================================================================================
CREDIT AGREEMENT
among
KIMCO REALTY CORPORATION
The Several Lenders
from Time to Time Parties Hereto
THE CHASE MANHATTAN BANK and
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Managers
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of March 2, 1998
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TABLE OF CONTENTS
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SECTION 1 DEFINITIONS............................................................
1.1 Defined Terms ......................................................... 1
1.2 Other Definitional Provisions ......................................... 17
SECTION 2 AMOUNT AND TERMS OF CREDIT FACILITIES ................................. 17
2.1 RESERVED .............................................................. 17
2.2 Commitments ........................................................... 17
2.3 Optional Prepayments .................................................. 19
2.4 Conversion and Continuation Options ................................... 19
2.5 Fees .................................................................. 20
2.6 Interest Rates and Payment Dates ...................................... 20
2.7 Computation of Interest and Fees ...................................... 21
2.8 Inability to Determine Interest Rate; Unavailability of C/D Rate Option 21
2.9 Pro Rata Treatment and Payments ....................................... 22
2.10 Illegality ............................................................ 23
2.11 Requirements of Law ................................................... 23
2.12 Taxes ................................................................. 25
2.13 Indemnity ............................................................. 26
2.14 Change of Lending Office .............................................. 27
2.15 Replacement of Lenders under Certain Circumstances .................... 27
SECTION 3 LETTERS OF CREDIT ..................................................... 27
3.1. L/C Commitment ........................................................ 27
3.2. Procedure for Issuance of Letters of Credit ........................... 28
3.3. Fees and Other Charges ................................................ 28
3.4. L/C Participations .................................................... 28
3.5. Reimbursement Obligation of the Borrower .............................. 29
3.6. Obligations Absolute .................................................. 30
3.7. Letter of Credit Payments ............................................. 30
3.8. Applications .......................................................... 30
SECTION 4 REPRESENTATIONS AND WARRANTIES ........................................ 30
4.1 Financial Condition ................................................... 30
4.2 No Change ............................................................. 31
4.3 Corporate Existence; Compliance with Law .............................. 31
4.4 Corporate Power; Authorization; Enforceable Obligations ............... 31
4.5 No Legal Bar .......................................................... 32
4.6 No Material Litigation ................................................ 32
4.7 No Default ............................................................ 32
4.8 Ownership of Property ................................................. 32
4.9 Intellectual Property ................................................. 32
4.10 No Burdensome Restrictions ............................................ 32
4.11 Taxes ................................................................. 32
4.12 Federal Regulations ................................................... 33
4.13 ERISA ................................................................. 33
4.14 Investment Company Act; Other Regulations ............................. 33
4.15 Subsidiaries .......................................................... 33
4.16 Purpose of Loans ...................................................... 33
4.17 Environmental Matters ................................................. 33
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4.18 Insurance ............................................................ 34
4.19 Condition of Properties .............................................. 34
4.20 Benefit of Loans ..................................................... 35
4.21 REIT ................................................................. 35
SECTION 5 CONDITIONS PRECEDENT ................................................. 35
5.1 Conditions to Initial Extension of Credit ............................ 35
5.2 Conditions to Each Extension of Credit ............................... 36
SECTION 6 AFFIRMATIVE COVENANTS ................................................ 36
6.1 Financial Statements ................................................. 37
6.2 Certificates; Other Information ...................................... 37
6.3 Payment of Obligations ............................................... 38
6.4 Maintenance of Existence, etc ........................................ 38
6.5 Maintenance of Property; Insurance ................................... 38
6.6 Inspection of Property; Books and Records; Discussions ............... 38
6.7 Notices .............................................................. 38
6.8 Environmental Laws ................................................... 39
SECTION 7 NEGATIVE COVENANTS ................................................... 39
7.1 Financial Covenants .................................................. 40
7.2 Limitation on Fundamental Changes .................................... 40
7.3 Limitation on Restricted Payments .................................... 40
7.4 Limitation on Investments, Loans and Advances ........................ 41
7.5 Limitation on Transactions with Affiliates ........................... 41
7.6 Limitation on Changes in Fiscal Year ................................. 41
7.7 Limitation on Lines of Business, Issuance of Commercial Paper,
Creation of Subsidiaries, Negative Pledges ........................... 41
SECTION 8. EVENTS OF DEFAULT .................................................... 42
SECTION 9. THE ADMINISTRATIVE AGENT ............................................. 45
9.1 Appointment .......................................................... 45
9.2 Delegation of Duties ................................................. 45
9.3 Exculpatory Provisions ............................................... 45
9.4 Reliance by Administrative Agent ..................................... 46
9.5 Notice of Default .................................................... 46
9.6 Non-Reliance on Administrative Agent and Other Lenders ............... 46
9.7 Indemnification ...................................................... 47
9.8 Administrative Agent in Its Individual Capacity ...................... 47
9.9 Successor Administrative Agent ....................................... 47
9.10 The Co-Managers ...................................................... 48
SECTION 10 MISCELLANEOUS ........................................................ 48
10.1 Amendments and Waivers ............................................... 48
10.2 Notices .............................................................. 48
10.3 No Waiver; Cumulative Remedies........................................ 49
10.4 Survival of Representations and Warranties............................ 49
10.5 Payment of Expenses and Taxes......................................... 49
10.6 Successors and Assigns................................................ 50
10.7 Participations........................................................ 50
10.8 Assignments........................................................... 51
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10.9 The Register; Disclosure; Pledges to Federal Reserve Banks............ 51
10.10 Adjustments; Set-off ................................................. 52
10.11 Counterparts ......................................................... 52
10.12 Severability ......................................................... 52
10.13 Integration .......................................................... 53
10.14 GOVERNING LAW ........................................................ 53
10.15 Submission To Jurisdiction; Waivers .................................. 53
10.16 Acknowledgements ..................................................... 53
10.17 WAIVERS OF JURY TRIAL ................................................ 54
10.18 Confidentiality ...................................................... 54
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CREDIT AGREEMENT, dated as of March 2, 1998, among KIMCO REALTY
CORPORATION, a Maryland corporation (the "Borrower"), the several banks,
financial institutions and other entities from time to time parties to this
Agreement (the "Lenders"), THE CHASE MANHATTAN BANK and THE FIRST NATIONAL BANK
OF CHICAGO, as co-managers (in such capacity, the "Co-Managers"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as administrative agent for the
Lenders hereunder (in such capacity, the "Administrative Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by Chase
in connection with extensions of credit to debtors); "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b) the C/D Assessment
Rate; "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following
such day), or, if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in New
York City received at approximately 10:00 A.M., New York City time, on such
day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected
by it; and "Federal Funds Effective Rate" shall mean, for any day, 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 on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base
CD Rate or the Federal Funds Effective Rate, or both, for any reason,
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms thereof, the ABR shall
be determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances giving
rise to such inability no longer exist. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
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"ABR Loans": Revolving Credit Loans the rate of interest applicable to
which is based upon the ABR.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Aggregate Outstanding Extensions of Credit": as to any Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Credit Loans made by such Lender then outstanding and (b)
such Lender's Commitment Percentage of the L/C Obligations then
outstanding.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": with respect to each Revolving Credit Loan at any
date, the applicable percentage per annum set forth below based upon the
Status on such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
------ ------ ------ ------ ------
Eurodollar Loans,
C/D Rate Loans and 0.25% 0.35% 0.50% 0.85% 1.50%
Money Market Loans
ABR Loans 0% 0% 0% 0% 0.35%
"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a Letter
of Credit.
"Available Commitment": as to any Lender, at any time of
determination, an amount equal to such Lender's Commitment at such time
minus such Lender's Aggregate Outstanding Extensions of Credit at such
time.
"Board": the Board of Governors of the Federal Reserve System (or any
successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
Section 2.2(d) as a date on which the Borrower requests the Lenders to make
Revolving Credit Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close, except that, when used in connection with a Eurodollar Loan with
respect to which the Eurodollar Rate is determined based upon the Telerate
screen in accordance with the definition of Eurodollar Rate, "Business Day"
shall mean any Business Day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England and New York,
New York.
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"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than one year from
the date of acquisition, (ii) time deposits and certificates of deposit
having maturities of not more than one year from the date of acquisition of
any Lender or of any domestic commercial bank the senior long-term
unsecured debt of which is rated at least A or the equivalent thereof by
S&P or A2 or the equivalent thereof by Xxxxx'x and having capital and
surplus in excess of $500,000,000, (iii) repurchase obligations with a term
of not more than seven days for underlying securities of the types
described in clauses (i) and (ii) entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper rated
at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent
thereof by Xxxxx'x and in either case maturing within 90 days after the
date of acquisition and (v) investments in money market funds that have
assets in excess of $2,000,000,000, are managed by recognized and
responsible institutions and invest all of their assets in (x) obligations
of the types referred to in clauses (i), (ii), (iii) and (iv) above and (y)
commercial paper having at least the rating described in clause (iv) above
and maturing within 270 days after the date of acquisition.
"C/D Assessment Rate": for any day as applied to any C/D Rate Loan or
any ABR Loan, the annual assessment rate in effect on such day which is
payable by a member of the Bank Insurance Fund classified as adequately
capitalized and within supervisory subgroup "B" (or a comparable successor
assessment risk classification) within the meaning of 12 C.F.R. ss.
327.3(d) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States.
"C/D Base Rate": with respect to each day during each Interest Period
pertaining to a C/D Rate Loan, the rate of interest per annum notified to
the Administrative Agent by Chase as the average rate bid at 9:00 A.M., New
York City time, or as soon thereafter as practicable, on the first day of
such Interest Period by a total of three certificate of deposit dealers of
recognized standing selected by Chase for the purchase at face value from
Chase of its certificates of deposit in an amount comparable to the C/D
Rate Loan of Chase to which such Interest Period applies and having a
maturity comparable to such Interest Period.
"C/D Rate": with respect to each day during each Interest Period
pertaining to a C/D Rate Loan, a rate per annum determined for such day
(rounded upward to the nearest 1/100th of 1%) equal to the C/D Base Rate
plus the C/D Assessment Rate.
"C/D Rate Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the C/D Rate.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement
for a Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars having a maturity of
30 days or more.
"C/D Tranche": the collective reference to C/D Rate Loans the then
current Interest Periods with respect to all of which begin on the same
date and end on the same later date
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(whether or not such Loans shall originally have been made on the same
day).
"Chase": The Chase Manhattan Bank.
"Closing Date": March 2, 1998.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Co-Managers": as defined in the preamble hereto.
"Commitment": as to any Lender, the obligation of such Lender (if any)
to make Revolving Credit Loans to and/or issue or participate in Letters of
Credit issued on behalf of the Borrower hereunder in an aggregate principal
and/or face amount at any one time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 1.1, as such amount may be
changed from time to time in accordance with the provisions of this
Agreement.
"Commitment Fee": as defined in Section 2.5(a).
"Commitment Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the aggregate
Commitments of all Lenders (or, at any time after the Commitments shall
have expired or terminated, the percentage which the aggregate principal
amount of such Lender's Revolving Credit Loans then outstanding constitutes
of the aggregate principal amount of the Revolving Credit Loans of all
Lenders then outstanding).
"Commitment Period": the period from and including the Closing Date to
but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Consolidated Adjusted Cash Flow": for any period, (a) Consolidated
Cash Flow for such period minus (b) an amount equal to 0.25 times the
aggregate gross leasable area (measured in square feet) of the shopping
centers located on the Properties as of the last day of such period.
