made, obtained or given.
(f) Governmental Regulation. Neither the Borrower nor the
-----------------------
Company is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness as contemplated by
this Agreement.
(g) Financial Position. Complete and accurate copies of the
------------------
following financial statements and materials have been delivered to the
Administrative Agent: annual unaudited financial statements of the Borrower
and annual audited financial statements of the Company for the fiscal year
ended December 31, 1996. All annual financial statements of the Borrower
shall be accompanied by an Officer's Certificate of the Borrower, and shall
be certified by the Chief Financial Officer of the Borrower as fairly
presenting in all material respects the financial position of the Borrower.
All financial statements included in such materials were prepared in all
material respects in conformity with GAAP, except as otherwise noted therein,
and fairly present in all material respects the respective consolidated
financial positions, and the consolidated results of operations and cash
flows for each of the periods covered thereby of the Borrower and the Company
as at the respective dates thereof. Neither the Borrower nor the Company has
any Contingent Obligation, contingent liability or liability for any taxes,
long-term leases or commitments, not reflected in its financial statements
delivered to the Administrative Agent on or prior to the Closing Date or
otherwise disclosed to the Administrative Agent and the Lenders in writing on
or prior to the Closing Date, which will have a Material Adverse Effect.
(h) Indebtedness. SCHEDULE 7.1-H sets forth, as of December
------------ --------------
31, 1996, all Indebtedness for borrowed money of each of the Borrower,
Company and their respective Subsidiaries and, except as set forth on
SCHEDULE 7.1-H, there are no defaults in the payment of principal or
--------------
interest on any such Indebtedness and no payments thereunder have been
deferred or extended beyond their stated maturity and there has been no
material change in the type or amount of such Indebtedness (except for the
repayment of certain Indebtedness) since December 31, 1996.
(i) Litigation; Adverse Effects. Except as set forth in
---------------------------
SCHEDULE 7.1-I, as of the Closing Date, there is no action, suit,
--------------
proceeding, investigation or arbitration before or by any Governmental
Authority or private arbitrator pending or, to the knowledge of the Borrower,
threatened against the Company, the Borrower, or any of their respective
Subsidiaries, or any Property of any of them (i) challenging the validity or
the enforceability of any of the Loan Documents, (ii) which will result in
any Material Adverse Effect, or (iii) under the Racketeering Influenced and
Corrupt Organizations Act or any similar federal or state statute where such
Person is a defendant in a criminal indictment that provides for the
forfeiture of assets to any Governmental Authority as a potential criminal
penalty. There is no material loss contingency within the meaning of GAAP
which has not been reflected in the consolidated financial statements of the
Company and the Borrower. None of the Company, the Borrower or any
Subsidiary of the Borrower is (A) in violation of any applicable Requirements
of Law which violation will have or is reasonably likely to have a Material
Adverse Effect, or (B) in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or
regulation of any court or Governmental Authority which will have a Material
Adverse Effect.
(j) No Material Adverse Effect. Since December 31, 1996, there
--------------------------
has occurred no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
---------------------
(l) Payment of Taxes. All material tax returns, reports and
----------------
similar statements or filings the Company, the Borrower and its Subsidiaries
required to be filed have been timely filed (or extensions to file have been
obtained), and, except for Customary Permitted Liens, all material taxes,
assessments, fees and other charges of Governmental Authorities thereupon and
upon or relating to their respective Properties, assets, receipts, sales,
use, payroll, employment, income, licenses and franchises which are shown in
such returns or reports to be due and payable have been paid, except to the
extent (i) such taxes, assessments, fees and other charges of Governmental
Authorities are being contested in good faith by an appropriate proceeding
diligently pursued as permitted by the terms of Section 9.4 and (ii) such
-----------
taxes, assessments, fees and other charges of Governmental Authorities pertain
to Property of the Borrower or any of its Subsidiaries and the non-payment of
the amounts thereof would not, individually or in the aggregate, result in a
Material Adverse Effect. All other material taxes (including, without
limitation, real estate taxes), assessments, fees and other governmental
charges upon or relating to the respective Properties of the Borrower and
its Subsidiaries which are due and payable have been paid, except for Customary
Permitted Liens and except to the extent described in clauses (i) and (ii)
hereinabove. The Borrower has no knowledge of any proposed tax assessment
against the Borrower, any of its Subsidiaries, or any of the Projects that
will have or is reasonably likely to have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower, neither the
-----------
Company, the Borrower nor any of their Subsidiaries has received any written
notice or citation, nor has actual knowledge, that (i) it is in default in
the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any Contractual Obligation applicable to
it, or (ii) any condition exists which, with the giving of notice or the
lapse of time or both, would constitute a default with respect to any such
Contractual Obligation, in each case, except where such default or defaults,
if any, will not have a Material Adverse Effect.
(n) Disclosure. The representations and warranties of the
----------
Borrower contained in the Loan Documents, and all certificates and other
documents delivered to the Administrative Agent pursuant to the terms
thereof, do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
herein or therein, in light of the circumstances under which they were made,
taken as a whole, not misleading. Notwithstanding the foregoing, the Lenders
acknowledge that the Borrower shall not have liability under this clause (n)
with respect to its projections of future events or for any financial
projections.
(o) Requirements of Law. The Borrower and each of its
-------------------
Subsidiaries is in compliance with all Requirements of Law applicable to it
and its respective businesses and Properties, in each case where the failure
to so comply individually or in the aggregate will have a Material Adverse
Effect.
(p) Environmental Matters.
---------------------
(i) Except as disclosed on SCHEDULE 7.1-P (the Borrower
--------------
shall update SCHEDULE 7.1-P as of the first day of each fiscal quarter,
--------------
and deliver the same together with the Quarterly Compliance Certificates, to
the extent required, in order to keep said Schedule true and correct):
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply with all applicable
Environmental, Health or Safety Requirements of Law, except to the extent any
failure to do so would not have a Material Adverse Effect;
(B) the Borrower and each of its Subsidiaries have
obtained all material environmental, health and safety Permits necessary for
their respective operations, and all such Permits are in good standing and
the holder of each such Permit is currently in compliance with all terms and
conditions of such Permits, except to the extent any failure to do so would
not have a Material Adverse Effect;
(C) to the knowledge of the Borrower, neither the
Borrower nor any of its Subsidiaries or any of their respective present or
past Property or operations are subject to or are the subject of any
investigation of any Governmental Authority, judicial or administrative
proceeding, order, judgment or decree, negotiations, agreement or settlement
respecting (I) any Remedial Action, (II) any Claims or Liabilities and Costs
arising from the Release or threatened Release of a Contaminant into the
environment, or (III) any violation of or liability under any Environmental,
Health or Safety Requirement of Law, except to the extent none of the
foregoing would have a Material Adverse Effect;
(D) none of Borrower or any of its Subsidiaries has
filed any notice under any applicable Requirement of Law (I) reporting a
Release of a Contaminant; (II) indicating past or present treatment, storage
or disposal of a hazardous waste, as that term is defined under 40 C.F.R.
Part 261 or any state equivalent; or (III) reporting a violation of any
applicable Environmental, Health or Safety Requirement of Law with respect to
any of the foregoing, the substance of which would have a Material Adverse
Effect;
(E) none of the Borrower's or any of its Subsidiaries'
present or past Property is listed or, to the knowledge of the Borrower,
proposed for listing on the National Priorities List ("NPL")
---
pursuant to CERCLA or on the Comprehensive Environmental Response
Compensation Liability Information System List ("CERCLIS") or any similar
-------
state list of sites requiring Remedial Action;
(F) to the knowledge of the Borrower, neither the
Borrower nor any of its Subsidiaries has sent or directly arranged for the
transport of any waste to any site listed or proposed for listing on the NPL,
CERCLIS or any similar state list;
(G) to the best of Borrower's knowledge, there is not
now, and to Borrower's knowledge there has never been on or in any Project,
(I) any treatment, recycling, storage away from the site of generation or
disposal of any hazardous waste, as that term is defined under 40 C.F.R. Part
261 or any state equivalent, (II) any solid waste management facility, (III)
any underground storage tanks the presence or use of which is in violation of
applicable Environmental, Health or Safety Requirements of Law, (IV) any
asbestos-containing material which, in its present state, such Person has any
reason to believe could subject such Person or its Property to Liabilities
and Costs arising out of or relating to environmental, health or safety
matters that would result in a Material Adverse Effect; or (V) any
polychlorinated biphenyls (PCB) used in hydraulic oils, electrical
transformers or other Equipment, which, in any such case, would subject the
Borrower or its Property to Liabilities and Costs arising out of or relating
to environmental, health or safety matters that would result in a Material
Adverse Effect;
(H) to the knowledge of the Borrower, neither the
Borrower nor any of its Subsidiaries has received any notice or Claim to the
effect that any of such Persons is or may be liable to any Person as a result
of the Release or threatened Release of a Contaminant into the environment
which would result in a Material Adverse Effect;
(I) neither the Borrower nor any of its Subsidiaries has
any contingent liability in connection with any Release or threatened Release
of any Contaminants into the environment which will result in a Material
Adverse Effect;
(J) no Environmental Lien has attached to any Property
of the Borrower or any Subsidiary of the Borrower (other than those otherwise
permitted hereunder) or which do not constitute an Event of Default; and
(K) no Property of the Borrower or any Subsidiary of the
Borrower is subject to any Environmental Property Transfer Act, or to the
extent such acts are applicable to any such Property, the Borrower and/or
such Subsidiary whose Property is subject thereto has complied in all
material respects with the requirements of such acts.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate
-----
maintains or contributes to any Benefit Plan or Multiemployer Plan other than
those listed on SCHEDULE 7.1-Q hereto. Each Plan which is intended
--------------
to be qualified under Section 401(a) of the Internal Revenue Code as
currently in effect has been determined by the IRS to be so qualified, and
each trust related to any such Plan has been determined to be exempt from
federal income tax under Section 501(a) of the Internal Revenue Code as
currently in effect. Except as disclosed in SCHEDULE 7.1-Q, neither the
--------------
Borrower nor any of its Subsidiaries maintains or contributes to any employee
welfare benefit plan within the meaning of Section 3(1) of ERISA that
provides benefits to employees after termination of employment other than as
required by Section 601 of ERISA. The Borrower and each of its Subsidiaries
is in compliance in all material respects with the responsibilities,
obligations and duties imposed on it by ERISA, the Internal Revenue Code and
regulations promulgated thereunder with respect to all Plans. No Benefit
Plan has incurred any accumulated funding deficiency (as defined in Sections
302(a)(2) of ERISA and 412(a) of the Internal Revenue Code) whether or not
waived. Neither the Borrower nor any ERISA Affiliate nor any fiduciary of
any Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt
prohibited transaction described in Sections 406 of ERISA or 4975 of the
Internal Revenue Code or (ii) has taken or failed to take any action which
would constitute or result in a Termination Event. Neither the Borrower nor
any ERISA Affiliate is subject to any liability under Sections 4063, 4064, or
4204 of ERISA which would have a Material Adverse Effect. Neither the
Borrower nor any ERISA Affiliate is subject to any liability under Sections
4069 or 4212(c) of ERISA or has incurred any liability to the PBGC which
remains outstanding other than the payment of premiums, and there are no
premium payments which have become due which are unpaid. Schedule B to the
most recent annual report filed with the IRS with respect to each Benefit
Plan and has been furnished to the Administrative Agent and is complete and
accurate in all material respects. Since the date of each such Schedule B,
there has been no material adverse change in the funding status or financial
condition of the Benefit Plan relating to such Schedule B. Neither the
Borrower nor any ERISA Affiliate has (i) failed to make a required
contribution or payment to a Multiemployer Plan or (ii) made a complete or
partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer
Plan which would have a Material Adverse Effect. Neither the Borrower nor
any ERISA Affiliate has failed to make a required installment or any other
required payment under Section 412 of the Internal Revenue Code on or before
the due date for such installment or other payment. Neither the Borrower nor
any ERISA Affiliate is required to provide security to a Benefit Plan under
Section 401(a)(29) of the Internal Revenue Code due to a Benefit Plan
amendment that results in an increase in current liability for the plan year.
Except as disclosed on SCHEDULE 7.1-Q, which shall be updated by Borrower as
--------------
of the first day of each fiscal quarter, to the extent required, neither the
Borrower nor any of its Subsidiaries has, by reason of the transactions
contemplated hereby, any obligation to make any payment to any employee
pursuant to any Plan or existing contract or arrangement.
(r) Securities Activities. The Borrower is not engaged in the
---------------------
business of extending credit for the purpose of purchasing or carrying Margin
Stock.
(s) Solvency. After giving effect to the Loans to be made on
--------
the Initial Funding Date or such other date as Loans requested hereunder are
made, and the disbursement of the proceeds of such Loans pursuant to the
Borrower's instructions, the Borrower is Solvent.
(t) Insurance. SCHEDULE 7.1-T accurately sets forth as of the
--------- --------------
Closing Date all insurance policies and programs currently in effect with
respect to the respective Property and assets and business of the Borrower
and its Subsidiaries, specifying for each such policy and program, (i) the
amount thereof, (ii) the risks insured against thereby, (iii) the name of the
insurer and each insured party thereunder, (iv) the policy or other
identification number thereof, and (v) the expiration date thereof. The
Borrower has delivered to the Administrative Agent copies of all insurance
policies set forth on SCHEDULE 7.1-T. Such insurance policies and
--------------
programs are currently in full force and effect, in compliance with the
requirements of Section 9.5 hereof and, together with payment by the
-----------
insured of scheduled deductible payments, are, to the knowledge of the
Borrower, in amounts which should reasonably be expected to be sufficient to
cover the replacement value of the respective Property and assets of the
Borrower and/or its Subsidiaries. Borrower shall update SCHEDULE
--------
7.1-T, which shall be updated by Borrower annually, to the extent
-----
required, in order to keep said Schedule true and correct (or more frequently
if an insurance policy or program shall be terminated and/or replaced).
