LOAN AGREEMENT
Dated: As of January 30, 2004
Among
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P. a Delaware limited partnership
("Borrower")
and
FLEET NATIONAL BANK, as Administrative Agent ("Administrative Agent"),
and
FLEET NATIONAL BANK, COMMERZBANK AG NEW YORK BRANCH, PB CAPITAL
CORPORATION, MANUFACTURERS AND TRADERS TRUST COMPANY, SOVEREIGN
BANK, XXXXXXX XXXXX BANK, FSB, CITIZENS BANK, and any
other Lenders, if any, which may become parties to
this Agreement ( "Lenders")
________________
FLEET SECURITIES, INC. ("Arranger")
________________
$100,000,000.00 LOAN
TABLE OF CONTENTS
Page
1. BACKGROUND...........................................................1
1.1 Defined Terms...............................................1
1.2 Borrower....................................................1
1.3 Use of Loan Proceeds........................................1
1.4 Guaranties..................................................1
1.5 Loan........................................................1
2. LOAN PROVISIONS......................................................2
2.1 General Loan Provisions.....................................2
2.1.1 Limit............................................2
2.1.2 Procedures and Limits............................2
2.1.3 Funding Procedures...............................3
2.2 Term of Loan................................................4
(i) No Default................................4
(ii) Notice From Borrower......................4
(iii) Covenant Compliance.......................5
(iv) Conditions Satisfied......................5
(v) Extension Fee.............................5
(vii) Additional Documents......................5
(viii) Before End of Term........................5
2.3 Interest Rate and Payment Terms.............................5
2.3.1 Borrower's Options...............................5
2.3.2 Selection To Be Made.............................5
2.3.3 Notice...........................................6
2.3.4 If No Notice.....................................6
2.3.5 Telephonic Notice................................6
2.3.6 Limits On Options, One Selection Per Month.......6
2.3.7 Payment and Calculation of Interest..............6
2.3.8 Mandatory Principal Payments.....................6
2.3.9 Prepayment.......................................7
2.3.10 Maturity.........................................7
2.3.11 Method of Payment; Date of Credit................7
2.3.12 Xxxxxxxx.........................................7
2.3.13 Default Rate.....................................8
2.3.14 Late Charges.....................................8
2.3.15 Breakage Fees....................................8
2.4 Loan Fees; Administrative Agent's Fees......................8
2.4.1 Loan Fees........................................8
2.4.2 Line Fee.........................................8
2.4.3 Issuance Fees....................................9
2.4.4 Letter of Credit Fees............................9
2.5 Acceleration................................................9
2.6 Additional Provisions Related to Interest Rate Selection....9
2.6.1 Increased Costs..................................9
2.6.2 Illegality.......................................9
2.6.3 Additional LIBO Rate Conditions.................10
2.6.4 Variable Rate Advances..........................11
2.7 Letters of Credit..........................................11
(2)
3. SECURITY FOR THE LOAN; LOAN AND SECURITY DOCUMENTS..................14
3.1 Security...................................................14
3.1.1 Mortgage/ Deed of Trust and Security Agreement..15
3.1.2 Collateral Assignment of Leases and Rents.......16
3.1.3 Collateral Assignment of Contracts..............16
3.1.4 Guaranties......................................16
3.1.5 Environmental Compliance and Indemnification
Agreement.....................................16
3.1.6 Ownership Interest and Inter-Company Loan
Pledge........................................16
3.2 Loan Documents and Security Documents......................16
3.3 Removal of Individual Property as a Borrowing Base Property
- Borrower...............................................17
3.4 Removal of Individual Property as a Borrowing Base Property
- Administrative Agent...................................18
3.5 Additional Borrowing Base Property.........................19
4. CONTINUING AUTHORITY OF AUTHORIZED REPRESENTATIVES..................20
5. CONDITIONS PRECEDENT................................................20
5.1 Closing Loan and Funding Initial Loan Advance..............20
5.1.2 Financial Information; No Material Change.......20
5.1.3 Warranties and Representations Accurate.........21
5.1.4 Validity and Sufficiency of Security Documents..21
5.1.5 Litigation......................................22
5.1.6 Formation Documents and Entity Agreements.......22
5.1.7 Compliance With Law.............................23
5.1.8 Compliance With Financial Covenants.............23
5.1.9 Borrowing Base Property Due Diligence...........23
5.1.10 Condition of Property...........................23
5.1.11 Insurance.......................................23
5.1.12 Third Party Consents and Agreements.............23
5.1.13 Cash Management.................................23
5.1.14 Legal and other Opinions........................23
5.1.15 No Default......................................23
6. WARRANTIES AND REPRESENTATIONS......................................24
6.1 Formation..................................................24
6.2 Proceedings; Enforceability................................24
6.3 Conflicts..................................................24
6.4 Ownership and Taxpayer Identification Numbers..............25
6.5 Litigation.................................................25
6.6 Information................................................25
6.7 Taxes......................................................25
6.8 Financial Information......................................25
6.9 Control Provisions.........................................25
6.10 Formation Documents........................................26
6.11 Bankruptcy Filings.........................................26
6.12 Investment Company.........................................26
6.13 Holding Company............................................26
(3)
6.14 Borrowing Base Properties..................................26
6.15 Use of Proceeds............................................28
6.16 Insurance..................................................28
6.17 Deferred Compensation and ERISA............................28
6.18 Conditions Satisfied.......................................28
6.19 No Default.................................................28
6.20 Other Loan Parties' Warranties and Representations.........28
6.21 Qualification as a REIT....................................28
6.22 Regarding Representations and Warranties...................28
7. AFFIRMATIVE COVENANTS...............................................29
7.1 Notices....................................................29
7.2 Financial Statements; Reports; Officer's Certificates......29
7.2.1 Annual Statements...............................29
7.2.2 Periodic Statements.............................29
7.2.3 Borrowing Base Property Reports.................30
7.2.4 SEC Reports.....................................30
7.2.5 Compliance Certificates.........................30
7.2.6 Data Requested..................................30
7.2.7 Tax Returns.....................................30
7.2.8 Lease Notices...................................30
7.2.9 Ground Lessor Interest Notices..................31
7.2.10 Entity Notices..................................31
7.2.12 Property Finance................................31
7.2.13 Notice of Litigation............................31
7.3 Existence..................................................31
7.4 Payment of Taxes...........................................31
7.5 Insurance; Casualty, Taking................................32
7.6 Inspection.................................................32
7.7 Loan Documents.............................................32
7.8 Further Assurances.........................................33
7.9 Books and Records..........................................33
7.10 Business and Operations....................................33
7.11 Title......................................................33
7.12 Estoppel...................................................34
7.13 ERISA......................................................34
7.14 Depository Account.........................................35
7.15 Costs and Expenses.........................................35
7.16 Appraisals.................................................35
7.16.1 Appraisal.......................................35
7.16.2 Costs of Appraisal..............................35
7.17 Indemnification............................................35
7.18 Leasing Matters............................................36
7.18.1 Administrative Agent's Approval Required........36
7.18.2 Borrower's Requests.............................36
7.18.3 Response........................................37
7.18.4 Advance Information. ..........................37
7.18.5 Preliminary Submission. .......................37
7.19 Interest Expense Coverage..................................37
7.20 Leverage Ratio.............................................37
7.21 Fixed Charge Ratio.........................................38
7.22 Net Worth..................................................38
(4)
7.23 Borrowing Base Property Covenants..........................38
7.25 Replacement Documentation..................................38
7.26 Other Covenants............................................38
7.27 Maintenance of REIT Status.................................39
7.28 Lenders' Consultants.......................................39
7.28.1 Right to Employ. ...............................39
7.28.2 Functions.......................................39
7.28.3 Payment.........................................39
7.28.4 Access..........................................39
7.28.5 No Liability....................................39
8. NEGATIVE COVENANTS..................................................39
8.1 No Changes to Borrower and other Loan Parties..............39
8.2 Restrictions on Liens......................................40
8.3 Consolidations, Mergers, Sales of Assets, Issuance and Sale
of Equity.................................................40
8.4 Restrictions on Debt.......................................42
8.5 Other Business.............................................42
8.6 Change of Control..........................................43
8.7 Forgiveness of Debt........................................43
8.8 Affiliate Transactions.....................................43
8.9 ERISA. ................................................43
8.10 Bankruptcy Filings.........................................43
8.11 Investment Company.........................................43
8.12 Holding Company............................................43
8.13 Use of Proceeds............................................43
8.14 Distributions..............................................43
8.15 Restrictions on Investments................................43
8.16 Negative Pledges, etc......................................44
9. SPECIAL PROVISIONS..................................................44
9.1 Legal Requirements.........................................44
9.2 Limited Recourse Provisions................................44
9.2.1 Borrower Fully Liable...........................44
9.2.2 Certain Non-Recourse............................44
9.2.3 Additional Matters..............................45
9.3 Payment of Obligations.....................................45
10. EVENTS OF DEFAULT...................................................45
10.1 Default and Events of Default..............................45
10.1.1 Failure to Pay the Loan.........................45
10.1.2 Failure to Make Other Payments..................45
10.1.3 Note, Security Documents, and Other Loan
Documents.....................................46
10.1.4 Default under Other Agreements..................46
10.1.5 Representations and Warranties..................46
10.1.6 Affirmative Covenants...........................46
10.1.7 Negative Covenants..............................46
10.1.8 Financial Status and Insolvency.................46
10.1.9 Loan Documents..................................47
10.1.10 Judgments.......................................47
10.1.11 ERISA...........................................47
(5)
10.1.12 Change of Control...............................47
10.1.15 Generally.......................................48
10.2 Grace Periods and Notice...................................48
10.2.1 No Notice or Grace Period.......................48
10.2.2 Nonpayment of Interest..........................48
10.2.3 Other Monetary Defaults.........................48
10.2.4 Nonmonetary Defaults Capable of Cure............48
10.2.5 Borrowing Base Property Defaults................49
11. REMEDIES............................................................49
11.1 Remedies...................................................49
11.1.1 Accelerate Debt.................................49
11.1.2 Collateralize Letters of Credit.................49
11.1.3 Pursue Remedies.................................49
11.2 Written Waivers............................................49
11.3 Power of Attorney..........................................49
12. SECURITY INTEREST AND SET-OFF.......................................50
12.1 Security Interest..........................................50
12.2 Set-Off....................................................50
12.3 Right to Freeze............................................51
12.4 Additional Rights..........................................51
13. THE ADMINISTRATIVE AGENT AND THE LENDERS............................51
13.1 Rights, Duties and Immunities of the Administrative Agent..51
13.1.1 Appointment of Administrative Agent.............51
13.1.2 Administration of Loan by Administrative Agent..51
13.1.3 Delegation of Duties............................52
13.1.4 Exculpatory Provisions..........................52
13.1.5 Reliance by Administrative Agent................52
13.1.6 Notice of Default...............................53
13.1.7 Lenders' Credit Decisions.......................53
13.1.8 Administrative Agent's Reimbursement and
Indemnification...............................53
13.1.9 Administrative Agent in its Individual Capacity.54
13.1.10 Successor Administrative Agent..................54
13.1.11 Duties in the Case of Enforcement...............54
13.2 Respecting Loans and Payments..............................55
13.2.1 Procedures for Loans............................55
13.2.2 Nature of Obligations of Lenders................55
13.2.3 Payments to Administrative Agent................56
13.2.4 Distribution of Liquidation Proceeds............56
13.2.5 Adjustments.....................................57
13.2.6 Setoff..........................................57
13.2.7 Distribution by Administrative Agent............57
13.2.8 Delinquent Lender...............................57
13.2.9 Holders.........................................58
13.3 Assignment and Participation...............................58
13.3.1 Conditions to Assignment by Lenders.............58
13.3.2 Certain Representations and Warranties..........59
(6)
13.3.3 Register........................................60
13.3.4 Register........................................60
13.3.5 Participations..................................60
13.3.6 Disclosure......................................60
13.3.7 Miscellaneous Assignment Provisions.............61
13.3.8 Assignment by Borrower..........................61
13.4 Administrative Matters.....................................61
13.4.1 Amendment, Waiver, Consent, Etc.................61
13.4.2 Deemed Consent or Approval......................62
13.5 Arranger...................................................62
14. CASUALTY AND TAKING.................................................62
14.1 Casualty or Taking; Obligation To Repair...................62
14.2 Adjustment of Claims.......................................62
14.3 Payment and Application of Insurance Proceeds and
Condemnation Awards......................................63
14.4 Conditions To Release of Insurance Proceeds................64
15. GENERAL PROVISIONS..................................................65
15.1 Notices....................................................65
15.2 Limitations on Assignment..................................67
15.3 Further Assurances.........................................67
15.4 Payments...................................................67
15.5 Parties Bound..............................................67
15.6 Governing Law; Consent to Jurisdiction; Mutual Waiver of
Jury Trial...............................................68
15.6.1 Substantial Relationship.......................68
15.6.2 Place of Delivery..............................68
15.6.3 Governing Law..................................68
15.6.4 Exceptions.....................................68
15.6.5 Consent to Jurisdiction........................68
15.6.6 JURY TRIAL WAIVER..............................69
15.7 Survival..........................................69
15.8 Cumulative Rights..........................................69
15.9 Claims Against Administrative Agent or Lenders.............69
15.9.1 Borrower Must Notify............................69
15.9.2 Remedies........................................70
15.9.3 Limitations.....................................70
15.10 Regarding Consents.........................................70
15.11 Obligations Absolute.......................................70
15.12 Table of Contents, Title and Headings......................70
15.13 Counterparts...............................................71
15.14 Satisfaction of Commitment Letter..........................71
15.15 Time Of the Essence........................................71
15.16 No Oral Change.............................................71
15.17 Monthly Statements.........................................71
(7)
EXHIBITS
Exhibits .....................................................................2
Exhibit A -- Definitions..............................................EA-1
Exhibit B-1 -- Requisition; Availability Certificate....................EB-1
Exhibit C -- Note....................................................EC-1
Exhibit D -- Authorized Representatives...............................ED-1
Exhibit E -- Required Property, Hazard and Other Insurance............EE-1
Exhibit F -- Ownership Interests and Taxpayer Identification
Numbers.................................................EF-1
Exhibit G -- Compliance Certificate...................................EG-1
Exhibit H -- Form of Assignment and Acceptance........................EH-1
Exhibit I -- Lenders' Commitment......................................EI-1
Exhibit J -- Borrowing Base Properties................................EJ-1
Exhibit K -- Loan Agenda.........................................Exhibit A
Exhibit EC -- Estoppel Certificate................................Exhibit A
Exhibit TP -- Theater Parcel..........................................3.3.7
Exhibit CC -- Closing Compliance Certificate..........................3.3.7
(8)
SCHEDULES
Page
Schedule 1.3............................................................1
Schedule 6.14.2(i).....................................................26
Schedule 6.14.4(ii)....................................................27
Schedule 6.14.4(iii)...................................................27
Schedule 6.14.4(iv)....................................................28
Schedule 6.14.5........................................................28
(9)
LOAN AGREEMENT
This agreement ("Loan Agreement" or "Agreement") is made and entered
into as of the 30th day of January, 2004, by and between CEDAR SHOPPING CENTERS
PARTNERSHIP, L.P., a Delaware limited partnership having an address at 00 Xxxxx
Xxxxxx Xxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 ("Borrower") and FLEET NATIONAL
BANK, a national banking association, with a place of business at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, COMMERZBANK AG NEW YORK BRANCH, with an
address at 2 World Financial Center, New York, New York 10281, PB CAPITAL
CORPORATION, with an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
MANUFACTURERS AND TRADERS TRUST COMPANY, with an address at Xxx X & X Xxxxx,
Xxxxxxx, Xxx Xxxx 00000, SOVEREIGN BANK, with an address at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 XXXXXXX XXXXX BANK, FSB, with an address at 000
Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, CITIZENS BANK, with an address
at 0000 Xxxxxxxx Xxxx 194-0245, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000,
and the other lending institutions which are or may hereafter become parties to
this Agreement pursuant to Section 13.3 (the "Lenders") and FLEET NATIONAL BANK,
a national banking association, with a place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, 00000, as agent for itself and such other lending
institutions (the "Administrative Agent").
WITNESSETH:
1. BACKGROUND.
1.1 Defined Terms. Capitalized terms used in this Agreement are defined
either in Exhibit A, or in specific sections of this Agreement, or in another
Loan Document, as referenced in Exhibit A.
1.2 Borrower. Borrower is a limited partnership organized under the
laws of the State of Delaware of which the sole general partner is CSC.
1.3 Use of Loan Proceeds. Borrower has applied to Lenders for a
revolving loan of not to exceed ONE HUNDRED MILLION DOLLARS ($100,000,000.00)
("Loan"), the proceeds of which are to be used to (a) repay certain existing
indebtedness of the Borrower, (b) provide working capital to the Borrower, CSC,
and the Borrower Subsidiaries, (c) to provide funds for acquisitions,
development, capital expenditures, and refinancings of real estate properties by
the Borrower, CSC, and the Borrower Subsidiaries, (d) to pay certain closing and
transactional costs as approved by the Administrative Agent, and (e) for other
lawful REIT purposes, including, without limitation, the disbursements on the
Closing Date set forth in Schedule 1.3.
1.4 Guaranties. As an inducement to Lenders to make the Loan, CEDAR
SHOPPING CENTERS, INC., a Maryland corporation, ("CSC") and each Borrowing Base
Property Owner (severally and collectively called "Guarantor" or "Guarantors")
have agreed to furnish guaranties to the Administrative Agent, for the ratable
benefit of the Lenders. The establishment of the facility provided for herein
and the making of the Loan is in the best interest of each of the Guarantors as
the proceeds of the Loan are being, or may be, used to satisfy Debt of certain
of the Guarantors and to make available funds to the Guarantors for working
capital purposes and for acquisitions, development, capital expenditures, and
refinancings of real estate properties. The Lenders have advised the Borrower
that the Lenders will not establish this facility without the Guaranty from the
Guarantors.
-1-
1.5 Loan. Subject to all of the terms, conditions and provisions of
this Agreement, and of the agreements and instruments referred to herein, each
of the Lenders agrees severally to make a loan to the Borrower up to a maximum
aggregate principal amount equal to such Lender's Commitment, and Borrower
agrees to accept and repay the Loan in accordance with the terms of this
Agreement.
2. LOAN PROVISIONS.
2.1 General Loan Provisions.
2.1.1 Limit.
(i) Subject to all of the terms and conditions
hereof, the Lenders hereby agree to lend to Borrower, and
Borrower may borrow, reborrow and repay from time to time sums
(the "Loan Advances") between the date hereof and the Initial
Maturity Date, provided that (a) the aggregate of (1)
outstanding principal balance of the Loan plus (2) the L/C
Exposure, shall at no time exceed (b) the least of (1) the
Established Loan Amount, (2) the Total Commitment, or (3) the
Availability (the least of (1), (2) or (3), the "Maximum Loan
Amount").
(ii) The obligations of the Lenders hereunder are
several and independent and not joint. Failure of any Lender
to fulfill its obligations hereunder shall not result in any
other Lender becoming obligated to advance more than its
Commitment Percentage of the Loan.
(iii) The Borrower acknowledges and agrees that no
Loan Advances shall be made during the Extended Term, if
applicable.
2.1.2 Procedures and Limits. Until the Initial Maturity Date,
the Lenders shall, subject to compliance with all of the other terms,
conditions and provisions of this Agreement and there then occurring no
Default or Event of Default, make disbursements to Borrower of Loan
Advances in installments in accordance with the following:
(i) Written Requests. Loan Advances shall be made, at
Borrower's written request to Administrative Agent, not more
frequently than four (4) times a month, on the basis of
written requests, made in accordance with the method and
procedures described in Section 2.1.3 below; and
Administrative Agent shall act upon such requests within three
(3) Business Days following the receipt of a written request
from Borrower for a Loan Advance, which action may include,
without limitation, funding the requested Loan Advance, or
specifying the basis for not funding and, when applicable,
requesting additional information and supporting
documentation. The date on which any Loan Advance is funded
(or Letter of Credit is issued) is herein called a "Drawdown
Date."
