AMENDED AND RESTATED CREDIT AGREEMENT Dated as of March 15, 2005 by and among MAGUIRE PROPERTIES-PARK PLACE MASTER DEVELOPMENT, LLC, as Borrower WACHOVIA CAPITAL MARKETS, LLC, as Arranger, WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent,...
Exhibit
99.33
EXECUTION
VERSION
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 15, 2005
by and among
XXXXXXX PROPERTIES-PARK PLACE MASTER DEVELOPMENT, LLC,
as Borrower
WACHOVIA CAPITAL MARKETS, LLC,
as Arranger,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
and
THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO
AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5.,
as Lenders
Article
I. Definitions |
1 | |
Section 1.1.
Definitions. |
1 | |
Section 1.2.
General; References to Times. |
12 | |
Article
II. Credit Facility |
12 | |
Section 2.1.
Loans. |
12 | |
Section 2.2.
Rates and Payment of Interest on Loans. |
12 | |
Section 2.3.
Number of Interest Periods. |
13 | |
Section 2.4.
Repayment of Loans. |
13 | |
Section 2.5.
Prepayments. |
13 | |
Section 2.6.
Continuation. |
13 | |
Section 2.7.
Conversion. |
14 | |
Section 2.8.
Notes. |
14 | |
Section 2.9.
Borrower Representative. |
14 | |
Section 2.10.
Extension of Termination Date. |
15 | |
Article
III. Payments, Fees and Other General Provisions |
15 | |
Section 3.1.
Payments. |
15 | |
Section 3.2.
Pro Rata Treatment. |
15 | |
Section 3.3.
Sharing of Payments, Etc. |
16 | |
Section 3.4.
Several Obligations. |
16 | |
Section 3.5.
Minimum Amounts. |
16 | |
Section 3.6.
Fees. |
16 | |
Section 3.7.
Computations. |
17 | |
Section 3.8.
Usury. |
17 | |
Section 3.9.
Agreement Regarding Interest and Charges. |
17 | |
Section 3.10.
Statements of Account. |
17 | |
Section 3.11.
Defaulting Lenders. |
17 | |
Section 3.12.
Taxes. |
18 | |
Article
IV. Yield Protection, Etc. |
20 | |
Section 4.1.
Additional Costs; Capital Adequacy. |
20 | |
Section 4.2.
Suspension of LIBOR Loans. |
21 | |
Section 4.3.
Illegality. |
21 | |
Section 4.4.
Compensation. |
21 | |
Section 4.5.
Treatment of Affected Loans. |
22 | |
Section 4.6.
Change of Lending Office. |
22 | |
Section 4.7.
Assumptions Concerning Funding of LIBOR Loans. |
22 | |
Article
V. Conditions Precedent |
23 | |
Section 5.1.
Initial Conditions Precedent. |
23 | |
Section 5.2.
Additional Conditions Precedent to Effectiveness. |
25 | |
Article
VI. Representations and Warranties |
26 | |
Section 6.1.
Representations and Warranties. |
26 | |
Section 6.2.
Survival of Representations and Warranties, Etc. |
29 |
Article
VII. Affirmative Covenants |
30 | |
Section 7.1.
Preservation of Existence and Similar Matters. |
30 | |
Section 7.2.
Compliance with Applicable Law. |
30 | |
Section 7.3.
Maintenance of Property. |
30 | |
Section 7.4.
Conduct of Business. |
30 | |
Section 7.5.
Insurance. |
30 | |
Section 7.6.
Payment of Taxes and Claims. |
31 | |
Section 7.7.
Visits and Inspections. |
31 | |
Section 7.8.
Use of Proceeds. |
31 | |
Section 7.9.
Environmental Matters. |
31 | |
Section 7.10.
Books and Records. |
32 | |
Section 7.11.
Further Assurances. |
32 | |
Section 7.12.
Certain Covenants of OP Credit Agreement. |
32 | |
Article
VIII. Information |
32 | |
Section 8.1.
Financial Information |
32 | |
Section 8.2.
Information Provided under OP Credit Agreement. |
33 | |
Section 8.3.
Other Information. |
33 | |
Article
IX. Negative Covenants |
33 | |
Section 9.1.
Indebtedness. |
33 | |
Section 9.2.
Investments. |
34 | |
Section 9.3.
Liens. |
34 | |
Section 9.4.
Negative Pledges. |
34 | |
Section 9.5.
Merger, Consolidation, Sales of Assets, Etc. |
34 | |
Section 9.6.
Fiscal Year. |
34 | |
Section 9.7.
Modifications to Material Contracts. |
34 | |
Section 9.8.
Modifications of Organizational Documents. |
34 | |
Section 9.9.
Transactions with Affiliates. |
34 | |
Section 9.10.
ERISA. |
35 | |
Section 9.11.
Bosa Contract |
35 | |
Article
X. Default |
35 | |
Section 10.1.
Events of Default. |
35 | |
Section 10.2.
Remedies Upon Event of Default. |
37 | |
Section 10.3.
Allocation of Proceeds. |
38 | |
Section 10.4.
Performance by Agent. |
39 | |
Section 10.5.
Rights Cumulative. |
39 | |
Article
XI. The Agent |
39 | |
Section 11.1.
Authorization and Action. |
39 | |
Section 11.2.
Agent’s Reliance, Etc. |
40 | |
Section 11.3.
Notice of Defaults. |
41 | |
Section 11.4.
Wachovia as Lender. |
41 | |
Section
11.5. Approvals of Lenders. |
41 | |
Section 11.6.
Lender Credit Decision, Etc. |
41 | |
Section 11.7.
Indemnification of Agent. |
42 | |
Section 11.8.
Successor Agent. |
43 |
Article
XII. Miscellaneous |
43 | |
Section 12.1.
Notices. |
43 | |
Section 12.2.
Expenses. |
44 | |
Section 12.3.
Setoff. |
44 | |
Section 12.4.
Litigation; Jurisdiction; Other Matters; Waivers. |
45 | |
Section 12.5.
Successors and Assigns. |
46 | |
Section 12.6.
Amendments. |
47 | |
Section 12.7.
Nonliability of Agent and Lenders. |
49 | |
Section 12.8.
Confidentiality. |
49 | |
Section 12.9.
Indemnification. |
49 | |
Section 12.10.
Termination; Survival. |
51 | |
Section 12.11.
Severability of Provisions. |
51 | |
Section 12.12.
GOVERNING LAW. |
51 | |
Section 12.13.
Patriot Act. |
51 | |
Section 12.14.
Counterparts. |
52 | |
Section 12.15.
Obligations with Respect to Loan Parties. |
52 | |
Section 12.16.
Limitation of Liability. |
52 | |
Section 12.17.
Entire Agreement. |
52 | |
Section 12.18.
Construction. |
52 | |
Section 12.19.
OP Credit Agreement Provisions. |
52 |
THIS
AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of March 15,
2005 by and among XXXXXXX
PROPERTIES-PARK PLACE MASTER DEVELOPMENT, LLC,
a limited liability company formed under the laws of the State of Delaware (the
“Borrower”), each of the financial institutions initially a signatory hereto
together with their assignees pursuant to Section 12.5.(d), WACHOVIA
BANK, NATIONAL ASSOCIATION,
as Agent, and WACHOVIA CAPITAL MARKETS, LLC, as Arranger (the
“Arranger”).
WHEREAS,
the Borrower, Xxxxxxx Properties-Park Place Hotel,
LLC,
a limited liability company formed under the laws of the State of Delaware
(“Xxxxxxx Hotel”), Xxxxxxx
Properties-Park Place Parking, LLC, a limited liability company formed under the
laws of the State of Delaware (“Xxxxxxx Parking”), Xxxxxxx
Properties-Park Place Shops,
LLC,
a limited liability company formed under the laws of the State of Delaware
(“Xxxxxxx Shops”), Xxxxxxx
Properties-Park Place SP Development,
LLC,
a limited liability company formed under the laws of the State of Delaware
(“Xxxxxxx XX Development”), Xxxxxxx
Properties-3121 Xxxxxxxxx,
LLC,
a limited liability company formed under the laws of the State of Delaware
(“3121 Xxxxxxxxx”) and Xxxxxxx
Properties-3161 Xxxxxxxxx,
LLC,
a limited liability company formed under the laws of the State of Delaware
(“3161 Xxxxxxxxx”) entered
into a Credit Agreement with the Lenders and the Agent dated as of July 22, 2004
(the “Original Credit Agreement”), pursuant to which the Lenders made term loans
to the Borrower, Xxxxxxx Hotel, Xxxxxxx Parking, Xxxxxxx Shops, Xxxxxxx XX
Development, 3121 Xxxxxxxxx and 3161 Xxxxxxxxx.
WHEREAS,
the parties hereto desire to enter into this Agreement to amend and restate the
terms of the Original Credit Agreement (a) to remove Xxxxxxx Hotel, Xxxxxxx
Parking, Xxxxxxx Shops, Xxxxxxx XX Development, 3121 Xxxxxxxxx and 3161
Xxxxxxxxx as co-borrowers; (b) to amend certain of the provisions of the
Original Credit Agreement; (c) to incorporate certain of the terms of the OP
Credit Agreement into this Agreement; (d) to grant the Lenders a mortgage in a
portion of the Acquisition Property; and (e) for the other purposes provided for
herein.
WHEREAS,
it is the intent of the parties hereto that this Agreement not constitute a
novation of the obligations and liabilities existing under the Original Credit
Agreement or evidence repayment of any of such obligations and liabilities
(except as expressly provided herein) and that this Agreement amend and restate
in its entirety the Original Credit Agreement and re-evidence the obligations of
the Borrower outstanding thereunder;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, the parties hereto agree
that the Original Credit Agreement is amended and restated in its entirety as
follows:
Article
I. Definitions
Section 1.1.
Definitions.
In
addition to terms defined elsewhere herein, the following terms shall have the
following meanings for the purposes of this Agreement:
“Acquisition
Property”
means the approximately 90.9 acre parcels of real property, together with all
improvements thereon, known as “Park Place II,” located adjacent to the San
Diego Freeway (Interstate 405) at the Jamboree Road exit and Xxxxxxxxx Drive, in
Irvine, California, as more particularly described on
Schedule 1.1.(A).
1
“Additional
Costs”
has the meaning given that term in Section 4.1.
“Adjusted
LIBOR”
means, with respect to each Interest Period for any LIBOR Loan, the rate
obtained by dividing (a) LIBOR for such Interest Period by (b) a
percentage equal to 1 minus the stated maximum rate (stated as a decimal) of all
reserves, if any, required to be maintained with respect to Eurocurrency funding
(currently referred to as “Eurocurrency liabilities”) as specified in
Regulation D of the Board of Governors of the Federal Reserve System (or
against any other category of liabilities which includes deposits by reference
to which the interest rate on LIBOR Loans is determined or any applicable
category of extensions of credit or other assets which includes Loans by an
office of any Lender outside of the United States of America to residents of the
United States of America). Any change in such maximum rate shall result in a
change in Adjusted LIBOR on the date on which such change in such maximum rate
becomes effective.
“Affiliate”
means any Person (other than the Agent or any Lender): (a) directly or
indirectly controlling, controlled by, or under common control with, the
Borrower; (b) directly or indirectly owning or holding 10% or more of any
Equity Interest in the Borrower; or (c) 10% or more of whose voting stock
or other Equity Interest is directly or indirectly owned or held by the
Borrower. For purposes of this definition, “control” (including with correlative
meanings, the terms “controlling”, “controlled by” and “under common control
with”) means the possession directly or indirectly of the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities or by contract or otherwise. The Affiliates
of a Person shall include any officer or director of such Person. In no event
shall the Agent or any Lender be deemed to be an Affiliate of the
Borrower.
“Agent”
means Wachovia Bank, National Association, as contractual representative for the
Lenders under the terms of this Agreement, and any of its
successors.
“Applicable
Law”
means all applicable provisions of constitutions, statutes, rules, regulations
and orders of all governmental bodies and all orders and decrees of all courts,
tribunals and arbitrators.
“Applicable
Margin”
means (a) 1.75% with respect to a LIBOR Loan and (b) 0.75% with respect to a
Base Rate Loan.
“Arranger”
means Wachovia Capital Markets, LLC, together with its successors and permitted
assigns.
“Assignee”
has the meaning given that term in Section 12.5.(d).
“Assignment
and Acceptance Agreement”
means an Assignment and Acceptance Agreement among a Lender, an Assignee and the
Agent, substantially in the form of Exhibit A.
“Assignment
of Leases and Rents”
means an Assignment of Leases and Rents executed by the Borrower in favor of the
Agent granting a Lien to the Agent the for the benefit of the Lenders in all or
a portion of the rents from, and leases of, the Mortgaged Property as security
for the Obligations.
“Bankruptcy
Code”
means the Bankruptcy Code of 1978, as amended.
“Base
Rate”
means the per annum rate of interest equal to the greater of (a) the Prime
Rate or (b) the Federal Funds Rate plus one-half of one percent (0.5%). Any
change in the Base Rate resulting from a change in the Prime Rate or the Federal
Funds Rate shall become effective as of 12:01 a.m. on the Business Day on which
each such change occurs. The Base Rate is a reference rate used by the Lender
acting as the Agent in determining interest rates on certain Loans and is not
intended to be the lowest rate
2
of
interest charged by the Lender acting as the Agent or any other Lender on any
extension of credit to any debtor.
“Base
Rate Loan”
means a Loan bearing interest at a rate based on the Base Rate.
“Borrower”
has the meaning set forth in the introductory paragraph hereof and shall include
the Borrower’s respective successors and permitted assigns.
“Borrower
Representative”
means the Operating Partnership which is the sole manager of the
Borrower.
“Bosa”
means Bosa Development Corporation, together with its successors and permitted
assigns.
“Bosa
Collateral Assignment”
means the Collateral Assignment of Bosa Contract dated as of July 22, 2004 and
executed by the Borrower in favor of the Agent.
“Bosa
Contract”
means that certain Sale Agreement and Joint Escrow Instructions dated as of May
5, 2003, between Park Place Development LLC and Irvine Residential Highrise 2
LLC, as amended by that certain First Addendum to Sale Agreement and Joint
Escrow Instructions, dated as of June 20, 2003, that certain Second Addendum to
Sale Agreement and Joint Escrow Instructions, dated as of September 3, 2004,
that certain Third Addendum to Sale Agreement and Joint Escrow Instructions,
dated as of September 30, 2004, that Fourth Addendum to Sale Agreement and Joint
Escrow Instructions, dated as of February __, 2005, and as assigned to Xxxxxxx
Properties-Park Place Master Development, LLC
“Business
Day”
means (a) any day other than a Saturday, Sunday or other day on which banks
in Charlotte, North Carolina are authorized or required to close and
(b) with reference to a LIBOR Loan, any such day that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
“Capitalized
Lease Obligation”
means an obligation under a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP. The amount of a
Capitalized Lease Obligation is the capitalized amount of such obligation as
would be required to be reflected on a balance sheet of the applicable Person
prepared in accordance with GAAP as of the applicable date.
“Cash
Equivalents”
means: (a) securities issued, guaranteed or insured by the United States of
America or any of its agencies with maturities of not more than one year from
the date acquired; (b) certificates of deposit with maturities of not more
than one year from the date acquired issued by a United States federal or state
chartered commercial bank of recognized standing, or a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, acting through a branch or agency, which bank has capital and
unimpaired surplus in excess of $500,000,000 and which bank or its holding
company has a short-term commercial paper rating of at least A-2 or the
equivalent by Standard & Poor’s Ratings Group or at least P-2 or the
equivalent by Xxxxx’x Investors Service, Inc.; (c) reverse repurchase
agreements with terms of not more than seven days from the date acquired, for
securities of the type described in clause (a) above and entered into only
with commercial banks having the qualifications described in clause (b)
above; (d) commercial paper issued by any Person incorporated under the
laws of the United States of America or any State thereof and rated at least A-2
or the equivalent thereof by Standard & Poor’s Ratings Group or at least P-2
or the equivalent thereof by Xxxxx’x Investors Service, Inc., in each case with
maturities of not more than one year from the date acquired; and
(e) investments in money market funds registered under the Investment
Company Act of
3
1940,
which have net assets of at least $500,000,000 and at least 85% of whose assets
consist of securities and other obligations of the type described in
clauses (a) through (d) above.
“Collateral”
means any real or personal property directly or indirectly securing any of the
Obligations or any other obligation of any Loan Party under or in respect of any
Loan Document, and includes the Mortgaged Property.
“Commitment”
means, as to each Lender, the amount set forth for such Lender on its signature
page hereto as such Lender’s “Commitment Amount” or as set forth in the
applicable Assignment and Acceptance Agreement.
“Commitment
Percentage”
means, as to each Lender, the ratio, expressed as a percentage, of (a) the
outstanding principal balance of the Loan owed to such Lender to (b) the
aggregate outstanding principal balance of all Loans.
“Continue”,
“Continuation”
and “Continued”
each refers to the continuation of a LIBOR Loan from one Interest Period to
another Interest Period pursuant to Section 2.6.
“Convert”,
“Conversion”
and “Converted”
each refers to the conversion of a Loan of one Type into a Loan of another Type
pursuant to Section 2.7.
“Default”
means any of the events specified in Section 10.1., whether or not there
has been satisfied any requirement for the giving of notice, the lapse of time,
or both.
“Defaulting
Lender”
has the meaning set forth in Section 3.11.
“Derivatives
Contract”
means any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement. Not in limitation of the foregoing, the term “Derivatives
Contract” includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by,
any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement, including any such obligations or
liabilities under any such master agreement.
“Derivatives
Termination Value”
means, in respect of any one or more Derivatives Contracts, after taking into
account the effect of any legally enforceable netting agreement relating to such
Derivatives Contracts, (a) for any date on or after the date such
Derivatives Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Derivatives Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Derivatives Contracts (which may include the Agent or
any Lender).
“Dollars”
or “$”
means the lawful currency of the United States of America.
4
“Effective
Date”
means the later of: (a) the Restatement Date; and (b) the date on
which all of the conditions precedent set forth in Section 5.1. shall have
been fulfilled or waived in writing by the Requisite Lenders.
“Eligible
Assignee”
means any Person who is: (i) currently a Lender or an affiliate of a
Lender; (ii) a commercial bank, trust, trust company, insurance company,
investment bank or pension fund organized under the laws of the United States of
America, or any state thereof, and having total assets in excess of
$5,000,000,000; (iii) a savings and Loan association or savings bank
organized under the laws of the United States of America, or any state thereof,
and having a tangible net worth of at least $500,000,000; or (iv) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such Person is not currently a
Lender or an affiliate of a Lender, such Person’s (or its parent’s) senior
unsecured long term indebtedness must be rated BBB or higher by Standard &
Poor’s Ratings Group, Baa2 or higher by Xxxxx’x Investors Service, Inc., or the
equivalent or higher of either such rating by another rating agency acceptable
to the Agent.