(u) REIT Status. The Company qualifies as a REIT under the
-----------
Internal Revenue Code.
(v) Ownership of Projects, Minority Holdings and Property.
-----------------------------------------------------
Ownership of all wholly owned Projects, Minority Holdings and other Property
of the Consolidated Businesses is held by the Borrower and its Subsidiaries
and is not held directly by the Company.
ARTICLE VIII
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Revolving
Credit Commitments are outstanding and thereafter until payment in full of
all of the Obligations (other than indemnities pursuant to Section 14.3
------------
not yet due), unless the Requisite Lenders shall otherwise give prior written
consent thereto:
8.1. Borrower Accounting Practices. The Borrower shall
-----------------------------
maintain, and cause each of its consolidated Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of consolidated financial statements
in conformity with GAAP.
8.2. Financial Reports. The Borrower shall deliver or cause to
-----------------
be delivered to the Administrative Agent (with copies for each of the
Lenders):
(a) Quarterly Reports.
-----------------
(i) Borrower Quarterly Financial Reports. As soon as
------------------------------------
practicable, and in any event within forty-five (45) days after the end of
each fiscal quarter in each Fiscal Year (other than the last fiscal quarter
in each Fiscal Year), a consolidated balance sheet of the Borrower and the
related consolidated statements of income and cash flow of the Borrower (to
be prepared and delivered quarterly in conjunction with the other reports
delivered hereunder at the end of each fiscal quarter) for each such fiscal
quarter, and, in comparative form, the corresponding figures for the
corresponding periods of the previous Fiscal Year, certified by an Authorized
Financial Officer of the Borrower as fairly presenting in all material
respects the consolidated financial position of the Borrower as of the dates
indicated and the results of their operations and cash flow for the months
indicated in accordance with GAAP, subject to normal quarterly adjustments.
(ii) Company Quarterly Financial Reports. As soon as
-----------------------------------
practicable, and in any event within forty-five (45) days after the end of
each fiscal quarter in each Fiscal Year (other than the last fiscal quarter
in each Fiscal Year), the Financial Statements of the Company and its
consolidated Subsidiaries on Form 10-Q as at the end of such period and a
report setting forth in comparative form the corresponding figures for the
corresponding period of the previous Fiscal Year, certified by an Authorized
Financial Officer of the Company as fairly presenting in all material
respects the consolidated financial position of the Company and its
consolidated Subsidiaries as at the date indicated and the results of their
operations and cash flow for the period indicated in accordance with GAAP,
subject to normal adjustments.
(iii) Quarterly Compliance Certificates. Together with each
---------------------------------
delivery of any quarterly report pursuant to paragraph (a)(i) of this Section
-------
8.2, the Borrower shall deliver Officer's Certificates of the
---
Borrower and the Company (the "Quarterly Compliance Certificates"), signed
---------------------------------
by the Borrower's and the Company's respective Authorized Financial Officers
representing and certifying (1) that the Authorized Financial Officer
signatory thereto has reviewed the terms of the Loan Documents, and has made,
or caused to be made under his/her supervision, a review in reasonable detail
of the consolidated financial condition of the Company and its Consolidated
Subsidiaries, for the fiscal quarter covered by such reports, that such
review has not disclosed the existence during or at the end of such fiscal
quarter, and that such officer does not have knowledge of the existence as at
the date of such Officer's Certificate, of an Event of Default or Potential
Event of Default or mandatory prepayment event, or, if any such condition or
event existed or exists, the nature and period of existence thereof and what
action the Company and/or the Borrower or any of its Subsidiaries has taken,
is taking and proposes to take with respect thereto; (2) the calculations in
the form of Exhibit G hereto for the period then ended which demonstrate
---------
compliance with the covenants and financial ratios set forth in Sections 9.9,
------------
9.11, 10.2, 10.3, 10.6, 10.7, 10.11, and 10.12 hereof and, when applicable,
----------------------------------- -----
that no Event of Default described in Section 11.1 exists, (3) a
------------
schedule of the Borrower's outstanding Indebtedness, including the amount,
maturity, interest rate and amortization requirements, as well as such other
information regarding such Indebtedness as may be reasonably requested by
the Administrative Agent, (4) a schedule of Total Adjusted EBITDA, and (5) a
schedule of Adjusted Unencumbered NOI.
(b) Annual Reports.
--------------
(i) Borrower Financial Statements. As soon as practicable, and
-----------------------------
in any event within ninety (90) days after the end of each Fiscal Year, the
Financial Statements of the Borrower and its Subsidiaries as at the end of
such Fiscal Year, accompanied by an Officer's Certificate of the Borrower,
certified by the Chief Financial Officer of the Borrower that the Financial
Statements fairly present in all material respects the consolidated financial
position of each of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations and cash flow for the periods
indicated in conformity with GAAP consistently applied, and which Officer's
Certificate shall explain any inconsistencies between the Financial
Statements of the Borrower and the Financial Statements of the Company.
(ii) Company Financial Statements. As soon as practicable, and
----------------------------
in any event within ninety (90) days after the end of each Fiscal Year, (i)
the Financial Statements of the Company and its consolidated Subsidiaries on
Form 10-K as at the end of such Fiscal Year and a report setting forth in
comparative form the corresponding figures from the consolidated Financial
Statements of the Company and its Subsidiaries for the prior Fiscal Year;
(ii) a report with respect thereto of Ernst & Young LLP or other independent
certified public accountants acceptable to the Administrative Agent (it being
understood that any "Big Six" certified public accountants are acceptable to
the Administrative Agent), which report shall be unqualified and shall state
that such financial statements fairly present the consolidated financial
position of each of the Company and its consolidated Subsidiaries as at the
dates indicated and the results of their operations and cash flow for the
periods indicated in conformity with GAAP (except for changes with which
Ernst & Young LLP or any such other independent certified public accountants,
if applicable, shall concur and which shall have been disclosed in the notes
to the financial statements)(which report shall be subject to the
confidentiality limitations set forth herein); and (iii) in the event that
the report referred to in clause (ii) above is qualified, a copy of the
management letter or any similar report delivered to the Company or to any
officer or employee thereof by such independent certified public accountants
in connection with such financial statements. The Administrative Agent and
each Lender (through the Administrative Agent) may, with the consent of the
Company (which consent shall not be unreasonably withheld), communicate
directly with such accountants, with any such communication to occur together
with a representative of the Company, at the expense of the Administrative
Agent (or the Lender requesting such communication), upon reasonable notice
and at reasonable times during normal business hours.
(iii) Annual Compliance Certificates. Together with each
------------------------------
delivery of any annual report pursuant to clauses (i) and (ii) of this
Section 8.2(b), the Borrower shall deliver Officer's Certificates of the
--------------
Borrower and the Company (the "Annual Compliance Certificates" and,
------------------------------
collectively with the Quarterly Compliance Certificates, the "Compliance
----------
Certificates"), signed by the Borrower's and the Company's respective
------------
Authorized Financial Officers, representing and certifying (1) that the
officer signatory thereto has reviewed the terms of the Loan Documents, and
has made, or caused to be made under his/her supervision, a review in
reasonable detail of the consolidated financial condition of the Company and
its consolidated Subsidiaries, for the accounting period covered by such
reports, that such review has not disclosed the existence at the end of such
accounting period, and that such officer does not have knowledge of the
existence as at the date of such Officer's Certificate, of an Event of
Default or Potential Event of Default or mandatory prepayment event, or, if
any such condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower or any of
its Subsidiaries has taken, is taking and proposes to take with respect
thereto; (2) the calculations in the form of Exhibit G
---------
hereto for the period then ended which demonstrate compliance with the
covenants and financial ratios set forth in Sections 9.9, 9.11, 10.2,
-------------------------
10.3, 10.6, 10.7, 10.11, and 10.12 hereof and, when applicable, that no
----------------------------------
Event of Default described in Section 11.1 exists, (3) a schedule of the
------------
Borrower's outstanding Indebtedness including the amount, maturity, interest
rate and amortization requirements, as well as such other information
regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, (4) a schedule of Total Adjusted EBITDA and (5) a
schedule of Adjusted Unencumbered NOI.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in
-------------------------
any event within ninety (90) days after the end of each Fiscal Year, the
Borrower shall deliver a written report, in form reasonably satisfactory to
the Administrative Agent, of all bankruptcy proceedings filed by or against
any tenant of any of the Projects, which tenant occupies three and one half
percent (3.5%) or more of the gross leasable area in the Projects in the
aggregate. The Borrower shall deliver to the Administrative Agent and the
Lenders, immediately upon the Borrower's learning thereof, of any bankruptcy
proceedings filed by or against, or the cessation of business or operations
of, any tenant of any of the Projects which tenant occupies three and one
half percent (3.5%) or more of the gross leasable area in the Projects in the
aggregate.
(v) Property Reports. Simultaneously with the delivery of the
----------------
Compliance Certificates, a rent roll.
8.3. Events of Default. Promptly upon the Borrower obtaining
-----------------
knowledge (a) of any condition or event which constitutes an Event of Default
or Potential Event of Default; (b) that any Person has given any notice to
the Borrower or any Subsidiary of the Borrower or taken any other action with
respect to a claimed default or event or condition of the type referred to in
Section 11.1(e); or (c) or of any condition or event which has a Material
---------------
Adverse Effect, the Borrower shall deliver to the Administrative Agent
(with copies for each of the Lenders) an Officer's Certificate specifying
(i) the nature and period of existence of any such claimed default, Event of
Default, Potential Event of Default, condition or event, (ii) the notice given
or action taken by such Person in connection therewith, and (iii) what action
the Borrower has taken, is taking and proposes to take with respect thereto.
8.4. Lawsuits. (i) Promptly upon the Borrower's obtaining
--------
knowledge of the institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting
the Borrower or any of its Subsidiaries not previously disclosed pursuant to
Section 7.1(i), which action, suit, proceeding, governmental
--------------
investigation or arbitration exposes, or in the case of multiple actions,
suits, proceedings, governmental investigations or arbitrations arising out
of the same general allegations or circumstances which expose, in the
Borrower's reasonable judgment, the Borrower or any of its Subsidiaries to
liability in an amount aggregating $1,000,000 or more and is not covered by
the Borrower's or such Subsidiary's insurance, the Borrower shall give
written notice thereof to the Administrative Agent (with copies for each of
the Lenders) and provide such other information as may be reasonably
available to enable each Lender and the Administrative Agent and its counsel
to evaluate such matters; (ii) as soon as practicable and in any event within
forty-five (45) days after the end of each fiscal quarter of the Borrower,
the Borrower shall provide a written quarterly report to the Administrative
Agent and the Lenders covering the institution of, or written threat of, any
action, suit, proceeding, governmental investigation or arbitration in an
amount equal to or in excess of $50,000,000 to the extent not previously
reported) against or affecting the Borrower or any of its Subsidiaries or any
Property of the Borrower or any of its Subsidiaries not previously disclosed
by the Borrower to the Administrative Agent and the Lenders, and shall
provide such other information at such time as may be reasonably available to
enable each Lender and the Administrative Agent and its counsel to evaluate
such matters; and (iii) in addition to the requirements set forth in
clauses (i) and (ii) of this Section 8.4, the Borrower upon request of
-----------
the Administrative Agent or the Requisite Lenders shall promptly give written
notice of the status of any action, suit, proceeding, governmental
investigation or arbitration covered by a report delivered pursuant to
clause (i) or (ii) above and provide such other information as may be
reasonably requested and available to it to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters.
Notwithstanding the foregoing, the Borrower shall not be required to disclose
any information which is subject to the attorney-client privilege.
8.5. Insurance. As soon as practicable and in any event by
---------
January 31st of each calendar year, the Borrower shall deliver to the
Administrative Agent (with copies for each of the Lenders) (i) a report in
form and substance reasonably satisfactory to the Administrative Agent
outlining all insurance coverage maintained as of the date of such report by
the Borrower and its Subsidiaries and the duration of such coverage and (ii)
an Officer's Certificate of signed by an Authorized Financial Officer of the
Borrower certifying that all premiums with respect to such coverage have been
paid when due.