(ii) Requisitions, Certifications. Each request for a
Loan Advance shall be in writing and in the form attached
hereto as Exhibit B-1, and shall include an updated
Availability Certificate in the form of Exhibit B-1 attached
hereto. Each such request shall specify (i) the amount of the
Loan Advance requested, (ii) the purpose of the Loan Advance
requested, (iii) the aggregate outstanding principal balance
of the Loan plus L/C Exposure, (iv) the then aggregate
remaining amount which may be funded under the Note, and (v)
calculations evidencing the Borrower's continued compliance
with the Financial Covenants, as satisfied by the Closing
Compliance Certificate, or once delivered,
-2-
the most recent Compliance Certificate delivered by the
Borrower, except to the extent the contemplated Loan Advance
will result in noncompliance with the Financial Covenants.
Each request for a Loan Advance hereunder shall be for (a) a
minimum amount of $500,000.00, and (b) an amount not to exceed
(x) the Maximum Loan Amount less (y) the aggregate of the then
outstanding principal balance of the Loan plus L/C Exposure.
2.1.3 Funding Procedures. The following terms and provisions
shall apply to any Loan Advance:
(i) Upon the satisfaction of the conditions set forth
in this Section 2.1, to the extent applicable, Administrative
Agent on behalf of the Lenders will either (x) deposit into a
Depository Account of the Borrower or (y) disburse to, or for
the benefit of, the Borrower or any Borrower Subsidiary (as
directed by the Borrower) the amount of the Loan Advance
requested by Borrower pursuant to this Section 2.1 provided
the Administrative Agent has received from the Lenders
immediately available funds not later than 1:00 p.m. (Eastern
time) on the proposed Drawdown Date (to the extent immediately
available funds are received later than 1:00 p.m (Eastern
time), Administrative Agent, on behalf of the Lenders, will
make the deposit into the Depository Account on the following
Business Day), provided that if Borrower's request for a Loan
Advance so specifies, instead of making such deposit,
Administrative Agent on behalf of the Lenders shall fund all
or a portion of such Loan Advance received by the
Administrative Agent from the Lenders directly by wire
transfer of immediately available funds to a third party (in
accordance with wiring instruction specified in such request),
in which event such funds shall be wired by no later than 2:00
p.m. (Eastern time) on the proposed Drawdown Date.
(ii) Each request for a Loan Advance hereunder shall
constitute a representation and warranty by Borrower that the
conditions set forth in Section 5.1 hereof, as the case may
be, have been satisfied on the date of such request and will
be satisfied on the proposed Drawdown Date, unless otherwise
disclosed in writing to the Administrative Agent prior to or
at the time of such request, including the Borrower's
continued compliance with the Financial Covenants, as
satisfied by the Closing Compliance Certificate, or once
delivered, the most recent Compliance Certificate delivered by
the Borrower, except to the extent the contemplated Loan
Advance will result in noncompliance with the Financial
Covenants. Notwithstanding any such disclosure, the disclosure
by Borrower to Administrative Agent that one or more of the
conditions set forth in Section 5.1 hereof are not satisfied
as of the date of Borrower's request for a Loan Advance or
will not be satisfied as of the proposed Drawdown Date shall
entitle Administrative Agent to refuse to make the Loan
Advance requested by Borrower.
(iii) If any Event of Default shall occur and be
continuing, the Administrative Agent may, by notice to
Borrower, terminate the obligation of the Lenders to fund Loan
Advances in respect of the then unfunded portion of the Note,
and, upon such notice being given, such obligation of the
Lenders to make any further Loan Advances in respect of the
then unfunded portion of the Note shall terminate immediately
and the Lenders shall be relieved of all further obligations
to make any Loan Advances to Borrower.
2.2 Term of Loan.
-3-
2.2.1 The Loan shall be for a term (the "Initial Term")
commencing on the date hereof and ending on January 30, 2007 or such
earlier date as the Loan is accelerated pursuant to the terms of this
Agreement upon an Event of Default (the "Initial Maturity Date"). The
Initial Term may be extended for one year ("Extended Term") until
January 30, 2008 ("Extended Maturity Date") upon satisfaction of the
conditions set forth in Section 2.2.3 (hereinafter, the Initial
Maturity Date and the Extended Maturity Date may be referred to herein
sometimes as the "Maturity Date" as may be applicable).
2.2.2 Termination/Reduction.
(i) The Borrower shall have the right to terminate
the Loan prior to the originally scheduled Maturity Date by
providing the Administrative Agent with ten (10) days' written
notice of the Borrower's intention to terminate the Loan (the
date of such termination being the "Borrower Termination
Date"). In the event that the Borrower provides such written
notice to the Administrative Agent, (i) as of the date of the
notice, the Lenders shall have no further obligation to make
or issue, and the Borrower shall have no further right to
receive or request, any Loan Advances or any Letters of Credit
hereunder, and (ii) the Borrower shall be obligated on the
Borrower Termination Date to (x) pay in full all accrued
interest, principal and other charges due with respect to the
Loan, including, without limitation, any Breakage Fees due on
account of such payment and (y) either (1) provide
Administrative Agent with cash collateral equal to the
outstanding amount of all outstanding Letters of Credit from a
source other than the proceeds of the Loan or (2) return all
outstanding Letters of Credit to the Administrative Agent. If
such cash collateral is posted, such funds shall be held in an
interest bearing account at the Administrative Agent, shall be
pledged to secure the Obligations, and shall be refunded on a
dollar for dollar basis to the Borrower upon the return to the
Administrative Agent, or the expiration, of each Letter of
Credit.
(ii) The Borrower shall have the right to reduce the
Established Loan Amount to an amount not less than
$75,000,000.00 prior to the originally scheduled Maturity Date
by providing the Administrative Agent with ten (10) days'
written notice of the Borrower's intention to reduce the
Established Loan Amount (the date of such reduction being the
"Borrower Reduction Date"). In the event that the Borrower
provides such written notice to the Administrative Agent, (i)
as of the date of the notice, the Lenders shall have no
further obligation to make or issue, and the Borrower shall
have no further right to receive or request, any Loan Advances
or any Letters of Credit such that the (1) outstanding
principal balance of the Loan plus (2) the L/C Exposure, would
exceed such reduced Established Loan Amount, and (ii) the
Borrower shall be obligated on the Borrower Reduction Date to
(x) pay in full the excess of (1) outstanding principal
balance of the Loan plus (2) the L/C Exposure (less any
portion of the L/C Exposure which is cash collateralized as
set forth in section (y) below), over the reduced Established
Loan Amount, including, without limitation, any Breakage Fees
due on account of such payment and/or (y) provide
Administrative Agent with cash collateral equal to such excess
with respect to Letters of Credit from a source other than the
proceeds of the Loan. If such cash collateral is posted, such
funds shall be held in an interest bearing account at the
Administrative Agent, shall be pledged to secure the
Obligations, and shall be refunded on a dollar for dollar
basis to the Borrower upon the return to the Administrative
Agent, or the expiration, of each Letter of Credit. In order
to effect such reduced Established Loan Amount, the
Administrative Agent shall be entitled to reduce the Lenders'
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Commitments in such fashion as the Administrative Agent deems
reasonably appropriate.
2.2.3 Upon satisfaction of each of the following conditions,
Borrower may extend the Initial Maturity Date of the Loan until the
Extended Maturity Date:
(i) No Default. No Default shall exist on the date of
the Borrower's written notice for an extension as provided for
below and on the Initial Maturity Date.
(ii) Notice From Borrower. Borrower shall have given
Administrative Agent (and the Administrative Agent shall give
prompt notice thereof to the Lenders) written notice of
Borrower's request to exercise its extension right at least
forty five (45) days, but no more than ninety (90) days,
before the Initial Maturity Date.
(iii) Covenant Compliance. No breach of any covenants
imposed upon Borrower or Guarantor shall exist including,
without limitation, the Financial Covenants.
(iv) Conditions Satisfied. All of the conditions set
forth in Section 5.1 of this Agreement, to the extent
applicable, shall continue to be satisfied.
(v) Extension Fee. The Borrower shall have paid to
the Administrative Agent an extension fee (the "Extension
Fee") for the pro rata benefit of the Lenders of one-quarter
percent (0.25%) of the outstanding principal balance of the
Loan, such Extension Fee to be payable at least five (5) days
prior to the Initial Maturity Date.
(vi) Appraisals. The Administrative Agent shall have
obtained an updated Appraisal on each Borrowing Base Property.
(vii) Additional Documents. Borrower and Guarantor
shall have executed and delivered to Administrative Agent such
agreements and documents as Administrative Agent may
reasonably require incident to the extension.
(viii) Before End of Term. Each of the foregoing
conditions are satisfied not later than, and on, the Initial
Maturity Date.
Within thirty (30) days following receipt by Administrative Agent and
each of the Lenders of Borrower's written notice under clause 2.2.3(ii)
above requesting the extension accompanied by those of the items
described above which are then available, Administrative Agent shall
notify Borrower in writing if all of the conditions precedent to the
extension, other than payment of the Extension Fee, have been
satisfied, or if further information, certificates or work are
required. If Administrative Agent determines that the conditions to
extension have been satisfied, other than payment of the Extension Fee,
Administrative Agent shall so notify Borrower and the Lenders and upon
Administrative Agent's receipt of the Extension Fee not later than five
(5) days prior to the Initial Maturity Date, so long as no Default
exists, the term of the Loan shall be extended until the Extended
Maturity Date.
-5-
2.3 Interest Rate and Payment Terms. The Loan shall be payable as to
interest and principal in accordance with the provisions of this Agreement and
the Note. This Agreement also provides for interest at a Default Rate, Late
Charges and prepayment rights and fees. All payments for the account of Lenders
shall be applied to the respective accounts of the Lenders in accordance with
each Lender's Commitment Percentage of the Loan. Any and all interest rate
selection and conversion provisions in this Agreement are to be administered by
the Administrative Agent and to be allocated on a pro rata basis to the portion
of the balance due under the Note held by each Lender based upon such Lender's
Commitment Percentage.
2.3.1 Borrower's Options. Principal amounts outstanding under
the Loan shall bear interest at the following rates, at Borrower's
selection, subject to the conditions and limitations provided for in
this Agreement: (i) Variable Rate or (ii) Effective LIBO Rate.
2.3.2 Selection To Be Made. Borrower shall select, and
thereafter may change the selection of, the applicable interest rate,
from the alternatives otherwise provided for in this Agreement, by
giving Administrative Agent a Notice of Rate Selection (in accordance
with the requirements of Section 2.3.3, below): (i) three (3) Business
Days prior to each Loan Advance, (ii) two (2) Business Days prior to
the end of each Interest Period applicable to an Effective LIBO Rate
Advance which shall be continued as an Effective LIBO Rate Advance, or
(iii) two (2) Business Days prior to any Business Day on which Borrower
desires to convert an outstanding Variable Rate Advance to an Effective
LIBO Rate Advance.
2.3.3 Notice. A "Notice of Rate Selection" shall be a written
notice, given by cable, tested telex, telecopier, or by telephone if
immediately confirmed by such a written notice, from an Authorized
Representative of Borrower which: (i) is received by Administrative
Agent not later than 10:00 a.m. (Eastern time): (a) if an Effective
LIBO Rate is selected, at least two (2) Business Days prior to the
first day of the Interest Period to which such selection is to apply,
(b) if a Variable Rate is selected, on the first day of the Interest
Period to which such selection is to apply; and (ii) as to each
selected interest rate option, sets forth the aggregate principal
amount(s) to which such interest rate option(s) shall apply and the
Interest Period(s) applicable to each Effective LIBO Rate Advance.
2.3.4 If No Notice. If Borrower fails to select an interest
rate option in accordance with the foregoing prior to a Loan Advance,
or at least two (2) Business Days prior to the last day of the
applicable Interest Period of an outstanding Effective LIBO Rate
Advance, or if an Effective LIBO Rate Advance is not available, any new
Loan Advance made shall be deemed to be a Variable Rate Advance, and on
the last day of the applicable Interest Period all outstanding
principal amounts of the applicable Effective LIBO Rate Advance shall
be deemed converted to a Variable Rate Advance.
2.3.5 Telephonic Notice. Without any way limiting Borrower's
obligation to confirm in writing any telephonic notice, Administrative
Agent may act without liability upon the basis of telephonic notice
believed by Administrative Agent in good faith to be from Borrower
prior to receipt of written confirmation. In each case Borrower hereby
waives the right to dispute Administrative Agent's record of the terms
of such telephonic Notice of Rate Selection in the absence of manifest
error.
2.3.6 Limits On Options, One Selection Per Month. Each
Effective LIBO Rate Advance shall be in a minimum amount of
$1,000,000.00. At no time shall there be outstanding a total of more
than five (5) Effective LIBO Rate Advances combined at any time.
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2.3.7 Payment and Calculation of Interest. All interest shall
be: (a) payable in arrears commencing February 1, 2004 and on the same
day of each month thereafter until the principal together with all
interest and other charges payable with respect to the Loan shall be
fully paid; and (b) calculated on the basis of a 360 day year and the
actual number of days elapsed. Each change in the Prime Rate shall
simultaneously change the Variable Rate payable under this Agreement.
Interest at the Effective LIBO Rate shall be computed from and
including the first day of the applicable Interest Period to, but
excluding, the last day thereof.
2.3.8 Mandatory Principal Payments.
(i) If, on any day, the aggregate of (a) the
outstanding principal balance of the Loan, plus (b) the L/C
Exposure, exceeds the Maximum Loan Amount, then the Borrower
shall make a principal payment to the Administrative Agent,
for the ratable benefit of the Lenders, in the amount of such
excess, including, without limitation, any payment required to
comply with the terms of Section 3.4, below, in immediately
available funds within ten (10) Business Days of demand from
the Administrative Agent; provided, however, if during such
ten (10) Business Day period the Borrower delivers to the
Administrative Agent satisfactory Funding Evidence, such ten
(10) Business Day period shall be extended for such additional
time as is determined by the Administrative Agent to be
required for Borrower, acting in due diligence, to obtain such
funds, not to exceed an additional sixty (60) days.
(ii) In connection with the release of the Lien in
favor of the Administrative Agent on behalf of the Lenders on
any Borrowing Base Property in accordance with Section 3.3,
the Borrower shall prepay the Loan in an amount equal to the
Release Price, if any, of the said Borrowing Base Property
simultaneously with, or prior to, the release of the said Lien
(any payment due under subsections (i) or (ii), a "Mandatory
Principal Payment").
(iii) If the Initial Maturity Date is extended to the
Extended Maturity Date, in addition to any other payments
required under this Section 2.3.8, the Borrower shall make
monthly principal payments commencing on February 1, 2007 and
on the first Business Day of each month thereafter, based on a
twenty five (25) year amortization schedule of the outstanding
principal balance of the Loan as of the Initial Maturity Date
and an assumed interest rate equal to the Effective LIBO Rate
as of the Initial Maturity Date.
(iv) The entire principal balance of the Loan shall
be due and payable in full on the Maturity Date.
2.3.9 Prepayment. The Loan or any portion thereof may be
prepaid in full or in part at any time upon five (5) days' prior
written notice to the Administrative Agent without premium or penalty
with respect to Variable Rate Advances and, with respect to Effective
LIBO Rate Advances subject to the Breakage Fee. Any Mandatory Principal
Prepayment and any other partial prepayment of principal shall first be
applied to the principal due in the reverse order of maturity, and no
such partial prepayment shall relieve Borrower of the obligation to pay
each installment of principal when due. Any amounts prepaid may be
reborrowed subject to the terms hereof.
-7-
2.3.10 Maturity. At Maturity all accrued interest, principal
and other charges due with respect to the Loan shall be due and payable
in full and the principal balance and such other charges, but not
unpaid interest, shall, at the option of the Administrative Agent,
continue to bear interest thereafter at the Default Rate until so paid.
2.3.11 Method of Payment; Date of Credit. All payments of
interest, principal and fees shall be made in lawful money of the
United States in immediately available funds, without counterclaim or
setoff and free and clear of, and without any deduction or withholding
for, any taxes or other payments: (a) by direct charge to an account of
Borrower maintained with Administrative Agent, or (b) by wire transfer
to Administrative Agent or (c) to such other bank or address as the
holder of the Loan may designate in a written notice to Borrower.
Payments shall be credited on the Business Day on which immediately
available funds are received prior to 1:00 p.m. (Eastern time);
payments received after 1:00 p.m. (Eastern time) shall be credited to
the Loan on the next Business Day. Payments which are by check, which
Administrative Agent may at its option accept or reject, or which are
not in the form of immediately available funds shall not be credited to
the Loan until such funds become immediately available to
Administrative Agent, and, with respect to payments by check, such
credit shall be provisional until the item is finally paid by the payor
bank.
2.3.12 Xxxxxxxx. Administrative Agent may submit monthly
xxxxxxxx reflecting payments due; however, any changes in the interest
rate which occur between the date of billing and the due date may be
reflected in the billing for a subsequent month. Neither the failure of
Administrative Agent to submit a billing nor any error in any such
billing shall excuse Borrower from the obligation to make full payment
of all Borrower's payment obligations when due.
2.3.13 Default Rate. Administrative Agent shall have the
option of imposing, and shall impose upon the direction of the Required
Lenders, and Borrower shall pay upon billing therefor, an interest rate
which is four percent (4.0%) per annum above the Effective LIBO Rate or
Variable Rate then in effect with respect to Loan Advances (as the case
may be) ("Default Rate"): (a) following any Event of Default, unless
and until the Event of Default is waived by Administrative Agent; and
(b) after Maturity. Borrower's right to select pricing options shall
cease upon the occurrence of any Event of Default unless and until the
Event of Default is waived by Administrative Agent.
2.3.14 Late Charges. Borrower shall pay a late charge (herein,
the "Late Charge") equal to five percent (5%) of the amount of any
interest or scheduled payment of principal (other than the final
principal payment due upon the Maturity Date), which is not paid within
ten (10) days of the due date thereof. Late charges are: (a) payable in
addition to, and not in limitation of, the Default Rate, (b) intended
to compensate Administrative Agent and the Lenders for administrative
and processing costs incident to late payments, (c) are not interest,
and (d) shall not be subject to refund or rebate or credited against
any other amount due.
2.3.15 Breakage Fees. Borrower shall pay to Administrative
Agent, for the ratable benefit of the Lenders, immediately upon request
and notwithstanding contrary provisions contained in any of the Loan
Documents, such amounts as shall, in the conclusive judgment of
Administrative Agent (in the absence of manifest error), compensate
Administrative Agent and the Lenders for the loss, cost or expense
which it may reasonably incur as a result of (i) any payment or
prepayment, under any circumstances whatsoever, whether voluntary or
involuntary, of all or any portion of an Effective LIBO Rate Advance on
a date other than the last day of the applicable Interest
-8-
Period of an Effective LIBO Rate Advance, (ii) the conversion, for any
reason whatsoever, whether voluntary or involuntary, of any Effective
LIBO Rate Advance to a Variable Rate Advance on a date other than the
last day of the applicable Interest Period, (iii) the failure of all or
a portion of a Loan which was to have borne interest at the Effective
LIBO Rate pursuant to the request of Borrower to be made under the Loan
Agreement (except as a result of any act or omission of Lender), or
(iv) the failure of Borrower to borrow in accordance with any request
submitted by it for an Effective LIBO Rate Advance. Such amounts
payable by Borrower shall be equal to any administrative costs actually
incurred plus any amounts required to compensate for any loss, cost or
expense incurred by reason of the liquidation or redeployment of
deposits or other funds acquired by Administrative Agent or any Lender
to fund or maintain an Effective LIBO Rate Advance (herein,
collectively, the "Breakage Fee").