“Entitlements”
means any and all governmental permits, approvals, inspections, orders,
certificates and the like issued to or for the benefit of Borrower in connection
with the development, construction, use and/or occupancy of the Mortgaged
Property.
“Environmental
Laws”
means any Applicable Law relating to environmental protection or the
manufacture, storage, remediation, disposal or clean-up of Hazardous Materials
including, without limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et
seq.; Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act, 42
U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act,
42 U.S.C. § 4321 et seq.; regulations of the Environmental Protection Agency and
any applicable rule of common law and any judicial interpretation thereof
relating primarily to the environment or Hazardous Materials.
“Equity
Interest”
means, with respect to any Person, any share of capital stock of (or other
ownership or profit interests in) such Person, any warrant, option or other
right for the purchase or other acquisition from such Person of any share of
capital stock of (or other ownership or profit interests in) such Person, any
security convertible into or exchangeable for any share of capital stock of (or
other ownership or profit interests in) such Person or warrant, right or option
for the purchase or other acquisition from such Person of such shares (or such
other interests), and any other ownership or profit interest in such Person
(including, without limitation, partnership, member or trust interests therein),
whether voting or nonvoting, and whether or not such share, warrant, option,
right or other interest is authorized or otherwise existing on any date of
determination.
“Event
of Default”
means any of the events specified in Section 10.1., provided that any
requirement for notice or lapse of time or any other condition has been
satisfied.
“Federal
Funds Rate”
means, for any day, the rate per annum (rounded upward to the nearest 1/100th of
1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day, and (b) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the
5
Agent
by federal funds dealers selected by the Agent on such day on such transaction
as determined by the Agent.
“Fees”
means the fees and commissions provided for or referred to in Section 3.6.
and any other fees payable by the Borrower hereunder or under any other Loan
Document.
“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
“Governmental
Approvals”
means all authorizations, consents, approvals, licenses and exemptions of,
registrations and filings with, and reports to, all Governmental
Authorities.
“Governmental
Authority”
means any national, state or local government (whether domestic or foreign), any
political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau,
commission, board, department or other entity (including, without limitation,
the Federal Deposit Insurance Corporation, the Comptroller of the Currency or
the Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
“Guarantor”
means each of the Operating Partnership and the REIT Parent, together with their
respective successors and permitted assigns.
“Guaranty”,
“Guaranteed”,
“Guarantying”
or to “Guarantee”
as applied to any obligation means and includes: (a) a guaranty (other than
by endorsement of negotiable instruments for collection or deposit in the
ordinary course of business), directly or indirectly, in any manner, of any part
or all of such obligation, or (b) an agreement, direct or indirect,
contingent or otherwise, and whether or not constituting a guaranty, the
practical effect of which is to assure the payment or performance (or payment of
damages in the event of nonperformance) of any part or all of such obligation
whether by: (i) the purchase of securities or obligations, (ii) the
purchase, sale or lease (as lessee or lessor) of property or the purchase or
sale of services primarily for the purpose of enabling the obligor with respect
to such obligation to make any payment or performance (or payment of damages in
the event of nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss,
(iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn
down by beneficiaries of letters of credit, or (v) the supplying of funds
to or investing in a Person on account of all or any part of such Person’s
obligation under a Guaranty of any obligation.
“Hazardous
Materials”
means all or any of the following: (a) substances that are defined or
listed in, or otherwise classified pursuant to, any applicable Environmental
Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”,
“toxic substances” or any other formulation intended to define, list or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity
or “EP toxicity”; (b) oil, petroleum or petroleum derived substances,
natural gas, natural gas liquids or synthetic gas and drilling fluids, produced
waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (c) any
flammable substances or explosives or any radioactive materials;
(d) asbestos in any form; (e) toxic mold; and (f) electrical
equipment which contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million.
6
“Indebtedness”
means, with respect to a Person, at the time of computation thereof, all of the
following (without duplication): (a) all obligations of such Person in
respect of money borrowed (other than trade debt incurred in the ordinary course
of business which is not more than 60 days past due); (b) all obligations
of such Person, whether or not for money borrowed (i) represented by notes
payable, or drafts accepted, in each case representing extensions of credit,
(ii) evidenced by bonds, debentures, notes or similar instruments, or
(iii) constituting purchase money indebtedness, conditional sales
contracts, title retention debt instruments or other similar instruments, upon
which interest charges are customarily paid or that are issued or assumed as
full or partial payment for property or services rendered; (c) Capitalized
Lease Obligations of such Person; (d) all reimbursement obligations of such
Person under any letters of credit or acceptances (whether or not the same have
been presented for payment); (e) all Off-Balance Sheet Obligations of such
Person; (f) all obligations of such Person in respect of any purchase
obligation, repurchase obligation, takeout commitment or forward equity
commitment, in each case evidenced by a binding agreement (excluding any such
obligation to the extent the obligation can be satisfied by the issuance of
Equity Interests); (g) net obligations under any Derivatives Contract not
entered into as a hedge against existing Indebtedness, in an amount equal to the
Derivatives Termination Value thereof; (h) all
Indebtedness of other Persons which such Person has Guaranteed or is otherwise
recourse to such Person (except for guaranties of customary exceptions for
fraud, misapplication of funds, environmental indemnities and other similar
exceptions to recourse liability (but not exceptions relating to bankruptcy,
insolvency, receivership or other similar events)); and (i) all
Indebtedness of another Person secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property or assets owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness or other
payment obligation. All Loans shall constitute Indebtedness of the
Borrower.
“Intellectual
Property”
has the meaning given that term in Section 6.1.(t).
“Interest
Period”
means with respect to any LIBOR Loan, each period commencing on the date such
LIBOR Loan is made or the last day of the next preceding Interest Period for
such Loan and ending 1, 2 or 3 months thereafter, as the Borrower may select in
a Notice of Continuation or a Notice of Conversion, as the case may be, except
that each Interest Period that commences on the last Business Day of a calendar
month shall end on the last Business Day of the appropriate subsequent calendar
month. Notwithstanding the foregoing (a) if any Interest Period would
otherwise end after the Termination Date, such Interest Period shall end on the
Termination Date and (b) each Interest Period that would otherwise end on a
day which is not a Business Day shall end on the immediately following Business
Day (or, if such immediately following Business Day falls in the next calendar
month, on the immediately preceding Business Day).
“Internal
Revenue Code”
means the Internal Revenue Code of 1986, as amended.
“Investment”
means, with respect to any Person, any acquisition or investment (whether or not
of a controlling interest) by such Person, by means of any of the following:
(a) the purchase or other acquisition of any Equity Interest in another
Person, (b) a Loan, advance or extension of credit to, capital contribution to,
Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture
interest in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute the business or a division or operating unit of another Person. Any
binding commitment to make an Investment in any other Person, as well as any
option of another Person to require an Investment in such Person, shall
constitute an Investment. Except as expressly provided otherwise, for purposes
of determining compliance with any covenant contained in a Loan Document, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
7
“Lender”
means each financial institution from time to time party hereto as a “Lender”
together with its respective successors and permitted assigns.
“Lending
Office”
means, for each Lender and for each Type of Loan, the office of such Lender
specified as such on its signature page hereto or in the applicable Assignment
and Acceptance Agreement, or such other office of such Lender of which such
Lender may notify the Agent in writing from time to time.
“LIBOR”
means, for any LIBOR Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London interbank offered rate
for deposits in Dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable to
such Interest Period. If for any reason such rate is not available, the term
“LIBOR” shall mean, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on the Reuters Screen LIBO Page as the London interbank offered rate
for deposits in Dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is specified on
the Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean
of all such rates. If for any reason none of the foregoing rates is available,
LIBOR shall be, for any Interest Period, the rate per annum reasonably
determined by the Agent as the rate of interest at which Dollar deposits in the
approximate amount of the LIBOR Loan comprising part of such borrowing would be
offered by the Agent to major banks in the London interbank Eurodollar market at
their request at or about 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period for a term comparable to such Interest
Period.
“LIBOR
Loan”
means a Loan bearing interest at a rate based on LIBOR.
“Lien”
as applied to the property of any Person means: (a) any security interest,
encumbrance, mortgage, deed to secure debt, deed of trust, assignment of leases
and rents, pledge, lien, charge or lease constituting a Capitalized Lease
Obligation, conditional sale or other title retention agreement, or other
security title or encumbrance of any kind in respect of any property of such
Person, or upon the income, rents or profits therefrom; (b) the filing of
any financing statement under the Uniform Commercial Code or its equivalent in
any jurisdiction, other than any precautionary filing not otherwise constituting
or giving rise to a Lien, including a financing statement filed (i) in respect
of a lease not constituting a Capitalized Lease Obligation pursuant to Section
9-505 (or a successor provision) of the Uniform Commercial Code or its
equivalent as in effect in an applicable jurisdiction or (ii) in connection with
a sale or other disposition of accounts or other assets not prohibited by this
Agreement in a transaction not otherwise constituting or giving rise to a Lien;
and (c) any agreement by such Person to grant, give or otherwise convey any
of the foregoing.
“Loan”
means a term Loan made by a Lender to the Borrower pursuant to
Section 2.1.(a).
“Loan
Document”
means this Agreement, each Note, the Parent Guaranty, each Security Document and
each other document or instrument now or hereafter executed and delivered by a
Loan Party in connection with, pursuant to or relating to this
Agreement.
“Loan
Party”
means the Borrower and each Guarantor.
“Material
Adverse Effect”
means a materially adverse effect on (a) the business, assets, liabilities,
condition (financial or otherwise), or results of operations of the Loan Parties
taken as a whole,
8
(b) the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party, (c) the validity or enforceability of any of the Loan
Documents, and (d) the rights and remedies of the Lenders and the Agent
under any of the Loan Documents.
“Material
Contract”
means any contract or other arrangement (other than Loan Documents) to which the
Borrower is a party as to which the breach, nonperformance, cancellation or
failure to renew by any party thereto could reasonably be expected to have a
Material Adverse Effect and in any event shall include the Bosa
Contract.
“Mortgaged
Property”
means the approximately 42 acre parcels of real property, together with all
improvements thereon and Entitlements, as more particularly described on
Schedule 1.1.(B).
“Negative
Pledge”
means, with respect to a given asset, any provision of a document, instrument or
agreement (other than any Loan Document) which prohibits or purports to prohibit
the creation or assumption of any Lien on such asset as security for
Indebtedness of the Person owning such asset or any other Person.
“Nonrecourse
Indebtedness”
means, with respect to a Person, Indebtedness for borrowed money in respect of
which recourse for payment (except for customary exceptions for fraud,
misapplication of funds, environmental indemnities, and other similar exceptions
to recourse liability (but not exceptions relating to bankruptcy, insolvency,
receivership or other similar events)) is contractually limited to specific
assets of such Person encumbered by a Lien securing such
Indebtedness.
“Note”
has the meaning given that term in Section 2.8.(a).
“Notice
of Continuation”
means a notice in the form of Exhibit C to be delivered to the Agent
pursuant to Section 2.6. evidencing the Borrower’s request for the
Continuation of a LIBOR Loan.
“Notice
of Conversion”
means a notice in the form of Exhibit D to be delivered to the Agent
pursuant to Section 2.7. evidencing the Borrower’s request for the
Conversion of a Loan from one Type to another Type.
“Obligations”
means, individually and collectively, the aggregate principal balance of, and
all accrued and unpaid interest on, all Loans, and all other indebtedness,
liabilities and obligations of the Borrower and the other Loan Parties owing to
the Agent or any Lender of every kind, nature and description, under or in
respect of this Agreement or any of the other Loan Documents, including, without
limitation, the Fees and indemnification obligations, whether direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any promissory
note.
“Off-Balance
Sheet Obligations”
means liabilities and obligations of the Borrower in respect of “off-balance
sheet arrangements” (as defined in the SEC Off-Balance Sheet Rules) which the
REIT Parent would be required to disclose in the “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” section of the REIT
Parent’s report on Form 10-Q or Form 10-K (or their equivalents) which the REIT
Parent is required to file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor). As used in this definition, the
term “SEC Off-Balance Sheet Rules” means the Disclosure in Management’s
Discussion and Analysis About Off-Balance Sheet Arrangements, Securities Act
Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts.
228, 229 and 249).
9
“Operating
Partnership”
means Xxxxxxx Properties, L.P., together with it successors and permitted
assigns.
“OP
Credit Agreement”
means that certain Credit Agreement dated as of March 15, 2005 by and among the
Operating Partnership, the REIT Parent, Xxxxxxx Properties Holdings I, LLC, the
Persons party thereto as “Guarantors,” the Persons party thereto as “Lenders,”
Credit Suisse First Boston, as Administrative Agent and Collateral Agent, and
the other parties thereto.
“OP
Credit Agreement ERISA Default”
means any event or condition set forth in subsections (l), (m) or (n) of
Section 6.01 of the OP Credit Agreement.
“OP
Credit Agreement Representations”
means the representations and warranties set forth in subsections (a), (f), (i)
[solely with respect to forecasted balance sheets, statement of income and
statements of cash flows delivered under Section 5.03 of the OP Credit
Agreement], (k), (l), (n) and (p) of Section 4.01 of the OP Credit
Agreement.
“Parent
Guaranty”
means the Guaranty dated as of July 22, 2004 and executed by the Guarantors in
favor of the Agent and the Lenders.
“Participant”
has the meaning given that term in Section 12.5.(c).
“PBGC”
means the Pension Benefit Guaranty Corporation and any successor
agency.
“Permitted
Liens”
means, as to any Person: (a) Liens securing taxes, assessments and other
charges or levies imposed by any Governmental Authority (excluding any Lien
imposed pursuant to any of the provisions of ERISA or pursuant to any
Environmental Laws) or the claims of materialmen, mechanics, carriers,
warehousemen or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, which are not at the time required to be paid
or discharged under Section 7.6.; (b) Liens consisting of deposits or
pledges made, in the ordinary course of business, in connection with, or to
secure payment of, obligations under workers’ compensation, unemployment
insurance or similar Applicable Laws; (c) Liens consisting of encumbrances
in the nature of zoning restrictions, easements, and rights or restrictions of
record on the use of real property, which do not materially detract from the
value of such property or impair the intended use thereof in the business of
such Person; (d) the rights of tenants under leases or subleases not
interfering with the ordinary conduct of business of such Person; (e) Liens
in favor of the Agent for the benefit of the Lenders; and (f) Liens in
existence as of the Restatement Date and set forth in Schedule B to the title
commitment delivered to the Agent pursuant to Section 5.2.(a).
“Person”
means an individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government or any agency
or political subdivision thereof.
“Post-Default
Rate”
means, in respect of any principal of any Loan or any other Obligation that is
not paid when due (whether at stated maturity, by acceleration, by optional or
mandatory prepayment or otherwise), a rate per annum equal to the Base Rate as
in effect from time to time plus
the Applicable Margin for Base Rate Loans plus
four percent (4.0%).
“Prime
Rate”
means the rate of interest per annum announced publicly by the Lender then
acting as the Agent as its prime rate from time to time. The Prime Rate is not
necessarily the best or the lowest rate of interest offered by the Lender acting
as the Agent or any other Lender.
10
“Principal
Office”
means the office of the Agent located at One Wachovia Center, Charlotte, North
Carolina, or such other office of the Agent as the Agent may designate from time
to time.
“Register”
has the meaning given that term in Section 12.5.(e).
“Regulatory
Change”
means, with respect to any Lender, any change effective after the Restatement
Date in Applicable Law (including without limitation, Regulation D of the Board
of Governors of the Federal Reserve System) or the adoption or making after such
date of any interpretation, directive or request applying to a class of banks,
including such Lender, of or under any Applicable Law (whether or not having the
force of law and whether or not failure to comply therewith would be unlawful)
by any Governmental Authority or monetary authority charged with the
interpretation or administration thereof or compliance by any Lender with any
request or directive regarding capital adequacy.
“REIT
Parent”
means Xxxxxxx Properties, Inc., together with its successors and permitted
assigns.
“Requisite
Lenders”
means, as of any date, (a) all Lenders, if there are fewer than three
Lenders at such time or (b) Lenders holding at least 66-2/3% of the
principal amount of the aggregate outstanding Loans. Loans held by Defaulting
Lenders shall be disregarded when determining the Requisite
Lenders.
“Restatement
Date”
means the date as of which this Agreement is dated.
“Securities
Act”
means the Securities Act of 1933, as amended from time to time, together with
all rules and regulations issued thereunder.
“Security
Deed”
means a mortgage, deed of trust, deed to secure debt or similar security
instrument executed by the Borrower in favor of the Agent granting a Lien to the
Agent the for the benefit of the Lenders in all or a portion of the Mortgaged
Property as security for the Obligations.
“Security
Document”
means the Security Deed, the Assignment of Leases and Rents and any other
security agreement, financing statement, or other document, instrument or
agreement creating, evidencing or perfecting the Agent’s Liens in any of the
Collateral.
“Solvent”
means, when used with respect to any Person, that (a) the fair value and
the fair salable value of its assets (excluding any Indebtedness due from any
affiliate of such Person) are each in excess of the fair valuation of its total
liabilities (including all contingent liabilities computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that could reasonably be expected to become an actual and matured
liability); (b) such Person is able to pay its debts or other obligations
in the ordinary course as they mature; and (c) such Person has capital not
unreasonably small to carry on its business and all business in which it
proposes to be engaged.
“Subsidiary”
means, for any Person, any corporation, partnership or other entity of which at
least a majority of the Equity Interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other individuals
performing similar functions of such corporation, partnership or other entity
(without regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person, and
shall include all Persons the accounts of which are consolidated with those of
such Person pursuant to GAAP.
“Taxes”
has the meaning given that term in Section 3.12.
11
“Termination
Date”
means July 22, 2005, or such later date to which the Termination Date may be
extended pursuant to Section 2.10.
“Type”
with respect to any Loan, refers to whether such Loan is a LIBOR Loan or Base
Rate Loan.
“Wachovia”
means Wachovia Bank, National Association, together with its successors and
assigns.
“Wholly
Owned Subsidiary”
means any Subsidiary of a Person in respect of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors’ qualifying shares) are at the time directly or
indirectly owned or controlled by such Person or one or more other Subsidiaries
of such Person or by such Person and one or more other Subsidiaries of such
Person.
Section 1.2.
General; References to Times.