8.6. ERISA Notices. The Borrower shall deliver or cause to be
-------------
delivered to the Administrative Agent (with copies for each of the Lenders),
at the Borrower's expense, the following information and notices as soon as
reasonably possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate knows or has reason to know that a Termination
Event has occurred, a written statement of an Authorized Financial
Officer of the Borrower describing such Termination Event and the
action, if any, which the Borrower or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or PBGC with
respect thereto;
(b) within fifteen (15) Business Days after the Borrower
knows or has reason to know that a non-exempt prohibited
transaction (defined in Sections 406 of ERISA and Section 4975 of
the Internal Revenue Code) has occurred with respect to the
Borrower, any ERISA Affiliate or any Plan, a statement of an
Authorized Financial Officer of the Borrower describing such
transaction with respect to the Borrower, any ERISA Affiliate or
any Plan and the action which the Borrower or any ERISA Affiliate
has taken, is taking or proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the
same with the DOL, IRS or PBGC, copies of each annual report (form
5500 series), including Schedule B thereto, filed with respect to
each Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any
Benefit Plan or Multiemployer Plan and each annual report for any
Multiemployer Plan, copies of each such report;
(e) within fifteen (15) Business Days after the filing of the
same with the IRS, a copy of each funding waiver request filed with
respect to any Benefit Plan and all written communications received
by the Borrower or any ERISA Affiliate with respect to such
request;
(f) within fifteen (15) Business Days after the occurrence
any material increase in the benefits of any existing Benefit Plan
or Multiemployer Plan or the establishment of any new Benefit Plan
or the commencement of contributions to any Benefit Plan or
Multiemployer Plan to which the Borrower or any ERISA Affiliate to
which the Borrower or any ERISA Affiliate was not previously
contributing, notification of such increase, establishment or
commencement;
(g) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate receives notice of the PBGC's intention to
terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;
(h) within fifteen (15) Business Days after the Borrower or
any of its Subsidiaries receives notice of any unfavorable
determination letter from the IRS regarding the qualification of a
Plan under Section 401(a) of the Internal Revenue Code, copies of
each such letter to the extent any of the foregoing would have a
Material Adverse Effect;
(i) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate receives notice from a Multiemployer Plan
regarding the imposition of withdrawal liability, copies of each
such notice;
(j) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate fails to make a required installment or any
other required payment under Section 412 of the Internal Revenue
Code on or before the due date for such installment or payment
which failure has not been cured, a notification of such failure;
and
(k) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate knows or has reason to know (i) a Multiemployer
Plan has been terminated, (ii) the administrator or plan sponsor of
a Multiemployer Plan intends to terminate a Multiemployer Plan, or
(iii) the PBGC has instituted or has given written notice that it
will institute proceedings under Section 4042 of ERISA to terminate
a Multiemployer Plan, notification of such termination, intention
to terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA Affiliate
-----------
shall be deemed to know all facts known by the "Administrator" of any Plan of
which the Borrower or any ERISA Affiliate is the plan sponsor.
8.7. Environmental Notices. The Borrower shall notify the
---------------------
Administrative Agent (with copies for each of the Lenders) in writing,
promptly upon any Officer of the Borrower responsible for the environmental
matters at any Property of the Borrower learning thereof, of any of the
following (together with any material documents and correspondence received
or sent in connection therewith):
(a) notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a result of
the Release or threatened Release of any Contaminant into the
environment, if such liability would result in a Material Adverse
Effect;
(b) notice that the Borrower or any of its Subsidiaries is
subject to investigation by any Governmental Authority evaluating
whether any Remedial Action is needed to respond to the Release or
threatened Release of any Contaminant into the environment which
would have a Material Adverse Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to
which such Environmental Lien relates would result in a Material
Adverse Effect;
(d) notice of violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of
Law which violation would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or
administrative proceeding alleging a violation by the Borrower or
any of its Subsidiaries of any Environmental, Health or Safety
Requirement of Law, which would result in a Material Adverse
Effect; or
(f) any proposed acquisition of stock, assets, real estate,
or leasing of Property by the Borrower or any of its Subsidiaries
that would subject the Borrower or any of its Subsidiaries to
environmental, health or safety Liabilities and Costs which would
result in a Material Adverse Effect.
8.8. Labor Matters. The Borrower shall notify the
-------------
Administrative Agent (with copies for each of the Lenders) in writing,
promptly upon the Borrower's learning thereof, of any labor dispute to which
the Borrower or any of its Subsidiaries is reasonably expected to become a
party (including, without limitation, any strikes, lockouts or other disputes
relating to any Property of such Persons' and other facilities) which would
result in a Material Adverse Effect.
8.9. Notices of Asset Sales and/or Acquisitions. The Borrower
------------------------------------------
shall deliver to the Administrative Agent and the Lenders written notice of
each of the following not less than five (5) Business Days prior to the
occurrence thereof: (a) a sale, transfer or other disposition of assets, in a
single transaction or series of related transactions, (b) an acquisition of
assets, in a single transaction or series of related transactions, for
consideration in excess of $50,000,000, and (c) the grant of a Lien with
respect to assets, in a single transaction or series of related transactions.
In addition, simultaneously with delivery of any such notice, the Borrower
shall deliver to the Administrative Agent a certificate of an Authorized
Officer certifying that Borrower is in compliance with this Agreement and the
other Loan Documents both on a historical basis and on a pro forma basis,
exclusive of the property sold, transferred and/or encumbered and inclusive
of the property to be acquired or the indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to comply
with the financial covenants set forth herein, proceeds of such transaction
(together with such additional amounts as may be required), in an amount, as
determined by the Administrative Agent, equal to that which would be required
to reduce the Obligations so that Borrower will be in compliance with the
covenants set forth herein upon the consummation of the contemplated
transaction, shall be applied to prepay the Obligations.
8.10. Tenant Notifications. The Borrower shall promptly notify
--------------------
the Administrative Agent upon obtaining knowledge of the bankruptcy or
cessation of operations of any tenant to which greater than three and one
half percent (3.5%) of the Borrower's share of consolidated minimum rent is
attributable to such tenant.
8.11. Other Reports. The Borrower shall deliver or cause to be
-------------
delivered to the Administrative Agent (with copies for each of the other
Lenders) copies of all financial statements and reports, if any, sent or made
available generally by the Company and/or the Borrower to its respective
Securities holders, including, without limitation, supplemental quarterly
forms, or (to the extent not otherwise provided hereunder), all press
releases made available generally by the Company and/or the Borrower or any
of its Subsidiaries to the public concerning material adverse developments in
the business of the Company, the Borrower or any such Subsidiary and all
material notifications received by the Company, the Borrower or its
Subsidiaries pursuant to the Securities Exchange Act and the rules
promulgated thereunder.
8.12. Other Information. Promptly upon receiving a request
-----------------
therefor from the Administrative Agent or any Arranger, the Borrower shall
prepare and deliver to the Administrative Agent (with copies for each of the
other Lenders) such other information with respect to the Company, the
Borrower, or any of its Subsidiaries, as from time to time may be reasonably
requested by the Administrative Agent or any Arranger.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Revolving Credit
Commitments are outstanding and thereafter until payment in full of all of
the Obligations (other than indemnities pursuant to Section 14.3
------------
not yet due), unless the Requisite Lenders shall otherwise give prior written
consent:
9.1. Existence, Etc. The Borrower shall, and shall cause each
---------------
of its Subsidiaries to, at all times maintain its corporate existence or
existence as a limited partnership or joint venture, as applicable, and
preserve and keep, or cause to be preserved and kept, in full force and
effect its rights and franchises material to its businesses, except where the
loss or termination of such rights and franchises will not have a Material
Adverse Effect.
9.2. Powers; Conduct of Business. The Borrower shall remain
---------------------------
qualified, and shall cause each of its Subsidiaries to qualify and remain
qualified, to do business and maintain its good standing in each jurisdiction
in which the nature of its business and the ownership of its Property
requires it to be so qualified and in good standing if the failure to do so
will have a Material Adverse Effect.
9.3. Compliance with Laws, Etc. The Borrower shall,
--------------------------
and shall cause each of its Subsidiaries to, (a) comply with all Requirements
of Law and all restrictive covenants affecting such Person or the business,
Property or operations of such Person, and (b) obtain and maintain as needed
all Permits necessary for its operations (including, without limitation, the
operation of the Projects) and maintain such Permits in good standing, except
where noncompliance with either clause (a) or (b) above will not have a
--- ---
Material Adverse Effect.
9.4. Payment of Taxes and Claims. (a) The Borrower shall pay,
---------------------------
and cause each of its Subsidiaries to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
Property or assets or in respect of any of its franchises, licenses,
receipts, sales, use, payroll, employment, business, income or Property
before any penalty or interest accrues thereon, and (ii) all material Claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a Lien (other than a Lien permitted by Section 10.2 or a Customary
------------
Permitted Lien for property taxes and assessments not yet due upon any of the
Borrower's or any of the Borrower's Subsidiaries' Property, prior to the time
when any penalty or fine shall be incurred with respect thereto; provided,
--------
however, that no such taxes, assessments, fees and governmental charges
-------
referred to in clause (i) above or Claims referred to in clause (ii) above
need be paid if being contested in good faith by appropriate proceedings
diligently instituted and conducted and if such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have
been made therefor.
9.5. Insurance. The Borrower shall maintain for itself and its
---------
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full
force and effect the insurance policies and programs listed on SCHEDULE
--------
7.1-T or substantially similar policies and programs or other policies and
-----
programs as are reasonably acceptable to the Administrative Agent. All such
policies and programs shall be maintained with insurers having an Xxxxxx X.
Best Company, Inc. rating of "A" or better and a financial size category of
not less than IX.
9.6. Inspection of Property; Books and Records; Discussions.
------------------------------------------------------
The Borrower shall permit, and cause each of its Subsidiaries and the Company
to permit, any authorized representative(s) designated by the Administrative
Agent or any Arranger or other Lender to visit and inspect any of the
Projects, to examine, audit, and check their respective financial and
accounting records, books, journals, orders, receipts and any correspondence
and other data relating to their respective businesses or the transactions
contemplated hereby (including, without limitation, in connection with
environmental compliance, hazard or liability), and to discuss their affairs,
finances and accounts with their officers and independent certified public
accountants, all with a representative of the Borrower present, upon
reasonable notice and at such reasonable times during normal business hours,
as often as may be reasonably requested. Each such visitation and inspection
shall be at such visitor's expense. The Borrower shall keep and maintain,
and cause its Subsidiaries to keep and maintain, in all material respects
proper books of record and account in which entries in conformity with GAAP.
9.7. ERISA Compliance. The Borrower shall, and shall cause
----------------
each of its Subsidiaries and ERISA Affiliates to, establish, maintain and
operate all Plans to comply in all material respects with the provisions of
ERISA, the Internal Revenue Code, all other applicable laws, and the
regulations and interpretations thereunder and the respective requirements of
the governing documents for such Plans.
9.8. Maintenance of Property. The Borrower shall, and shall
-----------------------
cause each of its Subsidiaries to, maintain in all material respects all of
their respective owned and leased Property in good, safe and insurable
condition and repair (ordinary wear and tear excepted), and not permit,
commit or suffer any waste or abandonment of any such Property and from time
to time shall make or cause to be made all material repairs, renewal and
replacements thereof, including, without limitation, any capital improvements
which may be required to maintain the same; provided, however, that such
-------- -------
Property may be altered or renovated in the ordinary course of business of
the Borrower or such applicable Subsidiary. Without any limitation on the
foregoing, the Borrower shall maintain the Projects in a manner such that
each Project can be used in the manner and substantially for the purposes
such Project is used on the Closing Date, including, without limitation,
maintaining all utilities, access rights, zoning and necessary Permits for
such Project.
9.9. Company Status. The Company shall at all times (1) remain
--------------
a publicly traded company listed on the New York Stock Exchange; (2) maintain
its status as a REIT under the Internal Revenue Code, and (3) retain direct
or indirect management and control of the Borrower.
9.10. Ownership of Projects, Minority Holdings and Property.
-----------------------------------------------------
The ownership of substantially all wholly owned Projects, Minority Holdings
and other Property of the Consolidated Businesses shall be held by the
Borrower and its Subsidiaries and shall not be held directly by the Company.
9.11. Maintenance of Operating Account. The Borrower shall at
--------------------------------
all times during the Revolving Credit Period maintain a demand deposit
account held by Administrative Agent (the "Operating Account") and shall
cause funds to be deposited therein in an amount sufficient to permit the
Administrative Agent to automatically deduct therefrom the interest payments
on the Obligations at 12:00 p.m. on the first day of each month.
ARTICLE X
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the
following covenants so long as any Revolving Credit Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 15.3 not yet due), unless the
------------
Requisite Lenders shall otherwise give prior written consent:
10.1. Intentionally Omitted.
---------------------
10.2. Liens. Neither the Borrower nor any of its Subsidiaries
-----
shall directly or indirectly create, incur, assume or permit to exist any
Lien on or with respect to any Property, except:
(a) Liens with respect to Capital Leases of Equipment entered
into in the ordinary course of business of the Borrower pursuant to
which the aggregate Indebtedness under such Capital Leases does not
exceed $1,000,000 for any Project;
(b) Existing Permitted Liens;
(c) Liens securing permitted Secured Indebtedness; and
(d) Customary Permitted Liens.
10.3. Investments. From and after the date hereof, the Company
-----------
may not make any Investments other than Investments in the Borrower. The
Borrower shall, and shall cause its Subsidiaries to make, or own Investments
which comply with the limitations set forth herein:
(a) Investments in Cash Equivalents;
(b) Investments in Real Property;
(c) Investments (including loans) in the Borrower's Subsidiaries,
the Borrower's Affiliates and the Management Company;
(d) Investments in Minority Holdings;
(e) Investments in notes secured by mortgages on any Real
Property of any Person;
(f) Investments in one or more Opportunity Funds; and
(g) Investments in Real Property in which Borrower or a
Subsidiary does not own a fee simple interest but does own the
leasehold position under a Qualified Lease.
Notwithstanding the foregoing, the Investments set forth above
shall be limited in the following manner: (i) the aggregate Investments of
the types set forth in clauses (c) through (g), exclusive of the Borrower's
investment in the property located at 000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxx Xxxx (the "Omni"), shall not exceed 20% of Total
----
Value, provided, however, during the calendar year 1997, the investments
-------- -------
set forth in clauses (c) through (g), exclusive of the Borrower's investment
in the Omni, shall not exceed the greater of (A) $160,000,000, and (B) 20% of
Total Value; (ii) the aggregate Investments of the types set forth in clauses
(c), (f) and (g) above shall not exceed 10% of Total Value; and (iii) the
aggregate Investments by the Borrower and its consolidated Subsidiaries in
Properties which are not office or industrial in nature shall not exceed
seven and one half percent (7.5%) of Total Value.
