EXHIBIT 10.1
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of October 28, 2002
by and among
Realty Income Corporation,
as Borrower,
The financial institutions party hereto
and their assignees under Section 13.6.,
as Lenders,
BANK OF AMERICA, N.A.,
as co-Syndication Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as co-Syndication Agent,
THE BANK OF NEW YORK,
as Documentation Agent and
co-lead Arranger,
and
XXXXX FARGO Bank, National Association,
as Administrative Agent and
co-lead Arranger
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TABLE OF CONTENTS
Article I. Definitions...........................................................................5
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Section 1.1. Definitions...............................................................5
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Section 1.2. General; References to San Francisco Time.................................27
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Article II. Credit Facility......................................................................28
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Section 2.1. Revolving Loans...........................................................28
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Section 2.2. Bid Rate Loans............................................................29
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Section 2.3. Swingline Loans...........................................................32
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Section 2.4. Rates and Payment of Interest on Loans....................................34
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Section 2.5. Number of Interest Periods................................................35
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Section 2.6. Repayment of Loans........................................................35
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Section 2.7. Prepayments...............................................................35
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Section 2.8. Late Charges..............................................................36
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Section 2.9. Continuation..............................................................36
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Section 2.10. Conversion...............................................................37
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Section 2.11. Notes....................................................................37
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Section 2.12. Voluntary Reductions of the Commitment...................................37
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Section 2.13. Extension of Termination Date............................................38
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Section 2.14. Amount Limitations.......................................................39
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Section 2.15. Increase in Commitments..................................................40
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Article III. Payments, Fees and Other General Provisions.........................................40
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Section 3.1. Payments..................................................................40
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Section 3.2. Pro Rata Treatment........................................................41
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Section 3.3. Sharing of Payments, Etc..................................................42
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Section 3.4. Several Obligations.......................................................42
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Section 3.5. Minimum Amounts...........................................................43
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Section 3.6. Fees......................................................................43
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Section 3.7. Computations..............................................................44
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Section 3.8. Usury.....................................................................44
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Section 3.9. Statements of Account.....................................................44
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Section 3.10. Defaulting Lenders.......................................................44
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Section 3.11. Taxes....................................................................45
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Article IV. Unencumbered Pool Properties........................................................47
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Section 4.1. Eligibility of Properties.................................................47
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Section 4.2. Termination of Designation as Unencumbered Pool Property..................48
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Article V. Yield Protection, Etc.................................................................48
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Section 5.1. Additional Costs; Capital Adequacy........................................48
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Section 5.2. Suspension of LIBOR Loans.................................................49
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Section 5.3. Illegality................................................................50
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Section 5.4. Compensation..............................................................50
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Section 5.5. Treatment of Affected Loans...............................................51
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Section 5.6. Change of Lending Office..................................................52
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Section 5.7. Affected Lenders..........................................................52
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Section 5.8. Assumptions Concerning Funding of LIBOR Loans.............................52
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Article VI. Conditions Precedent.................................................................53
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Section 6.1. Initial Conditions Precedent..............................................53
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Section 6.2. Conditions Precedent to All Loans.........................................53
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Section 6.3. Conditions as Covenants...................................................53
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Article VII. Representations and Warranties......................................................53
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Section 7.1. Representations and Warranties............................................53
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Section 7.2. Survival of Representations and Warranties, Etc...........................53
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Article VIII. Affirmative Covenants..............................................................53
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Section 8.1. Preservation of Existence and Similar Matters.............................53
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Section 8.2. Compliance with Applicable Law............................................53
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Section 8.3. Maintenance of Property...................................................53
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Section 8.4. Conduct of Business.......................................................53
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Section 8.5. Insurance.................................................................53
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Section 8.6. Payment of Taxes and Claims...............................................53
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Section 8.7. Books and Records; Inspections............................................53
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Section 8.8. Use of Proceeds...........................................................53
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Section 8.9. Environmental Matters.....................................................53
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Section 8.10. Further Assurances.......................................................53
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Section 8.11. Material Contracts.......................................................53
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Section 8.12. REIT Status..............................................................53
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Section 8.13. Exchange Listing.........................................................53
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Section 8.14. Guarantors...............................................................53
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Article IX. Information..........................................................................53
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Section 9.1. Quarterly Financial Statements............................................53
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Section 9.2. Year-End Statements.......................................................53
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Section 9.3. Compliance Certificate....................................................53
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Section 9.4. Other Information.........................................................53
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Article X. Negative Covenants....................................................................53
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Section 10.1. Financial Covenants......................................................53
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Section 10.2. Negative Pledge..........................................................53
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Section 10.3. Restrictions on Intercompany Transfers...................................53
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Section 10.4. Merger, Consolidation, Sales of Assets and Other Arrangements............53
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Section 10.5. Plans....................................................................53
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Section 10.6. Fiscal Year..............................................................53
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Section 10.7. Modifications of Organizational Documents................................53
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Section 10.8. Modifications to Material Contracts......................................53
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Section 10.9. Transactions with Affiliates.............................................53
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Section 10.10. Limitations on Non-Guarantor Subsidiaries...............................53
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Article XI. Default..............................................................................53
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Section 11.1. Events of Default........................................................53
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Section 11.2. Remedies Upon Event of Default...........................................53
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Section 11.3. Remedies Upon Default....................................................53
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Section 11.4. Marshaling; Payments Set Aside...........................................53
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Section 11.5. Allocation of Proceeds...................................................53
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Section 11.6. Performance by Agent.....................................................53
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Section 11.7. Rights Cumulative........................................................53
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Article XII. The Agent...........................................................................53
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Section 12.1. Appointment and Authorization............................................53
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Section 12.2. Agent's Reliance, Etc....................................................53
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Section 12.3. Notice of Defaults.......................................................53
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Section 12.4. Xxxxx Fargo as Lender....................................................53
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Section 12.5. Approvals of Lenders.....................................................53
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Section 12.6. Lender Credit Decision, Etc..............................................53
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Section 12.7. Indemnification of Agent.................................................53
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Section 12.8. Successor Agent..........................................................53
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Section 12.9. Titled Agents............................................................53
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Article XIII. Miscellaneous......................................................................53
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Section 13.1. Notices..................................................................53
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Section 13.2. Expenses.................................................................53
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Section 13.3. Stamp, Intangible and Recording Taxes....................................53
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Section 13.4. Setoff...................................................................53
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Section 13.5. Litigation; Jurisdiction; Other Matters; Waivers.........................53
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Section 13.6. Successors and Assigns...................................................53
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Section 13.7. Amendments and Waivers...................................................53
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Section 13.8. Nonliability of Agent and Lenders........................................53
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Section 13.9. Confidentiality..........................................................53
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Section 13.10. Indemnification.........................................................53
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Section 13.11. Termination; Survival...................................................53
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Section 13.12. Severability of Provisions..............................................53
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Section 13.13. GOVERNING LAW...........................................................53
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Section 13.14. Counterparts............................................................53
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Section 13.15. Obligations with Respect to Loan Parties................................53
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Section 13.16. Independence of Covenants...............................................53
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Section 13.17. Limitation of Liability.................................................53
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Section 13.18. Entire Agreement........................................................53
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Section 13.19. Construction............................................................53
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SCHEDULE 1.1. List of Loan Parties
SCHEDULE 4.1. Initial Unencumbered Pool Properties
SCHEDULE 7.1.(b) Ownership Structure
SCHEDULE 7.1.(f) Properties
SCHEDULE 7.1.(g) Indebtedness and Guaranties; Total Liabilities
SCHEDULE 7.1.(h) Material Contracts
SCHEDULE 7.1.(i) Litigation
SCHEDULE 7.1.(o) Environmental Matters
SCHEDULE 7.1.(r) Affiliate Transactions
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EXHIBIT A Form of Assignment and Assumption
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Notice of Continuation
EXHIBIT D Form of Notice of Conversion
EXHIBIT E Form of Revolving Note
EXHIBIT F Form of Notice of Swingline Borrowing
EXHIBIT G Form of Swingline Note
EXHIBIT H Form of Bid Rate Quote Request
EXHIBIT I Form of Bid Rate Quote
EXHIBIT J Form of Bid Rate Quote Acceptance
EXHIBIT K Form of Bid Rate Note
EXHIBIT L Form of Designation Agreement
EXHIBIT M Form of Extension Request
EXHIBIT N-1 Form of Opinion of Xxxxxx & Xxxxxxx
EXHIBIT N-2 Form of Opinion of Xxxxxxx Xxxxx
EXHIBIT N-3 Form of Opinion of Borrower's General Counsel
EXHIBIT O Form of Guaranty
EXHIBIT P Form of Compliance Certificate
EXHIBIT Q Form of Unencumbered Pool Certificate
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THIS CREDIT AGREEMENT dated as of October 28, 2002 by and among REALTY
INCOME CORPORATION, a corporation formed under the laws of the State of Maryland
(the "Borrower"), each of the financial institutions initially a signatory
hereto together with their assignees under Section 13.6. (the "Lenders"), BANK
OF AMERICA, N.A., as co-Syndication Agent, WACHOVIA BANK, NATIONAL ASSOCIATION,
as co-Syndication Agent (each a "Syndication Agent"), THE BANK OF NEW YORK, as
Documentation Agent and co-lead Arranger (the "Documentation Agent"), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION ("Xxxxx Fargo") as contractual representative
of the Lenders to the extent and in the manner provided in Article XII. (in such
capacity, the "Agent") and co-lead Arranger.
WHEREAS, the Agent and the Lenders desire to make available to the Borrower
a $250,000,000 revolving credit facility, which will include a swingline
subfacility and a competitive bid subfacility, on the terms and conditions
contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE 1. DEFINITIONS
SECTION 1 DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms shall
have the following meanings for the purposes of this Agreement:
"ABSOLUTE RATE" has the meaning given that term in Section 2.2.(c)(ii)(C).
"ABSOLUTE RATE AUCTION" means a solicitation of Bid Rate Quotes setting
forth Absolute Rates pursuant to Section 2.2.
"ABSOLUTE RATE LOAN" means a Bid Rate Loan, the interest rate on which is
determined on the basis of an Absolute Rate pursuant to an Absolute Rate
Auction.
"ACCESSION AGREEMENT" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"AGENT" has the meaning set forth in the introductory paragraph hereof and
shall include any successor Agent appointed pursuant to Section 12.8.
"ADDITIONAL COSTS" has the meaning given that term in Section 5.1.
"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 ten percent (10.0%)
or more of any equity interest in the Borrower; or (c) ten percent (10.0%) 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. In no event shall the Agent or any Lender be deemed to be an
Affiliate of the Borrower.
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"AGENT" means Xxxxx Fargo Bank, National Association, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors in such capacity.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
"ANNUALIZED BASE RENTS" means, for any tenant in a Property owned by the
Borrower, a Loan Party or any other Subsidiary, an amount equal to the monthly
Base Rent due from such tenant multiplied by 12.
"APPLICABLE FACILITY FEE" means the percentage set forth in the table below
corresponding to the Level at which the "Applicable Margin" is determined in
accordance with the definition thereof:
LEVEL FACILITY FEE
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1 .15%
2 .15%
3 .20%
4 .20%
5 .40%
Any change in the applicable Level at which the Applicable Margin is determined
shall result in a corresponding and simultaneous change in the Applicable
Facility Fee. As of the Agreement Date, the Applicable Facility Fee equals .20%.
"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 the percentage rate set forth below corresponding
to the range into which the Borrower's Credit Rating then falls. Any change in
the Borrower's Credit Rating which would cause it to move to a different range
in the table shall be effective as of the first day of the month following the
date on which such change occurs. If the Rating Agencies assign Credit Ratings
which correspond to different Levels in the above table resulting in different
Applicable Margin determinations, the Applicable Margin will be determined based
on the Level corresponding to the highest Credit Rating assigned by at least two
Rating Agencies; provided, however, that if no two Rating Agencies have assigned
the same Credit Rating with respect to the Borrower, then the Applicable Margin
will be determined based on the Level corresponding to the middle of the three
published Credit Ratings.
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BORROWER'S CREDIT RATING APPLICABLE MARGIN
LEVEL (S&P/XXXXX'X/FITCH OR EQUIVALENT) FOR
LIBOR LOANS
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1 A-/A3 or equivalent .70%
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2 BBB+/Baa1 or equivalent .80%
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3 BBB/Baa2 or equivalent .90%
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4 BBB-/Baa3 or equivalent 1.00%
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5 Lower than BBB-/Baa3 or equivalent 1.25%
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As of the Agreement Date, the Applicable Margin for LIBOR Loans equals 1.00%.
"ASSIGNEE" has the meaning given that term in Section 13.6.(c).
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption Agreement
among a Lender, an Assignee and the Agent, substantially in the form of Exhibit
A.
"BASE RATE" means the greater of (a) the rate of interest per annum
publicly announced from time to time by Xxxxx Fargo Bank, National Association
at its principal office in San Francisco, California as its "prime rate" (which
rate of interest may not be the lowest rate charged by Xxxxx Fargo Bank,
National Association or any of the other Lenders on similar loans) and (b) the
Federal Funds Rate plus one-half of one percent (0.5%). Each change in the Base
Rate shall become effective without prior notice to the Borrower or the Lenders
automatically as of the opening of business on the date of such change in the
Base Rate.
"BASE RATE LOAN" means a Revolving Loan bearing interest at a rate based on
the Base Rate.
"BASE RENT" means that portion of the rental payments of a tenant in a
Property owned by the Borrower, a Loan Party or any other Subsidiary which is
designated as the base rental payment (or other similar term) in the lease
agreement (or other similar document) to which such tenant is a party.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BID RATE BORROWING" has the meaning given that term in Section 2.2.(b).
"BID RATE LOAN" means a loan made by a Lender under Section 2.2.
"BID RATE NOTE" means a promissory note of the Borrower substantially in
the form of Exhibit K, payable to the order of a Lender in a principal amount
equal to the amount of such Lender's Commitment as originally in effect and
otherwise duly completed.
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"BID RATE QUOTE" means an offer in accordance with Section 2.2.(c) by a
Lender to make a Bid Rate Loan with one single specified interest rate.
"BID RATE QUOTE REQUEST" has the meaning given that term in Section
2.2.(b).
"BORROWER" has the meaning set forth in the introductory paragraph hereof
and shall include the Borrower's successors and permitted assigns.
"BORROWING BASE" means the aggregate Unencumbered Pool Values of all
Unencumbered Pool Properties divided by 1.75. Notwithstanding anything set forth
in this definition to the contrary, (a) not more than 25% of the Annualized Base
Rents of the Unencumbered Pool Properties in the Borrowing Base can be
attributable to tenants conducting business in any single "Industry" (as
determined by reference to the SIC Code applicable to each such tenant) and (b)
not more than 15% of the Annualized Base Rents of the Unencumbered Pool
Properties in the Borrowing Base can be attributable to any single tenant
(together with its Affiliates) of such Unencumbered Pool Properties.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday or other day
on which banks in San Francisco, California 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 EBITDA" means, with respect to a Person and as of a given
date, (a) such Person's EBITDA for the fiscal quarter most recently ended
multiplied by (b) 4 and divided by (c) 10.0%. In determining Capitalized EBITDA
with respect to a Property owned by a Subsidiary that is not a Wholly Owned
Subsidiary, only the Borrower's Ownership Share of the EBITDA of such Property
shall be used when determining Capitalized EBITDA.
"CAPITALIZED LEASE OBLIGATION" means obligations 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 determined in accordance with GAAP.
"COMMITMENT" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to participate in Swingline Loans
pursuant to Section 2.3., in an amount up to, but not exceeding 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,
as the same may be reduced from time to time pursuant to Section 2.12. or
otherwise pursuant to the terms of this Agreement or as appropriate to reflect
any assignments to or by such Lender effected in accordance with Section 13.6.
"COMMITMENT PERCENTAGE" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
at the time of determination the Commitments have terminated or been reduced to
zero, the "Commitment Percentage" of each Lender shall be the Commitment
Percentage of such Lender in effect immediately prior to such termination or
reduction.
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"COMPLIANCE CERTIFICATE" has the meaning given that term in Section 9.3.
"CONTINUE", "CONTINUATION" AND "CONTINUED" each refers to the continuation
of a LIBOR Loan from one Interest Period to another Interest Period pursuant to
Section 2.9.
"CONVERT", "CONVERSION" AND "CONVERTED" each refers to the conversion of a
Revolving Loan of one Type into a Revolving Loan of another Type pursuant to
Section 2.10.
"CREDIT EVENT" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Revolving Loan and (c) the
Continuation of a LIBOR Loan.
"CREDIT RATING" means the rating assigned by a Rating Agency to each series
of rated senior unsecured long term indebtedness of the Borrower.
"DEFAULT" means any of the events specified in Section 11.1., 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 3.10.
"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).
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"DESIGNATED LENDER" means a special purpose corporation which is an
affiliate of, or sponsored by, a Lender, that is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial paper rated
at least P-1 (or the then equivalent grade) by Xxxxx'x or A-1 (or the then
equivalent grade) by S&P that, in either case, (a) is organized under the laws
of the United States of America or any state thereof, (b) shall have become a
party to this Agreement pursuant to Section 13.6.(d) and (c) is not otherwise a
Lender.
"DESIGNATED LENDER NOTE" means a Bid Rate Note of the Borrower evidencing
the obligation of the Borrower to repay Bid Rate Loans made by a Designated
Lender.
"DESIGNATING LENDER" has the meaning given that term in Section 13.6.(d).
"Designation Agreement" means a Designation Agreement between a Lender and
a Designated Lender and accepted by the Agent, substantially in the form of
Exhibit L or such other form as may be agreed to by such Lender, such Designated
Lender and the Agent.
"DEVELOPMENT PROPERTY" means a Property currently under development (i)
upon which a certificate of occupancy has not been obtained in accordance with
Applicable Law and local building and zoning ordinances and (ii) on which the
improvements (other than tenant improvements on unoccupied space) related to the
development have not been substantially completed. The term "Development
Property" shall include real property of the type described in the immediately
preceding sentence to be (but not yet) acquired by the Borrower, any Subsidiary
or any Unconsolidated Affiliate upon completion of construction pursuant to a
contract in which the seller of such real property is required to develop or
renovate prior to, and as a condition precedent to, such acquisition.
"DOLLARS" or "$" means the lawful currency of the United States of America.
"EBITDA" means, with respect to any Person for any period and without
duplication, net earnings (loss) of such Person for such period (excluding
equity in net earnings or net loss of Unconsolidated Affiliates) including (if
deducted in determining net earnings for such period) or excluding (if added in
determining net earnings (loss) for such period), as applicable, the following
amounts (but only to the extent included in determining net earnings (loss) for
such period): (a) depreciation and amortization expense and other non-cash
charges of such Person for such period; (b) interest expense of such Person for
such period; (c) income tax expense of such Person in respect of such period;
(d) extraordinary and nonrecurring gains and losses of such Person for such
period, including without limitation, gains and losses from the sale of assets
(it being agreed that the sales of assets by Crest Net Lease, Inc. are not
extraordinary or nonrecurring), write-offs and forgiveness of debt; and (e) the
portion of EBITDA allocable to interests in Unconsolidated Affiliates, except to
the extent that cash dividends or distributions are actually received by such
Person. For purposes of this definition, net earnings (loss) shall be determined
before minority interests and distributions to holders of Preferred Stock.
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"EFFECTIVE DATE" means the later of (a) the Agreement Date and (b) the date
on which all of the conditions precedent set forth in Section 6.1. shall have
been fulfilled or waived in writing in accordance with the provisions of Section
13.7.
"ELIGIBLE ASSIGNEE" means any Person that is: (a) an existing Lender; (b) a
commercial bank, trust company, savings and loan association, savings bank,
insurance company, investment bank or pension fund organized under the laws of
the United States of America, any state thereof or the District of Columbia, and
having total assets in excess of $5,000,000,000; or (c) a commercial bank
organized under the laws of any other country which is a member of the
Organisation for Economic Co-operation 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 entity is not currently a
Lender, such entity's (or in the case of a bank which is a subsidiary, such
bank's parent's) senior unsecured long term indebtedness must be rated BBB or
higher by S&P, Baa2 or higher by Xxxxx'x or the equivalent or higher of either
such rating by another rating agency acceptable to the Agent. Notwithstanding
the foregoing, if a Default or Event of Default exists an Eligible Assignee may
also include any Person approved by the Agent.
"ELIGIBLE PROPERTY" means a Property which satisfies all of the following
requirements as reasonably confirmed by the Agent: (a) such Property is owned in
fee simple by the Borrower or a Wholly Owned Subsidiary; (b) such Property is a
completed retail property leased to third party tenants on a net lease basis;
(c) such Property is located in a State of the United States of America or in
the District of Columbia; (d) regardless of whether such Property is owned by
the Borrower or a Subsidiary, the Borrower has the right directly, or indirectly
through a Subsidiary, to take the following actions without the need to obtain
the consent of any Person: (i) to create Liens on such Property as security for
Indebtedness of the Borrower or such Subsidiary, as applicable, and (ii) to
sell, transfer or otherwise dispose of such Property; (e) neither such Property,
nor if such Property is owned by a Subsidiary, any of the Borrower's direct or
indirect ownership interest in such Subsidiary is subject to (i) any Lien other
than Permitted Liens or (ii) any Negative Pledge; (f) the Occupancy Rate of such
Property equals or exceeds 85%; (g) such Property is not a Development Property;
(h) such Property is not subject to a ground lease; (i) such Property is free of
all structural defects, title defects, environmental conditions or other adverse
matters except for defects, conditions or matters individually or collectively
which are not material to the profitable operation of such Property; and (j)
such Property had an original purchase price not greater than $20,000,000.
Notwithstanding the foregoing, (i) the Silverton Business Center shall be deemed
to be an Eligible Property even if it does not satisfy the requirements set
forth in clauses (b) (as it relates to such Property being leased on a net
leased basis), (f) and (j) above, so long as the Occupancy Rate for the
Silverton Business Center equals or exceeds 80% and the Silverton Business
Center satisfies all other remaining requirements of this definition and (ii)
any other Property approved by the Requisite Lenders pursuant to Section 4.1.(c)
shall be deemed to be an Eligible Property even if such Property does not
satisfy all of the requirements herein, so long as such Property continues to
satisfy all those remaining requirements in this definition that were satisfied
by such Property at the time of such Requisite Lender approval.
11
"ENVIRONMENTAL LAWS" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42
U.S.C.ss.7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.ss.1251 et
seq.; Solid Waste Disposal Act, 42 U.S.C.ss.6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 X.X.X.xx. 9601 et
seq.; National Environmental Policy Act, 42 U.S.C.ss.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.
"EQUITY ISSUANCE" means any issuance or sale by a Person of any Equity
Interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA GROUP" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"EXTENSION REQUEST" has the meaning given that term in Section 2.13.(a).
"FAIR MARKET VALUE" means, with respect to any asset, the price that could
be negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing buyer, neither of which is under pressure or
compulsion to complete the transaction. Except as otherwise provided herein,
Fair Market Value shall be determined by the Board of Directors of the Borrower
(or an authorized committee thereof) acting in good faith conclusively evidenced
by a board resolution thereof delivered to the Agent or, with respect to any
asset valued at up to $1,000,000, such determination may be made by the chief
financial officer of the Borrower evidenced by an officer's certificate
delivered to the Agent.
"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 Agent by
federal funds dealers selected by the Agent on such day on such transaction as
determined by the Agent.
12
"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.
"FITCH" means Fitch Rating Group.
"FIXED CHARGES" means, with respect to a Person and for a given period, the
sum of (a) the Interest Expense of such Person for such period, plus (b) the
aggregate of all scheduled principal payments on Indebtedness made by such
Person during such period (excluding balloon, bullet or similar payments of
principal due upon the stated maturity of Indebtedness), plus (c) the aggregate
of all dividends paid or accrued by such Person on any Preferred Stock during
such period, plus (d) the Reserve for Replacements for such Person's Properties.
"FUNDS FROM OPERATIONS" means net income (computed in accordance with GAAP)
before preferred distributions, excluding gains (or adding back losses) from
debt restructuring and extraordinary and non-recurring sales of property (it
being agreed that sales by Crest Net Lease, Inc. are not extraordinary or
non-recurring), plus depreciation, amortization (other than amortization of
deferred financing costs), and non-cash charges, and after adjustments for
unconsolidated partnerships and joint ventures. Adjustments for unconsolidated
partnership and joint ventures will be calculated to reflect funds from
operations on the same basis. For purposes of this Agreement, other than as set
forth in the prior sentence, Funds From Operations shall be calculated
consistent with the White Paper on Funds From Operations dated October 1999
issued by National Association of Real Estate Investments Trusts, Inc.
("NAREIT"), as supplemented by the National Policy Bulletin dated November 8,
1999 issued by NAREIT, but without giving effect to any supplements, amendments
or other modifications promulgated after the Agreement Date.
"GAAP" means United States 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 or 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.
13
"GROSS ASSET VALUE" means, at a given time, the sum (without duplication)
of (a) Capitalized EBITDA of the Borrower and its Subsidiaries on a consolidated
basis at such time, plus (b) all cash, cash equivalents (excluding tenant
deposits and other cash and cash equivalents the disposition of which is
restricted) and marketable securities of the Borrower and its Subsidiaries at
such time, plus (c) the current book value of all real property of the Borrower
and its Subsidiaries upon which construction is then in progress and all land
held for development, plus (d) the Borrower's respective Ownership Shares of the
current book values of all real property of each Unconsolidated Affiliate upon
which construction is in progress, plus (e) the purchase price paid by the
Borrower or any Subsidiary (less any amounts paid to the Borrower or such
Subsidiary as a purchase price adjustment, held in escrow, retained as a
contingency reserve, or in connection with other similar arrangements) for any
Property (other than a Development Property) acquired by the Borrower or such
Subsidiary during the immediately preceding fiscal quarter of the Borrower plus
(f) the contractual purchase price of Properties of the Borrower and its
Subsidiaries subject to purchase obligations, repurchase obligations, forward
commitments and unfunded obligations to the extent such obligations and
commitments are included in determinations of Total Liabilities. No more than 5%
of the Gross Asset Value may be attributable to the current book value of land
held for development.
"GUARANTOR" means any Person that is party to the Guaranty as a "Guarantor"
and shall in any event include Realty Income Texas Properties, L.P., Realty
Income Texas Properties, Inc. and each Wholly Owned Subsidiary of the Borrower
other than (i) Crest Net Lease, Inc. and (ii) no more than two Taxable REIT
Subsidiaries, other than Crest Net Lease, Inc.
"GUARANTY", "GUARANTEED" or to "GUARANTEE" as applied to any obligation
means and includes: (a) a guaranty (other than by endorsement of negotiable
instruments for collection 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 or indemnifying or holding harmless, in any
way, such Person against any part or all of such obligation. As the context
requires, "Guaranty" shall also mean the guaranty executed and delivered
pursuant to Section 6.1. and substantially in the form of Exhibit O.
14
"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; and (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"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; (b) all obligations of such Person (other
than trade debt incurred in the ordinary course of business), 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; (c) Capitalized Lease
Obligations of such Person; (d) all reimbursement obligations of such Person
under or in respect of any letters of credit or acceptances (whether or not the
same have been presented for payment); (e) all Off Balance Sheet Liabilities of
such Person; (f) net obligations under any Derivative Contract in an amount
equal to the Derivatives Termination Value thereof; and (g) all Indebtedness of
other Persons which (i) such Person has Guaranteed or is otherwise recourse to
such Person or (ii) is secured by a Lien on any property of such Person.
"INTELLECTUAL PROPERTY" has the meaning given that term in Section 7.1.(s).
"INTEREST EXPENSE" means, with respect to a Person and for any period, (a)
all paid, accrued or capitalized interest expense (including, without
limitation, capitalized interest expense (other than capitalized interest funded
from a construction loan interest reserve account held by another lender and not
included in the calculation of cash for balance sheet reporting purposes) and
interest expense attributable to Capitalized Lease Obligations) of such Person
and in any event shall include all letter of credit fees and all interest
expense with respect to any Indebtedness in respect of which such Person is
wholly or partially liable whether pursuant to any repayment, interest carry,
performance Guarantee or otherwise, plus (b) to the extent not already included
in the foregoing clause (a) such Person's Ownership Share of all paid, accrued
or capitalized interest expense for such period of Unconsolidated Affiliates of
such Person.
"INTEREST PERIOD" means,
(a) with respect to any LIBOR Loan that is a Revolving 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 on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. In addition to such periods, the Borrower
may request Interest Periods having durations of up to 7 Business Days for LIBOR
Loans which are Swingline Loans;
15
(a) with respect to any LIBOR Loan that is a Swingline Loan, each period
commencing on the date such LIBOR Loan is made and ending on the date up to 7
Business Days thereafter, as the Borrower may select in a Notice of Swingline
Borrowing; and
(b) with respect to any Absolute Rate Loan or Libor Margin Loan, the period
commencing on the date such Loan is made and ending on the numerically
corresponding day in the first, second, or third calendar month thereafter, as
the Borrower may select as provided in Section 2.2.(b), except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent 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 or Swingline Termination Date, as applicable, such
Interest Period shall end on the Termination Date or Swingline Termination Date,
as applicable; (b) each Interest Period that would otherwise end on a day which
is not a Business Day shall end on the next succeeding Business Day (or, if such
next succeeding Business Day falls in the next succeeding calendar month, on the
next preceding Business Day); and (c) notwithstanding the immediately preceding
clauses (a) and (b), other than with respect to Swingline Loans, no Interest
Period shall have a duration of less than one month and, if the Interest Period
for any Loan would otherwise be a shorter period, such Loan shall not be
available hereunder for such period.
"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, whether by
means of (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
commitment or option to make an Investment in any other 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.
16
"INVESTMENT GRADE RATING" means a Credit Rating of BBB- or higher by S&P,
Baa3 or higher by Xxxxx'x, or the equivalent or higher of either such rating by
another Rating Agency.
"LENDER" means each financial institution from time to time party hereto as
a "Lender" or a "Designated Lender," together with its respective successors and
permitted assigns, and, as the context requires, includes the Swingline Lender;
provided, however, that the term "Lender" shall exclude each Designated Lender
when used in reference to any Loan other than a Bid Rate Loan, the Commitments
or terms relating to any Loan other than a Bid Rate Loan and the Commitments and
shall further exclude each Designated Lender for all other purposes hereunder
except that any Designated Lender which funds a Bid Rate Loan shall, subject to
Section 13.6.(d), have the rights (including the rights given to a Lender
contained in Sections 13.2. and 13.10.) and obligations of a Lender associated
with holding such Bid Rate Loan.
"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 Assumption, or such other office of such Lender as
such Lender may notify the Agent in writing from time to time.
"LIBOR" means, for any LIBOR Loan or LIBOR Margin Loan for any Interest
Period therefor, the average rate of interest per annum at which deposits in
immediately available funds in Dollars are offered to the Lender then acting as
Agent (at approximately 9:00 a.m. San Francisco time, two Business Days prior to
the first day of such Interest Period) by first class banks in the interbank
Eurodollar market where the Eurodollar operations of the Lender then acting as
Agent are customarily conducted, for delivery on the first day of such Interest
Period, such deposits being for a period of time equal or comparable to such
Interest Period and in an amount equal to or comparable to the principal amount
of the LIBOR Loan to which such Interest Period relates. Each determination of
LIBOR by the Lender then acting as Agent shall, in absence of demonstrable
error, be conclusive and binding.
"LIBOR AUCTION" means a solicitation of Bid Rate Quotes setting forth LIBOR
Margin Loans based on LIBOR pursuant to Section 2.2.
"LIBOR LOAN" means a Revolving Loan or Swingline Loan bearing interest at a
rate based on LIBOR.
"LIBOR MARGIN LOAN" means a Bid Rate Loan the interest rate on which is
determined on the basis of LIBOR pursuant to a LIBOR Auction.
"LIEN" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, 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 or
profits therefrom; (b) any arrangement, express or implied, under which any
property of such Person is transferred, sequestered or otherwise identified for
the purpose of subjecting the same to the payment of Indebtedness or performance
of any other obligation in priority to the payment of the general, unsecured
creditors of such Person; (c) the filing of any financing statement under the
UCC or its equivalent in any jurisdiction; and (d) any agreement by such Person
to grant, give or otherwise convey any of the foregoing.
17
"LOAN" means a Revolving Loan, a Bid Rate Loan or a Swingline Loan.
"LOAN DOCUMENT" means this Agreement, each Note, 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 each of the Borrower, each other Person who guarantees
all or a portion of the Obligations and/or who pledges any collateral to secure
all or a portion of the Obligations. Schedule 1.1. sets forth the Loan Parties
in addition to the Borrower as of the Agreement Date.
"MATERIAL ADVERSE EFFECT" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower or any other 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, (d) the rights and remedies of the
Lenders and the Agent under any of the Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith.
"MATERIAL CONTRACT" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Borrower, any Subsidiary
or any other Loan Party 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.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $5,000,000.
"MAXIMUM LOAN AVAILABILITY" means, at any time, the lesser of (i) an amount
equal to the positive difference, if any, of (x) the Borrowing Base minus (y)
all Unsecured Liabilities (other than the Loans), of the Borrower and its
Subsidiaries on a consolidated basis and (ii) the aggregate amount of the
Commitments at such time.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, deed to secure debt or similar
security instrument made or to be made by a Person owning an interest in real
estate granting a Lien on such interest in real estate as security for the
payment of Indebtedness.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
18
"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 of any Lien on such asset as security for
Indebtedness of the Person owning such asset or any other Person.