Unless
otherwise indicated, all accounting terms, ratios and measurements shall be
interpreted or determined in accordance with GAAP. References in this Agreement
to “Sections”, “Articles”, “Exhibits” and “Schedules” are to sections, articles,
exhibits and schedules herein and hereto unless otherwise indicated.
References
in this Agreement to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall
include all documents, instruments or agreements issued or executed in
replacement thereof, to the extent permitted hereby and (c) shall mean such
document, instrument or agreement, or replacement or predecessor thereto, as
amended, supplemented, restated or otherwise modified as of the date of this
Agreement and from time to time thereafter to the extent not prohibited hereby
and in effect at any given time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the
singular and plural, and pronouns stated in the masculine, feminine or neuter
gender shall include the masculine, the feminine and the neuter. Unless
explicitly set forth to the contrary, a reference to “Subsidiary” means a
Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a reference to
an “Affiliate” means an Affiliate of the Borrower. Titles and captions of
Articles, Sections, subsections and clauses in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement. Unless otherwise indicated, all references to time are references to
Charlotte, North Carolina time.
Article
II. Credit Facility
Section 2.1.
Loans.
On
the Effective Date (as defined in the Original Credit Agreement) each Lender
made a Loan to the Borrower and each of the other Borrowers (as defined in the
Original Credit Agreement) in a principal amount equal to such Lender’s
Commitment, $44,000,000 of
which remains outstanding as of the Restatement Date. Once repaid, the Borrower
may not reborrow the principal amount of any Loans hereunder.
Section 2.2.
Rates and Payment of Interest on Loans.
(a) Rates.
The Borrower promises to pay to the Agent for the account of each Lender
interest on the unpaid principal amount of each Loan made by such Lender for the
period from and including the date of the making of such Loan to but excluding
the date such Loan shall be paid in full, at the following per annum
rates:
12
(i) during
such periods as such Loan is a Base Rate Loan, at the Base Rate (as in effect
from time to time) plus the Applicable Margin; and
(ii) during
such periods as such Loan is a LIBOR Loan, at Adjusted LIBOR for such Loan for
the Interest Period therefor plus the Applicable Margin.
Notwithstanding
the foregoing, during the continuance of an Event of Default, the Borrower shall
pay to the Agent for the account of each Lender interest at the Post-Default
Rate on the outstanding principal amount of any Loan made by such Lender and on
any other amount payable by the Borrower hereunder or under the Notes held by
such Lender to or for the account of such Lender (including without limitation,
accrued but unpaid interest to the extent permitted under Applicable Law).
(b) Payment
of Interest.
Accrued and unpaid interest on each Loan shall be payable (i) in the case
of a Base Rate Loan, monthly in arrears on the first day of each calendar month,
(ii) in the case of a LIBOR Loan, in arrears on the last day of each
Interest Period therefor and (iii) in the case of any Loan, in arrears upon
the payment, prepayment or Continuation thereof or the Conversion of such Loan
to a Loan of another Type (but only on the principal amount so paid, prepaid,
Continued or Converted). Interest payable at the Post-Default Rate shall be
payable from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Borrower. All determinations by the Agent of an interest rate hereunder shall be
conclusive and binding on the Lenders and the Borrower for all purposes, absent
manifest error.
Section 2.3.
Number of Interest Periods.
There
may be no more than 3 different Interest Periods for LIBOR Loans outstanding at
the same time.
Section 2.4.
Repayment of Loans.
The
Borrower shall repay the entire outstanding principal amount of, and all accrued
but unpaid interest on, the Loans on the Termination Date.
Section 2.5.
Prepayments.
Subject
to Section 4.4., the Borrower may prepay any Loan at any time without
premium or penalty. The Borrower shall give the Agent at least one Business
Day’s prior written notice of the prepayment of any Loan.
Section 2.6.
Continuation.
So
long as no Event of Default shall exist, the Borrower may on any Business Day,
with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion
thereof as a LIBOR Loan by selecting a new Interest Period for such LIBOR Loan.
Each new Interest Period selected under this Section shall commence on the last
day of the immediately preceding Interest Period. Each selection of a new
Interest Period shall be made by the Borrower’s giving to the Agent a Notice of
Continuation not later than 11:00 a.m. on the third Business Day prior to the
date of any such Continuation. Such notice by the Borrower of a Continuation
shall be by telephone or telecopy, confirmed immediately in writing if by
telephone, in the form of a Notice of Continuation, specifying (a) the
proposed date of such Continuation, (b) the LIBOR Loans and portions
thereof subject to such Continuation and (c) the duration of the selected
Interest Period, all of which shall be specified in such manner as is necessary
to comply with all
13
limitations
on Loans outstanding hereunder. Each Notice of Continuation shall be irrevocable
by and binding on the Borrower once given. Promptly after receipt of a Notice of
Continuation, the Agent shall notify each Lender by telecopy, or other similar
form of transmission, of the proposed Continuation. If the Borrower shall fail
to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, or if an Event of Default shall exist, such Loan
will automatically, on the last day of the current Interest Period therefor,
Convert into a Base Rate Loan notwithstanding the first sentence of
Section 2.7. or the Borrower’s failure to comply with any of the terms of
such Section.
Section 2.7.
Conversion.
The
Borrower may on any Business Day, upon the Borrower’s giving of a Notice of
Conversion to the Agent, Convert all or a portion of a Loan of one Type into a
Loan of another Type; provided, however, a Base Rate Loan may not be Converted
to a LIBOR Loan if an Event of Default shall exist. Any Conversion of a LIBOR
Loan into a Base Rate Loan shall be made on, and only on, the last day of an
Interest Period for such LIBOR Loan and, upon Conversion of a Base Rate Loan
into a LIBOR Loan, the Borrower shall pay accrued interest to the date of
Conversion on the principal amount so Converted. Each such Notice of Conversion
shall be given not later than 11:00 a.m. on the Business Day prior to the date
of any proposed Conversion into Base Rate Loans and on the third Business Day
prior to the date of any proposed Conversion into LIBOR Loans. Promptly after
receipt of a Notice of Conversion, the Agent shall notify each Lender by
telecopy, or other similar form of transmission, of the proposed Conversion.
Subject to the restrictions specified above, each Notice of Conversion shall be
by telephone (confirmed immediately in writing) or telecopy in the form of a
Notice of Conversion specifying (a) the requested date of such Conversion,
(b) the Type of Loan to be Converted, (c) the portion of such Type of
Loan to be Converted, (d) the Type of Loan such Loan is to be Converted
into and (e) if such Conversion is into a LIBOR Loan, the requested
duration of the Interest Period of such Loan. Each Notice of Conversion shall be
irrevocable by and binding on the Borrower once given.
Section 2.8.
Notes.
(a) Note.
The Loan made by each Lender shall, in addition to this Agreement, also be
evidenced by a promissory note of the Borrower substantially in the form of
Exhibit E (each a “Note”), payable to the order of such Lender in a
principal amount equal to the amount of its Commitment as originally in effect
and otherwise duly completed.
(b) Records.
The date, amount, interest rate, Type and duration of Interest Periods (if
applicable) of the Loan made by each Lender to the Borrower, and each payment
made on account of the principal thereof, shall be recorded by such Lender on
its books and such entries shall be binding on the Borrower, absent manifest
error; provided, however, that the failure of a Lender to make any such record
shall not affect the obligations of the Borrower under any of the Loan
Documents.
Section 2.9.
Borrower Representative.
The
Borrower hereby appoints the Borrower Representative to act as its exclusive
agent for all purposes under the Loan Documents (including, without limitation,
with respect to all matters related to the borrowing and repayment of Loans as
described in Articles II. and III.). The Borrower acknowledges and agrees
that (a) the Borrower Representative may execute such documents on behalf
of the Borrower as the Borrower Representative deems appropriate in its sole
discretion and the Borrower shall be bound by and obligated by all of the terms
of any such document executed by the Borrower Representative on its behalf,
(b) any notice or other communication delivered by the Agent or any Lender
hereunder to the Borrower Representative shall be deemed to have been delivered
to the Borrower and (c) the Agent and each of the Lenders shall accept (and
shall be permitted to rely on) any document or agreement executed
14
by
the Borrower Representative on behalf of the Borrower. The Borrower must act
through the Borrower Representative for all purposes under this Agreement and
the other Loan Documents. Notwithstanding anything contained herein to the
contrary, to the extent any provision in this Agreement requires the Borrower to
interact in any manner with the Agent or the Lenders, such Borrower shall do so
through the Borrower Representative.
Section 2.10.
Extension of Termination Date.
The
Borrower shall have the right, exercisable one time, to extend the Termination
Date by 6 months. The Borrower may exercise such right only by executing
and delivering to the Agent at least 60 days but not more than 90 days prior to
the current Termination Date, a written request for such extension (an
“Extension Request”). The Agent shall forward to each Lender a copy of the
Extension Request delivered to the Agent promptly upon receipt thereof. Subject
to satisfaction of the following conditions, the Termination Date shall be
extended for 6 months: (a) immediately prior to such extension and
immediately after giving effect thereto, (i) no Default or Event of Default
shall exist and (ii) the representations and warranties made or deemed made
by the Borrower and each other Loan Party in the Loan Documents to which any of
them is a party, shall be true and correct in all material respects on and as of
the date of such extension with the same force and effect as if made on and as
of such date except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties shall have been true and correct on and as of such earlier date)
and except for changes in factual circumstances not prohibited under the Loan
Documents and (b) the Borrower shall have paid the Fees payable under
Section 3.6.(a).
Article
III. Payments, Fees and Other General Provisions
Section 3.1.
Payments.
Except
to the extent otherwise provided herein, all payments of principal, interest and
other amounts to be made by the Borrower under this Agreement or any other Loan
Document shall be made in Dollars, in immediately available funds, without
deduction, set-off or counterclaim, to the Agent at its Principal Office, not
later than 2:00 p.m. on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day). Subject to Section 10.3.,
the Borrower may, at the time of making each payment under this Agreement or any
Note, specify to the Agent the amounts payable by the Borrower hereunder to
which such payment is to be applied. Each payment received by the Agent for the
account of a Lender under this Agreement or any Note shall be paid to such
Lender at the applicable Lending Office of such Lender no later than 5:00 p.m.
on the date of receipt. If the Agent fails to pay such amount to a Lender as
provided in the previous sentence, the Agent shall pay interest on such amount
until paid at a rate per annum equal to the Federal Funds Rate from time to time
in effect. If the due date of any payment under this Agreement or any other Loan
Document would otherwise fall on a day which is not a Business Day such date
shall be extended to the next succeeding Business Day and interest shall be
payable for the period of such extension.
Section 3.2.
Pro Rata Treatment.
Except
to the extent otherwise provided herein: (a) each payment of the Fees under
Section 3.6.(a) shall be made for the account of the Lenders, pro rata
according to the amounts of their respective Commitments; (b) each payment
or prepayment of principal of Loans by the Borrower shall be made for the
account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans held by them; (c) each payment of interest
on Loans by the Borrower shall be made for the account of the Lenders pro rata
in accordance with the amounts of interest on such Loans then due and
15
payable
to the respective Lenders; and (d) the Conversion and Continuation of Loans
of a particular Type (other than Conversions provided for by Section 4.5.)
shall be made pro rata among the Lenders according to the amounts of their
respective Loans and the then current Interest Period for each Lender’s portion
of each Loan of such Type shall be coterminous.
Section 3.3.
Sharing of Payments, Etc.
If
a Lender shall obtain payment of any principal of, or interest on, any Loan or
shall obtain payment on any other Obligation through the exercise of any right
of set-off, banker’s lien or counterclaim or similar right or otherwise or
through voluntary prepayments directly to a Lender or other payments made by the
Borrower to a Lender not in accordance with the terms of this Agreement and such
payment should be distributed to the Lenders pro rata in accordance with
Section 3.2. or Section 10.3., as applicable, such Lender shall
promptly purchase from the other Lenders participations in (or, if and to the
extent specified by such Lender, direct interests in) the Loans made by the
other Lenders or other Obligations owed to such other Lenders in such amounts,
and make such other adjustments from time to time as shall be equitable, to the
end that all the Lenders shall share the benefit of such payment (net of any
reasonable expenses which may be incurred by such Lender in obtaining or
preserving such benefit) pro rata in accordance with Section 3.2. or
Section 10.3., as applicable. To such end, all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The
Borrower agree that any Lender so purchasing a participation (or direct
interest) in the Loans or other Obligations owed to such other Lenders may
exercise all rights of set-off, banker’s lien, counterclaim or similar rights
with respect to such participation as fully as if such Lender were a direct
holder of Loans in the amount of such participation. Nothing contained herein
shall require any Lender to exercise any such right or shall affect the right of
any Lender to exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the
Borrower.
Section 3.4.
Several Obligations.
No
Lender shall be responsible for the failure of any other Lender to make a Loan
or to perform any other obligation to be made or performed by such other Lender
hereunder, and the failure of any Lender to make a Loan or to perform any other
obligation to be made or performed by it hereunder shall not relieve the
obligation of any other Lender to make any Loan or to perform any other
obligation to be made or performed by such other Lender.
Section 3.5.
Minimum Amounts.
(a) Conversions.
Each Conversion of LIBOR Loans shall be in an aggregate minimum amount of
$5,000,000.
(b) Prepayments.
Each voluntary prepayment of Loans shall be in an aggregate minimum amount of
$500,000 and integral multiples of $500,000 in excess thereof (or, if less, the
aggregate principal amount of Loans then outstanding).
Section 3.6.
Fees.
(a) Extension
Fee.
If the Borrower exercises its right to extend the Termination Date in accordance
with Section 2.10., the Borrower agrees to pay to the Agent for the account
of each Lender a fee equal to one-quarter of one percent (0.25%) of the amount
of such Lender’s Commitment at the time of such extension. Such fee shall be
payable in full as a condition to the effectiveness of such
extension.
16
(b) Administrative
and Other Fees.
The Borrower agrees to pay the administrative and other fees of the Agent as may
be agreed to in writing by the Borrower and the Agent from time to
time.
Section 3.7.
Computations.
Unless
otherwise expressly set forth herein, any accrued interest on any Loan, any Fees
or any other Obligations due hereunder shall be computed on the basis of a year
of 365 or 366 days, as applicable, and the actual number of days elapsed;
provided, however, any accrued interest on any LIBOR Loan shall be computed on
the basis of a year of 360 days and the actual number of days
elapsed.
Section 3.8.
Usury.
In
no event shall the amount of interest due or payable on the Loans or other
Obligations exceed the maximum rate of interest allowed by Applicable Law and,
if any such payment is paid by the Borrower or any other Loan Party or received
by any Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the respective Lender in writing that the
Borrower elect to have such excess sum returned to them forthwith. It is the
express intent of the parties hereto that the Borrower not pay and the Lenders
not receive, directly or indirectly, in any manner whatsoever, interest in
excess of that which may be lawfully paid by the Borrower under Applicable
Law.
Section 3.9.
Agreement Regarding Interest and Charges.
The
parties hereto hereby agree and stipulate that the only charge imposed upon the
Borrower for the use of money in connection with this Agreement is and shall be
the interest specifically described in Section 2.2.(a)(i) and (ii).
Notwithstanding the foregoing, the parties hereto further agree and stipulate
that all agency fees, syndication fees, facility fees, closing fees,
underwriting fees, default charges, late charges, funding or “breakage” charges,
increased cost charges, attorneys’ fees and reimbursement for costs and expenses
paid by the Agent or any Lender to third parties or for damages incurred by the
Agent or any Lender, in each case in connection with the transactions
contemplated by this Agreement and the other Loan Documents, are charges made to
compensate the Agent or any such Lender for underwriting or administrative
services and costs or losses performed or incurred, and to be performed or
incurred, by the Agent and the Lenders in connection with this Agreement and
shall under no circumstances be deemed to be charges for the use of money. All
charges other than charges for the use of money shall be fully earned and
nonrefundable when due.
Section 3.10.
Statements of Account.
The
Agent will account to the Borrower monthly with a statement of Loans, accrued
interest and Fees, charges and payments made pursuant to this Agreement and the
other Loan Documents, and such account rendered by the Agent shall be deemed
conclusive upon the Borrower absent manifest error. The failure of the Agent to
deliver such a statement of accounts shall not relieve or discharge the Borrower
from any of their obligations hereunder.
Section 3.11.
Defaulting Lenders.
If
for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to
perform any of its obligations under this Agreement or any other Loan Document
to which it is a party within the time period specified for performance of such
obligation or, if no time period is specified, if such failure or refusal
continues for a period of two Business Days after notice from the Agent, then,
in addition to the rights and remedies that may be available to the Agent or the
Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right
to participate in the administration of the Loans, this
17
Agreement
and the other Loan Documents, including without limitation, any right to vote in
respect of, to consent to or to direct any action or inaction of the Agent or to
be taken into account in the calculation of the Requisite Lenders, shall be
suspended during the pendency of such failure or refusal. If a Lender is a
Defaulting Lender because it has failed to make timely payment to the Agent of
any amount required to be paid to the Agent hereunder (without giving effect to
any notice or cure periods), in addition to other rights and remedies which the
Agent or the Borrower may have under the immediately preceding provisions or
otherwise, the Agent shall be entitled (i) to collect interest from such
Defaulting Lender on such delinquent payment for the period from the date on
which the payment was due until the date on which the payment is made at the
Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction
of the defaulted payment and any related interest, any amounts otherwise payable
to such Defaulting Lender under this Agreement or any other Loan Document and
(iii) to bring an action or suit against such Defaulting Lender in a court
of competent jurisdiction to recover the defaulted amount and any related
interest. Any amounts received by the Agent in respect of a Defaulting Lender’s
Loans shall not be paid to such Defaulting Lender and shall be held uninvested
by the Agent and either applied against the purchase price of such Loans under
the following subsection (b) or paid to such Defaulting Lender upon the
Defaulting Lender’s curing of its default.
Section 3.12.
Taxes.
(a) Taxes
Generally.