10.4. Conduct of Business. Neither the Borrower nor any of its
-------------------
Subsidiaries shall engage in any business, enterprise or activity other than
(a) the businesses of acquiring, developing, re-developing and managing
predominantly office and industrial Projects and portfolios of like Projects
and (b) any business or activities which are substantially similar, related
or incidental thereto. Notwithstanding anything to the contrary set forth in
Section 10.3 hereof or this Section 10.4, Borrower shall be permitted
------------ ------------
to make an Investment in an "Opportunity Fund" investment vehicle (directly
or indirectly) in which Xxxxx Xxxxxxx or Xxxxx Xxxxxxx and one or more
persons who are officers of the Company directly or indirectly controls or
has veto power over (whether through ownership of the general partner or
managing member or otherwise) all decisions with respect to acquisitions,
sales and financings (an "Opportunity Fund").
----------------
10.5. Transactions with Partners and Affiliates. Neither the
-----------------------------------------
Borrower nor any of its Subsidiaries shall directly or indirectly enter into
or permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder or holders of more than five percent (5%) of any
class of equity Securities of the Borrower, or with any Affiliate of the
Borrower which is not its Subsidiary, unless such transaction is determined
by the respective Boards of Directors of the Company to be no less favorable
to the Borrower or any of its Subsidiaries, as applicable, than those that
might be obtained in an arm's length transaction at the time from Persons who
are not such a holder or Affiliate. Nothing contained in this Section 10.5
------------
shall prohibit (a) increases in compensation and benefits for officers and
employees of the Borrower or any of its Subsidiaries; (b) payment of officers',
directors', partners' and other similar indemnities; or (c) performance of any
obligations arising under the Loan Documents.
10.6. Restriction on Fundamental Changes. The Borrower shall
----------------------------------
not enter into any merger or consolidation, or liquidate, wind-up or dissolve
(or suffer any liquidation or dissolution), or convey, lease, sell, transfer
or otherwise dispose of, in one transaction or series of transactions, all or
substantially all of the Borrower's business or Property, whether now or
hereafter acquired, except in connection with issuance, transfer, conversion
or repurchase of limited partnership interests in the Borrower.
Notwithstanding the foregoing, the Borrower shall be permitted to merge with
another Person so long as the Borrower is the surviving Person following such
merger.
10.7. Margin Regulations; Securities Laws. Neither the
-----------------------------------
Borrower nor any of its Subsidiaries, shall use all or any portion of the
proceeds of any credit extended under this Agreement to purchase or carry
Margin Stock.
10.8. ERISA. The Borrower shall not and shall not permit any
-----
of its Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in
Sections 406 of ERISA or 4975 of the Internal Revenue Code for
which a statutory or class exemption is not available or a private
exemption has not been previously obtained from the DOL, except to
the extent engaging in such transaction would not have a Material
Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue
Code), with respect to any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to
any Benefit Plan;
(d) terminate any Benefit Plan which would result in any
liability of Borrower or any ERISA Affiliate under Title IV of
ERISA;
(e) fail to make any contribution or payment to any
Multiemployer Plan which Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto, except to the extent such
failure would not have a Material Adverse Effect;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or
before the due date for such installment or other payment; or
(g) amend a Benefit Plan resulting in an increase in current
liability for the plan year such that the Borrower or any ERISA
Affiliate is required to provide security to such Plan under
Section 401(a)(29) of the Internal Revenue Code.
10.9. Organizational Documents. Neither the Company nor the
------------------------
Borrower shall amend, modify or otherwise change any of the terms or
provisions in any of their respective Organizational Documents as in effect
on the Closing Date, except amendments to effect (a) a change of name of the
Borrower, provided that the Borrower shall have provided the
-------- ----
Administrative Agent with thirty (30) days prior written notice of any such
name change, or (b) changes that would not affect such Organizational
Documents in any material manner not otherwise permitted under this
Agreement.
10.10. Fiscal Year. Neither the Company, the Borrower nor any
-----------
of its Subsidiaries shall change its Fiscal Year for accounting or tax
purposes from a period consisting of the 12-month period ending on December
31 of each calendar year.
10.11. Financial Covenants.
-------------------
(a) Indebtedness. Neither the Borrower nor any of its
------------
Subsidiaries shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any
Indebtedness, except Indebtedness which, when aggregated with Indebtedness of
the Borrower or any of its Subsidiaries and Minority Holdings Indebtedness
allocable in accordance with GAAP to the Borrower or any Subsidiary of the
Borrower as of the time of determination, would not exceed (i) fifty five
percent (55%) of Total Value as of the date of incurrence ("Total Outstanding
-----------------
Indebtedness Limitation"), (ii) in the case of Secured Indebtedness of the
-----------------------
Consolidated Businesses and the Borrower's proportionate share of Secured
Indebtedness of its Minority Holdings, thirty-five percent (35%) of the
Total Value ("Total Secured Outstanding Indebtedness Limitation") or (iii)
-------------------------------------------------
in the case of recourse Secured Indebtedness of the Consolidated Businesses,
ten percent (10%) of the Total Value ("Recourse Secured Indebtedness
-----------------------------
Limitation").
----------
(b) Minimum Combined Equity Value. The Combined Equity Value
-----------------------------
shall at no time be less than $375,000,000, plus an amount equal to seventy
percent (70%) of all Net Offering Proceeds received by the Company after the
date hereof.
(c) Minimum Consolidated Interest Coverage Ratio. As of the
--------------------------------------------
first day of each calendar quarter for the immediately preceding calendar
quarter, the ratio of (i) the sum of Total Adjusted EBITDA less Servicing
EBITDA, to (ii) Total Interest Expense for such quarter shall not be less
than 2.0 to 1.0.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first
-----------------------------------------
day of each calendar quarter for the immediately preceding calendar quarter,
the ratio of (i) Adjusted Unencumbered NOI to (ii) Unsecured Interest Expense
shall not be less than 2.0 to 1.0.
(e) Minimum Unsecured Debt Yield. As of the first day of each
----------------------------
calendar quarter for the immediately preceding calendar quarter, the ratio of
Adjusted Unencumbered NOI for such calendar quarter, multiplied by 4 to Total
Outstanding Unsecured Indebtedness shall not be less than the greater of (i)
(a) 14.5%, if Adjusted Unencumbered NOI is derived from the office and
industrial properties wholly-owned by the Borrower and its Subsidiaries, and
(b) 16%, if Adjusted Unencumbered NOI is derived from both office and
industrial properties wholly-owned by the Borrower and the Consolidated
Businesses and Minority Holdings; and (ii) a percentage equal to an interest
rate constant equal to the product of (x) the sum of the then Treasury Rate
and two percent (2%), and a thirty year mortgage-style amortization schedule,
and (y) 125%.
(f) Minimum Adjusted Unencumbered NOI. As of the first day of
---------------------------------
each calendar quarter, the Adjusted Unencumbered NOI for the immediately
preceding calendar quarter multiplied by 4 shall not be less than
$17,500,000.
(g) Minimum Fixed Charge Coverage Ratio. As of the first day
-----------------------------------
of each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Total Adjusted EBITDA, to (ii) Fixed Charges shall not be less
than 2.0 to 1.0.
(h) Maximum Dividend Payout Ratio. The Company shall not make
-----------------------------
any Restricted Payment during any of its fiscal quarters, which, when added
to all Restricted Payments made during the three immediately preceding fiscal
quarters, exceeds the greater of (i) 95% of FFO, and 110% of FAD, and (ii)
the amounts required to maintain its status as a REIT under the Internal
Revenue Code, and, provided an Event of Default shall not have occurred and
be continuing, to avoid federal income and excise tax liability. For
purposes of this provision, "Restricted Payment" means (i) any dividend or
other distribution on any shares of the Company's capital stock (except
dividends payable solely in shares of its capital stock or in rights to
subscribe for or purchase shares of its capital stock), or (ii) any payment
on account of the purchase, redemption, retirement or acquisition of (a) any
shares of the Company's capital stock, or (b) any option, warrant or other
right to acquire shares of the Company's capital stock.
(i) Recourse Secured Indebtedness. The Secured Loan-to-Value
-----------------------------
Ratio with respect to any Project for which the Consolidated Businesses shall
create or assume recourse Secured Indebtedness, shall at no time exceed
seventy five percent (75%).
(j) Negative Pledge. From and after the date hereof, neither
---------------
the Borrower nor the Company will, and will not permit any Subsidiary, to
enter into any agreement containing any provision prohibiting the creation or
assumption of any Lien upon its properties (other than with respect to
prohibitions on subordinate liens set forth in a mortgage on a particular
property), revenues or assets, whether now owned or hereafter acquired, or
restricting the ability of the Borrower to amend or modify this Agreement or
any other Loan Document.
(k) Pro Forma Calculations. The Borrower shall comply with the
----------------------
financial ratios set forth in this Section 10.11 as of the date of each
-------------
Borrowing. The Borrower shall recalculate the financial ratios by adding the
deemed amount equal to the Borrowing to the Indebtedness reflected on the
most recently available financial statements, and adding thereto any
Indebtedness incurred since the date of such financial statement and adding
thereto the value of such assets (determined at cost) acquired with such
Indebtedness to Total Value. The Borrower shall deliver an Officer's
Certificate, signed by the Borrower representing and certifying that the pro
---
forma calculations as of the date of the draw demonstrate Borrower's
-----
compliance with the covenants and financial ratios set forth in this Section
-------
10.11.
-----
10.12. Negative Covenants with respect to the Company.
----------------------------------------------
(a) From and after the date hereof, the Company will not acquire
any assets of any nature whatsoever other than additional units in the
Borrower.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except (x) as the
general partner of the Borrower in connection with trade payable incurred in
the ordinary course of business, (y) Indebtedness, the net proceeds of which
are contributed to the Borrower simultaneously with the incurrence thereof by
the Company, and (z) guarantees of Indebtedness which is recourse to the
Borrower.
(c) From and after the date hereof, the Company will not retain
any Net Offering Proceeds, and the same will be contributed by the Company to
the Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation,
or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution),
or convey, lease, sell, transfer or otherwise dispose of, in one transaction
or series of transactions, any of its business or assets, including its
interests in the Borrower. Notwithstanding the foregoing, the Company shall
be permitted to merge with another Person so long as the Company is the
surviving Person following such merger.
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default. Each of the following occurrences
-----------------
shall constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall fail
---------------------------------
to pay (i) when due any principal payment on the Obligations which is due on
the Revolving Credit Termination Date or pursuant to the terms of Section
-------
2.1(a), Section 2.3, Section 4.1(a), or Section 4.1(d) or (ii)
------ ----------- -------------- --------------
when due, any interest payment on the Obligations, provided, however, that
the Borrower shall be entitled to a five (5) day grace period with respect to
any interest payment but not more than one time in any twelve (12) month
period during the term hereof, or (iii) when due, any principal payment on
the Obligations not referenced in clauses (i) or (ii) hereinabove or (iv)
when due, any fees due pursuant to the terms of Section 5.3 and such default
shall continue for five (5) days.
(b) Breach of Certain Covenants. The Borrower shall fail duly
---------------------------
and punctually to perform or observe any agreement, covenant or obligation
binding on such Person under Sections 9.1, 9.4, 9.5, 9.10, 9.11 or
------------ --- --- ---- ----
Article X.
---------
(c) Breach of Representation or Warranty. Any representation
------------------------------------
or warranty made by the Borrower to the Administrative Agent, any Arranger or
any other Lender herein or by the Borrower or any of its Subsidiaries in any
of the other Loan Documents or in any statement or certificate at any time
given by any such Person pursuant to any of the Loan Documents shall be false
or misleading in any material respect on the date as of which made.
(d) Other Defaults. The Borrower shall default in the
--------------
performance of or compliance with any term contained in this Agreement (other
than as identified in paragraphs (a), (b) or (c) of this Section
-------
11.1), or any default or event of default shall occur under any of the
----
other Loan Documents, and such default or event of default shall continue for
thirty (30) days after receipt of written notice from the Administrative
Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or
----------------------------------
event of default shall occur and be continuing, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any recourse
Indebtedness (other than the Obligations) of the Company, the Borrower or its
Subsidiaries aggregating more than $10,000,000, and the effect thereof is to
cause an acceleration, mandatory redemption or other required repurchase of
such Indebtedness, or permit the holder(s) of such Indebtedness to accelerate
the maturity of any such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be otherwise
declared to be due and payable (by acceleration or otherwise) or required to
be prepaid, redeemed or otherwise repurchased by the Borrower or any of its
Subsidiaries (other than by a regularly scheduled required prepayment) prior
to the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
-----------------------------------------------------
(i) An involuntary case shall be commenced against the Company,
the Borrower, or any of its Subsidiaries to which $25,000,000 or more of the
Combined Equity Value is attributable, and the petition shall not be
dismissed, stayed, bonded or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Company, the
Borrower or any such Subsidiaries of the Borrower in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be granted under any
applicable federal, state, local or foreign law; or the respective board of
directors of the Company or Limited Partners of the Borrower or the board of
directors or partners of any such Subsidiaries of the Borrower (or any
committee thereof) adopts any resolution or otherwise authorizes any action
to approve any of the foregoing.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the Company,
the Borrower, or any of its Subsidiaries to which $25,000,000 or more of the
Combined Equity Value is attributable, or over all or a substantial part of
the Property of the Company, the Borrower or any of such Subsidiaries shall
be entered; or an interim receiver, trustee or other custodian of the
Company, the Borrower or any of such Subsidiaries or of all or a substantial
part of the Property of the Company, the Borrower or any of such Subsidiaries
shall be appointed or a warrant of attachment, execution or similar process
against any substantial part of the Property of any of the Company, the
Borrower or any of such Subsidiaries shall be issued and any such event shall
not be stayed, dismissed, bonded or discharged within sixty (60) days after
entry, appointment or issuance; or the respective board of directors of any
of the Company or Limited Partners of the Borrower or the board of directors
or partners of any of Borrower's Subsidiaries (or any committee thereof)
adopts any resolution or otherwise authorizes any action to approve any of
the foregoing.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
---------------------------------------------------
Company, the Borrower, or any of its Subsidiaries to which $25,000,000 or
more of the Combined Equity Value is attributable, shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in
an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its Property; or the Company, the Borrower or any of such
Subsidiaries shall make any assignment for the benefit of creditors or shall
be unable or fail, or admit in writing its inability, to pay its debts as
such debts become due.