2.4 Loan Fees; Administrative Agent's Fees.
2.4.1 Loan Fees. Borrower shall pay Administrative Agent for
its own account the various fees in accordance with the Fee Letter
between the Borrower and the Administrative Agent.
2.4.2 Line Fee. Borrower agrees to pay an unused line fee (the
"Line Fee") to Administrative Agent for the pro rata benefit of the
Lenders calculated at the rate of the Line Percentage multiplied by the
average daily amount during each quarter or portion thereof from the
date hereof to the Maturity Date by which the Total Commitments exceeds
the aggregate of (i) the outstanding principal balance of the Loan and
(ii) the L/C Exposure. The Line Fee shall be payable to the
Administrative Agent quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter or
portion thereof, with a final payment on the Maturity Date and the
first and last payments to be prorated based upon the partial calendar
quarters to which they apply.
2.4.3 Issuance Fees. Upon the issuance of a Letter of Credit,
Borrower shall pay to the Administrative Agent for its own account an
issuance fee in the amount of one- eighth of one percent (0.125%) of
the face amount of each Letter of Credit.
2.4.4 Letter of Credit Fees. Borrower agrees to pay a per
annum Letter of Credit fee to Administrative Agent for the pro rata
benefit of the Lenders equal to the Applicable Margin for LIBO Rate
Advances multiplied by the face amount of each Letter of Credit,
payable quarterly in arrears on the first day of each calendar quarter
for the immediately preceding calendar quarter or portion thereof, with
a final payment on the Maturity Date. The first and last payments of
such Letter of Credit fee are to be prorated based upon the partial
calendar quarters to which they apply.
2.5 Acceleration. The Administrative Agent may, and upon the request of
the Required Lenders shall, accelerate the Loan, upon the occurrence an Event of
Default which remains continuing. Upon such an acceleration, all principal,
accrued interest, Breakage Fee, any other fees, and costs and expenses shall be
due and payable together with interest on such principal at the Default Rate
from the date of the Event of Default until paid.
2.6 Additional Provisions Related to Interest Rate Selection.
2.6.1 Increased Costs. If, due to any one or more of: (i) the
introduction of any applicable law or regulation or any change (other
than any change by way of imposition or increase of reserve
requirements already referred to in the definition of Effective LIBO
Rate) in the interpretation or application by any authority charged
with
-9-
the interpretation or application thereof of any law or regulation; or
(ii) the compliance with any guideline or request from any governmental
central bank or other governmental authority (whether or not having the
force of law) (an event described in the preceding clause (i) or (ii)
an "Increased Cost Event"), there shall be an increase in the cost to
any Lender of agreeing to make or making, funding or maintaining
Effective LIBO Rate Advances, including without limitation changes
which affect or would affect the amount of capital or reserves required
or expected to be maintained by any such Lender, with respect to all or
any portion of the Loan, or any corporation controlling any Lender, on
account thereof, then Borrower from time to time shall, within twenty
(20) days after written demand by Administrative Agent, pay to such
Lender the incremental increase in Lender's cost due to the Increased
Cost Event. A certificate as to the amount of the increased cost and
the reason therefor submitted to Borrower by Administrative Agent, in
the absence of manifest error, shall be conclusive and binding for all
purposes.
2.6.2 Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or change in or in the interpretation
of any law, treaty, statute, regulation or interpretation thereof shall
make it unlawful, or any central bank or government authority shall
assert by directive, guideline or otherwise, that it is unlawful, for
any Lender to make or maintain Effective LIBO Rate Advances or to
continue to fund or maintain Effective LIBO Rate Advances, and such
Lender, without cost or expense, cannot hold or administer its
Commitment from an office where maintaining and funding Effective LIBO
Rate Advances can be accomplished, then, on written notice thereof and
demand by Administrative Agent to Borrower, (a) the obligation of
Administrative Agent to make Effective LIBO Rate Advances and to
convert or continue any Loan as Effective LIBO Rate Advances shall
terminate and (b) at the end of the applicable Interest Period,
Borrower shall convert all principal outstanding under this Agreement
into Variable Rate Advances.
2.6.3 Additional LIBO Rate Conditions. The selection by
Borrower of an Effective LIBO Rate and the maintenance of the Effective
LIBO Rate Advance at such rate shall be subject to the following
additional terms and conditions:
A. Availability. If, before or after Borrower has
selected to take or maintain an Effective LIBO Rate Advance,
but before the Interest Period with respect thereto commences,
the Administrative Agent notifies Borrower that:
(a) Dollar deposits in the amount and for
the maturity requested are not available to Lenders
in the London interbank market at the rate specified
in the definition of LIBO Rate set forth above, or
(b) reasonable means do not exist for
Administrative Agent to determine the Effective LIBO
Rate for the amounts and maturity requested,
then the principal which would have been an Effective LIBO
Rate Advance shall be a Variable Rate Advance.
B. Payments Net of Taxes. All payments and
prepayments of principal and interest under this Agreement
shall be made net of any taxes (excluding taxes imposed on or
measured by the overall net income of any Lender or any agent
of any Lender and all franchise or gross receipts tax of any
Lender or any agent of any Lender) and costs resulting from
having principal outstanding at or computed with reference, to
an Effective LIBO Rate. Without limiting the
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generality of the preceding obligation, illustrations of such
taxes and costs as to which payments are to be made net of are
taxes, or the withholding of amounts for taxes, of any nature
whatsoever including income, excise, interest equalization
taxes (other than United States or state income taxes) as well
as all levies, imposts, duties or fees whether now in
existence or as the result of a change in or promulgation of
any treaty, statute, regulation, or interpretation thereof or
any directive guideline or otherwise by a central bank or
fiscal authority (whether or not having the force of law) or a
change in the basis of, or the time of payment of, such taxes
and other amounts resulting therefrom. Each Lender organized
under the laws of a jurisdiction outside of the United States
(a "Foreign Lender") shall provide to the Borrower and the
Administrative Agent two properly completed and executed
Internal Revenue Service Forms W-8BEN or other applicable
forms, certificates or documents prescribed by the Internal
Revenue Service of the United States certifying as to such
Foreign Lender's entitlement to complete exemption from United
States withholding tax under an applicable statute or tax
treaty with respect to payments to be made to such Foreign
Lender hereunder ("Certificates of Exemption"). Each Foreign
Lender shall provide such Certificates of Exemption on or
before the Closing Date, and shall provide Certificates of
Exemption on or before the first business day of each taxable
year of such Foreign Lender thereafter. Each Foreign Lender
that becomes a Lender pursuant to Section 13.3 after the
Closing Date shall provide Certificates of Exemption on or
before the date such Foreign Lender becomes a Lender and on or
before the first business day of each taxable year of such
Foreign Lender thereafter. If a Foreign Lender does not
provide a Certificate of Exemption to Borrower and the
Administrative Agent within the time periods set forth in the
preceding sentence, Borrower shall withhold taxes from
payments to such Foreign Lender at the applicable statutory
rates and Borrower shall be permitted to deduct the amount
withheld from the amount it otherwise would have been required
to pay, provided that all such withholding shall cease upon
delivery by such Foreign Lender of a Certificate of Exemption
to Borrower and Administrative Agent. Each Lender that is not
a Foreign Lender and is not exempt from backup withholding
under the Code with respect to payments made under this
Agreement shall provide a properly completed and executed IRS
Form W-9 to the Borrower promptly after becoming a Lender
under this Agreement. If a Lender fails to comply with its
obligations under the preceding sentence and Borrower pays
backup withholding as a result of such failure, Borrower shall
be permitted to deduct the amount withheld from the amount it
otherwise would have been required to pay to the Lender.
2.6.4 Variable Rate Advances. Each Variable Rate Advance shall
continue as a Variable Rate Advance until Maturity of the Loan, unless
sooner converted, in whole or in part, to an Effective LIBO Rate
Advance, subject to the limitations and conditions set forth in this
Agreement.
2.7 Letters of Credit.
2.7.1 Borrower has requested the Administrative Agent, and
Administrative Agent has agreed, until the Maturity Date and subject to
compliance with all of the other terms, conditions and provisions of
this Agreement and there then occurring no Default or Event of Default,
to issue on behalf of the Lenders one or more letters of credit
(individually, a "Letter of Credit" and collectively, "Letters of
Credit") for the Borrower as the account party in an aggregate amount
not to exceed the lesser of (1) the difference
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between (x) the Maximum Loan Amount and (y) the then outstanding
principal amount of the Loan plus the L/C Exposure or (2) Five Million
Dollars ($5,000,000.00). The Borrower shall give the Administrative
Agent written notice (each a "Notice of Letter of Credit") that it
requires the issuance of a Letter of Credit not later than 11:00 a.m.
(Eastern time) on the fourth (4th) Business Day preceding the requested
date for issuance thereof under this Agreement (or such later date as
the Administrative Agent may in its sole discretion agree to). Such
notice shall specify (i) the aggregate amount of the requested Letters
of Credit, (ii) the individual amount of each requested Letter of
Credit and the number of Letters of Credit to be issued, (iii) the date
of such issuance (which shall be a Business Day), (iv) the name and
address of the beneficiary and if other than the Borrower, the name and
address of the Borrower Subsidiary for whose account the Letter of
Credit will be issued, (v) the expiration date of the Letter of Credit,
(vi) the purpose and circumstances for which such Letter of Credit is
being issued, (vii) the terms upon which each such Letter of Credit may
be drawn down (which terms shall not leave any discretion to
Administrative Agent), (viii) that no Default or Event of Default has
occurred and is continuing both before and after giving effect to such
issuance, (ix) that the Borrower and all Loan Parties are in compliance
in all material respects with all covenants set forth herein after
giving effect to such issuance, with compliance with the Financial
Covenants being satisfied by the Closing Compliance Certificate, or
once delivered, the most recent Compliance Certificate delivered by the
Borrower, except to the extent the issuance of the contemplated Letter
of Credit will result in noncompliance with the Financial Covenants,
(x) that all representations and warranties made under the Loan
Documents (other than representations and warranties which speak as of
a specific date or as to which the Administrative Agent has previously
been advised in writing by the Borrower are no longer true and correct)
are true, correct and complete in all material respects as if made as
of the date of such issuance, and (xii) the L/C Exposure. No later than
10:00 a.m. (Eastern time), on the date that is four (4) Business Days
prior to the date of issuance, the Borrower shall specify a precise
description of the documents and the verbatim text of any certificate
to be presented by the beneficiary of such Letter of Credit, which if
presented by such beneficiary prior to the expiration date of the
Letter of Credit would require the Administrative Agent to make a
payment under the Letter of Credit; provided, that Administrative Agent
may, in its reasonable judgment, require changes in any such documents
and certificates only in conformity with changes in customary and
commercially reasonable practice or law. In determining whether to pay
on such Letter of Credit, the Administrative Agent shall be responsible
only to determine that the documents and certificates required to be
delivered under the Letter of Credit have been delivered and that they
comply on their face with the requirements of that Letter of Credit.
2.7.2 In the event that prior to the Maturity Date, the
beneficiary of any Letter of Credit draws all or a portion of the
amount thereof, then the portion so drawn shall be treated as a Loan
Advance under the Note, and shall bear interest at the Variable Rate
and shall be treated as a Variable Rate Advance under, and shall
otherwise be payable on the same terms and conditions hereof (provided
that the portion so drawn shall not be deemed to be a new Loan Advance
for purposes of calculating the Availability, to the extent the
issuance of the Letter of Credit shall have so reduced such
Availability in accordance with the terms of this Agreement). The
foregoing is not intended to prohibit Borrower from converting such
Variable Rate Advance to an Effective LIBO Advance in accordance with
the provisions of the Note.
2.7.3 Each Letter of Credit shall be issued using the standard
form of letter of
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credit then being used by Administrative Agent (which standard form
shall, at Borrower's request, be provided by Administrative Agent to
Borrower prior to the issuance of any Letter of Credit), and shall have
an expiration date no later than thirty (30) days prior to the Maturity
Date.
2.7.4 Notwithstanding anything to the contrary contained in
this Agreement or the Note, in no event shall Borrower have the right
to pay off the entire indebtedness evidenced by the Note and, in
connection therewith, advise Administrative Agent and the applicable
Lenders that it unconditionally waives its right to obtain further
applicable Loan Advances and Letters of Credit under the Loan (i.e.,
Borrower desires to cancel the applicable Note) unless Borrower either
(i) provides Administrative Agent with cash collateral equal to the
outstanding amount of the Letters of Credit from a source other than
the proceeds of the Loan or (ii) returns all outstanding Letters of
Credit to the Administrative Agent.
2.7.5 Upon the issuance of each Letter of Credit, a
participation therein in an amount equal to each Lender's Commitment
Percentage, shall automatically be deemed granted by the Administrative
Agent to each such Lender on the date of such issuance and each Lender
shall automatically be obligated to reimburse the Administrative Agent
to the extent of its Commitment Percentage for all obligations incurred
by the Administrative Agent to third parties in respect of such Letters
of Credit, if not otherwise deemed to be a Loan Advance hereunder.
2.7.6 The Administrative Agent may accept or pay any draft
presented to it, regardless of when drawn and whether or not
negotiated, if such draft, the other required documents and any
transmittal advice are presented to the Administrative Agent and dated
on or before the expiration date of the Letter of Credit under which
such draft is drawn. The Administrative Agent may honor as complying
with the terms of the Letter of Credit and with this Agreement any
drafts or other documents otherwise in order signed or issued by an
administrator, executor, conservator, trustee in bankruptcy, debtor in
possession, assignee for benefit of creditors, liquidator, receiver or
other legal representative of the party authorized under such Letter of
Credit to draw or issue such other drafts or other documents.
2.7.7 The Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500,
and any subsequent revisions thereof approved by a Congress of the
International Chamber of Commerce and adhered to by the Administrative
Agent (the "Uniform Customs and Practice"), shall be binding on the
Borrower and the Administrative Agent except to the extent otherwise
provided herein, in any Letter of Credit or in any other Loan Document.
Anything in the Uniform Customs and Practice to the contrary
notwithstanding:
(i) None of the Loan Parties nor any beneficiary of
any Letter of Credit shall be deemed an agent of the
Administrative Agent or the Lenders.
(ii) With respect to any Letter of Credit, neither
the Administrative Agent nor its correspondents nor the
Lenders shall be responsible for or shall have any duty to
ascertain:
A. the genuineness of any signature;
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B. the validity, sufficiency, accuracy, genuineness
or legal effect of any endorsements;
X. xxxxx in giving, or failure to give, notice of
arrival, notice of refusal of documents or of discrepancies in
respect of which the Administrative Agent refuses the
documents or any other notice, demand or protest;
D. the performance by any beneficiary under any
Letter of Credit of such beneficiary's obligations to the
Borrower or any Loan Party;
E. inaccuracy in any notice received by the
Administrative Agent; or
F. the validity, sufficiency, accuracy, genuineness
or legal effect of any instrument, draft, certificate or other
document required by such Letter of Credit to be presented
before payment of a draft, or the office held by or the
authority of any Person signing any of the same.
(iii) The obligations of the Borrower under the Loan
Documents are absolute, unconditional, and irrevocable and
shall be performed strictly in accordance with the terms
hereof under all circumstances, whatsoever, including the
following:
A. any lack of validity or enforceability or
restriction, restraint, or stay in the enforcement of this
Agreement, the Letters of Credit, or any other agreement or
instrument relating thereto, unless the Administrative Agent
is restrained or stayed from honoring a drawing under the
subject Letter of Credit;
B. any amendment or waiver of, or consent to the
departure from, the Letters of Credit, unless the said
amendment, waiver or consent has been made in accordance with
the Administrative Agent's procedures with respect thereto and
with the written authorization or acknowledgment of the
Administrative Agent; or
C. the existence of any claim, set-off, defense, or
other right which the Borrower may have at any time against
the beneficiary of the Letters of Credit.
(iv) The occurrence of any of the events referred to
in the preceding clauses of this Section 2.7.7 shall not
affect or prevent the vesting of any of the Administrative
Agent's rights or powers hereunder or the Borrower's
obligation to make reimbursement of amounts paid under any
Letter of Credit or any draft accepted thereunder.
(v) All directions, correspondence, and funds
transfers relating to the Letter of Credit are at the risk of
the Borrower. Administrative Agent shall have discharged
Administrative Agent's obligations under the Letter of Credit
by the initiation of the method of payment called for in any
drawing which includes payment instructions (or by any other
commercially reasonable and comparable method). Unless caused
by the gross negligence or willful misconduct of the
Administrative Agent, Administrative Agent and the Lenders
shall not have any responsibility for any inaccuracy,
interruption, error, or delay in transmission or delivery by
post, telegraph or cable, or for any inaccuracy of
translation.
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(vi) The Borrower recognizes that:
A. Neither Administrative Agent nor the Lenders have
any financial or other interests in the beneficiary of Letters
of Credit.
B. Administrative Agent is irrevocably obligated to
honor a proper drawing under the Letters of Credit.
C. In the event of any conflict between the
provisions of this Agreement and the Uniform Customs and
Practice, the provisions of this Agreement shall govern.
3. SECURITY FOR THE LOAN; LOAN AND SECURITY DOCUMENTS.
3.1 Security. The Loan together with interest thereon and all other
charges and amounts payable by, and all other obligations of, Borrower and the
other Loan Parties to the Administrative Agent and/or each of the Lenders,
whenever incurred, direct or indirect, absolute or contingent, arising under or
with respect to this Agreement, the Security Documents, or any other Loan
Document, together with all other Obligations, shall be secured by the following
collateral (the "Collateral") which Borrower agrees to provide and maintain, or
cause to be provided and maintained (whether provided for each in separate
agreements or combined with various other agreements):
3.1.1 Mortgage/ Deed of Trust and Security Agreement.
(i) A first priority mortgage/deed of trust (as
applicable) and security agreement (individually and
collectively, the "Mortgage") granted by each Borrowing Base
Property Owner to the Administrative Agent or a trustee on
behalf of the Administrative Agent, as applicable, for the
ratable benefit of the Lenders, on (i) each Collateral
Property, (ii) all land, improvements, furniture, fixtures,
equipment, and other assets (including, without limitation,
property management agreements, contracts, contract rights,
accounts, Licenses and Permits and general intangibles),
including all after-acquired property, owned, or in which each
Borrowing Base Property Owner has or obtains any interest, in
connection with each Collateral Property; (iii) all insurance
proceeds and other proceeds therefrom, and (iv) all other
assets of each Borrowing Base Property Owner, whether now
owned or hereafter acquired and related to each Collateral
Property.
(ii) Each Mortgage shall secure the payment and
performance of the Obligations.
(iii) At the option of the Administrative Agent, each
Mortgage shall be either (x) a first priority mortgage/deed of
trust (as applicable) and security agreement granted by the
applicable Borrowing Base Property Owner to the Administrative
Agent or a trustee on behalf of the Administrative Agent, as
applicable, on behalf of the Lenders, or (y) an amendment,
restatement and consolidation of a first priority
mortgage/deed of trust (as applicable) and security agreement
acquired by the Administrative Agent, for the ratable benefit
of the Lenders, with proceeds of a Loan Advance.