"Consolidated Cash Flow": for any period of two consecutive fiscal
quarters (a "Cash Flow Test Period"), an amount equal to (a) Funds From
Operations for such period plus (b) Consolidated Interest Expense for such
period minus (c) the amount (if any) by which (i) the sum of (x) management
fee income of the Borrower and its consolidated Subsidiaries included in
Funds From Operations for such period and (y) other income of the Borrower
and its consolidated Subsidiaries included in Funds From Operations for
such period not attributable to the Properties exceeds (ii) 115% of the sum
of (x) management fee income of the Borrower and its consolidated
Subsidiaries included in Funds From Operations for the corresponding period
of two consecutive fiscal quarters of the Borrower ending on the date which
is one year prior to the last day of such Cash Flow Test Period and (y)
other income of the Borrower and its consolidated Subsidiaries included in
Funds From Operations for such corresponding period not attributable to the
Properties.
"Consolidated Debt Service": for any period of two consecutive fiscal
quarters (a "Debt Service Test Period"), (a) Consolidated Interest Expense
for such period plus (b) the aggregate
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amount of scheduled principal payments on Indebtedness (excluding optional
prepayments and scheduled principal payments in respect of any Indebtedness
which is payable in a single installment at final maturity) required to be
made during such period by the Borrower or any of its consolidated
Subsidiaries; provided, that, in the case of any Indebtedness which
amortizes in annual installments, (i) only 50% of the principal amount of
any such annual installment which is payable during any Debt Service Test
Period shall be included in Consolidated Debt Service for such Debt Service
Test Period and (ii) in the event that no annual installment is payable in
respect of a particular item of such Indebtedness during a Debt Service
Test Period, but an annual installment in respect of such Indebtedness is
payable during the period of two consecutive fiscal quarters commencing
immediately after such Debt Service Test Period, 50% of the amount of such
annual installment shall nevertheless be included in Consolidated Debt
Service for such Debt Service Test Period.
"Consolidated Interest Expense": for any period, the amount of
interest expense of the Borrower and its Subsidiaries for such period on
the aggregate principal amount of their Indebtedness, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Modified Cash Flow": for any period of two consecutive
fiscal quarters of the Borrower, (a) Consolidated Cash Flow for such period
minus (b) the aggregate amount of Property Net Operating Income
attributable to each Identified Property with respect to such period, in
each case from the date of acquisition of such Identified Property through
the last day of such period.
"Consolidated Net Income": for any period, consolidated net income (or
loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any other Person accrued prior to
the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries and (b) the
undistributed earnings of any Subsidiary or Joint Venture to the extent
that the declaration or payment of dividends or similar distributions by
such Subsidiary or Joint Venture is not at the time permitted by the terms
of any Contractual Obligation or Requirement of Law applicable to such
Subsidiary or Joint Venture.
"Consolidated GAAP Net Worth": at any date of determination, all items
which in conformity with GAAP would be included under shareholders' equity
on a consolidated balance sheet of the Borrower and its Subsidiaries at
such date.
"Consolidated Net Worth": at any date of determination, an amount
equal to (a) Gross Asset Value as of such date minus (b) Consolidated Total
Indebtedness as of such date.
"Consolidated Secured Indebtedness": as of any date of determination,
the sum of (a) the aggregate principal amount of all Indebtedness of the
Borrower and its Subsidiaries outstanding at such date which does not
constitute Unsecured Indebtedness and (b) the excess, if any, of (i) the
aggregate principal amount of all Unsecured Indebtedness of the
Subsidiaries of the Borrower over (ii) $10,000,000, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Senior Unsecured Indebtedness": as of any date of
determination, the sum of (a) the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries outstanding at such date
which constitutes Unsecured Indebtedness (excluding (i) Indebtedness which
is contractually subordinated to the Indebtedness of the Borrower and its
Subsidiaries under the Loan Documents on customary terms acceptable to the
Administrative Agent, (ii) Indebtedness of the Borrower and its
Subsidiaries under the Loan Documents and (iii)
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Indebtedness incurred pursuant to any commitment referred to in clause (c)
below), (b) the aggregate Commitments then in effect and (c) the aggregate
commitments then in effect with respect to any other unsecured committed
line of credit extended to the Borrower or any of its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Indebtedness": as of any date of determination,
all Indebtedness of the Borrower and its Subsidiaries outstanding at such
date, determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect, in each case
to the extent the foregoing are applicable to the Borrower, any Subsidiary
or any Joint Venture or any of their respective assets or properties.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate of interest determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period. In
the event that such rate does not appear on Page 3750 of the Telerate
Service (or otherwise on such service), the "Eurodollar Rate" shall be
determined by reference to such other publicly available service for
displaying eurodollar rates as may be agreed upon by the Administrative
Agent and the Borrower or, in the absence of such agreement, the
"Eurodollar Rate" shall instead be the rate per annum notified to the
Administrative Agent by Chase as the rate at which Chase is offered Dollar
deposits at or about 10:00 A.M., New York City time, two Business Days
prior to the beginning of such Interest Period, in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery on
the first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of its Eurodollar Loan to
be outstanding during such Interest Period.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
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"Event of Default": any of the events specified in Section 8, provided
that any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Federal Funds Effective Rate": as defined in the definition of "ABR".
"Final Date": as defined in Section 2.11(e).
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Funds From Operations": for any period, (a) Consolidated Net Income
for such period without giving effect to depreciation and amortization,
gains or losses from extraordinary items, gains or losses on sales of real
estate, gains or losses on investments in marketable securities and any
provisions/benefits for income taxes for such period plus (b) funds from
operations of unconsolidated joint ventures for such period, all determined
on a consistent basis for such period.
"GAAP": generally accepted accounting principles in the United States
of America consistent with those utilized in preparing the audited
financial statements referred to in Section 4.1.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Gross Asset Value": as of the last day of any period of two
consecutive fiscal quarters of the Borrower, an amount equal to the sum of
(a) 2 multiplied by an amount equal to (i) Consolidated Modified Cash Flow
for such period divided by (ii) 0.105, (b) Unrestricted Cash and Cash
Equivalents as of such day and (c) an amount equal to 75% of the aggregate
purchase price paid by the Borrower and its Subsidiaries to acquire each
Identified Property with respect to such period.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation (determined without duplication) of (a) the guaranteeing
person or (b) another Person (including, without limitation, any bank under
any letter of credit) to induce the creation of which the guaranteeing
person has issued a reimbursement, counterindemnity or similar obligation,
in either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the maximum stated amount of the
primary obligation relating to
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such Guarantee Obligation (or, if less, the maximum stated liability set
forth in the instrument embodying such Guarantee Obligation), provided,
that, in the absence of any such stated amount or stated liability, the
amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined
by the Borrower in good faith.
"Identified Property": with respect to any period of two consecutive
fiscal quarters of the Borrower, any Property acquired by the Borrower or
any of its Subsidiaries during such period and designated as an "Identified
Property" for such period by the Borrower by written notice to the
Administrative Agent concurrently with the delivery of any compliance
certificate pursuant to Section 6.2(b); provided, that, after giving effect
to such designation (and the calculation of Gross Asset Value as a result
thereof), the amount described in clause (c) of the definition of Gross
Asset Value for such period shall not exceed 20% of such Gross Asset Value.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than current trade liabilities incurred in the ordinary course of business
and payable in accordance with customary practices), to the extent such
obligations constitute indebtedness for the purposes of GAAP, (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture
or similar instrument, (d) all obligations of such Person under Financing
Leases, (e) all obligations of such Person in respect of acceptances issued
or created for the account of such Person, (f) all Guarantee Obligations of
such Person (excluding, in the case of the Borrower, Guarantee Obligations
of the Borrower in respect of primary obligations of any Subsidiary), and
(g) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable
for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
calendar month to occur while such Loan is outstanding and the Termination
Date, (b) as to any Eurodollar Loan or C/D Rate Loan, the last day of each
calendar month to occur while such Loan is outstanding and the last day of
the Interest Period with respect thereto and (c) as to any Money Market
Loans, the Money Market Loan Maturity Date applicable thereto.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two or three months thereafter, as selected by
the Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two or three months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto;
and (b) with respect to any C/D Rate Loan:
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(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such C/D Rate
Loan and ending 30, 60 or 90 days thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such C/D Rate Loan and
ending 30, 60 or 90 days thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than two
Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) if any Interest Period pertaining to a C/D Rate Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day; and
(3) any Interest Period pertaining to a Eurodollar Loan that begins on
the last Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month.
"Issuing Lender": Chase, in its capacity as issuer of any Letter of
Credit.
"Joint Venture": any joint venture, partnership or other
minority-owned entity (other than a Subsidiary) in which the Borrower or
any of its Subsidiaries owns an interest.
"L/C Commitment": $25,000,000.
"L/C Fee Payment Date": with respect to each Letter of Credit, the
last day of each March, June, September and December to occur while such
Letter of Credit is outstanding and the date on which such Letter of Credit
shall expire or be cancelled or fully drawn.
"L/C Fee Rate": with respect to each Letter of Credit at any date, the
applicable percentage per annum set forth below based upon the Status on
such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
------ ------ ------ ------ ------
0.25% 0.35% 0.50% 0.85% 1.50%
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
which have not then been reimbursed pursuant to Section 0.
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"L/C Participants": the collective reference to all the Lenders other
than the Issuing Lender.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 0.
"Lien": any mortgage, pledge, hypothecation, assignment (including any
collateral assignment but excluding any assignment of an asset made in lieu
of a sale thereof where the assignor is paid the fair market value of such
asset by the assignee and the assignee assumes all of the rights and
obligations attributable to ownership of such asset), deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"Loan Documents": this Agreement, the Notes, the Applications and the
Subsidiary Guarantee.
"Loan Parties": the Borrower and the Subsidiary Guarantors.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its obligations under any Loan Document
to which it is a party, (c) the ability of the Guarantors, taken as a
whole, to perform their respective obligations under the Subsidiary
Guarantee or (d) the validity or enforceability of this Agreement or any of
the other Loan Documents or the rights or remedies of the Administrative
Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Money Market Loan Maturity Date": with respect to any Money Market
Loan, the maturity date requested by the Borrower in connection therewith
(which date shall in no event be later than the earlier of (a) 29 days
after the Borrowing Date thereof or (b) the Termination Date).
"Money Market Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Money Market Rate.
"Money Market Rate": with respect to any proposed Money Market Loan,
the quoted rate per annum obtained by the Administrative Agent with respect
thereto, and accepted by each Lender in its sole discretion, no later than
10:00 A.M., New York City time, two Business Days prior to the requested
Borrowing Date (or, in the case of Money Market Loans having a Money Market
Loan Maturity Date of six days or less from the relevant Borrowing Date,
the quoted rate per annum obtained by the Administrative Agent with respect
thereto, and accepted by each Lender in its sole discretion, no later than
one hour after the quote is obtained by the Administrative Agent, which
quote shall in no event be obtained later than 12:00 Noon, New York City
time, on the relevant Borrowing Date).
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"Money Market Tranche": the collective reference to Money Market Loans
having the same Borrowing Date and Money Market Loan Maturity Date.
"Moody's": Xxxxx'x Investors Service, Inc. and its successors.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in Section 2.12(a).
"Non-Recourse Indebtedness": Indebtedness the documentation with
respect to which expressly provides that (a) the lender(s) thereunder (and
any agent for such lender(s)) may not seek a money judgment against the
Borrower and/or any Subsidiary and (b) recourse for payment in respect of
such Indebtedness is limited to those assets or Capital Stock of the Person
issuing such Indebtedness which secure such Indebtedness (except in the
case of customary indemnities contained in such documentation, provided
that if a claim is made in connection with such indemnities, such claim
shall not constitute Non-Recourse Indebtedness for the purposes of this
Agreement).
"Non-U.S. Lender": as defined in Section 2.12(b).
"Note": as defined in Section 2.2(b).