All payments by the Borrower of principal of, and interest on, the Loans and all
other Obligations shall be made free and clear of and without deduction for any
present or future excise, stamp or other taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges of any nature whatsoever
imposed by any taxing authority, but excluding (i) franchise taxes,
(ii) any taxes imposed on or measured by any Lender’s assets, net income,
receipts or branch profits, (iii) any taxes (other than withholding taxes)
with respect to the Agent or a Lender that would not be imposed but for a
connection between the Agent or such Lender and the jurisdiction imposing such
taxes (other than a connection arising solely by virtue of the activities of the
Agent or such Lender pursuant to or in respect of this Agreement or any other
Loan Document), and (iv) any
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other
charges to the extent imposed as a result of the failure of the Agent or a
Lender, as applicable, to provide and keep current (to the extent legally able)
any certificates, documents or other evidence required to qualify for an
exemption from, or reduced rate of, any such taxes fees, duties, levies,
imposts, charges, deductions, withholdings or other charges or required by the
immediately following subsection (c) to be furnished by the Agent or such
Lender, as applicable
(such non-excluded items being collectively called “Taxes”). If any withholding
or deduction from any payment to be made by the Borrower hereunder is required
in respect of any Taxes pursuant to any Applicable Law, then the Borrower
will:
(i) pay
directly to the relevant Governmental Authority the full amount required to be
so withheld or deducted;
(ii) promptly,
and in any event within 30 days after the date of any payment of such taxes,
forward to the Agent an official receipt or other documentation satisfactory to
the Agent evidencing such payment to such Governmental Authority;
and
(iii) pay
to the Agent for its account or the account of the applicable Lender, as the
case may be, such additional amount or amounts as is necessary to ensure that
the net amount actually received by the Agent or such Lender will equal the full
amount that the Agent or such Lender would have received had no such withholding
or deduction been required.
(b) Tax
Indemnification.
If the Borrower fails to pay any Taxes when due to the appropriate Governmental
Authority or fail to remit to the Agent, for its account or the account of the
respective
18
Lender,
as the case may be, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Agent and the Lenders for any
incremental Taxes, interest or penalties that may become payable by the Agent or
any Lender as a result of any such failure. For purposes of this Section, a
distribution hereunder by the Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrower.
(c) Tax
Forms.
Prior to the date that any Lender organized under the laws of a jurisdiction
outside the United States of America becomes a party hereto or, in the case of a
Participant organized under the laws of a jurisdiction outside the United States
of America, on or before the date on which such Participant purchases the
related participation, such Person shall deliver to the Borrower and the Agent
such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto (including two
copies of Internal Revenue Service Forms W-8ECI or W-8BEN, as applicable,
or appropriate successor forms or, in the case of a Lender or Participant
organized under the laws of a jurisdiction outside the United States of America
claiming exemption from United States federal withholding tax under section
881(c) of the Internal Revenue Code, a certificate to the effect that such
Lender or Participant is not (A) a “bank” within the meaning of section
881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the
Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue
Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Internal Revenue Code and duly completed copies of Internal
Revenue Service Form W-8BEN, or appropriate successor forms), properly
completed, currently effective and duly executed by such Lender or Participant
establishing that payments to it hereunder and under the Notes are (i) not
subject to United States Federal backup withholding tax and (ii) not subject to
United States Federal withholding tax imposed under the Internal Revenue Code.
Each such Lender or Participant shall, to the extent it may lawfully do so, (x)
deliver further copies of such forms or other appropriate certifications on or
before the date that any such forms expire or become obsolete and after the
occurrence of any event requiring a change in the most recent form delivered to
the Borrower or the Agent or at such other times as may be reasonably requested
by the Borrower or the Agent and (y) obtain such extensions of the time for
filing and renew such forms and certifications thereof, as may be reasonably
requested by the Borrower or the Agent. The Borrower shall not be required to
pay any amount pursuant to the last sentence of subsection (a) or (b) above
to any Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America or the Agent, if it is organized under
the laws of a jurisdiction outside of the United States of America, if such
Lender or Participant, as applicable, fails to comply with the requirements of
this subsection or, in the case of the Agent, if the Agent fails to comply with
the requirements of this subsection as if it were a Lender. If any such Lender
or Participant, to the extent it may lawfully do so, fails to deliver the above
forms or other documentation, then the Agent may withhold from any payments to
be made to such Lender under any of the Loan Documents such amounts as are
required by the Internal Revenue Code. If any Governmental Authority asserts
that the Agent did not properly withhold or backup withhold, as the case may be,
any tax or other amount from payments made to or for the account of any Lender,
such Lender shall indemnify the Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Agent under this Section, and costs and expenses (including all reasonable fees
and disbursements of any law firm or other external counsel and the allocated
cost of internal legal services and all disbursements of internal counsel) of
the Agent. The obligation of the Lenders under this Section shall survive the
repayment of all Obligations and the resignation or replacement of the Agent.
Notwithstanding anything to the contrary in this Agreement, a Participant shall
not be entitled to receive any greater payment under this Section than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant.
(d) If
and to the extent that any Lender is able, in its sole opinion, to apply or
otherwise take advantage of any offsetting tax credit or other similar tax
benefit arising out of or in conjunction with any deduction or withholding which
gives rise to an obligation on the Borrower to pay any Taxes pursuant to
19
this
Section then such Lender shall, to the extent that in its sole opinion it can do
so without prejudice to the retention of the amount of such credit or benefit
and without any other adverse tax consequences for such Lender, reimburse to the
Borrower at such time as such tax credit or benefit shall have actually been
received by such Lender such amount as such Lender shall, in its sole opinion,
have determined to be attributable to the relevant deduction or withholding and
as will leave such Lender in no better or worse position than it would have been
in if the payment of such Taxes had not been required.
(e) Nothing
in this Section shall oblige any Lender to disclose to the Borrower or any other
Person any information regarding its tax affairs or tax computations or
interfere with the right of any Lender to arrange its tax affairs in whatever
manner it thinks fit and, in particular, no Lender shall be under any obligation
to claim relief from its corporate profits or similar tax liability in credits
or deductions available to it and, if it does claim, the extent, order and
manner in which it does so shall be at its absolute discretion.
Article
IV. Yield Protection, Etc.
Section 4.1.
Additional Costs; Capital Adequacy.
(a) Additional
Costs.
The Borrower shall promptly pay to the Agent for the account of a Lender from
time to time such amounts as such Lender may reasonably determine to be
necessary to compensate such Lender for any costs incurred by such Lender that
it determines are attributable to its making or maintaining of any LIBOR Loans
or its obligation to make any LIBOR Loans hereunder, any reduction in any amount
receivable by such Lender under this Agreement or any of the other Loan
Documents in respect of any of such Loans or such obligation or the maintenance
by such Lender of capital in respect of its Loans (such increases in costs and
reductions in amounts receivable being herein called “Additional Costs”), to the
extent resulting from any Regulatory Change that: (i) changes the basis of
taxation of any amounts payable to such Lender under this Agreement or any of
the other Loan Documents in respect of any of such Loans (other than
taxes,
fees,
duties, levies, imposts, charges, deductions, withholdings
or other
charges
which are
excluded from the definition of Taxes pursuant to the first sentence of
Section 3.12.(a));
or (ii) imposes or modifies any reserve, special deposit or similar
requirements (other than Regulation D of the Board of Governors of the Federal
Reserve System or other reserve requirement to the extent utilized in the
determination of Adjusted LIBOR for such Loan) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, such
Lender, or any commitment of such Lender (including, without limitation, any
commitment of such Lender hereunder); or (iii) has or would have the effect
of reducing the rate of return on capital of such Lender to a level below that
which such Lender could have achieved but for such Regulatory Change (taking
into consideration such Lender’s policies with respect to capital adequacy).
(b) Lender’s
Suspension of LIBOR Loans.
Without limiting the effect of the provisions of the immediately preceding
subsection (a), if, by reason of any Regulatory Change, any Lender either
(i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender that includes deposits by reference to which the interest rate on
LIBOR Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender that includes LIBOR Loans or
(ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets that it may hold, then, if such Lender so elects by notice
to the Borrower (with a copy to the Agent), the obligation of such Lender to
Continue, or to Convert any other Type of Loans into, LIBOR Loans hereunder
shall be suspended until such Regulatory Change ceases to be in effect (in which
case the provisions of Section 4.5. shall apply).
(c) Notification
and Determination of Additional Costs.
Each of the Agent and each Lender agrees to notify the Borrower of any event
occurring after the Restatement Date entitling the Agent or
20
such
Lender to compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, the failure of the Agent or any
Lender to give such notice shall not release the Borrower from any of their
obligations hereunder
(and in the case of a Lender, to the Agent).
The Agent or such Lender agrees to furnish to the Borrower (and in the case of a
Lender, to the Agent) a certificate setting forth in reasonable detail the basis
and amount of each request by the Agent or such Lender for compensation under
this Section. Absent manifest error, determinations by the Agent or any Lender
of the effect of any Regulatory Change shall be conclusive, provided that such
determinations are made on a reasonable basis and in good faith.
Section 4.2.
Suspension of LIBOR Loans.
Anything
herein to the contrary notwithstanding, if, on or prior to the determination of
Adjusted LIBOR for any Interest Period:
(a) the
Agent reasonably determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining Adjusted LIBOR for such Interest Period,
or
(b) the
Agent reasonably determines (which determination shall be conclusive) that
Adjusted LIBOR will not adequately and fairly reflect the cost to the Lenders of
making or maintaining LIBOR Loans for such Interest Period;
then
the Agent shall give the Borrower and each Lender prompt notice thereof and, so
long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, Continue LIBOR Loans or Convert Loans into LIBOR
Loans and the Borrower shall, on the last day of each current Interest Period
for each outstanding LIBOR Loan, either repay such Loan or Convert such Loan
into a Base Rate Loan.
Section 4.3.
Illegality.
Notwithstanding
any other provision of this Agreement, if any Lender shall reasonably determine
(which determination shall be conclusive and binding) that it has become
unlawful for such Lender to honor its obligation to maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Agent) and such Lender’s obligation to Continue, or to Convert Loans
of any other Type into, LIBOR Loans shall be suspended until such time as such
Lender may again maintain LIBOR Loans (in which case the provisions of
Section 4.5. shall be applicable).
Section 4.4.
Compensation.
The
Borrower shall pay to the Agent for the account of each Lender, upon the request
of such Lender through the Agent, such amount or amounts as shall be sufficient
(in the reasonable opinion of such Lender) to compensate it for any loss, cost
or expense that such Lender reasonably determines is attributable
to:
(a) any
payment or prepayment (whether mandatory or optional) of a LIBOR Loan, or
Conversion of a LIBOR Loan, made by such Lender for any reason (including,
without limitation, acceleration) on a date other than the last day of the
Interest Period for such Loan; or
(b) any
failure by the Borrower for any reason (including, without limitation, the
failure of any of the applicable conditions precedent specified in
Article V. to be satisfied) to borrow a LIBOR Loan from such Lender on the
requested date for such borrowing, or to Convert
21
a
Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested date
of such Conversion or Continuation.
Upon
the Borrower’s request, any Lender requesting compensation under this Section
shall provide the Borrower with a statement setting forth in reasonable detail
the basis for requesting such compensation and the method for determining the
amount thereof. Absent
manifest error, determinations by any Lender in any
such statement shall be conclusive,
provided that such determinations are made on a reasonable basis and in good
faith.
Section 4.5.
Treatment of Affected Loans.
If
the obligation of any Lender to Continue, or to Convert Base Rate Loans into,
LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or 4.3., then
such Lender’s LIBOR Loans shall be automatically Converted into Base Rate Loans
on the last day(s) of the then current Interest Period(s) for LIBOR Loans (or,
in the case of a Conversion required by Section 4.1.(b) or 4.3., on such
earlier date as such Lender may specify to the Borrower with a copy to the
Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1. or 4.3. that gave rise to such
Conversion no longer exist:
(a) to
the extent that such Lender’s LIBOR Loans have been so Converted, all payments
and prepayments of principal that would otherwise be applied to such Lender’s
LIBOR Loans shall be applied instead to its Base Rate Loans; and
(b) all
Loans that would otherwise be made or Continued by such Lender as LIBOR Loans
shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans
of such Lender that would otherwise be Converted into LIBOR Loans shall remain
as Base Rate Loans.
If
such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1. or 4.3. that gave rise to the
Conversion of such Lender’s LIBOR Loans pursuant to this Section no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when LIBOR Loans made by other Lenders are outstanding, then
such Lender’s Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR
Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as
to principal amounts, Types and Interest Periods) in accordance with their
respective Commitment Percentages.
Section 4.6.
Change of Lending Office.
Each
Lender agrees that it will use reasonable efforts to designate an alternate
Lending Office with respect to any of its Loans affected by the matters or
circumstances described in Sections 3.12., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of
America.
Section 4.7.
Assumptions Concerning Funding of LIBOR Loans.
Calculation
of all amounts payable to a Lender under this Article IV. shall be made as
though such Lender had actually funded LIBOR Loans through the purchase of
deposits in the relevant market bearing interest at the rate applicable to such
LIBOR Loans in an amount equal to the amount of the LIBOR Loans and having a
maturity comparable to the relevant Interest Period; provided, however, that
22
each
Lender may fund each of its LIBOR Loans in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts payable under
this Article IV.
Article
V. Conditions Precedent
Section 5.1.
Initial Conditions Precedent.
The
effectiveness of this Agreement is subject to the following conditions
precedent:
(a) The
Agent shall have received each of the following, in form and substance
satisfactory to the Agent:
(i) counterparts
of this Agreement executed by each of the parties hereto;
(ii) Notes
executed by the Borrower, payable to each Lender and complying with the
applicable provisions of Section 2.8.;
(iii) the
Parent Guaranty reaffirmation executed by each Guarantor substantially in the
form of Exhibit B;
(iv) prepayment
of the Loans funded under the Original Credit Agreement by an amount at least
equal to $96,000,000, such amount to be in immediately available
funds;
(v) one
or more opinions of counsel to the Loan Parties, addressed to the Agent and the
Lenders, collectively addressing the matters set forth in
Exhibit F;
(vi) the
articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of each Loan
Party certified as of a recent date by the Secretary of State of the state of
formation of such Loan Party;
(vii) a
certificate of good standing or certificate of similar meaning with respect to
each Loan Party issued as of a recent date by the Secretary of State of the
state of formation of each such Loan Party, in case of the Borrower, and
certificates of qualification to transact business or other comparable
certificates issued by the Secretary of State (and any state department of
taxation, as applicable) of the State of California;
(viii) a
certificate of incumbency signed by the Secretary or Assistant Secretary (or
other individual performing similar functions) of each Loan Party with respect
to each of the officers of such Loan Party authorized to execute and deliver the
Loan Documents to which such Loan Party is a party, and in the case of the
Borrower, and the officers of the Borrower Representative then authorized to
deliver Notices of Borrowing, Notices of Continuation and Notices of
Conversion;
(ix) copies
certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of each Loan Party of (i) the by-laws of such
Loan Party, if a corporation, the operating agreement, if a limited liability
company, the partnership agreement, if a limited or general partnership, or
other comparable document in the case of any other form of legal entity and
(ii) all corporate, partnership, member or other necessary action taken by
such Loan Party to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
23
(x) a
Security Deed executed by the Borrower granting to the Agent for the benefit of
the Lenders a first-priority Lien in the Mortgaged Property;
(xi) Assignments
of Leases and Rents executed by the Borrower granting to the Agent for the
benefit of the Lenders first-priority Liens in all of the rents from, and leases
of, the Mortgaged Property owned by the Borrower as of the date of such
grant;
(xii) an
environmental indemnity agreement executed by the Borrower in favor of the Agent
and the Lenders;
(xiii) if
requested by the Agent, collateral assignments of all Material
Contracts, Entitlements, and any other rights or benefits of or
appurtenant to the Mortgaged Property as of the date of such assignment,
relating to the development, use, occupancy, operation, maintenance,
enjoyment or ownership of any of such Mortgaged Property, together with any
required consents to the collateral assignment thereof;
(xiv) an
ALTA 1992 Form mortgagee’s Policy of Title Insurance (with deletion of the
creditor’s rights exclusion and deletion of the mandatory arbitration provision)
or other form acceptable to the Agent in favor of the Agent for the benefit of
the Lenders with respect to the Mortgaged Property, including endorsements with
respect to such items of coverage as the Agent may request (and which
endorsements are available in the State of California), in a coverage amount
equal to no less than the outstanding principal balance of the Loans, issued by
a title insurance company acceptable to the Agent and with coinsurance or
reinsurance (with direct access agreements) with title insurance companies
acceptable to the Agent, showing the fee simple title to the land and
improvements comprising such portion of the Mortgaged Property as vested in the
Borrower, and insuring that the Liens granted by such Security Deeds are valid
first priority Liens against the applicable portion of the Mortgaged Property,
subject only to such restrictions, encumbrances, easements and reservations as
are acceptable to the Agent;
(xv) a
survey of the Mortgaged Property certified by a surveyor licensed in the
jurisdiction where the Mortgaged Property is located to have been prepared in
accordance with the then effective Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys, and if not adequately covered by the survey
certification, evidence that the Mortgaged Property is not located in a Special
Flood Hazard Area as defined by the Federal Insurance
Administration;
(xvi) current
updates of the UCC, tax, judgment and lien search reports with respect to the
Borrower in all necessary or appropriate jurisdictions and under all legal and
appropriate trade names indicating that there are no Liens of record on the
Mortgaged Property, the Bosa Contract or any of the other assets of the Borrower
other than Permitted Liens;
(xvii) an
opinion of counsel admitted to practice law in the jurisdiction in which the
Mortgaged Property is located and acceptable to the Agent, addressed to the
Agent and each Lender covering such legal matters relating to the transactions
contemplated hereby as the Agent may reasonably request, including without
limitation, the enforceability of the Security Deeds;
(xviii) evidence
that the insurance required for the Mortgaged Property owned by the Borrower
under the Loan Documents is then in effect;
(xix) such
other due diligence materials, instruments, documents, agreements, financing
statements, certificates, opinions and other Security Documents as the Agent may
reasonably request;
24
(xx) the
Fees then due and payable under Section 3.6., and any other Fees payable to
the Agent and the Lenders on or prior to the Effective Date;
(xxi) such
other documents, agreements and instruments as the Agent on behalf of the
Lenders may reasonably request; and
(b) In
the good faith judgment of the Agent and
the Lenders:
(i) There
shall not have occurred or become known to the Agent or
any of the Lenders any event, condition, situation or status since the date of
the information contained in the financial and business projections, budgets,
pro forma data and forecasts concerning the Borrower or the Guarantors delivered
to the Agent and the Lenders prior to the Restatement Date that has had or could
reasonably be expected to result in a Material Adverse Effect;
(ii) No
litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or threatened which could reasonably be
expected to (1) result in a Material Adverse Effect or (2) restrain or enjoin,
impose materially burdensome conditions on, or otherwise materially and
adversely affect the ability of any Loan Party to fulfill its obligations under
the Loan Documents to which it is a party;
(iii) The
Loan Parties shall have received all approvals, consents and waivers, and shall
have made or given all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the occurrence of any
default under, conflict with or violation of (1) any Applicable Law or
(2) any agreement, document or instrument to which any Loan Party is a
party or by which any of them or their respective properties is bound, except
for such approvals, consents, waivers, filings and notices the receipt, making
or giving of which would not reasonably be likely to (A) have a Material
Adverse Effect, or (B) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability of any
Loan Party to fulfill its obligations under the Loan Documents to which it is a
party; and
(iv) There
shall not have occurred or exist any other material disruption of financial or
capital markets that could reasonably be expected to materially and adversely
affect the transactions contemplated by the Loan Documents.