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(iv) In the event that in connection with the
granting of any Mortgage on a Borrowing Base Property, the
Administrative Agent, for the ratable benefit of the Lenders,
purchases by assignment an existing mortgage loan or loans on
such Borrowing Base Property, the Borrower represents,
warrants, covenants and agrees as follows:
(a) The request for the Administrative Agent
to purchase by assignment such loan or loan shall
constitute a representation and warranty by the
Borrower that (i) all signatures by the Borrower, any
Borrower Subsidiary and, to the best of the
Borrower's knowledge, all other persons or entities
on the assigned promissory note, mortgage, and all
other documents, instruments, and agreements executed
in connection therewith are genuine, (ii) such
documents, together with any other documents or
instruments supplied by the Borrower to the
Administrative Agent, sets forth the entire agreement
with respect to the loan arrangement evidenced
thereby, (iii) the applicable Borrowing Base Property
Owner is absolutely and unconditionally indebted
under said documents and does not have any offsets,
defenses, or counterclaims thereunder, or otherwise
against the lender thereunder, or any predecessor in
interest to such lender;
(b) The Borrower waives, on its own behalf
and on behalf of CSC and the Loan Parties any
offsets, defenses or counterclaims that exist or may
have existed with respect to such assigned loan
arrangement and assigned documents; and
(c) The Borrower shall cause to be delivered
to the Administrative Agent such documents,
instruments and agreements as the Administrative
Agent shall reasonably require in order to evidence
and effectuate such assignment and the terms and
conditions hereof.
3.1.2 Collateral Assignment of Leases and Rents. A first
priority collateral assignment of leases and rents (individually and
collectively, the "Assignment of Leases and Rents") granted by each
Borrowing Base Property Owner to the Administrative Agent, for the
ratable benefit of the Lenders, with respect to all Leases of each
Collateral Property and all income and profits to be derived from the
operation and leasing of each Collateral Property.
3.1.3 Collateral Assignment of Contracts. A first priority
collateral assignment and security agreement granted by each Borrowing
Base Property Owner to the Administrative Agent, for the ratable
benefit of the Lenders, with respect to all Licenses and Permits and
all contracts, agreements and warranties now owned or hereafter
acquired by each Collateral Property Owner and related in any manner to
each Collateral Property.
3.1.4 Guaranties. The unconditional, continuing guaranty
(singly and collectively the "Guaranty") from the Guarantor, pursuant
to which each Guarantor shall guaranty the prompt, punctual, and
faithful payment of the Loan and the performance of all Borrower's
other Obligations to the Administrative Agent and each of the Lenders
under the Loan Documents.
3.1.5 Environmental Compliance and Indemnification Agreement.
A
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compliance and indemnification agreement with respect to environmental
matters ("Environmental Indemnity") from Borrower and each Guarantor in
favor of the Administrative Agent and each of the Lenders.
3.1.6 Ownership Interest and Inter-Company Loan Pledge. A
first priority pledge granted to the Administrative Agent, for the
ratable benefit of the Lenders, with respect to (i) the one-hundred
(100%) percent ownership interest in (x) each Borrowing Base Property
Owner held by any Loan Party or Borrower Subsidiary (with the exception
of any Borrowing Base Property directly owned by the Borrower) and (y)
each manager/general partner of a Borrowing Base Property Owner (with
the exception of any Borrowing Base Property directly owned by the
Borrower) and (ii) any inter-company loans from time to time due from
any Borrowing Base Property Owner held by the Borrower or any Loan
Party to the Borrower.
3.1.7 Additional Documents. Any other documents, instruments
and agreements set forth on the Loan Agenda.
3.2 Loan Documents and Security Documents. The Loan shall be made,
evidenced, administered, secured and governed by all of the terms, conditions
and provisions of the following loan documents (the "Loan Documents"), each as
the same may be hereafter modified or amended, consisting of: (i) this Loan
Agreement; (ii) a separate promissory note in the form of Exhibit C, annexed
hereto, payable to each Lender in the aggregate principal amount of Established
Loan Amount; (iii) the various documents and agreements referenced in Section
3.1, above, and (iv) any other documents, instruments, or agreements heretofore
or hereafter executed to further evidence or secure the Loan.
The Loan Documents, referenced in items 3.1.1 through and including
3.1.7, together with any such other Loan Documents as may be executed in
accordance with Section 3.5, below, as to any Collateral Property, are sometimes
referred to herein, singly and collectively as the "Security Documents".
3.3 Removal of Individual Property as a Borrowing Base Property -
Borrower. From time to time during the term of this Agreement following (i)
Borrower's written request ("Collateral Release Request") indicating that (x)
the Borrower intends to sell or refinance the subject Borrowing Base Property or
(y) the removal of one or more Borrowing Base Properties is necessary to cure or
remedy a Default hereunder, and (ii) satisfaction of the Release Conditions, the
Administrative Agent shall release such Borrowing Base Property from the Lien
held by the Administrative Agent, for the ratable benefit of the Lenders,
release the subject Borrowing Base Property Owner from the Guaranty, terminate
the assignments made by such Borrowing Base Property Owner pursuant to Sections
3.1.2 and 3.1.3, release the Environmental Indemnity delivered pursuant to
Section 3.1.5, and release its Lien upon the ownership interest in such
Borrowing Base Property Owner and its manager or general partner which was
pledged by the Borrower as Collateral pursuant to Section 3.1.6, and thereafter
such Borrowing Base Property Owner shall no longer be a Loan Party for the
purposes of this Agreement (provided, however, any such release by the
Administrative Agent shall not be deemed to terminate or release such Borrowing
Base Property Owner from any obligation or liability under any Loan Document
which specifically by its terms survives the said release or the payment in full
of the Obligations). The "Release Conditions" are the following:
3.3.1 The Borrower shall make a Mandatory Principal Payment
equal to the Release Price, if any, relative to the subject Borrowing
Base Property or substitute a new
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Borrowing Base Property subject to the requirements of Section 3.5
below.
3.3.2 Upon release of the Lien on the subject Borrowing Base
Property, the Financial Covenants shall remain satisfied (or be
satisfied if the release cures a Default which resulted from the
Financial Covenants not being satisfied).
3.3.3 No Default shall exist under this Agreement or the other
Loan Documents at the time of any such release, except for any Default
which is cured or remedied by the removal of such Individual Property
from being a Borrowing Base Property.
3.3.4 No Event of Default shall exist under this Agreement or
the other Loan Documents at the time of the Collateral Release Request
or at the time of any such release, except for any Event of Default
which is cured or remedied by the removal of such Individual Property
from being a Borrowing Base Property.
3.3.5 All representations and warranties contained herein or
in the other Loan Documents shall be true and correct in all material
respects as of the time of any such release (other than representations
and warranties which speak as of a specific date or which
Administrative Agent was notified of were not true and correct prior to
a request for a Loan Advance which was nonetheless made or which apply
to the Individual Property being released).
3.3.6 The Borrower shall pay or reimburse the Administrative
Agent for all appraisal fees, title insurance and recording costs,
reasonable legal fees and expenses and other reasonable costs and
expenses incurred by Administrative Agent in connection with the
release.
Any failure of any removal and release requested by the Borrower to
meet in all material respects all of the Release Conditions shall be deemed a
rejection of the proposed Collateral Release Request and, subject to the other
terms and conditions hereof as to whether any Individual Property is a Borrowing
Base Property, such Borrowing Base Property shall remain a Borrowing Base
Property hereunder and shall be included within the Collateral.
3.3.7 Notwithstanding the foregoing provisions of this Section
3.3, the Administrative Agent and the Lenders acknowledge and agree
that provided no Event of Default is then in existence, the
Administrative Agent shall, upon the written request of the Borrower
and without requiring Borrower to satisfy any of the Release
Conditions, release the portion of the Individual Property owned by
Cedar-Riverview, L.P., as described on Exhibit TP, from the lien of the
Security Documents, and consent to the execution and recording of a
customary reciprocal or other easement agreement with respect such
property, provided, however, the foregoing provisions of the Section
3.3.7 shall not apply in the event that such portion of such Individual
Property has been accepted by the Lenders as a Borrowing Base Property.
3.4 Removal of Individual Property as a Borrowing Base Property -
Administrative Agent.
3.4.1 An Individual Property shall no longer be deemed to be a
Borrowing Base Property upon the determination by the Administrative
Agent of the occurrence of any of the following:
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(i) A Borrowing Base Property is a Non-Stabilized
Asset for a period of three (3) consecutive months;
(ii) A Major Event of Loss occurs as to a Borrowing
Base Property;
(iii) A Borrowing Base Property as to which an Event
of Loss occurs is not, or ceases to be, a Restoration
Property, or upon completion of the Repair Work, will not meet
all of the Borrowing Base Property Requirements; or
(iv) The Required Lenders have instructed the
Administrative Agent to remove a Borrowing Base Property if a
tenant or tenants which have Leases in such Borrowing Base
Property are subject to bankruptcy or insolvency proceedings
and are not paying rent as required under such Leases or have
filed a motion to reject such Lease, or have not assumed such
Lease within sixty (60) days (or such longer period granted by
the applicable bankruptcy court, not to exceed one hundred
eighty (180) days) after such tenant's bankruptcy filing, and
to the extent the space occupied by such tenants is deemed
vacant, the Occupancy Ratio for such Borrowing Base Property
would be less than 80%.
3.4.2 Upon any such Individual Property no longer being deemed
to be a Borrowing Base Property, the Borrower shall make a Mandatory
Principal Payment when required equal to the Release Price (if any) for
such Borrowing Base Property.
3.4.3 With respect to any Individual Property determined by
the Administrative Agent to no longer be deemed a Borrowing Base
Property in accordance with this Section 3.4, if the Release Conditions
are satisfied with respect thereto, the Administrative Agent shall
release such Individual Property from the Lien held by the
Administrative Agent, release the subject Borrowing Base Property Owner
from the Guaranty, terminate the assignments made by such Borrowing
Base Property Owner pursuant to Sections 3.1.2 and 3.1.3, release the
Environmental Indemnity delivered pursuant to Section 3.1.5, and
release its Lien upon the ownership interest in such Borrowing Base
Property Owner and its manager or general partner which was pledged by
the Borrower as Collateral pursuant to Section 3.1.6, and thereafter
such Borrowing Base Property Owner shall no longer be a Loan Party for
the purposes of this Agreement (provided, however, any such release by
the Administrative Agent shall not be deemed to terminate or release
such Borrowing Base Property Owner from any obligation or liability
under any Loan Document which specifically by its terms survives the
said release or the payment in full of the Obligations). However, if
the said Release Conditions are not satisfied with respect to such
Individual Property, although such Individual Property shall no longer
be a Borrowing Base Property, the Individual Property shall not be
released from the Lien held by the Administrative Agent (shall continue
to be a Collateral Property) and there shall be no release of the
Collateral relating to such Individual Property or the subject
Borrowing Base Property Owner, until such time as the Release
Conditions are satisfied with respect thereto.
3.5 Additional Borrowing Base Property. From time to time during the
term of this Agreement following Borrower's written request ("Additional
Collateral Request"), compliance with the provisions of this Section 3.5, and
compliance with the requirements for inclusion as a Borrowing Base Property, as
set forth in the definition thereof, the Lenders shall authorize the
Administrative Agent to accept one or more Individual Properties as Borrowing
Base Properties
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(as identified by the Borrower in its written request) to be held by the
Administrative Agent as Collateral. The Lenders shall agree to the acceptance of
the Individual Property as an additional Borrowing Base Property only upon the
satisfaction of the following conditions, in a manner reasonably acceptable to
the Administrative Agent and the Lenders:
3.5.1 The Borrower shall have obtained Preliminary Approval
for the addition of such Individual Property.
3.5.2 The Borrower (or applicable Loan Party) shall have
satisfied all of the Borrowing Base Property Requirements as to such
Individual Property.
3.5.3 No Event of Default shall exist under this Agreement or
the other Loan Documents at the time of the Additional Collateral
Request or at the time of any such Individual Property becoming a
Borrowing Base Property, except for any Default which is cured or
remedied by such Individual Property becoming a Borrowing Base
Property.
3.5.4 All representations and warranties contained herein or
in the other Loan Documents shall be true and correct in all material
respects as of the time of any such Individual Property becoming a
Borrowing Base Property (or shall become true by virtue of such
Individual Property becoming a Borrower Base Property) (other than
representations and warranties which speak as of a specific date or
which Administrative Agent was notified of were not true and correct
prior to a request for a Loan Advance which was nonetheless made),
including the Borrower's continued compliance with the Financial
Covenants, as satisfied by the Closing Compliance Certificate, or once
delivered, the most recent Compliance Certificate delivered by the
Borrower.
3.5.5 The Borrower shall pay or reimburse the Administrative
Agent for all appraisal fees, title insurance and recording costs,
reasonable legal fees and expenses and other costs and expenses
incurred by Administrative Agent in connection with the additional
Borrowing Base Property.
3.5.6 The Borrower, the subject Borrowing Base Property Owner,
and the subject Individual Property shall have satisfied all applicable
conditions precedent set forth in Article 5 prior to the inclusion of
the Individual Property as a Borrowing Base Property.
Any failure of the proposed Borrowing Base Property to meet in all
material respects all of the foregoing conditions shall be deemed a rejection of
the proposed Borrowing Base Property for that Additional Collateral Request and
such proposed Borrowing Base Property shall not be included in the Borrowing
Base for any purpose unless and until all of the foregoing conditions are
satisfied or waived by the Administrative Agent and the Lenders. The
Administrative Agent shall give the Borrower prompt written notice of the
decision of the Lenders with respect to the admission or rejection of any
Individual Property as a Borrowing Base Property.
4. CONTINUING AUTHORITY OF AUTHORIZED REPRESENTATIVES. Administrative
Agent and each of the Lenders are authorized to rely upon the continuing
authority of the persons, officers, signatories or agents hereafter designated
("Authorized Representatives") to bind Borrower with respect to all matters
pertaining to the Loan and the Loan Documents including, but not limited to, the
selection of interest rates, the submission of requests for Loan Advances or
Letters of Credit and certificates with regard thereto. Such authorization may
be changed only upon written notice to Administrative Agent accompanied by
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evidence, reasonably satisfactory to Administrative Agent, of the authority of
the person giving such notice and such notice shall be effective not sooner than
five (5) Business Days following receipt thereof by Administrative Agent. The
present Authorized Representatives are listed on Exhibit D.
5. CONDITIONS PRECEDENT.
5.1 Closing Loan and Funding Initial Loan Advance. It shall be a
condition precedent of Lenders' obligation to close the Loan and to fund the
initial proceeds of the Loan that each of the following conditions precedent be
satisfied in full (as determined by each Lender in its discretion which
discretion shall be exercised reasonably and in good faith having due regard for
the advice of the Administrative Agent), unless specifically waived in writing
by all of the Lenders at or prior to the date of the closing and funding of the
initial Loan Advance (the "Closing Date") (in the event that the closing of the
Loan is an earlier date than the date of the initial funding of the Loan, then
the Closing Date shall refer to the date of the initial funding of the Loan):
5.1.1 Satisfactory Loan Documents. On the Closing Date, each
of the Loan Documents shall be satisfactory in form, content and manner
of execution and delivery to Administrative Agent and Administrative
Agent's counsel and all Loan Documents shall be in full force and
effect.
5.1.2 Financial Information; No Material Change.
(i) No change shall have occurred in the financial
condition, business, affairs, operations or control of
Borrower and/or the Loan Parties, since the date of their
respective financial statements most recently delivered to
Administrative Agent or any of the Lenders, which change has
had or could reasonably be expected to have a Material Adverse
Effect, with the Administrative Agent and the Lenders
acknowledging notice of the potential loss for the quarter
ending December 31, 2003, to be incurred by CSC and the
Borrower as a result of the restructuring necessary in
connection with the recently completed equity offering by CSC
(the "Fourth Quarter Losses") and agreeing that for purposes
of this Section 5.1.2(i), the Fourth Quarter Losses shall be
deemed not to have a Material Adverse Effect; and Borrower and
the other Loan Parties shall have furnished Administrative
Agent such other financial information, and certifications as
reasonably requested by the Administrative Agent.
(ii) The Borrower shall have provided to the
Administrative Agent such certificates and other evidence as
the Administrative Agent may reasonably require to evidence
that the Borrower, CSC and each of the Borrowing Base Property
Owners (both before and after giving effect to the Loan) is
solvent, has assets having a fair value in excess of the
amount required to pay such Person's probable liabilities and
existing Debts as such become absolute and mature, and has
adequate capital for the conduct of such Person's business and
the ability to pay such Person's Debts from time to time
incurred in connection therewith as such Debts mature,
including the Closing Compliance Certificate (the "Closing
Compliance Certificate") set forth as Exhibit CC hereto.
5.1.3 Warranties and Representations Accurate. All warranties
and representations made by or on behalf of any of the Borrower and the
other Loan Parties,
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or any of them, to Administrative Agent or any of the Lenders shall be
true, accurate and complete in all material respects and shall not omit
any material fact necessary to make the same not misleading.
5.1.4 Validity and Sufficiency of Security Documents. The
Security Documents shall create a valid and perfected lien in and to
the Collateral and each of the Security Documents and related UCC
filings shall have been duly recorded and filed to the satisfaction of
Administrative Agent and Administrative Agent's counsel, including,
without limitation, as follows:
(i) Prior to funding the Loan Advances, the Borrower,
the other Loan Parties, and any other Persons executing Loan
Documents on the Closing Date shall have delivered to the
Administrative Agent with respect to the Security Documents
or, in the case of UCC-1 financing statements, delivery of
such financing statements in proper form for recording, and
shall have taken all such other actions as may be necessary
or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the Liens and security interests intended
to be created by the Security Documents in the Collateral
covered thereby. Notwithstanding the foregoing, the
recordation of the Security Documents and the UCC filings
shall not be a condition precedent under this Section 5.1.4
provided that Administrative Agent shall obtain satisfactory
gap title insurance coverage. Such filings, recordings and
other actions shall include, without limitation, in addition
to the Mortgage, the Assignment of Leases and Rents, and the
UCC-1 financing statements; and
(ii) on or prior to the Closing Date, the
Administrative Agent shall have received the results of a UCC,
tax lien and judgment search as may be reasonably requested by
the Administrative Agent with respect to the Borrower, the
Borrower Subsidiaries, and any other Loan Parties, and the
results of such search shall indicate there are no judgments
which the Administrative Agent shall reasonably determine in
good faith could reasonably be expected to have a Material
Adverse Effect or Liens not permitted under the Loan Documents
or to be satisfied with the proceeds of the initial Loan
Advance or otherwise permitted by Administrative Agent.
5.1.5 Litigation. On the Closing Date, there shall not be any
actions, suits or proceedings at law or in equity or by or before any
governmental instrumentality or other agency or regulatory authority by
any entity (private or governmental) pending or, to the best of the
Borrower's knowledge, threatened with respect to the Loan, the
transactions contemplated in the Loan Documents, or the Borrower, any
other Loan Party, or any other Borrower Subsidiary, which are not fully
covered (subject to deductibles) by an insurance policy issued by a
reputable and financially viable insurance company, or, to the extent
not so covered, which the Administrative Agent shall reasonably
determine in good faith could reasonably be expected to have a Material
Adverse Effect.
5.1.6 Formation Documents and Entity Agreements.
(i) On the Closing Date, the Administrative Agent
shall have received a certificate of an officer of each
limited liability company which is a manager or general
partner of a Loan Party or limited partnership which is a
general partner of a Loan Party annexing and certifying as to
(a) resolutions of such limited liability
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company authorizing and approving the transactions
contemplated by the Loan Documents, and the execution and
delivery thereof by such limited liability company in respect
of the documents to which it is a party on its own behalf, or
as a general partner or manager of such other Loan Party or
limited partnership, in respect of any of the Loan Documents,
(b) signatures and incumbency of all officers of such limited
liability company executing documentation on behalf of such
entity or on behalf of any entity as to which such limited
liability company is a general partner or manager, as the case
may be, in connection with the transactions contemplated by
the Loan Documents, (c) the Formation Documents of such
limited liability company, the Loan Party which it is a
manager or general partner of, the limited partnership which
it is general partner of, and the Loan Party which such
limited partnership is a general partner of, having been duly
executed, delivered and filed (to the extent required by
applicable Legal Requirements) and remaining in full force and
effect and unmodified except as stated therein as of the date
of such certificate (and annexing copies thereof) and (d) such
limited liability company, the Loan Party which it is a
manager or general partner of, the limited partnership which
it is general partner of, and the Loan Party which such
limited partnership is a general partner of, being in good
standing and authorized to do business in each jurisdiction
where the conduct of its business and ownership of its assets
requires such qualification.