"Operations and Maintenance Plan": the Borrower's operations and
maintenance plan with respect to environmental matters attached hereto as
Exhibit G.
"Owned Property": (a) each Property wholly owned in fee by the
Borrower or any Subsidiary or Joint Venture and (b) each Property
("Groundlease Properties") as to which (i) the improvements are wholly
owned in fee by the Borrower or any Subsidiary or Joint Venture and (ii)
the land is subject to a valid Qualified Leasehold Interest in favor of the
Borrower or such Subsidiary or Joint Venture, provided, that (x) the
aggregate Property Net Operating Income in respect of Groundlease
Properties included in any calculation of Value of Unencumbered Properties
for any period shall not exceed 15% of the aggregate Property Net Operating
Income with respect to all Unencumbered Properties for such period and (y)
the aggregate Property Net Operating Income in respect of Groundlease
Properties as to which the leasehold interest is not a Qualified
Mortgageable Leasehold Interest included in any calculation of Value of
Unencumbered Properties for any period shall not exceed 10% of the
aggregate Property Net Operating Income with respect to all Unencumbered
Properties for such period.
As used in this definition:
"Qualified Leasehold Interest" means any leasehold interest which
(i) may be transferred and/or assigned without the consent of the
lessor (or as to which the lease expressly provides that (x) such
lease may be transferred and/or assigned with the consent of the
lessor and (y) such consent shall not be unreasonably withheld or
delayed) and (ii) has a remaining term of at least 40 years.
"Qualified Mortgageable Leasehold Interest" means any Qualified
Leasehold Interest with respect to which (i) a security interest may
be granted without the consent of the lessor and (ii) the lease
governing such leasehold interest expressly provides that (x) the
lessor shall notify any holder of a security interest in such
leasehold
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interest of the occurrence of any default by the lessee under such
lease and shall afford such holder the right to cure such default and
(y) 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.
"Participant": as defined in Section 10.7.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Liens": (a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower
or its Subsidiaries, as the case may be, in conformity with GAAP; (b)
mechanics', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period of more than
90 days or which are being contested in good faith by appropriate
proceedings; and (c) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Property": each parcel of real property (including the shopping
center thereon) owned or operated by the Borrower, any Subsidiary or any
Joint Venture.
"Property Net Operating Income": with respect to any Property, for any
period, an amount equal to the excess, if any, of (a) Property Gross
Revenues in respect of such Property for such period over (b) Property
Operating Expenses in respect of such Property for such period.
"Property Gross Revenues": with respect to any Property, for any
period, all gross income, revenues and consideration, of whatever form or
nature, received by or paid to or for the account or benefit of the Person
owning such Property (and, if such Person is a Joint Venture or a
Subsidiary which is not a Wholly Owned Subsidiary, distributed or
distributable to the Borrower or any Wholly Owned Subsidiary), in each
instance during such period, in connection with the ownership, operation,
leasing and occupancy of such Property, including, without limitation, the
following: (a) amounts received under the leases, including, without
limitation base rent, escalation, overage, additional, participation,
percentage and similar rentals, late charges and interest payments and
amounts received on account of maintenance or service charges, real estate
taxes, assessments, utilities, air conditioning and heating and other
administrative, management, operating, leasing and maintenance expenses for
such property, but excluding until earned security deposits, prepaid rents
and other refundable receipts, (b) rents and receipts from licenses,
concessions, vending machines and similar items, (c) parking fees and
rentals, (d) other fees, charges or payments not denominated as rental of
office, retail, storage, parking or other space in such property, and (e)
payments received as consideration, in whole or
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in part, for the cancellation, modification, extension or renewal of
leases; but in any event excluding the proceeds of any financing in respect
of all or any portion of such Property.
"Property Operating Expenses": with respect to any Property, for any
period, the sum of (I) all expenses incurred by the Borrower and its
Subsidiaries during such period with respect to the ownership, operation,
leasing and occupancy of such Property (including expenses payable by any
Joint Venture to the extent the Borrower or any of its Subsidiaries is
liable therefor), including, without limitation, the following: (a) real
estate taxes; (b) special assessments or similar charges paid during such
period; (c) personal property taxes; (d) costs of utilities, air
conditioning and heating; (e) maintenance and repair costs of a non-capital
nature; (f) operating expenses and fees; (g) wages and salaries of on-site
employees engaged in the operation and management of such Property,
including employers' social security taxes and other taxes, insurance
benefits and the like, levied on or with respect to such wages or salaries;
(h) premiums payable for insurance carried on or with respect to such
Property; (i) advertising and promotion costs; (j) rental expense and (k)
in the case of any Property owned or operated by a Joint Venture, any
obligation of the Borrower or any of its Subsidiaries (contingent or
otherwise) to contribute funds to such Joint Venture and (II) a reserve in
respect of management fees and expenses equal to 5% of Property Gross
Revenues for such period with respect to such Property. The following shall
be excluded from Property Operating Expenses: (1) foreign, U.S., state and
local income taxes, franchise taxes or other taxes based on income, (2)
depreciation, amortization and any other non-cash deduction for income tax
purposes, (3) interest expenses of the Person owning such Property and (4)
any expenditures made for capital improvements and the cost of leasing
commissions.
"Purchasing Lender": as defined in Section 10.8(a).
"Rating Agencies": the collective reference to S&P and Moody's.
"Register": as defined in Section 10.9(a).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 0 for amounts drawn under
Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Xxx.xx. 2615.
"Required Lenders": at any date, the holders of 66-2/3% of the
aggregate Commitments, or, if the Commitments have been terminated, of the
aggregate unpaid principal amount of the Revolving Credit Loans and L/C
Obligations.
"Required Remedial Lenders": at any date, the holders of 66-2/3% of
the aggregate Commitments.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each
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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.
"Responsible Officer": the chief executive officer and the president
of the Borrower or, with respect to financial matters, the chief financial
officer of the Borrower.
"Revolving Credit Loan": any loan made by any Lender pursuant to this
Agreement.
"S&P": Standard & Poor's Ratings Group and its successors.
"Significant Subsidiary": at any date of determination, any Subsidiary
of the Borrower which at such date owns or operates one or more Properties
having an aggregate Equity Value in excess of $10,000,000. For the purposes
of this definition, "Equity Value" means:
(a) in the case of any Property owned or operated by the Borrower
or any of its Subsidiaries on October 1, 1996, (i) 2 multiplied by an
amount equal to (x) Property Net Operating Income of such Property for
the period of two consecutive fiscal quarters of the Borrower ending
March 31, 1997 divided by (y) 0.105 minus (ii) the aggregate
outstanding principal amount of any Indebtedness secured by such
Property as of the last day of such period; and
(b) in the case of any other Property, the aggregate purchase
price paid by the Borrower or any of its Subsidiaries in connection
with the acquisition of such Property (excluding (i) the principal
amount of any Indebtedness secured by such Property and assumed in
connection with the acquisition thereof and (ii) if such Property is
acquired subject to Indebtedness, the principal amount of such
Indebtedness).
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Status": as to the Borrower, the existence of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status, as the case
may be.
As used in this definition:
"Level I Status" exists at any date if, at such date, the Borrower has
a long-term senior unsecured debt rating of AAA or better by S&P and Aaa or
better by Xxxxx'x;
"Level II Status" exists at any date if, at such date, Level I Status
does not exist and the Borrower has a long-term senior unsecured debt
rating of AA- or better by S&P and Aa3 or better by Xxxxx'x;
"Level III Status" exists at any date if, at such date, neither Level
I Status nor Level II Status exists and the Borrower has a long-term senior
unsecured debt rating of A- or better by S&P and A3 or better by Xxxxx'x;
"Level IV Status" exists at any date if, at such date, neither Level I
Status, Level II Status nor Level III Status exists and the Borrower has a
long-term senior unsecured debt rating of BBB- or better by S&P and Baa3 or
better by Xxxxx'x; and
"Level V Status" exists at any date if, at such date, none of Level I
Status, Level II Status, Level III Status or Level IV Status exists;
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provided that if S&P and/or Xxxxx'x shall cease to issue ratings of debt
securities of real estate investment trusts generally, then the
Administrative Agent and the Borrower shall negotiate in good faith to
agree upon a substitute rating agency or agencies (and to correlate the
system of ratings of each substitute rating agency with that of the rating
agency for which it is substituting) and (a) until such substitute rating
agency or agencies are agreed upon, Status shall be determined on the basis
of the rating assigned by the other rating agency (or, if both S&P and
Xxxxx'x shall have so ceased to issue such ratings, on the basis of the
Status in effect immediately prior thereto) and (b) after such substitute
rating agency or agencies are agreed upon, Status shall be determined on
the basis of the rating assigned by the other rating agency and such
substitute rating agency or the two substitute rating agencies, as the case
may be.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantee": the Guarantee to be executed and delivered by
each Subsidiary of the Borrower, substantially in the form of Exhibit C, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Subsidiary Guarantor": each Subsidiary of the Borrower party to the
Subsidiary Guarantee.
"Termination Date": May __, 1998.
"Tranche": any C/D Tranche, Eurodollar Tranche or Money Market Tranche
in respect of Revolving Credit Loans.
"Transferee": as defined in Section 10.9(b).
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan, a
Eurodollar Loan, a C/D Rate Loan or a Money Market Loan.
"Unencumbered": with respect to any asset, at any date of
determination, the circumstance that such asset on such date (a) is not
subject to any Liens or claims (including restrictions on transferability
or assignability) of any kind (including any such Lien, claim or
restriction imposed by the organizational documents of any Subsidiary or
Joint Venture, but excluding Permitted Liens and, in the case of any
Qualified Leasehold Interest (to the extent permitted by the definition
thereof), restrictions on transferability or assignability in respect of
such leasehold interest), (b) is not subject to any agreement (including
(i) any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset and (ii) if applicable, the
organizational documents of any Subsidiary or Joint Venture) which
prohibits or limits the ability of the Borrower or any of its Subsidiaries
to create, incur, assume or suffer to exist any Lien upon any assets or
Capital Stock of the Borrower or any of its Subsidiaries (excluding (x) any
agreement which limits generally the amount of secured Indebtedness which
may be incurred by the Borrower and its Subsidiaries and (y) any lease with
respect to a Qualified Leasehold Interest which is not a Qualified
Mortgageable Leasehold
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Interest, so long as such restriction applies only to the leasehold
interest created by such lease) and (c) is not subject to any agreement
(including any agreement governing Indebtedness incurred in order to
finance or refinance the acquisition of such asset) which entitles any
Person to the benefit of any Lien (other than Permitted Liens) on any
assets or Capital Stock of the Borrower or any of its Subsidiaries, or
would entitle any Person to the benefit of any Lien (other than Permitted
Liens) on such assets or Capital Stock upon the occurrence of any
contingency (including, without limitation, pursuant to an "equal and
ratable" clause). For the purposes of this Agreement, any Owned Property of
a Subsidiary which is not a Wholly Owned Subsidiary or of a Joint Venture
shall not be deemed to be Unencumbered unless both (i) such Property and
(ii) all Capital Stock of such Subsidiary or Joint Venture owned by the
Borrower or any of its Subsidiaries is Unencumbered.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"Unrestricted Cash and Cash Equivalents": at any date of
determination, the sum of (a) the aggregate amount of Unrestricted cash
then held by the Borrower or any of its consolidated Subsidiaries and (b)
the aggregate amount of Unrestricted Cash Equivalents (valued at the lower
of cost and fair market value) then held by the Borrower or any of its
consolidated Subsidiaries. As used in this definition, "Unrestricted"
means, with respect to any asset, the circumstance that such asset is not
subject to any Liens or claims of any kind in favor of any Person. It is
understood that, for the purposes of this definition, any asset held by the
Borrower or any of its Subsidiaries as security for any obligations owing
to the Borrower or any of its Subsidiaries by any other Person shall not be
deemed to be Unrestricted.