"NET OPERATING INCOME" means, for any Property and for a given period, the
sum (without duplication) of (a) rents and other revenues received in the
ordinary course from such Property (excluding pre-paid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent) minus (b) all expenses paid or accrued by the Borrower and
its Subsidiaries and related to the ownership, operation or maintenance of such
Property (other than those expenses normally covered by a management fee),
including but not limited to, taxes, assessments and the like, insurance,
utilities, payroll costs, maintenance, repair and landscaping expenses,
marketing expenses, and general and administrative expenses (including an
appropriate allocation for legal, accounting, advertising, marketing and other
expenses incurred in connection with such Property, but specifically excluding
general overhead expenses of the Borrower and its Subsidiaries) minus (c) the
Reserve for Replacements for such Property for such period minus (d) the greater
of (i) the actual property management fee paid during such period with respect
to such Property and (ii) an imputed management fee in an amount equal to 2% of
the gross revenues for such Property for such period, all as determined in
accordance with GAAP.
"NET PROCEEDS" means with respect to an Equity Issuance by a Person, the
aggregate amount of all cash or the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"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 customary exceptions to recourse liability in a
form reasonably acceptable to the Agent) is contractually limited to specific
assets of such Person encumbered by a Lien securing such Indebtedness.
"NOTE" means a Revolving Note, a Bid Rate Note or a Swingline Note.
"NOTICE OF BORROWING" means a notice substantially in the form of Exhibit B
to be delivered to the Agent pursuant to Section 2.1.(b) evidencing the
Borrower's request for a borrowing of Revolving Loans.
"NOTICE OF CONTINUATION" means a notice substantially in the form of
Exhibit C to be delivered to the Agent pursuant to Section 2.9. evidencing the
Borrower's request for the Continuation of a LIBOR Loan.
19
"NOTICE OF CONVERSION" means a notice substantially in the form of Exhibit
D to be delivered to the Agent pursuant to Section 2.10. evidencing the
Borrower's request for the Conversion of a Loan from one Type to another Type.
"NOTICE OF SWINGLINE BORROWING" means a notice substantially in the form of
Exhibit F be delivered to the Swingline Lender pursuant to Section 2.3.(b)
evidencing the Borrower's request for a Swingline Loan.
"OBLIGATIONS" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans and (b)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower or any of 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.
"OCCUPANCY RATE" means, with respect to a Property at any time, the ratio,
expressed as a percentage, of (a) the net rentable square footage of such
Property which is actually occupied and upon which rent is paid pursuant to
binding leases as to which no default exists to (b) the aggregate net rentable
square footage of such Property.
"OFF BALANCE SHEET LIABILITIES" means, with respect to any Person, (a) any
repurchase obligation or liability, contingent or otherwise, of such Person with
respect to any accounts or notes receivable sold, transferred or otherwise
disposed of by such Person, (b) any repurchase obligation or liability,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any synthetic lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing if the
transaction giving rise to such obligation (i) is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease or (ii)
does not (and is not required pursuant to GAAP to) appear as a liability on the
balance sheet of such Person.
"OWNERSHIP SHARE" means, with respect to any Subsidiary of a Person (other
than a Wholly Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the
greater of (a) such Person's relative nominal direct and indirect ownership
interest (expressed as a percentage) in such Subsidiary or Unconsolidated
Affiliate or (b) subject to compliance with Section 9.4.(r), such Person's
relative direct and indirect economic interest (calculated as a percentage) in
such Subsidiary or Unconsolidated Affiliate determined in accordance with the
applicable provisions of the declaration of trust, articles or certificate of
incorporation, articles of organization, partnership agreement, joint venture
agreement or other applicable organizational document of such Subsidiary or
Unconsolidated Affiliate.
"PARTICIPANT" has the meaning given that term in Section 13.6.(b).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
20
"PERMITTED LIENS" means, with respect to any Unencumbered Pool Property
owned by a 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 8.6.; (b) Liens consisting of deposits or pledges made, in the
ordinary course of business, in connection with, or to secure payment of,
obligations under workmen's 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 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;
(f) any option, contract or other agreement to sell an asset provided such sale
is otherwise permitted by this Agreement; and (g) any attachment or judgment
Lien arising from a judgment or order against such Person by any court or other
tribunal so long as (i) such judgment or order is paid, stayed or dismissed
through appropriate appellate proceedings prior to the earlier of (A) 60 days
from the date of entry or (B) the date on which the Borrower is required to
deliver the next Unencumbered Pool Certificate pursuant hereto and (ii) the
amount thereof is equal to or less than $250,000.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"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 four percent (4.0%) plus the Base Rate as in effect from time to
time.
"PREFERRED STOCK" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person that are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"PRINCIPAL OFFICE" means 000 X. Xxxx Xxxxx, Xxxxx 000, Xx Xxxxxxx,
Xxxxxxxxxx 00000.
21
"PRO RATA SHARE" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
at the time of determination the Commitments have terminated or been reduced to
zero, the "Pro Rata Share" of each Lender shall be the Pro Rata Share of such
Lender in effect immediately prior to such termination or reduction.
"PROPERTY" means, with respect to any Person, any parcel of real property,
together with any building, facility, structure, equipment or other asset
located on such parcel of real property, in each case owned by such Person.
"PROPERTY MANAGEMENT AGREEMENTS" means, collectively, all agreements
entered into by the Borrower or any other Loan Party pursuant to which the
Borrower or such other Loan Party engages a Person to advise it with respect to
the management of a given Property.
"RATING AGENCY" means S&P, Moody's or Fitch.
"RECURRING CAPITAL EXPENDITURES" means capital expenditures made in respect
of a Property for maintenance of such Property and replacement of items due to
ordinary wear and tear including, but not limited to, expenditures made for
maintenance or replacement of carpeting, roofing materials, mechanical systems,
electrical systems and other structural systems and expenditures relating to
tenant improvements and leasing commissions. "Recurring Capital Expenditures"
shall not include any of the following: (a) improvements to the appearance of
such Property or any other major upgrade or renovation of such Property not
necessary for proper maintenance or marketability of such Property; (b) capital
expenditures for seismic upgrades; or (c) capital expenditures for deferred
maintenance for such Property existing at the time such Property was acquired by
the Borrower or a Subsidiary.
"REGULATORY CHANGE" means, with respect to any Lender, any change effective
after the Agreement 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" means a Person qualifying for treatment as a "real estate investment
trust" under the Internal Revenue Code.
"REQUISITE LENDERS" means, as of any date, Lenders having at least 66-2/3%
of the aggregate amount of the Commitments, or, if the Commitments have been
terminated or reduced to zero, Lenders holding at least 66-2/3% of the principal
amount of the Loans provided, however, that the Requisite Lenders must include
at least two Lenders.
22
"RESERVE FOR REPLACEMENTS" means, for any period and with respect to any
Property, an amount equal to the greater of (a)(i) the aggregate square footage
of all completed space of such Property times (ii) $.10 times (iii) the number
of days in such period divided by (iv) 365 and (b)(i) the amount of Recurring
Capital Expenditures actually made in respect of such Property during such
period times (ii) the number of days in such period divided by (iii) 365. If the
term Reserve for Replacements is used without reference to any specific
Property, then it shall be determined on an aggregate basis with respect to all
Properties and the applicable Ownership Shares of all real property of all
Unconsolidated Affiliates.
"RESTRICTED PAYMENT" means: (a) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock or other equity
interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class; (b) any redemption, conversion, exchange,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock or other equity
interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding; and (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of the Borrower or any of its Subsidiaries now or hereafter
outstanding.
"REVOLVING LOAN" means a loan made by a Lender to the Borrower pursuant to
Section 2.1.(a).
"REVOLVING NOTE" means a promissory note of the Borrower substantially in
the form of Exhibit E, payable to the order of a Lender in a principal amount
equal to the amount of such Lender's Commitment as originally in effect and
otherwise duly completed.
"SECURED INDEBTEDNESS" means, with respect to any Person, any Indebtedness
of such Person that is secured in any manner by any Lien on any real property
and shall include such Person's Ownership Share of the Secured Indebtedness of
any of such Person's Unconsolidated Affiliates. Secured Indebtedness shall not
include Indebtedness secured by partnership interests.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, together with all rules and regulations issued thereunder.
"SIC CODE" means the Standard Industrial Classification Code, published by
the United States Office of Management and Budget.
"SILVERTON BUSINESS CENTER" means that certain 467,000 square foot
multi-tenant industrial property located near Silverton Avenue, San Diego,
California.
"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 in excess of the fair valuation of its
total liabilities (including all contingent liabilities); (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.
23
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SUBSIDIARY" means, for any Person, any corporation, partnership, limited
liability company or other entity of which at least a majority of the securities
or other ownership interests having by the terms thereof ordinary voting power
to elect a majority of the board of directors or other persons 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.
"SUBSTANTIAL AMOUNT" means, at the time of determination thereof, an amount
in excess of 10% of Gross Asset Value at such time.
"SWINGLINE COMMITMENT" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.3. in an amount up to, but not exceeding
the amount set forth in Section 2.3., as such amount may be reduced from time to
time in accordance with the terms hereof.
"SWINGLINE LENDER" means Xxxxx Fargo Bank, National Association, together
with its respective successors and assigns.
"SWINGLINE LOAN" means a loan made by the Swingline Lender to the Borrower
pursuant to Section 2.3.
"SWINGLINE NOTE" means a promissory note of the Borrower substantially in
the form of Exhibit G, payable to the order of the Swingline Lender in a
principal amount equal to the amount of the Swingline Commitment as originally
in effect and otherwise duly completed.
"SWINGLINE TERMINATION DATE" means the date which is 10 Business Days prior
to the Termination Date.
"TANGIBLE NET WORTH" means, for any Person and as of a given date, such
Person's total consolidated stockholders' equity plus, in the case of the
Borrower, increases in accumulated depreciation and amortization accrued after
the Agreement Date, minus (to the extent contained in determining stockholders'
equity of such Person): (a) the amount of any write-up in the book value of any
assets reflected in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (b) the aggregate of
all amounts appearing on the assets side of any such balance sheet for
franchises, licenses, permits, patents, patent applications, copyrights,
trademarks, service marks, trade names, goodwill, treasury stock, experimental
or organizational expenses and other like assets which would be classified as
intangible assets under GAAP, all determined on a consolidated basis.
"TAXABLE REIT SUBSIDIARY" means any corporation (other than a REIT) in
which the Borrower directly or indirectly owns stock and the Borrower and such
corporation jointly elect on IRS Form 8875 (or with respect to which IRS Form
8875 is otherwise filed with the Internal Revenue Service) to have the
corporation treated as a taxable REIT subsidiary of Borrower under Section
856(l) of the Internal Revenue Code.
24
"TAXES" has the meaning given that term in Section 3.11.
"TERMINATION DATE" means October 28, 2005, or such later date to which such
date may be extended in accordance with Section 2.13.
"TOTAL ANNUALIZED BASE RENTS" means the aggregate Annualized Base Rents of
all tenants of all Properties owned by the Borrower, a Loan Party and all other
Subsidiaries.
"TOTAL BUDGETED COST" means, with respect to a Development Property, and at
any time, the aggregate amount of all costs budgeted to be paid, incurred or
otherwise expended or accrued by the Borrower, a Subsidiary or an Unconsolidated
Affiliate with respect to such Property to achieve an Occupancy Rate of 100%
(excluding tenant improvements), including without limitation, all amounts
budgeted with respect to all of the following: (a) acquisition of land and any
related improvements; (b) a reasonable and appropriate reserve for construction
interest; (c) a reasonable and appropriate operating deficit reserve; (d)
leasing commissions and (e) other hard and soft costs associated with the
development or redevelopment of such Property.
"TOTAL LIABILITIES" means, as to any Person as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on a consolidated balance sheet of such Person as of such date, and in
any event shall include (without duplication): (a) all Indebtedness of such
Person (whether or not Nonrecourse Indebtedness and whether or not secured by a
Lien), including without limitation, Capitalized Lease Obligations and
reimbursement obligations with respect to any letter of credit; (b) all accounts
payable and accrued expenses of such Person; (c) all purchase and repurchase
obligations and forward commitments of such Person to the extent such
obligations or commitments are evidenced by a binding purchase agreement
(forward commitments shall include without limitation (i) forward equity
commitments and (ii) commitments to purchase any real property under
development, redevelopment or renovation); (d) all unfunded obligations of such
Person; (e) all lease obligations of such Person (including ground leases) to
the extent required under GAAP to be classified as a liability on a balance
sheet of such Person; (f) all contingent obligations of such Person including,
without limitation, all Guarantees of Indebtedness by such Person; (g) all
liabilities of any Unconsolidated Affiliate of such Person, which liabilities
such Person has Guaranteed or is otherwise obligated on a recourse basis; and
(h) such Person's Ownership Share of the Indebtedness of any Unconsolidated
Affiliate of such Person, including Nonrecourse Indebtedness of such Person. For
purposes of clauses (c) and (d) of this definition, the amount of Total
Liabilities of a Person at any given time in respect of (x) a contract to
purchase or otherwise acquire unimproved or fully developed real property shall
be equal to (i) the total purchase price payable by such Person under such
contract if, at such time, the seller of such real property would be entitled to
specifically enforce such contract against such Person, otherwise, (ii) the
aggregate amount of due diligence deposits, xxxxxxx money payments and other
similar payments made by such Person under such contract which, at such time,
would be subject to forfeiture upon termination of the contract and (y) a
contract relating to the acquisition of real property which the seller is
required to develop or renovate prior to, and as a condition precedent to, such
acquisition, shall equal the maximum amount reasonably estimated to be payable
by such Person under such contract assuming performance by the seller of its
obligations under such contract, which amount shall include, without limitation,
any amounts payable after consummation of such acquisition which may be based on
certain performance levels or other related criteria. For purposes of this
definition, if the assets of a Subsidiary of a Person consist solely of Equity
Interests in one Unconsolidated Affiliate of such Person and such Person is not
otherwise obligated in respect of the Indebtedness of such Unconsolidated
Affiliate, then only such Person's Ownership Share of the Indebtedness of such
Unconsolidated Affiliate shall be included as Total Liabilities of such Person.
25
"TYPE" with respect to any Revolving Loan, refers to whether such Loan is a
LIBOR Loan or a Base Rate Loan, or in the case of a Bid Rate Loan only, an
Absolute Rate Loan or a LIBOR Margin Loan.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"UNCONSOLIDATED AFFILIATE" means, with respect to any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person.
"UNENCUMBERED NOI" means, for any period, the aggregate Net Operating
Income for such period of Unencumbered Pool Properties.
"UNENCUMBERED POOL CERTIFICATE" means a report, certified by the chief
financial officer of the Borrower in the manner provided for in Exhibit Q
setting forth the calculations required to establish the Borrowing Base as of a
specified date, all in form and detail satisfactory to the Agent.
"UNENCUMBERED POOL PROPERTIES" means those Eligible Properties that,
pursuant to the terms of this Agreement, are to be included when calculating the
Maximum Loan Availability.
"UNENCUMBERED POOL VALUE" means, at any time, the following amount as
determined for an Unencumbered Pool Property: (a) the Net Operating Income of
such Unencumbered Pool Property for the fiscal quarter most recently ended times
(b) 4 and divided by (c) 10.0%. If an Unencumbered Pool Property was acquired by
the Borrower or a Subsidiary during the immediately preceding fiscal quarter,
then such Unencumbered Pool Property shall have an Unencumbered Pool Value equal
to the purchase price paid by the Borrower or any Subsidiary (less any amounts
paid to the Borrower or such Subsidiary as a purchase price adjustment, held in
escrow, retained as a contingency reserve, or in connection with other similar
arrangements). Notwithstanding the foregoing, the Unencumbered Pool Value of the
Silverton Business Center shall not exceed $45,000,000.
26
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNSECURED INDEBTEDNESS" means, with respect to a Person, all Indebtedness
of such Person that is not Secured Indebtedness.
"UNSECURED LIABILITIES" means, as to any Person as of a given date, the sum
of the following (without duplication): (a) all liabilities which would, in
conformity with GAAP, be properly classified as a liability on the balance sheet
of such Person as at such date plus (b) all Unsecured Indebtedness of such
Person.
"XXXXX FARGO" means Xxxxx Fargo Bank, National Association, and its
successors and permitted 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 SAN FRANCISCO TIME.
Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with GAAP in effect as of the
Agreement Date. 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
from time to time to the extent permitted 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 a
reference to 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 San Francisco, California
time.
27
ARTICLE II. CREDIT FACILITY
SECTION 2.1 REVOLVING LOANS.
(a) MAKING OF REVOLVING LOANS. Subject to the terms and conditions set
forth in this Agreement, including without limitation, Section 2.14. below, each
Lender severally and not jointly agrees to make Revolving Loans to the Borrower
during the period from and including the Effective Date to but excluding the
Termination Date, in an aggregate principal amount at any one time outstanding
up to, but not exceeding, such Lender's Pro Rata Share of the Maximum Loan
Availability (but in no event in excess of such Lender's Commitment). Within the
foregoing limits and subject to the terms and conditions of this Agreement, the
Borrower may borrow, repay and reborrow Revolving Loans.
(b) REQUESTS FOR REVOLVING LOANS. Not later than 9:00 a.m. San Francisco
time at least two (2) Business Days prior to a borrowing of Base Rate Loans and
not later than 9:00 a.m. San Francisco time at least three (3) Business Days
prior to a borrowing of LIBOR Loans, the Borrower shall deliver to the Agent a
Notice of Borrowing. Each Notice of Borrowing shall specify the aggregate
principal amount of the Revolving Loans to be borrowed, the date such Revolving
Loans are to be borrowed (which must be a Business Day), the use of the proceeds
of such Revolving Loans, the Type of the requested Revolving Loans, and if such
Revolving Loans are to be LIBOR Loans, the initial Interest Period for such
Revolving Loans. Each Notice of Borrowing shall be irrevocable once given and
binding on the Borrower. Prior to delivering a Notice of Borrowing, the Borrower
may (without specifying whether a Revolving Loan will be a Base Rate Loan or a
LIBOR Loan) request that the Agent provide the Borrower with the most recent
LIBOR rate available to the Agent. The Agent shall provide such quoted rate to
the Borrower and to the Lenders on the date of such request or as soon as
possible thereafter.
(c) FUNDING OF REVOLVING LOANS. Promptly after receipt of a Notice of
Borrowing under the immediately preceding subsection (b), the Agent shall notify
each Lender by telex or telecopy, or other similar form of transmission of the
proposed borrowing. Each Lender shall deposit an amount equal to the Revolving
Loan to be made by such Lender to the Borrower with the Agent at the Principal
Office, in immediately available funds not later than 9:00 a.m. San Francisco
time on the date of such proposed Revolving Loans. Subject to fulfillment of all
applicable conditions set forth herein, the Agent shall make available to the
Borrower at the Principal Office, not later than 12:00 noon San Francisco time
on the date of the requested borrowing of Revolving Loans, the proceeds of such
amounts received by the Agent. 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.
(d) ASSUMPTIONS REGARDING FUNDING BY LENDERS. With respect to Revolving
Loans to be made after the Effective Date, unless the Agent shall have been
notified by any Lender that such Lender will not make available to the Agent a
Revolving Loan to be made by such Lender, the Agent may assume that such Lender
will make the proceeds of such Revolving Loan available to the Agent in
accordance with this Section and the Agent may (but shall not be obligated to),
in reliance upon such assumption, make available to the Borrower the amount of
such Revolving Loan to be provided by such Lender.
28
SECTION 2.2. BID RATE LOANS.
(a) BID RATE LOANS. In addition to borrowings of Revolving Loans, at any
time during the period from the Effective Date to but excluding the Termination
Date, and so long as the Borrower continues to maintain an Investment Grade
Rating from any two of S&P, Xxxxx'x and Fitch, the Borrower may, as set forth in
this Section, request the Lenders to make offers to make Bid Rate Loans to the
Borrower in Dollars. The Lenders may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section.
(b) REQUESTS FOR BID RATE LOANS. When the Borrower wishes to request from
the Lenders offers to make Bid Rate Loans, it shall give the Agent notice (a
"Bid Rate Quote Request") so as to be received no later than 9:00 a.m. San
Francisco time on (x) the Business Day immediately preceding the date of
borrowing proposed therein, in the case of an Absolute Rate Auction and (y) the
date four Business Days prior to the proposed date of borrowing, in the case of
a LIBOR Auction. The Agent shall deliver to each Lender a copy of each Bid Rate
Quote Request promptly upon receipt thereof by the Agent. The Borrower may
request offers to make Bid Rate Loans for up to 3 different Interest Periods in
each Bid Rate Quote Request (for which purpose Interest Periods in different
lettered clauses of the definition of the term "Interest Period" shall be deemed
to be different Interest Periods even if they are coterminous); provided that
the request for each separate Interest Period shall be deemed to be a separate
Bid Rate Quote Request for a separate borrowing (a "Bid Rate Borrowing"). Each
Bid Rate Quote Request shall be substantially in the form of Exhibit H and shall
specify as to each Bid Rate Borrowing all of the following:
(i) the proposed date of such borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Bid Rate Borrowing which shall be in
a minimum amount of $10,000,000 and integral multiples of $1,000,000
in excess thereof which shall not cause any of the limits specified in
Section 2.14. to be violated;
(iii) whether the Bid Rate Quote Request is for LIBOR Margin Loans or
Absolute Rate Loans; and
(iv) the duration of the Interest Period applicable thereto, which
shall not extend beyond the Termination Date.
The Borrower shall not deliver any Bid Rate Quote Request within five Business
Days of the giving of any other Bid Rate Quote Request and the Borrower shall
not deliver more than two Bid Rate Quote Requests in any calendar month.
29
(c) BID RATE QUOTES.
(i) Each Lender may submit one or more Bid Rate Quotes, each
containing an offer to make a Bid Rate Loan in response to any Bid
Rate Quote Request; provided that, if the Borrower's request under
Section 2.2.(b) specified more than one Interest Period, such Lender
may make a single submission containing only one Bid Rate Quote for
each such Interest Period. Each Bid Rate Quote must be submitted to
the Agent not later than 7:30 a.m. San Francisco time (x) on the
proposed date of borrowing, in the case of an Absolute Rate Auction or
(y) on the date three Business Days prior to the proposed date of
borrowing, in the case of a LIBOR Auction, and in either case the
Agent shall disregard any Bid Rate Quote received after such time;
provided that the Lender then acting as the Agent may submit a Bid
Rate Quote only if it notifies the Borrower of the terms of the offer
contained therein not later than 30 minutes prior to the latest time
by which the Lenders must submit applicable Bid Rate Quotes. Subject
to Articles VI. and XI., any Bid Rate Quote so made shall be
irrevocable. Such Bid Rate Loans may be funded by a Lender's
Designated Lender (if any) as provided in Section 13.6.(d), however
such Lender shall not be required to specify in its Bid Rate Quote
whether such Bid Rate Loan will be funded by such Designated Lender.
(ii) Each Bid Rate Quote shall be substantially in the form of Exhibit
I and shall specify:
(A) the proposed date of borrowing and the Interest Period
therefor;
(B) the principal amount of the Bid Rate Loan for which each such
offer is being made; provided that the aggregate principal amount
of all Bid Rate Loans for which a Lender submits Bid Rate Quotes
(x) may be greater or less than the Commitment of such Lender but
(y) shall not exceed the principal amount of the Bid Rate
Borrowing for a particular Interest Period for which offers were
requested;
(C) in the case of an Absolute Rate Auction, the rate of interest
per annum (rounded upwards, if necessary, to the nearest
1/1,000th of 1%) offered for each such Absolute Rate Loan (the
"Absolute Rate");
(D) in the case of a LIBOR Auction, the margin above or below
applicable LIBOR (the "LIBOR Margin") offered for each such LIBOR
Margin Loan, expressed as a percentage to be added to (or
subtracted from) the applicable LIBOR;
(E) the identity of the quoting Lender; and
(F) any Bid Rate Quote shall be in a minimum amount of $5,000,000
and integral multiples of $100,000 in excess thereof.
No Bid Rate Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Bid Rate Quote Request and, in particular, no Bid
Rate Quote may be conditioned upon acceptance by the applicable
Borrower of all (or some specified minimum) of the principal amount of
the Bid Rate Loan for which such Bid Rate Quote is being made.
30
(d) NOTIFICATION BY AGENT. The Agent shall, as promptly as practicable
after the Bid Rate Quotes are submitted (but in any event not later than 8:30
a.m. San Francisco time (x) on the proposed date of borrowing, in the case of an
Absolute Rate Auction or (y) on the date three Business Days prior to the
proposed date of borrowing, in the case of a LIBOR Auction), notify the Borrower
of the terms (i) of any Bid Rate Quote submitted by a Lender that is in
accordance with Section 2.2.(c). and (ii) of any Bid Rate Quote that amends,
modifies or is otherwise inconsistent with a previous Bid Rate Quote submitted
by such Lender with respect to the same Bid Rate Quote Request. Any such
subsequent Bid Rate Quote shall be disregarded by the Agent unless such
subsequent Bid Rate Quote is submitted solely to correct a manifest error in
such former Bid Rate Quote. The Agent's notice to the Borrower shall specify (A)
the aggregate principal amount of the Bid Rate Borrowing for which offers have
been received and (B) the principal amounts and Absolute Rates or LIBOR Margins,
as applicable, so offered by each Lender.
(e) ACCEPTANCE BY BORROWER.
(i) Not later than 9:30 a.m. San Francisco time (x) on the proposed
date of borrowing, in the case of an Absolute Rate Auction or (y) on
the date three Business Days prior to the proposed date of borrowing,
in the case of a LIBOR Auction, the Borrower shall notify the Agent of
its acceptance or nonacceptance of the offers so notified to it
pursuant to Section 2.2.(d). which notice shall be in the form of
Exhibit J. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that are
accepted. The failure of the Borrower to give such notice by such time
shall constitute nonacceptance. The Borrower may accept any Bid Rate
Quote in whole or in part; provided that:
(A) the aggregate principal amount of each Bid Rate Borrowing may
not exceed the applicable amount set forth in the related Bid
Rate Quote Request;
(B) the aggregate principal amount of each Bid Rate Borrowing
shall comply with the provisions of Section 2.2.(b)(ii) but shall
not cause the limits specified in Section 2.14. to be violated;
(C) acceptance of offers may be made only in ascending order of
Absolute Rates or LIBOR Margins, as applicable, in each case
beginning with the lowest rate so offered;
(D) any acceptance in part by the Borrower shall be in a minimum
amount of $5,000,000 and integral multiples of $100,000 in excess
thereof; and
(E) the Borrower may not accept any offer that fails to comply
with Section 2.2.(c) or otherwise fails to comply with the
requirements of this Agreement.
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(ii) If offers are made by two or more Lenders with the same Absolute
Rates or LIBOR Margins, as applicable, for a greater aggregate
principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of Bid
Rate Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders in proportion to the
aggregate principal amount of such offers. Determinations by the Agent
of the amounts of Bid Rate Loans shall be conclusive in the absence of
manifest error.
(f) OBLIGATION TO MAKE BID RATE LOANS. The Agent shall promptly (and in any
event not later than (x) 10:00 a.m. San Francisco time on the proposed date of
borrowing of Absolute Rate Loans and (y) on the date three Business Days prior
to the proposed date of borrowing of LIBOR Margin Loans) notify each Lender that
submitted a Bid Rate Quote as to whose Bid Rate Quote has been accepted and the
amount and rate thereof. A Lender who is notified that it has been selected to
make a Bid Rate Loan may designate its Designated Lender (if any) to fund such
Bid Rate Loan on its behalf, as described in Section 13.6.(d). Any Designated
Lender which funds a Bid Rate Loan shall on and after the time of such funding
become the obligee under such Bid Rate Loan and be entitled to receive payment
thereof when due. No Lender shall be relieved of its obligation to fund a Bid
Rate Loan, and no Designated Lender shall assume such obligation, prior to the
time the applicable Bid Rate Loan is funded. Any Lender whose offer to make any
Bid Rate Loan has been accepted shall, not later than 11:00 a.m. San Francisco
time on the date specified for the making of such Loan, make the amount of such
Loan available to the Agent at its Principal Office in immediately available
funds, for the account of the Borrower. The amount so received by the Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Borrower not later than 12:00 noon on such date by depositing the same,
in immediately available funds, in an account of the Borrower designated by the
Borrower.
(g) NO EFFECT ON COMMITMENT. Except for the purpose and to the extent
expressly stated in Section 2.12., the amount of ----------------------- any Bid
Rate Loan made by any Lender shall not constitute a utilization of such Lender's
Commitment.
SECTION 2.3. SWINGLINE LOANS.
(a) SWINGLINE LOANS. Subject to the terms and conditions hereof, including
without limitation Section 2.14., the Swingline Lender agrees to make Swingline
Loans to the Borrower, during the period from the Effective Date to but
excluding the Swingline Termination Date, in an aggregate principal amount at
any one time outstanding up to, but not exceeding, $25,000,000, as such amount
may be reduced from time to time in accordance with the terms hereof. If at any
time the aggregate principal amount of the Swingline Loans outstanding at such
time exceeds the Swingline Commitment in effect at such time, the Borrower shall
immediately pay the Agent for the account of the Swingline Lender the amount of
such excess. Subject to the terms and conditions of this Agreement, the Borrower
may borrow, repay and reborrow Swingline Loans hereunder.
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(b) PROCEDURE FOR BORROWING SWINGLINE LOANS. The Borrower shall give the
Agent and the Swingline Lender notice pursuant to a Notice of Swingline
Borrowing delivered no later than 9:00 a.m. San Francisco time on the proposed
date of such borrowing. Any telephonic notice shall include all information to
be specified in a written Notice of Swingline Borrowing. Not later than 11:00
a.m. San Francisco time on the date of the requested Swingline Loan and subject
to satisfaction of the applicable conditions set forth in Article VI. for such
borrowing, the Swingline Lender will make the proceeds of such Swingline Loan
available to the Borrower in Dollars, in immediately available funds, at the
account specified by the Borrower in the Notice of Swingline Borrowing.
(c) INTEREST. Swingline Loans shall bear interest at a per annum rate equal
to "one month LIBOR" (as such rate is referenced on the date such Swingline Loan
is made) with an Interest Period of up to 7 Business Days (as designated by the
Borrower in the Notice of Swingline Borrowing) plus the Applicable Margin or at
such other rate or rates as the Borrower and the Swingline Lender may agree from
time to time in writing. All accrued and unpaid interest on Swingline Loans
shall be payable on the dates and in the manner provided in Section 2.4. (except
as the Swingline Lender and the Borrower may otherwise agree in writing in
connection with any particular Swingline Loan).
(d) SWINGLINE LOAN AMOUNTS, ETC. Each Swingline Loan shall be in the
minimum amount of $500,000 and integral multiples of $100,000 in excess thereof,
or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. Any voluntary prepayment of a Swingline Loan must be in integral
multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the Swingline Lender
and the Borrower may agree) and in connection with any such prepayment, the
Borrower must give the Swingline Lender prior written notice thereof no later
than 10:00 a.m. San Francisco time on the day prior to the date of such
prepayment.
(e) REPAYMENT AND PARTICIPATIONS OF SWINGLINE LOANS. The Borrower agrees to
repay each Swingline Loan within 7 Business Days after the date such Swingline
Loan was made. Notwithstanding the foregoing, the Borrower shall repay the
entire outstanding principal amount of, and all accrued but unpaid interest on,
the Swingline Loans on the Swingline Termination Date (or such earlier date as
the Swingline Lender and the Borrower may agree in writing). The Borrower, or
the Swingline Lender on behalf of the Borrower (which hereby irrevocably directs
the Swingline Lender to act on its behalf), may request a borrowing of Base Rate
Loans from the Lenders in an amount equal to the principal balance of such
Swingline Loan. The Swingline Lender shall give notice to the Agent and the
Borrower of any such borrowing of Base Rate Loans not later than 9:00 a.m. San
Francisco time at least one Business Day prior to the proposed date of such
borrowing. The Borrower shall give notice to the Agent of any such borrowing of
Base Rate Loans not later than 9:00 a.m. San Francisco time at least two
Business Days prior to the proposed date of such borrowing. The amount
limitations contained in Section 3.5. shall not apply to any borrowing of Base
Rate Loans made pursuant to this subsection. Each Lender will make available to
the Agent at the Principal Office for the account of the Swingline Lender, in
immediately available funds, the proceeds of the Base Rate Loan to be made by
such Lender. The Agent shall pay the proceeds of such Base Rate Loans to the
Swingline Lender, which shall apply such proceeds to repay such Swingline Loan.
If the Lenders are prohibited from making Loans required to be made under this
subsection for any reason whatsoever, including without limitation, the
occurrence of any of the Defaults or Events of Default described in Sections
11.1.(e). and (f)., each Lender shall purchase from the Swingline Lender,
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without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Pro Rata Share of such Swingline Loan, by directly
purchasing a participation in such Swingline Loan in such amount and paying the
proceeds thereof to the Agent for the account of the Swingline Lender in Dollars
and in immediately available funds. A Lender's obligation to purchase such a
participation in a Swingline Loan shall be absolute and unconditional and shall
not be affected by any circumstance whatsoever, including without limitation,
(i) any claim of setoff, counterclaim, recoupment, defense or other right which
such Lender or any other Person may have or claim against the Agent, the
Swingline Lender or any other Person whatsoever, (ii) the occurrence or
continuation of a Default or Event of Default (including without limitation, any
of the Defaults or Events of Default described in Sections 11.1.(e). and (f)),
or the termination of any Lender's Commitment, (iii) the existence (or alleged
existence) of an event or condition which has had or could have a Material
Adverse Effect, (iv) any breach of any Loan Document by the Agent, any Lender or
the Borrower or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. If such amount is not in fact
made available to the Swingline Lender by any Lender, the Swingline Lender shall
be entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof, at the
Federal Funds Rate. If such Lender does not pay such amount forthwith upon the
Swingline Lender's demand therefor, and until such time as such Lender makes the
required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of such unpaid participation
obligation for all purposes of the Loan Documents (other than those provisions
requiring the other Lenders to purchase a participation therein). Further, such
Lender shall be deemed to have assigned any and all payments made of principal
and interest on its Loans, and any other amounts due it hereunder, to the
Swingline Lender to fund Swingline Loans in the amount of the participation in
Swingline Loans that such Lender failed to purchase pursuant to this Section
until such amount has been purchased (as a result of such assignment or
otherwise).