(ii) On the Closing Date, the Administrative Agent
shall have received a certificate of the secretary of each
corporation which is a Loan Party or the general partner of
another Loan Party annexing and certifying as to (a) corporate
resolutions of such entity authorizing and approving the
transactions contemplated by the Loan Documents, and the
execution and delivery thereof by such entity in respect of
the documents to which it is a party on its own behalf, or as
a general partner of such other Loan Party, in respect of any
of the Loan Documents, (b) signatures and incumbency of all
officers of such corporation executing documentation on behalf
of such entity or on behalf of any entity as to which such
corporation is a general partner, in connection with the
transactions contemplated by the Loan Documents, (c) the
Formation Documents of such corporation and Loan Party having
been duly executed, delivered and filed (to the extent
required by applicable Legal Requirements) and remaining in
full force and effect and unmodified except as stated therein
as of the date of such certificate (and annexing copies
thereof) and (d) such corporation and Loan Party being in good
standing and authorized to do business in each jurisdiction
where the conduct of its business and ownership of its assets
requires such qualification.
5.1.7 Compliance With Law. Administrative Agent and each of
the Lenders shall have received and approved evidence that there are no
Legal Requirements which prohibit or adversely limit the capacity or
authority of the Borrower or any Loan Party to enter into the Loan and
perform the obligations of such Person with respect thereto.
5.1.8 Compliance With Financial Covenants. Administrative
Agent shall have received the Closing Compliance Certificate or other
evidence reflecting the Borrower's compliance with the Financial
Covenants and the terms and conditions hereof subject, however, to the
Fourth Quarter Losses.
5.1.9 Borrowing Base Property Due Diligence. Administrative
Agent shall have received and completed a review of such due diligence
as the Administrative Agent
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may reasonably require with respect to any Borrowing Base Property,
consistent with customary commercial lending practices for properties
of a similar nature including, without limitation, satisfaction of the
Borrowing Base Property Requirements.
5.1.10 Condition of Property. There shall have been no
material unrepaired or unrestored damage or destruction by fire or
otherwise to any of the real or tangible personal property comprising
or intended to comprise the Borrowing Base Properties.
5.1.11 Insurance. Borrower shall have provided to
Administrative Agent with respect to each Borrowing Base Property, the
Borrower and the Collateral evidence of: (i) insurance coverages which
meet the property, hazard, and other insurance requirements set forth
on Exhibit E of this Loan Agreement to the satisfaction of
Administrative Agent; and (ii) payment of the premiums for such
insurance in accordance with the requirements set forth in Section
7.5.3.
5.1.12 Third Party Consents and Agreements. The Administrative
Agent shall have received such third party consents and agreements as
the Administrative Agent may reasonably require with respect to the
Loan.
5.1.13 Cash Management. The Borrower shall open the Depository
Account, as provided for herein.
5.1.14 Legal and other Opinions. Administrative Agent shall
have received and approved legal opinion letters from counsel
representing the Borrower and the other Loan Parties which meet
Administrative Agent's legal opinion requirements and covering such
matters incident to the transactions contemplated herein as the
Administrative Agent may request.
5.1.15 No Default. There shall not be any Default under any of
the Loan
Documents.
6. WARRANTIES AND REPRESENTATIONS. The Administrative Agent and the
Lenders acknowledge and agree that all representations and warranties made in
this Section 6 shall be deemed to be made only as of the date hereof; however,
as provided for in Section 6.22, all such representations and warranties shall
be deemed to be reaffirmed as of any proposed Drawdown Date, unless modified by
such additional disclosures as shall be provided to the Administrative Agent in
writing after the date hereof and prior to or with a request for a Loan Advance
and/or the issuance of a Letter of Credit, including the Borrower's continued
compliance with the Financial Covenants, as satisfied by the Closing Compliance
Certificate, or once delivered, the most recent Compliance Certificate delivered
by the Borrower, except to the extent the contemplated action will result in
noncompliance with the Financial Covenants. Subject to such limitations,
Borrower warrants and represents to Administrative Agent and each of the Lenders
for the express purpose of inducing Lenders to enter into this Agreement, to
make each Loan Advance, to issue each Letter of Credit, and to otherwise
complete all of the transactions contemplated hereby as follows:
6.1 Formation. Each Loan Party has been duly formed and is validly
existing and in good standing as a corporation, partnership or limited liability
company, as the case may be, under the laws of the State of its formation. Each
Loan Party has the requisite corporate, partnership or company power and
authority, as applicable, to own its assets and conduct its businesses as
currently conducted and owned, and to enter into and perform its obligations
under
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each Loan Document to which it is a party. Each Loan Party is in good standing
and authorized to do business in each jurisdiction where the ownership of its
assets and/or the conduct of its business requires such qualification except
where the failure to be so qualified would not have a Material Adverse Effect.
6.2 Proceedings; Enforceability. Each Loan Party has taken all
requisite corporate, partnership or company action, as applicable, to authorize
the execution, delivery and performance by such Loan Party of the Loan Documents
to which it is a party. Each Loan Document which is required to be executed and
delivered on or prior to the date on which this representation and warranty is
being made has been duly authorized, executed and delivered and constitutes the
legal, valid and binding obligation of each Loan Party thereto, enforceable
against each such Loan Party in accordance with its respective terms except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency and similar laws affecting rights of creditors generally
and to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
6.3 Conflicts. Neither the execution, delivery and performance of the
Loan Documents by the Loan Parties or compliance by any Loan Party with the
terms and provisions thereof (including, without limitation, the granting of
Liens pursuant to the Security Documents), (i) will contravene any provision of
any law, statute, rule or regulation or any order, writ, injunction or decree of
any court or governmental instrumentality having jurisdiction over Borrower, the
Property or any Loan Party, (ii) will conflict with or result in any breach of
any of the terms, covenants, conditions of, or constitute a default under, or
result in the creation or imposition (or the obligation to create or impose) of
any Lien (except pursuant to the Security Documents) upon any of the property or
assets of any Loan Party pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement or loan agreement or any other agreement, contract or
instrument to which any Loan Party is a party or by which it or any of its
properties or assets is bound or to which it may be subject, or (iii) will
violate any provision of any Formation Document of any Loan Party.
6.4 Ownership and Taxpayer Identification Numbers. All of the partners,
owners, stockholders, and members, respectively and as may be applicable, of
each Loan Party (other than the Borrower and CSC) are listed in Exhibit F (as
such may be updated from time to time in accordance with Section 6.22). The
exact correct name and organizational number(s) and federal employment
identification number(s) of the Borrower, CSC and each such Loan Party are
accurately stated in Exhibit F. Each Borrowing Base Property Owner is a
Wholly-Owned Subsidiary of the Borrower or, as stated in Exhibit F, CSC.
6.5 Litigation. There are no actions, suits or proceedings at law or in
equity or by or before any governmental instrumentality or other agency or
regulatory authority by any entity (private or governmental) pending or, to the
best of each Loan Party's knowledge, threatened with respect to the Loan, the
transactions contemplated in the Loan Documents, or any other Borrower
Subsidiary, which are not fully covered (subject to deductibles) by an insurance
policy issued by a reputable and financially viable insurance company, or, to
the extent not so covered, could have or reasonably be expected to have a
Material Adverse Effect.
6.6 Information. All factual information furnished by or on behalf of
the Borrower or any Loan Party to the Administrative Agent and/or any of the
Lenders (including, without limitation, all information contained in the Loan
Documents) for purposes of or in connection with this Agreement, the other Loan
Documents or any transaction contemplated herein or therein is, and all other
such factual information hereafter furnished by or on behalf of the
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Borrower or any Loan Party to the Administrative Agent and/or any of the Lenders
will be, true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
fact necessary to make such information not misleading in any material respect
at such time in light of the circumstances under which such information was
provided. There is no material fact presently known to the Borrower which has
not been disclosed to Administrative Agent, and thereupon disclosed by
Administrative Agent to the Lenders, which could have or reasonably be expected
to have a Material Adverse Effect.
6.7 Taxes. All Loan Parties have made all required tax filings and are
not delinquent in the payment of any federal, state and local taxes,
assessments, impositions or other governmental charges applicable to them and/or
their respective assets, except to the extent same are being contested in a
manner which complies with the requirements of Section 8.2.3.
6.8 Financial Information. The Consolidated financial statements of
CSC, the Borrower, and the Loan Parties delivered to the Administrative Agent
(and which statements Administrative Agent has delivered to the Lenders) present
fairly the financial condition of each at the dates of such statements of
financial condition and the results of operations for the periods covered
thereby. Since the dates of the relevant financial statements, no change has
occurred which could reasonably be expected to have a Material Adverse Effect
(with the Fourth Quarter Losses being deemed to not have a Material Adverse
Effect), except as may be disclosed in any update from time to time in
accordance with Section 6.22. All financial statements of the Borrower, the
Borrower Subsidiaries, or any other Loan Parties hereafter furnished to
Administrative Agent or any of the Lenders shall be true, accurate and complete
in all material respects and shall fairly present the financial condition of
Borrower and respective Loan Party as of the date thereof.
6.9 Control Provisions. The Borrower controls, directly or indirectly,
and without the requirement for consent of any other Person (other than CSC),
the management of each Borrowing Base Property Owner, subject to the rights of
those minority or other equity interest holders as the Administrative Agent may
approve.
6.10 Formation Documents. The Borrower has delivered or caused to be
delivered to the Administrative Agent true and complete copies of all Formation
Documents of the Loan Parties, and all amendments thereto.
6.11 Bankruptcy Filings. No Loan Party is contemplating either a filing
of a petition under any state or federal bankruptcy or insolvency laws or the
liquidation of all or a major portion of its assets or property, and the
Borrower has no knowledge of any Person contemplating the filing of any such
petition against any Loan Party.
6.12 Investment Company. No Loan Party is an "investment company" or a
company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
6.13 Holding Company. No Loan Party is 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.
6.14 Borrowing Base Properties.
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6.14.1 Each of the Borrowing Base Property Owners possesses
such Licenses and Permits issued by the appropriate federal, state, or
local regulatory agencies or bodies necessary to own and operate each
Borrowing Base Property, except where the failure to possess any such
License or Permit would not have a Material Adverse Effect. The
Borrowing Base Property Owners are in material compliance with the
terms and conditions of all such Licenses and Permits, except where the
failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Licenses and Permits are valid and
in full force and effect, except where the invalidity of such Licenses
and Permits or the failure of such Licenses and Permits to be in full
force and effect would not result in a Material Adverse Effect. Neither
the Borrower nor any of the Borrowing Base Property Owners has received
any written notice of proceedings relating to the revocation or
modification of any such Licenses and Permits which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
6.14.2 (i) The Borrowing Base Property Owners have either (x)
fee simple title to the Borrowing Base Properties or (y) a leasehold
estate interest in the Borrowing Base Properties, as set forth in
Schedule 6.14.2(i) (as such may be updated from time to time in
accordance with Section 6.22); (ii) the interest of the Borrowing Base
Property Owners in the Borrowing Base Properties are not subject to any
Liens except for those in favor of the Administrative Agent for the
ratable benefit of the Lenders securing the repayment of Obligations
and other Permitted Liens, (iii) neither the Borrower nor any of the
Borrowing Base Property Owners has received written notice of the
assertion of any claim by anyone adverse to any Loan Party's ownership,
or leasehold rights in and to any Borrowing Base Property (except as
may be disclosed in any update from time to time in accordance with
Section 6.22); (iv) no Person has an option or right of first refusal
to purchase all or part of any Borrowing Base Property or any interest
therein which has not been waived (except as may be disclosed in
Schedule 6.14.2(i) or in any update from time to time in accordance
with Section 6.22);
6.14.3 Except to the extent the failure of the following to be
true would not result in a Material Adverse Effect or is disclosed in
the Environmental Reports (as defined in the Environmental Indemnity)
or in the S-11 registration statement filed by CSC on October 23, 2003,
(i) each Borrowing Base Property is free of any Hazardous Materials in
violation of any Environmental Legal Requirements applicable to such
property; (ii) none of the Borrowing Base Property Owners or Borrower
has received any written notice of a claim under or pursuant to any
Environmental Legal Requirements applicable to a Borrowing Base
Property or under common law pertaining to Hazardous Materials on or
originating from any Borrowing Base Property (except as may be
disclosed in any update from time to time in accordance with Section
6.22); and (iii) none of the Borrowing Base Property Owners or Borrower
has received any written notice from any Governmental Authority
claiming any material violation of any Environmental Legal Requirements
that is uncured or unremediated (except as may be disclosed in any
update from time to time in accordance with Section 6.22);
6.14.4 Except to the extent the failure of the following to be
true would not result in a Material Adverse Effect, (i) with respect to
the Borrowing Base Properties, each Major Lease is in full force and
effect (except as may be disclosed in any update from time to time in
accordance with Section 6.22), (ii) except as set forth in Schedule
6.14.4(ii) (as such may be updated from time to time in accordance with
Section 6.22), to the Borrower's knowledge, none of the Borrowing Base
Property Owners is in default
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after notice and the expiration of all applicable cure periods in the
performance of any material obligation under any Major Lease and the
Borrower has no knowledge of any circumstances which, with the passage
of time or the giving of notice, or both, would constitute an event of
default by any party under any of the Major Leases, (iii) except as set
forth in Schedule 6.14.4(iii) (as such may be updated from time to time
in accordance with Section 6.22), to the Borrower's knowledge, no
tenant is in default under any Major Lease, (iv) except as otherwise
expressly set forth in Schedule 6.14.4(iv) (as such may be updated from
time to time in accordance with Section 6.22), to the Borrower's
Knowledge, there are no actions, voluntary or involuntary, pending
against any tenant under a Major Lease under any bankruptcy or
insolvency laws, and (v) none of the Major Leases and none of the rents
or other amounts payable thereunder has been assigned, pledged or
encumbered by any of the Borrowing Base Property Owners or any other
Person, except with respect to the Lien in favor of the Administrative
Agent on behalf of the Lenders securing the repayment of Obligations.
6.14.5 Except to the extent the failure of the following to be
true would not result in a Material Adverse Effect, (i) each Ground
Lease with respect to a Borrowing Base Property is valid, binding and
in full force and effect as against the applicable Borrowing Base
Property Owners and, to the Borrower's knowledge, the other party
thereto, (ii) none of Borrowing Base Property Owner's interest in the
Ground Leases is subject to any pledge, lien, assignment, license or
other agreement granting to any third party any interest therein, and
(iii) no payments under any Ground Lease with respect to a Borrowing
Base property are delinquent and no notice of default thereunder has
been sent or received by any Loan Party which has not been cured or
waived prior to the date hereof, and to the knowledge of the Borrower,
there does not exist under any of the Ground Leases any default by any
Borrowing Base Property Owners or any event which merely with notice or
lapse of time or both, would constitute such a default by any of the
Borrowing Base Property Owners, and (iv) the identity of each ground
lessor under a Ground Lease with respect to a Borrowing Base Property
and whether each such ground lessor is an Affiliate of any Loan Party
are set forth in Schedule 6.14.5.
6.15 Use of Proceeds. The proceeds of the Loan shall be used solely and
exclusively as provided in Section 1.3. No portion of the proceeds of the Loan
shall be used directly or indirectly, and whether immediately, incidentally or
ultimately (i) to purchase or carry any margin stock or to extend credit to
others for the purpose thereof or to repay or refund indebtedness previously
incurred for such purpose, or (ii) for any purpose which would violate or in
inconsistent with the provisions of regulations of the Board of Governors of the
Federal Reserve System including, without limitation, Regulations T, U and X
thereof.
6.16 Insurance. The Collateral Properties are insured by insurers of
recognized financial responsibility against such losses and risks in compliance
with the requirements of Exhibit E hereto.
6.17 Deferred Compensation and ERISA. Neither Borrower nor any other
Loan Party, other than CSC, has any pension, profit sharing, stock option,
insurance or other arrangement or Plan for employees covered by ERISA except as
may be designated to Administrative Agent in writing by Borrower from time to
time and, to the best of the Borrower's Knowledge, no Reportable Event has
occurred and is now continuing with respect to any such ERISA Plan. The granting
of the Loan, the performance by Borrower and/or any of the Loan Parties of their
respective obligations under the Loan Documents and Borrower's and/or such other
Loan Parties' conducting of their respective operations do not and will not
violate any provisions of ERISA.
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6.18 Conditions Satisfied. Assuming that the Administrative Agent and
the Lenders have approved all matters requiring their approval, all of the
conditions precedent to closing and funding the initial Loan Advance have been
satisfied or waived.
6.19 No Default. There is no Default on the part of Borrower or any of
the other Loan Parties under this Agreement or any of the other Loan Documents
and no event has occurred and is continuing which could constitute a Default
under any Loan Document.
6.20 Other Loan Parties' Warranties and Representations. Borrower has
no reason to believe that any warranties or representations made in writing by
any of the Loan Parties to the Administrative Agent or any of the Lenders are
untrue, incomplete or misleading in any material respect.
6.21 Qualification as a REIT. CSC qualified as a REIT under the
provisions of the Code, as applicable, for its fiscal year ended December 31,
2002, and has remained qualified from December 31, 2002 through the date hereof.
All appropriate federal income tax returns for the fiscal years through December
31, 2002 have been filed by CSC with the IRS and no previously filed return has
been examined and reported on by the IRS. CSC has not incurred any liability for
excise taxes pursuant to Section 4981 of the Code. CSC is organized in
conformity with the requirements for qualification as a REIT pursuant to
Sections 856 through 860 of the Code, and CSC's proposed method of operation
consistent with CSC's business and the business activities contemplated by this
Agreement will enable it to meet the requirements for qualification and taxation
as a REIT under the Code.
6.22 Regarding Representations and Warranties Each request by any
Borrower for a Loan Advance and/or the issuance of a Letter of Credit: (i) shall
constitute an affirmation by Borrower that the foregoing representations and
warranties remain true and correct as of the date of such request (except as
modified by matters specifically disclosed in writing to Administrative Agent or
as reflected in any update to the representations or warranties, Schedules or
Exhibits referred to in this Article 6 delivered to the Administrative Agent
prior to or simultaneously with such written request) and, unless Administrative
Agent is notified to the contrary prior to the disbursement of the requested
Loan Advance or the issuance of the requested Letter of Credit, will be so on
the date of such Loan Advance or issuance of such Letter of Credit, and (ii)
shall constitute the representation and warranty of Borrower to Administrative
Agent and each of the Lenders that the information set forth in each such
request is true and correct in all material respects and omits no material fact
necessary to make the same not misleading. All representations, warranties,
covenants and agreements made in this Agreement or in the other Loan Documents
by each Loan Party shall be deemed to have been relied upon by the
Administrative Agent and each of the Lenders notwithstanding any investigation
heretofore or hereafter made by the Administrative Agent and/or any of the
Lenders or on its behalf.
7. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that from the
date hereof and so long as any indebtedness is outstanding hereunder, or any of
the Loan or other obligations remains outstanding, as follows:
7.1 Notices. Borrower shall within five (5) business days after it has
actual knowledge thereof, notify Administrative Agent in writing (and
Administrative Agent shall thereafter promptly notify the Lenders) of the
occurrence of any act, event or condition which constitutes a Default or Event
of Default under any of the Loan Documents. Such notification shall include a
written statement of any remedial or curative actions which Borrower proposes to
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undertake and/or to cause any of other Loan Parties to cure or remedy such
Default or Event of Default.