"Unsecured Indebtedness": all Indebtedness of the Borrower and its
Subsidiaries which is not secured by a Lien on any income, Capital Stock,
property or asset of the Borrower or any of its Subsidiaries.
"Value of Unencumbered Properties": for any period of two consecutive
fiscal quarters, an amount equal to 2 multiplied by (a) the aggregate
Property Net Operating Income with respect to the Unencumbered Owned
Properties for such period divided by (b) 0.105.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor which is
a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
any other Loan Document or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) As used herein and in any other Loan Document, and any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
relating to the Borrower and its Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this
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Agreement, and Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITIES
2.1 RESERVED. THIS SECTION INTENTIONALLY OMITTED
2.2 Commitments. (a) Revolving Credit Loans. (i) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
to the Borrower from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding which, when added to such Lender's
Commitment Percentage of the then outstanding L/C Obligations, does not exceed
the amount of such Lender's Commitment. During the Commitment Period the
Borrower may use the Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall, at any time, the sum of the Aggregate Outstanding
Revolving Extensions of Credit of all of the Lenders exceed the aggregate
Commitments then in effect.
(ii) The Revolving Credit Loans may from time to time be (v) Eurodollar
Loans, (w) ABR Loans, (x) C/D Rate Loans, (y) Money Market Loans or (z) a
combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2(d) and 2.4, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan or a C/D Rate Loan
after the day that is one month or 30 days, respectively, prior to the
Termination Date.
(b) Notes. The Revolving Credit Loans made by each Lender shall be
evidenced by a promissory note of the Borrower, substantially in the form of
Exhibit A-2, with appropriate insertions as to payee, date and principal amount
(a "Note"), payable to the order of such Lender and in a principal amount equal
to the lesser of (i) the amount of the initial Commitment of such Lender and
(ii) the aggregate unpaid principal amount of all Revolving Credit Loans made by
such Lender. Each Lender is hereby authorized to record the date, Type and
amount of each Revolving Credit Loan made by such Lender, each continuation
thereof, each conversion of all or a portion thereof to another Type, the date
and amount of each payment or prepayment of principal thereof and, in the case
of Eurodollar Loans and C/D Rate Loans, the length of each Interest Period with
respect thereto and, in the case of Money Market Loans, the Money Market Loan
Maturity Date with respect thereto, on the schedule annexed to and constituting
a part of its Note, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided that the
failure by any Lender to make any such recordation or any error in such
recordation shall not affect the obligations of the Borrower under this
Agreement or the Notes. Each Note shall (x) be dated the Closing Date, (y) be
stated to have a final maturity on the Termination Date and (z) provide for the
payment of interest in accordance with Section 2.6.
(c) Repayment of Revolving Credit Loans. The Borrower shall repay all then
outstanding Revolving Credit Loans on the Termination Date or such earlier date
as the Commitments shall terminate as provided herein; provided, that each Money
Market Loan shall, in any event, be repaid on the Money Market Loan Maturity
Date in respect thereof.
(d) Procedure for Borrowing Revolving Credit Loans. The Borrower may borrow
under the Commitments during the Commitment Period on any Business Day, provided
that the Borrower shall
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give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Eurodollar Loans or Money
Market Loans having a Money Market Loan Maturity Date of more than six days from
the relevant Borrowing Date, (ii) two Business Days prior to the requested
Borrowing Date, if all or any part of the requested Revolving Credit Loans are
to be initially C/D Rate Loans or Money Market Loans having a Money Market Loan
Maturity Date of six days or less from the relevant Borrowing Date, or (iii) one
Business Day prior to the requested Borrowing Date, otherwise), specifying (w)
the amount to be borrowed, (x) the requested Borrowing Date and, in the case of
each Money Market Loan, the requested Money Market Loan Maturity Date, (y)
whether the borrowing is to be of Eurodollar Loans, ABR Loans, C/D Rate Loans,
Money Market Loans or a combination thereof and (z) if the borrowing is to be
entirely or partly of Eurodollar Loans or C/D Rate Loans, the respective amounts
of each such Type of Revolving Credit Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Commitments shall be
in an amount equal to (i) in the case of ABR Loans, $500,000 or a whole multiple
of $100,000 in excess thereof (or, if the then aggregate Available Commitments
are less than $500,000, such lesser amount) and (ii) in the case of Eurodollar
Loans, C/D Rate Loans or Money Market Loans, $3,000,000 or a whole multiple of
$100,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each such borrowing available to
the Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 10.2 prior to 11:00 A.M., New York
City time (or in the case of Money Market Loans having a Money Market Loan
Maturity Date of six days or less from the relevant Borrowing Date, 3:00 P.M.,
New York City time), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the account
of the Borrower on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent. In no event may the number of Money Market
Loans requested in any calendar month pursuant to this Section 2.2(d) exceed
seven.
(e) Tranches. Notwithstanding anything to the contrary in this Agreement,
all borrowings, prepayments, conversions and continuations of Revolving Credit
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving effect
thereto, (i) the aggregate principal amount of the Revolving Credit Loans
comprising each Tranche shall be equal to $3,000,000 or a whole multiple of
$100,000 in excess thereof, (ii) no Lender's share of any Tranche shall be less
than $500,000 and (iii) there shall be no more than four Tranches outstanding at
any one time.
(f) Termination or Reduction of Commitments. The Borrower shall have the
right, upon not less than three Business Days' irrevocable notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any payments
of the Revolving Credit Loans made on the effective date thereof, (i) the
aggregate principal amount of the Revolving Credit Loans then outstanding, when
added to the aggregate L/C Obligations then outstanding, would exceed the
Commitments then in effect or (ii) the Available Commitment of any Lender would
be less than zero. Any such reduction shall be in an amount equal to $1,000,000
or a whole multiple thereof and shall reduce permanently the Commitments then in
effect.
2.3 Optional Prepayments. The Borrower may at any time and from time to
time prepay the Revolving Credit Loans (subject, in the case of Eurodollar
Loans, C/D Rate Loans and Money Market Loans, to compliance with the terms of
Sections 2.2(e) and 2.13), in whole or in part, without premium or penalty, upon
at least three Business Days' irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, X/X
00
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Xxxx Xxxxx, XXX Loans, Money Market Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with any amounts payable
pursuant to Section 2.13. Partial prepayments shall be in an aggregate principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if
less, the aggregate outstanding principal amount of Revolving Credit Loans).
2.4 Conversion and Continuation Options. (a) The Borrower may elect from
time to time to convert Eurodollar Loans or C/D Rate Loans to ABR Loans, and/or
to convert Eurodollar Loans or ABR Loans to C/D Rate Loans, by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans or C/D Rate
Loans may only be made on the last day of an Interest Period with respect
thereto. The Borrower may elect from time to time to convert ABR Loans or C/D
Rate Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election, provided that any such
conversion of C/D Rate Loans may, subject to the third succeeding sentence, only
be made on the last day of an Interest Period with respect thereto. Any such
notice of conversion to Eurodollar Loans or C/D Rate Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Administrative Agent shall promptly notify each affected
Lender thereof. If the last day of the then current Interest Period with respect
to C/D Rate Loans that are to be converted to Eurodollar Loans is not a Business
Day, such conversion shall be made on the next succeeding Business Day, and
during the period from such last day to such succeeding Business Day such Loans
shall bear interest as if they were ABR Loans. All or any part of outstanding
Eurodollar Loans, ABR Loans and C/D Rate Loans may be converted as provided
herein, provided that (i) no Loan may be converted into a Eurodollar Loan or a
C/D Rate Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined in its or their
sole discretion that such a conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, Section 2.2(e)
would not be contravened and (iii) no Revolving Credit Loan may be converted
into a Eurodollar Loan or a C/D Rate Loan after the date that is one month or 30
days, respectively, prior to the Termination Date.
(b) Any Eurodollar Loans or C/D Rate Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan or C/D Rate Loan may be continued as
such (i) when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined in its or their
sole discretion that such a continuation is not appropriate, (ii) if, after
giving effect thereto, Section 2.2(e) would be contravened or (iii) after the
date that is one month or 30 days, respectively, prior to the Termination Date,
and provided, further, that if the Borrower shall fail to give any required
notice as described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso such Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period.
2.5 Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee (the "Commitment Fee") for the
period from and including the first day of the Commitment Period to the
Termination Date, computed at the rate of 1/8th of 1% per annum on the average
daily amount of the Available Commitment of such Lender during the period for
which payment is made (taking into consideration any reductions in the
Commitment of such Lender pursuant to Section 2.2(f) occurring during such
period), payable monthly in arrears on the last day of each March, June,
September and December during the term of this Agreement and on the Termination
Date or such earlier date as the Commitments shall terminate as provided herein,
commencing on the first of such
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dates to occur after the Closing Date.
(b) The Borrower shall pay to the Administrative Agent, for its own
account, and, to the extent mutually agreed upon by the Administrative Agent and
the Lenders, for the account of the Lenders, the fees in the amounts and on the
dates previously agreed to in writing by the Borrower.
2.6 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR
plus the Applicable Margin.
(c) Each C/D Rate Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the C/D Rate
determined for such day plus the Applicable Margin.
(d) Each Money Market Loan shall bear interest at a rate per annum equal to
the Money Market Rate applicable thereto plus the Applicable Margin.
(e) If all or a portion of (i) the principal amount of any Revolving Credit
Loan, (ii) any interest payable thereon or (iii) any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is (x) in the case of overdue principal (except as
otherwise specified in clause (y) below), the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section 2.6 plus
3% or (y) in the case of any overdue principal with respect to Money Market
Loans or any overdue interest, commitment fee or other amount, the rate
described in Section 2.6(b) plus 3%, in each case from the date of such
non-payment to the date on which such amount is paid in full (as well after as
before judgment).
(f) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to Section 2.6(e) shall be payable from
time to time on demand.
2.7 Computation of Interest and Fees. (a) Commitment fees and interest
(other than interest calculated on the basis of the Prime Rate) shall be
calculated on the basis of a 360-day year for the actual days elapsed. Interest
calculated on the basis of the Prime Rate shall be calculated on the basis of a
365- (or 366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate, C/D Rate or Money Market
Rate. Any change in the interest rate on a Revolving Credit Loan resulting from
a change in the ABR or the C/D Assessment Rate shall become effective as of the
opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate with respect to any Eurodollar Loan or C/D Rate
Loan.
2.8 Inability to Determine Interest Rate; Unavailability of C/D Rate
Option. If prior to the first day of any Interest Period:
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(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
C/D Rate for such Interest Period,
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate or the C/D Rate determined or to
be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Revolving Credit Loans
during such Interest Period, or
(c) the Administrative Agent shall have received notice from any
Lender that it is unable to fund Revolving Credit Loans hereunder on the
basis of the C/D Rate,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans or C/D Rate Loans, as the case may be, requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Revolving Credit Loans that were to have been converted on the first day
of such Interest Period to Eurodollar Loans or C/D Rate Loans, as the case may
be, shall be converted to or continued as ABR Loans and (z) any outstanding
Eurodollar Loans or C/D Rate Loans, as the case may be, shall be converted, on
the first day of such Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans or C/D Rate
Loans, as the case may be, shall be made or continued as such, nor shall the
Borrower have the right to convert Revolving Credit Loans to Eurodollar Loans or
C/D Rate Loans, as the case may be.
2.9 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower
from the Lenders hereunder, each payment by the Borrower on account of any
Commitment Fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment Percentages of the
Lenders. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Credit Loans then held by the Lenders. All payments (including prepayments) to
be made by the Borrower hereunder and under the Notes, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in Section 10.2, in Dollars and in
immediately available funds. It is understood that, if any payment of principal
is made on any day in accordance with the preceding sentence, no interest shall
accrue on such day in respect of such principal. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and, with respect to any such
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender
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is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts owing under this Section 2.9(b) shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans hereunder, on demand, from the Borrower.