SECTION 2.4. 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:
(i) during such periods as such Loan is a Base Rate Loan, at the Base
Rate (as in effect from time to time);
(ii) during such periods as such Loan is a LIBOR Loan, at LIBOR for
such Loan for the Interest Period therefor, plus the Applicable Margin
for LIBOR Loans;
(iii) during such periods as such Loan is an Absolute Rate Loan, at
the Absolute Rate for such Loan for the Interest Period therefor
quoted by the Lender making such Loan in accordance with Section 2.2.;
and
(iv) during such periods as such Loan is a LIBOR Margin Loan, at LIBOR
for such Loan for the Interest Period therefor plus the LIBOR Margin
quoted by the Lender making such Loan in accordance with Section 2.2.
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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. All accrued and unpaid interest on the outstanding
principal amount of each Loan shall be payable (i)(A) in the case of a Base Rate
Loan, quarterly in arrears on the first day of each April, July, October and
January, commencing with January 2, 2003, (B) in the case of a LIBOR Loan on the
last day of each Interest Period therefor and, if such Interest Period is longer
than three months, at three-month intervals following the first day of such
Interest Period, and (C) in the case of a Bid Rate Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, and (ii) for all Loans, (A) on the Termination Date and (B) on any date
on which the principal balance of such Loan is due and payable in full. Interest
payable at the Post-Default Rate shall be payable from time to time on demand.
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 2.5. NUMBER OF INTEREST PERIODS.
There may be no more than 10 different Interest Periods with respect to the
LIBOR Loans and Bid Rate Loans on a collective basis outstanding at the same
time.
SECTION 2.6. REPAYMENT OF LOANS.
The Borrower shall repay the entire outstanding principal amount of, and
all accrued but unpaid interest on, the Revolving Loans on the Termination Date.
The Borrower shall repay the entire outstanding principal amount of each Bid
Rate Loan on the last day of the Interest Period of such Bid Rate Loan.
SECTION 2.7. PREPAYMENTS.
(a) OPTIONAL. Subject to Section 5.4., the Borrower may prepay any Loan at
any time without premium or penalty. The Borrower shall give the Agent at least
3 Business Days prior written notice of the prepayment of any Loan. Bid Rate
Loans may not be prepaid at the option of the Borrower.
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(b) MANDATORY.
(i) COMMITMENT OVERADVANCE. If at any time the aggregate
principal amount of all outstanding Revolving Loans exceeds the
aggregate amount of the Commitments, the Borrower shall
immediately upon demand pay to the Agent for the account of the
Lenders, the amount of such excess.
(ii) BORROWING BASE OVERADVANCE. If at any time the aggregate
principal amount of all outstanding Revolving Loans exceeds the
Maximum Loan Availability, the Borrower shall within 5 days of
the Borrower obtaining knowledge of the occurrence of any such
excess, deliver to the Agent for prompt distribution to each
Lender a written plan acceptable to all of the Lenders to
eliminate such excess. If such excess is not eliminated within 15
Business Days of the Borrower obtaining knowledge of the
occurrence thereof, then the entire outstanding principal balance
of all Loans, together with all accrued interest thereon, shall
be immediately due and payable in full.
(iii) BID RATE FACILITY OVERADVANCE. If at any time the aggregate
principal amount of all outstanding Bid Rate Loans exceeds
one-half of the aggregate amount of all Commitments at such time,
then the Borrower shall immediately pay to the Agent for the
accounts of the applicable Lenders the amount of such excess.
Such payment shall be applied as provided in Section 3.2.(e).
All payments under this subsection (b) shall be applied to pay all amounts of
excess principal outstanding on the applicable Loans in accordance with Section
3.2.
SECTION 2.8. LATE CHARGES.
If any payment required under this Agreement is not paid within 10 days
after the Borrower has received notice from the Agent that such payment has not
been made, the Borrower shall pay a late charge for late payment to compensate
the Lenders for the loss of use of funds and for the expenses of handling the
delinquent payment, in an amount equal to two percent (2%) of such delinquent
payment. Such late charge shall be paid in any event not later than the due date
of the next subsequent installment of principal and/or interest. In the event
the maturity of the Obligations hereunder occurs or is accelerated pursuant to
Section 2.7.(b)(ii) or Section 11.2., this Section shall apply only to payments
overdue prior to the time of such acceleration. This Section shall not be deemed
to be a waiver of the Lenders' right to accelerate payment of any of the
Obligations as permitted under the terms of this Agreement.
SECTION 2.9. CONTINUATION.
So long as no Default or Event of Default exists, 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 day following the last day of the immediately preceding Interest
Period. Each selection of a new Interest Period shall be made by the Borrower
giving to the Agent a Notice of Continuation not later than 9:00 a.m. San
Francisco time on the third Business Day prior to the date of any such
Continuation. Such notice by the Borrower of a Continuation shall be by telecopy
or other similar form of transmission in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR Loan and
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portion 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 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, such
Loan will automatically, on the last day of the current Interest Period
therefor, Convert into a Base Rate Loan notwithstanding failure of the Borrower
to comply with Section 2.10.
SECTION 2.10. CONVERSION.
So long as no Default or Event of Default exists, 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. 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 9:00 a.m. San Francisco time one
Business Day prior to the date of any proposed Conversion into Base Rate Loans
and three Business Days 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, electronic mail or other similar form of transmission
of the proposed Conversion. Subject to the restrictions specified above, each
Notice of Conversion shall be by 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 2.11. NOTES.
The Revolving Loans made by each Lender shall, in addition to this
Agreement, also be evidenced by a Revolving 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. The Bid Rate Loans made by any Lender to
the Borrower shall, in addition to this Agreement, also be evidenced by a Bid
Rate Note payable to the order of such Lender. The Swingline Loans made by the
Swingline Lender to the Borrower shall, in addition to this Agreement, also be
evidenced by a Swingline Note payable to the order of the Swingline Lender.
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SECTION 2.12. VOLUNTARY REDUCTIONS OF THE COMMITMENT.
The Borrower may terminate or reduce the amount of the Commitments (for
which purpose use of the Commitments shall be deemed to include the aggregate
principal amount of all outstanding Bid Rate Loans and Swingline Loans) at any
time and from time to time without penalty or premium upon not less than five
(5) Business Days prior notice to the Agent of each such termination or
reduction, which notice shall specify the effective date thereof and the amount
of any such reduction (which in the case of any partial reduction of the
Commitments shall not be less than $10,000,000 and integral multiples of
$1,000,000 in excess of that amount in the aggregate) and shall be irrevocable
once given and effective only upon receipt by the Agent ("Prepayment Notice").
Promptly after receipt of a Prepayment Notice the Agent shall notify each Lender
by telecopy, or other similar form of transmission of the proposed termination
or Commitment reduction. The Commitments, once reduced pursuant to this Section,
may not be increased. The Borrower shall pay all interest and fees, on the Loans
accrued to the date of such reduction or termination of the Commitments to the
Agent for the account of the Lenders, including but not limited to any
applicable compensation due to each Lender in accordance with Section 5.4. of
this Agreement.
SECTION 2.13. EXTENSION OF TERMINATION DATE.
(a) INITIAL EXTENSION. The Borrower may request that the Agent and the
Lenders extend the current Termination Date by one year by executing and
delivering to the Agent at least 180 days but not more than 360 days prior to
the current Termination Date, a written request for such extension in the form
of Exhibit M (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 one year: (a) immediately prior to such extension and
immediately after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing and (b) the Borrower shall have paid the Fees
payable under Section 3.6.(e).. The Termination Date may be extended only one
time pursuant to this subsection.
(b) SUBSEQUENT EXTENSION. In addition to the extension option set forth in
the immediately preceding clause (a), the Borrower shall have the right,
exercisable one time, to request that the Agent and the Lenders agree to extend
the then current Termination Date by an additional year. To exercise such right
the Borrower shall execute and deliver an Extension Request to the Agent at
least 180 days but not more than 360 days prior to the then current Termination
Date (as such date has been extended pursuant to subsection (a) above). If the
Agent shall receive such a request, the Agent shall forward a copy of it to each
Lender promptly upon receipt thereof. If all of the Lenders shall have notified
the Agent on or before the date 45 days after receipt by the Lenders of such
request that they accept such request, then, upon payment of the extension fee
payable under Section 3.6.(e). the Termination Date shall be extended for a
single one-year period. If any Lender shall not have notified the Agent on or
prior to the date which is the date 45 days after receipt by the Lenders of such
request that it accepts the such request, the Termination Date shall not be
extended except as otherwise permitted under the immediately following
subsection (c). The Agent shall promptly notify the Borrower whether a request
for an extension has been accepted or rejected as well as which Lender or
Lenders rejected such request (each such Lender, a "Rejecting Lender"). The
Borrower understands and acknowledges that (i) this Section has been included in
this Agreement for the Borrower's convenience in requesting an extension of the
Termination Date; (ii) neither the Agent nor any Lender has promised (either
expressly or impliedly), nor does the Agent or any Lender have any obligation or
commitment whatsoever, to extend the Termination Date and (iii) the Agent and
the Lenders may condition any such extension on such terms and conditions as
they may deem appropriate in their sole and absolute discretion. Notwithstanding
the preceding subsections, if Requisite Lenders do not approve a request for an
extension of the Termination Date or if a Default or Event of Default exists on
the then current Termination Date or would exist after giving effect to any of
the transactions contemplated by this Section, then the Termination Date shall
not be extended.
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(c) REJECTING LENDERS. Notwithstanding the preceding subsection (b), if the
Borrower receives notification from the Agent that a request for an extension of
the Termination Date has been rejected (a "Notice of Rejection"), and provided
that the Lenders comprising the Requisite Lenders have approved of such request,
the Borrower may elect, with respect to each such Rejecting Lender, by giving
written notice to the Agent of such election within 30 days after receipt by the
Borrower of a Notice of Rejection, to either (i) require such Rejecting Lender
to assign its Commitment to an Eligible Assignee as contemplated in the
immediately following clause (x) or (ii) pay in full the amount of Loans,
interest and fees owing to such Rejecting Lender and terminate such Rejecting
Lender's Commitment as contemplated in the immediately following clause (y). If
the Borrower has made a timely election as permitted by the preceding sentence,
then the Borrower shall take either of the following actions as specified in
such election: (x) demand that such Rejecting Lender, and upon such demand such
Rejecting Lender shall be obligated to, assign its Commitment to an Eligible
Assignee subject to and in accordance with the provisions of Section 13.6.(c)
for a purchase price equal to the aggregate principal balance of Loans then
outstanding and owing to such Rejecting Lender plus any accrued but unpaid
interest thereon and accrued but unpaid fees owing to such Rejecting Lender, any
such assignment to be effective as of the current Termination Date or (y)
effective as of the current Termination Date, pay to such Rejecting Lender the
aggregate principal balance of Loans then outstanding and owing to such
Rejecting Lender plus any accrued but unpaid interest thereon and accrued but
unpaid fees owing to such Rejecting Lender, together with all amounts, if any,
payable under Section 5.4., whereupon such Rejecting Lender's Commitment shall
terminate. Each of the Agent, the Borrower and the Rejecting Lender shall
reasonably cooperate in effectuating the replacement of such Rejecting Lender
under this Section, provided, however, that neither the Agent, such Rejecting
Lender, nor any other Lender shall be obligated in any way whatsoever to
initiate any such replacement or to assist in finding an Assignee. If the
Borrower has elected to cause all Rejecting Lenders either to assign their
Commitments to Eligible Assignees as contemplated by the preceding clause (x) or
to be paid the amounts specified in the preceding clause (y), then the
Borrower's request for an extension which was initially rejected shall be deemed
to have been granted and accordingly the Termination Date shall be extended by
one single year, otherwise the Termination Date shall not be extended.
SECTION 2.14. AMOUNT LIMITATIONS.
Notwithstanding any other term of this Agreement or any other Loan
Document, (a) no Lender shall be required to make any Loan if, immediately after
the making of such Loan the aggregate principal amount of all outstanding Loans,
would exceed either (i) the aggregate amount of the Commitments or (ii) the
Maximum Loan Availability and (b) the aggregate principal amount of all
outstanding Bid Rate Loans shall not exceed one-half of the aggregate amount of
all Commitments at such time.
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SECTION 2.15. INCREASE IN COMMITMENTS.
The Borrower shall have the right to request increases in the aggregate
amount of the Commitments by providing written notice to the Agent, which notice
shall be irrevocable once given; provided, however, that after giving effect to
any such increases the aggregate amount of the Commitments shall not exceed
$300,000,000. Each such increase in the Commitments must be an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof. The
Agent shall promptly notify each Lender of any such request. No Lender shall be
obligated in any way whatsoever to increase its Commitment. If a new Lender
becomes a party to this Agreement, or if any existing Lender agrees to increase
its Commitment, such Lender shall on the date it becomes a Lender hereunder (or
in the case of an existing Lender, increases its Commitment) (and as a condition
thereto) purchase from the other Lenders its Commitment Percentage (determined
with respect to the Lenders' relative Commitments and after giving effect to the
increase of Commitments) of any outstanding Loans, by making available to the
Agent for the account of such other Lenders, in same day funds, an amount equal
to the sum of (A) the portion of the outstanding principal amount of such Loans
to be purchased by such Lender plus (B) interest accrued and unpaid to and as of
such date on such portion of the outstanding principal amount of such Loans. The
Borrower shall pay to the Lenders amounts payable, if any, to such Lenders under
Section 5.4. as a result of the prepayment of any such Loans. No increase of the
Commitments may be effected under this Section (x) unless no Default or Event of
Default will be in existence on the effective date of such increase, (y) unless
the Borrower can demonstrate to the reasonable satisfaction of the Agent that,
after giving effect to such increase, the Borrower will be in compliance with
Section 10.1. and (z) if any representation or warranty made or deemed made by
the Borrower or any other Loan Party in any Loan Document to which such Loan
Party is a party is not (or would not be) true or correct on the effective date
of such increase 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 accurate on and as of such earlier date)
and except for changes in factual circumstances specifically and expressly
permitted hereunder. In connection with any increase in the aggregate amount of
the Commitments pursuant to this Section (a) any Lender becoming a party hereto
shall execute such documents and agreements as the Agent may reasonably request
and (b) the Borrower shall make appropriate arrangements so that each new
Lender, and any existing Lender increasing its Commitment, receives a new or
replacement Note, as appropriate, in the amount of such Lender's Commitment at
the time of the effectiveness of the applicable increase in the aggregate amount
of Commitments.
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, not later than
11:00 a.m. San Francisco time 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). The Borrower shall, 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 of such Lender shall be paid to such Lender, by wire
transfer of immediately available funds in accordance with the wiring
instructions provided by such Lender to the Agent from time to time, for the
account of such Lender at the applicable Lending Office of such Lender. If the
Agent fails to pay such amount to a Lender within one Business Day of receipt
thereof by the Agent, 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.
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SECTION 3.2. PRO RATA TREATMENT.
Except to the extent otherwise provided herein: (a) each borrowing from
Lenders under Section 2.1.(a) shall be made from the Lenders, each payment of
the fees under Sections 3.6.(a) and 3.6.(b) shall be made for the account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.12. or otherwise pursuant to this Agreement shall be applied to
the respective Commitments of the Lenders, pro rata according to the amounts of
their respective Commitments; (b) each payment or prepayment of principal of
Revolving 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 Revolving
Loans held by them, provided that if immediately prior to giving effect to any
such payment in respect of any Revolving Loans the outstanding principal amount
of the Revolving Loans shall not be held by the Lenders pro rata in accordance
with their respective Commitments in effect at the time such Loans were made,
then such payment shall be applied to the Revolving Loans in such manner as
shall result, as nearly as is practicable, in the outstanding principal amount
of the Revolving Loans being held by the Lenders pro rata in accordance with
their respective Commitments; (c) each payment of interest on Revolving 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 payable to the
respective Lenders; (d) the Conversion and Continuation of Revolving Loans of a
particular Type (other than Conversions provided for by Section 5.5.) shall be
made pro rata among the Lenders according to the amounts of their respective
Revolving Loans and the then current Interest Period for each Lender's portion
of each Revolving Loan of such Type shall be coterminous; (e) each prepayment of
principal of Bid Rate Loans by the Borrower pursuant to Section 2.7.(b)(iii)
shall be made for account of the Lenders then owed Bid Rate Loans pro rata in
accordance with the respective unpaid principal amounts of the Bid Rate Loans
then owing to each such Lender; and (f) the Lenders' participation in, and
payment obligations in respect of, Swingline Loans under Section 2.3.(e), shall
be in accordance with their respective Pro Rata Shares. All payments of
principal, interest, fees and other amounts in respect of the Swingline Loans
shall be for the account of the Swingline Lender only (except to the extent any
Lender shall have acquired a participating interest in any such Swingline Loan
pursuant to Section 2.3.(e)).
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SECTION 3.3. SHARING OF PAYMENTS, ETC.
The Borrower agrees that, 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 while an Event of Default exists,
without notice to the Borrower or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or a 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 11.2., and although such obligations shall be contingent or unmatured.
If a Lender shall obtain payment of any principal of, or interest on, any Loan
under this Agreement or shall obtain payment on any other Obligation owing by
the Borrower or any other Loan Party 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 or any other Loan Party to a Lender not in accordance with the terms of
this Agreement and such payment should be distributed to the Lenders in
accordance with Section 3.2. or Section 11.5., such Lender shall promptly
purchase from such 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 actually be incurred by such Lender in obtaining
or preserving such benefit) in accordance with the requirements of Section 3.2.
or Section 11.5., 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 agrees 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 the 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.
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SECTION 3.5. MINIMUM AMOUNTS.
(a) BORROWINGS. Each borrowing of Base Rate Loans shall be in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess thereof.
Each borrowing of and Continuation of, and each Conversion of Base Rate Loans
into, LIBOR Loans shall be in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount.
(b) PREPAYMENTS. Each voluntary prepayment of Revolving Loans shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess thereof.
(c) REDUCTIONS OF COMMITMENTS. Each reduction of the Commitments under
Section 2.12. shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $1,000,000 in excess thereof.
SECTION 3.6. FEES.
(a) CLOSING FEE. On the Effective Date, the Borrower agrees to pay to the
Agent and each Lender all loan fees as have been agreed to in writing by the
Borrower and the Agent or each Lender, as applicable.
(b) FACILITY FEES. During the period from the Effective Date to but
excluding the Termination Date, the Borrower agrees to pay to the Agent for the
account of the Lenders a facility fee equal to the daily aggregate amount of the
Commitments (whether or not utilized) times a rate per annum equal to the
Applicable Facility Fee. Such fee shall be payable quarterly in arrears on the
first day of each January, April, July and October during the term of this
Agreement and on the Termination Date and will be based on the Applicable
Facility Fee corresponding to the Borrower's Credit Rating as of the last day of
the previous fiscal quarter (determined in accordance with procedure set forth
in the definition of Applicable Margin). The Borrower acknowledges that the fee
payable hereunder is a bona fide commitment fee and is intended as reasonable
compensation to the Lenders for committing to make funds available to the
Borrower as described herein and for no other purposes.
(c) BID RATE LOAN FEES. The Borrower agrees to pay to the Agent such fees
for services rendered by the Agent in connection with the Bid Rate Loans as
shall be separately agreed upon between the Borrower and the Agent.
(d) ADMINISTRATIVE AND OTHER FEES. The Borrower agrees to pay the
administrative and other fees of the Agent as may be agreed to in writing from
time to time.
(e) EXTENSION FEE. If, pursuant to Section 2.13., the Borrower exercises
its right to extend the Termination Date, the Borrower agrees to pay to the
Agent for the account of each Lender so extending an extension fee equal to (i)
in the case of a Lender with a Commitment equal to or greater than $30,000,000,
0.20% of the amount of such Lender's Commitment at such time and (ii) in the
case of a Lender with a Commitment less than $30,000,000, 0.15% of the amount of
such Lender's Commitment at such time. Such fee shall be paid to the Agent prior
to, and as a condition to, such extension but shall be promptly reimbursed to
the Borrower if such extension is not approved by the Requisite Lenders in
accordance with Section 2.13. Notwithstanding the foregoing, in no event shall
the Borrower be required to pay any extension fee to a Rejecting Lender.
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SECTION 3.7. COMPUTATIONS.
Unless otherwise expressly set forth herein, any accrued interest on any
Loan, any Fees or other Obligations due hereunder 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 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 elects to have
such excess sum returned to it 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. 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 2.4.(a)(i). - (iv). and with respect to
Swingline Loans, in Section 2.3.(c). Notwithstanding the foregoing, the parties
hereto further agree and stipulate that all agency fees, syndication fees,
facility fees, letter of credit 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, 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 3.9. 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 its obligations hereunder.
SECTION 3.10. 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 5 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 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 Requisite Lenders, shall be suspended
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during the pendency of such failure or refusal. If for any reason a Lender fails
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 by the Agent and paid to such Defaulting Lender upon
the Defaulting Lender's curing of its default.
SECTION 3.11. TAXES.
(a) TAXES GENERALLY. All payments to any Lender 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 (other than withholding taxes)
that would not be imposed but for a connection between the Agent or a 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), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits; (iv)
any taxes to the extent that they are in effect and would apply to the Agent or
Lender immediately prior to the Agreement Date or as of the date such Person
becomes a Lender in the case of an Eligible Assignee pursuant to Section 13.6.;
and (v) any taxes arising after the Agreement Date solely as a result of or
attributable to a Lender changing its designated Lending Office after the date
such Lender becomes a party hereto (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 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.
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(b) TAX INDEMNIFICATION. If the Borrower fails to pay any Taxes when due to
the appropriate Governmental Authority or fails to remit to the Agent, for its
account or the account of the respective 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 or Participant organized
under the laws of a jurisdiction outside the United States of America becomes a
party hereto, 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 Internal Revenue
Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms
or such other evidence satisfactory to the Agent and the Borrower), 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 under the Internal Revenue Code. Each such
Lender or Participant shall (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 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 last sentence of subsection (a) 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, Participant or the Agent, as applicable, fails to comply with the
requirements of this subsection. If any such Lender or Participant fails to
deliver the above forms or other documentation, then the Agent may withhold from
such payment to such Lender such amounts as are required by the Internal Revenue
Code. Upon the request of the Agent, each Lender that is a "United States
person" within the meaning of Section 7701(a)(30) of the Code shall deliver to
the Agent two duly signed completed copies of IRS Form W-9. If such Lender fails
to deliver such forms, then the Agent may withhold from any interest payment to
such Lender an amount equivalent to the applicable backup withholding tax
imposed by the Code, without reduction, and the Borrower shall not be required
to pay any amount pursuant to Section 3.11.(a). 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 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
termination of the Commitments, repayment of all Obligations and the resignation
or replacement of the Agent.
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(d) If the Borrower determines in good faith that a reasonable basis exists
for contesting any Taxes for which indemnification has been demanded hereunder,
the relevant Lender or the Agent, as applicable, shall cooperate with the
Borrower in challenging such Taxes at the Borrower's expense if so requested by
the Borrower in writing. If any Lender or the Agent, as applicable, receives a
refund of a Tax for which a payment has been made by the Borrower pursuant to
this Section 3.11.(d), which refund is attributable to such payment made by the
Borrower, then the Lender or the Agent, as the case may be, shall reimburse the
Borrower for such. Nothing herein contained shall interfere with the right of a
Lender or the Agent to arrange its tax affairs in whatever manner it thinks fit
nor oblige any Lender or the Agent to disclose any information relating to its
tax affairs or any computations in respect thereof or require any Lender or the
Agent to do anything that would prejudice its ability to benefit from any other
reliefs, remissions or repayments to which it may be entitled.
ARTICLE IV. UNENCUMBERED POOL PROPERTIES
SECTION 4.1. ELIGIBILITY OF PROPERTIES.
(a) EXISTING UNENCUMBERED POOL PROPERTIES. Subject to compliance with the
terms and conditions of Section 6.1.(a), as of the Effective Date the parties
hereto acknowledge and agree that the Properties listed on Schedule 4.1. are
Unencumbered Pool Properties.
(b) ADDITIONAL UNENCUMBERED POOL PROPERTIES. After the Effective Date, an
Eligible Property shall be included as Unencumbered Pool Property upon delivery
to the Agent of (i) an Unencumbered Pool Certificate pursuant to Section
9.4.(d). setting forth the information required to be contained therein and
assuming that such Eligible Property is included as an Unencumbered Pool
Property; (ii) if not previously delivered to the Agent, a certificate of
qualification to transact business or other comparable certificate issued with
respect to the Loan Party that owns such Property by the Secretary of State (and
any state department of taxation, as applicable) of the state in which such
Property is located; and (iii) such other information as the Agent may
reasonably request in connection with the evaluation of such Eligible Property.
Subject to the terms and conditions of this Agreement, upon the Agent's receipt
of such certificates and such other information, such Eligible Property shall be
included as an Unencumbered Pool Property.
(c) ALTERNATIVE ACCEPTANCE PROCEDURE FOR ADDITIONAL UNENCUMBERED POOL
PROPERTIES. Any Property that does not satisfy all of the requirements of an
Eligible Property shall be included only upon the written approval of the
Requisite Lenders provided, however, that such approval shall only be a waiver
of those requirements in the definition of Eligible Property specifically set
forth and approved therein with respect to such Property.
(d) ADDITIONAL DELIVERIES FOR ADDITIONAL UNENCUMBERED POOL PROPERTIES. If a
Property that is to become an Unencumbered Pool Property is owned (or is being
acquired) by a Subsidiary of the Borrower that is not yet a party to the
Guaranty, such Property shall not become an Unencumbered Pool Property unless
and until (i) an Accession Agreement executed by such Subsidiary, and all other
items required to be delivered under Section 8.14., have all been delivered to
the Agent and (ii) the Agent shall have received each of the following, in form
and substance satisfactory to the Agent, if not previously delivered to the
Agent:
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(A) an opinion of counsel to such Subsidiary, addressed to the Agent
and the Lenders and addressing the same legal matters address in the
opinions delivered pursuant to Section 6.1.(a)(iv);
(B) the certificate or articles of incorporation, articles of
organization, certificate of limited partnership, declaration of trust
or other comparable organizational instrument (if any) of such
Subsidiary certified as of a recent date by the Secretary of State of
the State of formation of such Subsidiary;
(C) a certificate of good standing (or certificate of similar meaning)
with respect to such Subsidiary issued as of a recent date by the
Secretary of State of the State of formation of such Subsidiary; and
(D) copies certified by the Secretary or Assistant Secretary of such
Subsidiary (or other individual performing similar functions) of (1)
the by-laws of such Subsidiary, 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 (2) all corporate,
partnership, member or other necessary action taken by such Subsidiary
to authorize the execution, delivery and performance of the Loan
Documents to which it is a party.
SECTION 4.2. TERMINATION OF DESIGNATION AS UNENCUMBERED POOL PROPERTY.
A Property shall cease to be included as an Unencumbered Pool Property for
purposes of this Agreement if either (i) such Unencumbered Pool Property ceases
to be an Eligible Property (with the termination effective immediately) or (ii)
such Property is not included in an Unencumbered Pool Certificate subsequently
submitted pursuant to this Agreement (with the termination effective as of the
date of receipt by the Agent of such Unencumbered Pool Certificate).
Notwithstanding the foregoing, no Property will be terminated as an Unencumbered
Pool Property if (i) a Default or Event of Default exists or (ii) a Default or
Event of Default would exist immediately after such Property is terminated as an
Unencumbered Pool Property.
ARTICLE V. YIELD PROTECTION, ETC.
SECTION 5.1. 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 determine
to be necessary to compensate such Lender for any costs incurred by such Lender
that it reasonably 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 LIBOR Loans or such
obligation or the maintenance by such Lender of capital in respect of its LIBOR
Loans or its Commitment (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), 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 LIBOR Loans or its Commitment (other than taxes imposed
48
on or measured by the overall net income of such Lender or of its Lending Office
for any of such LIBOR Loans by the jurisdiction in which such Lender has its
principal office or such Lending Office), or (ii) imposes or modifies any
reserve, special deposit or similar requirements (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve System or other
similar reserve requirement applicable to any other category of liabilities or
category of extensions of credit or other assets by reference to which the
interest rate on LIBOR Loans is determined) relating to any extensions of credit
or other assets of, or any deposits with or other liabilities of, or other
credit extended by, or any other acquisition of funds by such Lender (or its
parent corporation), or any commitment of such Lender (including, without
limitation, the 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 make or Continue, or to Convert Base Rate Loans
into, LIBOR Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provision of Section 5.5. shall
apply).
(c) Notification and Determination of Additional Costs. Each of the Agent
and each Lender, as the case may be, agrees to notify the Borrower of any event
occurring after the Agreement Date entitling the Agent or such Lender to
compensation under any of the preceding subsections of this Section as promptly
as practicable; provided, however, that the failure of the Agent or any Lender
to give such notice shall not release the Borrower from any of its obligations
hereunder. The Agent and each Lender, as the case may be, agrees to furnish to
the Borrower (and in the case of a Lender to the Agent as well) a certificate
setting forth the basis and amount of each request for compensation under this
Section. Determinations by the Agent or such Lender, as the case may be, 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 5.2. SUSPENSION OF LIBOR LOANS.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of LIBOR for any Interest Period:
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(a) the Agent reasonably determines (which determination shall be
conclusive) that quotations of interest rates for the relevant
deposits referred to in the definition of LIBOR are not being provided
in the relevant amounts or for the relevant maturities for purposes of
determining rates of interest for LIBOR Loans as provided herein or is
otherwise unable to determine LIBOR, or
(b) the Agent reasonably determines (which determination shall be
conclusive) that the relevant rates of interest referred to in the
definition of LIBOR upon the basis of which the rate of interest for
LIBOR Loans for such Interest Period is to be determined are not
likely to adequately cover the cost to any Lender of making or
maintaining LIBOR Loans for such Interest Period;
(c) any Lender that has outstanding a Bid Rate Quote with respect to a
LIBOR Margin Loan reasonably determines (which determination shall be
conclusive) that LIBOR will not adequately and fairly reflect the cost
to such Lender of making or maintaining such LIBOR Margin Loan;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, (i) the Lenders shall be under
no obligation to, and shall not, make additional LIBOR Loans, 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 prepay
such Loan or Convert such Loan into a Base Rate Loan and (ii) in the case of
clause (c) above, no Lender that has outstanding a Bid Rate Quote with respect
to a LIBOR Margin Loan shall be under any obligation to make such Loan.
SECTION 5.3. ILLEGALITY.
Notwithstanding any other provision of this Agreement, if any Lender shall
determine (which determination shall be conclusive and binding) that it is
unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy of such notice to the Agent) and such Lender's obligation to make or
Continue, or to Convert Revolving Loans of any other Type into, LIBOR Loans
shall be suspended until such time as such Lender may again make and maintain
LIBOR Loans (in which case the provisions of Section 5.5. shall be applicable).
SECTION 5.4. COMPENSATION.
The Borrower shall pay to the Agent for account of each Lender, upon the
request of such Lender through the Agent, such amount or amounts as shall be
sufficient to compensate such Lender 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 or Bid Rate 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
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(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent
specified in Article VI. to be satisfied) to borrow a LIBOR Loan or
Bid Rate Loan from such Lender on the date for such borrowing, or to
Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on
the requested date of such Conversion or Continuation.
Not in limitation of the foregoing, such compensation shall include, without
limitation; (i) in the case of a LIBOR Loan, an amount equal to the then present
value of (A) the amount of interest that would have accrued on such LIBOR Loan
for the remainder of the Interest Period at the rate applicable to such LIBOR
Loan, less (B) the amount of interest that would accrue on the same LIBOR Loan
for the same period if LIBOR were set on the date on which such LIBOR Loan was
repaid, prepaid or Converted or the date on which the Borrower failed to borrow,
Convert or Continue such LIBOR Loan, as applicable, calculating present value by
using as a discount rate LIBOR quoted on such date and (ii) in the case of a Bid
Rate Loan, the sum of such losses and expenses as the Lender or Designated
Lender who made such Bid Rate Loan may reasonably incur by reason of such
prepayment, including without limitation any losses or expenses incurred in
obtaining, liquidating or employing deposits from third parties. Upon Borrower's
request (made through the Agent), any Lender seeking 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. Any such statement shall be conclusive absent manifest
error.
SECTION 5.5. TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
5.1.(b), 5.2. or 5.3. 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
5.1.(b) or 5.2. 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 5.1.(b), 5.2. or 5.3.
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 Revolving 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.
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If such Lender gives notice to the Borrower (with a copy to the Agent) that
the circumstances specified in Section 5.1. or 5.3. 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 Commitments.
SECTION 5.6. CHANGE OF LENDING OFFICE.
Each Lender agrees that it will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate an alternate
Lending Office or take other measures with respect to any of its Loans affected
by the matters or circumstances described in Sections 3.11., 5.1. or 5.3. 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 5.7. AFFECTED LENDERS.