7.2 Financial Statements; Reports; Officer's Certificates. Borrower
shall furnish or cause to be furnished to Administrative Agent (and
Administrative Agent shall thereafter promptly furnish copies of same to the
Lenders) from time to time, the following financial statements, reports,
certificates, and other information, all in form and manner of presentation
reasonably acceptable to Administrative Agent:
7.2.1 Annual Statements. Within ninety (90) days after the
close of each Fiscal Year, (i) the Consolidated statement of financial
condition of CSC, as at the end of such Fiscal Year and the related
Consolidated statement of income and retained earnings and statement of
cash flows for such Fiscal Year, in each case, commencing with the
Fiscal Year ending December 31, 2003, setting forth comparative figures
for the preceding fiscal year and certified by Ernst & Young LLP or
other independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent, in an
unqualified opinion, together with (ii) consolidating income statements
for the Borrower and each Borrower Subsidiary; such financial
statements to include and to be supplemented by such detail and
supporting data and schedules as Administrative Agent may from time to
time reasonably determine;
7.2.2 Periodic Statements Within forty five (45) days after
the close of each calendar quarter (except for the quarter ending on
December 31), the following (i) the Consolidated statement of financial
condition of CSC, as at the end of such quarterly period, the related
Consolidated statement of income and retained earnings (for the current
quarter and on a year to date basis), and statement of cash flows (on a
year to date basis), in each case commencing with the Fiscal Year
ending December 31, 2004, setting forth comparative figures for the
related periods in the prior Fiscal Year, internally prepared in
accordance with GAAP, consistently applied, subject to normal year-end
audit adjustments, all in form and manner of presentation reasonably
acceptable to Administrative Agent, such financial statements to
include and to be supplemented by such detail and supporting data and
schedules as Administrative Agent may from time to time reasonably
determine, together with (ii) consolidating income statements for the
Borrower and each Borrower Subsidiary, (iii) an Officer's Certificate
from the Borrower certifying that such financial statements fairly
present the financial condition of CSC and that no Event of Default has
occurred and is continuing, or if it is, a statement as to the nature
thereof, (iv) a listing of all filings by Borrower or CSC with the SEC,
including, without limitation, full copies of Guarantor's 10-Q and 10-K
filings, and (v) an updated Cash Flow Projection specifically
identifying, without limitation, (a) any changes to the Cash Flow
Projection provided in the immediately prior Officer's Certificate and
(b) any Distributions projected during the next one-hundred and eighty
(180) days.
7.2.3 Borrowing Base Property Reports. Quarterly and annually,
upon delivery of each of the financial statements required pursuant to
Sections 7.2.1 and 7.2.2, above, the following financial statements for
each of the Borrowing Base Property Owners internally prepared by
Borrower and certified by Borrower to be true, accurate and complete in
all material respects: (i) to the extent not included in the deliveries
under Section 7.2.1. or 7.2.2., an operating statement showing all Net
Operating Income, including, without limitation, the results of
operation for the current quarter and on a year-to-date basis for the
period just ended and, annually, an operating statement for the year
just ended; and (ii) in the form customarily used by the Borrower, a
detailed, current
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rent roll of the subject Borrowing Base Property, containing such
details as Administrative Agent may reasonably request.
7.2.4 SEC Reports. Within five (5) days after being received,
copies of all correspondence from the SEC, other than routine
non-substantive general communications from the SEC.
7.2.5 Compliance Certificates. Within forty-five (45) days
after the close of each quarterly accounting period in each Fiscal Year
of the Borrower (except for the quarter ending on December 31, which
shall be submitted within ninety days after the close of such quarter),
a Compliance Certificate in form of Exhibit G, annexed hereto, together
with an Officer's Certificate from the Borrower providing and otherwise
certifying the compliance or non-compliance by the Borrower with the
Financial Covenants, with such supporting detail as is reasonably
deemed necessary by the Administrative Agent to verify the calculations
incorporated therein, along with a report containing, to the extent not
included in the deliveries under Sections 7.2.1, 7.2.2, or 7.2.3 for
all Individual Properties, a summary listing of all Net Operating
Income, revenues, rent roll, mortgage Debt, if any, and, in addition,
for each Individual Property acquired during the quarter just ended,
the cost basis and the amount and terms of any assumed Debt.
7.2.6 Data Requested. Within a reasonable period of time and
from time to time, such other financial data or information as
Administrative Agent may reasonably request with respect to the
Collateral Properties, the Borrower, and/or the other Loan Parties
including, but not limited to, rent rolls, aged receivables, aged
payables, leases, budgets, forecasts, reserves, cash flow projections,
deposit accounts, mortgage information, physical condition of the
Collateral Properties and pending lease proposals;
7.2.7 Tax Returns. Upon Administrative Agent's request, copies
of all federal and state tax returns of the Borrower and the other Loan
Parties;
7.2.8 Lease Notices. Concurrently with the giving or receipt
thereof, and within ten (10) Business Days of receipt thereof, copies
of all notices of default given or received by any Loan Party with
respect to any Major Lease.
7.2.9 Ground Lessor Interest Notices. Concurrently with the
giving thereof, and within five (5) Business Days of receipt thereof,
copies of all material notices, other than routine correspondence,
given or received by any Loan Party with respect to any Ground Lease
with respect to a Borrowing Base Property.
7.2.10 Entity Notices. Concurrently with the issuance thereof,
copies of all material written notices (excluding routine
correspondence) given to the partners, owners, stockholders, and/or
members, respectively, of the Borrower.
7.2.11 Property Acquisition or Sale. Within five (5) Business
Days of receipt thereof, copies of all notices in any way relating to a
proposed sale or acquisition of any Individual Property by the Borrower
or any Borrower Subsidiary.
7.2.12 Property Finance. Within five (5) Business Days of
receipt thereof, copies of all notices in any way relating to (a) a
proposed finance or refinance of any Individual Property by the
Borrower or any Borrower Subsidiary, (b) the occurrence of
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any monetary or material non-monetary default or monetary or material
non-monetary event of default under any Debt which is recourse the
Borrower, or any other default or event of default under any Debt which
is recourse to the Borrower, the occurrence of which could reasonably
be expected to have a Material Adverse Effect, or (c) the occurrence of
any monetary or material non-monetary default or monetary or material
non-monetary event of default under any Debt in excess of
$10,000,000.00 which is secured by an Individual Property, or any other
default or event of default under any Debt in excess of $10,000,000.00
which is secured by an Individual Property, the occurrence of which
could reasonably be expected to have a Material Adverse Effect.
7.2.13 Notice of Litigation. Within ten (10) Business Days
after an officer of either Borrower, any Borrower Subsidiary, or any
Loan Party obtains knowledge thereof, written notice of any pending or,
to the best of the Borrowers' knowledge, threatened action, suit or
proceeding at law or in equity or by or before any governmental
instrumentality or other agency or regulatory authority by any entity
(private or governmental) relating in any way to the Loan, the
transactions contemplated in the Loan Documents (including, without
limitation, with regard to all Distributions), or the transactions
contemplated in any documentation executed in connection therewith, or
the Borrower, any other Loan Party, or any other Borrower Subsidiary,
which is not fully covered (subject to deductibles) by an insurance
policy issued by a reputable and financially viable insurance company,
or, to the extent not so covered, which could reasonably be expected to
have a Material Adverse Effect.
7.3 Existence. Borrower shall do or cause to be done all things
necessary to (i) preserve, renew and keep in full force and effect (x) the
partnership, company or corporate existence, as applicable, of each Loan Party
and (y) the material rights, licenses, permits and franchises of each Loan
Party, (ii) comply with all laws and other Legal Requirements applicable to it
and its assets, business and operations, the non-compliance with which could
reasonably be expected to have a Material Adverse Effect, (iii) to the extent
applicable, at all times maintain, preserve and protect all material franchises
and trade names and all the remainder of its property used or useful in the
conduct of its business, and (iv) keep and cause each Loan Party to keep, its
assets in good working order and repair, ordinary wear and tear and damage by
casualty or taking by condemnation excepted, and from time to time make, or
cause to be made, all reasonably necessary repairs, renewals, replacements,
betterments and improvements thereto.
7.4 Payment of Taxes. Borrower shall duly pay and discharge, and cause
each Loan Party to duly pay and discharge, before the same shall become overdue,
all taxes, assessments, impositions, and other governmental charges payable by
it or with respect to the Collateral Properties, to the extent that same are not
paid by the tenants under the respective Leases; provided, however, the failure
of any Loan Party to pay such taxes, assessments, impositions, or other
governmental charges shall not constitute a Default or Event of Default as long
as same are being contested in a manner which complies with the requirements of
Section 8.2.3.
7.5 Insurance; Casualty, Taking.
7.5.1 Borrower shall at all times maintain or cause the
appropriate Person to maintain in full force and effect the following
insurance: (i) the Collateral Properties shall be insured by insurers
of recognized financial responsibility against such losses and risks in
compliance with the Major Leases and the requirements set forth in
Exhibit E hereto, and (ii) all other assets of the Borrower and the
Borrower Subsidiaries shall be insured with such insurance as is
reasonable and usual for Persons conducting business operations
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similar to those of the Borrower and in compliance with the terms of
any secured financing with respect thereto.
7.5.2 Without limiting the generality of the insurance
requirements set forth herein, only if commercially available at
commercially reasonable rates (in an amount reasonably consistent with
the amount of such insurance generally obtained by companies engaging
in real estate business operations of a similar size and nature as that
of the Borrower) either (i) the insurance policies required hereunder
shall not include any so called "terrorist exclusion" or similar
exclusion or exception to insurance coverage relating to the acts of
terrorist groups or individuals, or (ii) excess or blanket coverage
with respect thereto shall be provided, which excess or blanket
coverage must be in an amount, from an insurer, and in accordance with
terms and conditions reasonably acceptable to the Administrative Agent.
7.5.3 All insurance premiums shall be paid, at Borrower's
option either annually in advance or in installments when due, and
Administrative Agent shall be provided with evidence of such payment of
insurance premiums (or evidence of the relevant installment payment)
prior to each renewal or replacement of such coverages.
7.5.4 In the event of any damage or destruction to any
Collateral Property by reason of fire or other hazard or casualty,
Borrower shall give immediate written notice thereof to Administrative
Agent. With respect to any such damage or destruction, the Borrower
shall make the Mandatory Principal Payment, if any is required, set
forth herein. If there is any condemnation for public use of any
Collateral Property Borrower shall give immediate written notice
thereof to Administrative Agent (and Administrative Agent shall
thereafter promptly notify the Lenders). With respect to any such
condemnation, the Borrower shall make the Mandatory Principal Payment,
if any is required, set forth herein. Further, Borrower shall upon the
request of the Administrative Agent provide to the Administrative Agent
a report as to the status of any insurance adjustment, condemnation
claim, or restoration resulting from any casualty or taking.
7.6 Inspection. Borrower shall cause the other Loan Parties to permit
the Administrative Agent and the Lenders and its/their agents, representatives
and employees to inspect the Collateral Properties, and any and all other assets
of the Borrower or any of the Loan Parties, at reasonable hours upon reasonable
notice. The Borrower shall be responsible for the reasonable costs incurred by
the Administrative Agent of one (1) such inspection of each Borrowing Base
Property or other asset per year, and all such inspections if an Event of
Default is in existence.
7.7 Loan Documents. Borrower shall (and shall cause the other Loan
Parties to) observe, perform and satisfy all the terms, provisions, covenants
and conditions to be performed by it under, and to pay when due all costs, fees
and expenses, and other Obligations to the extent required under, the Loan
Documents.
7.8 Further Assurances. Borrower shall and shall cause the other Loan
Parties to execute and deliver to the Administrative Agent such documents,
instruments, certificates, assignments and other writings, and do such other
acts, necessary or desirable in the reasonable judgment of the Administrative
Agent, to evidence, preserve and/or protect the Collateral at any time securing
or intended to secure the Obligations or for the better and more effective
carrying out of the intents and purposes of this Agreement and the other Loan
Documents.
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7.9 Books and Records. Borrower shall and shall cause the other Loan
Parties and Borrower Subsidiaries to keep and maintain in accordance with GAAP
(or such other accounting basis reasonably acceptable to the Administrative
Agent), proper and accurate books, records and accounts reflecting all of the
financial affairs of the Borrower and such other Loan Parties and Borrower
Subsidiaries and all items of income and expense in connection with their
respective business and operations and in connection with any services,
equipment or furnishings provided in connection with the operation of the
business of the Borrower, the other Loan Parties, and the Borrower Subsidiaries,
whether such income or expense is realized thereby or by any other Person. The
Administrative Agent shall have the right, not more than once each quarter
(unless an Event of Default shall have occurred and be continuing in which case
as often as the Administrative Agent shall reasonably determine), during normal
business hours and upon reasonable notice, to examine such books, records and
accounts at the office of the Person maintaining such books, records,
correspondence, and accounts and to make such copies or extracts thereof as the
Administrative Agent shall desire at Administrative Agent's cost and expense.
Borrower shall give the Administrative Agent fifteen (15) Business Days notice
of any change in the location of its financial records from the address
specified at the beginning of this Agreement. The Administrative Agent may
discuss the financial and other affairs of the Borrower, the other Loan Parties,
and the Borrower Subsidiaries with any of its partners, owners, and any
accountants hired by Borrower, it being agreed that Administrative Agent and
each of the Lenders shall use reasonable efforts not to divulge information
obtained from such examination to others except in connection with Legal
Requirements and in connection with administering the Loan, enforcing its rights
and remedies under the Loan Documents and in the conduct, operation and
regulation of its banking and lending business (which may include, without
limitation, the transfer of the Loan or of participation interests therein). Any
assignee or transferee of the Loan, co-lender, or any holder of a participation
interest in the Loan shall deal with such information in the same manner and in
connection with any subsequent transfer of its interest in the Loan or of
further participation interests therein.
7.10 Business and Operations. Borrower shall (and shall cause the other
Loan Parties and Borrower Subsidiaries to) (i) continue to engage in the type of
businesses, acquisition, sale, financing, development and operation of retail
properties and usual and customary uses incidental to such retail activities
presently conducted by them as of the Closing Date, respectively, and (ii) be
qualified to do business and in good standing under the laws of each
jurisdiction, and otherwise to comply with all Legal Requirements, as and to the
extent the same are required for the ownership, maintenance, management and
operation of the assets of such Person except where the failure to be so
qualified could not reasonably be expected to have a Material Adverse Effect.
7.11 Title. (i) Borrower shall and shall cause the other Loan Parties
to warrant and defend (x) the title to each item of Collateral owned by such
Person and every part thereof, subject only to the Liens (if any) permitted
hereunder, (y) the validity and priority of the Liens and security interests
held by the Administrative Agent pursuant to the Loan Documents, in each case
against the claims of all Persons whomsoever, and (z) the title to and in the
Collateral Properties, and (ii) Borrower and the other Loan Parties shall be
responsible, jointly and severally, to reimburse Administrative Agent and the
Lenders for any losses, costs, damages or expenses (including reasonable
attorneys' fees and court costs) incurred by the Administrative Agent and/or any
of the Lenders if an interest in any item of Collateral, other than as permitted
hereunder, is claimed by another Person.
7.12 Estoppel. Borrower shall (and shall cause the other Loan Parties
to), within ten (10) Business Days after a request therefor from the
Administrative Agent, which request shall
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not be made by Administrative Agent more than once each Fiscal Year, furnish to
the Administrative Agent a statement, duly acknowledged and certified, setting
forth (i) the amount then owing by Borrower in respect of the Obligations, (ii)
the date through which interest on the Loan has been paid, (iii) any offsets,
counterclaims, credits or defenses to the payment by any Loan Party to the
Obligations of which Borrower has knowledge and (iv) whether any written notice
of Default from Administrative Agent to the Borrower or any of the other Loan
Parties is then outstanding and acknowledging that this Agreement and the other
Loan Documents are in full force and effect and unmodified, or if modified,
giving the particulars of such modification.
7.13 ERISA. Borrower shall (and shall cause each of the other Loan
Parties and Borrower Subsidiaries to) as soon as possible and, in any event,
within ten (10) days after any Loan Party, Borrower Subsidiary, or any ERISA
Affiliate knows of the occurrence of any of the following which could reasonably
be expected to have a Material Adverse Effect, deliver to Administrative Agent a
certificate of an executive officer of the Borrower setting forth details as to
such occurrence and the action, if any, that the applicable Borrower or other
Loan Party or Borrower Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by such Borrower, Loan Party, the ERISA Affiliate, the PBGC, a
Plan participant or the Plan administrator with respect thereto: (i) that a
Reportable Event has occurred; (ii) that an accumulated funding deficiency has
been incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period
under Section 412 of the Code with respect to a Plan; (iii) that a contribution
required to be made to a Plan has not been timely made; (iv) that a Plan has
been or may be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; (v) that a Plan has an Unfunded Current Liability giving rise
to a lien under ERISA or the Code; (vi) that proceedings may be or have been
instituted to terminate or appoint a trustee to administer a Plan; (vii) that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; (viii) that such Borrower, Loan Party,
Borrower Subsidiary, or ERISA Affiliate will or may incur any liability
(including any indirect, contingent, or secondary liability) to or on account of
the termination of or withdrawal from a Plan under Section 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section
401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of
ERISA; or (ix) or that such Borrower, the Loan Party or Borrower Subsidiary may
incur any material liability pursuant to any employee welfare benefit plan (as
defined in Section 3(l) of ERISA) that provides benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA). Upon the
request of the Administrative Agent, the Borrower shall (and shall cause the
other Loan Parties and Borrower Subsidiaries to) deliver to Administrative Agent
a complete copy of the annual report (Form 5500) of each Plan required to be
filed with the Internal Revenue Service. In addition to any certificates or
notices delivered to Administrative Agent pursuant to the first sentence hereof,
copies of any material notices received by the Borrower, a Loan Party, a
Borrower Subsidiary, or any ERISA Affiliate with respect to any Plan shall be
delivered to Administrative Agent no later than ten (10) days after the date
such report has been filed with the Internal Revenue Service or such notice has
been received by such Borrower, Loan Party or Borrower Subsidiary or ERISA
Affiliate, as applicable.
7.14 Depository Account.
7.14.1 Borrower shall maintain an operating and other
depository account (the "Depository Account") with Fleet National Bank
(or any successor thereto), unless otherwise agreed by Administrative
Agent in writing.
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7.14.2 Administrative Agent is hereby authorized, on or after
the due date, to charge such Depository Account of Borrower with the
amount of all payments due under this Agreement, the Note or the other
Loan Documents, with the Borrower's obligation to make any required
payment being satisfied to the extent there are sufficient collected
funds in the Depository Account in the amount of such payment.
7.15 Costs and Expenses. Borrower shall pay all costs and expenses
(excluding salaries or wages of full time employees of Administrative Agent)
reasonably incurred by Administrative Agent in connection with the
implementation and syndication of the Loan and the administration of the Loan,
and reasonably incurred by the Administrative Agent or any of the Lenders in
connection with the enforcement of the Administrative Agent's and Lenders'
rights under the Loan Documents, including, without limitation, legal fees and
disbursements, appraisal fees, inspection fees, plan review fees, travel costs,
fees and out-of-pocket costs of independent engineers and other consultants.
Borrower's obligations to pay such costs and expenses shall include, without
limitation, all reasonable attorneys' fees and other costs and expenses for
preparing and conducting litigation or dispute resolution arising from any
breach by Borrower or the Loan Parties of any covenant, warranty, representation
or agreement under any one or more of the Loan Documents.
7.16 Appraisals
7.16.1 Appraisal. Administrative Agent shall have the right at
its option, from time to time, to order an appraisal of one or more of
the Borrowing Base Properties prepared at Administrative Agent's
direction by an appraiser selected by Administrative Agent (the
"Appraisal"), after notice to the Borrower. An appraiser selected by
Administrative Agent shall be an MAI member with an appropriate level
of professional experience appraising commercial properties in the
respective area(s) of the Borrowing Base Properties and otherwise
qualified pursuant to provisions of applicable laws and regulations
under and pursuant to which Administrative Agent operates.