2.10 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert C/D Rate Loans or ABR Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Lender's Revolving Credit Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.13.
2.11 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the Closing Date:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note, any Letter of Credit or any
Application or any Eurodollar Loan, C/D Rate Loan or Money Market Loan made
by it, or change the basis of taxation of payments to such Lender in
respect thereof (except in each case for Non-Excluded Taxes covered by
Section 2.12 and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
relevant office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate, the C/D Rate or the Money Market Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, C/D Rate Loans or Money Market Loans
or issuing or participating in Letters of Credit or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Borrower
shall promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 2.11(a), it shall promptly notify the Borrower, through
the Administrative Agent, of the event by reason of which it has become so
entitled.
(b) If any Lender shall have determined that the application of any
Requirement of Law
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regarding capital adequacy or compliance by such Lender or any corporation
controlling such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority does or
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder or under any
Letter of Credit to a level below that which such Lender or such corporation
could have achieved but for such application or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy and such Lender's treatment of its Commitments for internal
purposes as of the date on which it became a party hereto) by an amount deemed
by such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor (setting forth in reasonable detail the basis for such
request), the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
(c) The Borrower agrees to pay to each Lender which requests compensation
under this Section 2.11(c) (by notice to the Borrower), on the last day of each
Interest Period with respect to any Eurodollar Loan made by such Lender, so long
as such Lender shall be required to maintain reserves against "Eurocurrency
liabilities" under Regulation D of the Board (or, so long as such Lender may be
required by the Board or by any other Governmental Authority to maintain
reserves against any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Loans is determined as
provided in this Agreement or against any category of extensions of credit or
other assets of such Lender which includes any Eurodollar Loans), an additional
amount (determined by such Lender and notified to the Borrower) representing
such Lender's calculation or, if an accurate calculation is impracticable,
reasonable estimate (using such reasonable means of allocation as such Lender
shall determine) of the actual costs, if any, incurred by such Lender during
such Interest Period, as a result of the applicability of the foregoing reserves
to such Eurodollar Loans, which amount in any event shall not exceed the product
of the following for each day of such Interest Period:
(i) the principal amount of the Eurodollar Loans made by such Lender
to which such Interest Period relates and outstanding on such day; and
(ii) the difference between (x) a fraction the numerator of which is
the Eurodollar Rate (expressed as a decimal) applicable to such Eurodollar
Loan, and the denominator of which is one minus the maximum rate (expressed
as a decimal) at which such reserve requirements are imposed by the Board
or other Governmental Authority on such date minus (y) such numerator; and
(iii) a fraction the numerator of which is one and the denominator of
which is 360.
Any Lender which gives notice under this Section 2.11(c) shall promptly withdraw
such notice (by written notice of withdrawal given to the Administrative Agent
and the Borrower) in the event such Lender is no longer required to maintain
such reserves or the circumstances giving rise to such notice shall otherwise
cease to exist.
(d) The Borrower agrees to pay to each Lender which requests compensation
under this Section 2.11(d) (by notice to the Borrower), on the last day of each
Interest Period with respect to any C/D Rate Loan made by such Lender, so long
as such Lender shall be required to maintain reserves against "non-personal time
deposits" under Regulation D of the Board (or, so long as such Lender may be
required by the Board or by any other Governmental Authority to maintain
reserves against any other category of liabilities which includes deposits by
reference to which the interest rate on C/D Rate Loans is determined as provided
in this Agreement or against any category of extensions of credit or other
assets of such Lender which includes any C/D Rate Loans), an additional amount
(determined by such
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Lender and notified to the Borrower) representing such Lender's calculation or,
if an accurate calculation is impracticable, reasonable estimate (using such
reasonable means of allocation as such Lender shall determine) of the actual
costs, if any, incurred by such Lender during such Interest Period, as a result
of the applicability of the foregoing reserves to such C/D Rate Loans, which
amount in any event shall not exceed the product of the following for each day
of such Interest Period:
(i) the principal amount of the C/D Rate Loans made by such
Lender to which such Interest Period relates and outstanding on such
day; and
(ii) the difference between (x) a fraction the numerator of which
is the C/D Rate (expressed as a decimal) applicable to such C/D Rate
Loan, and the denominator of which is one minus the maximum rate
(expressed as a decimal) at which such reserve requirements are
imposed by the Board or other Governmental Authority on such date
minus (y) such numerator; and
(iii) a fraction the numerator of which is one and the
denominator of which is 360.
Any Lender which gives notice under this Section 2.11(d) shall promptly withdraw
such notice (by written notice of withdrawal given to the Administrative Agent
and the Borrower) in the event such Lender is no longer required to maintain
such reserves or the circumstances giving rise to such notice shall otherwise
cease to exist.
(e) A certificate as to any additional amounts payable pursuant to this
Section 2.11 submitted by any Lender, through the Administrative Agent, to the
Borrower shall be conclusive in the absence of manifest error. The agreements in
this Section 2.11 shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder (the date on which
all of the foregoing shall have occurred, the "Final Date") until the first
anniversary of the Final Date.
2.12 Taxes. (a) All payments made by the Borrower under this Agreement and
the Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or the Notes). If any such non- excluded
taxes, levies, imposts, duties, charges, fees deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under the Notes, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
Notes, provided, however, that the Borrower shall not be required to increase
any such amounts payable to any Non-U.S. Lender if such Lender fails to comply
with the requirements of Section 2.12(b). Whenever any Non-Excluded Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the
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Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this Section 2.12(a) shall survive
the termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
(b) Each Lender (or Transferee) that is not a citizen or resident of the
United States of America, a corporation, partnership or other entity created or
organized in or under the laws of the United States of America, or any estate or
trust that is subject to federal income taxation regardless of the source of its
income (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form 1001 or Form 4224, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio interest", a Form
W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, an annual certificate representing under
penalty of perjury that such Non-U.S. Lender is not a "bank" for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled
foreign corporation related to the Borrower (within the meaning of Section
864(d)(4) of the Code)), properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Borrower under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this Section 2.12(b), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.12(b) that
such Non-U.S. Lender is not legally able to deliver.
2.13 Indemnity. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of (a) default by the Borrower in making a borrowing of
Eurodollar Loans, C/D Rate Loans or Money Market Loans, or in the conversion
into or continuation of Eurodollar Loans or C/D Rate Loans, after the Borrower
has given a notice requesting or accepting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement, or (c) the making of a prepayment of Eurodollar
Loans, C/D Rate Loans or Money Market Loans on a day which is not the last day
of an Interest Period, or the Money Market Loan Maturity Date, as the case may
be, with respect thereto. Such indemnification may, at the option of any Lender,
include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of the relevant Interest Period
or the relevant Money Market Loan Maturity Date, as the case may be (or proposed
Interest Period or proposed Money Market Loan Maturity Date, as the case may
be), in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Margin) over (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market or other relevant
market. This covenant shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder until the first
anniversary of the Final Date.
2.14 Change of Lending Office. Each Lender and each Transferee agrees that,
upon the
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occurrence of any event giving rise to the operation of Section 2.10, 2.11 or
2.12 with respect to such Lender or Transferee, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender or Transferee) to designate another lending office for any Loans
affected by such event with the object of avoiding the consequences of such
event; provided, that such designation is made on terms that, in the sole
judgment of such Lender or Transferee, cause such Lender or Transferee and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and
provided, further, that nothing in this Section 2.14 shall affect or postpone
any of the obligations of any Borrower or the rights of any Lender or Transferee
pursuant to Sections 2.10, 2.11 and 2.12.
2.15 Replacement of Lenders under Certain Circumstances. The Borrower shall
be permitted to replace any Lender which (a) requests reimbursement for amounts
owing pursuant to Section 2.11 or 2.12, (b) is affected in the manner described
in Section 2.10 and as a result thereof any of the actions described in Section
2.10 is required to be taken or (c) defaults in its obligation to make Revolving
Credit Loans hereunder, with a replacement bank or other financial institution;
provided that (i) such replacement does not conflict with any Requirement of
Law, (ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) the Borrower shall repay (or the replacement bank or
institution shall purchase, at par) all Revolving Credit Loans and other amounts
owing to such replaced Lender prior to the date of replacement, (iv) the
Borrower shall be liable to such replaced Lender under Section 2.13 if any
Eurodollar Loan, C/D Rate Loan or Money Market Loan owing to such replaced
Lender shall be prepaid (or purchased) other than on the last day of the
Interest Period or the Money Market Loan Maturity Date, as the case may be,
relating thereto, (v) the replacement bank or institution, if not already a
Lender, and the terms and conditions of such replacement, shall be satisfactory
to the Administrative Agent and the Issuing Lender, (vi) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 10.8 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (vii) until such time as
such replacement shall be consummated, the Borrower shall pay all additional
amounts (if any) required pursuant to Section 2.11 or 2.12, as the case may be,
and (viii) any such replacement shall not be deemed to be a waiver of any rights
which the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1. L/C Commitment. (a) Subject to the terms and conditions hereof, the
Issuing Lender, in reliance on the agreements of the other Lenders set forth in
Section 0, agrees to issue letters of credit ("Letters of Credit") for the
account of the Borrower on any Business Day during the Commitment Period in such
form as may be approved from time to time by the Issuing Lender; provided that
the Issuing Lender shall have no obligation to issue any Letter of Credit if,
after giving effect to such issuance, (i) the L/C Obligations would exceed the
L/C Commitment or (ii) the Available Commitment of any Lender would be less than
zero.
(b) Each Letter of Credit (i) shall be denominated in Dollars, (ii) shall
be a standby letter of credit issued to support obligations of the Borrower and
its Subsidiaries, contingent or otherwise, incurred in the ordinary course of
business and (iii) shall expire no later than the earlier of the first
anniversary of the date of issuance thereof or the Termination Date (or, in the
case of any Letter of Credit with automatic renewal or evergreen provisions,
shall have a final expiration date no later than the Termination Date).
(c) Each Letter of Credit shall be subject to the Uniform Customs and, to
the extent not inconsistent therewith, the laws of the State of New York.
(d) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit
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hereunder if such issuance would conflict with, or cause the Issuing Lender or
any L/C Participant to exceed any limits imposed by, any applicable Requirement
of Law.
3.2. Procedure for Issuance of Letters of Credit. The Borrower may from
time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed by the Issuing
Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter
of Credit to the Borrower promptly following the issuance thereof.
3.3. Fees and Other Charges. (a) The Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit fee with respect to each Letter of Credit at a
per annum rate, for each day during the period from the date of issuance of such
Letter of Credit to the first date thereafter on which such Letter of Credit
shall expire or be cancelled or fully drawn (the "L/C Termination Date"), equal
to the L/C Fee Rate in effect on such day, calculated on the basis of a 360-day
year, of the aggregate amount available to be drawn under such Letter of Credit
on such day. Subject to the provisions of the following sentence, such letter of
credit fee shall be payable in arrears on each L/C Fee Payment Date to occur
while the relevant Letter of Credit is outstanding and shall be nonrefundable. A
portion of each aforementioned letter of credit fee equal to 1/8th of 1% per
annum shall be payable to the Issuing Lender, and the remaining portion of such
letter of credit fee shall be payable to the Issuing Lender and the L/C
Participants to be shared ratably among them in accordance with their respective
Commitment Percentages.
(b) In addition to the foregoing fees, the Borrower shall pay or reimburse
the Issuing Lender for such normal and customary costs and expenses as are
incurred or charged by the Issuing Lender in issuing, effecting payment under,
amending or otherwise administering any Letter of Credit.