If (a) a Lender requests compensation pursuant to Section 3.11. or 5.1.,
and the Requisite Lenders are not also doing the same, or (b) the obligation of
any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate Loans
into LIBOR Loans shall be suspended pursuant to Section 5.1., 5.2. or 5.3. but
the obligation of the Requisite Lenders shall not have been suspended under such
Sections, then, so long as there does not then exist any Default or Event of
Default, the Borrower may either (i) demand that such Lender (the "Affected
Lender"), and upon such demand the Affected Lender shall promptly assign its
Commitments to an Eligible Assignee subject to and in accordance with the
provisions of Section 13.6.(c) for a purchase price equal to the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued
but unpaid interest thereon and accrued but unpaid fees owing to the Affected
Lender or (ii) pay to the Affected Lender the aggregate principal balance of the
Loans then owing to the Affected Lender plus any accrued but unpaid interest
thereon and accrued but unpaid fees owing to the Affected Lender, whereupon the
Affected Lender shall no longer be a party hereto or have any rights or
obligations hereunder or under any of the other Loan Documents. Each of the
Agent, the Borrower and the Affected Lender shall reasonably cooperate in
effectuating the replacement of such Affected Lender under this Section, but at
no time shall the Agent, such Affected Lender nor any other Lender be obligated
in any way whatsoever to initiate any such replacement or to assist in finding
an Eligible Assignee. The exercise by the Borrower of its rights under this
Section shall be at the Borrower's sole cost and expenses and at no cost or
expense to the Agent, the Affected Lender or any of the other Lenders; provided,
however, the Borrower shall not be obligated to reimburse or otherwise pay an
Affected Lender's administrative or legal costs incurred as a result of the
Borrower's exercise of its rights under this Section. The terms of this Section
shall not in any way limit the Borrower's obligation to pay to any Affected
Lender compensation owing to such Affected Lender pursuant to Section 3.11. or
5.1.
SECTION 5.8. ASSUMPTIONS CONCERNING FUNDING OF LIBOR LOANS.
Calculation of all amounts payable to a Lender under this Article V. 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 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 V.
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ARTICLE VI. CONDITIONS PRECEDENT
SECTION 6.1. INITIAL CONDITIONS PRECEDENT.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder is subject to the satisfaction or waiver of 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) Revolving Notes and Bid Rate Notes executed by the Borrower,
payable to all Lenders or any Designated Lender, if applicable, and
complying with the terms of Section 2.11.; and the Swingline Note
executed by the Borrower;
(iii) the Guaranty executed by each of the Guarantors initially to be
a party thereto;
(iv) (A) an opinion of Xxxxxx & Xxxxxxx, counsel to the Borrower and
the Guarantors, addressed to the Agent and the Lenders and covering
the matters set forth in Exhibit N-1, (B) an opinion of Xxxxxxx Xxxxx,
special Maryland counsel to the Borrower, addressed to the Agent and
the Lenders and covering the matters set forth in Exhibit N-2, and (C)
an opinion of the Borrower's general counsel addressed to the Agent
and the Lenders and covering the matters set forth in Exhibit N-3;
(v) the certificate or articles of incorporation, articles of
organization, certificate of limited partnership, declaration of trust
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 Person;
(vi) 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 Person
and certificates of qualification to transact business or other
comparable certificates issued by each Secretary of State (and any
state department of taxation, as applicable) of each state in which
such Person is required to be so qualified;
(vii) 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 Person
authorized to execute and deliver the Loan Documents to which such
Person is a party, and in the case of the Borrower, authorized to
execute and deliver on behalf of the Borrower Notices of Borrowing,
Notices of Swingline Borrowing, Notices of Conversion and Notices of
Continuation;
53
(viii) copies certified by the Secretary or Assistant Secretary of
each Guarantor (or other individual performing similar functions) of
(i) the by-laws of such Person, 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 Person to
authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(ix) an Unencumbered Pool Certificate calculated as of September 30,
2002;
(x) a Compliance Certificate calculated on a pro forma basis for the
Borrower's fiscal quarter ending September 30, 2002;
(xi) with respect to each Property identified on Schedule 4.1., each
of the items referred to in Section 4.1. required to be delivered in
connection with any Unencumbered Pool Property;
(xii) evidence satisfactory to the Agent that the Fees, if any, then
due and payable under Section 3.6., together with all other fees,
expenses and reimbursement amounts due and payable to the Agent and
any of the Lenders, including without limitation, the fees and
expenses of counsel to the Agent, have been paid;
(xiii) evidence that any outstanding Indebtedness or other obligations
owing under each of (A) the Credit Agreement dated as of December 14,
1999, among the Borrower the banks named therein and The Bank of New
York, as administrative agent, and (B) the Revolving Credit Agreement
dated as of February 1, 2000 by and between the Borrower and the Bank
of Montreal, as lender (together the "Existing Credit Facilities"),
have been paid in full and the Existing Credit Facilities have been
terminated; and
(xiv) such other documents and instruments as the Agent, or any Lender
through the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(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 and its Subsidiaries delivered to the Agent and the Lenders
prior to the Agreement Date that has had or could reasonably be
expected to result in a Material Adverse Effect;
54
(ii) No litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened
which is reasonably likely to be adversely determined, and, if
adversely determined, could reasonably be expected to (A) result in 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;
(iii) The Borrower and the other 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 (A) any Applicable Law or (B) 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, or the failure to make, give or
receive which, would not reasonably be likely to (1) have a Material
Adverse Effect, or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect
the ability of the Borrower or any other 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 6.2. CONDITIONS PRECEDENT TO ALL LOANS.
The obligations of Lenders to make any Loans are subject to the further
conditions precedent that: (a) no Default or Event of Default shall exist as of
the date of the making of such Loan or would exist immediately after giving
effect thereto, and none of the conditions described in Section 2.14. would
exist after giving effect thereto; (b) 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 on and as of the date
of the making of such Loan 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 accurate on and as of such earlier date)
and except for changes in factual circumstances specifically and expressly
permitted hereunder and (c) in the case of the borrowing of Revolving Loans, the
Agent shall have received a timely Notice of Borrowing, or in the case of a
Swingline Loan, the Swingline Lender shall have received a timely Notice of
Swingline Borrowing. Each Credit Event shall constitute a certification by the
Borrower to the effect set forth in the preceding sentence (both as of the date
of the giving of notice relating to such Credit Event and, unless the Borrower
otherwise notifies the Agent prior to the date of such Credit Event, as of the
date of the occurrence of such Credit Event). In addition, the Borrower shall be
deemed to have represented to the Agent and the Lenders at the time such Loan is
made that all conditions to the making of such Loan contained in this Article
VI. have been satisfied.
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SECTION 6.3. CONDITIONS AS COVENANTS.
If the Lenders permit the making of any Loans, prior to the satisfaction of
all conditions precedent set forth in Sections 6.1. and 6.2., the Borrower shall
nevertheless cause such condition or conditions to be satisfied within 5
Business Days after the date of the making of such Loans. Unless set forth in
writing to the contrary, the making of its initial Loan by a Lender shall
constitute a confirmation by such Lender to the Agent and the other Lenders that
insofar as such Lender is concerned the Borrower has satisfied the conditions
precedent for initial Loans set forth in Sections 6.1. and 6.2.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1. 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 and the
other Subsidiaries 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. Part I of Schedule 7.1.(b) is, as of the Agreement
Date, a complete and correct list of all Subsidiaries of the Borrower setting
forth for each such Subsidiary, (i) the jurisdiction of organization of such
Person, (ii) each Person holding any Equity Interest in such Person, (iii) the
nature of the Equity Interests held by each such Person and (iv) the percentage
of ownership of such Person represented by such Equity Interests. Except as
disclosed in such Schedule (A) each of the Borrower and its Subsidiaries owns,
free and clear of all Liens, and has the unencumbered right to vote, all
outstanding Equity Interests in each Person shown to be held by it on such
Schedule, (B) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (C) there are no outstanding subscriptions, options, warrants,
commitments, preemptive rights or agreements of any kind (including, without
limitation, any stockholders' or voting trust agreements) for the issuance,
sale, registration or voting of, or outstanding securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, any such Person. Part II of Schedule 7.1.(b)
correctly sets forth all Unconsolidated Affiliates of the Borrower, including
the correct legal name of such Person, the type of legal entity which each such
Person is, and all ownership interests in such Person held directly or
indirectly by the Borrower.
(c) AUTHORIZATION OF AGREEMENT, NOTES, LOAN DOCUMENTS AND BORROWINGS. The
Borrower has the right and power, and has taken all necessary corporate action
to authorize it, to borrow. The Borrower and each other Loan Party has the right
to obtain other extensions of credit hereunder, 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
56
Documents to which the Borrower or any other 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 contained herein or therein may be limited by
equitable principles generally.
(d) COMPLIANCE OF AGREEMENT, ETC. WITH LAWS. The execution, delivery and
performance of this Agreement 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 articles of incorporation or the bylaws of the Borrower or the
organizational documents of any other Loan Party, or any material indenture,
agreement or other instrument to which any other 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 other than in favor
of the Agent for the benefit of the Lenders.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Each Loan Party and each
other Subsidiary is in compliance with each Governmental Approval and all other
Applicable Laws relating to it 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.
(f) TITLE TO PROPERTIES; LIENS. Schedule 7.1.(f) is, as of September 30,
2002, a complete and correct listing of all real estate assets of the Loan
Parties and the other Subsidiaries, setting forth, for each such Property, the
current occupancy status of such Property and whether such Property is a
Development Property and, if such Property is a Development Property, the status
of completion of such Property. Each of the Loan Parties and all other
Subsidiaries has good, marketable and legal title to, or a valid leasehold
interest in, its respective assets. None of the Unencumbered Pool Properties is
subject to any Lien other than Permitted Liens.
(g) EXISTING INDEBTEDNESS; TOTAL LIABILITIES. Part I of Schedule 7.1.(g)
is, as of September 30, 2002, a complete and correct listing of all Indebtedness
(including all Guarantees) of each of the Loan Parties and the other
Subsidiaries, and if such Indebtedness is secured by any Lien, a description of
all of the property subject to such Lien. As of September 30, 2002, the Loan
Parties and the other Subsidiaries have performed and are in compliance with all
57
of the terms of such Indebtedness and all instruments and agreements relating
thereto, 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 a default or
event of default, exists with respect to any such Indebtedness. Part II of
Schedule 7.1.(g) is, as of September 30, 2002, a complete and correct listing of
all Total Liabilities of the Loan Parties and the other Subsidiaries (excluding
any Indebtedness set forth on Part I of such Schedule).
(h) MATERIAL CONTRACTS. Schedule 7.1.(h) is, as of the Agreement Date, a
true, correct and complete listing of all Material Contracts. As of the
Agreement Date, each of the Loan Parties and the other Subsidiaries that are
parties to any Material Contract has performed and is in compliance with all of
the terms of such Material Contract, 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. Except as set forth on Schedule 7.1.(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of any Loan Party,
are there any actions, suits or proceedings threatened) against or in any other
way relating adversely to or affecting, any Loan Party, any other Subsidiary or
any of their respective property in any court or before any arbitrator of any
kind or before or by any other Governmental Authority which, is reasonably
likely to be adversely determined, and, if adversely determined, could
reasonably be expected to have a Material Adverse Effect, and there are no
strikes, slow downs, work stoppages or walkouts or other labor disputes in
progress or threatened relating to, any Loan Party or any other Subsidiary.
(j) TAXES. All federal, state and other tax returns of each Loan Party and
each other Subsidiary 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, each Loan Party and each other Subsidiary
and their respective properties, income, profits and assets which are due and
payable have been paid, except any such nonpayment or non-filing which is at the
time permitted under Section 8.6. As of the Agreement Date, none of the United
States income tax returns of any Loan Party or any other Subsidiary is under
audit. All charges, accruals and reserves on the books of the Borrower and each
of its Subsidiaries 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 Borrower and its
consolidated Subsidiaries for the fiscal years ended December 31, 2000 and
December 31, 2001, and the related consolidated statements of operations,
shareholders' equity and cash flow for the fiscal years ended on such dates,
with the opinion thereon of KPMG LLP, and (ii) the unaudited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries for the fiscal
quarter ended June 30, 2002, and the related consolidated statements of
operations, shareholders' equity and cash flow of the Borrower and its
consolidated Subsidiaries for the two fiscal quarter period ended on such date.
Such balance sheets and statements (including in each case related schedules and
notes) are complete and correct in all material respects and present fairly, in
accordance with GAAP consistently applied throughout the periods involved, the
consolidated financial position of the Borrower and its consolidated
Subsidiaries 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). Neither the Borrower nor any
of its Subsidiaries has on the Agreement Date any material contingent
liabilities, liabilities, liabilities for taxes, unusual or long-term
commitments or unrealized or forward anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said
financial statements.
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(l) NO MATERIAL ADVERSE CHANGE. Since December 31, 2001, there has been no
material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Borrower and its consolidated
Subsidiaries taken as a whole. Each of the Borrower, the other Loan Parties and
the other Subsidiaries is Solvent.
(m) ERISA. Except for instances as could not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect, each member
of the ERISA Group has fulfilled its obligations under the minimum funding
standards of ERISA and the Internal Revenue Code with respect to each Plan and
is in compliance in all respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan. No member of the
ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any material liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
(n) ABSENCE OF DEFAULTS. None of the Loan Parties or the other Subsidiaries
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: (i) which constitutes a Default or an Event
of Default; or (ii) which 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 or any other Subsidiary under any agreement (other than this
Agreement) or judgment, decree or order to which any such Person is a party or
by which any such Person 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.
(o) ENVIRONMENTAL LAWS. Except as set forth on Schedule 7.1(o), each of the
Loan Parties and the other Subsidiaries is in compliance with all applicable
Environmental Laws and has obtained all Governmental Approvals which are
required under Environmental Laws and is in compliance with all terms and
conditions of such Governmental Approvals, where with respect to each of the
foregoing the failure to obtain or to comply with could be reasonably 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, no Loan
Party is aware of, nor has it received notice of, any past or present events,
conditions, circumstances, activities, practices, incidents, actions, or plans
which, with respect to any Loan Party or any other Subsidiary, may unreasonably
interfere with or prevent compliance or continued compliance with Environmental
Laws, or may give rise to any common-law or legal liability, 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 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 any Loan Party
or any other Subsidiary relating in any way to Environmental Laws which, if
determined adversely to such Loan Party or such other Subsidiary, could be
reasonably expected to have a Material Adverse Effect.
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(p) INVESTMENT COMPANY; PUBLIC UTILITY HOLDING COMPANY. No Loan Party, nor
any other Subsidiary is (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 obtain other extensions of credit or to consummate the transactions
contemplated by this Agreement or to perform its obligations under any Loan
Document to which it is a party.
(q) MARGIN STOCK. No Loan Party nor any other Subsidiary is 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.
(r) AFFILIATE TRANSACTIONS. Except as set forth on Schedule 7.1.(r). and as
permitted by Section 10.9., no Loan Party nor any other Subsidiary is a party to
or bound by any agreement or arrangement (whether oral or written) with any
Affiliate.
(s) INTELLECTUAL PROPERTY. Except for such instances as would not,
individually or in the aggregate, have a Material Adverse Effect: (1) each of
the Loan Parties and each other Subsidiary owns or has the right to use, under
valid license agreements or otherwise, all 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, without known conflict with any patent, license, franchise,
trademark, trade secret, trade name, copyright, or other proprietary right of
any other Person; (2) all such Intellectual Property is fully protected and/or
duly and properly registered, filed or issued in the appropriate office and
jurisdictions for such registrations, filing or issuances and (3) no claim has
been asserted by any Person with respect to the use of any such Intellectual
Property, or challenging or questioning the validity or effectiveness of any
such Intellectual Property.
(t) BUSINESS. As of the Agreement Date, the Loan Parties and the other
Subsidiaries are engaged primarily in the business of owning, funding the
development of, operating, buying, selling and managing completed retail
properties leased to third party tenants principally, but not exclusively, on a
net lease basis.
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(u) 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 any Loan Party or any other Subsidiaries
ancillary to the transactions contemplated hereby.
(v) ACCURACY AND COMPLETENESS OF INFORMATION. All written information,
reports and other papers and data furnished to the Agent or any Lender by, on
behalf of, or at the direction of, any Loan Party or any other Subsidiary were,
at the time the same were so furnished, complete and correct in all material
respects, to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter, or, in the case of financial statements,
present fairly, 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. No fact is known to any
Loan Party which has had, or may in the future have (so far as any Loan Party
can reasonably foresee), a Material Adverse Effect which has not been set forth
in the financial statements referred to in Section 7.1.(k) or in such
information, reports or other papers or data or otherwise disclosed in writing
to the Agent and the Lenders prior to the Effective Date. No document furnished
or written statement made to the Agent or any Lender in connection with the
negotiation, preparation or execution, or pursuant to, of this Agreement or any
of the other Loan Documents contains or will contain any untrue statement of a
fact material to the creditworthiness of any Loan Party or any other Subsidiary
or omits or will omit to state a material fact necessary in order to make the
statements contained therein not materially misleading.
(w) NOT PLAN ASSETS; NO PROHIBITED TRANSACTIONS. None of the assets of any
Loan Party or any other Subsidiary constitutes "plan assets" within the meaning
of ERISA, the Internal Revenue Code and the respective regulations promulgated
thereunder, of any Plan. The execution, delivery and performance of the Loan
Documents by the Loan Parties, and the borrowing, other credit extensions and
repayment of amounts thereunder, do not and will not constitute "prohibited
transactions" under ERISA or the Internal Revenue Code.
SECTION 7.2. 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 or any other Subsidiary
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 any amendment thereto or any statement contained in any
certificate, financial statement or other instrument delivered by or on behalf
of any Loan Party prior to the Agreement Date and delivered to the Agent or any
Lender in connection with closing the transactions contemplated hereby) shall
constitute representations and warranties made by the Borrower 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 Agreement Date,
the Effective Date and at and as of the date of the occurrence of each Credit
Event, 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 accurate on and as of such earlier date) and
except for changes in factual circumstances specifically permitted hereunder.
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.
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ARTICLE VIII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner provided for in Section 13.7., the Borrower shall comply
with the following covenants:
SECTION 8.1. PRESERVATION OF EXISTENCE AND SIMILAR MATTERS.
Except as otherwise permitted under Section 10.4., the Borrower shall, and
shall cause each other Loan Party and each other Subsidiary to, preserve and
maintain its respective 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 8.2. COMPLIANCE WITH APPLICABLE LAW.
The Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, comply with all Applicable Law, including the obtaining of all
Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect.
SECTION 8.3. MAINTENANCE OF PROPERTY.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, (a) protect and preserve all of its material properties, including, but not
limited to, all material Intellectual Property necessary to the conduct of its
respective business, and maintain in good repair, working order and condition
all tangible properties, ordinary wear and tear excepted, and (b) from time to
time make or cause to be made all needed and appropriate repairs, renewals,
replacements and additions to such properties, so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times.
SECTION 8.4. CONDUCT OF BUSINESS.
The Borrower shall, and shall cause the other Loan Parties and each other
Subsidiary to, carry on its respective businesses as described in Section
7.1.(t) and not enter into any line of business not otherwise engaged in by such
Person as of the Agreement Date or not otherwise reasonably related thereto.
SECTION 8.5. INSURANCE.
The Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, maintain insurance with financially sound and reputable insurance
companies against such risks and in such amounts as is customarily maintained by
similar businesses or as may be required by Applicable Law. The Borrower shall
from time to time deliver to the Agent upon 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.
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SECTION 8.6. PAYMENT OF TAXES AND CLAIMS.
The Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, pay and discharge when due (a) all 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 such
Person; 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 such Person in accordance with GAAP.
SECTION 8.7. BOOKS AND RECORDS; INSPECTIONS.
The Borrower will, and will cause each other Loan Party and each other
Subsidiary to, keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities. The Borrower will, and will cause each other Loan
Party and each other Subsidiary to, permit representatives of the Agent or any
Lender to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants (in the Borrower's presence), all
at such reasonable times during business hours and as often as may reasonably be
requested and with reasonable prior notice. The Borrower shall be obligated to
reimburse the Agent and the Lenders for their reasonable costs and expenses
incurred in connection with the exercise of their rights under this Section only
if such exercise occurs while a Default or Event of Default exists.
SECTION 8.8. USE OF PROCEEDS.
The Borrower will only use the proceeds of Loans only for (a) the payment
of pre-development and development costs incurred in connection with Properties
owned by the Borrower or any Subsidiary; (b) to finance acquisitions and equity
investments otherwise permitted under this Agreement; (c) to finance capital
expenditures and the repayment of Indebtedness of the Borrower and its
Subsidiaries (including scheduled amortization payments on Indebtedness); and
(d) to provide for the general working capital needs of the Borrower and its
Subsidiaries and for other general corporate purposes of the Borrower and its
Subsidiaries (including distributions and stock repurchases otherwise permitted
under this Agreement). Except as permitted by Section 10.1.(j), the Borrower
shall not, and shall not permit any other Loan Party or any other Subsidiary to,
use any part of such proceeds to purchase or carry, or to reduce or retire or
refinance any credit incurred to purchase or carry, any 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.
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SECTION 8.9. ENVIRONMENTAL MATTERS.
The Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, comply with all Environmental Laws the failure with which to
comply could reasonably be expected to have a Material Adverse Effect. If any
Loan Party or any other Subsidiary shall (a) receive written notice that any
violation of any Environmental Law may have been committed or is about to be
committed by such Person, (b) receive written notice that any administrative or
judicial complaint or order has been filed or is about to be filed against any
such Person alleging violations of any Environmental Law or requiring any such
Person to take any action in connection with the release of Hazardous Materials
or (c) receive any written notice from a Governmental Authority or private party
alleging that any such Person 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 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 such notice within 10 days after the receipt
thereof by such Person or any of the Subsidiaries. The Loan Parties and the
other Subsidiaries shall promptly take all actions necessary to prevent the
imposition of any Liens on any of their respective properties arising out of or
related to any Environmental Laws.
SECTION 8.10. FURTHER ASSURANCES.
At the Borrower's cost and expense and upon request of the Agent, the
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, duly execute and deliver or cause to be duly 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 8.11. MATERIAL CONTRACTS.
The Borrower shall, and shall cause each other Loan Party and each other
Subsidiary to, duly and punctually perform and comply with any and all material
representations, warranties, covenants and agreements expressed as binding upon
any such Person under any Material Contract. The Borrower shall not, and shall
not permit any other Loan Party or any other Subsidiary to, do or knowingly
permit to be done anything to impair materially the value of any of the Material
Contracts.
SECTION 8.12. REIT STATUS.
The Borrower shall maintain its status as a REIT.
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SECTION 8.13. EXCHANGE LISTING.
The Borrower shall maintain at least one class of common shares of the
Borrower having trading privileges on the New York Stock Exchange.
SECTION 8.14. GUARANTORS.
Within 5 Business Days of any Person becoming a Subsidiary after the
Agreement Date, the Borrower shall deliver to the Agent each of the following in
form and substance satisfactory to the Agent: (a) an Accession Agreement
executed by such Subsidiary and (b) the items that would have been delivered
under subsections (iii), (v), (vi), (vii) and (viii) of Section 6.1.(a) if such
Subsidiary had been a Subsidiary on the Agreement Date. Notwithstanding the
foregoing, (x) upon the request of the Borrower and so long as the Borrower
complies with Section 10.10. with respect to such Subsidiary, up to two Taxable
REIT Subsidiaries shall not be required to become a Guarantor and (y) if any
other Subsidiary is unable, for reasons acceptable to the Agent (in its sole
discretion), to become a Guarantor, then so long as the Borrower complies with
Section 10.10. with respect to such Subsidiary, such Subsidiary shall not be
required to become a Guarantor.
ARTICLE IX. INFORMATION
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.7., the Borrower shall furnish to
each Lender (or to the Agent if so provided below) at its Lending Office:
SECTION 9.1. QUARTERLY FINANCIAL STATEMENTS.
As soon as available and in any event within 45 days after the close of
each of the first, second and third fiscal quarters of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such period and the related unaudited consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for such period,
setting forth in each case in comparative form the figures as of the end of and
for the corresponding periods of the previous fiscal year, all of which shall be
certified by the chief financial officer of the Borrower, in his or her opinion,
to present fairly, in accordance with GAAP, the consolidated financial position
of the Borrower and its Subsidiaries as at the date thereof and the results of
operations for such period (subject to normal year-end audit adjustments).
SECTION 9.2. YEAR-END STATEMENTS.
As soon as available and in any event within 90 days after the end of each
fiscal year of the Borrower, the audited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the related
audited consolidated statements of income, stockholders' equity and cash flows
of the Borrower and its Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the previous fiscal year,
all of which shall be certified by (a) the chief financial officer of the
Borrower, in his or her opinion, to present fairly, in accordance with GAAP, the
financial position of the Borrower and its Subsidiaries as at the date thereof
and the result of operations for such period and (b) KPMG LLP or any other
independent certified public accountants of recognized national standing
acceptable to the Requisite Lenders, whose certificate shall be unqualified and
in scope and substance satisfactory to the Requisite Lenders and who shall have
authorized the Borrower to deliver such financial statements and certification
thereof to the Agent and the Lenders pursuant to this Agreement.
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SECTION 9.3. COMPLIANCE CERTIFICATE.
At the time the financial statements are furnished pursuant to the
immediately preceding Sections 9.1. and 9.2., a certificate substantially in the
form of Exhibit P (a "Compliance Certificate") executed on behalf of the
Borrower by the chief financial officer of the Borrower (a) setting forth as of
the end of such quarterly accounting period or fiscal year, as the case may be,
the calculations required to establish whether the Borrower was in compliance
with the covenants contained in Section 10.1.; and (b) stating that no Default
or Event of Default exists, or, if such is not the case, specifying such Default
or Event of Default and its nature, when it occurred and the steps being taken
by the Borrower with respect to such event, condition or failure.
SECTION 9.4. OTHER INFORMATION.
The Borrower will deliver to Agent:
(a) Promptly upon receipt thereof, copies of all reports, if any, submitted
to the Borrower or its Board of Directors by its independent public accountants
including, without limitation, any management report;
(b) Within 5 Business Days of the filing thereof, copies of all
registration statements (excluding the exhibits thereto and any registration
statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K
(or their equivalents) and all other periodic reports which any Loan Party or
any other Subsidiary shall file with the Securities and Exchange Commission (or
any Governmental Authority substituted therefor) or any national securities
exchange;
(c) Promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed and promptly upon the issuance thereof copies of all press releases
issued by the Borrower, any Subsidiary or any other Loan Party;
(d) As soon as available and in any event within 60 days after the end of
each fiscal quarter of the Borrower, a Unencumbered Pool Certificate setting
forth the information to be contained therein as of the last day of such fiscal
quarter.
(e) Within 60 days after the end of each fiscal quarter of the Borrower, an
operating summary with respect to each Property then included in calculations of
the Unencumbered Pool Value, including without limitation, a quarterly and
year-to-date statement of Net Operating Income and a leasing/occupancy status
report together with a current rent roll for such Property.
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(f) No later than 30 days after the end of each fiscal year of the Borrower
ending prior to the Termination Date, projected balance sheets, operating
statements and cash flow budgets of the Borrower and its Subsidiaries on a
consolidated basis for each quarter of the next succeeding fiscal year, all
itemized in reasonable detail. The foregoing shall be accompanied by pro forma
calculations, together with detailed assumptions, required to establish whether
or not the Borrower, and when appropriate its consolidated Subsidiaries, will be
in compliance with the covenants contained in Sections 10.1. and at the end of
each fiscal quarter of the next succeeding fiscal year.
(g) Within 10 Business Days of the Agent's request therefor, a report in
form and content reasonably satisfactory to the Agent detailing the Borrower's,
together with its Subsidiaries', projected sources and uses of cash for the
period of four consecutive fiscal quarters immediately following the date of the
Agent's request. Such sources shall include but not be limited to excess
operating cash flow, availability under this Agreement, unused availability
under committed development loans, unfunded committed equity and any other
committed sources of funds. Such uses shall include but not be limited to cash
obligations for binding acquisitions, unfunded development costs, capital
expenditures, debt service, overhead, dividends, maturing Property loans, hedge
settlements and other anticipated uses of cash.
(h) Within 15 Business Days of the Agent's request therefor, additional
financial information maintained with respect to the Borrower and its
Subsidiaries and each Eligible Property including, without limitation, property
management exception reports, current property portfolio listings, listings of
the Borrower's and its Subsidiaries' acquisitions from the most recent fiscal
quarter provided on a cost basis, appraised value basis and/or projected annual
rent basis.
(i) If and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the controller of the
Borrower setting forth details as to such occurrence and action, if any, which
the Borrower or applicable member of the ERISA Group is required or proposes to
take;
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(j) To the extent any Loan Party or any other Subsidiary 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, any Loan Party or any other Subsidiary or
any of their respective properties, assets or businesses which, if determined or
resolved adversely to such Person, could reasonably be expected to have a
Material Adverse Effect, and prompt notice of the receipt of written notice that
any United States income tax returns of any Loan Party or any other Subsidiary
are being audited;
(k) A copy of any amendment to the articles of incorporation, bylaws,
partnership agreement or other similar organizational documents of any Loan
Party or any other Subsidiary within 5 Business Days of the effectiveness
thereof;
(l) Prompt notice of any change in the senior management of the Borrower,
any Subsidiary or any other Loan Party and any change in the business, assets,
liabilities, financial condition, results of operations or business prospects of
any Loan Party or any other Subsidiary which has had or could reasonably be
expected to have a Material Adverse Effect;
(m) Prompt notice of the occurrence of any Default or Event of Default or
any event which constitutes or which with the passage of time, the giving of
notice, or otherwise, would constitute a default or event of default by any Loan
Party or any other Subsidiary under any Material Contract to which any such
Person is a party or by which any such Person or any of its respective
properties may be bound;
(n) Promptly upon entering into any Material Contract after the Agreement
Date, a copy of such Material Contract to the Agent;
(o) Prompt notice of any order, judgment or decree in excess of $5,000,000
having been entered against any Loan Party or any other Subsidiary or any of
their respective properties or assets;
(p) Prompt notice of any written notification of a material violation of
any law or regulation or any inquiry shall have been received by any Loan Party
or any other Subsidiary from any Governmental Authority;
(q) Prompt notice of the acquisition, incorporation or other creation of
any Subsidiary, the purpose for such Subsidiary, the nature of the assets and
liabilities thereof and whether such Subsidiary is a Wholly Owned Subsidiary of
the Borrower;
(r) Promptly upon the request of the Agent, evidence of the Borrower's
calculation of the Ownership Share with respect to a Subsidiary or an
Unconsolidated Affiliate, such evidence to be in form and detail satisfactory to
the Agent; and
(s) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding any Property or the business, assets, liabilities,
financial condition, results of operations or business prospects of the Borrower
or any of its Subsidiaries as the Agent or any Lender may reasonably request.
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ARTICLE X. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.7., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.7., the Borrower shall comply with
the following covenants:
SECTION 10.1. FINANCIAL COVENANTS.
(a) MINIMUM TANGIBLE NET WORTH. The Borrower shall not permit its Tangible
Net Worth determined on a consolidated basis at the end of any fiscal quarter to
be less than an amount equal to the greater of (i)(A) $577,362,000 plus (B) 80%
of the Net Proceeds of all Equity Issuances effected at any time after the
Agreement Date by the Borrower or any of its Subsidiaries to any Person other
than the Borrower or any of its Subsidiaries plus (C) 80% of the market value
(at the time of issuance) of any shares or partnership units issued at any time
after the Agreement Date in exchange for any property contributed to the
Borrower or any of its Subsidiaries by any Person other than the Borrower or any
of its Subsidiaries minus (D) the aggregate amount paid by the Borrower to
purchase outstanding shares of its common stock (to the extent such payments are
permitted by Section 10.1.(j)) or (ii) $500,000,000.
(b) RATIO OF TOTAL LIABILITIES TO GROSS ASSET VALUE. The Borrower shall not
permit the ratio of (i) Total Liabilities of the Borrower and its Subsidiaries
determined on a consolidated basis to (ii) Gross Asset Value of the Borrower and
its Subsidiaries determined on a consolidated basis to exceed .50 to 1.00 at any
time.
(c) RATIO OF SECURED INDEBTEDNESS TO GROSS ASSET VALUE. The Borrower shall
not permit the ratio of (i) Secured Indebtedness of the Borrower and its
Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value of the
Borrower and its Subsidiaries determined on a consolidated basis to exceed 0.25
to 1.00 at any time.
(d) RATIO OF EBITDA TO INTEREST EXPENSE. The Borrower shall not permit, for
any fiscal quarter, the ratio of (i) EBITDA of the Borrower and its Subsidiaries
determined on a consolidated basis for such fiscal quarter to (ii) Interest
Expense of the Borrower and its Subsidiaries determined on a consolidated basis
for such fiscal quarter, to be less than 2.00 to 1.00 at the end of such fiscal
quarter.
(e) RATIO OF EBITDA TO FIXED CHARGES. The Borrower shall not permit, for
any fiscal quarter, the ratio of (i) EBITDA of the Borrower and its Subsidiaries
determined on a consolidated basis for such fiscal quarter to (ii) Fixed Charges
of the Borrower and its Subsidiaries determined on a consolidated basis for such
fiscal quarter, to be less than 1.75 to 1.00 at the end of such fiscal quarter.
(f) RATIO OF UNENCUMBERED NET OPERATING INCOME TO UNSECURED INTEREST
EXPENSE. The Borrower shall not permit, for any fiscal quarter, the ratio of (i)
Unencumbered NOI for such fiscal quarter to (ii) Interest Expense on Unsecured
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated
basis for such fiscal quarter to be less than 2.00 to 1.00 for such fiscal
quarter.