(h) Judgments and Unpermitted Liens.
-------------------------------
(i) Any money judgment (other than a money judgment covered
by insurance as to which the insurance company has acknowledged coverage),
writ or warrant of attachment, or similar process against the Borrower or any
of its Subsidiaries or any of their respective assets involving in any case
an amount in excess of $5,000,000 (other than with respect to Claims arising
out of non-recourse Indebtedness) is entered and shall remain undischarged,
unvacated, unbonded or unstayed for a period of sixty (60) days or in any
event later than five (5) days prior to the date of any proposed sale
thereunder.
(ii) A federal, state, local or foreign tax Lien is filed
against the Borrower which is not discharged of record, bonded over or
otherwise secured to the satisfaction of the Administrative Agent within
sixty (60) days after the filing thereof or the date upon which the
Administrative Agent receives actual knowledge of the filing thereof for an
amount which, either separately or when aggregated with the amount of any
judgments described in clause (i) above, equals or exceeds $5,000,000.
(iii) An Environmental Lien is filed against any Project with
respect to Claims in an amount which, either separately or when aggregated
with the amount of all other such Environmental Liens, equals or exceeds
$5,000,000.
(i) Dissolution. Any order, judgment or decree shall be
-----------
entered against the Borrower decreeing its involuntary dissolution or split
up; or the Borrower shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan
--------------
Document ceases to be in full force and effect or the Borrower seeks to
repudiate its obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event
-----------------------
occurs which the Administrative Agent believes could subject either the
Borrower or any ERISA Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit
------------------
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Internal Revenue Code and the
Administrative Agent believes that the substantial business hardship upon
which the application for the waiver is based could subject either the
Borrower or any ERISA Affiliate to liability in excess of $500,000.
(m) Material Adverse Effect. An event shall occur which has a
-----------------------
Material Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company
------------------------------------------
shall fail to comply with Sections 9.9, 7.1(a)(ii), (b), (d), (l), and (o).
(o) Merger or Liquidation of the Company or the Borrower. The
----------------------------------------------------
Company shall merge or liquidate with or into any other Person and, as a
result thereof and after giving effect thereto, (i) the Company is not the
surviving Person or (ii) such merger or liquidation would effect an
acquisition of or Investment in any Person not otherwise permitted under the
terms of this Agreement. The Borrower shall merge or liquidate with or into
any other Person and, as a result thereof and after giving effect thereto,
(i) the Borrower is not the surviving Person or (ii) such merger or
liquidation would effect an acquisition of or Investment in any Person not
otherwise permitted under the terms of this Agreement. An Event of Default
shall be deemed "continuing" until cured or waived in writing in accordance
with Section 14.7.
------------
11.2. Rights and Remedies.
-------------------
(a) Acceleration and Termination. Upon the occurrence of any
----------------------------
Event of Default described in Sections 11.1(f) or 11.1(g), the Revolving
---------------- -------
Credit Commitments shall automatically and immediately terminate and the
unpaid principal amount of, and any and all accrued interest on, the
Obligations and all accrued fees shall automatically become immediately due
and payable, without presentment, demand, or protest or other requirements of
any kind (including, without limitation, valuation and appraisement,
diligence, presentment, notice of intent to demand or accelerate and of
acceleration), all of which are hereby expressly waived by the Borrower; and
upon the occurrence and during the continuance of any other Event of Default,
the Administrative Agent shall at the request, or may with the consent, of
the Lenders whose Pro Rata Shares, in the aggregate, are greater than fifty-
one percent (51%), by written notice to the Borrower, (i) declare that the
Revolving Credit Commitments are terminated, whereupon the Revolving Credit
Commitments and the obligation of each Lender to make any Loan hereunder and
of each Lender to issue or participate in any Letter of Credit not then
issued shall immediately terminate, and/or (ii) declare the unpaid principal
amount of and any and all accrued and unpaid interest on the Obligations to
be, and the same shall thereupon be, immediately due and payable, without
presentment, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment,
notice of intent to demand or accelerate and of acceleration), all of which
are hereby expressly waived by the Borrower.
(b) Rescission. If at any time after termination of the
----------
Revolving Credit Commitments and/or acceleration of the maturity of the
Loans, the Borrower shall pay all arrears of interest and all payments on
account of principal of the Loans and Reimbursement Obligations which shall
have become due otherwise than by acceleration (with interest on principal
and, to the extent permitted by law, on overdue interest, at the rates
specified in this Agreement) and all Events of Default and Potential Events
of Default (other than nonpayment of principal of and accrued interest on the
Loans due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to Section 14.7, then upon the written consent of the Requisite
------------
Lenders and written notice to the Borrower, the termination of the Revolving
Credit Commitments and/or the acceleration and their consequences may be
rescinded and annulled; but such action shall not affect any subsequent
Event of Default or Potential Event of Default or
impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders to a decision
which may be made at the election of the Requisite Lenders; they are not
intended to benefit the Borrower and do not give the Borrower the right to
require the Lenders to rescind or annul any acceleration hereunder, even if
the conditions set forth herein are met.
(c) Enforcement. The Borrower acknowledges that in the event
-----------
the Borrower or any of its Subsidiaries fails to perform, observe or
discharge any of their respective obligations or liabilities under this
Agreement or any other Loan Document, any remedy of law may prove to be
inadequate relief to the Administrative Agent, the Arrangers and the other
Lenders; therefore, the Borrower agrees that the Administrative Agent, the
Arrangers and the other Lenders shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
ARTICLE XII
THE AGENTS
12.1. Appointment. (a) Each Lender hereby designates and
-----------
appoints Chase as the Administrative Agent, UBS as the Documentation Agent
and the Arrangers as the Arrangers of such Lender under this Agreement, and
each Lender hereby irrevocably authorizes the Administrative Agent and the
Arrangers to take such actions on its behalf under the provisions of this
Agreement and the Loan Documents and to exercise such powers as are set forth
herein or therein together with such other powers as are reasonably
incidental thereto. The Administrative Agent and the Arrangers each agrees to
act as such on the express conditions contained in this Article XII.
-----------
(b) The provisions of this Article XII are solely for the
-----------
benefit of the Administrative Agent, the Documentation Agent, the Arrangers
and the other Lenders, and neither the Borrower, the Company nor any
Subsidiary of the Borrower shall have any rights to rely on or enforce any of
the provisions hereof (other than as expressly set forth in Section 12.7).
------------
In performing its respective functions and duties under
this Agreement, the Administrative Agent, the Documentation Agent and each
Arranger shall act solely as agents of the Lenders and do not assume and
shall not be deemed to have assumed any obligation or relationship of agency,
trustee or fiduciary with or for the Company, the Borrower or any Subsidiary
of the Borrower. The Administrative Agent, the Documentation Agent and each
Arranger may perform any of their respective duties hereunder, or under the
Loan Documents, by or through their respective agents or employees.
12.2. Nature of Duties. The Administrative Agent, the
----------------
Documentation Agent and the Arrangers shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
Loan Documents. The duties of the Administrative Agent, the Documentation
Agent and the Arrangers shall be mechanical and administrative in nature.
None of the Administrative Agent, the Documentation Agent or any Arranger
shall have by reason of this Agreement a fiduciary relationship in respect of
any Lender. Nothing in this Agreement or any of the Loan Documents,
expressed or implied, is intended to or shall be construed to impose upon the
Administrative Agent, the Documentation Agent or any Arranger any obligations
in respect of this Agreement or any of the Loan Documents except as expressly
set forth herein or therein. The Administrative Agent, the Documentation
Agent and each Arranger each hereby agrees that its duties shall include
providing copies of documents received by such Agent from the Borrower which
are reasonably requested by any Lender and promptly notifying each Lender
upon its obtaining actual knowledge of the occurrence of any Event of Default
hereunder.
12.3. Right to Request Instructions. The Administrative Agent,
-----------------------------
the Documentation Agent and each Arranger may at any time request
instructions from the Lenders with respect to any actions or approvals which
by the terms of any of the Loan Documents such Agent is permitted or required
to take or to grant, and such Agent shall be absolutely entitled to refrain
from taking any action or to withhold any approval and shall not be under any
liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from those Lenders from whom such Agent is
required to obtain such instructions for the pertinent matter in accordance
with the Loan Documents. Without limiting the generality of the foregoing,
such Agent shall take any action, or refrain from taking any action, which is
permitted by the terms of the Loan Documents upon receipt of instructions
from those Lenders from whom such Agent is required to obtain such
instructions for the pertinent matter in accordance with the Loan Documents,
provided, that no Lender shall have any right of action whatsoever against
--------
the Administrative Agent, the Documentation Agent or any Arranger as a result
of such Agent acting or refraining from acting under the Loan Documents in
accordance with the instructions of the Requisite Lenders or, where required
by the express terms of this Agreement, a greater proportion of the Lenders.
12.4. Reliance. The Administrative Agent, the Documentation
--------
Agent and each Arranger shall each be entitled to rely upon any written
notices, statements, certificates, orders or other documents or any telephone
message believed by it in good faith to be genuine and correct and to have
been signed, sent or made by the proper Person, and with respect to all
matters pertaining to this Agreement or any of the Loan Documents and its
duties hereunder or thereunder, upon advice of legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it.
12.5. Indemnification. To the extent that the Administrative
---------------
Agent, the Documentation Agent or any Arranger is not reimbursed and
indemnified by the Borrower, the Lenders will reimburse and indemnify such
Agent for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, and reasonable costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against it in any way relating to or arising out of
the Loan Documents or any action taken or omitted by such Agent under the
Loan Documents, in proportion to each Lender's Pro Rata Share. Such Agent
agrees to refund to the Lenders any of the foregoing amounts paid to it by
the Lenders which amounts are subsequently recovered by such Agent from the
Borrower or any other Person on behalf of the Borrower. The obligations of
the Lenders under this Section 12.5 shall survive the payment in full of
------------
the Loans, the Reimbursement Obligations and all other Obligations and the
termination of this Agreement.
12.6. Agents Individually. With respect to their respective
-------------------
Pro Rata Share of the Revolving Credit Commitments hereunder, if any, and the
Loans made by them, if any, the Administrative Agent, the Documentation Agent
and the Arrangers shall have and may exercise the same rights and powers
hereunder and are subject to the same obligations and liabilities as and to
the extent set forth herein for any other Lender. The terms "Lenders" or
"Requisite Lenders" or any similar terms shall, unless the context clearly
otherwise indicates, include Chase and UBS, and each other Arranger in its
respective individual capacity as a Lender or as one of the Requisite
Lenders. Chase and UBS and each other Arranger and each of their respective
Affiliates may accept deposits from, lend money to, and generally engage in
any kind of banking, trust or other business with the Borrower or any of its
Subsidiaries as if Chase and UBS were not respectively acting as the
Administrative Agent and the Documentation Agent and the other Arrangers were
not acting as Arrangers pursuant hereto.
12.7. Successor Agents.
----------------
(a) Resignation. Any Agent may resign from the performance of
-----------
all its functions and duties hereunder at any time by giving at least thirty
(30) Business Days' prior written notice to the Borrower and the other
Lenders, unless applicable law requires a shorter notice period or that there
be no notice period, in which instance such applicable law shall control.
Such resignation shall take effect upon the acceptance by a successor Agent
of appointment pursuant to this Section 12.7.
------------
(b) Appointment by Requisite Lenders. Upon any such
--------------------------------
resignation becoming effective, (i) if a Arranger shall then be acting with
respect to this Agreement, such Arranger shall become the Administrative
Agent or (ii) if no Arranger shall then be acting with respect to this
Agreement, the Requisite Lenders shall have the right to appoint a successor
Administrative Agent selected from among the Lenders with the prior written
consent of the Borrower which shall not be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor
-----------------------------
Administrative Agent shall not have been appointed within the thirty (30)
Business Day or shorter period provided in paragraph (a) of this
-------------
Section 12.7, the retiring Agent shall then appoint a successor Agent who
------------
shall serve as Administrative Agent until such time, if any, as the Requisite
Lenders appoint a successor Agent as provided above with the prior written
consent of the Borrower which shall not be unreasonably withheld.
(d) Rights of the Successor and Retiring Agents. Upon the
-------------------------------------------
acceptance of any appointment as Administrative Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article XII shall
-----------
inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Agent under this Agreement.
12.8. Relations Among the Lenders. Each Lender agrees that it
---------------------------
will not take any legal action, nor institute any actions or proceedings,
against the Borrower or any other obligor hereunder with respect to any of
the Obligations, without the prior written consent of the Lenders. Without
limiting the generality of the foregoing, no Lender may accelerate or
otherwise enforce its portion of the Obligations, or unilaterally terminate
its Revolving Credit Commitment except in accordance with Section 11.2(a).
---------------
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes.