(c) The Administrative Agent shall, promptly following its receipt thereof,
distribute to the Issuing Lender and the L/C Participants all fees received by
the Administrative Agent for their respective accounts pursuant to this Section
3.3.
3.4. L/C Participations. (a) The Issuing Lender irrevocably agrees to grant
and hereby grants to each L/C Participant, and, to induce the Issuing Lender to
issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Issuing Lender, on
the terms and conditions hereinafter stated, for such L/C Participant's own
account and risk an undivided interest equal to such L/C Participant's
Commitment Percentage in the Issuing Lender's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by the
Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Lender that, if a draft is paid under any Letter of
Credit for which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Commitment Percentage
of the amount of such draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the Issuing
Lender
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pursuant to Section 0 in respect of any unreimbursed portion of any payment made
by the Issuing Lender under any Letter of Credit is paid to the Issuing Lender
within three Business Days after the date such payment is due, such L/C
Participant shall pay to the Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal funds rate, as
quoted by the Issuing Lender, during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 0 is not in fact made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans hereunder. A certificate of the Issuing
Lender submitted to any L/C Participant with respect to any amounts owing under
this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its pro rata
share of such payment in accordance with this Section 3.4, the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will promptly distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.5. Reimbursement Obligation of the Borrower. (a) The Borrower agrees to
reimburse the Issuing Lender on each date on which the Issuing Lender notifies
the Borrower of the date and amount of a draft presented under any Letter of
Credit and paid by the Issuing Lender for the amount of (i) such draft so paid
(which reimbursement may be effected through the procedure described in Section
3.5(c)) and (ii) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall be
made to the Issuing Lender at its address for notices specified herein in lawful
money of the United States of America and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining unpaid by
the Borrower under this Section 3 from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate which would be payable on any outstanding ABR Loans which were then
overdue.
(c) Each drawing under any Letter of Credit shall constitute a request by
the Borrower to the Administrative Agent for a borrowing pursuant to Section
2.2(d) of ABR Loans in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the date of such drawing.
3.6. Obligations Absolute. (a) The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any beneficiary of a
Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 0 shall not be affected by, among other things, (i)
the validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or (ii) any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which
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such Letter of Credit may be transferred or (iii) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee.
(c) The Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by the Issuing Lender's gross negligence or willful
misconduct.
(d) The Borrower agrees that any action taken or omitted by the Issuing
Lender under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence of willful misconduct and
in accordance with the standards of care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of the Issuing Lender to the Borrower.
3.7. Letter of Credit Payments. If any draft shall be presented for payment
under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8. Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement, to make or maintain the Revolving Credit Loans, and to issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 Financial Condition. The consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at December 31, 1996 and the related
consolidated statements of income and of cash flows for the fiscal year ended on
such date, reported on by Coopers & Xxxxxxx, copies of which have heretofore
been furnished to the Lenders, are complete and correct and present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such dates, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at September 30, 1997 and the related unaudited consolidated statements of
income and of cash flows for the nine-month period ended on such date, certified
by a Responsible Officer, copies of which have heretofore been furnished to the
Lenders, are complete and correct and present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the nine-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). Except as
set forth on Schedule 4.1, neither the Borrower nor any of its consolidated
Subsidiaries has, at the Closing Date, any material Indebtedness, Guarantee
Obligation, contingent liability or liability for taxes, or any unusual forward
or long-term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto. Except as set forth on Schedule
4.1,
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during the period from December 31, 1996 to and including the Closing Date there
has been no sale, transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its consolidated Subsidiaries at
December 31, 1996.
4.2 No Change. Since December 31, 1996 (a) there has been no development or
event nor any prospective development or event, which has had or could
reasonably be expected to have a Material Adverse Effect and (b) except for
regular quarterly dividends, no dividends or other distributions have been
declared, paid or made upon the Capital Stock of the Borrower nor has any of the
Capital Stock of the Borrower been redeemed, retired, purchased or otherwise
acquired for value by the Borrower or any of its Subsidiaries.
4.3 Corporate Existence; Compliance with Law. (a) The Borrower (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate power and authority,
and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(iii) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification, except to the extent
the failure to be so qualified and in good standing could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and (iv) is in
compliance with all Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b) Each Subsidiary of the Borrower (i) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
(ii) has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (iii) is duly qualified as a
foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification, and (iv) is in compliance with all
Requirements of Law except, in the case of clauses (i), (ii), (iii) or (iv)
above, as could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan
Party has the corporate power and authority, and the legal right, to make,
deliver and perform each Loan Document to which it is a party and, in the case
of the Borrower, to borrow hereunder and each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of each
Loan Document to which it is a party and, in the case of the Borrower, the
borrowings on the terms and conditions of this Agreement. No consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of any Loan Document. Each Loan Document has been duly executed
and delivered on behalf of each Loan Party party thereto. Each Loan Document
constitutes a legal, valid and binding obligation of each Loan Party party
thereto enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents and the borrowings hereunder and the use of the proceeds thereof will
not violate any Requirement of Law or any Contractual Obligation of the Borrower
or of any of its Subsidiaries and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to
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any such Requirement of Law or Contractual Obligation.
4.6 No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to this Agreement, the other Loan Documents or any of the
transactions contemplated hereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property. Each of the Borrower and its Subsidiaries has
good record title in fee simple to, or a valid leasehold interest in, all its
real property, and good title to all its other property.
4.9 Intellectual Property. The Borrower and each of its Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes ("Intellectual Property") necessary for the conduct of
its business as currently conducted except for those the failure to own or
license which could not reasonably be expected to have a Material Adverse
Effect. No claim has been asserted and is pending by any Person challenging or
questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does the Borrower know of any
valid basis for any such claim. The use of such Intellectual Property by the
Borrower and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.10 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
4.11 Taxes. Each of the Borrower and its Subsidiaries has filed or caused
to be filed all tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
4.12 Federal Regulations. No part of the proceeds of any Revolving Credit
Loans will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
as now and from time to time hereafter in effect or for any purpose which
violates the provisions of the Regulations of the Board. If requested by the
Administrative Agent, the Borrower will furnish to the Administrative Agent a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 referred to in said Regulation U.
4.13 ERISA. No Reportable Event has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by the Borrower or
any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the
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value of the assets of such Plan allocable to such accrued benefits. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan, and neither the Borrower nor any
Commonly Controlled Entity would become subject to any liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. No such Multiemployer
Plan is in Reorganization or Insolvent. The present value (determined using
actuarial and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the liability of the Borrower and
each Commonly Controlled Entity for post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit plans
(as defined in Section 3(1) of ERISA) equals or exceeds the assets under all
such Plans allocable to such benefits.
4.14 Investment Company Act; Other Regulations. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The corporations listed on Schedule 4.15 constitute all
the Subsidiaries of the Borrower at the Closing Date.
4.16 Purpose of Loans. The proceeds of the Revolving Credit Loans shall be
used by the Borrower for general corporate purposes (excluding commercial paper
back-up).
4.17 Environmental Matters. Each of the following representations and
warranties is true and correct on and as of the Closing Date except to the
extent that the facts and circumstances giving rise to any such failure to be so
true and correct, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect:
(a) To the best knowledge of the Borrower, the Properties do not
contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations which constitute or constituted a
violation of, or could reasonably give rise to liability under,
Environmental Laws.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties are in compliance, and have in the last two
years been in compliance, with all applicable Environmental Laws, and there
is no contamination at, under or about the Properties, or violation of any
Environmental Law with respect to the Properties.
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties, nor does the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) To the best knowledge of the Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could reasonably give
rise to liability under, Environmental Laws, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Laws.
(e) No judicial proceedings or governmental or administrative action
is pending, or, to
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the knowledge of the Borrower, threatened, under any Environmental Law to
which the Borrower is or will be named as a party with respect to the
Properties, nor are there any consent decrees or other decrees, consent
orders, administrative order or other orders, or other administrative of
judicial requirements outstanding under any Environmental Law with respect
to the Properties.
(f) To the best knowledge of the Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of the Borrower
and its Subsidiaries in connection with the Properties in violation of or
in amounts or in a manner that could give rise to liability under
Environmental Laws.
4.18 Insurance. The Borrower and each Subsidiary maintains with insurance
companies rated at least A- by A.M. Best & Co., with premiums at all times
currently paid, insurance upon fixed assets and inventories, including public
liability insurance, fire and all other risks insured against by extended
coverage, fidelity bond coverage, business interruption insurance, and all
insurance required by law, all in form and amounts required by law and customary
to the respective natures of their businesses and properties, except in cases
where failure to maintain such insurance will not have or potentially have an
adverse effect on any of such properties or on the business, assets, property or
financial or other condition of the Borrower or any Subsidiary.
4.19 Condition of Properties. Each of the following representations and
warranties is true and correct except to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:
(a) All of the improvements located on the Properties and the use of
said improvements shall comply and shall continue to comply in all respects
with all applicable zoning resolutions, building codes, subdivision and
other similar applicable laws, rules and regulations and are covered by
existing valid certificates of occupancy and all other certificates and
permits required by applicable laws, rules, regulations and ordinances or
in connection with the use, occupancy and operation thereof.
(b) No material portion of any of the Properties, nor any improvements
located on said Properties that are material to the operation, use or value
thereof have been damaged in any respect as a result of any fire,
explosion, accident, flood or other casualty.
(c) No condemnation or eminent domain proceeding has been commenced or
to the knowledge of the Borrower is about to be commenced against any
portion of any of the Properties, or any improvements located thereon that
are material to the operation, use or value of said Properties except as
set forth and described in Schedule 4.19 attached hereto.
(d) No notices of violation of any federal, state or local law or
ordinance or order or requirement have been issued with respect to any
Properties.
4.20 Benefit of Loans. The Borrower and each Subsidiary are engaged as an
integrated corporate group in the business of acquiring, owning, developing and
operating shopping centers and of providing the required services and other
facilities for those integrated operations. The Borrower and each Subsidiary
require financing on such a basis that funds can be made available to the
Borrower and each Subsidiary to the extent required for the continued operation
of their integrated activities and each of them expect to derive benefit,
directly or indirectly, in return for undertaking their respective obligations
under this Agreement and the other Loan Documents, both individually and as
members of the integrated group.
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4.21 REIT. The Borrower is an equity-oriented real estate investment trust
under Sections 856 through 860 of the Code.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each Lender
to make the initial extension of credit requested to be made by it is subject to
the satisfaction, on or prior to the Closing Date, of the following conditions
precedent:
(a) Agreement; Notes. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Borrower, with a counterpart for each Lender and (ii) for the account of
each Lender, a Note conforming to the requirements hereof and executed by a
duly authorized officer of the Borrower.
(b) Closing Certificate. The Administrative Agent shall have received,
with a copy for each Lender, a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit D, with appropriate
insertions and attachments, satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President and
the Secretary or any Assistant Secretary of such Loan Party, and attaching
the documents referred to in Sections 5.1(c) and (d).
(c) Corporate Proceedings of the Loan Parties. The Administrative
Agent shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of each Loan Party authorizing (i) the
execution, delivery and performance of each Loan Document to which it is a
party and (ii) in the case of the Borrower, the borrowings contemplated
hereunder.
(d) Corporate Documents. The Administrative Agent shall have received,
with a copy for each Lender, true and complete copies of the certificate of
incorporation and by-laws of the Borrower.
(e) Fees. The Administrative Agent shall have received an upfront fee
payable for the ratable benefit of the Lenders in the amount previously
disclosed to each Lender.
(f) Legal Opinions. The Administrative Agent shall have received, with
a counterpart for each Lender, the executed legal opinion of Xxxxxx X.