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(g) PERMITTED INVESTMENTS. The Borrower shall not, and shall not permit any
Loan Party or other Subsidiary to, make an Investment in or otherwise own the
following items that would cause the aggregate value of such holdings of such
Persons to exceed the following percentages of the Gross Asset Value:
(i) assets, (excluding (w) Properties which are retail properties
leased to third party tenants on a net lease basis, (x) equity
interests in Subsidiaries, (y) cash and (z) any assets of the types
described in items (ii) through (vi) below), such that the portion of
the total Gross Asset Value associated with such assets exceeds 10% of
Gross Asset Value;
(ii) unimproved real estate, (which shall not include (x) any
Development Property or (y) unimproved real estate acquired less than
12 months previously and with respect to which a Development Property
is planned within 12 months of its acquisition) such that the
aggregate book value of all such unimproved real estate exceeds 5% of
the Gross Asset Value;
(iii) Common stock, Preferred Stock, other capital stock, beneficial
interest in trust, membership interest in limited liability companies
and other equity interests in Persons (other than consolidated
Subsidiaries and Unconsolidated Affiliates), such that the aggregate
value of such interests calculated on the basis of the lower of cost
or market, exceeds 10% of the Gross Asset Value;
(iv) Mortgages in favor of the Borrower or any other Loan Party, such
that the aggregate book value of Indebtedness secured by such
Mortgages exceeds 10% of the Gross Asset Value;
(v) Investments in Unconsolidated Affiliates, such that the aggregate
value of such Investments in Unconsolidated Affiliates, exceeds 10% of
the Gross Asset Value. For purposes of this clause (iv), the "value"
of any such Investment in an Unconsolidated Affiliate shall equal (1)
with respect to any of such Unconsolidated Affiliate's Properties
under construction, the Borrower's Ownership Share of the book value
of construction in process for such Property as of the date of
determination and (2) with respect to any of such Unconsolidated
Affiliate's Properties which have been completed, the Borrower's
Ownership Share of Capitalized EBITDA of such Unconsolidated Affiliate
attributable to such Properties; and
(vi) the aggregate amount of the Total Budgeted Costs for Development
Properties in which the Borrower either has a direct or indirect
ownership interest shall not exceed 10% of the Gross Asset Value. If a
Development Property is owned by an Unconsolidated Affiliate of the
Borrower, or any other Subsidiary, then the greater of (1) the product
of (A) the Borrower's or such Subsidiary's Ownership Share in such
Unconsolidated Affiliate and (B) the amount of the Total Budgeted
Costs for such Development Property or (2) the recourse obligations of
the Borrower or such Subsidiary relating to the Indebtedness of such
Unconsolidated Affiliate, shall be used in calculating such investment
limitation.
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In addition to the foregoing limitations, the aggregate value of the Investments
subject to the limitations in the preceding clauses (i) through (v) shall not
exceed 25% of the Gross Asset Value.
(h) INDUSTRY CONCENTRATION.
(i) The Borrower shall not, and shall not permit any Loan Party or
other Subsidiary to, permit the aggregate Annualized Base Rents of all
tenants of the Borrower, such Loan Party and such Subsidiary
conducting business in the "Child Day Care Services" industry (as
determined by reference to the SIC Code) to exceed 30% of the Total
Annualized Base Rents of all tenants of the Borrower, the Loan Parties
and all other Subsidiaries (measured quarterly).
(ii) Except as set forth in the immediately preceding clause (i), the
Borrower shall not, and shall not permit any Loan Party or other
Subsidiary to, permit the aggregate Annualized Base Rents of all
tenants of the Borrower, such Loan Party and such Subsidiary
conducting business in any other single "Industry" (as determined by
reference to the SIC Code applicable to each such tenant) to exceed
25% of the Total Annualized Base Rents of all tenants of the Borrower,
the Loan Parties and all other Subsidiaries (measured quarterly).
(i) TENANT CONCENTRATION.
(i) The Borrower shall not, and shall not permit any Loan Party or
other Subsidiary to, permit the aggregate Annualized Base Rents of
Children's World Learning Centers and its Affiliates to exceed 20% of
the Total Annualized Base Rents of all tenants of the Borrower, the
Loan Parties and all other Subsidiaries (measured quarterly).
(ii) Except as set forth in the immediately preceding clause (i), the
Borrower shall not, and shall not permit any Loan Party or other
Subsidiary to, permit the aggregate Annualized Base Rents of any other
single tenant (together with its Affiliates) of the Borrower, such
Loan Party and such Subsidiary to exceed 15% of the Total Annualized
Base Rents of the Borrower, the Loan Parties and all other
Subsidiaries (measured quarterly).
(j) DIVIDENDS AND OTHER RESTRICTED PAYMENTS. If no Event of Default exists,
the Borrower shall not declare or make, or incur any liability to make, any
Restricted Payments other than (i) cash distributions to its preferred and
common shareholders and (ii) payments made to purchase outstanding shares of the
preferred and common stock of the Borrower, which distributions and payments in
the aggregate shall not exceed 95% of Funds From Operations as of the end of
each fiscal quarter for the four fiscal quarter period then ending. If a Default
or an Event of Default under Section 11.1.(a), (e) or (f) shall exist neither
the Borrower nor any Subsidiary (other than Wholly Owned Subsidiaries) shall
directly or indirectly declare or make, or incur any liability to make, any
Restricted Payments. If any other Event of Default exists, neither the Borrower
nor any Subsidiary (other than Wholly Owned Subsidiaries) shall directly or
indirectly declare or make, or incur any liability to make, any Restricted
Payments except that the Borrower may make cash distributions to its
shareholders in the minimum amount necessary to maintain compliance with Section
8.12.
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SECTION 10.2. NEGATIVE PLEDGE.
The Borrower shall not, and shall not permit any other Loan Party or any
other Subsidiary to, (a) create, assume, incur or permit or suffer to exist any
Lien upon any of the Unencumbered Pool Properties or any direct or indirect
ownership interest of the Borrower in any Subsidiary owning any Unencumbered
Pool Property, other than Permitted Liens, or (b) permit any Unencumbered Pool
Property, or any direct or indirect ownership interest of the Borrower in any
Subsidiary owning any Unencumbered Pool Property, to become subject to a
Negative Pledge, in each case if there then exists a Default or an Event of
Default or if such event causes a Borrowing Base overadvance as contemplated by
Section 2.7.(b)(ii).
SECTION 10.3. RESTRICTIONS ON INTERCOMPANY TRANSFERS.
The Borrower shall not, and shall not permit any other Loan Party or any
other Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary to: (i) pay dividends or make any other distribution on any of
such Subsidiary's capital stock or other equity interests owned by the Borrower
or any other Subsidiary; (ii) pay any Indebtedness owed to the Borrower or any
other Subsidiary; (iii) make loans or advances to the Borrower or any other
Subsidiary; or (iv) transfer any of its property or assets to the Borrower or
any other Subsidiary.
SECTION 10.4. MERGER, CONSOLIDATION, SALES OF ASSETS AND OTHER ARRANGEMENTS.
The Borrower shall not, and shall not permit any other Loan Party or any
other Subsidiary to, (a) enter into any transaction of merger or consolidation;
(b) liquidate, windup or dissolve itself (or suffer any liquidation or
dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or any substantial part
of its business or assets, or the capital stock of or other Equity Interests in
any of its Subsidiaries, whether now owned or hereafter acquired; or (d) acquire
the assets in the amount of the Substantial Amount of, or make an Investment in
the amount of the Substantial Amount in, any other Person; provided, however,
that:
(i) any Subsidiary may merge with a Loan Party so long as such other
Loan Party is the survivor;
(ii) any Subsidiary may sell, transfer or dispose of its assets to a
Loan Party;
(iii) a Loan Party (other than the Borrower or any Loan Party which
owns a Unencumbered Pool Property) and any Subsidiary that is not (and
is not required to be) a Loan Party may convey, sell, transfer or
otherwise dispose of, in one transaction or a series of transactions,
all or any substantial part of its business or assets, or the capital
stock of or other Equity Interests in any of its Subsidiaries, and
immediately thereafter liquidate, provided that immediately prior to
any such conveyance, sale, transfer, disposition or liquidation and
immediately thereafter and after giving effect thereto, no Default or
Event of Default is or would be in existence;
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(iv) any Loan Party and any other Subsidiary may, directly or
indirectly, (A) acquire (whether by purchase, acquisition of Equity
Interests of a Person, or as a result of a merger or consolidation)
assets in the amount of the Substantial Amount of, or make an
Investment in the amount of the Substantial Amount in, any other
Person and (B) sell, lease or otherwise transfer, whether by one or a
series of transactions, assets in the amount of the Substantial Amount
(including capital stock or other securities of Subsidiaries) to any
other Person, so long as, in each case, (1) the Borrower shall have
given the Agent and the Lenders at least 30 days prior written notice
of the completion of such consolidation, merger, acquisition,
Investment, sale, lease or other transfer; (2) immediately prior
thereto, and immediately thereafter and after giving effect thereto,
no Default or Event of Default is or would be in existence; (3) in the
case of a consolidation or merger involving the Borrower or a Loan
Party which owns a Unencumbered Pool Property, such Person shall be
the survivor thereof and (4) at the time the Borrower gives notice
pursuant to clause (1) of this subsection, the Borrower shall have
delivered to the Agent and the Lenders a Compliance Certificate,
calculated on a pro forma basis, evidencing the continued compliance
by the Loan Parties with the terms and conditions of this Agreement
and the other Loan Documents, including without limitation, the
financial covenants contained in Section 10.1., after giving effect to
such consolidation, merger, acquisition, Investment, sale, lease or
other transfer; and
(v) the Borrower, the Loan Parties and the other Subsidiaries may
lease and sublease their respective assets, as lessor or sublessor (as
the case may be) in the ordinary course of business, and may purchase
and sell their respective assets in the ordinary course of their
business.
Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback
transactions or other transaction by which such Person shall remain liable as
lessee (or the economic equivalent thereof) of any real or personal property
that it has sold or leased to another Person where the transaction is in an
amount which exceeds $10,000,000.
SECTION 10.5. PLANS.
The Borrower shall not, and shall not permit any Subsidiary to, 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.
SECTION 10.6. FISCAL YEAR.
The Borrower shall not, and shall not permit any Loan Party or other
Subsidiary to, change its fiscal year from that in effect as of the Agreement
Date.
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SECTION 10.7. MODIFICATIONS OF ORGANIZATIONAL DOCUMENTS.
The Borrower shall not enter into, and shall not permit any Subsidiary or
other Loan Party to enter into any amendment, supplement, restatement or other
modification of its certificate or articles of incorporation, articles of
organization, certificate of limited partnership, declaration of trust or other
comparable organizational instrument (if any) that could reasonably be expected
to have a Material Adverse Effect.
SECTION 10.8. MODIFICATIONS TO MATERIAL CONTRACTS.
The Borrower shall not enter into, or permit any Subsidiary or other Loan
Party to enter into, any amendment or modification to any Material Contract
which could reasonably be expected to have a Material Adverse Effect or default
in the performance of any obligations of the Borrower or any Subsidiary in any
Material Contract or permit any Material Contract to be canceled or terminated
prior to its stated maturity.
SECTION 10.9. TRANSACTIONS WITH AFFILIATES.
The Borrower shall not permit to exist or enter into, and will not permit
any Loan Party or other Subsidiary to 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 of the Borrower or with any
director or senior officer of any Loan Party, except (a) as set forth on
Schedule 7.1.(r) or (b) transactions that are (i) in an amount less than
$2,000,000 and are approved by a majority of the members of the Borrower's board
of directors that are not party to the applicable transaction (the
"Disinterested Directors") or (ii) in the ordinary course of business and
pursuant to the reasonable requirements of the business of the Borrower or any
of its Subsidiaries 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, as
reasonably determined in good faith by the Disinterested Directors.
Notwithstanding the foregoing, no payments may be made with respect to any items
set forth on such Schedule upon the occurrence and during the continuation of a
Default or Event of Default.
SECTION 10.10. LIMITATIONS ON NON-GUARANTOR SUBSIDIARIES.
The Borrower shall not, and shall not permit any Loan Party or other
Subsidiary to, with respect to any Subsidiary (including a Taxable REIT
Subsidiary) that does not execute a Guaranty pursuant to Section 8.14., (a)
permit such Subsidiary to incur any Indebtedness other than Non Recourse
Indebtedness and (b) make an Investment in, (i) in the case of such Subsidiaries
that are Taxable REIT Subsidiaries (other than Crest Net Lease, Inc.), in an
aggregate amount in excess of $50,000,000; provided, however, that the Borrower
may make or permit to exist an Investment in Crest Net Lease, Inc. of up to, but
not exceeding $75,000,000 and (ii) in the case of such Subsidiaries that are not
Taxable REIT Subsidiaries, in an aggregate amount in excess of $50,000,000.
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ARTICLE XI. DEFAULT
SECTION 11.1. 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. The Borrower shall, under this Agreement or any
other Loan Document, fail to pay (whether upon demand, at maturity, by reason of
acceleration or otherwise), (i) when due, the principal on any of the Loans or
(ii) within five days of the date the Borrower or any other Loan Party has
received notice of such failure from the Agent, any interest or fees on any of
the Loans or 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 Loan Party under any Loan Document
to which it is a party.
(b) DEFAULT IN PERFORMANCE.
(i) Any Loan Party shall fail to perform or observe any term,
covenant, condition or agreement on its part to be performed or
observed and contained in Sections 9.4.(m) or Article X. (other than
Section 10.1., 10.9. and 10.10.); or
(ii) Any 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 such failure shall continue for a period of 30
calendar days after the earlier of (x) the date upon which any Loan
Party obtains knowledge of such failure or (y) the date upon which the
Borrower has received written notice of such failure from the Agent.
(c) 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 by, or at the direction of, any
Loan Party to the Agent or any Lender, shall at any time prove to have been
incorrect or misleading in any material respect when furnished or made or deemed
made.
(d) INDEBTEDNESS CROSS-DEFAULT.
(i) Any Loan Party shall fail to pay when due and payable the
principal of, or interest on, any Indebtedness (other than the Loans)
having an aggregate outstanding principal amount of $10,000,000 or
more ("Material Indebtedness") and such failure shall continue beyond
any applicable cure periods; or
(ii) (x) The maturity of any Material 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 Material Indebtedness or (y) any Material
Indebtedness shall have been required to be prepaid or repurchased
prior to the stated maturity thereof.
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(e) VOLUNTARY BANKRUPTCY PROCEEDING. The Borrower or any Subsidiary shall:
(i) commence a voluntary case under the Bankruptcy Code of 1978, as amended, 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.
(f) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding shall be
commenced against Borrower or any Subsidiary in any court of competent
jurisdiction seeking: (i) relief under the Bankruptcy Code of 1978, as amended
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
Person, or of all or any substantial part of the assets, domestic or foreign, of
such Person, and in the case of either clause (i) or (ii) such case or
proceeding shall continue undismissed or unstayed for a period of 60 consecutive
calendar days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
Bankruptcy Code or such other federal bankruptcy laws) shall be entered.
(g) REVOCATION OF LOAN DOCUMENTS. Any Loan Party shall (or shall attempt
to) disavow, revoke or 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 any
Loan Document.
(h) JUDGMENT. A judgment or order for the payment of money shall be entered
against the Borrower or any Subsidiary, by any court or other tribunal and (i)
such judgment or order shall continue for a period of 60 days without being paid
stayed or dismissed through appropriate appellate proceedings and (ii) either
(A) the amount for which insurance has not been acknowledged in writing by the
applicable insurance carrier (or the amount as to which the insurer has denied
liability) exceeds, individually or together with all other such judgments or
orders entered against the Borrower and all Subsidiaries, $10,000,000 or (B)
such judgment or order could reasonably be expected to have a Material Adverse
Effect.
(i) ATTACHMENT. A warrant, writ of attachment, execution or similar process
shall be issued against any property of the Borrower or any Subsidiary, which
exceeds, individually or together with all other such warrants, writs,
executions and processes, $10,000,000 in amount and such warrant, writ,
execution or process shall not be paid, discharged, vacated, stayed or bonded
for a period of 60 days; provided, however, that if a bond has been issued in
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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 the Borrower or any Subsidiary.
(j) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $10,000,000.
(k) LOAN DOCUMENTS. An Event of Default (as defined therein) shall occur
under any of the other Loan Documents; --------------
(l) CHANGE OF CONTROL/CHANGE IN MANAGEMENT.
(i) Any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
will be deemed to have "beneficial ownership" of all securities that
such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly
or indirectly, of more than 50% of the total voting power of the then
outstanding voting stock of the Borrower;
(ii) During any period of 12 consecutive months ending after the
Agreement Date, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of the Borrower (together
with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Borrower was
approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of
the Borrower then in office; or
(iii) If Xxxxxx Xxxxx and Xxxx Xxxxxx cease for any reason to be
principally involved in the senior management of the Borrower, and the
Borrower shall have failed to replace the resulting vacancies in
senior management with individuals reasonably acceptable to the
Requisite Lenders within a period of nine months.
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(m) DAMAGE; STRIKE; CASUALTY. Any material damage to, or loss, theft or
destruction of, any Property, whether or not insured, or any strike, lockout,
labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than 30 consecutive days beyond the coverage
period of any applicable business interruption insurance, the cessation or
substantial curtailment of revenue producing activities of the Borrower or its
Subsidiaries taken as a whole and only if any such event or circumstance could
reasonably be expected to have a Material Adverse Effect.
(n) MATERIAL ADVERSE EFFECT. There shall occur any event that has or is
reasonably likely to have a Material Adverse Effect.
SECTION 11.2. REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence and during the continuance of an Event of Default the
following provisions shall apply:
(a) ACCELERATION; TERMINATION OF FACILITIES.
(i) AUTOMATIC. Upon the occurrence of an Event of Default specified in
Sections 11.1.(e) or 11.1.(f), (1)(A) the principal of, and all
accrued interest on, the Loans and the Notes at the time outstanding
and (B) 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 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, and (2) the
Commitments and the Swingline Commitment and the obligation of the
Lenders to make Loans hereunder, shall all immediately and
automatically terminate.
(ii) OPTIONAL. If any other Event of Default shall exist, the Agent
may, and at the direction of the Requisite Lenders (which must include
the Lender then acting as Agent) shall: (1) declare (A) the principal
of, and accrued interest on, the Loans and the Notes at the time
outstanding and (B) 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, and
(2) terminate the Commitments and the obligation of the Lenders to
make Loans hereunder. If the Agent has exercised any of the rights
provided under the preceding sentence, the Swingline Lender shall: (x)
declare the principal of, and accrued interest on, the Swingline Loans
and the Swingline Notes at the time outstanding, and all of the other
Obligations owing to the Swingline Lender, 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 and (y) terminate the
Swingline Commitment and the obligation of the Swingline Lender to
make Swingline Loans.
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(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 and its Subsidiaries, 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 Unencumbered Pool Properties and/or the
business operations of the Borrower and its Subsidiaries and to exercise such
power as the court shall confer upon such receiver.
(e) RECISION OF ACCELERATION BY REQUISITE LENDERS. If at any time after
acceleration of the maturity of the Loans and the other Obligations, the
Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by
Applicable Law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Defaults (other than nonpayment of principal of
and accrued interest on the Obligations due and payable solely by virtue of
acceleration) shall become remedied or waived to the satisfaction of the
Requisite Lenders (which must include the Lender then acting as Agent), then by
written notice to the Borrower, the Requisite Lenders (which must include the
Lender then acting as Agent) may elect, in the sole discretion of such Requisite
Lenders, to rescind and annul the acceleration and its consequences. The
provisions of the preceding sentence are intended merely to bind all of the
Lenders to a decision which may be made at the election of the Requisite
Lenders, and are not intended to benefit the Borrower and do not give the
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are satisfied.
SECTION 11.3. REMEDIES UPON DEFAULT.
Upon the occurrence of a Default specified in Sections 11.1.(e) or
11.1.(f), the Commitments shall immediately and automatically terminate.
SECTION 11.4. MARSHALING; PAYMENTS SET ASIDE.
Neither the Agent nor any Lender shall be under any obligation to marshal
any assets in favor of any Loan Party or any other party or against or in
payment of any or all of the Obligations. To the extent that any Loan Party
makes a payment or payments to the Agent and/or any Lender, or the Agent and/or
any Lender enforce their security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligations or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
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SECTION 11.5. ALLOCATION OF PROCEEDS.
If an Event of Default exists 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 and the Lenders in respect of Fees and
expenses due under Section 13.2.;
(b) payments of interest on Swingline Loans;
(c) payments of interest on all other Loans, to be applied for the
ratable benefit of the Lenders, in such order as the Lenders may
determine in their sole discretion;
(d) payment of principal on Swingline Loans;
(e) payments of principal of all other Loans, to be applied for the
ratable benefit of the Lenders, in such order as the Lenders may
determine in their sole discretion;
(f) amounts due to the Agent and the Lenders pursuant to Sections
12.7. and 13.10.;
(g) payments of all other amounts due under any of the Loan Documents,
if any, to be applied for the ratable benefit of the Lenders; and
(h) any amount remaining after application as provided above, shall be
paid to the Borrower or whomever else may be legally entitled thereto.
SECTION 11.6. 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 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.
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SECTION 11.7. 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 XII. THE AGENT
SECTION 12.1. APPOINTMENT AND AUTHORIZATION.
Each Lender hereby irrevocably 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 or to impose
on the Agent duties or obligations other than those expressly provided for
herein. Without limiting the generality of the foregoing, the use of the terms
"Agent", "Agent", "agent" and similar terms in the Loan Documents with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any Applicable Law.
Instead, use of such terms is merely a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties. The Agent shall deliver to each Lender, promptly upon
receipt thereof by the Agent, copies of each of the financial statements,
certificates, notices and other documents delivered to the Agent pursuant to
Article IX. The Agent will also furnish to any Lender, upon the request of such
Lender, a copy (or, where appropriate, an original) of any document, instrument,
agreement, certificate or notice furnished to the Agent by the Borrower, any
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
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 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 directed the Agent
otherwise. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Agent as a result of the Agent acting or
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of the Requisite Lenders, or where
applicable, all the Lenders.
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SECTION 12.2. 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 not taken by it
under or in connection with this Agreement or any other Loan Document, except
for its or their own gross negligence or willful misconduct in connection with
its duties expressly set forth herein or therein. Without limiting the
generality of the foregoing, the Agent: may consult with legal counsel
(including its own counsel or counsel for the Borrower or any other 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. Neither the
Agent nor any of its directors, officers, agents, employees or counsel: (a)
makes any warranty or representation to any Lender or any other Person and shall
be responsible to any Lender or any other Person for any statement, warranty or
representation made or deemed made by the Borrower, any other Loan Party or any
other Person in or in connection with this Agreement or any other Loan Document;
(b) shall have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions 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; (c)
shall 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; (d) shall
have any liability in respect of any recitals, statements, certifications,
representations or warranties contained in any of the Loan Documents or any
other document, instrument, agreement, certificate or statement delivered in
connection therewith; and (e) shall incur any 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, telecopy
or electronic mail) believed by it to be genuine and signed, sent or given by
the proper party or parties. The Agent may execute any of its duties under the
Loan Documents by or through agents, employees or attorneys-in-fact and shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
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SECTION 12.3. 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 12.4. XXXXX FARGO AS LENDER.
Xxxxx Fargo, 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 Xxxxx Fargo in each case in its
individual capacity. Xxxxx Fargo 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, Xxxxx Fargo
or its affiliates may receive information regarding the Borrower, other Loan
Parties, other Subsidiaries 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 12.5. 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.
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
reasonable written explanation of the reasons behind such objection) within 10
Business Days (or such lesser period as may be specifically required under the
express terms of the Loan Documents) of receipt of such communication, such
Lender shall be deemed to have conclusively approved of or consented to such
recommendation or determination.
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SECTION 12.6. 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 warranties to such Lender and
that no act by the Agent hereafter taken, including any review of the affairs of
the Borrower, any other Loan Party or any other Subsidiary or Affiliate, shall
be deemed to constitute any such representation or warranty by the Agent to any
Lender. Each Lender acknowledges that it has, independently and without reliance
upon the Agent, any other Lender or counsel to the Agent, or any of their
respective officers, directors, employees, agents or counsel, and based on the
financial statements of the Borrower, the other Loan Parties, the other
Subsidiaries and other Affiliates, and inquiries of such Persons, its
independent due diligence of the business and affairs of the Borrower, the other
Loan Parties, the other Subsidiaries 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, made its own credit and legal analysis and decision to enter
into this Agreement and the transactions contemplated hereby. 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. The Agent
shall not be required to keep itself informed as to the performance or
observance by the Borrower or any other Loan Party of the Loan Documents or any
other document referred to or provided for therein or to inspect the properties
or books of, or make any other investigation of, the Borrower, any other Loan
Party or any other Subsidiary. 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 12.7. INDEMNIFICATION OF AGENT.
Regardless of whether the transactions contemplated by this Agreement and
the other Loan Documents are consummated, 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 Pro Rata Share, 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 provided, however, that no
action taken in accordance with the directions of the Requisite Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limiting the generality of the foregoing, 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
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ratable share of any out-of-pocket expenses (including the reasonable fees and
expenses of the counsel to the Agent) incurred by the Agent in connection with
the preparation, negotiation, execution, administration, or enforcement (whether
through negotiations, legal proceedings, or otherwise) 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 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 12.8. 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. The Agent may be
removed as Agent under the Loan Documents for gross negligence or willful
misconduct upon 30-day's prior written notice by all Lenders (other than the
Lender then acting as Agent) and the Borrower. Upon any such resignation or
removal, the Requisite Lenders shall have the right to appoint a successor Agent
which appointment shall, provided no Default or 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 any of 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 or the Lenders'
removal of the resigning or removed Agent, then the resigning or removed 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 an
Eligible Assignee. The current Agent shall continue to act as Agent hereunder
until the earlier of (a) 30 days after the then current Agent's resignation or
removal or (b) the date on which a successor Agent is appointed by the Requisite
Lenders. 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 current Agent,
and the current Agent shall be discharged from its duties and obligations under
the Loan Documents. After any Agent's resignation or removal hereunder as Agent,
the provisions of this Article XII. 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. Notwithstanding anything contained herein to the contrary, the Agent
may assign its rights and duties under the Loan Documents to any of its
affiliates by giving the Borrower and each Lender prior written notice provided,
however, that regardless of such assignment by the Agent, the Agent shall be and
remain obligated with respect to this Agreement and the other Loan Documents for
all obligations of the "Agent" hereunder and thereunder.
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SECTION 12.9. TITLED AGENTS.
Each Syndication Agent and the Documentation Agent (each a "Titled Agent")
in each such respective capacity, assumes no responsibility or obligation
hereunder, including, without limitation, for servicing, enforcement or
collection of any of the Loans, nor any duties as an agent hereunder for the
Lenders. The titles given to the Titled Agents are solely honorific and imply no
fiduciary responsibility on the part of the Titled Agents to the Agent, any
Lender, the Borrower or any other Loan Party and the use of such titles does not
impose on the Titled Agents any duties or obligations greater than those of any
other Lender or entitle the Titled Agents to any rights other than those to
which any other Lender is entitled.
ARTICLE XIII. MISCELLANEOUS
SECTION 13.1. 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:
Realty Income Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Legal Department
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Agent or 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 Assumption.
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; provided, a Lender shall only be required to give notice of any such
other address to the Agent and the Borrower. All such notices and other
communications shall be effective (i) if mailed, 72 hours after such notice or
communication is deposited in the mail with appropriate first class postage,
addressed appropriately in accordance with this Section; (ii) if telecopied,
when transmitted; or (iii) if hand delivered, 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.
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SECTION 13.2. EXPENSES.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and reasonable 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 expense and reasonable travel expenses related to closing), and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of counsel to the Agent and all costs and expenses of the
Agent in connection with the review of Properties for inclusion in calculations
of the Borrowing Base and the Agent's other activities under Article IV. and the
reasonable fees and disbursements of counsel to the Agent relating to all such
activities, (b) to pay or reimburse the Agent and the Lenders for all their
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, and (c) to
the extent not already covered by any of the preceding subsections, to pay the
fees and disbursements of counsel to the Agent and any Lender incurred in
connection with the representation of the Agent or such Lender in any matter
relating to or arising out of any bankruptcy or other proceeding of the type
described in Sections 11.1.(e). or 11.1.(f)., including, without limitation (i)
any motion for relief from any stay or similar order, (ii) the negotiation,
preparation, execution and delivery of any document relating to the Obligations
and (iii) the negotiation and preparation of any debtor-in-possession financing
or any plan of reorganization of the Borrower or any other Loan Party, whether
proposed by the Borrower, such Loan Party, the Lenders or any other Person, and
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.
SECTION 13.3. STAMP, INTANGIBLE AND RECORDING TAXES.
The Borrower will pay any and all stamp, excise, intangible, registration,
recordation and similar taxes, fees or charges and shall indemnify the Agent and
each Lender against any and all liabilities with respect to or resulting from
any delay in the payment or omission to pay any such taxes, fees or charges,
which may be payable or determined to be payable in connection with the
execution, delivery, recording, performance or enforcement of this Agreement,
the Notes and any of the other Loan Documents, the amendment, supplement,
modification or waiver of or consent under this Agreement, the Notes or any of
the other Loan Documents or the perfection of any rights or Liens under this
Agreement, the Notes or any of the other Loan Documents.
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SECTION 13.4. 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 while an Event of Default exists,
without notice to the Borrower or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or a 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 11.2., and although such obligations shall be contingent or unmatured.
SECTION 13.5. 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.
(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT THE
FEDERAL DISTRICT COURT OF THE NORTHERN DISTRICT OF CALIFORNIA OR, AT THE OPTION
OF THE AGENT, ANY STATE COURT LOCATED IN SAN FRANCISCO, CALIFORNIA, 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 AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER AND EACH
OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE BORROWER HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED
THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER PROCESS
OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE BORROWER
AT ITS ADDRESS FOR NOTICES PROVIDED FOR HEREIN. SHOULD THE BORROWER FAIL TO
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APPEAR OR ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN
THIRTY DAYS AFTER THE MAILING THEREOF, THE BORROWER SHALL BE DEEMED IN DEFAULT
AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR
IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. 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.
SECTION 13.6. SUCCESSORS AND ASSIGNS.
(a) GENERALLY. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of is
rights under this Agreement without the prior written consent of all the Lenders
(and any such assignment or transfer to which all of the Lenders have not
consented shall be void).
(b) PARTICIPATIONS. Any Lender may at any time grant to an affiliate of
such Lender, or one or more banks or other financial institutions (each a
"Participant") participating interests in its Commitment or the Obligations
owing to such Lender. Except as otherwise provided in Section 13.4., 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 it 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) increase such Lender's
Commitment, (ii) extend the date fixed for the payment of principal on the Loans
or portions thereof owing to such Lender, or (iii) reduce the rate at which
interest is payable thereon. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given effect for purposes of
this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
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(c) ASSIGNMENTS. Any Lender may with the prior written consent of the Agent
and the Borrower (which consent in each case, shall not be unreasonably
withheld) at any time 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; provided, however, (i) no such consent by the Borrower shall be
required (x) if a Default or Event of Default shall exist or (y) in the case of
an assignment to another Lender or an affiliate of another Lender; (ii) any
partial assignment shall be in an amount at least equal to $10,000,000 and after
giving effect to such assignment the assigning Lender retains a Commitment, or
if the Commitments have been terminated, holds Notes having an aggregate
outstanding principal balance, of at least $10,000,000; (iii) after giving
effect to any such assignment by the Agent, the Agent in its capacity as a
Lender shall retain a Commitment of at least 10% of the Commitments at such
time, or if the Commitments have been terminated, hold Notes having an aggregate
outstanding principal balance of at least 10% of the total principal balance of
the Notes (other than Bid Rate Notes) outstanding at such time; provided,
however, that if the Agent desires to reduce its Commitment below the 10% level
the Agent shall offer to resign as Agent with such resignation only effective
upon the approval of such offer by the Requisite Lenders (other than the Lender
then acting as Agent); and (iv) each such assignment shall be effected by means
of an Assignment and Assumption 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 deemed to be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender with a Commitment as
set forth in such Assignment and Assumption Agreement, and the transferor Lender
shall be released from its obligations hereunder 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 (c), the transferor
Lender, the Agent and the Borrower shall make appropriate arrangement so the 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
$3,000. Anything in this Section to the contrary notwithstanding, no Lender may
assign or participate any interest in any Loan held by it hereunder to the
Borrower, or any of its respective affiliates or Subsidiaries.