Section 5.2.
Additional Conditions Precedent to Effectiveness.
The
effectiveness of this Agreement is subject to the further condition precedent
that: (a) no Default or Event of Default shall exist as of the Effective
Date or would exist immediately after giving effect thereto; and (b) the
representations and warranties made or deemed made by each Loan Party in the
Loan Documents to which it is a party, shall be true and correct in all material
respects on and as of the Effective Date with the same force and effect as if
made on and as of such date except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct on and as of
such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents. In addition, upon the Effective Date, the
Borrower shall be deemed to have represented to the Agent and the Lenders that
(except to the extent waived in writing by the Agent and the Lenders) all
conditions to the effectiveness of this Agreement contained in Article V.
have been satisfied.
25
Article
VI. Representations and Warranties
Section 6.1.
Representations and Warranties.
In
order to induce the Agent and each Lender to enter into this Agreement and to
make Loans, the Borrower represents and warrants to the Agent and each Lender as
follows:
(a) Organization;
Power; Qualification.
Each of the Loan Parties is a corporation, partnership or other legal entity,
duly organized or formed, validly existing and in good standing under the
jurisdiction of its incorporation or formation, has the power and authority to
own or lease its respective properties and to carry on its respective business
as now being and hereafter proposed to be conducted and is duly qualified and is
in good standing as a foreign corporation, partnership or other legal entity,
and authorized to do business, in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification or
authorization and where the failure to be so qualified or authorized could
reasonably be expected to have, in each instance, a Material Adverse
Effect.
(b) Ownership
Structure.
The Borrower is a Delaware limited liability company. The Operating Partnership
is the sole member and sole manager of the Borrower.
(c) Authorization
of Agreement, Etc.
The Borrower has the right and power, and has taken all necessary action to
authorize it, to borrow and obtain other extensions of credit hereunder. Each
Loan Party has the right and power, and has taken all necessary action to
authorize it, to execute, deliver and perform each of the Loan Documents to
which it is a party in accordance with their respective terms and to consummate
the transactions contemplated hereby and thereby. The Loan Documents to which
any Loan Party is a party have been duly executed and delivered by the duly
authorized officers of such Person and each is a legal, valid and binding
obligation of such Person enforceable against such Person in accordance with its
respective terms except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
(other than the payment of principal) contained herein or therein and as may be
limited by equitable principles generally.
(d) Compliance
of Loan Documents with Laws, Etc.
The execution, delivery and performance of this Agreement, the Notes and the
other Loan Documents to which any Loan Party is a party in accordance with their
respective terms and the borrowings and other extensions of credit hereunder do
not and will not, by the passage of time, the giving of notice, or both:
(i) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to any Loan Party;
(ii) conflict with, result in a breach of or constitute a default under the
organizational documents of any Loan Party, or the OP Credit Agreement, any
other Loan Document (as defined in the OP Credit Agreement), any material
indenture, agreement or other instrument to which any Loan Party is a party or
by which it or any of its respective properties may be bound; or
(iii) result in or require the creation or imposition of any Lien upon or
with respect to any property now owned or hereafter acquired by any Loan
Party.
(e) Compliance
with Law; Governmental Approvals.
The Borrower is in compliance with each Governmental Approval applicable to it
and in compliance with all other Applicable Laws (including without limitation,
Environmental Laws) relating to the Borrower except for noncompliances which,
and Governmental Approvals the failure to possess which, could not, individually
or in the aggregate, reasonably be expected to cause a Default or Event of
Default or have a Material Adverse Effect.
26
(f) Title
to Properties; Liens.
The Borrower has good, marketable and legal title to (i) the Mortgaged
Property and (ii) its other assets. As of the Restatement Date, there are
no Liens against the Mortgaged Property or other assets of the Borrower except
for Permitted Liens.
(g) Existing
Indebtedness.
The Borrower has no Indebtedness other than Indebtedness owing to the Lenders
hereunder.
(h) Material
Contracts.
The Borrower has performed and is in compliance with all of the terms of its
Material Contracts, and no default or event of default, or event or condition
which with the giving of notice, the lapse of time, or both, would constitute
such a default or event of default, exists with respect to any such Material
Contract.
(i) Litigation.
There are no actions, suits, investigations or proceedings pending (nor, to the
knowledge of the Borrower, are there any actions, suits or proceedings
threatened) against or in any other way relating adversely to or affecting the
Borrower or any of its property in any court or before any arbitrator of any
kind or before or by any other Governmental Authority which could reasonably be
expected to have a Material Adverse Effect. There are no strikes, slow downs,
work stoppages or walkouts or other labor disputes in progress or threatened
relating to the Borrower which could reasonably be expected to have a Material
Adverse Effect.
(j) Taxes.
All federal, state and other tax returns of the Borrower required by Applicable
Law to be filed have been duly filed, and all federal, state and other taxes,
assessments and other governmental charges or levies upon the Borrower and its
properties, income, profits and assets which are due and payable have been paid,
except any such nonpayment which is at the time permitted under
Section 7.6. As of the Restatement Date, none of the United States income
tax returns of the Borrower is under audit. All charges, accruals and reserves
on the books of the Borrower in respect of any taxes or other governmental
charges are in accordance with GAAP.
(k) Financial
Statements.
The Borrower has furnished to each Lender copies of (i) the audited
consolidated balance sheet of the REIT Parent and its consolidated Subsidiaries
for the fiscal year ending December 31, 2003, and the related audited
consolidated statements of operations, cash flows and shareholders’ equity for
the fiscal year ending on such dates, with the opinion thereon of KPMG LLP, and
(ii) the unaudited consolidated balance sheet of the REIT Parent and its
consolidated Subsidiaries for the fiscal quarters ending December 31, 2004 and
September 30, 2004, and the related unaudited consolidated statements of
operations, cash flows and shareholders’ equity of the REIT Parent and its
consolidated Subsidiaries for the fiscal quarters ending on such dates. Such
financial statements (including in each case related schedules and notes)
present fairly, in all material respects and in accordance with GAAP
consistently applied throughout the periods involved, the consolidated financial
position of the applicable Persons as at their respective dates and the results
of operations and the cash flow for such periods (subject, as to interim
statements, to changes resulting from normal year-end audit adjustments).
(l) No
Material Adverse Change.
Since December 31, 2003, there has been no material adverse change in the
business, assets, liabilities, financial condition, or results of operations of
(i) the Borrower or (ii) the REIT Parent and its Subsidiaries taken as a whole.
Each of the Loan Parties is Solvent.
(m) [Intentionally
Omitted.]
(n) Not
Plan Assets; No Prohibited Transaction.
None of the assets of any Loan Party constitutes “plan assets” within the
meaning of ERISA, the Internal Revenue Code and the respective
27
regulations
promulgated thereunder. The execution, delivery and performance of this
Agreement and the other Loan Documents, and the borrowing and repayment of
amounts hereunder, do not and will not constitute “prohibited transactions”
under ERISA or the Internal Revenue Code.
(o) Absence
of Defaults.
No Loan Party is in default under its articles of incorporation, bylaws,
partnership agreement or other similar organizational documents, and no event
has occurred, which has not been remedied, cured or waived, which, in any such
case: (i) constitutes a Default or an Event of Default; or
(ii) constitutes, or which with the passage of time, the giving of notice,
or both, would constitute, a default or event of default by any Loan Party under
any agreement (other than this Agreement) or judgment, decree or order to which
the Loan Party is a party or by which any Loan Party or any of its respective
properties may be bound where such default or event of default could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(p) Environmental
Laws.
The Borrower has obtained all Governmental Approvals which are required under
Environmental Laws and is in compliance with all terms and conditions of such
Governmental Approvals which the failure to obtain or to comply with could
reasonably be expected to have a Material Adverse Effect. Except for any of the
following matters that could not be reasonably expected to have a Material
Adverse Effect, (i) the Borrower is not aware of, and has not received
notice of, any past, present, or future events, conditions, circumstances,
activities, practices, incidents, actions, or plans which, with respect to the
Borrower, may interfere with or prevent compliance or continued compliance with
Environmental Laws, or may give rise to any common-law or legal liability, or
otherwise form the basis of any claim, action, demand, suit, proceeding,
hearing, study, or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling or the emission, discharge, release or threatened release into the
environment, of any Hazardous Material; and (ii) there is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter,
notice of violation, investigation, or proceeding pending or, to the Borrower’s
knowledge after due inquiry, threatened, against the Borrower, relating in any
way to Environmental Laws.
(q) Investment
Company; Public Utility Holding Company.
The Borrower is not (i) an “investment company” or a company “controlled”
by an “investment company” within the meaning of the Investment Company Act of
1940, as amended, (ii) a “holding company” or a “subsidiary company” of a
“holding company”, or an “affiliate” of a “holding company” or of a “subsidiary
company” of a “holding company”, within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or (iii) subject to any other
Applicable Law which purports to regulate or restrict its ability to borrow
money or to consummate the transactions contemplated by this Agreement or to
perform its obligations under any Loan Document to which it is a
party.
(r) Margin
Stock.
The Borrower is not engaged principally, or as one of its important activities,
in the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying “margin stock” within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System.
(s) Affiliate
Transactions.
Except as permitted by Section 9.9., the Borrower is not a party to any
transaction with an Affiliate.
(t) Intellectual
Property.
The Borrower owns or has the right to use, under valid license agreements or
otherwise, all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights
(collectively, “Intellectual Property”) necessary to the conduct of its
businesses as now conducted and as contemplated by the Loan Documents, without
28
known
conflict with any patent, license, franchise, trademark, trade secret, trade
name, copyright, or other proprietary right of any other Person.
(u) Business.
As of the Restatement Date, the Borrower is engaged solely in the business of
owning, developing and operating the Mortgaged Property, together with other
business activities incidental thereto.
(v) Broker’s
Fees.
No broker’s or finder’s fee, commission or similar compensation will be payable
with respect to the transactions contemplated hereby. No other similar fees or
commissions will be payable by any Loan Party for any other services rendered to
such Loan Party ancillary to the transactions contemplated hereby.
(w) OP
Credit Agreement Representations.
The OP Credit Agreement Representations are each true and correct.
(x) Phase
I Environmental Assessment. The
“Phase I” environmental assessment of the Acquisition Property delivered to the
Agent in connection with the closing of the Original Credit Agreement includes
an environmental assessment of the Mortgaged Property.
(y) Accuracy
and Completeness of Information.
No written information, report or other papers or data (excluding financial
projections and other forward looking statements) furnished to the Agent or any
Lender by, on behalf of, or at the direction of, any Loan Party in connection
with or relating in any way to this Agreement, contained any untrue statement of
a fact material to the creditworthiness of any Loan Party or omitted to state a
material fact necessary in order to make such statements contained therein, in
light of the circumstances under which they were made, not misleading. All
financial statements (including in each case all related schedules and notes)
furnished to the Agent or any Lender by, on behalf of, or at the direction of,
any Loan Party in connection with or relating in any way to this Agreement,
present fairly, in all material respects and in accordance with GAAP
consistently applied throughout the periods involved, the financial position of
the Persons involved as at the date thereof and the results of operations for
such periods (subject, as to interim statements, to changes resulting from
normal year-end audit adjustments). All financial projections and other forward
looking statements prepared by or on behalf of any Loan Party that have been or
may hereafter be made available to the Agent or any Lender were or will be
prepared in good faith based on reasonable assumptions. As of the Effective
Date, no fact is known to the Borrower which has had, or may in the future have
(so far as the Borrower can reasonably foresee), a Material Adverse Effect which
has not been set forth in the financial statements referred to in
Section 6.1.(k) or in such information, reports or other papers or data or
otherwise disclosed in writing to the Agent and the Lenders.
Section 6.2.
Survival of Representations and Warranties, Etc.
All
statements contained in any certificate, financial statement or other instrument
delivered by or on behalf of any Loan Party to the Agent or any Lender pursuant
to or in connection with this Agreement or any of the other Loan Documents
(including, but not limited to, any such statement made in or in connection with
any amendment thereto or any statement contained in any certificate, financial
statement or other instrument delivered by or on behalf of the Borrower prior to
the Restatement Date and delivered to the Agent or any Lender in connection with
the underwriting or closing of the transactions contemplated hereby) shall
constitute representations and warranties made by the Borrower in favor of the
Agent or any of the Lenders under this Agreement. All representations and
warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Restatement Date, the Effective Date, and the
date on which any extension of the Termination Date is effectuated pursuant to
Section 2.10., except to the extent that such representations and warranties
expressly relate solely to an
29
earlier
date (in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date) and except for
changes in factual circumstances not prohibited under the Loan Documents. All
such representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents and the making of
the Loans.
Article
VII. Affirmative Covenants
For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner provided for in Section 12.6., the Borrower shall
comply with the following covenants:
Section 7.1.
Preservation of Existence and Similar Matters.
Except
as otherwise permitted under Section 9.5., the Borrower shall preserve and
maintain its existence, rights, franchises, licenses and privileges in the
jurisdiction of its incorporation or formation and qualify and remain qualified
and authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization and where the failure to be so authorized and qualified could
reasonably be expected to have a Material Adverse Effect.
Section 7.2.
Compliance with Applicable Law.
The
Borrower shall comply with all Applicable Laws, including the obtaining of all
Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect.
Section 7.3.
Maintenance of Property.
In
addition to the requirements of any of the other Loan Documents, the Borrower
shall (a) protect and preserve all of its material properties, including,
but not limited to, all Intellectual Property, and maintain in good repair,
working order and condition all material tangible properties, ordinary wear and
tear excepted, and (b) make or cause to be made all needed and appropriate
repairs, renewals, replacements and additions to such material properties, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
Section 7.4.
Conduct of Business.
The
Borrower shall carry on its businesses as described in
Section 6.1.(u).
Section 7.5.
Insurance.
In
addition to the requirements of any of the other Loan Documents, the Borrower
shall maintain insurance (on a replacement cost basis) with financially sound
and reputable insurance companies or associations against such risks and in such
amounts as is customarily maintained by Persons engaged in similar businesses or
as may be required by Applicable Law, and from time to time deliver to the Agent
upon its request a detailed list, together with copies of all policies of the
insurance then in effect, stating the names of the insurance companies, the
amounts and rates of the insurance, the dates of the expiration thereof and the
properties and risks covered thereby.
30
Section 7.6.
Payment of Taxes and Claims.
The
Borrower shall pay and discharge before the same shall become delinquent
(a) all material taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or upon any properties belonging
to it, and (b) all lawful claims of materialmen, mechanics, carriers,
warehousemen and landlords for labor, materials, supplies and rentals which, if
unpaid, might become a Lien on any properties of the Borrower; provided,
however, that this Section shall not require the payment or discharge of any
such tax, assessment, charge, levy or claim which is being contested in good
faith by appropriate proceedings which operate to suspend the collection thereof
and for which adequate reserves have been established on the books of the
Borrower as applicable, in accordance with GAAP.
Section 7.7.
Visits and Inspections.
The
Borrower shall permit representatives or agents of any Lender or the Agent, from
time to time after reasonable prior notice if no Event of Default shall be in
existence, as often as may be reasonably requested, but only during normal
business hours and at the expense of such Lender or the Agent (unless an Event
of Default shall exist, in which case the exercise by the Agent or such Lender
of its rights under this Section shall be at the expense of the Borrower), as
the case may be, to: (a) visit and inspect all properties of the Borrower
to the extent any such right to visit or inspect is within the control of the
Borrower; (b) inspect and make extracts from their respective books and
records, including but not limited to management letters prepared by independent
accountants; and (c) discuss with their officers and employees, and their
independent accountants, their business, properties, condition (financial or
otherwise), results of operations and performance. If requested by the Agent,
the Borrower shall execute an authorization letter addressed to their
accountants authorizing the Agent or any Lender to discuss the financial affairs
of the Borrower with such accountants.
Section 7.8.
Use of Proceeds.
No
part of the proceeds of any Loan will be used for the purpose of buying or
carrying “margin stock” within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
Section 7.9.
Environmental Matters.
The
Borrower shall comply with all Environmental Laws the failure with which to
comply could reasonably be expected to have a Material Adverse Effect. If the
Borrower shall (a) receive notice that any violation of any Environmental
Law may have been committed or is about to be committed by the Borrower,
(b) receive notice that any administrative or judicial complaint or order
has been filed or is about to be filed against the Borrower alleging violations
of any Environmental Law or requiring the Borrower to take any action in
connection with the release of Hazardous Materials or (c) receive any
notice from a Governmental Authority or private party alleging that the Borrower
may be liable or responsible for costs associated with a response to or cleanup
of a release of Hazardous Materials or any damages caused thereby, and the
matters referred to in such notices, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, the Borrower shall
provide the Agent with a copy of each such notice promptly, and in any event
within 10 Business Days, after the receipt thereof by the Borrower. The Borrower
shall take promptly all actions necessary to prevent the imposition of any Liens
on any of their respective material properties arising out of or related to any
Environmental Laws. At its sole expense, the Borrower will undertake
(x) any cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials from the Mortgaged Property which must be so
removed or cleaned up in accordance with the requirements of any applicable
31
Environmental
Laws, to the reasonable satisfaction of the Agent, and in accordance with all
such requirements and with orders and directives of all Governmental Authorities
and (y) such remedial or other action with respect to any underground
storage tanks located on the Mortgaged Property as may be necessary to correct
any deficiencies as may be required to comply with Applicable Law.
Section 7.10.
Books and Records.
The
Borrower shall maintain books and records pertaining to its respective business
operations in such detail, form and scope as is consistent with good business
practice and in accordance with GAAP.
Section 7.11.
Further Assurances.
The
Borrower shall, at its cost and expense and upon request of the Agent, execute
and deliver or cause to be executed and delivered, to the Agent such further
instruments, documents and certificates, and do and cause to be done such
further acts that may be reasonably necessary or advisable in the reasonable
opinion of the Agent to carry out more effectively the provisions and purposes
of this Agreement and the other Loan Documents.
Section 7.12.
Certain Covenants of OP Credit Agreement.