Xxxxxxxx, Esq., counsel to the Borrower, substantially in the form of
Exhibit E.
(g) Subsidiary Guarantee. The Administrative Agent shall have received
the Subsidiary Guarantee, executed and delivered by a duly authorized
officer of each Subsidiary of the Borrower, with a counterpart for each
Lender.
5.2 Conditions to Each Extension of Credit. The agreement of each Lender to
make any extension of credit requested to be made by it on any date (including,
without limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. (i) No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extension of
credit requested to be made on
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such date and (ii) the Borrower would be in compliance with each financial
covenant set forth in paragraphs (a) through (d) of Section 7.1 if the
ratio or amount referred to therein were to be calculated as of such date
(provided, that for the purposes of determining such compliance, Gross
Asset Value and Value of Unencumbered Properties shall be determined for
the most recent period of two consecutive fiscal quarters of the Borrower
as to which a compliance certificate has been delivered pursuant to Section
6.2(b)).
(c) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by, or issuance of a Letter of Credit on behalf of, the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note or any Letter of Credit remains outstanding and unpaid or any
other amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall and (except in the case of delivery of financial information,
reports and notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent (with
sufficient copies for each Lender):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Coopers & Xxxxxxx or other
independent certified public accountants of nationally recognized standing;
and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative Agent
(with
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sufficient copies for each Lender (in the case of clauses (a)-(c) below) or each
relevant Lender (in the case of clauses (d)-(e) below)):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and 6.1(b), a compliance certificate of a
Responsible Officer of the Borrower substantially in the form of Exhibit F;
(c) within ten days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and
within ten days after the same are filed, copies of all financial
statements, reports or other documents which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) promptly upon request of any Lender (through the Administrative
Agent), copies of any environmental report prepared pursuant to Section
6.8(d); and
(e) promptly, such additional financial information, information with
respect to any Property and other information as any Lender may from time
to time reasonably request (through the Administrative Agent).
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except (a) where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be or (b) (i)
Non-Recourse Indebtedness and (ii) other obligations which aggregate not more
than $5,000,000, in each case to the extent the Borrower or the relevant
Subsidiary has determined in good faith that it is in its best interests not to
pay or contest such Non-Recourse Indebtedness or such other obligations, as the
case may be.
6.4 Maintenance of Existence, etc. (a) Preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to Section
7.2.
(b) Comply with all Contractual Obligations and Requirements of Law except
to the extent that failure to comply therewith could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain
insurance with financially sound and reputable insurance companies rated at
least A- by A.M. Best & Co. on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to each Lender, upon written request, full information as to the
insurance carried.
6.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of
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records and account in which full, true and correct entries in conformity with
GAAP and all Requirements of Law shall be made of all dealings and transactions
in relation to its business and activities; and permit representatives of any
Lender to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with officers
and employees of the Borrower and its Subsidiaries and with its independent
certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and not
covered by insurance or in which material injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal from,
or the termination, Reorganization or Insolvency of, any Multiemployer Plan
or (ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
6.8 Environmental Laws. (a) Comply with, and use its best efforts to ensure
compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and use its best
efforts to ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except to the extent that
failure to do so could not be reasonably expected to have a Material Adverse
Effect.
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws, except
to the extent that (i) the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect or (ii) the Borrower has determined
in good faith that contesting the same is not in the best interests of the
Borrower and its Subsidiaries and the failure to contest the same could not
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be reasonably expected to have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless the Administrative Agent and each
Lender, and their respective employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under any Environmental Laws applicable to
the operations of the Borrower, its Subsidiaries or the Properties, or any
orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorney's and consultant's fees, investigation
and laboratory fees, response costs, court costs and litigation expenses, except
to the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. This indemnity
shall continue in full force and effect regardless of the termination of this
Agreement.
(d) Comply in all material respects with the Operations and Maintenance
Plan.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note or any Letter of Credit remains outstanding and unpaid or any
other amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall not, and, in the case of Sections 7.2 through 7.7, shall not
permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Covenants.
(a) Consolidated Total Indebtedness. Permit, at the last day of any
period of two consecutive fiscal quarters of the Borrower, Consolidated
Total Indebtedness as of such day to exceed an amount equal to 55% of Gross
Asset Value as of such day.
(b) Consolidated Secured Indebtedness. Permit, at the last day of any
period of two consecutive fiscal quarters of the Borrower, Consolidated
Secured Indebtedness as of such day to exceed an amount equal to 25% of
Gross Asset Value as of such day.
(c) Consolidated Net Worth. Permit, at the last day of any period of
two consecutive fiscal quarters of the Borrower, Consolidated Net Worth as
of such day to be less than an amount equal to the sum of (i) $325,000,000
and (ii) 50% of the aggregate proceeds received by the Borrower (net of
customary related fees and expenses) in connection with any offering of
Capital Stock of the Borrower consummated after the Closing Date.
(d) Value of Unencumbered Properties. Permit, for any period of two
consecutive fiscal quarters of the Borrower, the ratio of (i) the sum of
(x) Value of Unencumbered Properties for such period and (y) the excess, if
any, of (I) Unrestricted Cash and Cash Equivalents as of the last day of
such period over (II) $15,000,000 to (ii) Consolidated Senior Unsecured
Indebtedness as of the last day of such period to be less than 1.75 to 1.0.
(e) Consolidated Adjusted Cash Flow. Permit, for any period of two
consecutive fiscal quarters of the Borrower, the ratio of (i) Consolidated
Adjusted Cash Flow for such period to (ii) Consolidated Debt Service for
such period to be less than 2.50 to 1.0.
7.2 Limitation on Fundamental Changes. (a) Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or (b) in
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the case of the Borrower, convey, sell, lease, assign, transfer or otherwise
dispose of, all or a substantial portion (determined on a consolidated basis
with respect to the Borrower and its Subsidiaries taken as a whole) of the
property, business or assets owned or leased by the Borrower (directly or
through a Subsidiary or Joint Venture), except that any Subsidiary of the
Borrower may be merged or consolidated with or into the Borrower (provided that
the Borrower shall be the continuing or surviving corporation) or with or into
any one or more Wholly Owned Subsidiary Guarantors (provided that the Wholly
Owned Subsidiary Guarantor(s) shall be the continuing or surviving corporation).
7.3 Limitation on Restricted Payments. Unless otherwise required in order
to maintain the Borrower's status as a real estate investment trust, declare or
pay any dividend (other than dividends payable solely in the same class of
Capital Stock) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary (collectively, "Restricted
Payments"); provided, that, notwithstanding the foregoing, (a) during any period
of four consecutive fiscal quarters of the Borrower, the Borrower may make
Restricted Payments in an aggregate amount not to exceed 90% of Funds From
Operations for such period and (b) in addition to Restricted Payments made
pursuant to clause (a) above, the Borrower may make Restricted Payments on any
date so long as, after giving effect thereto, (i) the aggregate amount of
Restricted Payments made pursuant to this clause (b) since the Closing Date
shall not exceed 10% of Consolidated GAAP Net Worth determined as of the last
day of the most recent fiscal period for which financial statements have been
delivered pursuant to Section 6.1, after giving pro forma effect to the making
of such Restricted Payments and any other Restricted Payments made after such
last day and (ii) no Default or Event of Default shall have occurred and be
continuing.
7.4 Limitation on Investments, Loans and Advances. Make any advance, loan,
extension of credit or capital contribution to any Person, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or otherwise make any investment in, any
Person, or acquire or otherwise make any investment in any real property
(collectively, "Investments"), except:
(a) Investments in Cash Equivalents;
(b) Investments in (i) any Property now or hereafter owned or leased
by the Borrower or any Subsidiary or (ii) any present or future
consolidated Subsidiary of the Borrower engaged principally in the
ownership, operation and management of shopping centers;
(c) (i) Investments by the Borrower in any present or future Wholly
Owned Subsidiary Guarantor and (ii) Investments by any Subsidiary in the
Borrower or any present or future Wholly Owned Subsidiary Guarantor;
(d) Investments made pursuant to Section 7.3; and
(e) Investments not otherwise permitted by this Section 7.4 so long
as, on the date any such Investment is made and after giving effect
thereto, the aggregate amount of Investments made pursuant to this clause
(e) since the Closing Date (valued at cost) shall not exceed 10% of Gross
Asset Value as of the last day of the most recently ended period of two
consecutive fiscal quarters of the Borrower;
provided, that in no event shall the aggregate amount of Investments made
pursuant to this Section 7.4 in any single Property (including Investments in
any Subsidiary or Joint Venture owning or operating such
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Property) exceed $50,000,000.
7.5 Limitation on Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with any Affiliate (other than any Wholly Owned
Subsidiary Guarantor) unless (a) no Default or Event of Default would occur as a
result thereof and (b) such transaction is (i) in the ordinary course of the
Borrower's or such Subsidiary's business and (ii) upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm's length transaction with a Person which is
not an Affiliate.
7.6 Limitation on Changes in Fiscal Year. Permit the fiscal year of the
Borrower to end on a day other than December 31, unless otherwise required by
any applicable law, rule or regulation.
7.7 Limitation on Lines of Business, Issuance of Commercial Paper, Creation
of Subsidiaries, Negative Pledges. (a) Fail to continue to engage principally in
business of the same general type as now conducted by it (which is the
ownership, operation and management of shopping centers).
(b) Issue any commercial paper in an aggregate principal amount exceeding
the aggregate unused and available commitments under any revolving credit
facility (other than the Commitments hereunder) entered into by the Borrower and
not prohibited by this Agreement. For the purposes of this paragraph,
commitments shall be deemed to be available to the extent that, on any date of
determination, assuming timely delivery of a borrowing notice by the Borrower,
the lender(s) thereunder would be obligated to fund loans pursuant thereto.
(c) Create or acquire any Subsidiary after the Closing Date unless such
Subsidiary executes a supplement to the Subsidiary Guarantee in form and
substance satisfactory to the Administrative Agent pursuant to which such
Subsidiary shall become a party to the Subsidiary Guarantee, in each case in
accordance with the following schedule: (i) with respect to individual
Subsidiaries, immediately after the aggregate amount expended in connection
therewith (including amounts expended in connection with property acquired by or
contributed to such Subsidiary) ("Subsidiary Expenditures") equals at least
$50,000,000 and (ii) with respect to any Subsidiary that is not already a
Subsidiary Guarantor, (x) immediately after the aggregate amount of Subsidiary
Expenditures relating to all Subsidiaries that are not already Subsidiary
Guarantors equals at least $150,000,000 and (y) immediately after each delivery
of financial statements pursuant to Section 6.1.