(d) DESIGNATED LENDERS. Any Lender (each, a "Designating Lender") may at
any time while the Borrower or the Parent, as the case may be, has been assigned
an Investment Grade Rating from either S&P or Xxxxx'x designate one Designated
Lender to fund Bid Rate Loans on behalf of such Designating Lender subject to
the terms of this subsection (d) and the provisions in the immediately preceding
subsections (b) and (c) shall not apply to such designation. No Lender may
designate more than one Designated Lender. The parties to each such designation
shall execute and deliver to the Agent for its acceptance a Designation
Agreement. Upon such receipt of an appropriately completed Designation Agreement
executed by a Designating Lender and a designee representing that it is a
Designated Lender, the Agent will accept such Designation Agreement and give
prompt notice thereof to the Borrower, whereupon, (i) the Borrower shall execute
and deliver to the Designating Lender a Designated Lender Note payable to the
order of the Designated Lender, (ii) from and after the effective date specified
in the Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Bid Rate Loans on behalf of its Designating
Lender pursuant to Section 2.2. after the Borrower has accepted a Bid Rate Loan
(or portion thereof) of the Designating Lender, and (iii) the Designated Lender
90
shall not be required to make payments with respect to any obligations in this
Agreement except to the extent of excess cash flow of such Designated Lender
which is not otherwise required to repay obligations of such Designated Lender
which are then due and payable; provided, however, that regardless of such
designation and assumption by the Designated Lender, the Designating Lender
shall be and remain obligated to the Borrower, the Agent and the Lenders for
each and every of the obligations of the Designating Lender and its related
Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 12.7. and any sums otherwise
payable to the Borrower by the Designated Lender. Each Designating Lender shall
serve as the Agent of the Designated Lender and shall on behalf of, and to the
exclusion of, the Designated Lender: (i) receive any and all payments made for
the benefit of the Designated Lender and (ii) give and receive all
communications and notices and take all actions hereunder, including, without
limitation, votes, approvals, waivers, consents and amendments under or relating
to this Agreement and the other Loan Documents. Any such notice, communication,
vote, approval, waiver, consent or amendment shall be signed by the Designating
Lender as Agent for the Designated Lender and shall not be signed by the
Designated Lender on its own behalf and shall be binding on the Designated
Lender to the same extent as if signed by the Designated Lender on its own
behalf. The Borrower, the Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No
Designated Lender may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than assignments to the
Designating Lender which originally designated such Designated Lender. The
Borrower, the Lenders and the Agent each hereby agrees that it will not
institute against any Designated Lender or join any other Person in instituting
against any Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, until the later to occur of (x) one year and one day after the
payment in full of the latest maturing commercial paper note issued by such
Designated Lender and (y) the Termination Date. In connection with any such
designation the Designating Lender shall pay to the Agent an administrative fee
for processing such designation in the amount of $2,000.
(e) FEDERAL RESERVE BANK ASSIGNMENTS. In addition to the assignments and
participations permitted under the foregoing provisions of the Section, and
without the need to comply with any of the formal or procedural requirements of
this Section, any Lender may at any time and from time to time, pledge and
assign all or any portion of its rights under all or any of the Loan Documents
to a Federal Reserve Bank; provided that no such pledge of assignment shall
release such Lender from its obligation thereunder. No such pledge or assignment
shall release the assigning Lender from its obligations hereunder.
(f) INFORMATION TO ASSIGNEE, ETC. A Lender may furnish any information
concerning the Borrower, any Subsidiary or any other Loan Party in the
possession of such Lender from time to time to Assignees and Participants
(including prospective Assignees and Participants).
91
SECTION 13.7. AMENDMENTS AND WAIVERS.
(a) GENERALLY. Except as otherwise expressly provided in this Agreement,
(i) any consent or approval required or permitted by this Agreement or in any
Loan Document to be given by the Lenders may be given, (ii) any term of this
Agreement or of any other Loan Document (other than any fee letter solely
between the Borrower and the Agent) may be amended, (iii) the performance or
observance by the Borrower or any other Loan Party of any terms of this
Agreement or such other Loan Document (other than any fee letter solely between
the Borrower and the Agent), and (iv) the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Requisite Lenders (or the Agent at the written direction of the Requisite
Lenders), and, in the case of an amendment to any Loan Document, the written
consent of each Loan Party which is party thereto. Notwithstanding the previous
sentence, the Agent, shall be authorized on behalf of all the Lenders to use its
reasonable discretion, without the necessity of any notice to, or further
consent from, any Lender, to waive the imposition of the late charges provided
in Section 2.8., up to a maximum of 2 times per calendar year.
(b) CERTAIN REQUISITE LENDER CONSENTS. Notwithstanding the foregoing, no
amendment, waiver or consent shall, unless in writing, and signed by the
Requisite Lenders (which must include the Lender then acting as Agent), do any
of the following:
(i) amend Section 10.1. or waive any Default or Event of Default
occurring under Section 11.1.(l); or
(ii) modify the definitions of the terms "Total Liabilities", "Gross
Asset Value" or "Indebtedness" (or the definitions used in such
definition or the percentages or rates used in the calculation
thereof); or
(iii) approve any Unencumbered Pool Property pursuant to Section
4.1.(c); or
(iv) rescind and annul any acceleration as provided in Section
11.2.(e) (including, without limitation, any optional acceleration
declared by the Agent and Requisite Lenders pursuant to Section
11.1.(a)(ii)).
(c) UNANIMOUS CONSENT. Notwithstanding the foregoing, no amendment, waiver
or consent shall, unless in writing, and signed by all of the Lenders (or the
Agent at the written direction of the Lenders), do any of the following:
(i) increase the Commitments of the Lenders (excluding any increase as
a result of an assignment of Commitments permitted under Section
13.6.) or subject the Lenders to any additional obligations except for
any increases contemplated under Section 2.15.;
(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 to the Lenders hereunder;
92
(iv) postpone any date fixed for any payment of principal of, or
interest on, any Loans or for the payment of Fees or any other
Obligations;
(v) change the Pro Rata Shares (excluding any change as a result of an
assignment of Commitments permitted under Section 13.6. or an increase
of Commitments effected pursuant to Section 2.15.);
(vi) amend this Section or amend the definitions of the terms used in
this Agreement or the other Loan Documents insofar as such definitions
affect the substance of this Section;
(vii) modify the definition of the term "Requisite Lenders" or 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;
(viii) release any Guarantor from its obligations under the Guaranty
(except for releases permitted under Sections 8.14.);
(ix) modify the definition of the terms "Maximum Loan Availability" or
"Unencumbered Pool Value" (and the definitions used in such
definitions and the percentages and rates used in the calculation
thereof); or
(x) waive a Default or Event of Default under Section 11.1.(a).
(d) AMENDMENT OF AGENT'S DUTIES, ETC. No amendment, waiver or consent
unless in writing and signed by the Agent, 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. Any amendment, waiver
or consent relating to Section 2.3. or the obligations of the Swingline Lender
under this Agreement or any other Loan Document shall, in addition to the
Lenders required hereinabove to take such action, require the written consent of
the Swingline Lender. 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. 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
other or further notice or demand in similar or other circumstances.
SECTION 13.8. NONLIABILITY OF AGENT AND LENDERS.
The relationship between the Borrower, on the one hand, and the Lenders and
the Agent, on the other hand, 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, the Borrower, any Subsidiary or any other 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.
93
SECTION 13.9. CONFIDENTIALITY.
Except as otherwise provided by Applicable Law, the Agent and each Lender
shall utilize all non-public information obtained pursuant to the requirements
of this Agreement which has been identified as confidential or proprietary by
the Borrower in accordance with its customary procedure for handling
confidential information of this nature and in accordance with safe and sound
banking practices but in any event may make disclosure: (a) to any of their
respective affiliates (provided any such affiliate shall agree to keep such
information confidential in accordance with the terms of this Section); (b) as
reasonably requested by any bona fide Assignee, Participant or other transferee
in connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree 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) if an Event of Default exists, to any other Person, in
connection with the exercise by the Agent or the Lenders of rights hereunder or
under any of the other Loan Documents; and (f) 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 13.10 INDEMNIFICATION.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, any affiliate of the Agent and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses
of every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the 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 3.11. or 5.1. or expressly excluded
from the coverage of such Sections) 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 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 and the Subsidiaries; (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 and the Subsidiaries or their 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; provided, however, that the Borrower shall not be
94
obligated to indemnify any Indemnified Party for any acts or omissions of such
Indemnified Party in connection with matters described in this clause (viii)
that constitute gross negligence or willful misconduct of such Indemnified
Party; or (ix) any violation or non-compliance by the Borrower or any Subsidiary
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.
(b) The Borrower's indemnification obligations under this Section 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 connection, this indemnification shall cover all costs and
expenses 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 or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(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 costs and expenses 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 Borrower hereunder to indemnify and hold harmless
each such Indemnified Party; provided, however, that (i) if 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).
95
(f) If and to the extent that the obligations of the Borrower hereunder 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 hereunder 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 of the
other obligations set forth in this Agreement or any other Loan Document to
which it is a party.
SECTION 13.11. TERMINATION; SURVIVAL.
At such time as (a) all of the Commitments have been terminated, (b) none
of the Lenders is obligated any longer under this Agreement to make any Loans
and (c) 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 3.11., 5.1., 5.4., 12.7., 13.2. and 13.10. and any
other provision of this Agreement and the other Loan Documents, and the
provisions of Section 13.5., 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.
SECTION 13.12. 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 13.13. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
SECTION 13.14. 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.
96
SECTION 13.15. 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 does not control
such Loan Parties.
SECTION 13.16. INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given in any jurisdiction independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
SECTION 13.17. LIMITATION OF LIABILITY.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender shall have any liability
with respect to, and the Borrower 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 the Borrower 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. The Borrower hereby waives, releases, and agrees
not to xxx the Agent or any Lender or any of the Agent's or any Lender'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 13.18. 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 13.19. 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.
97
[Signatures on Following Pages]
98
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be executed by their authorized officers all as of the day and year first above
written.
BORROWER:
Realty Income Corporation
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
[Signatures Continued on Next Page]
99
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Agent, as a Lender and as Swingline Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMITMENT AMOUNT:
$70,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[Signatures Continued on Next Page]
100
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMITMENT AMOUNT:
$30,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
000 Xxxxx Xxxxxxx Xxxxxx
XX 0000
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
101
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
BANK OF AMERICA, N.A., as Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMITMENT AMOUNT:
$30,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
102
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
THE BANK OF NEW YORK, as Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
COMMITMENT AMOUNT:
$30,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES RELATING TO FUNDING:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
ADDRESS FOR NOTICES RELATING TO ALL OTHER
MATTERS:
00000 Xxxxxxxx Xxxx, Xxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
103
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
AMSOUTH BANK, as Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMITMENT AMOUNT:
$20,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
0000 0xx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
104
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
U.S. BANK NATIONAL ASSOCIATION, as Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMITMENT AMOUNT:
$20,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES RELATING TO FUNDING:
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
ADDRESS FOR NOTICES RELATING TO ALL OTHER
MATTERS:
U.S. Bank Commercial Real Estate / San Diego
LM-CA-LJS2
0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
105
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
BANK OF MONTREAL, as Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMITMENT AMOUNT:
$20,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
000 Xxxxx XxXxxxx, 00X
Xxxxxxx, XX 00000
Attn: Xxxxx Xxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
106
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
BANK ONE, NA, as Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMITMENT AMOUNT:
$15,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
1 Bank One Plaza, IL 1-0318
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
107
SIGNATURE PAGE TO CREDIT AGREEMENT DATED AS OF
OCTOBER 28, 2002 WITH REALTY INCOME CORPORATION
CHEVY CHASE BANK, FSB, as Lender
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMITMENT AMOUNT:
$15,000,000
LENDING OFFICE (ALL TYPES OF LOANS) AND
ADDRESS FOR NOTICES:
00000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
108
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of , 200 (the
--------- -
"Agreement") by and among (the "Assignor"),
----------------------------
(the "Assignee"), REALTY INCOME CORPORATION (the
--------------------------
"Borrower"), and Xxxxx Fargo BANK, NATIONAL ASSOCIATION, as Agent (the "Agent").
WHEREAS, the Assignor is a Lender under that certain Credit Agreement dated
as of October 28, 2002 (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), by and among the Borrower, the
financial institutions party thereto and their assignees under Section 13.6
thereof, the Agent, and the other parties thereto;
WHEREAS, the Assignor desires to assign to the Assignee all or a portion of
the Assignor's Commitment under the Credit Agreement, all on the terms and
conditions set forth herein; and
WHEREAS, the Borrower and the Agent consent to such assignment on the terms
and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. ASSIGNMENT.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by the Assignee to the Assignor pursuant
to Section 2 of this Agreement, effective as of , 200 (the
-------------- -
"Assignment Date") the Assignor hereby irrevocably sells, transfers and assigns
to the Assignee, without recourse, a $ interest (such interest being
------------
the "Assigned Commitment") in and to the Assignor's Commitment and all of the
other rights and obligations of the Assignor under the Credit Agreement, such
Assignor's Revolving Note and the other Loan Documents representing % in
------
respect of the aggregate amount of all Lenders' Commitments, including without
limitation, a principal amount of outstanding Revolving Loans equal to
$ and all voting rights of the Assignor associated with the Assigned
--------
Commitment, all rights to receive interest on such amount of Revolving Loans and
all Fees with respect to the Assigned Commitment and other rights of the
Assignor under the Credit Agreement and the other Loan Documents with respect to
the Assigned Commitment, all as if the Assignee were an original Lender under
and signatory to the Credit Agreement having a Commitment equal to the amount of
the Assigned Commitment. The Assignee, subject to the terms and conditions
hereof, hereby assumes all obligations of the Assignor with respect to the
Assigned Commitment as if the Assignee were an original Lender under and
signatory to the Credit Agreement having a Commitment equal to the Assigned
Commitment, which obligations shall include, but shall not be limited to, the
obligation of the Assignor to make Revolving Loans to the Borrower with respect
to the Assigned Commitment and the obligation to indemnify the Agent as provided
in the Credit Agreement (the foregoing obligations, together with all other
similar obligations more particularly set forth in the Credit Agreement and the
other Loan Documents, shall be referred to hereinafter, collectively, as the
"Assigned Obligations"). [In addition, the Assignor hereby irrevocably sells,
transfers and assigns to the Assignee, without recourse, a $
---------------
interest in and to the Assignor's Bid Rate Note, including without limitation, a
principal amount of outstanding Bid Rate Loans owing to the Assignor in an
aggregate amount equal to $ , all rights to receive interest on such
-----------
amount of Bid Rate Loans and other rights of the Assignor under the Credit
Agreement and the other Loan Documents with respect to such Bid Rate Loans, all
as if the Assignee had originally made such amount of Bid Rate Loans to the
Borrower. The obligations assigned pursuant to the immediately preceding
sentence shall constitute Assigned Obligations hereunder.] The Assignor shall
have no further duties or obligations with respect to, and shall have no further
interest in, the Assigned Obligations or the Assigned Commitment from and after
the Assignment Date.
(b) The assignment by the Assignor to the Assignee hereunder is without
recourse to the Assignor. The Assignee makes and confirms to the Agent, the
Assignor, and the other Lenders all of the representations, warranties and
covenants of a Lender under Article XII of the Credit Agreement. Not in
limitation of the foregoing, the Assignee acknowledges and agrees that, except
as set forth in Section 4. below, the Assignor is making no representations or
warranties with respect to, and the Assignee hereby releases and discharges the
Assignor for any responsibility or liability for: (i) the present or future
solvency or financial condition of the Borrower, any other Loan Party or any
other Subsidiary, (ii) any representations, warranties, statements or
information made or furnished by the Borrower, any other Loan Party or any other
Subsidiary in connection with the Credit Agreement or otherwise, (iii) the
validity, efficacy, sufficiency, or enforceability of the Credit Agreement, any
Loan Document or any other document or instrument executed in connection
therewith, or the collectibility of the Assigned Obligations, (iv) the
perfection, priority or validity of any Lien with respect to any collateral at
any time securing the Obligations or the Assigned Obligations under the Notes or
the Credit Agreement and (v) the performance or failure to perform by the
Borrower or any other Loan Party of any obligation under the Credit Agreement or
any other Loan Document. Further, the Assignee acknowledges that it has,
independently and without reliance upon the Agent, or on any affiliate or
subsidiary thereof, or any other Lender and based on the financial statements
supplied by the Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to become a Lender
under the Credit Agreement. The Assignee also acknowledges that it will,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement or any Note or pursuant to any other obligation. The Agent
shall have no duty or responsibility whatsoever, either initially or on a
continuing basis, to provide the Assignee with any credit or other information
with respect to the Borrower, any other Loan Party or any other Subsidiary or to
notify the undersigned of any Default or Event of Default except as expressly
provided in the Credit Agreement. The Assignee has not relied on the Agent as to
any legal or factual matter in connection therewith or in connection with the
transactions contemplated thereunder.
Section 2. PAYMENT BY ASSIGNEE. In consideration of the assignment made
pursuant to Section 1. of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, an amount equal to $ representing the
--------
aggregate principal amount outstanding of the Revolving Loans owing to the
Assignor under the Credit Agreement and the other Loan Documents being assigned
hereby. [Further, the Assignee agrees to pay to the Assignor on the Assignment
Date, an amount equal to $ representing the aggregate principal
--------------
amount outstanding of the Bid Rate Loans owing to the Assignor under the Credit
Agreement and the other Loan Documents being assigned hereby.]
Section 3. PAYMENTS BY ASSIGNOR. The Assignor agrees to pay to the Agent on
the Assignment Date the administrative fee payable under Section 13.6(c) of the
Credit Agreement.
Section 4. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. The Assignor hereby
represents and warrants to the Assignee that (a) as of the Assignment Date (i)
the Assignor is a Lender under the Credit Agreement having a Commitment under
the Credit Agreement immediately prior to the Assignment Date, equal to
$ and that the Assignor is not in default of its obligations under
-----------
the Credit Agreement; and (ii) the outstanding balance of Revolving Loans owing
to the Assignor [and the outstanding principal balance of Bid Rate Loans owing
to the Assignor] (without reduction by any assignments thereof which have not
yet become effective) is $ [and $ , respectively]; and (b)
----------- ----------
it is the legal and beneficial owner of the Assigned Commitment which is free
and clear of any adverse claim created by the Assignor.
Section 5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ASSIGNEE. The
Assignee (a) represents and warrants that it is (i) legally authorized to enter
into this Agreement; (ii) an "accredited investor" (as such term is used in
Regulation D of the Securities Act) and (iii) an Eligible Assignee; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant thereto and such other
documents and information (including without limitation the Loan Documents) as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Agreement; (c) appoints and authorizes the Agent to take such action
as contractual representative on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Agent by the terms thereof together
with such powers as are reasonably incidental thereto; (d) agrees that it will
become a party to and shall be bound by the Credit Agreement and the other Loan
Documents to which the other Lenders are a party on the Assignment Date and will
perform in accordance therewith all of the obligations which are required to be
performed by it as a Lender; and (e) is either (i) not organized under the laws
of a jurisdiction outside the United States of America or (ii) has delivered to
the Agent (with an additional copy for the Borrower) such items required under
Section 3.11. of the Credit Agreement to establish that payments to it under the
Credit Agreement and the Notes are (x) not subject to United States Federal
backup withholding tax and (y) not subject to United States Federal withholding
tax under the Code.
Section 6. RECORDING AND ACKNOWLEDGMENT BY THE AGENT. Following the
execution of this Agreement, the Assignor will deliver to the Agent (a) a duly
executed copy of this Agreement for acknowledgment and recording by the Agent
and (b) the Assignor's Revolving Note [and Bid Rate Note]. The Borrower agrees
to exchange such Note[s] for [a] new Note[s] as provided in Section 13.6(c) of
the Credit Agreement. Upon such acknowledgment and recording, from and after the
Assignment Date, the Agent shall make all payments in respect of the interest
assigned hereby (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Assignment Date directly between themselves.
Section 7. ADDRESSES. The Assignee specifies as its address for notices and
its Lending Office for all Loans, the offices set forth below:
--------------------------------------------
--------------------------------------------
Attention:
----------------------------------
Telephone No.:
------------------------------
Telecopy No.:
-------------------------------
Section 8. PAYMENT INSTRUCTIONS. All payments to be made to the Assignee
under this Agreement by the Assignor, and all payments to be made to the
Assignee under the Credit Agreement, shall be made as provided in the Credit
Agreement in accordance with the following instructions:
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
Section 9. EFFECTIVENESS OF ASSIGNMENT. This Agreement, and the assignment
and assumption contemplated herein, shall not be effective until (a) this
Agreement is executed and delivered by each of the Assignor, the Assignee, the
Agent and if required, the Borrower, and (b) the payment to the Assignor of the
amounts owing by the Assignee pursuant to Section 2. hereof and (c) the payment
to the Agent of the amounts owing by the Assignor pursuant to Section 3. hereof.
Upon recording and acknowledgment of this Agreement by the Agent, from and after
the Assignment Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Agreement, have the rights and obligations
of a Lender thereunder and (ii) the Assignor shall, to the extent provided in
this Agreement, relinquish its rights (except as otherwise provided in Section
13.10 of the Credit Agreement) and be released from its obligations under the
Credit Agreement; provided, however, that if the Assignor does not assign its
entire interest under the Loan Documents, it shall remain a Lender entitled to
all of the benefits and subject to all of the obligations thereunder with
respect to its Commitment.
Section 10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 12. HEADINGS. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
Section 13. AMENDMENTS; WAIVERS. This Agreement may not be amended,
changed, waived or modified except by a writing executed by the Assignee and the
Assignor.
Section 14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the Assignor and the Assignee with respect to the subject matter hereof
and supersedes all other prior arrangements and understandings relating to the
subject matter hereof.
Section 15. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 16. DEFINITIONS. Terms not otherwise defined herein are used herein
with the respective meanings given them in the Credit Agreement.
[Include this Section only if the Borrower's consent is required under
Section 13.6.(c) of the Credit Agreement] Section 17. AGREEMENTS OF THE
BORROWER. The Borrower hereby agrees that the Assignee shall be a Lender under
the Credit Agreement having a Commitment equal to the Assigned Commitment. The
Borrower agrees that the Assignee shall have all of the rights and remedies of a
Lender under the Credit Agreement and the other Loan Documents as if the
Assignee were an original Lender under and signatory to the Credit Agreement,
including, but not limited to, the right of a Lender to receive payments of
principal and interest with respect to the Assigned Obligations, if any, and to
the Revolving Loans made by the Lenders after the date hereof and to receive the
Fees payable to the Lenders as provided in the Credit Agreement. Further, the
Assignee shall be entitled to the benefit of the indemnification provisions from
the Borrower in favor of the Lenders as provided in the Credit Agreement and the
other Loan Documents. The Borrower further agrees, upon the execution and
delivery of this Agreement, to execute in favor of the Assignee a Revolving Note
in an initial amount equal to the Assigned Commitment and a Bid Rate Note.
Further, the Borrower agrees that, upon the execution and delivery of this
Agreement, the Borrower shall owe the Assigned Obligations to the Assignee as if
the Assignee were the Lender originally making such Loans and entering into such
other obligations.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment
and Assumption Agreement as of the date and year first written above.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
PAYMENT INSTRUCTIONS
[Bank]
[Address]
ABA No. :
Account No.:
Account Name:
Reference:
ASSIGNEE:
[NAME OF ASSIGNEE]
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
PAYMENT INSTRUCTIONS
[Bank]
[Address]
ABA No. :
Account No.:
Account Name:
Reference:
Agreed and Consented to as of the
date first written above.
[Include signature of the Borrower only if
required under Section 13.6.(c) of the
Credit Agreement]
BORROWER:
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Accepted as of the date first written above.
AGENT:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
EXHIBIT B
FORM OF NOTICE OF BORROWING
, 200
---------- -
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of October 28,
2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Realty Income Corporation (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 13.6 thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
1. Pursuant to Section 2.1(b) of the Credit Agreement, the Borrower
hereby requests that the Lenders make Revolving Loans to the Borrower
in an aggregate amount equal to $ .
-----------------
3. The Borrower requests that such Revolving Loans be made available to
the Borrower on , 200 .
---------- -
4. The Borrower hereby requests that such Revolving Loans be of the
following Type:
[CHECK ONE BOX ONLY]
[ ] Base Rate Loan
[ ] LIBOR Loan, with an initial Interest Period for a duration of:
[CHECK ONE BOX ONLY]
[ ] one month
[ ] two months
[ ] three months
[ ] six months
5. The proceeds of such Revolving Loans will be used for the following:
--------------------------------------------------
--------------------------------------------------.
The Borrower hereby certifies to the Agent and the Lenders that as of the
date hereof, as of the date of the making of the requested Revolving Loans, and
after making such Revolving Loans, (a) no Default or Event of Default exists or
would exist, and none of the conditions described in Section 2.14. would exist;
and (b) 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,
are and shall be true and correct 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 accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted under the Loan Documents. In addition, the Borrower
certifies to the Agent and the Lenders that all conditions to the making of the
requested Revolving Loans contained in Article VI. of the Credit Agreement will
have been satisfied at the time such Revolving Loans are made.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT C
FORM OF NOTICE OF CONTINUATION
, 200
-------- -
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of October 28,
2002 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Realty Income Corporation (the
"Borrower"), the financial institutions party thereto and their assignees under
Section 13.6 thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as
Agent (the "Agent"), and the other parties thereto. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given
them in the Credit Agreement.
Pursuant to Section 2.9 of the Credit Agreement, the Borrower hereby
requests a Continuation of Revolving Loans under the Credit Agreement, and in
that connection sets forth below the information relating to such Continuation
as required by such Section of the Credit Agreement:
1. The requested date of such Continuation is , 200 .
-------- -
2. The aggregate principal amount of the Revolving Loans subject to the
requested Continuation is $ and the portion of such
-----------
principal amount subject to such Continuation is
$ .
---------------------
3. The current Interest Period of the Revolving Loans subject to such
Continuation ends on , 200 .
-------------- -
4. The duration of the Interest Period for the Revolving Loans or portion
thereof subject to such Continuation is:
[CHECK ONE BOX ONLY]
[ ] one month
[ ] two months
[ ] three months
[ ] six months
The Borrower hereby certifies to the Agent and the Lenders that as of the
date hereof, as of the proposed date of the requested Continuation, and after
giving effect to such Continuation, no Default or Event of Default exists or
will exist.
If notice of the requested Continuation was given previously by telephone,
this notice is to be considered the written confirmation of such telephone
notice required by Section 2.9 of the Credit Agreement.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT D
FORM OF NOTICE OF CONVERSION
, 200
--------- -
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
Pursuant to Section 2.10 of the Credit Agreement, the Borrower hereby
requests a Conversion of Revolving Loans of one Type into Revolving Loans of
another Type under the Credit Agreement, and in that connection sets forth below
the information relating to such Conversion as required by such Section of the
Credit Agreement:
1. The requested date of such Conversion is , 200 .
-------------- -
2. The Type of Revolving Loans to be Converted pursuant hereto is
currently:
[CHECK ONE BOX ONLY]
[ ] Base Rate Loan
[ ] LIBOR Loan
3. The aggregate principal amount of the Revolving Loans subject to the
requested Conversion is $ and the portion of such
-----------------
principal amount subject to such Conversion is $ .
-----------------
4. The amount of such Revolving Loans to be so Converted is to be
converted into Revolving Loans of the following Type:
[CHECK ONE BOX ONLY]
[ ] Base Rate Loan
[ ] LIBOR Loan, with an initial Interest Period for a duration of:
[Check one box only]
[ ] one month
[ ] two months
[ ] three months
[ ]six months
The Borrower hereby certifies to the Agent and the Lenders that as of the
date hereof, as of the proposed date of the requested Conversion, and after
giving effect to such Conversion, no Default or Event of Default exists or will
exist.
If notice of the requested Conversion was given previously by telephone,
this notice is to be considered the written confirmation of such telephone
notice required by Section 2.10 of the Credit Agreement.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT E
FORM OF REVOLVING NOTE
$ , 200
------------------------ ------------ -
FOR VALUE RECEIVED, the undersigned, REALTY INCOME CORPORATION (the
"Borrower") hereby unconditionally promises to pay to the order of
-------------
(the "Lender"), in care of Xxxxx Fargo Bank, National Association, as Agent
(the "Agent"), to Xxxxx Fargo Bank, National Association, 000 X. Xxxx Xxxxx,
Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx 00000, or at such other address as may be
specified by the Agent to the Borrower, the principal sum of
-------------------
AND /100 DOLLARS ($ ), or such lesser amount as may be the then
------- -----------
outstanding and unpaid balance of all Revolving Loans made by the Lender to the
Borrower pursuant to, and in accordance with the terms of, the Credit Agreement.
The Borrower further agrees to pay interest at said office, in like money,
on the unpaid principal amount owing hereunder from time to time on the dates
and at the rates and at the times specified in the Credit Agreement.
This Revolving Note is one of the "Revolving Notes" referred to in the
Credit Agreement dated as of October 28, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among the Borrower, the financial institutions party thereto and their
assignees under Section 13.6 thereof, the Agent, and the other parties thereto,
and is subject to, and entitled to, all provisions and benefits thereof.
Capitalized terms used herein and not defined herein shall have the respective
meanings given to such terms in the Credit Agreement. The Credit Agreement,
among other things, (a) provides for the making of Revolving Loans by the Lender
to the Borrower from time to time in an aggregate amount not to exceed at any
time outstanding the Dollar amount first above mentioned, (b) permits the
prepayment of the Loans by the Borrower subject to certain terms and conditions
and (c) provides for the acceleration of the Revolving Loans upon the occurrence
of certain specified events.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising any rights hereunder on
the part of the holder hereof shall operate as a waiver of such rights.
Time is of the essence for this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note under seal as of the date written above.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT F
FORM OF NOTICE OF SWINGLINE BORROWING
, 200
--------- -
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
1. Pursuant to Section 2.3(b) of the Credit Agreement, the Borrower
hereby requests that the Swingline Lender make a Swingline Loan
to the Borrower in an amount equal to $ .
-------------------
2. The Borrower requests that such Swingline Loan be made available
to the Borrower on , 200 .
------------- -
3. The proceeds of this Swingline Loan will be used for the
following purpose:
------------------------------------------------------------
------------------------------------------------------------.
4. The Borrower requests that the proceeds of such Swingline Loan be
made available to the Borrower by , 200 .
---------------- -
5. The Borrower requests an Interest Period for such Swingline Loan
of Business Days (such Interest Period shall not exceed 7
-----
Business Days).
The Borrower hereby certifies to the Agent, the Swingline Lender and the
Lenders that as of the date hereof, as of the date of the making of the
requested Swingline Loan, and after making such Swingline Loan, (a) no Default
or Event of Default exists or would exist, and none of the conditions described
in Section 2.14. would exist; and (b) 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, are and shall be true and correct 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
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted under the Loan Documents. In
addition, the Borrower certifies to the Agent and the Lenders that all
conditions to the making of the requested Swingline Loan contained in Article
VI. of the Credit Agreement will have been satisfied at the time such Swingline
Loan is made.
If notice of the requested borrowing of this Swingline Loan was previously
given by telephone, this notice is to be considered the written confirmation of
such telephone notice required by Section 2.3(b) of the Credit Agreement.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT G
FORM OF SWINGLINE NOTE
$25,000,000 , 200
----------- -- -
FOR VALUE RECEIVED, the undersigned, REALTY INCOME CORPORATION (the
"Borrower"), hereby promises to pay to the order of XXXXX FARGO BANK, NATIONAL
ASSOCIATION (the "Swingline Lender") to its address at 000 X. Xxxx Xxxxx, Xxxxx
000, Xx Xxxxxxx, Xxxxxxxxxx 00000, or at such other address as may be specified
by the Swingline Lender to the Borrower, the principal sum of TWENTY FIVE
MILLION AND NO/100 DOLLARS ($25,000,000) (or such lesser amount as shall equal
the aggregate unpaid principal amount of Swingline Loans made by the Swingline
Lender to the Borrower under the Credit Agreement), on the dates and in the
principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount owing hereunder, at the rates and on the dates provided
in the Credit Agreement.
The date, amount of each Swingline Loan, and each payment made on account
of the principal thereof, shall be recorded by the Swingline Lender on its books
and, prior to any transfer of this Note, endorsed by the Swingline Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Swingline Lender to made any such recordation or endorsement shall not
affect the obligations of the Borrower to make a payment when due of any amount
owing under the Credit Agreement or hereunder in respect of the Swingline Loans.
This Note is the "Swingline Note" referred to in the Credit Agreement dated
as of October 28, 2002 (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), by and among the Borrower, the
financial institutions party thereto and their assignees under Section 13.6
thereof, the Agent, and the other parties thereto, and evidences Swingline Loans
made to the Borrower thereunder. Terms used but not otherwise defined in this
Note have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Swingline
Loans upon the terms and conditions specified therein.
This Note SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Swingline Note under seal as of the date first written above.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SCHEDULE OF SWINGLINE LOANS
This Note evidences Swingline Loans made under the within-described Credit
Agreement to the Borrower, on the dates and in the principal amounts set forth
below, subject to the payments and prepayments of principal set forth below:
PRINCIPAL AMOUNT AMOUNT PAID OR UNPAID PRINCIPAL NOTATION
DATE OF LOAN OF LOAN PREPAID AMOUNT MADE BY
------------ ---------------- -------------- ---------------- --------
EXHIBIT H
FORM OF BID RATE QUOTE REQUEST
--------------, -----
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
1. The Borrower hereby requests Bid Rate Quotes for the following proposed
Bid Rate Borrowings:
Borrowing Date Amount(1) Type(2) Interest Period(3)
-------------- --------- ------- ------------------
, 200 $ days
--------- - -------- ------- --------------
2. The Borrower's Credit Rating, as applicable, as of the date hereof is:
S&P
---------
Xxxxx'x
---------
Fitch
---------
---------------------------------
(1) Minimum amount of $10,000,000 or larger multiple of $1,000.000.
(2) Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR Margin (for
LIBOR Margin Loan).
(3) Must be 30, 60 or 90 days.
3. The proceeds of this Bid Rate borrowing will be used for the following
purpose:
----------------------------------------------------------
----------------------------------------------------------.
4. After giving effect to the Bid Rate Borrowing requested herein, the
total amount of Bid Rate Loans outstanding shall be $ .