The
Operating Partnership will perform, comply with and be bound by, for the benefit
of the Agent and the Lenders, each of its agreements, covenants and obligations
contained in Article V of the OP Credit Agreement (other than those contained in
Section 5.01(e), (f), (j), (k), (l) and (q)), each of which (together with the
related definitions and ancillary provisions) is hereby incorporated herein by
reference; provided that the Operating Partnership shall not be obligated to
provide the Agent with an environmental assessment pursuant to Section 5.01(m)
of the OP Credit Agreement unless the Required Lenders (as defined in the OP
Credit Agreement) shall have requested the same.
Article
VIII. Information
For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Borrower shall
furnish to each Lender (or to the Agent if so provided below) at its Lending
Office:
Section 8.1.
Financial Information
As
soon as available and in any event within 45 days after the end of each
fiscal quarter of the Borrower, the unaudited combined balance sheet of the
Borrower as at the end of such period and the related unaudited combined
statements of income and cash flows of the Borrower for such period, setting
forth in each case in comparative form the figures as of the end of and for the
corresponding periods, if any, of the previous fiscal year, all of which shall
be certified by the chief executive officer or chief financial officer of the
Borrower, in his or her opinion, to present fairly, in accordance with GAAP and
in all material respects, the combined financial position of the Borrower as at
the date thereof and the results of operations for such period (subject to
normal year-end audit adjustments). Together with such financial statements, the
Borrower shall deliver to the Agent, in form and detail satisfactory to the
Agent: (a) rent rolls with respect to the Mortgaged Property and
(b) reports setting forth property sales, contracts and development with
respect to the Mortgaged Property and such other information as the Agent may
reasonably request.
32
Section 8.2.
Information Provided under OP Credit Agreement.
Promptly
upon the delivery thereof, a copy of each notice (other than a request for a
borrowing), certificate, financial statement, report and forecast and all other
information delivered by (or on behalf of) the Operating Partnership, REIT
Parent or any of their Subsidiaries to the Agents or the Lenders (as such terms
are defined in the OP Credit Agreement) pursuant to the OP Credit Agreement,
including without limitation, Section 5.03 of the OP Credit
Agreement.
Section 8.3.
Other Information.
(a) Litigation.
To the extent the Borrower is aware of the same, prompt notice of the
commencement of any proceeding or investigation by or before any Governmental
Authority and any action or proceeding in any court or other tribunal or before
any arbitrator against or in any other way relating adversely to, or adversely
affecting, the Borrower or any of its respective properties, assets or
businesses which could reasonably be expected to have a Material Adverse Effect,
and prompt notice of the receipt of notice that any United States income tax
returns of the Borrower is being audited;
(b) Modification
of Organizational Documents.
A copy of any amendment to the articles of incorporation, bylaws, partnership
agreement, operating agreement or other similar organizational documents of the
Borrower within 15 Business Days after the effectiveness
thereof;
(c) Financial
Condition.
Prompt notice of any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of any Loan Party which
has had or could reasonably be expected to have a Material Adverse
Effect;
(d) Default.
Notice of the occurrence of any of the following promptly upon the Borrower
obtaining knowledge thereof: (i) any Default or Event of Default or
(ii) any event which constitutes or which with the passage of time, the
giving of notice, or both, would constitute a default or event of default by the
Borrower under any Material Contract to which it is a party or by which it or
any of its properties may be bound;
(e) Other
Information.
From time to time and promptly upon each request, such data, certificates,
reports, statements, opinions of counsel, documents or further information
regarding the business, assets, liabilities, financial condition, results of
operations or business prospects of the Borrower as the Agent or any Lender may
reasonably request.
Article
IX. Negative Covenants
For
so long as this Agreement is in effect, unless the Requisite Lenders (or, if
required pursuant to Section 12.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 12.6., the Borrower shall comply
with the following covenants:
Section 9.1.
Indebtedness.
The
Borrower shall not create, incur, assume or suffer to exist any Indebtedness
other than the Indebtedness under the Loan Documents.
33
Section 9.2.
Investments.
The
Borrower shall not, directly or indirectly, acquire, make or purchase any
Investment, or permit any Investment of such Person to be outstanding on and
after the Restatement Date, other than the Investments in Cash
Equivalents.
Section 9.3.
Liens.
The
Borrower shall not create, assume, incur or permit to exist any Lien upon any of
its properties, assets, income or profits of any character whether now owned or
hereafter acquired, other than Permitted Liens.
Section 9.4.
Negative Pledges.
The
Borrower shall not enter into, assume or otherwise be bound by any Negative
Pledge other than under the OP Credit Agreement.
Section 9.5.
Merger, Consolidation, Sales of Assets, Etc.
The
Borrower shall not: (i) enter into any transaction of merger or
consolidation; (ii) liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); or (iii) convey, sell, lease, sublease,
transfer or otherwise dispose of, in one transaction or a series of
transactions, any of its assets, whether now owned or hereafter acquired;
provided, however, that the Borrower may lease and sublease its respective
assets, as lessor, in the ordinary course of its business.
Section 9.6.
Fiscal Year.
The
Borrower shall not change its fiscal year from that in effect as of the
Restatement Date.
Section 9.7.
Modifications to Material Contracts.
The
Borrower shall not enter into any amendment or modification to any Material
Contract which could reasonably be expected to have a Material Adverse
Effect.
Section 9.8.
Modifications of Organizational Documents.
The
Borrower shall not amend, supplement, restate or otherwise modify its articles
or certificate of incorporation, by-laws, operating agreement, declaration of
trust, partnership agreement or other applicable organizational document if such
amendment, supplement, restatement or other modification could reasonably be
expected to have a Material Adverse Effect.
Section 9.9.
Transactions with Affiliates.
The
Borrower shall not permit to exist or enter into, any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate (other than a Loan Party), except transactions
expressly permitted by this Agreement and in the ordinary course of and pursuant
to the reasonable requirements of the business of the Borrower and upon fair and
reasonable terms which are no less favorable to the Borrower or such Subsidiary
than would be obtained in a comparable arm’s length transaction with a Person
that is not an Affiliate.
34
Section 9.10.
ERISA.
The
Borrower shall not permit any of its respective assets to become or be deemed to
be “plan assets” within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder. The Borrower will not take (or
fail to take) any action which would cause any portion of the representation
contained in Section 6.1.(n) to be incorrect or misleading in any material
respect.
Section 9.11.
Bosa Contract
Notwithstanding
Section 9.7., the Borrower will not amend or otherwise modify in any material
adverse respect any of the terms of the Bosa Contract, or terminate the Bosa
Contract except in connection with a default by Bosa giving rise to a
termination right of the Borrower thereunder, in either case without the prior
written consent of the Agent, which consent will not be unreasonably withheld,
conditioned or delayed. The Borrower shall promptly deliver to the Agent a copy
of any notice of default or other written communication regarding any material
matter given by Bosa to the Borrower or by the Borrower to Bosa Company under or
in connection with the Bosa Contract.
Article
X. Default
Section 10.1.
Events of Default.
Each
of the following shall constitute an Event of Default, whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of Applicable Law or pursuant to any judgment or order of any
Governmental Authority:
(a) Default
in Payment of Principal.
The Borrower shall fail to pay when due (whether upon demand, at maturity, by
reason of acceleration or otherwise) the principal of any of the
Loans.
(b) Default
in Payment of Interest and Other Obligations.
The Borrower shall fail to pay when due any interest on any of the Loans or any
of the other payment Obligations owing by the Borrower under this Agreement or
any other Loan Document, or any other Loan Party shall fail to pay when due any
payment Obligation owing by such other Loan Party under any Loan Document to
which it is a party, and such failure shall continue for a period of 5 calendar
days.
(c) Default
in Performance.
(i) The Borrower shall fail to perform or observe any term, covenant,
condition or agreement contained in the last sentence of Section 7.9.,
Section 8.3.(d) or in Article IX. or (ii) the Borrower or any
other Loan Party shall fail to perform or observe any term, covenant, condition
or agreement contained in this Agreement or any other Loan Document to which it
is a party and not otherwise mentioned in this Section and in the case of this
clause (ii) only, such failure shall continue for a period of 30 days
after the earlier of (x) the date upon which the Borrower or such Loan
Party obtains knowledge of such failure or (y) the date upon which the
Borrower have received written notice of such failure from the
Agent.
(d) Misrepresentations.
Any written statement, representation or warranty made or deemed made by or on
behalf of any Loan Party under this Agreement or under any other Loan Document,
or any amendment hereto or thereto, or in any other writing or statement at any
time furnished or made or deemed made by or on behalf of any Loan Party to the
Agent or any Lender, shall at any time prove to have been incorrect or
misleading, in light of the circumstances in which made or deemed made, in any
material respect when furnished or made or deemed made.
35
(e) Indebtedness
Cross-Default; Derivatives Contracts; Material Contracts.
(i) The
Borrower or any Subsidiary shall fail to pay when due and payable, within any
applicable grace of cure period, the principal of, or interest on, any
Indebtedness (other than the Loans) (“Borrower Indebtedness”);
(ii) Any
Guarantor shall fail to pay when due and payable, within any applicable grace of
cure period, the principal of, or interest on, any Indebtedness (other than the
Loans) having an aggregate outstanding principal amount of $15,000,000 or more
(“Guarantor Indebtedness”, together with the Borrower Indebtedness, the “Loan
Party Indebtedness”);
(ii) the
maturity of any Loan Party Indebtedness shall have been accelerated in
accordance with the provisions of any indenture, contract or instrument
evidencing, providing for the creation of or otherwise concerning such Loan
Party Indebtedness;
(iii) any
other event shall have occurred and be continuing which permits any holder or
holders of Loan Party Indebtedness, any trustee or agent acting on behalf of
such holder or holders or any other Person, to accelerate the maturity of any
such Loan Party Indebtedness and such holders or other Person shall not have
waived its right to so accelerate with respect to such event;
(iv) there
occurs under any Derivatives Contract an Early Termination Date (as defined in
such Derivatives Contract) resulting from (A) any event of default under
such Derivatives Contract as to which any Loan Party is the Defaulting Party (as
defined in such Derivatives Contract) or (B) any Termination Event (as so
defined) under such Derivatives Contract as to which any Loan Party is an
Affected Party (as so defined) and, in either event, the Derivatives Termination
Value owed by a Guarantor as a result thereof is $15,000,000 or more;
or
(v) a
default shall occur under any Material Contract to which the Borrower is a party
and such default shall continue unremedied beyond any applicable cure
period.
(f) Voluntary
Bankruptcy Proceeding.
Any Loan Party shall: (i) commence a voluntary case under the Bankruptcy
Code or other federal bankruptcy laws (as now or hereafter in effect);
(ii) file a petition seeking to take advantage of any other Applicable
Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; (iii) consent to, or
fail to contest in a timely and appropriate manner, any petition filed against
it in an involuntary case under such bankruptcy laws or other Applicable Laws or
consent to any proceeding or action described in the immediately following
subsection; (iv) apply for or consent to, or fail to contest in a timely
and appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign; (v) admit in writing its inability to
pay its debts as they become due; (vi) make a general assignment for the
benefit of creditors; (vii) make a conveyance fraudulent as to creditors
under any Applicable Law; or (viii) take any corporate or partnership
action for the purpose of effecting any of the foregoing.
(g) Involuntary
Bankruptcy Proceeding.
A case or other proceeding shall be commenced against any Loan Party in any
court of competent jurisdiction seeking: (i) relief under the Bankruptcy or
other federal bankruptcy laws (as now or hereafter in effect) or under any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or
(ii) the appointment of a trustee, receiver, custodian, liquidator or the
like of such
36
Loan
Party, or of all or any substantial part of the assets, domestic or foreign, of
such Loan Party, and such case or proceeding shall continue undismissed or
unstayed for a period of 60 consecutive calendar days, or an order granting
the remedy or other relief requested in such case or proceeding against such
Loan Party (including, but not limited to, an order for relief under such
Bankruptcy Code or such other federal bankruptcy laws) shall be
entered.
(h) Litigation;
Enforceability.
Any Loan Party shall disavow, revoke or terminate (or attempt to terminate) any
Loan Document to which it is a party or shall otherwise challenge or contest in
any action, suit or proceeding in any court or before any Governmental Authority
the validity or enforceability of this Agreement or any other Loan Document or
this Agreement, or any other Loan Document shall cease to be in full force and
effect (except as a result of the express terms thereof).
(i) Monetary
Judgments.
Any judgments or orders, either individually or in the aggregate, for the
payment of money in excess of (A) $0, in the case of the Borrower or (B)
$15,000,000, in the case of a Guarantor, shall be rendered against such Loan
Party and either (x) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (y) there shall be any period
of 10 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect.
(j) Non-Monetary
Judgments.
Any non-monetary judgment or order shall be rendered against any Loan Party that
could have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect.
(k) Attachment.
A warrant, writ of attachment, execution or similar process shall be issued
against any property of any Loan Party which exceeds, individually or together
with all other such warrants, writs, executions and processes, (A) $0 in amount,
in the case of the Borrower or (B) $15,000,000 in
amount, in the case of a Guarantor, and such warrant, writ, execution or process
shall not be discharged, vacated, stayed or bonded for a period of 30 days;
provided, however, that if a bond has been issued in favor of the claimant or
other Person obtaining such warrant, writ, execution or process, the issuer of
such bond shall execute a waiver or subordination agreement in form and
substance satisfactory to the Agent pursuant to which the issuer of such bond
subordinates its right of reimbursement, contribution or subrogation to the
Obligations and waives or subordinates any Lien it may have on the assets of any
Loan Party.
(l) Loan
Documents.
An Event of Default (as defined therein) shall occur under any of the other Loan
Documents.
(m) Change
in Ownership.
The Borrower shall cease to be a Wholly Owned Subsidiary of the Operating
Partnership.
(n) OP
Credit Agreement.
An OP Credit Agreement ERISA Default (each OP Credit Agreement ERISA Default
being hereby incorporated herein by reference) shall occur.
Section 10.2.
Remedies Upon Event of Default.
Upon
the occurrence of an Event of Default the following provisions shall
apply:
37
(a) Acceleration;
Termination of Facilities.
(i) Automatic.
Upon the occurrence of an Event of Default specified in Sections 10.1.(f)
or 10.1.(g), the principal of, and all accrued interest on, the Loans and the
Notes at the time outstanding, and all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders, and the
Agent under this Agreement, the Notes or any of the other Loan Documents, shall
all become immediately and automatically due and payable by the Borrower without
presentment, demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower.
(ii) Optional.
If any other Event of Default shall exist, the Agent shall, at the direction of
the Requisite Lenders declare the principal of, and accrued interest on, the
Loans and the Notes at the time outstanding, and all of the other Obligations,
including, but not limited to, the other amounts owed to the Lenders and the
Agent under this Agreement, the Notes or any of the other Loan Documents, to be
forthwith due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all of
which are expressly waived by the Borrower.
(b) Loan
Documents.
The Requisite Lenders may direct the Agent to, and the Agent if so directed
shall, exercise any and all of its rights under any and all of the other Loan
Documents.
(c) Applicable
Law.
The Requisite Lenders may direct the Agent to, and the Agent if so directed
shall, exercise all other rights and remedies it may have under any Applicable
Law.
(d) Appointment
of Receiver.
To the extent permitted by Applicable Law, the Agent and the Lenders shall be
entitled to the appointment of a receiver for the assets and properties of the
Borrower, without notice of any kind whatsoever and without regard to the
adequacy of any security for the Obligations or the solvency of any party bound
for its payment, to take possession of all or any portion of the business
operations of the Borrower and to exercise such power as the court shall confer
upon such receiver.
Section 10.3.
Allocation of Proceeds.
If
an Event of Default shall exist and maturity of any of the Obligations has been
accelerated, all payments received by the Agent under any of the Loan Documents,
in respect of any principal of or interest on the Obligations or any other
amounts payable by the Borrower hereunder or thereunder, shall be applied in the
following order and priority:
(a) amounts
due to the Agent in respect of fees and expenses due under
Section 12.2.;
(b) amounts
due to the Lenders in respect of fees and expenses due under Section 12.2.,
pro rata in the amount then due each Lender;
(c) payments
of interest on all Loans, to be applied for the ratable benefit of the
Lenders;
(d) payments
of principal of all Loans, to be applied for the ratable benefit of the
Lenders;
(e) amounts
due the Agent and the Lenders pursuant to Sections 11.7. and
12.9.;
38
(f) payments
of all other Obligations and other amounts due and owing by the Borrower and the
other Loan Parties under any of the Loan Documents, if any, to be applied for
the ratable benefit of the Lenders; and
(g) any
amount remaining after application as provided above, shall be paid to the
Borrower or whomever else may be legally entitled thereto.
Section 10.4.
Performance by Agent.
If
the Borrower shall fail to perform any covenant, duty or agreement contained in
any of the Loan Documents, the Agent may, after notice to the Borrower, perform
or attempt to perform such covenant, duty or agreement on behalf of the Borrower
after the expiration of any cure or grace periods set forth herein. In such
event, the Borrower shall, at the request of the Agent, promptly pay any amount
reasonably expended by the Agent in such performance or attempted performance to
the Agent, together with interest thereon at the applicable Post-Default Rate
from the date of such expenditure until paid. Notwithstanding the foregoing,
neither the Agent nor any Lender shall have any liability or responsibility
whatsoever for the performance of any obligation of the Borrower under this
Agreement or any other Loan Document.
Section 10.5.
Rights Cumulative.
The
rights and remedies of the Agent and the Lenders under this Agreement and each
of the other Loan Documents shall be cumulative and not exclusive of any rights
or remedies which any of them may otherwise have under Applicable Law. In
exercising their respective rights and remedies the Agent and the Lenders may be
selective and no failure or delay by the Agent or any of the Lenders in
exercising any right shall operate as a waiver of it, nor shall any single or
partial exercise of any power or right preclude its other or further exercise or
the exercise of any other power or right.
Article
XI. The Agent
Section 11.1.
Authorization and Action.