(d) Enter into with any Person, or suffer to exist, any agreement, other
than (i) this Agreement and the other Loan Documents or (ii) any agreements
governing any purchase money Liens, Financing Leases or mortgage financings not
prohibited by this Agreement (in which cases, any prohibition or limitation
referred to below shall only be effective against the assets financed thereby)
which prohibits or limits the ability of the Borrower or any of its Subsidiaries
to create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Note or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Note, or any
other amount payable hereunder, within five Business Days
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after any such interest or other amount becomes due in accordance with the
terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the Borrower
or any other Loan Party herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
any other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or performance of any
agreement contained in Section 6.7(a) or Section 7; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section 8), and such default shall continue
unremedied for a period of 30 days after notice from the Administrative
Agent or the Required Lenders; or
(e) The Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation, but excluding the Notes and any
Non-Recourse Indebtedness) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph (e) shall not at any time constitute
an Event of Default under this Agreement unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i), (ii)
and (iii) of this paragraph (e) shall have occurred and be continuing with
respect to Indebtedness the outstanding principal amount of which exceeds
in the aggregate $5,000,000; or
(f) (i) The Borrower or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Borrower or
any of its Significant Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Borrower or any of its Significant Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the Borrower or any of its
Significant Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded
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pending appeal within 60 days from the entry thereof; or (iv) the Borrower
or any of its Significant Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower
or any of its Significant Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Remedial Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Remedial Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $5,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) The Subsidiary Guarantee shall cease, for any reason, to be in
full force and effect or any Loan Party or any Affiliate of any Loan Party
shall so assert; or
(j) The Borrower shall cease, for any reason, to maintain its status
as an equity-oriented real estate investment trust under Sections 856
through 860 of the Code; or
(k) At any time the Borrower and its Subsidiaries shall be required to
take any actions in respect of environmental remediation and/or
environmental compliance, the aggregate expenses, fines, penalties or other
charges with respect to which, in the judgment of the Required Remedial
Lenders, could reasonably be expected to exceed $20,000,000; provided, that
any such remediation or compliance shall not be taken into consideration
for the purposes of determining whether an Event of Default has occurred
pursuant to this paragraph (k) if (i) such remediation or compliance is
being contested by the Borrower or the applicable Subsidiary in good faith
by appropriate proceedings or (ii) such remediation or compliance is
satisfactorily completed within 90 days from the date on which the Borrower
or the applicable Subsidiary receives notice that such remediation or
compliance is required, unless such remediation or compliance cannot
reasonably be completed within such 90 day period in which case such time
period shall be extended for a period of time reasonably necessary to
perform such compliance or remediation using diligent efforts (not to
exceed 180 days if the continuance of such remediation or compliance beyond
such 180 day period, in the judgment of the Required Remedial Lenders,
could reasonably be expected to have a Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Revolving
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Credit Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Remedial Lenders, the Administrative Agent may, or
upon the request of the Required Remedial Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Required Remedial Lenders, the Administrative Agent may, or
upon the request of the Required Remedial Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Revolving Credit Loans hereunder
(with accrued interest thereon) and all other amounts owing under this Agreement
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrower hereunder and under the other Loan Documents
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrower. The Borrower shall execute and
deliver to the Administrative Agent, for the account of the Issuing Lender and
the L/C Participants, such further documents and instruments as the
Administrative Agent may request to evidence the creation and perfection of the
within security interest in such cash collateral account.
Except as expressly provided above in this Section 8, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably designates and appoints The
Chase Manhattan Bank as the Administrative Agent for such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes The Chase Manhattan Bank, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations, liabilities or standard of care shall be
read into this Agreement or any other Loan Document or otherwise exist against
the Administrative Agent.
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9.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to rely upon advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders or the Required
Remedial Lenders, as the case may be, as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
Notes and the other Loan Documents in accordance with a request of the Required
Lenders or the Required Remedial Lenders, as the case may be, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes.
9.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders or the Required Remedial Lenders, as the case
may be; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
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9.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of any Loan Party,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and made its own decision to make its
Revolving Credit Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Loan Parties
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section 9.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Revolving Credit Loans shall have been paid in full, ratably in accordance with
their Commitment Percentages immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement,
any of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the Administrative Agent's gross negligence or willful misconduct. The
agreements in this Section 9.7 shall survive the payment of the Notes and all
other amounts payable hereunder.
9.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Administrative
Agent were not the Administrative Agent hereunder and under the other Loan
Documents. With respect to its Revolving Credit Loans made or renewed by it and
any Note issued to it, and with respect to any Letter of Credit issued or
participated in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
9.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Lenders, in which case the
Required Lenders shall
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appoint from among the Lenders a successor agent for the Lenders. In addition,
in the event that the Administrative Agent, in its capacity as a Lender, shall
have assigned all of its outstanding Commitments and Loans to another bank,
financial institution or other entity pursuant to Section 10.8, then the
Required Lenders may, upon 10 days' notice to the Administrative Agent, replace
the Administrative Agent with a successor agent appointed from among the
remaining Lenders. Upon approval of any such successor agent by the Borrower,
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Notes. After any Administrative Agent's resignation or
replacement as Administrative Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
9.10 The Co-Managers. No Co-Manager in its capacity as such shall have any
rights, duties or responsibilities hereunder, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against any Co-Manager in its capacity as Co-Manager.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the relevant
Loan Parties written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Revolving Credit Loan or Note, or reduce the stated rate
of any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender directly
affected thereby, or (ii) amend, modify or waive any provision of this Section
10.1, reduce the percentage specified in the definition of Required Lenders or
Required Remedial Lenders, consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement and the other Loan
Documents, or release all or substantially all of the Subsidiaries from the
Subsidiary Guarantee, in each case without the written consent of all the
Lenders, or (iii) amend, modify or waive any provision of Section 3 without the
written consent of the Issuing Lender, or (iv) amend, modify or waive any
provision of Section 9 without the written consent of the then Administrative
Agent. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrower, the
other Loan Parties, the Lenders, the Administrative Agent and all future holders
of the Notes. In the case of any waiver, the Borrower, the other Loan Parties,
the Lenders and the Administrative Agent shall be restored to their former
position and rights hereunder and under the outstanding Notes and any other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
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10.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as notified to the Administrative Agent pursuant to an
administrative questionnaire in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto and
any future holders of the Notes:
The Borrower: Kimco Realty Corporation
0000 Xxx Xxxx Xxxx Xxxx, Xxxxx 000
New Hyde Park, New York 11042
Attention: Xxxxxxx X. Xxxxxxxxxx
Telecopy: 000-000-0000
The Administrative Agent: The Chase Manhattan Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy: 000-000-0000
with a copy to: The Chase Manhattan Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Investor Relations Group
Telecopy: 000-000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.2, 2.3 or 2.4 shall not be effective until
received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making of the extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the fees and disbursements of
counsel to the Administrative Agent; (b) to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including, without limitation, the
fees and
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disbursements of counsel to the Administrative Agent and to the several Lenders;
(c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents; and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents and any such other documents,
including, without limitation, any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower, any of its Subsidiaries or any of the Properties
(all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided, that the Borrower shall have no obligation hereunder to
the Administrative Agent or any Lender with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of the Administrative
Agent or such Lender, as the case may be. The agreements in this Section 10.5
shall survive repayment of the Notes and all other amounts payable hereunder.
10.6 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Borrower, the Lenders, the Administrative Agent, all
future holders of the Notes and their respective successors and assigns, except
that the Borrower may not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
Notwithstanding anything to the contrary in this Agreement, unless a Default or
Event of Default pursuant to Section 8(a) shall have occurred and be continuing,
neither Co-Manager may sell participating interests pursuant to Section 10.7 or
assignments pursuant to Section 10.8 if, after giving effect thereto, the
aggregate amount of such Co-Manager's retained Commitments which are not subject
to any participation shall be less than 15% of the aggregate Commitments of all
of the Lenders then in effect.
10.7 Participations. Any Lender may, in the ordinary course of its business
and in accordance with applicable law, at any time sell to one or more banks or
other entities (each, a "Participant") participating interests in any Revolving
Credit Loan owing to such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender hereunder and under the
other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Note for all purposes under this Agreement
and the Notes, and the Borrower and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the Notes. In no event shall any
Participant under any such participation have any right to approve any amendment
or waiver of any provision of this Agreement or any other Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
any Revolving Credit Loan or Note or any fees payable hereunder, or postpone the
date of the final maturity of any Revolving Credit Loan or Note, in each case to
the extent subject to such participation. The Borrower agrees that, while an
Event of Default shall have occurred and be continuing, if amounts outstanding
under this Agreement and the Notes are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of setoff in respect
of its participating interest in amounts owing under this Agreement and any Note
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement or any Note, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in Section
10.10(a) as fully as if it were a Lender
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hereunder. The Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 2.10, 2.11, 2.12 and 2.13 with respect to its
participation in the Commitments and the Revolving Credit Loans outstanding from
time to time as if it was a Lender; provided that, in the case of Section 2.12,
such Participant shall have complied with the requirements of said Section and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
Promptly after selling any participation pursuant to this Section 10.7, each
Lender shall notify the Administrative Agent in writing of the identity of the
Participant and the amount of such participation.
10.8 Assignments. (a) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate of any Lender or, with the consent of
the Issuing Lender and the Administrative Agent, to an additional bank,
financial institution or other entity (each, a "Purchasing Lender") all or any
part of its rights and obligations under this Agreement and the other Loan
Documents pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit B, executed by such Purchasing Lender, such assigning Lender (and, in
the case of a Purchasing Lender that is not a Lender or an affiliate thereof, by
the Issuing Lender and the Administrative Agent) and delivered to the
Administrative Agent for its acceptance and recording in the Register, provided,
that except in the case of an assignment of all of a Lender's rights and
obligations under this Agreement, the aggregate amount of the Commitments of the
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $15,000,000 or such lesser amount as may be
consented to by the Administrative Agent (which consent shall not be
unreasonably withheld). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Purchasing Lender thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein, and
(y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto).
(b) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not a Lender or an affiliate thereof, by the Issuing Lender and
the Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $4,000 (which shall not be payable by the
Borrower), the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) promptly after the effective date determined pursuant
thereto, record the information contained therein in the Register and give
notice of such acceptance and recordation to the Lenders and the Borrower. On or
prior to such effective date, the Borrower, at its own expense, shall execute
and deliver to the Administrative Agent a new Note (in exchange for the Note of
the assigning Lender) in an amount equal to the Commitment assumed by the
relevant Purchasing Lender pursuant to such Assignment and Acceptance, and, if
the assigning Lender has retained a Commitment hereunder, a new Note to the
order of the assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise
be in the form of the Notes replaced thereby.
10.9 The Register; Disclosure; Pledges to Federal Reserve Banks. (a) The
Administrative Agent shall maintain at its address referred to in Section 10.2
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders, the
Commitments of the Lenders, and the principal amount of the Revolving Credit
Loans owing to each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of clearly demonstrable error, and the Borrower,
the Administrative Agent and the Lenders
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may treat each Person whose name is recorded in the Register as the owner of the
Revolving Credit Loans recorded therein 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.
(b) Subject to Section 10.18, the Borrower authorizes each Lender to
disclose to any Participant or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(c) Nothing herein shall prohibit any Lender from pledging or assigning any
Note to any Federal Reserve Bank in accordance with applicable law.
10.10 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender") shall
at any time receive any payment of all or part of its Revolving Credit Loans or
the Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's
Revolving Credit Loans or the Reimbursement Obligations owing to it, or interest
thereon, such benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Revolving
Credit Loans or the Reimbursement Obligations owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder or under the Notes (whether at the stated maturity, by acceleration or
otherwise) to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
setoff and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and application.
10.11 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.12 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such
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provision in any other jurisdiction.
10.13 Integration. This Agreement and the other Loan Documents represent
the agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
10.14 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
10.15 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgement in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
10.16 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the
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Borrower and the Lenders.
10.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.18 Confidentiality. Each of the Administrative Agent and each Lender
agrees to keep confidential all non-public information provided to it by any
Loan Party pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate of any Lender, (b) to
any Transferee or prospective Transferee which agrees to comply with the
provisions of this Section 10.18, (c) to the employees, directors, agents,
attorneys, accountants and other professional advisors of such Lender or its
affiliates, (d) upon the request or demand of any Governmental Authority having
jurisdiction over the Administrative Agent or such 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 any litigation or similar proceeding, (g) which has been
publicly disclosed other than in breach of this Section 10.18, or (h) in
connection with the exercise of any remedy hereunder or under any other Loan
Document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
KIMCO REALTY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Title: V.P. & Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Co-Manager
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Manager
By: /s/ Xxxx Xxxxx
---------------------------------------
Title: Corporate Banking Officer
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The Lenders:
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxx Xxxxx
------------------------------
Title: Corporate Banking Officer
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