--------------
The Borrower hereby certifies to the Agent and the Lenders that as of the
date hereof, as of the date of the making of the requested Bid Rate Loans, and
after making such Bid Rate Loans, (a) no Default or Event of Default exists or
would exist, and none of the conditions described in Section 2.14. would exist;
and (b) 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,
are and shall be true and correct 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 accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted under the Loan Documents. In addition, the Borrower
certifies to the Agent and the Lenders that all conditions to the making of the
requested Bid Rate Loans contained in Article VI. of the Credit Agreement will
have been satisfied at the time such Bid Rate Loans are made.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT I
FORM OF BID RATE QUOTE
----------------, ----
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
In response to the Borrower's Bid Rate Quote Request dated ,
------------
200 , the undersigned hereby makes the following Bid Rate Quote(s) on the
-
following terms:
1. Quoting Lender:
----------------------
2. Person to contact at quoting Lender:
---------------------------
3. The undersigned offers to make Bid Rate Loan(s) in the following
principal amount(s), for the following Interest Period(s) and at the
following Bid Rate(s):
Borrowing Date Amount(1) Type(2) Interest Period(3) Bid Rate
-------------- --------- ------- ----------------- --------
, 200 $ days %
-------- - -------- ------- ------------- -------
, 200 $ days %
-------- - -------- ------- ------------- -------
, 200 $ days %
-------- - -------- ------- ------------- -------
-----------------------------------
(1) Minimum amount of $5,000,000 or larger multiple of $100,000.
(2) Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR Margin (for
LIBOR Margin Loan).
(3) Must be 30, 60 or 90 days.
The undersigned understands and agrees that the offer(s) set forth above,
subject to satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate[s] the undersigned to make the Bid Rate Loan(s)
for which any offer(s) [is/are] accepted, in whole or in part.
---------------------------------------------
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT J
FORM OF BID RATE QUOTE ACCEPTANCE
, 200
----------- -
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
The Borrower hereby accepts the following offer(s) of Bid Rate Quotes to be
made available to the Borrower on , :
------------ -----
Quote Date Quoting Lender Type Amount Accepted
---------- -------------- ---- ---------------
, 200 $
------- - -------------- -------- -----------------
, 200 $
------- - -------------- -------- -----------------
, 200 $
------- - -------------- -------- -----------------
The Borrower hereby certifies to the Agent and the Lenders that as of the
date hereof, as of the date of the making of the requested Bid Rate Loans, and
after making such Bid Rate Loans, (a) no Default or Event of Default exists or
would exist, and none of the conditions described in Section 2.14. would exist;
and (b) 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,
are and shall be true and correct 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 accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
and expressly permitted under the Loan Documents. In addition, the Borrower
certifies to the Agent and the Lenders that all conditions to the making of the
requested Bid Rate Loans contained in Article VI. of the Credit Agreement will
have been satisfied at the time such Bid Rate Loans are made.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT K
FORM OF BID RATE NOTE
, 200
-------------- -
FOR VALUE RECEIVED, the undersigned, REALTY INCOME CORPORATION, a
California corporation (the "Borrower"), hereby promises to pay to the order of
(the "Lender"), in care of Xxxxx Fargo Bank, National
---------------------
Association, as Agent (the "Agent"), to Xxxxx Fargo Bank, National Association,
000 X. Xxxx Xxxxx, Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx 00000, or at such other
address as may be specified by the Agent to the Borrower, the aggregate unpaid
principal amount of Bid Rate Loans made by the Lender to the Borrower under the
Credit Agreement, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Bid Rate Loan, at such office at the rates and on the dates provided in the
Credit Agreement.
The date, amount, interest rate and maturity date of each Bid Rate Loan
made by the Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books and, prior to
any transfer of this Note, endorsed by the Lender on the schedule attached
hereto or any continuation thereof, provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of the
Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Bid Rate Loans made by the Lender.
This Note is one of the "Bid Rate Notes" referred to in the Credit
Agreement dated as of October 28, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among the
Borrower, the financial institutions party thereto and their assignees under
Section 13.6 thereof, the Agent, and the other parties thereto, and evidences
Bid Rate Loans made by the Lender thereunder. Terms used but not otherwise
defined in this Note have the respective meanings assigned to them in the Credit
Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Bid Rate Loans
upon the terms and conditions specified therein.
Except as permitted by Section 13.6 of the Credit Agreement, this Note may
not be assigned by the Lender to any other Person.
This Note SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Bid
Rate Note under seal as of the date first written above.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SCHEDULE OF BID RATE LOANS
This Note evidences Bid Rate Loans made under the within-described Credit
Agreement to the Borrower, on the dates, in the principal amounts, bearing
interest at the rates and maturing on the dates set forth below, subject to the
payments and prepayments of principal set forth below:
Principal Maturity Amount Unpaid
Date of Amount of Interest Date of Paid or Principal Notation
Loan Loan Rate Loan Prepaid Amount Made By
---- ---- ---- ---- ------- ------ -------
EXHIBIT L
FORM OF designation AGREEMENT
THIS designation AGREEMENT dated as of , (the "Agreement")
-------- ------
by and among (the "Designating Lender"),
-----------------------------
(the "Designated Lender") and Xxxxx Fargo Bank,
----------------------------
National Association, as Agent (the "Agent").
WHEREAS, the Designating Lender is a Lender under that certain Credit
Agreement dated as of October 28, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among
Realty Income Corporation, a California corporation (the "Borrower"), the
financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto;
WHEREAS, pursuant to Section 13.6(d), the Designating Lender desires to
designate the Designated Lender as its "Designated Lender" under and as defined
in the Credit Agreement; and
WHEREAS, the Agent consents to such designation on the terms and conditions
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. DESIGNATION. Subject to the terms and conditions of this
Agreement, the Designating Lender hereby designates the Designated Lender, and
the Designated Lender hereby accepts such designation, to have a right to make
Bid Rate Loans on behalf of the Designating Lender pursuant to Section 2.2. of
the Credit Agreement. Any assignment by the Designating Lender to the Designated
Lender of rights to make a Bid Rate Loan shall only be effective at the time
such Bid Rate Loan is funded by the Designated Lender. The Designated Lender,
subject to the terms and conditions hereof, hereby agrees to make such accepted
Bid Rate Loans and to perform such other obligations as may be required of it as
a Designated Lender under the Credit Agreement.
Section 2. DESIGNATING LENDER NOT DISCHARGED. Notwithstanding the
designation of the Designated Lender hereunder, the Designating Lender shall be
and remain obligated to the Borrower, the Agent and the Lenders for each and
every of the obligations of the Designating Lender and its related Designated
Lender with respect to the Credit Agreement and the other Loan Documents,
including, without limitation, any indemnification obligations under Section
12.7 of the Credit Agreement and any sums otherwise payable to the Borrower by
the Designated Lender.
Section 3. NO REPRESENTATIONS BY DESIGNATING LENDER. The Designating Lender
makes no representation or warranty and, except as set forth in Section 8 below,
assumes no responsibility pursuant to this Agreement with respect to (a) any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument and document
furnished pursuant thereto and (b) the financial condition of the Borrower, any
other Loan Party or any other Subsidiary of the Borrower or the performance or
observance by the Borrower or any other Loan Party of any of its obligations
under any Loan Document to which it is a party or any other instrument or
document furnished pursuant thereto.
Section 4. REPRESENTATIONS AND COVENANTS OF DESIGNATED LENDER. The
Designated Lender makes and confirms to the Agent, the Designating Lender, and
the other Lenders all of the representations, warranties and covenants of a
Lender under Article XII of the Credit Agreement. Not in limitation of the
foregoing, the Designated Lender (a) represents and warrants that it (i) is
legally authorized to enter into this Agreement; (ii) is an "accredited
investor" (as such term is used in Regulation D of the Securities Act) and (iii)
meets the requirements of a "Designated Lender" contained in the definition of
such term contained in the Credit Agreement; (b) confirms that it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant thereto and such other documents and information
(including without limitation the Loan Documents) as it has deemed appropriate
to make its own credit analysis and decision to enter into this Agreement; (c)
confirms that it has, independently and without reliance upon the Agent, or on
any affiliate thereof, or any other Lender and based on such financial
statements and such other documents and information, made its own credit
analysis and decision to become a Designated Lender under the Credit Agreement;
(d) appoints and authorizes the Agent to take such action as contractual
representative on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof together with such
powers as are reasonably incidental thereto; and (e) agrees that it will become
a party to and shall be bound by the Credit Agreement, the other Loan Documents
to which the other Lenders are a party on the Effective Date (as defined below)
and will perform in accordance therewith all of the obligations which are
required to be performed by it as a Designated Lender. The Designated Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement or any Note or pursuant
to any other obligation. The Designated Lender acknowledges and agrees that
except as expressly required under the Credit Agreement, the Agent shall have no
duty or responsibility whatsoever, either initially or on a continuing basis, to
provide the Designated Lender with any credit or other information with respect
to the Borrower, any other Loan Party or any other Subsidiary or to notify the
Designated Lender of any Default or Event of Default.
Section 5. APPOINTMENT OF DESIGNATING LENDER AS ATTORNEY-IN-FACT. The
Designated Lender hereby appoints the Designating Lender as the Designated
Lender's agent and attorney-in-fact, and grants to the Designating Lender an
irrevocable power of attorney, to receive any and all payments to be made for
the benefit of the Designated Lender under the Credit Agreement, to deliver and
receive all notices and other communications under the Credit Agreement and
other Loan Documents and to exercise on the Designated Lender's behalf all
rights to vote and to grant and make approvals, waivers, consents of amendments
to or under the Credit Agreement or other Loan Documents. Any document executed
by the Designating Lender on the Designated Lender's behalf in connection with
the Credit Agreement or other Loan Documents shall be binding on the Designated
Lender. The Borrower, each Agent and each of the Lenders may rely on and are
beneficiaries of the preceding provisions.
Section 6. ACCEPTANCE BY THE AGENT. Following the execution of this
Agreement by the Designating Lender and the Designated Lender, the Designating
Lender will (i) deliver to the Agent a duly executed original of this Agreement
for acceptance by the Agent and (ii) pay to the Agent the fee, if any, payable
under the applicable provisions of the Credit Agreement whereupon this Agreement
shall become effective as of the date of such acceptance or such other date as
may be specified on the signature page hereof (the "Effective Date").
Section 7. EFFECT OF DESIGNATION. Upon such acceptance and recording by the
Agent, as of the Effective Date, the Designated Lender shall be a party to the
Credit Agreement with a right to make Bid Rate Loans as a Lender pursuant to
Section 2.2. of the Credit Agreement and the rights and obligations of a Lender
related thereto; provided, however, that the Designated Lender shall not be
required to make payments with respect to such obligations except to the extent
of excess cash flow of the Designated Lender which is not otherwise required to
repay obligations of the Designated Lender which are then due and payable.
Notwithstanding the foregoing, the Designating Lender, as agent for the
Designated Lender, shall be and remain obligated to the Borrower, the Agent and
the Lenders for each and every of the obligations of the Designated Lender and
the Designating Lender with respect to the Credit Agreement.
Section 8. INDEMNIFICATION OF DESIGNATED LENDER. The Designating Lender
unconditionally agrees to pay or reimburse the Designated Lender and save the
Designated Lender harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designated Lender, in its capacity as
such, in any way relating to or arising out of this Agreement or any other Loan
Documents or any action taken or omitted by the Designated Lender hereunder or
thereunder, provided that the Designating Lender shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results from the
Designated Lender's gross negligence or willful misconduct.
Section 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 11. HEADINGS. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
Section 12. AMENDMENTS; WAIVERS. This Agreement may not be amended,
changed, waived or modified except by a writing executed by all parties hereto.
Section 13. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 14. DEFINITIONS. Terms not otherwise defined herein are used herein
with the respective meanings given them in the Credit Agreement.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have duly executed this Designation
Agreement as of the date and year first written above.
Effective Date:
--------------------------
DESIGNATING LENDER:
[NAME OF DESIGNATING LENDER]
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
DESIGNATED LENDER:
[NAME OF DESIGNATED LENDER]
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Accepted as of the date first written above.
AGENT:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Agent
By:
------------------------------------------
Name:
-------------------------------------
Title:
----------------------------------
EXHIBIT M
FORM OF EXTENSION REQUEST
, 200
------------ -
Xxxxx Fargo Bank, National Association
000 X Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given them in the
Credit Agreement.
Pursuant to Section 2.13 of the Credit Agreement, the Borrower hereby
requests that the Lenders and the Agent extend the current Revolving Credit
Termination Date of , 200 by a one-year period to
------------------ --- -
, 200 .
----------------- --- -
The Borrower hereby certifies to the Agent and the Lenders that as of the
date hereof as of the proposed date of the requested extension, and after giving
effect to such extension, no Default or Event of Default exists or will exist.
REALTY INCOME CORPORATION
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BOSTON Xxxxxx & Xxxxxxx NEW YORK
BRUSSELS ATTORNEYS AT LAW NORTHERN VIRGINIA
CHICAGO xxx.xx.xxx ORANGE COUNTY
FRANKFURT PARIS
HAMBURG --------------------- SAN DIEGO
HONG KONG SAN FRANCISCO
LONDON SILICON VALLEY
LOS ANGELES SINGAPORE
MILAN TOKYO
MOSCOW WASHINGTON, D.C.
NEW JERSEY
--------------------------------------------------------------------------------
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000 o Los Angeles, California 9007I-2007
TELEPHONE: (2I3) 000-0000 o FAX: (2I3) 000-0000
EXHIBIT N - 1
October 28, 2002
Xxxxx Fargo Bank, National Association,
as Agent
000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
and the Lenders listed on Schedule I hereto
Re: Credit Agreement among Realty Income Corporation, as borrower, the Banks
listed therein, as lenders, and Xxxxx Fargo Bank, N.A., as a lender, and
as administrative agent and co-lead arranger
--------------------------
Ladies and Gentlemen:
We have acted as special counsel to Realty Income Corporation, a Maryland
Corporation (the "Borrower"), Realty Income Texas Properties, L.P., a Delaware
--------
limited partnership (the "Partnership"), and Realty Income Texas Properties,
-----------
Inc., a Delaware corporation ("Properties") (each of the Partnership and
----------
Properties a "Guarantor," and collectively, the "Guarantors," and together with
--------- ----------
the Borrower, collectively referred to as the "Loan Parties"), in connection
------------
with that certain Credit Agreement dated as of October 28, 2002 (the "Credit
------
Agreement"), among the Borrower, the financial institutions listed therein as
---------
lenders (the "Lenders"), and Xxxxx Fargo Bank, National Association ("Xxxxx
------- -----
Fargo"), as administrative agent for the Lenders (in such capacity, the
------
"Agent"), and the other Loan Documents (as defined below).
-----
This opinion is rendered to you pursuant to Section 6.1(a)(iv)(A) of the Credit
Agreement. Capitalized terms defined in the Credit Agreement, used herein and
not otherwise defined herein, shall have the meanings given them in the Credit
Agreement. As such special counsel, we have examined such matters of fact and
questions of law as we have considered appropriate for purposes of rendering the
opinions expressed below, except where a statement is qualified as to knowledge
or awareness, in which case we have made no or limited inquiry as specified
below. We have examined, among other things, the following:
(a) the Credit Agreement;
(b) those certain Revolving Notes dated October 28, 2002, made by the
Borrower in favor of certain of the Lenders (collectively, the "Revolving
---------
Notes");
-----
(c) that certain Swingline Note dated October 28, 2002, made by the
Borrower in favor of the Xxxxx Fargo (the "Swingline Note");
--------------
(d) those certain Bid Rate Notes dated October 28, 2002, made by the Borrower
in favor of certain of the Lenders (collectively, the "Bid Rate Notes," and
--------------
together with the Revolving Notes and the Swingline Note, collectively, the
"Notes");
------
(e) that certain Guaranty dated October 28, 2002 made by the Guarantors in favor
of the Agent, the Lenders and the Swingline Lender (collectively, the
"Guaranty");
---------
(f) the (i) Certificate of Incorporation and Bylaws of Properties, and (ii)
Certificate of Limited Partnership, as amended, and Limited Partnership
Agreement of the Partnership (collectively, the "Guarantor Governing
-------------------
Documents");
---------
(g) the indenture(s), note(s), loan agreement(s), mortgage(s),
deed(s) of trust, security agreement(s) and other written agreement(s) and
instrument(s) creating, evidencing or securing indebtedness of the Borrower for
borrowed money, identified to us by an officer of the Borrower as material to
the Borrower (the "Material Agreements"); and
--------------------
(h) the court or administrative orders, writs, judgments or decrees specifically
directed to the Borrower and identified to us by an officer of the Borrower as
material to the Borrower (the "Court Orders").
------------
The documents described in subsections (a) - (e) above are referred to herein
collectively as the "Loan Documents."
With your consent we have relied upon the foregoing, including the
representations and warranties of the Loan Parties in the Loan Documents and
upon certificates of officer(s) of the Borrower with respect to certain factual
matters relating to such parties. In addition, we have obtained and relied upon
such certificates and assurances from public officials as we have deemed
necessary. We have not independently verified such factual matters.
In our examination, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons executing documents, the authenticity of all
documents submitted to us as originals, and the conformity to authentic original
documents of all documents submitted to us as copies. In addition, we have
assumed that the parties to the Loan Documents have not entered into any
agreements of which we are unaware which modify the terms of the Loan Documents
and have not otherwise expressly or by implication waived, or agreed to any
modification of the Loan Documents.
We are opining herein as to the effect on the subject transactions only of the
federal laws of the United States, the internal laws of the State of California,
the General Corporation Law of the State of Delaware (as to the opinions in
Paragraph 2) and the Delaware Revised Uniform Limited Partnership Act (as to the
opinions in Paragraph 3) and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction, or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any local agencies within any state.
Our opinions set forth in paragraph 6 below are based upon our consideration of
only those statutes, rules and regulations which, in our experience, are
normally applicable to borrowers and guarantors in unsecured loan transactions.
Whenever a statement herein is qualified by "to the best of our knowledge" or a
similar phrase, it is intended to indicate that those attorneys in this firm who
have rendered legal services in connection with the transactions contemplated by
the Credit Agreement do not have current actual knowledge of the inaccuracy of
such statement. Except as otherwise expressly indicated, however, we have not
undertaken any independent investigation to determine the accuracy of any such
statement, and no inference that we have any knowledge of any matters pertaining
to such statement should be drawn from our representation of the Loan Parties.
For all of the following opinions, with your permission, we have assumed that:
(a) the Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland and has all requisite corporate
power and authority to own and operate its properties, to carry on its business
as proposed to be conducted, to enter into the Loan Documents to which it is a
party and to carry out the transactions contemplated thereby; (b) the execution,
delivery and performance of the Loan Documents to which it is a party have been
duly authorized by all necessary organizational action by the Borrower; and (c)
none of the execution and delivery of the Loan Documents to which the Borrower
is a party, nor compliance on or prior to the date hereof with the terms and
conditions thereof by the Borrower conflicts with, results in a breach of, or
constitutes a default under, any of the terms, conditions or provisions of the
governing documents of the Borrower. We understand that as to certain such
matters you are receiving the opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP,
separately provided to you, and we express no opinion with respect to those
matters.
With your permission, in rendering our opinion with respect to the Material
Agreements, we have assumed that, as of the date hereof and after giving effect
to the Loans to be made under the Credit Agreement, Borrower will be in full
compliance with all financial covenants contained in such Material Agreements,
and we express no opinion with respect to such matters. Subject to the foregoing
and the other matters set forth herein, and in reliance thereon, it is our
opinion that, as of the date hereof:
1. Based solely on certificates from public officials, we confirm that the
Borrower is qualified to do business in the State of California.
2. Properties is a corporation and is validly existing under the laws of
the State of Delaware. Based solely on certificates from public officials, we
confirm that Properties is in good standing under the laws of the State of
Delaware with corporate power and authority to own its properties and conduct
its business and to enter into the Loan Documents to which it is a party and
perform its obligations thereunder. The execution, delivery and performance of
the Loan Documents to which Properties is a party has been duly authorized by
all necessary corporate action of Properties and such Loan Documents have been
duly executed and delivered by Properties.
3. The Partnership is a limited partnership and is validly existing as a
limited partnership under the laws of the State of Delaware. Based solely on
certificates from public officials, we confirm that the Partnership is in good
standing under the laws of the State of Delaware with limited partnership power
and authority to own its properties and conduct its business and to enter into
the Loan Documents to which it is a party and perform its obligations
thereunder. The execution, delivery and performance of the Loan Documents to
which the Partnership is a party has been duly authorized by all necessary
limited partnership action of the Partnership and such Loan Documents have been
duly executed and delivered by the Partnership. Based solely on certificates
from public officials, we confirm that the Partnership is qualified to do
business in the State of Texas.
4. The Loan Documents to which it is a party have been duly executed and
delivered by the Borrower.
5. Each of the Loan Documents constitutes a legally valid and binding
obligation of each of the Loan Parties which is a party thereto, enforceable
against such Loan Party in accordance with its terms.
6. The execution and delivery of the Loan Documents by each of the Loan
Parties which is a party thereto, the borrowing of the Loans and the application
of the proceeds thereof by the Borrower as provided in the Credit Agreement to
repay the Borrower's prior credit lines, and the payment of the indebtedness of
the Borrower evidenced by the Notes, do not as of the date hereof: (a) violate
the provisions of the Guarantor Governing Documents, (b) violate any federal or
California statute, rule or regulation applicable to any of the Loan Parties,
including without limitation, Regulations T, U, or X of the Board of Governors
of the Federal Reserve System, assuming that that the Borrower complies with the
provisions of the Loan Documents relating to the use of proceeds; (c) result in
the breach of or a default under any of the Material Agreements or Court Orders;
or (d) require any consents, approvals, authorizations, registrations,
declarations or filings by any of the Loan Parties under any federal or
California statute, rule or regulation applicable to any of the Loan Parties. No
opinion is expressed in clause (b) and (d) of this paragraph 6 as to the
application of Section 547 and 548 of the federal Bankruptcy Code and comparable
provisions of state law or of any antifraud laws, securities laws, and antitrust
or trade regulation laws.
7. No Loan Party is an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
The opinions expressed herein do not include any opinions with respect to the
creation, validity, perfection or priority of any security interest or lien. The
opinions expressed in paragraph 5 above are further subject to the following
limitations, qualifications and exceptions:
a. THE EFFECT OF BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR
OTHER SIMILAR LAWS RELATING TO OR AFFECTING THE RIGHTS OF CREDITORS GENERALLY,
INCLUDING WITHOUT LIMITATION THE EFFECT ON UPSTREAM GUARANTIES OF SECTION 548 OF
THE FEDERAL BANKRUPTCY CODE AND COMPARABLE PROVISIONS OF STATE LAW, AND THE
EFFECT ON POTENTIALLY VOIDABLE PREFERENCES OF SECTION 547 OF THE FEDERAL
BANKRUPTCY CODE;
b. THE EFFECT OF GENERAL PRINCIPLES OF EQUITY, INCLUDING, WITHOUT
LIMITATION, CONCEPTS OF MATERIALITY, REASONABLENESS, GOOD FAITH AND FAIR DEALING
AND THE POSSIBLE UNAVAILABILITY OF SPECIFIC PERFORMANCE OR INJUNCTIVE RELIEF
REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW;
c. CERTAIN RIGHTS, REMEDIES AND WAIVERS CONTAINED IN THE LOAN DOCUMENTS MAY
BE LIMITED OR RENDERED INEFFECTIVE BY APPLICABLE CALIFORNIA LAWS OR JUDICIAL
DECISIONS GOVERNING SUCH PROVISIONS, BUT SUCH LAWS OR JUDICIAL DECISIONS DO NOT
RENDER THE LOAN DOCUMENTS INVALID OR UNENFORCEABLE AS A WHOLE; AND
d. WE EXPRESS NO OPINION AS TO THE VALIDITY OR ENFORCEABILITY OF ANY
PROVISION OF THE LOAN DOCUMENTS THAT PERMITS THE AGENT OR THE LENDERS TO
INCREASE THE RATE OF INTEREST, IMPOSE A PENALTY OR COLLECT A LATE CHARGE OR
PREPAYMENT PREMIUM IN THE EVENT OF A DELINQUENCY OR DEFAULT.
Without limiting the generality of the foregoing, the opinions expressed above
are also subject to the following limitations, exceptions and assumptions:
a. THE UNENFORCEABILITY UNDER CERTAIN CIRCUMSTANCES OF PROVISIONS EXPRESSLY
OR BY IMPLICATION WAIVING BROADLY OR VAGUELY STATING RIGHTS, UNKNOWN FUTURE
RIGHTS, DEFENSES OR OBLIGATIONS OR RIGHTS GRANTED BY LAW, WHERE SUCH WAIVERS ARE
AGAINST PUBLIC POLICY OR PROHIBITED BY LAW;
b. THE UNENFORCEABILITY UNDER CERTAIN CIRCUMSTANCES OF PROVISIONS
INDEMNIFYING A PARTY AGAINST LIABILITY FOR ITS OWN WRONGFUL OR NEGLIGENT ACTS OR
WHERE SUCH INDEMNIFICATION IS CONTRARY TO PUBLIC POLICY OR PROHIBITED BY LAW;
c. WE EXPRESS NO OPINION WITH RESPECT TO THE ENFORCEABILITY BY A FEDERAL
COURT OF ANY FORUM SELECTION CLAUSE CONTAINED IN ANY OF THE LOAN DOCUMENTS;
d. THE EFFECT OF SECTION 631(D) OF THE CALIFORNIA CODE OF CIVIL PROCEDURE,
WHICH PROVIDES THAT A COURT MAY, IN ITS DISCRETION UPON JUST TERMS, ALLOW A
TRIAL BY JURY ALTHOUGH THERE MAY HAVE BEEN A WAIVER OF TRIAL BY JURY;
e. THE ENFORCEABILITY OF LIQUIDATED DAMAGES PROVISIONS OF THE LOAN
DOCUMENTS MAY BE GOVERNED AND RESTRICTED BY SECTION 1671 OF THE CALIFORNIA CIVIL
CODE;
f. THE UNENFORCEABILITY UNDER CERTAIN CIRCUMSTANCES OF PROVISIONS TO THE
EFFECT THAT RIGHTS OR REMEDIES ARE NOT EXCLUSIVE, THAT EVERY RIGHT OR REMEDY IS
CUMULATIVE AND MAY BE EXERCISED IN ADDITION TO OR WITH ANY OTHER RIGHT OR
REMEDY, THAT ANY RIGHT OR REMEDY MAY BE EXERCISED WITHOUT NOTICE, OR THAT
FAILURE TO EXERCISE OR DELAY IN EXERCISING RIGHTS OR REMEDIES WILL NOT OPERATE
AS A WAIVER OR ANY SUCH RIGHT OR REMEDY;
g. THE EFFECT OF CALIFORNIA LAW, WHICH PROVIDES THAT A COURT MAY REFUSE TO
ENFORCE, OR MAY LIMIT THE APPLICATION OF, A CONTRACT OR ANY CLAUSE THEREOF WHERE
THE COURT FINDS AS A MATTER OF LAW TO HAVE BEEN UNCONSCIONABLE AT THE TIME IT
WAS MADE OR CONTRARY TO PUBLIC POLICY;
h. THE EFFECT OF 1717 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES THAT,
WHERE A CONTRACT PERMITS ONE PARTY TO A CONTRACT TO RECOVER ATTORNEYS' FEES, THE
PREVAILING PARTY IN ANY ACTION TO ENFORCE ANY PROVISION OF THE CONTRACT SHALL BE
ENTITLED TO RECOVER REASONABLE ATTORNEYS' FEES;
i. WE ALSO ADVISE YOU OF CALIFORNIA STATUTORY PROVISIONS AND CASE LAW TO
THE EFFECT THAT, IN CERTAIN CIRCUMSTANCES, A SURETY MAY BE EXONERATED IF THE
CREDITOR MATERIALLY ALTERS THE ORIGINAL OBLIGATION OF THE PRINCIPAL WITHOUT THE
CONSENT OF THE GUARANTOR, ELECTS REMEDIES FOR DEFAULT THAT IMPAIR THE
SUBROGATION RIGHTS OF THE GUARANTOR AGAINST THE PRINCIPAL, OR OTHERWISE TAKES
ANY ACTION WITHOUT NOTIFYING THE GUARANTOR THAT MATERIALLY PREJUDICES THE
GUARANTOR. HOWEVER, THERE IS ALSO AUTHORITY TO THE EFFECT THAT A GUARANTOR MAY
VALIDLY WAIVE SUCH RIGHTS IF THE WAIVERS ARE EXPRESSLY SET FORTH IN THE
GUARANTY. WHILE WE BELIEVE THAT A CALIFORNIA COURT SHOULD HOLD THAT THE EXPLICIT
LANGUAGE CONTAINED IN THE GUARANTY WAIVING SUCH RIGHTS IS ENFORCEABLE, WE
EXPRESS NO OPINION WITH RESPECT TO THE EFFECT OF (I) ANY MODIFICATION TO OR
AMENDMENT OF THE OBLIGATIONS OF THE BORROWER THAT MATERIALLY INCREASES SUCH
OBLIGATIONS; (II) ANY ELECTION OF REMEDIES BY THE AGENT OR THE LENDERS FOLLOWING
THE OCCURRENCE OF AN EVENT OF DEFAULT; OR (III) ANY OTHER ACTION BY THE AGENT OR
THE LENDERS THAT MATERIALLY PREJUDICES THE BORROWER; AND
j. THE EFFECT OF CALIFORNIA LAW AND COURT DECISIONS WHICH PROVIDE THAT
CERTAIN SURETYSHIP RIGHTS AND DEFENSES ARE AVAILABLE TO A PARTY THAT ENCUMBERS
ITS PROPERTY TO SECURE THE OBLIGATIONS OF ANOTHER;
k. WE HAVE ASSUMED WITH YOUR PERMISSION THAT EACH OF THE LENDERS IS A
MEMBER OF A CLASS OF LENDERS WHICH IS EXEMPT FROM THE USURY LAWS OF THE STATE OF
CALIFORNIA.
In rendering the opinions expressed in paragraph 6 insofar as they require
interpretation of the Material Agreements (i) we have assumed with your
permission that all courts of competent jurisdiction would enforce such
agreements as written but would apply the internal laws of the State of
California without giving effect to any choice of law provisions contained
therein or any choice of law principles which would result in application of the
internal laws of any other state, (ii) to the extent that any questions of
legality or legal construction have arisen in connection with our review, we
have applied the laws of the State of California in resolving such questions,
(iii) we express no opinion with respect to the effect of any discretionary
action or inaction by any of the Loan Parties under the Loan Documents or the
Material Agreements which may result in a breach or default under any Material
Agreement and (iv) we express no opinion with respect to any matters which
require us to perform a mathematical calculation or make a financial or
accounting determination. We advise you that certain of the Material Agreements
may be governed by other laws, that such laws may vary substantially from the
law assumed to govern for purposes of this opinion, and that this opinion may
not be relied upon as to whether or not a breach or default would occur under
the law actually governing such Material Agreements. To the extent that the
obligations of each of the Loan Parties may be dependent upon such matters, we
assume for purposes of this opinion that: all parties to the Loan Documents
other than the Loan Parties have complied with any applicable requirement to
file returns and pay taxes under the Franchise Tax Law of the State of
California; all parties to the Loan Documents other than the Loan Parties are
duly organized, validly existing and in good standing under the laws of their
respective jurisdictions of organization; all parties to the Loan Documents
other than the Loan Parties have the requisite organizational power and
authority to execute and deliver the Loan Documents and to perform their
respective obligations under the Loan Documents to which they are a party; the
Loan Documents to which such parties are a party have been duly authorized; and
the Loan Documents to which such parties other than the Loan Parties are a party
have been duly executed and delivered by such parties and constitute their
legally valid and binding obligations, enforceable against them in accordance
with their terms. We express no opinion as to compliance by any parties (other
than as to the Loan Parties as set forth herein) to the Loan Documents with any
state or federal laws or regulations applicable to the subject transactions
because of the nature of their or their affiliates' business.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose or relied upon by any other person, firm or
corporation for any purpose, without our prior written consent. At your request,
we hereby consent to (i) reliance hereon by any future assignees of your
interests in the Credit Agreement as expressly permitted by the Credit Agreement
and (ii) the furnishing of copies of this opinion to counsel to such assignees;
provided that you have notified such assignee or counsel that this opinion
speaks only as of the date hereof and to its addressees and such assignees and
that we have no responsibility or obligation to update this opinion, to consider
its applicability or correctness to other than its addressees and such
assignees, or to take into account changes in law, facts or any other
development of which we may later become aware.
Very truly yours,
SCHEDULE I
Xxxxx Fargo Bank
Bank of New York
Bank of America
Wachovia Bank
AmSouth
US Bank
Bank of Montreal
Bank One
Chevy Chase Bank
EXHIBIT N - 2
FILE NUMBER
898783
October 28, 2002
Xxxxx Fargo Bank, National Association,
as Lender and Administrative Agent
Suite 100
000 Xxxx Xxxx Xxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
And the Lenders Listed on Schedule A
attached hereto and made a part hereof
Re: Credit Agreement by and among Realty Income
Corporation and Xxxxx Fargo Bank, N.A., et al.
----------------------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Realty Income Corporation, a Maryland
corporation (the "Company"), in connection with certain matters of Maryland law
arising out of a Credit Agreement, dated as of October 28, 2002 (the "Credit
Agreement"), by and among the Company, Xxxxx Fargo Bank, National Association
("Xxxxx Fargo"), as Administrative Agent, Co Lead Arranger and Lender, Bank of
America, N. A., as Co-Syndication Agent and Lender, Wachovia Bank, National
Association, as Co-Syndication Agent and Lender, The Bank of New York, as
Documentation Agent, Co-Lead Arranger and Lender and the other Lenders signatory
thereto. Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Credit Agreement. This firm did not participate in
the negotiation or drafting of the Credit Agreement or the Notes (as herein
defined).