-----
(a) Payment of Taxes. Any and all payments by the Borrower
----------------
hereunder or under any Note or other document evidencing any Obligations
shall be made, in accordance with Section 4.2, free and clear of and
-----------
without reduction for any and all present or future taxes, levies, imposts,
deductions, charges, withholdings, and all stamp or documentary taxes, excise
taxes, ad valorem taxes and other taxes which arise from the execution,
delivery or registration, or from payment or performance under, or otherwise
with respect to, any of the Loan Documents or the Revolving Credit
Commitments and all other liabilities with respect thereto excluding, in the
case of each Lender, taxes imposed on or measured by net income or overall
gross receipts and capital and franchise taxes imposed on it by (i) the
United States, (ii) the Governmental Authority of the jurisdiction in which
such Lender's Applicable Lending Office is located or any political
subdivision thereof or (iii) the Governmental Authority in which such Person
is organized, managed and controlled or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges and
withholdings being hereinafter referred to as "Taxes"). Except as otherwise
-----
provided herein, if the Borrower shall be required by law to withhold or
deduct any Taxes from or in respect of any sum payable hereunder or under
any such Note or document to any Lender, (x) the sum payable to such Lender
shall be increased as may be necessary so that after making all required
withholding or deductions (including withholding or deductions applicable
to additional sums payable under this Section 13.1) such Lender receives
------------
an amount equal to the sum it would have received had no such withholding
or deductions been made, (y) the Borrower shall make such withholding or
deductions, and (z) the Borrower shall pay the full amount withheld or
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) Indemnification. Except as otherwise provided herein, the
---------------
Borrower will indemnify each Lender against, and reimburse each within ten
(10) Business Days after written demand for, the full amount of all Taxes
(including, without limitation, any Taxes imposed by any Governmental
Authority on amounts payable under this Section 13.1 and any additional
------------
income or franchise taxes resulting therefrom) incurred or paid by such
Lender and any liability (including penalties, interest, and out-of-pocket
expenses paid to third parties) arising therefrom or with respect thereto,
whether or not such Taxes were lawfully payable, to the extent not paid by
the Borrower pursuant to Section 13.1 hereof. A certificate as to any
------------
additional amount payable to any Person under this Section 13.1 submitted
------------
by it to the Borrower shall, absent manifest error, be final, conclusive and
binding upon all parties hereto. Each Lender agrees, within a reasonable
time after receiving a written request from the Borrower, to provide the
Borrower and the Administrative Agent with such certificates and other
documents as are reasonably required, and take such other actions as are
reasonably necessary to claim such exemptions as such Lender may be entitled
to claim in respect of all or a portion of any Taxes which are otherwise
required to be paid or deducted or withheld pursuant to this Section 13.1 in
------------
respect of any payments under this Agreement or under the other Loan Documents.
If any Lender receives any refund with respect to any Taxes, such Lender shall
promptly remit such refund to the Borrower.
(c) Receipts. Within thirty (30) days after the date of any
--------
payment of Taxes by the Borrower, it will furnish to the Administrative
Agent, at its address referred to in Section 14.8, the original or a
------------
certified copy of a receipt evidencing payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender that is not
---------------------------
created or organized under the laws of the United States or a political
subdivision thereof shall deliver to the Borrower and the Administrative
Agent on the Closing Date or the date on which such Lender becomes a Lender
pursuant to Section 14.1 hereof a true and accurate certificate
------------
executed in duplicate by a duly authorized officer of such Lender to the
effect that such Lender is eligible to receive payments hereunder and under
the Notes without deduction or withholding of United States federal income
tax (I) under the provisions of an applicable tax treaty concluded by the
United States (in which case the certificate shall be accompanied by two duly
completed copies of IRS Form 1001 (or any successor or substitute form or
forms)) or (II) under Sections 1442(c)(1) and 1442(a) of the Internal Revenue
Code (in which case the certificate shall be accompanied by two duly
completed copies of IRS Form 4224 (or any successor or substitute form or
forms)).
(ii) Each Lender further agrees to deliver to the Borrower and the
Administrative Agent from time to time, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender before or
promptly upon the occurrence of any event requiring a change in the most
recent certificate previously delivered by it to the Borrower and the
Administrative Agent pursuant to this Section 13.1(d). Each certificate
---------------
required to be delivered pursuant to this Section 13.1(d)(ii) shall certify
-------------------
as to one of the following:
(A) that such Lender can continue to receive payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax;
(B) that such Lender cannot continue to receive payments
hereunder and under the Notes without deduction or withholding of
United States federal income tax as specified therein but does not
require additional payments pursuant to Section 13.1(a)
---------------
because it is entitled to recover the full amount of any such
deduction or withholding from a source other than the Borrower; or
(C) that such Lender is no longer capable of receiving
payments hereunder and under the Notes without deduction or
withholding of United States federal income tax as specified
therein and that it is not capable of recovering the full amount of
the same from a source other than the Borrower.
Each Lender agrees to deliver to the Borrower and the Administrative Agent
further duly completed copies of the above-mentioned IRS forms on or before
the earlier of (x) the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an
exemption from withholding from United States federal income tax and (y)
fifteen (15) days after the occurrence of any event requiring a change in the
most recent form previously delivered by such Lender to the Borrower and
Administrative Agent, unless any change in treaty, law, regulation, or
official interpretation thereof which would render such form inapplicable or
which would prevent the Lender from duly completing and delivering such form
has occurred prior to the date on which any such delivery would otherwise be
required and the Lender promptly advises the Borrower that it is not capable
of receiving payments hereunder and under the Notes without any deduction or
withholding of United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in this
Section 13.1, the Borrower will not be required to make any
------------
additional payment to or for the account of any Lender under Section
-------
13.1(a) or (b) by reason of (x) a breach by such Lender of any
--------------
certification or representation set forth in any form furnished to the
Borrower under Section 13.1(d), or (y) such Lender's failure or inability
---------------
to furnish under Section 13.1(d) an original of an extension or renewal of
---------------
a Form 1001 or Form 4224 (or successor form), as applicable, unless such
failure or inability results from a change (after the date such Lender became
a Lender party hereto) in any applicable law or regulation or in the
interpretation thereof by any regulatory authority (including without
limitation any change in any applicable tax treaty).
13.2. Increased Capital. If after the date hereof any Lender
-----------------
determines that (i) the adoption or implementation of or any change in or in
the interpretation or administration of any law or regulation or any
guideline or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over
any Lender or banks or financial institutions generally (whether or not
having the force of law), compliance with which affects the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (ii) the amount of such capital is increased by
or based upon (A) the making or maintenance by any Lender of its Loans, any
Lender's participation in or obligation to participate in the Loans, Letters
of Credit or other advances made hereunder or the existence of any Lender's
obligation to make Loans or (B) the issuance or maintenance by any Lender of,
or the existence of any Lender's obligation to issue, Letters of Credit,
then, in any such case, within ten (10) Business Days after written demand by
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall immediately pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender or such corporation therefor.
Such demand shall be accompanied by a statement as to the amount of such
compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
13.3. Changes; Legal Restrictions. If after the date hereof
---------------------------
any Lender determines that the adoption or implementation of or any change in
or in the interpretation or administration of any law or regulation or any
guideline or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over
any Lender, or over banks or financial institutions generally (whether or not
having the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or
Eurodollar Affiliate) to charges (other than taxes) of any kind
which such Lender reasonably determines to be applicable to the
Revolving Credit Commitments of the Lenders to make Eurodollar Rate
Loans or issue and/or participate in Letters of Credit or change
the basis of taxation of payments to that Lender of principal,
fees, interest, or any other amount payable hereunder with respect
to Eurodollar Rate Loans or Letters of Credit (other than taxes
excluded in Section 13.1(a) hereof); or
---------------
(b) imposes, modifies, or holds applicable, in the
determination of a Lender, any reserve, special deposit, compulsory
loan, FDIC insurance or similar requirement against assets held by,
or deposits or other liabilities (including those pertaining to
Letters of Credit) in or for the account of, advances or loans by,
commitments made, or other credit extended by, or any other
acquisition of funds by, a Lender or any Applicable Lending Office
or Eurodollar Affiliate of that Lender in respect of Eurodollar
Loans or Letters of Credit;
and the result of any of the foregoing is to increase the cost to that Lender
of making, renewing or maintaining the Loans or its Revolving Credit
Commitment or issuing or participating in the Letters of Credit or to reduce
any amount receivable thereunder; then, in any such case, within ten (10)
Business Days after written demand by such Lender (with a copy of such demand
to the Administrative Agent), the Borrower shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, such amount or amounts as may be necessary to
compensate such Lender or its Eurodollar Affiliate for any such additional
cost incurred or reduced amount received. Such demand shall be accompanied
by a statement as to the amount of such compensation and include a brief
summary of the basis for such demand. Such statement shall be conclusive and
binding for all purposes, absent manifest error.
13.4. Replacement of Certain Lenders. In the event a Lender (a
------------------------------
"Designated Lender") shall have (i) requested additional compensation from
-----------------
the Borrower under Section 13.1 or under Section 13.2 or under Section
------------ ------------
13.3, (ii) failed to make its Pro Rata Share of any Loan requested to be made
hereby or (iii) failed to make any Loan at the Eurodollar Rate, the Borrower
may, at its sole election, make written demand on such Designated Lender
(with a copy to the Administrative Agent) for the Designated Lender to
assign, and such Designated Lender shall assign pursuant to one or more duly
executed Assignment and Acceptances to one or more Eligible Assignees which
the Borrower or the Administrative Agent shall have identified for such
purpose, all of such Designated Lender's right and obligations under this
Agreement, the Notes and the other Loan Documents (including, without
limitation, its Revolving Credit Commitment, all Loans owing to it, and all
of its participation interests in Letters of Credit) in accordance with
Section 14.1. All out-of-pocket expenses incurred by the
------------
Administrative Agent in connection with the foregoing shall be for the sole
account of the Borrower and shall constitute Obligations hereunder. In no
event shall Borrower's election under the provisions of this Section
-------
13.4 affect its obligation to pay the additional compensation required
----
under either Section 13.1, Section 13.2 or Section 13.3.
------------ ------------ ------------
13.5. Mitigation. Each Lender shall notify the Borrower of any
----------
event occurring after the date of this Agreement entitling such Lender to
compensation under Sections 13.1, 13.2 or 13.3 as promptly as practicable,
but in any event, within 45 days, after such Lender obtains actual knowledge
thereof; provided that (i) if any Lender fails to give such
--------
notice within 45 days after it obtains actual knowledge of such an event,
such Lender shall, with respect to compensation payable pursuant to Sections
13.1, 13.2 or 13.3 in respect of any costs resulting from such event, only be
entitled to payment under Sections 13.1, 13.2 or 13.3 for costs incurred from
and after the date 45 days prior to the date that such Lender does give such
notice and (ii) each Lender will designate a different Applicable Lending
Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the reasonable judgment of such Lender, be
disadvantageous to such Lender.
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations.
------------------------------
(a) Assignments. No assignments or participations of any
-----------
Lender's rights or obligations under this Agreement shall be made except in
accordance with this Section 14.1. Each Lender may assign to one or
------------
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all of its rights and obligations with respect to
the Loans and the Letters of Credit) in accordance with the provisions of
this Section 14.1.
------------
(b) Limitations on Assignments. For so long as no Event of
--------------------------
Default has occurred and is continuing, each assignment shall be subject to
the following conditions: (i) each assignment shall be of a constant, and
not a varying, ratable percentage of all of the assigning Lender's rights and
obligations under this Agreement and, in the case of a partial assignment,
shall be in a minimum principal amount of $10,000,000 (and the assignor shall
maintain a minimum amount of $10,000,000 for its own account unless the
assignor shall assign or participate its entire interest), (ii) each such
assignment shall be to an Eligible Assignee, (iii) each assignment shall be
subject to the reasonable approval of the Agent and the Borrower, (iv) the
parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, and (v) each Agent shall maintain a minimum
Revolving Credit Commitment in an amount greater than the Revolving Credit
Commitment of any other Lender (other than the other Arrangers) or an amount
sufficient to maintain such Arranger's Pro Rata Share as of the Closing Date,
whichever is less. Upon the occurrence and continuance of an Event of
Default, none of the foregoing restrictions on assignments shall apply,
provided, however, that while an Event of Default (other than an Event of
Default that shall have required that the Administrative Agent shall have
delivered a notice of the underlying default) shall be continuing but prior
to acceleration of the Loans, the applicable Lender shall give the Borrower
five (5) days' written notice by telecopy of its intention to assign any or
all of its interest in this Agreement. Upon such execution, delivery,
acceptance and recording in the Register, from and after the effective date
specified in each Assignment and Acceptance and agreed to by the
Administrative Agent, (A) the assignee thereunder shall, in addition to any
rights and obligations hereunder held by it immediately prior to such
effective date, if any, have the rights and obligations hereunder that have
been assigned to it pursuant to such Assignment and Acceptance and shall, to
the fullest extent permitted by law, have the same rights and benefits
hereunder as if it were an original Lender hereunder, (B) the assigning
Lender shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
such assigning Lender's rights and obligations under this Agreement, the
assigning Lender shall cease to be a party hereto) and (C) the Borrower shall
execute and deliver to the assignee thereunder a Note evidencing its
obligations to such assignee with respect to the Loans.
(c) The Register. The Administrative Agent shall maintain at
------------
its address referred to in Section 14.8 a copy of each Assignment and
------------
Acceptance delivered to and accepted by it and a register (the "Register")
--------
for the recordation of the names and addresses of the Lenders, the Revolving
Credit Commitment of, and the principal amount of the Loans under the
Revolving Credit Commitments owing to, each Lender from time to time and
whether such Lender is an original Lender or the assignee of another Lender
pursuant to an Assignment and Acceptance. The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the other Lenders and each other party
to a Loan Document may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance
---
executed by the assigning Lender and an Assignee and a processing and
recordation fee of $3,500 (payable by the assignee to the Administrative
Agent), the Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in compliance with this Agreement and in substantially
the form of EXHIBIT A hereto, (i) accept such Assignment
---------
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower and the other Lenders.