Each
Lender hereby appoints and authorizes the Agent to take such action as
contractual representative on such Lender’s behalf and to exercise such powers
under this Agreement and the other Loan Documents as are specifically delegated
to the Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Not in limitation of the foregoing, each Lender
authorizes and directs the Agent to enter into the Loan Documents for the
benefit of the Lenders. Each Lender hereby agrees that, except as otherwise set
forth herein, any action taken by the Requisite Lenders in accordance with the
provisions of this Agreement or the Loan Documents, and the exercise by the
Requisite Lenders of the powers set forth herein or therein, together with such
other powers as are reasonably incidental thereto, shall be authorized and
binding upon all of the Lenders. Nothing herein shall be construed to deem the
Agent a trustee or fiduciary for any Lender nor to impose on the Agent duties or
obligations other than those expressly provided for herein. At the request of a
Lender, the Agent will forward to such Lender copies or, where appropriate,
originals of the documents delivered to the Agent pursuant to this Agreement or
the other Loan Documents. The Agent will also furnish to any Lender, upon the
request of such Lender, a copy of any certificate or notice furnished to the
Agent by the Borrower, any other Loan Party or any other Affiliate of the
Borrower, pursuant to this Agreement or any other Loan Document not already
delivered to such Lender pursuant to the terms of this Agreement or any such
other Loan Document. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of any of
the Obligations), the Agent shall not be
39
required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Requisite Lenders (or all of the
Lenders if explicitly required under any other provision of this Agreement), and
such instructions shall be binding upon all Lenders and all holders of any of
the Obligations; provided, however, that, notwithstanding anything in this
Agreement to the contrary, the Agent shall not be required to take any action
which exposes the Agent to personal liability or which is contrary to this
Agreement or any other Loan Document or Applicable Law. Not in limitation of the
foregoing, the Agent shall not exercise any right or remedy it or the Lenders
may have under any Loan Document upon the occurrence of a Default or an Event of
Default unless the Requisite Lenders have so directed the Agent to exercise such
right or remedy.
Section 11.2.
Agent’s Reliance, Etc.
Notwithstanding
any other provisions of this Agreement or any other Loan Documents, neither the
Agent nor any of its directors, officers, agents, employees or counsel shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Loan Document, except for its or
their own gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final, non-appealable judgment. Without limiting the
generality of the foregoing, the Agent: (a) may treat the payee of any Note
as the holder thereof until the Agent receives written notice of the assignment
or transfer thereof signed by such payee and in form satisfactory to the Agent;
(b) may consult with legal counsel (including its own counsel or counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender or any other
Person and shall not be responsible to any Lender or any other Person for any
statements, warranties or representations made by any Person in or in connection
with this Agreement or any other Loan Document; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any of this Agreement or any other Loan Document or
the satisfaction of any conditions precedent under this Agreement or any Loan
Document on the part of the Borrower or other Persons or inspect the property,
books or records of the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, any other instrument or document furnished pursuant thereto or
any collateral covered thereby or the perfection or priority of any Lien in
favor of the Agent on behalf of the Lenders in any such collateral; and (f)
shall incur no liability under or in respect of this Agreement or any other Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telephone or telecopy) believed by it to be genuine and
signed, sent or given by the proper party or parties. Unless set forth in
writing to the contrary, the making of its initial Loan by a Lender shall
constitute a certification by such Lender to the Agent and the other Lenders
that the Borrower have satisfied the conditions precedent for initial Loans set
forth in Sections 5.1. and 5.2.
that have not previously been waived by the Requisite Lenders. Not in limitation
of the foregoing, the Agent shall have no obligation to the Lenders or to any
other Person to assure that the Collateral exists or is owned by any Loan Party
or is cared for, protected or insured or that the Liens granted to the Agent
pursuant to the Security Documents have been properly or sufficiently or
lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise or to continue exercising at all or in any
manner or under any duty of care, disclosure or fidelity any of the rights,
authorities and powers granted or available to the Agent in any of the Loan
Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission or event related thereto, the Agent may act in any manner it
may reasonably deem appropriate given the Agent’s own interest in the Collateral
as one of the Lenders and that the Agent shall have no duty or liability
whatsoever to the Lenders in this regard, except for its gross negligence or
willful misconduct. Upon request by the Agent at any time, the Lenders will
40
confirm
in writing the Agent’s authority to release particular types or items of
Collateral or a Guarantor pursuant to such Sections.
Section 11.3.
Notice of Defaults.
The
Agent shall not be deemed to have knowledge or notice of the occurrence of a
Default or Event of Default unless the Agent has received notice from a Lender
or the Borrower referring to this Agreement, describing with reasonable
specificity such Default or Event of Default and stating that such notice is a
“notice of default.” If any Lender (excluding the Lender which is also serving
as the Agent) becomes aware of any Default or Event of Default, it shall
promptly send to the Agent such a “notice of default.” Further, if the Agent
receives such a “notice of default”, the Agent shall give prompt notice thereof
to the Lenders.
Section 11.4.
Wachovia as Lender.
Wachovia,
as a Lender, shall have the same rights and powers under this Agreement and any
other Loan Document as any other Lender and may exercise the same as though it
were not the Agent; and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated, include Wachovia in each case in its individual capacity.
Wachovia and its affiliates may each accept deposits from, maintain deposits or
credit balances for, invest in, lend money to, act as trustee under indentures
of, serve as financial advisor to, and generally engage in any kind of business
with, the Borrower, any other Loan Party or any other affiliate thereof as if it
were any other bank and without any duty to account therefor to the other
Lenders. Further, the Agent and any affiliate may accept fees and other
consideration from the Borrower for services in connection with this Agreement
and otherwise without having to account for the same to the other Lenders. The
Lenders acknowledge that, pursuant to such activities, Wachovia or its
affiliates may receive information regarding the Borrower, the other Loan
Parties and other Affiliates (including information that may be subject to
confidentiality obligations in favor of such Person) and acknowledge that the
Agent shall be under no obligation to provide such information to
them.
Section
11.5. Approvals of Lenders.
All
communications from the Agent to any Lender requesting such Lender’s
determination, consent, approval or disapproval (a) shall be given in the
form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include,
if reasonably requested by such Lender and to the extent not previously provided
to such Lender, written materials and a summary of all oral information provided
to the Agent by the Borrower in respect of the matter or issue to be resolved,
and (d) shall include the Agent’s recommended course of action or
determination in respect thereof. Each Lender shall reply promptly, but in any
event within 10 Business Days (or such lesser or greater period as may be
specifically required under the Loan Documents) of receipt of such
communication. Except as otherwise provided in this Agreement, unless a Lender
shall give written notice to the Agent that it specifically objects to the
recommendation or determination of the Agent (together with a written
explanation of the reasons behind such objection) within the applicable time
period for reply, such Lender shall be deemed to have conclusively approved of
or consented to such recommendation or determination.
Section 11.6.
Lender Credit Decision, Etc.
Each
Lender expressly acknowledges and agrees that neither the Agent nor any of its
officers, directors, employees, agents, counsel, attorneys-in-fact or other
affiliates has made any representations or
41
warranties
as to the financial condition, operations, creditworthiness, solvency or other
information concerning the business or affairs of the Borrower, any other Loan
Party, or any other Person to such Lender and that no act by the Agent hereafter
taken, including any review of the affairs of the Borrower or any other Loan
Party shall be deemed to constitute any such representation or warranty by the
Agent to any Lender. Each Lender acknowledges that it has made its own credit
and legal analysis and decision to enter into this Agreement and the
transactions contemplated hereby, independently and without reliance upon the
Agent, any other Lender or counsel to the Agent, or any of their respective
officers, directors, employees and agents, and based on the financial statements
of the Borrower, the Guarantors or any other Affiliate thereof, and inquiries of
such Persons, its independent due diligence of the business and affairs of the
Borrower, the other Loan Parties, and other Persons, its review of the Loan
Documents, the legal opinions required to be delivered to it hereunder, the
advice of its own counsel and such other documents and information as it has
deemed appropriate. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, any other Lender or counsel to the Agent or
any of their respective officers, directors, employees and agents, and based on
such review, advice, documents and information as it shall deem appropriate at
the time, continue to make its own decisions in taking or not taking action
under the Loan Documents. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent under
this Agreement or any of the other Loan Documents, the Agent shall have no duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate
thereof which may come into possession of the Agent, or any of its officers,
directors, employees, agents, attorneys-in-fact or other affiliates. Each Lender
acknowledges that the Agent’s legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the Agent and is not
acting as counsel to such Lender.
Section 11.7.
Indemnification of Agent.
Each
Lender agrees to indemnify the Agent (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so) pro rata
in accordance with such Lender’s respective Commitment Percentage, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Agent (in its capacity as Agent but not as a Lender) in any way
relating to or arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Agent under the Loan
Documents (collectively, “Indemnifiable Amounts”); provided, however, that no
Lender shall be liable for any portion of such Indemnifiable Amounts to the
extent resulting from the Agent’s gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment or if the Agent fails to follow the written direction of the Requisite
Lenders (or all of the Lenders if expressly required hereunder) unless such
failure results from the Agent following the advice of counsel to the Agent of
which advice the Lenders have received notice. Without limiting the generality
of the foregoing but subject to the preceding proviso, each Lender agrees to
reimburse the Agent (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees of the
counsel(s) of the Agent’s own choosing) incurred by the Agent in connection with
the preparation, negotiation, execution, or enforcement of, or legal advice with
respect to the rights or responsibilities of the parties under, the Loan
Documents, any suit or action brought by the Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any “lender liability” suit or
claim brought against the Agent and/or the Lenders, and any claim or suit
brought against the Agent, and/or the Lenders arising under any Environmental
Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by
the Lenders on the request of the Agent notwithstanding any claim or assertion
that the Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by the Agent that the Agent will reimburse
42
the
Lenders if it is actually and finally determined by a court of competent
jurisdiction that the Agent is not so entitled to indemnification. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder or under the other Loan Documents and the termination
of this Agreement. If the Borrower shall reimburse the Agent for any
Indemnifiable Amount following payment by any Lender to the Agent in respect of
such Indemnifiable Amount pursuant to this Section, the Agent shall share such
reimbursement on a ratable basis with each Lender making any such
payment.
Section 11.8.
Successor Agent.
The
Agent may resign at any time as Agent under the Loan Documents by giving written
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Requisite Lenders shall have the right to appoint a successor Agent which
appointment shall, provided no Event of Default exists, be subject to the
Borrower’s approval, which approval shall not be unreasonably withheld or
delayed (except that the Borrower shall, in all events, be deemed to have
approved each Lender and its affiliates as a successor Agent). If no successor
Agent shall have been so appointed in accordance with the immediately preceding
sentence, and shall have accepted such appointment, within 30 days after the
resigning Agent’s giving of notice of resignation, then the resigning Agent may,
on behalf of the Lenders, appoint a successor Agent, which shall be a Lender, if
any Lender shall be willing to serve, and otherwise shall be a commercial bank
having total combined assets of at least $50,000,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Agent, and the resigning Agent shall be
discharged from its duties and obligations under the Loan Documents. After any
Agent’s resignation hereunder as Agent, the provisions of this Article XI.
shall continue to inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under the Loan Documents.
Article
XII. Miscellaneous
Section 12.1.
Notices.
Unless
otherwise provided herein, communications provided for hereunder shall be in
writing and shall be mailed, telecopied or delivered as follows:
If
to the Borrower:
c/x
Xxxxxxx Properties, L.P.
000
X. Xxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxx Xxxxx
Telephone: (000)
000-0000
Telecopy:
(000)
000-0000
If
to the Agent:
Wachovia
Bank, National Association
000
X. Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attn:
Xxx X. Xxxx
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
43
If
to a Lender:
To
such Lender’s address or telecopy number, as applicable, set forth on its
signature page hereto or in the applicable Assignment and Acceptance
Agreement;
or,
as to each party at such other address as shall be designated by such party in a
written notice to the other parties delivered in compliance with this Section.
All such notices and other communications shall be effective (i) if mailed,
when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered or sent by overnight courier, when delivered. Notwithstanding the
immediately preceding sentence, all notices or communications to the Agent or
any Lender under Article II. shall be effective only when actually
received. Neither the Agent nor any Lender shall incur any liability to the
Borrower (nor shall the Agent incur any liability to the Lenders) for acting
upon any telephonic notice referred to in this Agreement which the Agent or such
Lender, as the case may be, believes in good faith to have been given by a
Person authorized to deliver such notice or for otherwise acting in good faith
hereunder. Failure of a Person designated to get a copy of a notice to receive
such copy shall not affect the validity of notice properly given to any other
Person.
Section 12.2.
Expenses.
The
Borrower agrees (a) to pay or reimburse the Agent for all of its reasonable
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of, and any amendment, supplement or modification to,
any of the Loan Documents (including due diligence expenses and travel expenses
relating to closing), and the consummation of the transactions contemplated
thereby, including the reasonable fees and disbursements of counsel to the Agent
and costs and expenses in connection with the use of IntraLinks, Inc. or other
similar information transmission systems in connection with the Loan Documents,
(b) to pay or reimburse the Agent, and the Lenders for all their reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under the Loan Documents, including the reasonable fees and
disbursements of their respective counsel (including the allocated fees and
expenses of in-house counsel) and any payments in indemnification or otherwise
payable by the Lenders to the Agent pursuant to the Loan Documents, (c) to
pay, and indemnify and hold harmless the Agent, and the Lenders from, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any failure to pay or delay in paying, documentary, stamp, excise
and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, any Loan Document and (d) to
the extent not already covered by any of the preceding subsections, to pay or
reimburse the Agent, and the Lenders for all their costs and expenses incurred
in connection with any bankruptcy or other proceeding of the type described in
Sections 10.1.(f) or 10.1.(g), including the reasonable fees and
disbursements of counsel to the Agent and any Lender, whether such fees and
expenses are incurred prior to, during or after the commencement of such
proceeding or the confirmation or conclusion of any such proceeding. If the
Borrower shall fail to pay any amounts required to be paid by them pursuant to
this Section, the Agent, and/or the Lenders may pay such amounts on behalf of
the Borrower and either deem the same to be Loans outstanding hereunder or
otherwise Obligations owing hereunder.
Section 12.3.
Setoff.
Subject
to Section 3.3. and in addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, the Agent,
each Lender and each Participant is hereby authorized by the Borrower, at any
time or from time to time during the continuance of an Event of Default, without
prior notice to the Borrower or to any other Person, any such notice being
hereby
44
expressly
waived, but in the case of a Lender or Participant subject to receipt of the
prior written consent of the Agent exercised in its sole discretion, to set off
and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other indebtedness at any time
held or owing by the Agent, such Lender or any affiliate of the Agent or such
Lender, to or for the credit or the account of the Borrower against and on
account of any of the Obligations, irrespective of whether or not any or all of
the Loans and all other Obligations have been declared to be, or have otherwise
become, due and payable as permitted by Section 10.2., and although such
obligations shall be contingent or unmatured.
Section 12.4.
Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH
PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE
BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND
COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE
PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE
LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN
WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF
THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER
SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE
AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN
DOCUMENTS.
(b) EACH
OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY AGREES THAT ANY FEDERAL
DISTRICT COURT LOCATED IN NORTH CAROLINA OR, AT THE OPTION OF THE AGENT, ANY
STATE COURT LOCATED IN CHARLOTTE, NORTH CAROLINA, SHALL HAVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE
AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, THE LOANS, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER
ARISING HEREFROM OR THEREFROM. THE BORROWER AND EACH OF THE LENDERS EXPRESSLY
SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY
FURTHER 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 FORUM, AND EACH AGREES NOT TO PLEAD OR
CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE
ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(c) THE
PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND
SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER
OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS
OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
45
Section 12.5.
Successors and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns, except
that the Borrower may not assign or otherwise transfer any of their rights or
obligations under this Agreement without the prior written consent of all
Lenders and any such assignment or other transfer to which all of the Lenders
have not so consented shall be null and void.
(b) Any
Lender may make, carry or transfer Loans at, to or for the account of any of its
branch offices or the office of an affiliate of such Lender except to the extent
such transfer would result in increased costs to the Borrower.
(c) Any
Lender may at any time grant to one or more banks or other financial
institutions (each a “Participant”) participating interests in the Obligations
owing to such Lender; provided, however, (i) any such participating interest
must be for a constant and not a varying percentage interest (ii) no Lender may
grant a participating interest in the outstanding principal balance of the Note
held by it, in an amount less than $5,000,000 and (iii) after giving effect to
any such participation by a Lender, the outstanding principal balance of the
Note held by it, in which it has not granted any participating interests must be
equal to $5,000,000. Except as otherwise provided in Section 12.3., no
Participant shall have any rights or benefits under this Agreement or any other
Loan Document. In the event of any such grant by a Lender of a participating
interest to a Participant, such Lender shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided, however, such Lender may agree with the Participant that it will not,
without the consent of the Participant, agree to (i) extend the date fixed
for the payment of principal of or interest on the Loans or portions thereof
owing to such Lender, (ii) reduce the amount of any such payment of
principal, (iii) reduce the rate at which interest is payable thereon or
(iv) release any Guarantor except as expressly permitted under the Loan
Documents. An assignment or other transfer which is not permitted by
subsection (d) or (e) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (c). Upon request from the Agent, a Lender shall
notify the Agent of the sale of any participation hereunder and, if requested by
the Agent, certify to the Agent that such participation is permitted hereunder
and that the requirements of Section 3.12. (c) have been
satisfied.
(d) Any
Lender may with the prior written consent of the Agent and, so long as no
Default or Event of Default exists, the Borrower (which consent, in each case,
shall not be unreasonably withheld), assign to one or more Eligible Assignees
(each an “Assignee”) all or a portion of its rights and obligations under this
Agreement and the Notes (including all or a portion of the Loan owing to such
Lender); provided, however, (i) no such consent by the Borrower shall be
required in the case of any assignment to another Lender or any affiliate of
such Lender or another Lender and no such consent by the Agent shall be required
in the case of any assignment by a Lender to any affiliate of such Lender;
(ii) unless the Borrower and the Agent otherwise agree, after giving effect
to any partial assignment by a Lender, the Assignee shall hold, and the
assigning Lender shall retain, Loans having an outstanding principal balance, of
at least $5,000,000 and integral multiples of $1,000,000 in excess thereof; and
(iii) each such assignment shall be effected by means of an Assignment and
Acceptance Agreement. Upon execution and delivery of such instrument and payment
by such Assignee to such transferor Lender of an amount equal to the purchase
price agreed between such transferor Lender and such Assignee, such Assignee
shall be a Lender party to this Agreement with respect to the assigned interest
as of the effective date of
46
the
Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Lender with respect to the assigned interest as set forth in
such Assignment and Acceptance Agreement, and the transferor Lender shall be
released from its obligations hereunder with respect to the assigned interest to
a corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection,
the transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that new Notes are issued to the Assignee and such transferor
Lender, as appropriate. In connection with any such assignment, the transferor
Lender shall pay to the Agent an administrative fee for processing such
assignment in the amount of $3,500. Anything in this Section to the contrary
notwithstanding, no Lender may assign or participate any interest the Loan held
by it hereunder to the Borrower or any Subsidiary or Affiliate of the
Borrower.