7.16.2 Costs of Appraisal. Borrower shall pay for the costs of
each Appraisal and each updated Appraisal only (i) after the occurrence
of an Event of Default, or (ii) in connection with an annual Appraisal
to be ordered by the Administrative Agent for each Borrowing Base
Property, or (iii) in connection with any request by the Borrower to
extend the Initial Maturity Date to the Extended Maturity Date, or (iv)
if a material adverse change has occurred to any Borrowing Base
Property.
7.17 Indemnification. Borrower shall at all times, both before and
after repayment of the Loan, at its sole cost and expense defend, indemnify,
exonerate and save harmless Administrative Agent and each of the Lenders and all
those claiming by, through or under Administrative Agent and each of the Lenders
("Indemnified Party") against and from all damages, losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind whatsoever, including,
without limitation, reasonable attorneys' fees and experts' fees and
disbursements, which may at any time (including, without limitation, before or
after discharge or foreclosure of the Security Documents) be imposed upon,
incurred by or asserted or awarded against the Indemnified Party and arising
from or out of:
(i) any liability for damage to person or property
arising out of any violation of any Legal Requirement, or
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(ii) any and all liabilities, damages, penalties,
costs, and expenses, relating in any manner to any brokerage
or finder's fees in respect of the Loan arising from any act
or course of dealing by the Borrower or any Loan Party, or
(iii) any act, omission, negligence or conduct at any
Collateral Property, or arising or claimed to have arisen, out
of any act, omission, negligence or conduct of Borrower, any
Borrower Subsidiary, or any tenant, occupant or invitee
thereof which is in any way related to any Collateral
Property.
Notwithstanding the foregoing, an Indemnified Party shall not be entitled to
indemnification in respect of claims arising from acts of its own gross
negligence or willful misconduct to the extent that such gross negligence or
willful misconduct is determined by the final judgment of a court of competent
jurisdiction, not subject to further appeal, in proceedings to which such
Indemnified Party is a proper party.
7.18 Leasing Matters.
7.18.1 Administrative Agent's Approval Required.
(i) Except as provided for herein, the Loan Parties
may enter into, modify, terminate, or amend any Lease for any
Individual Property without the approval of the Administrative
Agent or the Lenders.
(ii) Administrative Agent's prior written approval,
which shall not be unreasonably withheld or delayed, shall be
required in each instance as to the entering into of any Major
Lease.
(iii) For any Major Lease requiring approval
hereunder, the approval shall relate to: (i) the economic and
other terms of the Major Lease; (ii) each tenant under a
proposed Major Lease; (iii) each guarantor of a tenant's
obligations under a proposed Major Lease; (iv) any material
modification or amendment to the Major Lease, and (v) any
optional termination, cancellation or surrender of any Major
Lease by the Loan Party thereto but not a termination
resulting from a default of the tenant thereunder.
7.18.2 Borrower's Requests. Subject to Section 7.18.5, any
request by Borrower for an approval from Administrative Agent with
respect to leasing matters shall be sent to the Administrative Agent
and shall be accompanied to the extent available, by the following: (i)
the proposed lease or amendment or modification thereof complete with
all applicable schedules and exhibits and a lease abstract; (ii) a
complete copy of any proposed guaranty; (iii) comprehensive financial
information with respect to the proposed tenant and, if applicable, the
proposed guarantor (as to new leases or amendments or modifications to
existing leases involving material economic changes); and (iv) an
executive summary of the terms and conditions of the proposed lease
and, if applicable, the proposed guaranty.
7.18.3 Response. The Administrative Agent shall act on
requests from Borrower for any approval required under Section 7.18.2
in a commercially reasonable manner and shall use commercially
reasonable efforts to respond to any such request within ten (10)
Business Days for approvals required under Section 7.18.2, in each
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instance following Administrative Agent's receipt thereof with all
required supporting information. Administrative Agent's response may
consist of an approval or disapproval of the request, or a conditional
approval thereof subject to specified conditions, or a request for
further data or information, or any combination thereof.
7.18.4 Advance Information. In order to expedite the
processing of requests for such approvals, Borrower agrees to provide
the Administrative Agent with as much advance information as is
possible in a commercially reasonable manner in advance of Borrower's
formal request for an approval.
7.18.5 Preliminary Submission.
(i) At Borrower's option, after the preparation or
execution of a term sheet or letter of intent with any
proposed tenant under a Major Lease requiring approval herein,
the Borrower may deliver to the Administrative Agent a
preliminary submission consisting of, to the extent available,
(x) an executive summary or abstract of the terms and
conditions of the proposed lease and, if applicable, the
proposed guaranty and (y) comprehensive financial information
with respect to the proposed tenant and, if applicable, the
proposed guarantor. Administrative Agent shall act on requests
from Borrower for any approval under this section in a
commercially reasonable manner and shall use commercially
reasonable efforts to respond to any such request within ten
(10) Business Days following Administrative Agent 's receipt
thereof. In the event that Administrative Agent approves such
summary material and financial information for any Major
Lease, the material shall be referred to herein as an
"Approved Lease Term Sheet".
(ii) Administrative Agent shall not withhold its
approval of (x) the economic terms of any lease which are not
materially less favorable than the economic terms established
by an Approved Lease Term Sheet, or (y) the identity of the
tenant and each guarantor, and any terms or other substantive
provisions, reflected in an Approved Lease Term Sheet, unless
there has been a material adverse change in the financial
condition of the tenant or any such guarantor since the
approval of such Approved Lease Term Sheet.
7.19 Interest Expense Coverage. The Interest Expense Coverage as
determined as of each Calculation Date shall be not less than 2.00:1. The
Interest Expense Coverage covenant shall be tested by the Administrative Agent
as of the Calculation Date with results based upon the results for the most
recent Calculation Period, such calculation and results to be verified by the
Administrative Agent.
7.20 Leverage Ratio. The Leverage Ratio as determined as of each
Calculation Date shall be less than seventy percent (70%). The Leverage Ratio
covenant shall be tested by the Administrative Agent as of each Calculation
Date, such calculation and results to be verified by the Administrative Agent.
7.21 Fixed Charge Ratio. The Fixed Charge Ratio as determined as of
each Calculation Date shall be not less than 1.50:1. The Fixed Charge Ratio
covenant shall be tested by the Administrative Agent as of each Calculation Date
with results based upon the results for the most recent Calculation Period, such
calculation and results to be verified by the Administrative Agent.
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7.22 Net Worth. The Borrower's Net Worth as determined as of each
Calculation Date shall be equal to or greater than the aggregate of (a)
eighty-five percent (85%) of Borrower's Net Worth as of December 31, 2003, plus
(b) eighty-five percent (85%) of the cumulative net cash proceeds received from
and the value of assets acquired (net of Debt incurred or assumed in connection
therewith) through the issuance of Capital Stock by CSC or the Borrower after
December 31, 2003. For purposes of this section "net" means net of underwriters'
discounts, commissions and other reasonable out-of-pocket expenses of issuance
actually paid to any Person (other than a Loan Party or an Affiliate of any Loan
Party). The Net Worth covenant shall be tested by the Administrative Agent as of
each Calculation Date, such calculation and results to be verified by the
Administrative Agent.
7.23 Borrowing Base Property Covenants.
7.23.1 The aggregate Occupancy Ratio for all Borrowing Base
Properties (determined on an aggregate rentable square foot basis)
shall not at any time be less than Eighty-Five (85%) percent for a
period of ninety (90) consecutive days.
7.23.2 Each Borrowing Base Property shall at all times be a
retail center located in the United States owned by a Borrowing Base
Property Owner.
7.23.3 The ownership of each Borrowing Base Property shall at
all times be consistent with the Borrower's business strategy, and each
Borrowing Base Property shall at all times be of an asset quality
consistent with the quality of Borrowing Base Properties owned by the
Borrowing Base Property Owners as of the date hereof.
7.24 Variable Rate Debt. The aggregate Pro Rata amount of the Debt
(including the Loan) of the Consolidated CSC Entities and the Unconsolidated CSC
Entities which is Variable Rate Indebtedness shall not exceed thirty percent
(30%) of the Pro Rata amount of such total Debt.
7.25 Replacement Documentation. Upon receipt of an affidavit of an
officer of Administrative Agent as to the loss, theft, destruction or mutilation
of the Note or any other security document which is not of public record, and,
in the case of any such loss, theft, destruction or mutilation, upon surrender
and cancellation of such Note or other security document, Borrower will issue,
in lieu thereof, a replacement Note or other security document in the same
principal amount thereof and otherwise of like tenor.
7.26 Other Covenants. The Borrower hereby represents and warrants to
Administrative Agent and the Lenders that no Collateral is in the possession of
any third party bailee (such as at a warehouse). In the event that the Borrower
and/or any of the other Loan Parties, after the date hereof, intends to store or
otherwise deliver any Collateral or other personal property in which the
Administrative Agent has been granted a security interest to such a bailee, then
the Borrower shall receive the prior written consent of the Administrative Agent
not to be unreasonably withheld or delayed and such bailee must acknowledge in
writing that the bailee is holding such Collateral or such other personal
property for the benefit of the Administrative Agent and the Lenders.
7.27 Maintenance of REIT Status. CSC shall engage in such business
activities, and shall refrain from engaging in such activities, so as to
continue to meet the requirements for qualification and taxation as a REIT under
the Code.
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7.28 Lenders' Consultants.
7.28.1 Right to Employ. The Borrower agrees that the
Administrative Agent shall have the right to employ on its behalf and
on behalf of the Lenders, its own personnel, or one or more engineers,
architects, environmental advisors, scientists, accountants, and
attorneys to act as an advisor to Administrative Agent and the Lenders
in connection with the Loan (each of which shall be a "Lenders'
Consultant").
7.28.2 Functions. The functions of a Lenders' Consultant shall
include, without limitation: (i) inspection and physical review of any
Collateral Property; (ii) review and analysis of environmental matters;
(iii) review and analysis of financial and legal matters; and (iv)
providing usual inspection and review services in the event of the use
of Net Proceeds for any Repair Work.
7.28.3 Payment. The reasonable costs and fees of Lenders'
Consultants shall be paid by Borrower upon billing therefor and, if not
so paid within thirty (30) days, may be paid directly by the Lenders
through a Loan Advance.
7.28.4 Access. Borrower shall provide Lenders' Consultants
with reasonable access to all Collateral Properties.
7.28.5 No Liability. Neither Administrative Agent nor any
Lender shall have liability to Borrower, any Loan Party, Guarantor, or
third party on account of: (i) services performed by Lenders'
Consultant; or (ii) any failure or neglect by Lenders' Consultant to
properly perform services. Borrower shall have no rights under or
relating to any agreement, report, or similar document prepared by any
Lenders' Consultant for Administrative Agent or Lenders. No Lenders'
Consultant shall have liability to Borrower, any Loan Party, Guarantor,
or third party on account of: (i) services performed by such Lenders'
Consultant; or (ii) any failure or neglect by such Lenders' Consultant
to properly perform services, except for its gross negligence or
willful misconduct.
8. NEGATIVE COVENANTS. Borrower covenants and agrees that from the date
hereof and so long as any indebtedness is outstanding hereunder, or any of the
Loan or other obligations remains outstanding, the Borrower shall not (and shall
not suffer or permit the other Loan Parties, and/or the Borrower Subsidiaries
to):
8.1 No Changes to Borrower and other Loan Parties. Without the prior
written consent of the Administrative Agent, not to be unreasonably withheld or
delayed after not less than thirty (30) days' prior written notice (with
reasonable particularity of the facts and circumstances attendant thereto): (i)
change its jurisdiction of organization, (ii) change its organizational
structure or type, (iii) change its legal name, or (iv) change the
organizational number (if any) assigned by its jurisdiction of formation or its
federal employment identification number (if any). Borrower agrees to take all
such action and execute all such documents as the Administrative Agent may
reasonably require in order to maintain the Administrative Agent's priority and
perfection in the Collateral.
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8.2 Restrictions on Liens. Create, incur, assume or suffer to exist any
Lien upon or with respect to any property or assets (real or personal, tangible
or intangible, including, without limitation, the Borrowing Base Properties),
whether now owned or hereafter acquired, or sell any such property or assets
subject to an understanding or agreement, contingent or otherwise, to repurchase
such property or assets (including sales of accounts receivable with recourse)
or assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute, or grant rights with respect to, or otherwise
encumber or create a security interest in, such property or assets (including,
without limitation, any item of Collateral) or any portion thereof or any other
revenues therefrom or the proceeds payable upon the sale, transfer or other
disposition of such property or asset or any portion thereof, or permit or
suffer any such action to be taken, except the following (singly and
collectively, "Permitted Liens"):
8.2.1 Liens created by the Loan Documents;
8.2.2 Liens to secure Permitted Debt, provided that (x) the
Borrower will be in compliance with the Financial Covenants considering
the consequences of the granting of any such Lien and (y) no such Lien
shall be secured by any Borrowing Base Property, the ownership interest
in any Borrowing Base Property Owner, or any other assets of any
Borrowing Base Property Owner;
8.2.3 Liens for taxes, assessments or other governmental
charges not yet delinquent or which are being diligently contested in
good faith and by appropriate proceedings, if (x) to the extent such
contest concerns a Borrowing Base Property, reasonable reserves in an
amount not less than the tax, assessment or governmental charge being
so contested shall have been established in a manner reasonably
satisfactory to the Administrative Agent or deposited in cash (or cash
equivalents) with the Administrative Agent to be held during the
pendency of such contest, or such contested amount shall have been duly
bonded in accordance with applicable law, (y) no imminent risk of sale,
forfeiture or loss of any interest in any Borrowing Base Property or
the Collateral or any part thereof arises during the pendency of such
contest and (z) such contest does not have and could not reasonably be
expected to have a Material Adverse Effect;
8.2.4 Liens in respect of property or assets imposed by law,
which do not secure Debt, such as judgment Liens (provided such
judgment Liens do not cause the occurrence of an Event of Default under
Section 10.1), carriers', warehousemen's, material men's and mechanics'
liens and other similar Liens arising in the ordinary course of
business, (x) which, except for such judgment Liens, do not in the
aggregate materially detract from the value of any property or assets
or have, and could not reasonably be expected to have, a Material
Adverse Effect, (y) which, except for such judgment Liens, are being
contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the property or
assets subject to any such Lien, and (z) which as to any Borrowing Base
Property do not have a lien priority prior to the Lien in favor of the
Administrative Agent, for the benefit of the Lenders, with respect to
the Obligations, including, without limitation, any future Loan
Advances;
8.2.5 Personal property financing leases entered into in the
ordinary course of business with respect to equipment, fixtures,
furniture, furnishings and similar assets
8.3 Consolidations, Mergers, Sales of Assets, Issuance and Sale of
Equity. (i)
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Dissolve, terminate, liquidate, consolidate with or merge with or into any other
Person, (ii) issue, sell, lease, transfer or assign to any Persons or otherwise
dispose of (whether in one transaction or a series of transactions) any portion
of its assets (whether now owned or hereafter acquired), including, without
limitation, any securities, membership or partnership interests, or other
interests of any kind in any other Loan Party or Borrower Subsidiary, directly
or indirectly (whether by the issuance of rights of, options or warrants for, or
securities convertible into, any such security, membership or partnership
interests or other interests of any kind), (iii) permit another Person to merge
with or into it, (iv) acquire all or substantially all the capital stock,
membership or partnership interests or assets of any other Person, or (v) take
any action which could have the effect, directly or indirectly, of diluting the
economic interest of any Loan Party in any other Loan Party or Borrower
Subsidiary; except the following:
8.3.1 Transfers pursuant to the Security Documents and other
agreements in favor of Administrative Agent for the ratable benefit of
the Lenders;
8.3.2 Any such dissolution, liquidation, or termination which
does not involve a Loan Party;
8.3.3 With the prior written consent of the Administrative
Agent and the Lenders, such consent not to be unreasonably withheld or
delayed, any consolidation, merger, or issuance so long as the Borrower
is the surviving entity, provided that (x) the Borrower will be in
compliance with the Financial Covenants considering the consequences of
such event, (y) no such event shall cause a Change of Control, and (z)
except as otherwise approved by the Administrative Agent, each
Borrowing Base Property Owner will continue to be a Wholly-Owned
Subsidiary of the Borrower or CSC as of the date hereof;
8.3.4 Sales of any Borrowing Base Property, provided the
Release Conditions are satisfied with respect thereto;
8.3.5 Leases of all or any portion of any Borrowing Base
Property which either (i) are permitted by the terms of this Agreement
without Administrative Agent's consent or approval or (ii) are approved
as provided for in this Loan Agreement;.
8.3.6 Sales, transfers or assignments of other assets of the
Borrower, any Loan Party or any Borrower Subsidiary which are not
within the Collateral, provided that the Borrower will be in compliance
with the Financial Covenants considering the consequences of the sale;
provided further, however, that the prior written approval of the
Administrative Agent and the Required Lenders must be obtained (not to
be unreasonably withheld or delayed), in every instance, in the event
that the aggregate amount of any such sales, transfers, or assignments
of said other assets exceeds ten percent (10%) of the Total Asset
Value, as verified by the Administrative Agent;
8.3.7 Sales or dispositions in the ordinary course of business
of worn, obsolete or damaged items of personal property or fixtures
which are suitably replaced;
8.3.8 Transactions, whether outright or as security, for which
Administrative Agent's, the Required Lenders' or the Lenders', as
applicable, prior written consent has been obtained to the extent such
approval is required under this Agreement;
8.3.9 In connection with a Permitted Investment;
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8.3.10 The issuance or sale of equity interests in the
Borrower or CSC;
8.3.11 The sale, transfer, assignment, redemption or other
disposition of all or a portion of any preferred limited partnership
interest in Cedar-Riverview LP or Delaware 1851 Associates, L.P.; or
8.3.12 Mergers of and between Loan Parties, provided (i) the
Borrower and CSC shall at all times remain surviving entities, (ii) the
Administrative Agent receives ten (10) Business Days prior written
notice of the proposed merger, and (iii) Borrower agrees to take all
such action and execute all such documents as the Administrative Agent
may reasonably require in order to maintain the Administrative Agent's
priority and perfection in the Collateral.
8.4 Restrictions on Debt. (i) Create, incur or assume any Debt, or make
any voluntary prepayments of any Debt in respect of which it is an obligor, (ii)
enter into, acquiesce, suffer or permit any amendment, restatement or other
modification of the documentation evidencing and/or securing any Debt under
which it is an obligor, (iii) increase the amount of any Debt existing as of the
Closing Date; except with respect to the following (singly and collectively,
"Permitted Debt"):
8.4.1 The Obligations;
8.4.2 Customary permanent Debt of the Borrower, CSC or any
Borrower Subsidiary secured by an Individual Property, other than a
Borrowing Base Property; provided that the Borrower will be in
compliance with the Financial Covenants considering the consequences of
the incurrence of such Debt and provided further that the total
aggregate amount of all such Debt which is secured by more than one
Individual Property shall not at any time exceed $25,000,000;
8.4.3 Individual Property secured Debt of the Borrower, CSC or
any Borrower Subsidiary which is recourse to the Borrower or CSC
consistent with customary project finance market terms and conditions
in an amount not to exceed $50,000,000.00 in the aggregate outstanding
at any one time, provided that the Borrower will be in compliance with
the Financial Covenants considering the consequences of the incurrence
of such Debt;
8.4.4 Individual Property secured Debt of the Borrower, CSC or
any Borrower Subsidiary which is nonrecourse to the Borrower (other
than recourse in connection with customary nonrecourse or "bad boy"
carve out provisions) or CSC, provided that the Borrower will be in
compliance with the Financial Covenants considering the consequences of
the incurrence of such Debt;
8.4.5 Indebtedness incurred in the ordinary course of business
for the purchase of goods or services which are payable, without
interest, within ninety (90) days of billing; and
8.4.6 Transactions, whether secured or unsecured, for which
Administrative Agent's prior written consent has been obtained to the
extent such approval is required under this Agreement; and
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8.4.7 Debt under capital leases of the type described in
Section 8.2.5.