(e) Participations. Each Lender may sell participations to one
--------------
or more other financial institutions in or to all or a portion of its rights
and obligations under and in respect of any and all facilities under this
Agreement (including, without limitation, all or a portion of any or all of
its Revolving Credit Commitment hereunder and the Loans owing to it and its
undivided interest in the Letters of Credit); provided, however, that (i)
-------- -------
such Lender's obligations under this Agreement (including, without limitation,
its Revolving Credit Commitment hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, (iv) each participation shall be in a minimum amount of $10,000,000,
and (v) such participant's rights to agree or to restrict such Lender's ability
to agree to the modification, waiver or release of any of the terms of the Loan
Documents, to consent to any action or failure to act by any party to any of
the Loan Documents or any of their respective Affiliates, or to exercise or
refrain from exercising any powers or rights which any Lender may have under
or in respect of the Loan Documents, shall be limited to the right to consent
to (A) increase in the Revolving Credit Commitment of the Lender from whom such
participant purchased a participation, (B) reduction of the principal of, or
rate or amount of interest on the Loans subject to such participation (other
than by the payment or prepayment thereof), (C) postponement of any date fixed
for any payment of principal of, or interest on, the Loan(s) subject to such
participation and (D) release of any guarantor of the Obligations.
(f) Information Regarding the Borrower. Any Lender may,
----------------------------------
subject to the provisions of Section 14.22, in connection with any
-------------
assignment or participation or proposed assignment or participation pursuant
to this Section 14.1, disclose to the assignee or participant or
------------
proposed assignee or participant, any information relating to the Borrower or
its Subsidiaries furnished to such Lender by the Administrative Agent or by
or on behalf of the Borrower.
(g) Payment to Participants. Anything in this Agreement to the
-----------------------
contrary notwithstanding, in the case of any participation, all amounts
payable by the Borrower under the Loan Documents shall be calculated and made
in the manner and to the parties required hereby as if no such participation
had been sold.
(h) Lenders' Creation of Security Interests. Notwithstanding
---------------------------------------
any other provision set forth in this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement (including, without limitation, Obligations owing to it and any
Note held by it) in favor of any Federal Reserve bank in accordance with
Regulation A of the Federal Reserve Board.
14.2. Expenses.
--------
(a) Generally. The Borrower agrees promptly upon demand to
---------
pay, or reimburse the Administrative Agent for the reasonable fees, expenses
and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (but not of
other legal counsel) and for all other reasonable out-of-pocket costs and
expenses incurred by the Administrative Agent or each Arranger in connection
with (i) the preparation, negotiation, and execution of the Loan Documents;
(ii) the preparation, negotiation, execution and interpretation of this
Agreement (including, without limitation, the satisfaction or attempted
satisfaction of any of the conditions set forth in Article VI), the Loan
----------
Documents, and the making of the Loans hereunder; (iii) any amendments,
consents, waivers, assignments, restatements, or supplements to any of
the Loan Documents and the preparation, negotiation, and execution of
the same; and (iv) any other amendments, modifications, agreements,
assignments, restatements or supplements to any of the Loan Documents requested
by Borrower and the preparation, negotiation, and execution of the same.
(b) After Default. The Borrower further agrees to pay or
-------------
reimburse the Administrative Agent, the Arrangers and each of the Lenders
upon demand for all reasonable out-of-pocket costs and expenses, including,
without limitation, reasonable attorneys' fees (including allocated costs of
internal counsel and costs of settlement) incurred by the such entity after
the occurrence and during the continuance of an Event of Default (i) in
enforcing any Loan Document or Obligation, the collection of any Obligation
or exercising or enforcing any other right or remedy available by reason of
such Event of Default; or (ii) in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or in any insolvency or bankruptcy proceeding; (iii)
in commencing, defending or intervening in any litigation or in filing a
petition, complaint, answer, motion or other pleadings in any legal
proceeding relating to the Obligations, a Project, any of the Consolidated
Businesses and related to or arising out of the transactions contemplated
hereby or by any of the other Loan Documents; and (iv) in taking any other
action in or with respect to any suit or proceeding (bankruptcy or otherwise)
described in clauses (i) through (iii) above.
14.3. Indemnity. The Borrower further agrees (a) to defend,
---------
protect, indemnify, and hold harmless the Administrative Agent, the Arrangers
and each and all of the other Lenders and each of their respective officers,
directors, employees, attorneys and agents (collectively, the "Indemnitees")
-----------
from and against any and all liabilities, obligations, losses (other than loss
of profits), damages, penalties, actions, judgments, suits, claims, reasonable
costs, reasonable expenses and reasonable disbursements (excluding any taxes
and including, without limitation, the reasonable fees and disbursements of
counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees shall be
designated a party thereto), imposed on, incurred by, or asserted against such
Indemnitees in any manner relating to or arising out of (i) this Agreement or
the other Loan Documents, the making of the Loans and the issuance of and
participation in Letters of Credit hereunder, the use or intended use of the
proceeds of the Loans or Letters of Credit hereunder, or any of the other
transactions contemplated by the Loan Documents, or (ii) any Liabilities and
Costs relating to violation of any Environmental, Health or Safety Requirements
of Law, the past, present or future operations of the Borrower, any of its
Subsidiaries or any of their respective predecessors in interest, or, the
past, present or future environmental, health or safety condition of any
respective Property of the Borrower or any of its Subsidiaries, the presence
of asbestos-containing materials at any respective Property of the Borrower
or any of its Subsidiaries, or the Release or threatened Release of any
Contaminant into the environment (collectively, the "Indemnified Matters");
-------------------
provided, however, the Borrower shall have no obligation to an Indemnitee
-------- -------
hereunder with respect to Indemnified Matters caused by or resulting from
the willful misconduct or gross negligence of such Indemnitee, as determined
by a court of competent jurisdiction in a non-appealable final judgment; and
(b) not to assert any claim against any of the Indemnitees, on any theory of
liability, for consequential or punitive damages arising out of, or in any
way in connection with, the Revolving Credit Commitments, the Revolving Credit
Obligations, or the other matters governed by this Agreement and the other Loan
Documents. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
14.4. Change in Accounting Principles. If any change in the
-------------------------------
accounting principles used in the preparation of the most recent financial
statements referred to in Sections 8.1 or 8.2 are hereafter required or
------------ ---
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by any Company or the Borrower, as applicable, with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the covenants,
standards or terms found in Article X, the parties hereto agree to enter
---------
into negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria for evaluating
compliance with such covenants, standards and terms by the Borrower shall be the
same after such changes as if such changes had not been made; provided, however,
-------- -------
no change in GAAP that would affect the method of calculation of any of the
covenants, standards or terms shall be given effect in such calculations until
such provisions are amended, in a manner satisfactory to the Administrative
Agent and the Borrower, to so reflect such change in accounting principles.
14.5. Intentionally Omitted.
---------------------
14.6. Ratable Sharing. The Lenders agree among themselves that
---------------
(i) with respect to all amounts received by them which are applicable to the
payment of the Obligations (excluding the fees described in Sections
--------
3.1(g), 5.2(f), and 5.3 and Article XIII) equitable adjustment will be
------ ------ --- ------------
made so that, in effect, all such amounts will be shared among them ratably
in accordance with their Pro Rata Shares, whether received by voluntary
payment, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross-action or by the enforcement of any or all of the
Obligations (excluding the fees described in Sections 3.1(g),
---------------
5.2(f), and 5.3 and Article XIII), (ii) if any of them shall by voluntary
------ --- ------------
payment or by the exercise of any right of counterclaim, setoff, banker's
lien or otherwise, receive payment of a proportion of the aggregate amount of
the Obligations held by it, which is greater than the amount which such
Lender is entitled to receive hereunder, the Lender receiving such excess
payment shall purchase, without recourse or warranty, an undivided interest
and participation (which it shall be deemed to have done simultaneously upon
the receipt of such payment) in such Obligations owed to the others so that
all such recoveries with respect to such Obligations shall be applied ratably
in accordance with their Pro Rata Shares;
provided, however, that if all or part of such excess payment received by
-------- -------
the purchasing party is thereafter recovered from it, those purchases shall
be rescinded and the purchase prices paid for such participations shall be
returned to such party to the extent necessary to adjust for such recovery,
but without interest except to the extent the purchasing party is required to
pay interest in connection with such recovery. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 14.6 may, to the fullest extent permitted by law, exercise all its
------------
rights of payment with respect to such participation as fully as if
such Lender were the direct creditor of the Borrower in the
amount of such participation.
14.7. Amendments and Waivers.
----------------------
(a) General Provisions. Unless otherwise provided for or
------------------
required in this Agreement, no amendment or modification of any provision of
this Agreement or any of the other Loan Documents shall be effective without
the written agreement of the Requisite Lenders (which the Requisite Lenders
shall have the right to grant or withhold in their sole
discretion) and the Borrower; provided, however, that the Borrower's
-------- -------
agreement shall not be required for any amendment or modification of
Sections 12.1 through 12.8 (other than Section 12.7). In the event that
------------- ----
the Administrative Agent shall request the agreement of the Lenders to
any amendment, modification or waiver, if any Lender shall fail to respond
to any such request within fifteen (15) days after receipt of such request,
such Lender's approval thereto shall be deemed to have been given. No
termination or waiver of any provision of this Agreement or any of the other
Loan Documents, or consent to any departure by the Borrower therefrom, shall be
effective without the written concurrence of the Requisite Lenders, which the
Requisite Lenders shall have the right to grant or withhold in their sole
discretion. All amendments, waivers and consents not specifically reserved
to the Administrative Agent, the Arrangers or the other Lenders in Section
-------
14.7(b), 14.7(c), and in other provisions of this Agreement
-----------------------
shall require only the approval of the Requisite Lenders. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Amendments, Consents and Waivers by Affected Lenders. Any
----------------------------------------------------
amendment, modification, termination, waiver or consent with respect to any
of the following provisions of this Agreement shall be effective only by a
written agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1 and 6.2
------------ ---
(except with respect to a condition based upon another provision of this
Agreement, the waiver of which requires only the concurrence of the Requisite
Lenders),
(ii) increase in the amount of such Lender's Revolving Credit
Commitment,
(iii) reduction of the principal of, rate or amount of interest on the
Loans, the Reimbursement Obligations, or any fees or other amounts
payable to such Lender (other than by the payment or prepayment
thereof), and
(iv) postponement or extension of any date (other than the Revolving
Credit Termination Date postponement or extension of which is governed
by Section 14.7(c)(i)) fixed for any payment of principal of, or interest
------------------
on, the Loans, the Reimbursement Obligations or any fees or
other amounts payable to such Lender (except with respect to any
modifications of the application provisions relating to prepayments of
Loans and other Obligations which are governed by Section 4.2(b)).
--------------
(c) Amendments, Consents and Waivers by All Lenders. Any
-----------------------------------------------
amendment, modification, termination, waiver or consent with respect to any
of the following provisions of this Agreement shall be effective only by a
written agreement, signed by each Lender:
(i) postponement of the Revolving Credit Termination Date, or increase
in the Maximum Revolving Credit Amount to any amount in excess of
$175,000,000,
(ii) change in the definition of Requisite Lenders or in the aggregate
Pro Rata Share of the Lenders which shall be required for the Lenders or
any of them to take action hereunder or under the other Loan Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
------------ ------------
(iv) assignment of any right or interest in or under this Agreement or
any of the other Loan Documents by the Borrower,
(v) waiver of any Event of Default under Section 11.1(a), or Section
--------------- -------
11.1(f), and
-------
(vi) amendment or release of the Guaranty.
(d) Administrative Agent Authority. The Administrative Agent
------------------------------
may, but shall have no obligation to, with the written concurrence of any
Lender, execute amendments, modifications, waivers or consents on behalf of
that Lender. Notwithstanding anything to the contrary contained in this
Section 14.7, no amendment, modification, waiver or consent shall
------------
affect the rights or duties of the Administrative Agent under this Agreement
and the other Loan Documents, unless made in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action. Notwithstanding anything herein to the contrary, in the event that
the Borrower shall have requested, in writing, that any Lender agree to an
amendment, modification, waiver or consent with respect to any particular
provision or provisions of this Agreement or the other Loan Documents, and
such Lender shall have failed to state, in writing, that it either agrees or
disagrees (in full or in part) with all such requests (in the case of its
statement of agreement, subject to satisfactory documentation and such other
conditions it may specify) within thirty (30) days after such request, then
such Lender hereby irrevocably authorizes the Administrative Agent to agree
or disagree, in full or in part, and in the Administrative Agent's sole
discretion, to such requests on behalf of such Lender as such Lenders'
attorney-in-fact and to execute and deliver any writing approved by the
Administrative Agent which evidences such agreement as such Lender's duly
authorized agent for such purposes.
14.8. Notices. Unless otherwise specifically provided herein,
-------
any notice or other communication herein required or permitted to be given
shall be in writing and may be personally served, sent by facsimile
transmission or by courier service or United States certified mail and shall
be deemed to have been given when delivered in person or by courier service,
upon receipt of a facsimile transmission, or four (4) Business Days after
deposit in the United States mail with postage prepaid and properly
addressed. Notices to the Administrative Agent pursuant to Articles II, IV
----------- --
or XII shall not be effective until received by the Administrative Agent.
---
For the purposes hereof, the addresses of the parties hereto (until notice
of a change thereof is delivered as provided in this Section 14.8) shall be
------------
as set forth below each party's name on the signature pages hereof or the
signature page of any applicable Assignment and Acceptance, or, as to each
party, at such other address as may be designated by such party in a written
notice to all of the other parties to this Agreement.