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined the originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
THE CHARTER OF THE COMPANY (THE "CHARTER"), CERTIFIED AS OF A RECENT DATE
BY THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND (THE
"SDAT");
THE BYLAWS OF THE COMPANY (THE "BYLAWS"), CERTIFIED AS OF A RECENT DATE BY
AN OFFICER OF THE COMPANY;
3. A certificate of the SDAT, dated as of a recent date, as to the good
standing of the Company;
4. Resolutions of the Board of Directors of the Company relating to the
authorization of the execution, delivery and performance of the Credit Agreement
and the Notes (as hereinafter defined) by the Company, certified as of a recent
date by an officer of the Company;
5. The Credit Agreement, certified as of a recent date by an officer of the
Company;
6. Revolving Notes, in the aggregate principal amount of $250,000,000,
dated October 28, 2002 (the "Revolving Notes"), by the Company in favor of the
respective Lenders, certified as of a recent date by an officer of the Company;
7. Swingline Note, in the principal amount of $25,000,000, dated October
28, 2002 (the "Swingline Note"), by the Company in favor of Xxxxx Fargo Bank,
National Association, certified as of a recent date by an officer of the
Company;
8. Bid Rate Notes, dated October 28, 2002 (the "Bid Rate Notes," and
together with the Revolving Notes and the Swingline Note, the "Notes"), by the
Company in favor of the respective Lenders, certified as of a recent date by an
officer of the Company;
9. Part I, Item 1, "Business", and Item 2, "Properties" (the "Form 10-K
Sections") of the Company's Form 10-K for the fiscal year ended December 31,
2001, filed by the Company on or about March 21, 2002 with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended,
certified as of a recent date by an officer of the Company;
10. A certificate, executed as of a recent date by an officer of the
Company; and
11. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth below, subject to the assumptions,
limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding and are enforceable in accordance with all stated
terms.
4. Any Documents submitted to us as originals are authentic. Any Documents
submitted to us as certified or photostatic copies conform to the original
documents. All signatures on all Documents are genuine. All public records
reviewed or relied upon by us or on our behalf are true and complete. All
representations, warranties, statements and information contained in the
Documents are true and complete. There has been no oral or written modification
of or amendment to any of the Documents, and there has been no waiver of any
provision of any of the Documents, by action or omission of the parties or
otherwise.
The phrase "known to us" means the actual knowledge, without independent
inquiry, of the lawyers at our firm who have performed legal services in
connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing
under and by virtue of the laws of the State of Maryland and is in good standing
with the SDAT. The Company has full corporate power to (i) conduct its business
and to own, or hold under lease, its assets substantially as its business and
assets are described in the Form 10-K Sections and (ii) enter into and deliver
the Credit Agreement and the Notes and perform its obligations thereunder.
2. The execution, delivery and performance of the Credit Agreement and the
Notes by the Company have been duly authorized by all necessary corporate action
by the Company.
3. The execution, delivery and performance of the Credit Agreement and the
Notes by the Company do not conflict with, result in a breach of, or constitute
a default under, the Charter or the Bylaws and will not violate any Maryland law
or any existing Maryland governmental regulation or rule to which it is subject.
4. The execution, delivery and performance of the Credit Agreement and the
Notes by the Company do not: (i) require the consent of any of the stockholders
of the Company under the Charter, the Bylaws or the Maryland General Corporation
Law; (ii) require any consent or approval from any government agency of the
State of Maryland, except such consents or approvals which have been obtained or
the failure to obtain which will not have a material adverse effect upon the
consummation of the transactions contemplated by the Credit Agreement and the
Notes or upon the financial condition, results of operations or business
prospects of the Company, or (iii) conflict with, or violate, any law, rule or
regulation of the State of Maryland or, so far as is known to us, any order,
judgment, injunction or decree of any court of the State of Maryland applicable
to Company or its properties.
The foregoing opinion is limited to the substantive laws of the State of
Maryland and we do not express any opinion herein concerning any other law. We
express no opinion as to compliance with federal or state securities laws,
including the securities laws of the State of Maryland, or as to federal or
state laws regarding fraudulent transfers. Our opinion expressed in paragraph 3
and paragraph 4(ii) and (iii) above is based upon our consideration of only
those consents, approvals, laws, rules and regulations of governmental agencies
or bodies of the State of Maryland, if any, which, in our experience, are
normally applicable to transactions of the type contemplated by the Credit
Agreement and the Notes. The opinion expressed herein is subject to the effect
of any judicial decision which may permit the introduction of parol evidence to
modify the terms or the interpretation of agreements. We note that the Credit
Agreement and the Notes and the Guaranty are governed by the laws of the State
of California. To the extent that any matter as to which our opinion is
expressed herein would be governed by the laws of any jurisdiction other than
the State of Maryland, we do not express any opinion on such matter.
We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for your benefit and may not
be relied upon by, quoted in any manner to, or delivered (except delivery by the
Lenders (i) to regulatory authorities, (ii) in connection with any litigation
involving the Credit Agreement or the Notes or this opinion, or (iii) as
otherwise required by law) to any other person or entity (other than Xxxxxx &
Xxxxxxx, counsel to the Company, in connection with its opinion of even date
herewith) without, in each instance, our prior written consent, except that a
financial institution which is an Assignee (as defined in the Credit Agreement)
of a Lender may rely on this opinion as if addressed to it on the date hereof.
Very truly yours,
EXHIBIT N - 3
October 28, 2002
Xxxxx Fargo Bank, National Association,
as Agent
000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000
and the Lenders listed on Schedule A
Re: Credit Agreement among Realty Income Corporation, as
borrower, the Banks listed therein, as lenders, and
Xxxxx Fargo Bank, N.A., as a lender, and as administrative
---------------------
agent and co-lead arranger
--------------------------
Ladies and Gentlemen:
I have acted as General Counsel to Realty Income Corporation, a Maryland
corporation (the "Borrower"), as Secretary to Realty Income Texas Properties,
Inc. and as General Counsel to the General Partner of Realty Income Texas
Properties, L.P., (together with the Borrower, the "Loan Parties") in connection
with that certain Credit Agreement dated as of October 28, 2002 (the "Credit
Agreement") among the Borrower, the Banks listed therein, as lenders (the
"Lenders"), Xxxxx Fargo Bank, National Association, as a lender, and Xxxxx Fargo
Bank, National Association, as administrative agent and co-lead arranger (the
"Agent"), and the other Loan Documents (as defined below).
This opinion is rendered to you pursuant to Section 6.1(a)(iv) of the Credit
Agreement. Capitalized terms defined in the Credit Agreement, used herein and
not otherwise defined herein, shall have the meanings given them in the Credit
Agreement.
In my capacity as the Borrower's General Counsel, I have made such
legal and factual examinations and inquiries as I have deemed necessary or
appropriate for purposes of this opinion, except whenever a statement herein is
qualified by "to the best of my knowledge and information," "known to me" or a
similar phrase, it is intended to indicate that I do not have current actual
knowledge or information of the inaccuracy of the statement and that, except as
otherwise expressly indicated, I have not undertaken any independent
investigation to determine the accuracy of the statement, and no inference that
I have any knowledge of any matters pertaining to the statement should be drawn
from my representation of the Borrower. I have examined, among other things, the
following:
(a) the Credit Agreement;
(b) the Revolving Notes;
(c) the Swingline Note;
(d) the Bid Rate Notes; and
(e) the Guaranty.
The documents described in subsections (a) - (e) above are referred to herein
collectively as the "Loan Documents."
In my examination, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as copies. I
have also obtained and relied upon such certificates and assurances from public
officials as I have deemed necessary for purposes of this opinion. I am opining
herein as to the effect on the subject transaction only of the federal laws of
the United States and the internal laws of the State of California, and I
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or, in the case of California,
any other laws, or as to any matters of municipal law or the laws of any other
local agencies within any state.
Subject to the foregoing and the other matters set forth herein, it is my
opinion that, as of the date hereof that, to the best of my knowledge, there are
no judgments outstanding against any of the Loan Parties or affecting any of
their respective assets and there is no litigation or other proceeding pending
or overtly threatened against any of the Loan Parties or their assets, in each
case, that individually or in the aggregate would have a Material Adverse Effect
on the Borrower.
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This opinion may not
be relied upon by you for any other purpose or relied upon by any other person,
firm or corporation for any purpose, without my prior written consent. At your
request, I hereby consent to (i) reliance hereon by any future assignees of your
interests in the Credit Agreement as expressly permitted by the Credit Agreement
and (ii) the furnishing of copies of this opinion to counsel to such assignees;
provided that you have notified such assignee or counsel that this opinion
--------
speaks only as of the date hereof and to its addressees and such assignees and
that I have no responsibility or obligation to update this opinion, to consider
its applicability or correctness to other than its addressees and such
assignees, or to take into account changes in law, facts or any other
development of which I may later become aware.
Very truly yours,
Xxxxxxx X. Xxxxxxxx
Executive Vice President, General Counsel and
Secretary
EXHIBIT O
FORM OF GUARANTY
THIS GUARANTY dated as of October 28, 2002 executed and delivered by each
of the undersigned and the other Persons from time to time party hereto pursuant
to the execution and delivery of an Accession Agreement in the form of Annex I
hereto (all of the undersigned, together with such other Persons each a
"Guarantor" and collectively, the "Guarantors") in favor of (a) XXXXX FARGO
BANK, NATIONAL ASSOCIATION, in its capacity as Agent (the "Agent") for the
Lenders under that certain Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), the Agent, and the other parties thereto, (b) THE
LENDERS and (c) THE SWINGLINE LENDER.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders have
agreed to make available to the Borrower certain financial accommodations on the
terms and conditions set forth in the Credit Agreement;
WHEREAS, each Guarantor is owned or controlled by the Borrower;
WHEREAS, the Borrower, each Guarantor and the other Subsidiaries of the
Borrower, though separate legal entities, are mutually dependent on each other
in the conduct of their respective businesses as an integrated operation and
have determined it to be in their mutual best interests to obtain financing from
the Agent and the Lenders through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and,
accordingly, each Guarantor is willing to guarantee the Borrower's obligations
to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is a
condition to the Agent and the Lenders making, and continuing to make, such
financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. GUARANTY. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of all of the
following (collectively referred to as the "Guarantied Obligations"): (a) all
indebtedness and obligations owing by the Borrower to any Lender or the Agent
under or in connection with the Credit Agreement and any other Loan Document to
which the Borrower is a party, including without limitation, the repayment of
all principal of the Revolving Loans, Bid Rate Loans and Swingline Loans, and
the payment of all interest, fees, charges, reasonable attorneys' fees and other
amounts payable to any Lender or the Agent thereunder or in connection
therewith; (b) any and all extensions, renewals, modifications, amendments or
substitutions of the foregoing; (c) all expenses, including, without limitation,
reasonable attorneys' fees and disbursements, that are incurred by the Lenders
and the Agent in the enforcement of any of the foregoing or any obligation of
such Guarantor hereunder and (d) all other Obligations.
Section 2. GUARANTY OF PAYMENT AND NOT OF COLLECTION. This Guaranty is a
guaranty of payment, and not of collection, and a debt of each Guarantor for its
own account. Accordingly, the Lenders and the Agent shall not be obligated or
required before enforcing this Guaranty against any Guarantor: (a) to pursue any
right or remedy the Lenders or the Agent may have against the Borrower, any
other Loan Party or any other Person or commence any suit or other proceeding
against the Borrower, any other Loan Party or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of the
Borrower, any other Loan Party or any other Person; or (c) to make demand of the
Borrower, any other Loan Party or any other Person or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders or the Agent
which may secure any of the Guarantied Obligations.
Section 3. GUARANTY ABSOLUTE. Each Guarantor guarantees that the Guarantied
Obligations will be paid strictly in accordance with the terms of the documents
evidencing the same, regardless of any Applicable Law now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the Agent or
the Lenders with respect thereto. The liability of each Guarantor under this
Guaranty shall be absolute, irrevocable and unconditional in accordance with its
terms and shall remain in full force and effect without regard to, and shall not
be released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, including without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a)(i) any change in the amount, interest rate or due date or other term of
any of the Guarantied Obligations, (ii) any change in the time, place or manner
of payment of all or any portion of the Guarantied Obligations, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the Credit
Agreement, any of the other Loan Documents, or any other documents, instruments
or agreements relating to the Guarantied Obligations or any other instrument or
agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any of
the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment
or transfer of any of the foregoing;
(c) any furnishing to the Agent or the Lenders of any security for the
Guarantied Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral securing any of the Obligations;
(d) any settlement or compromise of any of the Guarantied Obligations, any
security therefor, or any liability of any other party with respect to the
Guarantied Obligations, or any subordination of the payment of the Guarantied
Obligations to the payment of any other liability of the Borrower or any other
Loan Party;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to such Guarantor,
the Borrower, any other Loan Party or any other Person, or any action taken with
respect to this Guaranty by any trustee or receiver, or by any court, in any
such proceeding;
(f) any act or failure to act by the Borrower, any other Loan Party or any
other Person which may adversely affect such Guarantor's subrogation rights, if
any, against the Borrower to recover payments made under this Guaranty;
(g) any nonperfection or impairment of any security interest or other Lien
on any collateral, if any, securing in any way any of the Obligations;
(h) any application of sums paid by the Borrower, any Guarantor or any
other Person with respect to the liabilities of the Borrower to the Agent and
the Lenders, regardless of what liabilities of the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of the
Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, a Guarantor hereunder (other than indefeasible
payment in full).
Section 4. ACTION WITH RESPECT TO GUARANTIED OBLIGATIONS. The Lenders and
the Agent may, at any time and from time to time, without the consent of, or
notice to, any Guarantor, and without discharging any Guarantor from its
obligations hereunder, take any and all actions described in Section 3. and may
otherwise: (a) amend, modify, alter or supplement the terms of any of the
Guarantied Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations; (b) amend,
modify, alter or supplement the Credit Agreement or any other Loan Document; (c)
sell, exchange, release or otherwise deal with all, or any part, of any
collateral securing any of the Obligations; (d) release any Loan Party or other
Person liable in any manner for the payment or collection of the Guarantied
Obligations; (e) exercise, or refrain from exercising, any rights against the
Borrower, any other Loan Party or any other Person; and (f) apply any sum, by
whomsoever paid or however realized, to the Guarantied Obligations in such order
as the Lenders shall elect.
Section 5. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby makes to
the Agent and the Lenders all of the representations and warranties made by the
Borrower with respect to or in any way relating to such Guarantor in the Credit
Agreement and the other Loan Documents, as if the same were set forth herein in
full.
Section 6. COVENANTS. Each Guarantor will comply with all covenants which
the Borrower is to cause such Guarantor to comply with under the terms of the
Credit Agreement or any of the other Loan Documents.
Section 7. WAIVER. Each Guarantor, to the fullest extent permitted by
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. INABILITY TO ACCELERATE LOAN. If the Agent and/or the Lenders
are prevented under Applicable Law or otherwise from demanding or accelerating
payment of any of the Guarantied Obligations by reason of any automatic stay or
otherwise, the Agent and/or the Lenders shall be entitled to receive from each
Guarantor, upon demand therefor, the sums which otherwise would have been due
had such demand or acceleration occurred.
Section 9. REINSTATEMENT OF GUARANTIED OBLIGATIONS. If claim is ever made
on the Agent or any Lender for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guarantied Obligations, and the
Agent or such Lender repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body of competent
jurisdiction, or (b) any settlement or compromise of any such claim effected by
the Agent or such Lender with any such claimant (including the Borrower or a
trustee in bankruptcy for the Borrower), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding on it, notwithstanding any revocation hereof or the cancellation of the
Credit Agreement, any of the other Loan Documents, or any other instrument
evidencing any liability of the Borrower, and such Guarantor shall be and remain
liable to the Agent or such Lender for the amounts so repaid or recovered to the
same extent as if such amount had never originally been paid to the Agent or
such Lender.
Section 10. SUBROGATION. Upon the making by any Guarantor of any payment
hereunder for the account of the Borrower, such Guarantor shall be subrogated to
the rights of the payee against the Borrower; provided, however, that such
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Guarantor shall not enforce any right or receive any payment by way of
subrogation or otherwise take any action in respect of any other claim or cause
of action such Guarantor may have against the Borrower arising by reason of any
payment or performance by such Guarantor pursuant to this Guaranty, unless and
until all of the Guarantied Obligations have been indefeasibly paid and
performed in full. If any amount shall be paid to such Guarantor on account of
or in respect of such subrogation rights or other claims or causes of action,
such Guarantor shall hold such amount in trust for the benefit of the Agent and
the Lenders and shall forthwith pay such amount to the Agent to be credited and
applied against the Guarantied Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement or to be held by the Agent as
collateral security for any Guarantied Obligations existing.
Section 11. PAYMENTS FREE AND CLEAR. All sums payable by each Guarantor
hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any Taxes), and if such Guarantor
is required by Applicable Law or by any Governmental Authority to make any such
deduction or withholding, provided the requirements set forth in Section 3.11 of
the Credit Agreement are satisfied, such Guarantor shall pay to the Agent and
the Lenders such additional amount as will result in the receipt by the Agent
and the Lenders of the full amount payable hereunder had such deduction or
withholding not occurred or been required.
Section 12. SET-OFF. In addition to any rights now or hereafter granted
under any of the other Loan Documents or Applicable Law and not by way of
limitation of any such rights, each Guarantor hereby authorizes the Agent and
each Lender, at any time while an Event of Default exists, without any prior
notice to such Guarantor or to any other Person, any such notice being hereby
expressly waived, but in the case of a Lender 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 such Guarantor against and on account of any of the
Guarantied Obligations, although such obligations shall be contingent or
unmatured. Each Guarantor agrees, to the fullest extent permitted by Applicable
Law, that any Participant may exercise rights of setoff or counterclaim and
other rights with respect to its participation as fully as if such Participant
were a direct creditor of such Guarantor in the amount of such participation.
Section 13. SUBORDINATION. Each Guarantor hereby expressly covenants and
agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of the Borrower to such Guarantor of whatever description, including
without limitation, all intercompany receivables of such Guarantor from the
Borrower (collectively, the "Junior Claims") shall be subordinate and junior in
right of payment to all Guarantied Obligations. If an Event of Default shall
exist, then no Guarantor shall accept any direct or indirect payment (in cash,
property or securities, by setoff or otherwise) from the Borrower on account of
or in any manner in respect of any Junior Claim until all of the Guarantied
Obligations have been indefeasibly paid in full.
Section 14. AVOIDANCE PROVISIONS. It is the intent of each Guarantor, the
Agent and the Lenders that in any Proceeding, such Guarantor's maximum
obligation hereunder shall equal, but not exceed, the maximum amount which would
not otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
Applicable Law, including without limitation, (a) Section 548 of the Bankruptcy
Code of 1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such Proceeding,
whether by virtue of Section 544 of the Bankruptcy Code or otherwise. The
Applicable Laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Agent and the Lenders) shall be determined in any such
Proceeding are referred to as the "Avoidance Provisions". Accordingly, to the
extent that the obligations of any Guarantor hereunder would otherwise be
subject to avoidance under the Avoidance Provisions, the maximum Guarantied
Obligations for which such Guarantor shall be liable hereunder shall be reduced
to that amount which, as of the time any of the Guarantied Obligations are
deemed to have been incurred under the Avoidance Provisions, would not cause the
obligations of any Guarantor hereunder (or any other obligations of such
Guarantor to the Agent and the Lenders), to be subject to avoidance under the
Avoidance Provisions. This Section is intended solely to preserve the rights of
the Agent and the Lenders hereunder to the maximum extent that would not cause
the obligations of any Guarantor hereunder to be subject to avoidance under the
Avoidance Provisions, and no Guarantor or any other Person shall have any right
or claim under this Section as against the Agent and the Lenders that would not
otherwise be available to such Person under the Avoidance Provisions.
Section 15. INFORMATION. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower and
the other Loan Parties, and of all other circumstances bearing upon the risk of
nonpayment of any of the Guarantied Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
neither of the Agent nor any Lender shall have any duty whatsoever to advise any
Guarantor of information regarding such circumstances or risks.
Section 16. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
SECTION 17. WAIVER OF JURY TRIAL.
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(a) EACH GUARANTOR, AND EACH OF THE AGENT AND THE LENDERS BY ACCEPTING THE
BENEFITS HEREOF, ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN SUCH
GUARANTOR, 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
GUARANTORS, THE LENDERS AND THE AGENT 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 GUARANTY, ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF
ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG EACH OF THE GUARANTORS, THE AGENT
OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
(b) EACH GUARANTOR, AND EACH OF THE AGENT AND THE LENDERS BY ACCEPTING THE
BENEFITS HEREOF, HEREBY AGREES THAT THE FEDERAL DISTRICT COURT OF THE NORTHERN
DISTRICT OF CALIFORNIA OR, AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED
IN SAN FRANCISCO, CALIFORNIA, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN OR AMONG THE GUARANTORS, THE AGENT OR ANY OF THE
LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY, OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH GUARANTOR AND EACH
OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH GUARANTOR HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED
THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER PROCESS
OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
GUARANTOR AT ITS ADDRESS FOR NOTICES PROVIDED FOR HEREIN. SHOULD A GUARANTOR
FAIL TO APPEAR OR ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED
WITHIN THIRTY DAYS AFTER THE MAILING THEREOF, SUCH GUARANTOR SHALL BE DEEMED IN
DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR
PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. 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 AND THE TERMINATION OF THIS
GUARANTY.
Section 18. LOAN ACCOUNTS. The Agent and each Lender may maintain books and
accounts setting forth the amounts of principal, interest and other sums paid
and payable with respect to the Guarantied Obligations, and in the case of any
dispute relating to any of the outstanding amount, payment or receipt of any of
the Guarantied Obligations or otherwise, the entries in such books and accounts
shall constitute prima facie evidence of amounts and other matters set forth
therein. The failure of the Agent or any Lender to maintain such books and
accounts shall not in any way relieve or discharge any Guarantor of any of its
obligations hereunder.
Section 19. WAIVER OF REMEDIES. No delay or failure on the part of the
Agent or any Lender in the exercise of any right or remedy it may have against
any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Agent or any Lender of any such right or
remedy shall preclude any other or further exercise thereof or the exercise of
any other such right or remedy.
Section 20. TERMINATION. This Guaranty shall remain in full force and
effect with respect to each Guarantor until indefeasible payment in full of the
Guarantied Obligations and the other Obligations and the termination or
cancellation of the Credit Agreement in accordance with its terms.
Section 21. SUCCESSORS AND ASSIGNS. Each reference herein to the Agent or
any Lender shall be deemed to include such Person's respective successors and
permitted assigns (including, but not limited to, any holder of the Guarantied
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to each Guarantor shall be deemed to include such
Guarantor's successors and assigns, upon whom this Guaranty also shall be
binding. The Lenders may, in accordance with the applicable provisions of the
Credit Agreement, assign, transfer or sell any Guarantied Obligation, or grant
or sell participations in any Guarantied Obligations, to any Person without the
consent of, or notice to, any Guarantor and without releasing, discharging or
modifying any Guarantor's obligations hereunder. Each Guarantor hereby consents
to the delivery by the Agent and any Lender to any Assignee or Participant (or
any prospective Assignee or Participant) of any financial or other information
regarding the Borrower or any Guarantor. No Guarantor may assign or transfer its
obligations hereunder to any Person 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.
Section 22. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
GUARANTORS HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR
CONFIRMS THAT IT IS LIABLE FOR THE FULL AMOUNT OF THE "GUARANTIED OBLIGATIONS"
AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS
HEREUNDER.
Section 23. AMENDMENTS. This Guaranty may not be amended except in writing
signed by the Agent and each Guarantor.
Section 24. PAYMENTS. All payments to be made by any Guarantor pursuant to
this Guaranty shall be made in Dollars, in immediately available funds to the
Agent at its Principal Office, not later than 11:00 a.m. San Francisco time, on
the date one Business Day after demand therefor.
Section 25. NOTICES. All notices, requests and other communications
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given (a) to each Guarantor at its address set forth below
its signature hereto, (b) to the Agent or any Lender at its address for notices
provided for in the Credit Agreement, or (c) as to each such party at such other
address as such party shall designate in a written notice to the other parties.
Each such notice, request or other communication shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered; provided, however, that any notice of a change of
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address for notices shall not be effective until received.
Section 26. SEVERABILITY. In case any provision of this Guaranty shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 27. HEADINGS. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 28. LIMITATION OF LIABILITY. Neither the Agent nor any Lender, nor
any affiliate, officer, director, employee, attorney, or agent of the Agent or
any Lender, shall have any liability with respect to, and each Guarantor 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
a Guarantor in connection with, arising out of, or in any way related to, this
Guaranty or any of the other Loan Documents, or any of the transactions
contemplated by this Guaranty, the Credit Agreement or any of the other Loan
Documents. Each Guarantor hereby waives, releases, and agrees not to xxx the
Agent or any Lender or any of the Agent's or any Lender'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
Guaranty, the Credit Agreement or any of the other Loan Documents, or any of the
transactions contemplated by the Credit Agreement or financed thereby.
Section 29. DEFINITIONS. (a) For the purposes of this Guaranty:
"Proceeding" means any of the following: (i) a voluntary or involuntary
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case concerning any Guarantor shall be commenced under the Bankruptcy Code of
1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any
other applicable bankruptcy laws) is appointed for, or takes charge of, all or
any substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for adjustment
of debts, whether now or hereafter in effect, is commenced relating to any
Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any
order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
(ix) any Guarantor shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or (x) any corporate action
shall be taken by any Guarantor for the purpose of effecting any of the
foregoing.
(b) Terms not otherwise defined herein are used herein with the respective
meanings given them in the Credit Agreement.
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
[GUARANTOR]
By:
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Name:
-------------------------------------
Title:
------------------------------------
Address for Notices for all Guarantors:
c/o Realty Income Corporation
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Attention:
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Telecopier:
--------------------------
Telephone:
--------------------------
ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of , , executed and
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delivered by , a (the "New Guarantor") in
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favor of (a) XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its capacity as Agent
(the "Agent") for the Lenders under that certain Credit Agreement dated as of
October 28, 2002 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), by and among Realty Income Corporation
(the "Borrower"), the financial institutions party thereto and their assignees
under Section 13.6 thereof (the "Lenders"), Xxxxx Fargo Bank, National
Association, as Agent (the "Agent"), and the other parties thereto, and (b) the
Lenders.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders have
agreed to make available to the Borrower certain financial accommodations on the
terms and conditions set forth in the Credit Agreement;
WHEREAS, the New Guarantor is owned or controlled by the Borrower;
WHEREAS, the Borrower, the New Guarantor and the other Subsidiaries of the
Borrower, though separate legal entities, are mutually dependent on each other
in the conduct of their respective businesses as an integrated operation and
have determined it to be in their mutual best interests to obtain financing from
the Agent and the Lenders through their collective efforts;
WHEREAS, the New Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrower under the Credit Agreement and,
accordingly, the New Guarantor is willing to guarantee the Borrower's
obligations to the Agent and the Lenders on the terms and conditions contained
herein; and
WHEREAS, the New Guarantor's execution and delivery of this Agreement is a
condition to the Agent and the Lenders continuing to make such financial
accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Guarantor, the New
Guarantor agrees as follows:
Section 1. ACCESSION TO GUARANTY. The New Guarantor hereby agrees that it
is a "Guarantor" under the Guaranty and assumes all obligations of a "Guarantor"
thereunder, all as if the New Guarantor had been an original signatory to the
Guaranty. Without limiting the generality of the foregoing, the New Guarantor
hereby:
(a) irrevocably and unconditionally guarantees the due and punctual payment
and performance when due, whether at stated maturity, by acceleration or
otherwise, of all Guarantied Obligations (as defined in the Guaranty);
(b) makes to the Agent and the Lenders as of the date hereof each of the
representations and warranties contained in Section 5 of the Guaranty and agrees
to be bound by each of the covenants contained in Section 6 of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
[Signatures on Next Page]
IN WITNESS WHEREOF, the New Guarantor has caused this Accession Agreement
to be duly executed and delivered under seal by its duly authorized officers as
of the date first written above.
[NEW GUARANTOR]
By:
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Name:
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Title:
------------------------------------
(CORPORATE SEAL)
Address for Notices:
c/o Realty Income Corporation
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Attention:
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Telecopier:
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Telephone:
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Accepted:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Agent
By:
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Name:
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Title:
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EXHIBIT P
FORM OF COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given to them in the
Credit Agreement.
Pursuant to Section 9.3 of the Credit Agreement, the undersigned hereby
certifies on behalf of the Borrower to the Agent and the Lenders that:
1. (a) The undersigned has reviewed the terms of the Credit Agreement and
has made a review of the transactions, financial condition and other affairs of
the Borrower and its Subsidiaries as of, and during the relevant accounting
period ending on, , 200 and (b) such review has not disclosed
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the existence during such accounting period, and the undersigned does not have
knowledge of the existence, as of the date hereof, of any condition or event
constituting a Default or Event of Default [except as set forth on Attachment A
hereto, which accurately describes the nature of the conditions(s) or event(s)
that constitute (a) Default(s) or (an) Event(s) of Default and the actions which
the Borrower (is taking)(is planning to take) with respect to such condition(s)
or event(s)].
2. Schedule 1 attached hereto accurately and completely sets forth the
calculations required to establish compliance with Section 10.1 of the Credit
Agreement on the date of the financial statements for the accounting period set
forth above.
3. As of the date hereof the aggregate outstanding principal amount of all
outstanding Revolving Loans, together with the aggregate principal amount of all
outstanding Swingline Loans and the aggregate outstanding principal amount of
all outstanding Bid Rate Loans are less than or equal to the Maximum Loan
Availability at such time.
4. As of the date hereof, (a) no Default or Event of Default exists, and
(b) the representations and warranties of the Borrower and the other Loan
Parties contained in the Credit Agreement and the other Loan Documents are true
and correct in all material respects, except to the extent such representations
or warranties specifically relate to an earlier date or such representations or
warranties become untrue by reason of events or conditions otherwise permitted
under the Credit Agreement or the other Loan Documents.
IN WITNESS WHEREOF, the undersigned has signed this Compliance Certificate
on and as of , 200 .
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Name:
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Title:
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EXHIBIT Q
FORM OF UNENCUMBERED POOL CERTIFICATE
Reference is made to the Credit Agreement dated as of October 28, 2002 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Realty Income Corporation (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof (the "Lenders"), Xxxxx Fargo Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given to them in the
Credit Agreement.
Pursuant to Section [9.4][4.1(b)][4.1(c)] of the Credit Agreement, the
undersigned hereby certifies to the Lenders and the Agent that:
1. With respect to each of the Properties listed on Schedule 1 attached
hereto, that either:
(a) (i) such Property is owned in fee simple by the Borrower or a Wholly
Owned Subsidiary;
(ii) such Property is a completed retail property and either (A) is
leased to third party tenants on either a net lease basis or (B) is
the Silverton Business Center;
(iii) such Property is located in a State of the United States of
America or in the District of Columbia;
(iv) regardless of whether such Property is owned by the Borrower or a
Subsidiary, the Borrower has the right directly, or indirectly through
a Subsidiary, to take the following actions without the need to obtain
the consent of any Person:
(A) to create Liens on such Property as security for Indebtedness
of the Borrower or such Subsidiary, as applicable; and
(B) to sell, transfer or otherwise dispose of such Property;
(v) neither such Property, nor if such Property is owned by a
Subsidiary, any of the Borrower's direct or indirect ownership
interest in such Subsidiary is subject to:
(A) any Lien other than the Permitted Liens or
(B) any Negative Pledge;
(vi) either (A) the Occupancy Rate of such Property equals or exceeds
85% or (B) such Property is the Silverton Business Center and the
Occupancy Rate equals or exceeds 80%;
(vii) such Property is not a Development Property;
(viii) such Property is not subject to a ground lease;
(ix) such Property is free of all structural defects, title defects,
environmental conditions or other adverse matters except for defects,
conditions or matters individually or collectively which are not
material to the profitable operation of such Property; and
(x) such Property either (A) had an original purchase price not
greater than $20,000,000 or (B) such Property is the Silverton
Business Center.
or
(b) the Requisite Lenders have approved the inclusion of such Property as
an Unencumbered Pool Property pursuant to Section 4.1(c) of the Credit
Agreement.
2. Schedule 2 attached hereto accurately and completely sets forth, in
reasonable detail, the information required by the Agent and Lenders relating to
each Unencumbered Pool Property* as of ___________, 200___.
3. Schedule 3 attached hereto accurately and completely sets forth, in
reasonable detail, the information required by the Agent and Lenders in
determining the Borrowing Base and Maximum Loan Availability as of ___________,
200___.
4. Schedule 4 attached hereto sets forth a description of all Properties
which have ceased to be included as Unencumbered Pool Properties since the
previous Unencumbered Pool Certificate most recently delivered to the Agent.
5. As of the date hereof (a) no Default or Event of Default exists, and (b)
the representations and warranties of the Borrower and the other Loan Parties
contained in the Credit Agreement and the other Loan Documents are true and
correct in all material respects, except to the extent such representations or
warranties specifically relate to an earlier date or such representations or
warranties become untrue by reason of events or conditions otherwise permitted
under the Credit Agreement or the other Loan Documents.
IN WITNESS WHEREOF, the undersigned has signed this Unencumbered Pool
Certificate on and as of , 200 .
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* If the Unencumbered Pool Certificate is delivered in connection with the
submission of an Eligible Property as an Unencumbered Pool Property
pursuant to Section 4.1(b) or (c), then each of the calculations set forth
on Schedules 2 and 3 should include such Eligible Property as if it is
already an Unencumbered Pool Property.
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Name:
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Title: Chief Financial Officer