(e) The
Agent shall maintain at the Principal Office a copy of each Assignment and
Acceptance Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of each
Lender from time to time (the “Register”). The Agent shall give each Lender and
the Borrower notice of the assignment by any Lender of its rights as
contemplated by this Section. The Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register and copies of each Assignment and
Acceptance Agreement shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior notice
to the Agent. Upon its receipt of an Assignment and Acceptance Agreement
executed by an assigning Lender, together with each Note subject to such
assignment, the Agent shall, if such Assignment and Acceptance Agreement has
been completed and if the Agent receives the processing and recording fee
described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(f) In
addition to the assignments and participations permitted under the foregoing
provisions of this Section, any Lender may assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank, and such Loans and Notes shall be fully transferable as provided
therein. No such assignment shall release the assigning Lender from its
obligations hereunder.
(g) A
Lender may furnish any information concerning, any Loan Party in the possession
of such Lender from time to time to Assignees and Participants (including
prospective Assignees and Participants) subject to compliance with
Section 12.8.
(h) Anything
in this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to, any Loan Party or
any Affiliates of a Loan Party.
(i) Each
Lender agrees that, without the prior written consent of the Borrower and the
Agent, it will not make any assignment hereunder in any manner or under any
circumstances that would require registration or qualification of, or filings in
respect of, any Loan or Note under the Securities Act or any other securities
laws of the United States of America or of any other jurisdiction.
Section 12.6.
Amendments.
(a) Except
as otherwise expressly provided in this Agreement, any consent or approval
required or permitted by this Agreement or any other Loan Document to be given
by the Lenders may be given, and any term of this Agreement or of any other Loan
Document may be amended, and the performance or observance by any Loan Party of
any terms of this Agreement or such other Loan Document or the continuance of
any Default or Event of Default may be waived (either generally or in a
47
particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Requisite Lenders (and, in the case of an amendment to
any Loan Document, the written consent of each Loan Party a party
thereto).
(b) Notwithstanding
the foregoing, without the prior written consent of each Lender adversely
affected thereby, no amendment, waiver or consent shall do any of the following:
(i) increase
the Commitments of the Lenders or subject the Lenders to any additional
obligations;
(ii) reduce
the principal of, or interest rates that have accrued or that will be charged on
the outstanding principal amount of, any Loans or other Obligations;
(iii) reduce
the amount of any Fees payable hereunder or postpone any date fixed for payment
thereof;
(iv) modify
the definition of the term “Termination Date” (except as contemplated under
Section 2.10.) or otherwise postpone any date fixed for any payment of any
principal of, or interest on, any Loans or any other Obligations (including the
waiver of any Default or Event of Default as a result of the nonpayment of any
such Obligations as and when due);
(v) amend
or otherwise modify the provisions of Section 3.2.;
(vi) modify
the definition of the term “Requisite Lenders” or otherwise modify in any other
manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
including without limitation, any modification of this Section 12.6. if such
modification would have such effect;
(vii) release
any Guarantor from its obligations under the Guaranty; or
(viii) increase
the number of Interest Periods permitted with respect to Loans under
Section 2.3.
(c) No
amendment, waiver or consent, unless in writing and signed by the Agent, in such
capacity, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Agent under this Agreement or any of
the other Loan Documents.
(d) No
waiver shall extend to or affect any obligation not expressly waived or impair
any right consequent thereon and any amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose set forth
therein. Except as otherwise provided in Section 11.5., no course of
dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Any Event of Default occurring hereunder shall continue to
exist until such time as such Event of Default is waived in writing in
accordance with the terms of this Section, notwithstanding any attempted cure or
other action by the Borrower, any other Loan Party or any other Person
subsequent to the occurrence of such Event of Default. Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to or
demand upon the Borrower shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
48
Section 12.7.
Nonliability of Agent and Lenders.
The
relationship between the Borrower and the Lenders and the Agent shall be solely
that of borrower and lender. Neither the Agent nor any Lender shall have any
fiduciary responsibilities to the Borrower and no provision in this Agreement or
in any of the other Loan Documents, and no course of dealing between or among
any of the parties hereto, shall be deemed to create any fiduciary duty owing by
the Agent or any Lender to any Lender or any Loan Party. Neither the Agent nor
any Lender undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower’s business
or operations.
Section 12.8.
Confidentiality.
The
Agent and each Lender shall use reasonable efforts to assure that information
about the Loan Parties, and the properties thereof and their operations, affairs
and financial condition, not generally disclosed to the public, which is
furnished to the Agent or any Lender pursuant to the provisions of this
Agreement or any other Loan Document, is used only for the purposes of this
Agreement and the other Loan Documents and shall not be divulged to any Person
other than the Agent, the Lenders, and their respective agents who are actively
and directly participating in the evaluation, administration or enforcement of
the Loan Documents and other transactions between the Agent or such Lender, as
applicable, and the Borrower, but in any event the Agent and the Lenders may
make disclosure: (a) to any of their respective affiliates (provided they
shall agree in writing to keep such information confidential in accordance with
the terms of this Section 12.8.); (b) as reasonably requested by any bona
fide Assignee, Participant or other transferee in connection with the
contemplated transfer of any Obligations or participations therein as permitted
hereunder (provided they shall agree in writing to keep such information
confidential in accordance with the terms of this Section); (c) as required
or requested by any Governmental Authority or representative thereof or pursuant
to legal process or in connection with any legal proceedings; (d) to the
Agent’s or such Lender’s independent auditors and other professional advisors
(provided they shall be notified of the confidential nature of the information);
(e) after the happening and during the continuance of an Event of Default,
to any other Person in connection with, and to the extent required for, the
exercise by the Agent or the Lenders of rights hereunder or under any of the
other Loan Documents; (f) upon Borrower’s prior consent (which consent shall not
be unreasonably withheld), to any contractual counter-parties to any swap or
similar hedging agreement or to any rating agency; and (g) to the extent
such information (x) becomes publicly available other than as a result of a
breach of this Section or (y) becomes available to the Agent or any Lender
on a nonconfidential basis from a source other than the Borrower or any
Affiliate.
Section 12.9.
Indemnification.
(a) The
Borrower shall and hereby agrees to indemnify, defend and hold harmless the
Agent, each of the Lenders, any affiliate of the Agent or any Lender, and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an “Indemnified Party”) from and against any and all
of the following (collectively, the “Indemnified Costs”): losses, costs, claims,
damages, liabilities, deficiencies, judgments or reasonable expenses of every
kind and nature (including, without limitation, amounts paid in settlement,
court costs and the reasonable fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith,
but excluding losses, costs, claims, damages, liabilities, deficiencies,
judgments or expenses indemnification in respect of which is specifically
covered by Section 3.12.
or 4.1.
or expressly excluded from the coverage of such Sections 3.12.
or 4.1.)
incurred by an Indemnified Party in connection with, arising out of, or by
reason of, any suit, cause of action, claim, arbitration, investigation or
settlement, consent decree or other proceeding (the foregoing referred to herein
as an “Indemnity Proceeding”) which is in any way related directly or indirectly
to: (i) this Agreement or any
49
other
Loan Document or the transactions contemplated thereby; (ii) the making of
any Loans hereunder; (iii) any actual or proposed use by the Borrower of
the proceeds of the Loans; (iv) the Agent’s or any Lender’s entering into
this Agreement; (v) the fact that the Agent and the Lenders have
established the credit facility evidenced hereby in favor of the Borrower;
(vi) the fact that the Agent and the Lenders are creditors of the Borrower
and have or are alleged to have information regarding the financial condition,
strategic plans or business operations of the Borrower; (vii) the fact that
the Agent and the Lenders are material creditors of the Borrower and are alleged
to influence directly or indirectly the business decisions or affairs of the
Borrower or its financial condition; (viii) the exercise of any right or
remedy the Agent or the Lenders may have under this Agreement or the other Loan
Documents; or (ix) any violation or non-compliance by the Borrower of any
Applicable Law (including any Environmental Law) including, but not limited to,
any Indemnity Proceeding commenced by (A) the Internal Revenue Service or
state taxing authority or (B) any Governmental Authority or other Person
under any Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to cause
the Borrower or its Subsidiaries (or its respective properties) (or the Agent
and/or the Lenders as successors to the Borrower) to be in compliance with such
Environmental Laws; provided, however, that the Borrower shall not be obligated
to indemnify any Indemnified Party for (A) any acts or omissions of such
Indemnified Party in connection with matters described in this subsection to the
extent arising from the gross negligence or willful misconduct of such
Indemnified Party, as determined by a court of competent jurisdiction in a
final, non-appealable judgment or (B) Indemnified Costs to the extent
arising directly out of or resulting directly from claims of one or more
Indemnified Parties against another Indemnified Party.
(b) The
Borrower’s indemnification obligations under this Section 12.9. shall apply to
all Indemnity Proceedings arising out of, or related to, the foregoing whether
or not an Indemnified Party is a named party in such Indemnity Proceeding. In
this regard, this indemnification shall cover all Indemnified Costs of any
Indemnified Party in connection with any deposition of any Indemnified Party or
compliance with any subpoena (including any subpoena requesting the production
of documents). This indemnification shall, among other things, apply to any
Indemnity Proceeding commenced by other creditors of the Borrower, any holder of
Equity Interests issued by the Borrower (whether such holder(s) are prosecuting
such Indemnity Proceeding in their individual capacity or derivatively on behalf
of the Borrower), any account debtor of the Borrower or by any Governmental
Authority. If indemnification is to be sought hereunder by an Indemnified Party,
then such Indemnified Party shall notify the Borrower of the commencement of any
Indemnity Proceeding; provided, however, that the failure to so notify the
Borrower shall not relieve the Borrower from any liability that they may have to
such Indemnified Party pursuant to this Section 12.9.
(c) This
indemnification shall apply to any Indemnity Proceeding arising during the
pendency of any bankruptcy proceeding filed by or against the
Borrower.
(d) All
out-of-pocket fees and expenses of, and all amounts paid to third-persons by, an
Indemnified Party shall be advanced by the Borrower at the request of such
Indemnified Party notwithstanding any claim or assertion by the Borrower that
such Indemnified Party is not entitled to indemnification hereunder, upon
receipt of an undertaking by such Indemnified Party that such Indemnified Party
will reimburse the Borrower if it is actually and finally determined by a court
of competent jurisdiction that such Indemnified Party is not so entitled to
indemnification hereunder.
(e) An
Indemnified Party may conduct its own investigation and defense of, and may
formulate its own strategy with respect to, any Indemnity Proceeding covered by
this Section and, as provided above, all Indemnified Costs incurred by such
Indemnified Party shall be reimbursed by the Borrower. No action taken by legal
counsel chosen by an Indemnified Party in investigating or defending against any
such Indemnity Proceeding shall vitiate or in any way impair the obligations and
duties of the
50
Borrower
hereunder to indemnify and hold harmless each such Indemnified Party; provided,
however, that if (i) the Borrower is required to indemnify an Indemnified
Party pursuant hereto and (ii) the Borrower has provided evidence
reasonably satisfactory to such Indemnified Party that the Borrower has the
financial wherewithal to reimburse such Indemnified Party for any amount paid by
such Indemnified Party with respect to such Indemnity Proceeding, such
Indemnified Party shall not settle or compromise any such Indemnity Proceeding
without the prior written consent of the Borrower (which consent shall not be
unreasonably withheld or delayed). Notwithstanding the foregoing, an Indemnified
Party may settle or compromise any such Indemnity Proceeding without the prior
written consent of the Borrower where (x) no monetary relief is sought
against such Indemnified Party in such Indemnity Proceeding or (y) there is
an allegation of a violation of law by such Indemnified Party.
(f) If
and to the extent that the obligations of the Borrower under this Section are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The
Borrower’s obligations under this Section shall survive any termination of this
Agreement and the other Loan Documents and the payment in full in cash of the
Obligations, and are in addition to, and not in substitution of, any other of
their obligations set forth in this Agreement or any other Loan Document to
which it is a party.
Section 12.10.
Termination; Survival.
At
such time as (a) none of the Lenders is obligated any longer under this
Agreement to make any Loans and (b) all Obligations (other than obligations
which survive as provided in the following sentence) have been paid and
satisfied in full, this Agreement shall terminate. The indemnities to which the
Agent and the Lenders are entitled under the provisions of Sections 3.12.,
4.1., 4.4., 11.7., 12.2. and 12.9. and any other provision of this Agreement and
the other Loan Documents, and the provisions of Section 12.4., shall
continue in full force and effect and shall protect the Agent and the Lenders
(i) notwithstanding any termination of this Agreement, or of the other Loan
Documents, against events arising after such termination as well as before and
(ii) at all times after any such party ceases to be a party to this
Agreement with respect to all matters and events existing on or prior to the
date such party ceased to be a party to this Agreement; provided, however, the
indemnities under Sections 4.1. and 4.4. shall terminate 180 days following
the termination of this Agreement in accordance with its terms.
Section 12.11.
Severability of Provisions.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 12.12.
GOVERNING LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
Section 12.13.
Patriot Act.
The
Lenders and the Agent each hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)), it is required to
51
obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify the Borrower in
accordance with the such Act.
Section 12.14.
Counterparts.
This
Agreement and any amendments, waivers, consents or supplements may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which counterparts together shall constitute but one and
the same instrument.
Section 12.15.
Obligations with Respect to Loan Parties.
The
obligations of the Borrower to direct or prohibit the taking of certain actions
by the other Loan Parties as specified herein shall be absolute and not subject
to any defense the Borrower may have that the Borrower do not control such Loan
Parties.
Section 12.16.
Limitation of Liability.
None
of the parties hereto or any affiliate, officer, director, employee, attorney,
or agent of any of them shall have any liability with respect to, and each party
hereto hereby waives, releases, and agrees not to xxx any of them upon, any
claim for any special, indirect, incidental, or consequential damages suffered
or incurred by any other party in connection with, arising out of, or in any way
related to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or any of the other Loan Documents.
Each party hereto hereby waives, releases, and agrees not to xxx any other party
or any of such other party’s affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Agreement or any of the
other Loan Documents, or any of the transactions contemplated by this Agreement
or financed hereby.
Section 12.17.
Entire Agreement.
This
Agreement, the Notes, and the other Loan Documents referred to herein embody the
final, entire agreement among the parties hereto and supersede any and all prior
commitments, agreements, representations, and understandings, whether written or
oral, relating to the subject matter hereof and thereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto.
Section 12.18.
Construction.
The
Agent, the Borrower and each Lender acknowledge that each of them has had the
benefit of legal counsel of its own choice and has been afforded an opportunity
to review this Agreement and the other Loan Documents with its legal counsel and
that this Agreement and the other Loan Documents shall be construed as if
jointly drafted by the Agent, the Borrower and each Lender.
Section 12.19.
OP Credit Agreement Provisions.
(a) Notwithstanding
any provision of any Loan Document to the contrary, the Borrower, the
Guarantors, the Agent and the Lenders hereby agree that on or after the
Restatement Date any amendment to, or waiver of, (i) the OP Credit
Agreement Representations, (ii) the OP Credit Agreement ERISA Defaults or
(iii) the covenants from the OP Credit Agreement referred to in
Section 7.12., which has been
52
consented
to by the Requisite Lenders (which consent shall not be unreasonably withheld),
shall be deemed to be incorporated herein by reference and shall become
effective hereunder when such amendment or waiver becomes effective thereunder,
without any further action necessary by the Borrower, the Guarantors, the Agent
or the Lenders. Any such amendment or waiver shall be effective only in the
specific instance and for the specific purpose for which given. The Borrower
agrees to provide promptly the Agent and each Lender with a copy of such
amendment or waiver.
(b) The
OP Credit Agreement Representations, the OP Credit Agreement ERISA Defaults and
the covenants from the OP Credit Agreement referred to in Section 7.12.
incorporated herein by reference and any definitions or other terms or
provisions of the OP Credit Agreement incorporated herein by reference, will be
deemed to continue in effect for the benefit of the Agent and the Lenders until
this Agreement has terminated in accordance with its terms, including, without
limitation, whether or not the OP Credit Agreement remains in effect or whether
or not the OP Credit Agreement is amended, restated or terminated after the date
hereof. For purposes of the foregoing, (i) references in the provisions of
the OP Credit Agreement incorporated herein by reference to the “Revolving
Credit Borrower” shall refer to the Operating Partnership; (ii) references
therein to the “Administrative Agent,” “Lenders” and “Lender” shall also refer
to the Agent, the Lenders and a Lender, respectively, except for purposes of
Sections 5.02(b)(x) and 5.02(o)(iv)(B); (iii) the terms “Agreement,”
“hereto” and “hereof” when used in the provisions of the OP Credit Agreement
incorporated herein by reference shall also refer to this Agreement; and
(iv) references to other terms that are defined in the OP Credit Agreement
and in this Agreement have the respective meanings given them in the OP Credit
Agreement.
(c) Nothing
in this Section is intended to limit the ability of any Loan Party to enter into
or obtain any amendment or waiver of any of the terms of the OP Credit
Agreement. For the avoidance of doubt, nothing herein or in any other Loan
Document shall restrict the pledge by the Operating Partnership of its direct
and indirect equity interests in its subsidiaries, including the Borrower,
pursuant to the OP Credit Agreement and the Loan Documents (as defined in the OP
Credit Agreement).
[Signatures
on Following Pages]
53
IN
WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Credit
Agreement to be executed by their authorized officers all as of the day and year
first above written.
XXXXXXX
PROPERTIES-PARK PLACE
MASTER
DEVELOPMENT LLC | |
By: Xxxxxxx Properties, L.P., its sole manager | |
By: Xxxxxxx Properties, Inc., its sole general partner | |
By: | |
Name:
| |
Title:
| |
[The Guarantors are joining in the execution of this Agreement
solely for the purposes of being bound by the provisions of
Sections 7.12. and 12.19.] | |
XXXXXXX PROPERTIES, L.P. | |
By: Xxxxxxx Properties, Inc., its General Partner | |
By:
| |
Name:
| |
Title:
| |
XXXXXXX PROPERTIES, INC. | |
By:
| |
Name:
| |
Title:
|
[Signatures
Continued on Next Page]
[Signature
Page to Amended and Restated Credit Agreement dated as of
March
15, 2005 with Xxxxxxx Properties-Park Place Master Development,
LLC]
WACHOVIA
BANK NATIONAL
ASSOCIATION,
as Agent and as a Lender | |
By:
| |
Name:
| |
Title:
| |
Commitment Amount: | |
$[44,000,000] | |
Lending Office (all Types of Loans): | |
Wachovia Bank, National Association | |
000 X. Xxxxxxx Xxxxxx, XX0000 | |
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 | |
Attn: Xxx X. Xxxx | |
Telephone: (000) 000-0000 | |
Telecopy: (000) 000-0000 |