14.9. Survival of Warranties and Agreements. All
-------------------------------------
representations and warranties made herein and all obligations of the
Borrower in respect of taxes, indemnification and expense reimbursement shall
survive the execution and delivery of this Agreement and the other Loan
Documents, the making and repayment of the Loans, the issuance and discharge
of Letters of Credit hereunder and, except for the representations and
warranties, the termination of this Agreement other than any of the foregoing
set forth in Section 13.1 or Section 13.2 or Section 13.3 or Section 5.2(f)
------------ ------------ ------------ --------------
shall survive for thirty (30) days after termination of this Agreement.
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of the Administrative Agent or any other
Lender in the exercise of any power, right or privilege under any of the Loan
Documents shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under the Loan Documents are cumulative to and
not exclusive of any rights or remedies otherwise available.
14.11. Payments Set Aside. To the extent that the Borrower
------------------
makes a payment or payments to the Administrative Agent, any Arranger or any
other Lender or any such Person exercises its rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or
any other party, then to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied, and all right and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
14.12. Severability. In case any provision in or obligation
------------
under this Agreement or the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
14.13. Headings. Section headings in this Agreement are
--------
included herein for convenience of reference only and shall not constitute a
part of this Agreement or be given any substantive effect.
14.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND
-------------
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
CONFLICT OF LAWS PRINCIPLES.
14.15. Limitation of Liability. No claim may be made by any
-----------------------
Lender, any Arranger, the Administrative Agent, or any other Person against
any Lender (acting in any capacity hereunder) or the Affiliates, directors,
officers, employees, attorneys or agents of any of them for any consequential
or punitive damages in respect of any claim for breach of contract or any
other theory of liability arising out of or related to the transactions
contemplated by this Agreement, or any act, omission or event occurring in
connection therewith; and each Lender, each Arranger and the Administrative
Agent hereby waives, releases and agrees not to xxx upon any such claim for
any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
14.16. Successors and Assigns. This Agreement and the other
----------------------
Loan Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto
and the successors and permitted assigns of the Lenders. Except as otherwise
provided in Section 10.7, the rights hereunder of the Borrower, or any interest
------------
therein, may not be assigned without the written consent of all Lenders.
14.17. Certain Consents and Waivers of the Borrower.
--------------------------------------------
(a) Personal Jurisdiction. (i) EACH OF THE AGENTS, THE LENDERS
---------------------
AND THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING
JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR
PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT,
WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE AGENTS, THE LENDERS AND
THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH OF THE AGENTS, THE
LENDERS AND THE BORROWER WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE
THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY
LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE
OTHER LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE ADMINISTRATIVE AGENT OR ANY OTHER LENDER. THE BORROWER WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE
ADMINISTRATIVE AGENT OR ANY LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN
THIS SECTION.
(b) Service of Process. THE BORROWER IRREVOCABLY CONSENTS TO
------------------
THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE PROCESS AGENT OR THE BORROWER'S NOTICE ADDRESS
SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
----- --- ----------
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR THE OTHER LENDERS TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE AGENTS AND THE OTHER
--------------------
LENDERS AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. Counterparts; Effectiveness; Inconsistencies. This
--------------------------------------------
Agreement and any amendments, waivers, consents, or supplements hereto may be
executed in counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute
but one and the same instrument. This Agreement shall become effective
against the Borrower and each Agent and Lender on the Closing Date. This
Agreement and each of the other Loan Documents shall be construed to the
extent reasonable to be consistent one with the other, but to the extent that
the terms and conditions of this Agreement are actually inconsistent with the
terms and conditions of any other Loan Document, this Agreement shall govern.
14.19. Limitation on Agreements. All agreements between the
------------------------
Borrower, the Administrative Agent, each Arranger and each Lender in the Loan
Documents are hereby expressly limited so that in no event shall any of the
Loans or other amounts payable by the Borrower under any of the Loan
Documents be directly or indirectly secured (within the meaning of Regulation
U) by Margin Stock.
14.20. Disclaimers. The Administrative Agent, the Arrangers
-----------
and the other Lenders shall not be liable to any contractor, subcontractor,
supplier, laborer, architect, engineer, tenant or other party for services
performed or materials supplied in connection with any work performed on the
Projects, including any TI Work. The Administrative Agent, the Arrangers and
the other Lenders shall not be liable for any debts or claims accruing in
favor of any such parties against the Borrower or others or against any of
the Projects. The Borrower is not and shall not be an agent of any Agent,
the Arrangers or the other Lenders for any purposes and none of the Lenders,
the Arrangers, or the Agents shall be deemed partners or joint venturers with
Borrower. None of the Administrative Agent, the Arrangers or the other
Lenders shall be deemed to be in privity of contract with any contractor or
provider of services to any Project, nor shall any payment of funds directly
to a contractor or subcontractor or provider of services be deemed to create
any third party beneficiary status or recognition of same by any of the
Administrative Agent, the Arrangers or the other Lenders and the Borrower
agrees to hold the Administrative Agent, the Arrangers and the other Lenders
harmless from any of the damages and expenses resulting from such a
construction of the relationship of the parties or any assertion thereof.
14.21. Entire Agreement. This Agreement, taken together with
----------------
all of the other Loan Documents, embodies the entire agreement and
understanding among the parties hereto and supersedes all prior agreements
and understandings, written and oral, relating to the subject matter hereof.
14.22. Confidentiality. Each of the Agents, the Arrangers and
---------------
the Lenders agrees to keep confidential all non-public information provided
to it by the Borrower pursuant to this Agreement that is designated by the
Borrower as confidential; provided that nothing herein shall prevent the
Agents or the Lenders from disclosing any such information (a) to the Agents,
any other Lender or any Affiliate of any Lender (provided such Affiliate is
made aware of the confidentiality of such information and agrees to keep such
information confidential), (b) to any Assignee, Participant or prospective
Assignee or Participant (provided such Person is made aware of the
confidentiality of such information and agrees to keep such information
confidential), (c) to the employees, directors, agents, attorneys,
accountants and other professional advisors of any Lender, Assignee,
Participant, prospective Assignee or Participant who are advised of the
provisions of this Section, (d) upon the request or demand of any
Governmental Authority having or asserting jurisdiction over either Agent or
any Lender, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(f) if requested or required to do so in connection with the exercise of any
remedy hereunder or under any other Loan Document or (i) upon the advice of
counsel that such disclosure is required by law.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWER:
--------
RECKSON OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: RECKSON ASSOCIATES REALTY CORP.
By:
----------------------------------------------------------------
Name:
Title:
Notice Address:
--------------
DOCUMENTATION AGENT
-------------------
AND ARRANGER:
-------------
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
By:________________________
Name:______________________
Title:_____________________
By:________________________
Name:______________________
Title:_____________________
Notice Address, Domestic Lending Office and EuroDollar Lending Office:
Union Bank of Switzerland
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
Pro Rata Share: 50%
Revolving Credit Commitment: $87,500,000
ADMINISTRATIVE AGENTS
---------------------
AND ARRANGER: THE CHASE MANHATTAN BANK
-------------
By:________________________
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Notice Address, Domestic and Eurodollar Lending Office:
------------------------------------------------------
The Chase Manhattan Bank
000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: 000-000-0000
Reference:
with copy of all Notices to:
---------------------------
The Chase Manhattan Bank
000 Xxxxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telecopy: 000-000-0000
Reference:
Pro Rata Share: 50%
Revolving Credit Commitment: $87,500,000
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
LIST OF EXHIBITS AND SCHEDULES
------------------------------
Exhibit A-- Form of Assignment and Acceptance
Exhibit B-- Form of Note
Exhibit C-- Form of Notice of Borrowing
Exhibit D-- Form of Notice of Conversion/Continuation
Exhibit E-- List of Closing Documents
Exhibit F-- Form of Officer's Certificate
Exhibit G-- Sample Calculations of Financial Covenants
Schedule 1.1.1-- Existing Permitted Liens
Schedule 1.1.2-- Permitted Securities Options
Schedule 7.1-A-- Organizational Documents
Schedule 7.1-C-- Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Partnership Agreement
Schedule 7.1-H-- Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I-- Pending Actions
Schedule 7.1-P-- Environmental Matters
Schedule 7.1-Q-- ERISA Matters
Schedule 7.1-T-- Insurance Policies
TABLE OF CONTENTS
-----------------
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.2. Computation of Time Periods . . . . . . . . . . . . . . . . . 34
1.3. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . 34
1.4. Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.2. Use of Proceeds of Loans and Letters of Credit . . . . . . . . 37
2.3. Revolving Credit Termination Date . . . . . . . . . . . . . . 38
2.4. Maximum Credit Facility . . . . . . . . . . . . . . . . . . . 38
2.5. Authorized Agents . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE III
LETTERS OF CREDIT
3.1. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . 39
3.2. Obligations Several . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Revolving Credit Commitments . . . 46
4.2. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4.3. Promise to Repay; Evidence of
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other
Obligations . . . . . . . . . . . . . . . . . . . . . . . 54
5.2. Special Provisions Governing Eurodollar Rate Loans . . . . . . 57
5.3. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE VI
CONDITIONS TO LOANS AND LETTERS OF CREDIT
6.1. Conditions Precedent to the Initial Loans and Letters of Credit 62
6.2. Conditions Precedent to All Subsequent Loans and Letters of
Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower . . . . . . . 65
ARTICLE VIII
REPORTING COVENANTS
8.1. Borrower Accounting Practices . . . . . . . . . . . . . . . . 76
8.2. Financial Reports . . . . . . . . . . . . . . . . . . . . . . 76
8.3. Events of Default . . . . . . . . . . . . . . . . . . . . . . 80
8.4. Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
8.5. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.6. ERISA Notices . . . . . . . . . . . . . . . . . . . . . . . . 81
8.7. Environmental Notices . . . . . . . . . . . . . . . . . . . . 83
8.8. Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . 84
8.9. Notices of Asset Sales and/or
Acquisitions . . . . . . . . . . . . . . . . . . . . . . . 84
8.10. Tenant Notifications . . . . . . . . . . . . . . . . . . . . 85
8.11. Other Reports . . . . . . . . . . . . . . . . . . . . . . . . 85
8.12. Other Information . . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE IX
AFFIRMATIVE COVENANTS
9.1. Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . 86
9.2. Powers; Conduct of Business . . . . . . . . . . . . . . . . . 86
9.3. Compliance with Laws, Etc. . . . . . . . . . . . . . . . . . . 86
9.4. Payment of Taxes and Claims . . . . . . . . . . . . . . . . . 86
9.5. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.6. Inspection of Property; Books and
Records; Discussions . . . . . . . . . . . . . . . . . . . 87
9.7. ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . 87
9.8. Maintenance of Property . . . . . . . . . . . . . . . . . . . 88
9.9. Company Status . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE X
NEGATIVE COVENANTS
10.1. Intentionally Omitted . . . . . . . . . . . . . . . . . . . . 89
10.2. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.3. Investments . . . . . . . . . . . . . . . . . . . . . . . . . 89
10.4. Conduct of Business . . . . . . . . . . . . . . . . . . . . . 90
10.5. Transactions with Partners and
Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 90
10.6. Restriction on Fundamental Changes . . . . . . . . . . . . . 91
10.7. Margin Regulations; Securities Laws . . . . . . . . . . . . . 91
10.8. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
10.9. Organizational Documents . . . . . . . . . . . . . . . . . . 92
10.10. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . 92
10.11. Financial Covenants . . . . . . . . . . . . . . . . . . . . 92
10.12. Negative Covenants with respect to the Company . . . . . . . 95
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . 95
11.2. Rights and Remedies . . . . . . . . . . . . . . . . . . . . . 99
ARTICLE XII
THE AGENTS
12.1. Appointment . . . . . . . . . . . . . . . . . . . . . . . . . 101
12.2. Nature of Duties . . . . . . . . . . . . . . . . . . . . . . 101
12.3. Right to Request Instructions . . . . . . . . . . . . . . . . 102
12.4. Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . 102
12.5. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 103
12.6. Agents Individually . . . . . . . . . . . . . . . . . . . . . 103
12.7. Successor Agents . . . . . . . . . . . . . . . . . . . . . . 103
12.8. Relations Among the Lenders . . . . . . . . . . . . . . . . . 104
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
13.2. Increased Capital . . . . . . . . . . . . . . . . . . . . . . 108
13.3. Changes; Legal Restrictions . . . . . . . . . . . . . . . . . 108
13.4. Replacement of Certain Lenders . . . . . . . . . . . . . . . 109
13.5. Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . 110
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations . . . . . . . . . . . . . . . 110
14.2. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 113
14.3. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 114
14.4. Change in Accounting Principles . . . . . . . . . . . . . . . 115
14.5. Intentionally Omitted . . . . . . . . . . . . . . . . . . . . 116
14.6. Ratable Sharing . . . . . . . . . . . . . . . . . . . . . . . 116
14.7. Amendments and Waivers . . . . . . . . . . . . . . . . . . . 117
14.8. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
14.9. Survival of Warranties and Agreements . . . . . . . . . . . . 119
14.10. Failure or Indulgence Not Waiver;
Remedies Cumulative . . . . . . . . . . . . . . . . . . . 120
14.11. Payments Set Aside . . . . . . . . . . . . . . . . . . . . . 120
14.12. Severability . . . . . . . . . . . . . . . . . . . . . . . . 120
14.13. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 120
14.14. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 120
14.15. Limitation of Liability . . . . . . . . . . . . . . . . . . 121
14.16. Successors and Assigns . . . . . . . . . . . . . . . . . . . 121
14.17. Certain Consents and Waivers of the Borrower . . . . . . . . 121
14.18. Counterparts; Effectiveness;
Inconsistencies . . . . . . . . . . . . . . . . . . . . . 122
14.19. Limitation on Agreements . . . . . . . . . . . . . . . . . . 122
14.20. Disclaimers . . . . . . . . . . . . . . . . . . . . . . . . 123
14.21. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 123
14.22. Confidentiality . . . . . . . . . . . . . . . . . . . . . . 123