8.5 Other Business. Enter into any line of business or make any
material change in the nature of its business, purposes or operations, or
undertake or participate in activities other than the continuance of its present
business except as otherwise specifically permitted by this Agreement or the
other Loan Documents.
8.6 Change of Control. Permit or otherwise suffer to occur any Change
of Control.
8.7 Forgiveness of Debt. Voluntarily cancel or otherwise forgive or
release any Debt owed to it by any Person, except for adequate consideration and
except for settlement of lease obligations of tenants in the Borrower's
reasonable business judgement.
8.8 Affiliate Transactions. Except as disclosed in the S-11
registration statement filed by CSC on October 23, 2003, after the Closing Date,
enter into, or be a party to, any transaction with any Person which is an
Affiliate of any Loan Party, except transactions (a) involving the offering or
sale of a Person's equity interests on an arm's length basis, or (b) entered
into in the ordinary course of business and on terms which are no less favorable
to such Loan Party or Borrower Subsidiary than would be obtained in a comparable
arm's-length transaction with an unrelated third party, provided that this
Section 8.8 shall not apply to transactions between and among Loan Parties or
between and among Borrower Subsidiaries or to transactions between Loan Parties
and Borrower Subsidiaries.
8.9 ERISA. Except for Code Section 401(k) plans, establish or be
obligated to contribute to any Plan.
8.10 Bankruptcy Filings. With respect to any of the Loan Parties, file
a petition under any state or federal bankruptcy or insolvency laws for the
liquidation of all or a major portion of its assets or property.
8.11 Investment Company. Become an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
8.12 Holding Company. Become 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.
8.13 Use of Proceeds. Permit the proceeds of the Loan, or any other
accommodation at any time made hereunder, to be used for any purpose which
entails a violation of, or is inconsistent with, Regulation T, U or X of the
Board, or for any purpose other than those set forth in Section 1.3.
8.14 Distributions. Authorize, declare, or pay any Distributions on
behalf of the Borrower, except for Permitted Distributions.
8.15 Restrictions on Investments. make or permit to exist or to remain
outstanding any Investment except which are in:
(i) marketable direct or guaranteed general obligations of
the United States of
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America which mature within one year from the date of
purchase;
(ii) bank deposits, certificates of deposit and banker's
acceptances, or other obligations in or of the Lenders or
banks located within and chartered by the United States of
America or a state and having assets of over $500,000,000.00;
(iii) the Borrower's Subsidiaries (both Subsidiaries as of
the date hereof and any other Person that becomes a Borrower
Subsidiary), subject in all instances to the terms of this
Agreement; and
(iv) Permitted Investments.
8.16 Negative Pledges, etc. Enter into any agreement subsequent to the
Closing Date (other than a Loan Document) which (a) prohibits the creation or
assumption of any Lien upon any of the Collateral, including, without
limitation, any hereafter acquired property, (b) specifically prohibits the
amendment or other modification of this Agreement or any other Loan Document, or
(c) could reasonably be expected to have a Material Adverse Effect.
9. SPECIAL PROVISIONS.
9.1 Legal Requirements. Borrower, any Borrower Subsidiary or any Loan
Party may contest in good faith any claim, demand, levy or assessment under any
Legal Requirements by any person or entity if: (i) the contest is based upon a
material question of law or fact raised by Borrower in good faith; (ii) such
Person properly commences and thereafter diligently pursues the contest; (iii)
the contest will not materially impair the ability to ultimately comply with the
contested Legal Requirement should the contest not be successful; (iv) if the
contest concerns a Borrowing Base Property or a Borrowing Base Property Owner,
reasonable reserves in an amount necessary to undertake and pay for such contest
and any corrective or remedial action then or thereafter reasonably likely to be
necessary shall have been established in a manner reasonably satisfactory to the
Administrative Agent or deposited in cash (or cash equivalents) with the
Administrative Agent to be held during the pendency of such contest, or such
contested amount shall have been duly bonded in accordance with applicable law;
(vi) no Event of Default exists; (vii) if the contest relates to an
Environmental Legal Requirement, the conditions set forth in the Environmental
Indemnity relating to such contests shall be satisfied; (viii) no imminent risk
of sale, forfeiture or loss of any interest in any Borrowing Base Property or
the Collateral or any part thereof arises during the pendency of such contest;
and (ix) such contest could not reasonably be expected to have a Material
Adverse Effect.
9.2 Limited Recourse Provisions.
9.2.1 Borrower Fully Liable. Borrower shall be fully liable
for the Loan and the Obligations of Borrower to the Administrative
Agent and each of the Lenders.
9.2.2 Certain Non-Recourse. This Agreement and all Loan
Documents have been executed by the undersigned in its capacity as an
officer of CSC, as general partner of the Borrower on behalf of the
Borrower or the Loan Parties, and not individually, and none of the
trustees, officers, directors, members, limited partners, or
shareholders of the Borrower or CSC or any Loan Party shall be bound or
have any personal liability hereunder or thereunder except under any
Guaranty or other Loan Document signed by such Person, other than a
signature in a representative capacity. Under no circumstances shall
any party be entitled to seek recourse or commence any action against
any of the
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trustees, officers, directors, members, limited partners, or
shareholders of the Borrower or CSC or any such Person's personal
assets for the performance or payment of any obligation hereunder. In
all other Loan Documents, all parties shall not seek recourse or
commence any action against any of the trustees, officers, directors,
members, limited partners, or shareholders of Borrower or CSC or any of
such Person's personal assets for the performance or payment of any
obligation hereunder or thereunder, except under any Guaranty or other
Loan Document signed by such Person, other than a signature in a
representative capacity.
9.2.3 Additional Matters. Nothing contained in the foregoing
non-recourse provisions or elsewhere shall: (i) limit the right of
Administrative Agent or any of the Lenders to obtain injunctive relief
or to pursue equitable remedies under any of the Loan Documents,
excluding only any injunctive relief ordering payment of obligations by
any Person or entity for which personal liability does not otherwise
exist; or (ii) limit the liability of any attorney, law firm,
accountant or other professional who or which renders or provides any
written opinion or certificate to Administrative Agent or any of the
Lenders in connection with the Loan even though such person or entity
may be a limited partner of Borrower.
9.3 Payment of Obligations. Upon the return to the Administrative
Agent, or the expiration, of all of the Letters of Credit and the payment in
full of the Obligations, in immediately available funds, including, without
limitation, all unreimbursed costs and expenses of the Administrative Agent and
of each Lender for which the Borrower is responsible, and the termination of the
Loan, the Administrative Agent shall release any security and other collateral
interests as provided for herein and under the other Loan Documents and shall
execute and deliver such documents and termination statements as Borrower or any
other Loan Party reasonably requests to evidence such termination and release.
However, such release by the Administrative Agent shall not be deemed to
terminate or release any Person from any obligation or liability under the Loan
Documents which specifically by its terms survives the payment in full of the
Obligations.
10. EVENTS OF DEFAULT. The following provisions deal with Default,
Events of Default, notice, grace and cure periods, and certain rights of
Administrative Agent following an Event of Default.
10.1 Default and Events of Default. The term "Default" as used herein
or in any of the other Loan Documents shall mean any fact or circumstance which
constitutes, or upon the lapse of time, or giving of notice, or both, could
constitute, an Event of Default. The occurrence of any of the following events,
continuing uncured beyond any applicable grace, notice or cure period,
respectively, shall constitute an event of default ("Event of Default"). Upon
the occurrence of any Event of Default described in Section 10.1.8, any and all
Obligations shall become due and payable without any further act on the part of
the Administrative Agent. Upon the occurrence of any other Event of Default, the
Administrative Agent may declare that any and all Obligations shall become
immediately due and payable.
10.1.1 Failure to Pay the Loan. The failure by the Borrower to
pay when due any principal of, interest on, or fees in respect of, the
Loan, and the specific grace period, if any, allowed for the default in
question in Section 10.2 or elsewhere in this Agreement shall have
expired without such default having been cured.
10.1.2 Failure to Make Other Payments. The failure by the
Borrower to pay
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when due (or upon demand, if payable on demand) any payment Obligation
other than any payment Obligation on account of the principal of, or
interest on, or fees in respect of, the Loan, and the specific grace
period, if any, allowed for the default in question in Section 10.2 or
elsewhere in this Agreement shall have expired without such default
having been cured.
10.1.3 Note, Security Documents, and Other Loan Documents. Any
other default in the performance of any term or provision of the Note,
or of the Security Documents, or of any of the other Loan Documents, or
a breach, or other failure to satisfy, any other term, provision,
condition or warranty under the Note, the Security Documents, or any
other Loan Document, regardless of whether any then undisbursed portion
of the Loan is sufficient to cover any payment of money required
thereby, and the specific grace period, if any, allowed for the default
in question in Section 10.2 or elsewhere in this Agreement shall have
expired without such default having been cured.
10.1.4 Default under Other Agreements. The occurrence of any
breach of any covenant or Obligation imposed by, or of any default
under, any agreement (including any Loan Document) between the
Administrative Agent and/or the Lenders and the Borrower, and/or the
Loan Parties in connection with the Loan, or any instrument given by
the Borrower and such Persons to the Administrative Agent and/or the
Lenders, in connection with the Loan and the expiry, without cure, of
any applicable grace period in Section 10.2, elsewhere in this
Agreement, or in the applicable Loan Document (notwithstanding that the
Administrative Agent and/or the Lenders may not have exercised all or
any of its/their rights on account of such breach or default).
10.1.5 Representations and Warranties. If any representation
or warranty made by the Borrower or by any of the other Loan Parties or
the Borrower Subsidiaries in the Loan Documents was untrue or
misleading in any material respect as of the date made or deemed made
(updated as provided for herein), including, without limitation, all
representations and warranties made in Article 6 herein, and shall have
a Material Adverse Effect.
10.1.6 Affirmative Covenants. The breach of any covenant
contained in Article 7 herein, including, without limitation, the
Financial Covenants.
10.1.7 Negative Covenants. The breach of any covenant
contained in Article 8 herein.
10.1.8 Financial Status and Insolvency.
A. Borrower shall: (i) admit in writing its inability to pay
its debts generally as they become due; (ii) file a petition in
bankruptcy or a petition to take advantage of any insolvency act; (iii)
make an assignment for the benefit of creditors; (iv) consent to, or
acquiesce in, the appointment of a receiver, liquidator or trustee of
itself or of the whole or any substantial part of its properties or
assets; (v) file a petition or answer seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under the Federal Bankruptcy laws or any other
applicable law; (vi) have a court of competent jurisdiction enter an
order, judgment or decree appointing a receiver, liquidator or trustee
of Borrower, or of the whole or any substantial part of the property or
assets of Borrower, and such order, judgment or decree shall remain
unvacated or not set aside or unstayed for ninety (90) days; (vii) have
a petition filed against it seeking
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reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the Federal Bankruptcy laws or any
other applicable law and such petition shall remain undismissed for
ninety (90) days; (viii) have, under the provisions of any other law
for the relief or aid of debtors, any court of competent jurisdiction
assume custody or control of Borrower or of the whole or any
substantial part of its property or assets and such custody or control
shall remain unterminated or unstayed for ninety (90) days; or (ix)
have an attachment or execution levied against any substantial portion
of the property of Borrower or against any portion of the Collateral
which is not discharged or dissolved by a bond within sixty (60) days;
or
B. any such event set forth in subsection A above shall
occur with respect to any Loan Party;
10.1.9 Loan Documents. If any Loan Document for any reason
other than the satisfaction in full of all Obligations shall cease to
be in full force and effect (other than in accordance with its terms),
thereby preventing the Administrative Agent and/or the Lenders from
obtaining the practical realization of the benefits thereof, or if any
Loan Document shall be declared null and void or any Loan Party shall
claim or declare any such Loan Document to no longer be in full force
and effect or is null and void, or if the Liens and security interests
purported to be created by any of the Loan Documents shall cease to be
valid, perfected, first priority (except as otherwise expressly
provided herein) security interests;
10.1.10 Judgments. One or more judgments or decrees shall be
entered against Borrower or any Loan Party or Borrower Subsidiary
involving a liability (not paid or fully covered (subject to
deductibles) by a reputable and solvent insurance company) and such
judgments and decrees either shall be final and non-appealable or shall
not be vacated, discharged or stayed or bonded pending appeal for any
period of sixty (60) consecutive days, and the aggregate amount of all
such judgments exceeds $750,000.00;
10.1.11 ERISA. (i) If any Plan shall fail to satisfy the
minimum funding standard required for any plan year or part thereof and
a waiver of such standard or extension of any amortization period is
not granted under Section 412 of the Code, any Plan shall have had or
is likely to have a trustee appointed to administer such Plan, any Plan
is, shall have been or is likely to be terminated or to be the subject
of a distress termination proceeding under ERISA, any Plan shall have
an Unfunded Current Liability, a contribution required to be made to a
Plan has not been timely made, a Loan Party or any ERISA Affiliate has
incurred or is likely to incur a liability to or on account of a Plan
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the
Code, or a Loan Party has incurred or is likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in
Section 3(l) of ERISA) that provide benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA)
or employee pension benefit plans (as defined in Section 3(2) of ERISA)
and any of the foregoing could have a Material Adverse Effect; (ii) if
there shall result from any such event or events the imposition of a
lien, the granting of a security interest, or a liability or a material
risk of incurring a liability which could have, or reasonably be
expected to have, a Material Adverse Effect; or (iii) if any such lien,
security interest or liability is imposed or granted and, individually,
and/or in the aggregate, in the reasonable opinion of the
Administrative Agent could have, or reasonably be expected to have, a
Material Adverse Effect.
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10.1.12 Change of Control. If a Change of Control shall occur.
10.1.13 Indictment; Forfeiture. The indictment of, or
institution of any legal process or proceeding against, the Borrower,
any other Loan Party, and/or any Borrower Subsidiary under any
applicable law where the relief, penalties, or remedies sought or
available include the forfeiture of any property of Borrower and/or any
other such Person and/or the imposition of any stay or other order, the
effect of which could be to restrain in any material way the conduct by
the Borrower and/or any other such Person of its business in the
ordinary course.
10.1.14 Termination of Guaranty or Consent. Except as
otherwise provided herein, the termination or attempted termination of
any Guaranty by any Guarantor of the Obligations.
10.1.15 Generally. A default by Borrower in the performance of
any term, provision or condition of this Agreement to be performed by
Borrower, or a breach, or other failure to satisfy, any other term
provision, condition, covenant or warranty under this Agreement and
such default remains uncured beyond any applicable specific grace
period provided for in this Agreement, including, without limitation,
as set forth in Section 10.2. below.
10.2 Grace Periods and Notice. As to each of the foregoing events the
following provisions relating to grace periods and notice shall apply:
10.2.1 No Notice or Grace Period. There shall be no grace
period and no notice provision with respect to the payment of principal
at maturity and/or in connection with a Mandatory Principal Prepayment
(except as provided in Section 2.3.8. above) and no grace period and no
notice provision with respect to defaults related to the voluntary
filing of bankruptcy or reorganization proceedings or an assignment for
the benefit of creditors, or subject to Sections 10.2.4 and 10.2.5,
with respect to a breach of warranty or representation under Article 6,
or (subject to Section 10.2.5) with respect to the breach of any of the
affirmative covenants set forth in Article 7 (unless a grace or cure
period is specifically provided for therein) or (subject to Section
10.2.5) with respect to the breach of any of the negative covenants set
forth in Article 8.
10.2.2 Nonpayment of Interest. As to the nonpayment of
interest there shall be a three (3) Business Day grace period without
any requirement of notice from Administrative Agent.
10.2.3 Other Monetary Defaults. All other monetary defaults
shall have a three (3) Business Day grace period following notice from
Administrative Agent.
10.2.4 Nonmonetary Defaults Capable of Cure. As to
non-monetary Defaults which are reasonably capable of being cured or
remedied, unless there is a specific shorter or longer grace period
provided for in this Loan Agreement or in another Loan Document, there
shall be a thirty (30) day grace period following notice from
Administrative Agent or, if such Default would reasonably require more
than thirty (30) days to cure or remedy, such longer period of time not
to exceed a total of ninety (90) days from Administrative Agent's
notice as may be reasonably required so long as Borrower shall commence
reasonable actions to remedy or cure the default within thirty (30)
days following such
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notice and shall diligently prosecute such curative action to
completion within such ninety (90) day period. However, where there is
an emergency situation in which there is danger to person or property,
it shall be an immediate Event of Default if such curative action shall
not be commenced as promptly as possible. As to breaches of warranties
and representations there shall be a thirty (30) day grace period
following notice from Administrative Agent.
10.2.5 Borrowing Base Property Defaults. As to any
non-monetary Defaults which are reasonably capable of being cured or
remedied by the removal of any Individual Property or Individual
Properties from being Borrowing Base Properties, there shall be a
thirty (30) day grace period following notice from the Administrative
Agent for the Borrower to cure or remedy such Default by paying the
Release Price with respect thereto, if required.
11. REMEDIES.
11.1 Remedies. Upon the occurrence and during the continuance of an
Event of Default, whether or not the indebtedness evidenced by the Note and
secured by the Security Documents shall be due and payable or Administrative
Agent shall have instituted any foreclosure or other action for the enforcement
of the Security Documents or the Note, Administrative Agent may, and shall upon
the direction of the Required Lenders, in addition to any other remedies which
Administrative Agent may have hereunder or under the other Loan Documents, or
otherwise, and not in limitation thereof, and in Administrative Agent's sole and
absolute discretion:
11.1.1 Accelerate Debt. Administrative Agent may, and with the
direction of the Required Lenders shall, declare the indebtedness
evidenced by the Note and secured by the Security Documents immediately
due and payable (provided that in the case of a voluntary petition in
bankruptcy filed by Borrower or an involuntary petition in bankruptcy
filed against Borrower (after expiration of the grace period, if any,
set forth in Section 10.1.8), such acceleration shall be automatic).
11.1.2 Collateralize Letters of Credit. Administrative Agent
may require the borrower to deposit into accounts maintained with, and
pledged to the Administrative Agent, cash proceeds in an amount equal
to the L/C Exposure, which deposits shall secure the L/C Exposure.
11.1.3 Pursue Remedies. Administrative Agent may pursue any
and all remedies provided for hereunder, under any one or more of the
other Loan Documents, and/or otherwise.
11.2 Written Waivers. Except as otherwise provided in Section 13.4, if
a Default or an Event of Default is waived by the Required Lenders, in their
sole discretion, pursuant to a specific written instrument executed by an
authorized officer of Administrative Agent, the Default or Event of Default so
waived shall be deemed to have never occurred.
11.3 Power of Attorney. For the purpose of exercising the rights
granted by this Article 11, as well as any and all other rights and remedies of
Administrative Agent under the Loan Documents, Borrower hereby irrevocably
constitutes and appoints Administrative Agent (or any agent designated by
Administrative Agent) its true and lawful attorney-in-fact, with full power of
substitution, upon and following any Event of Default which is continuing, to
execute,
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acknowledge and deliver any instruments and to do and perform any acts in the
name and on behalf of Borrower. In connection with the foregoing power of
attorney, the Borrower hereby grants unto the Administrative Agent (acting
through any of its officers) full power to do any and all things necessary or
appropriate in connection with the exercise of such powers as fully and
effectually as the Borrower might or could do, hereby ratifying all that said
attorney shall do or cause to be done by virtue of this Agreement. The foregoing
power of attorney shall not be affected by any disability or incapacity suffered
by the Borrower and shall survive the same. All powers conferred upon the
Administrative Agent by this Agreement, being coupled with an interest, shall be
irrevocable until this Agreement is terminated by a written instrument executed
by a duly authorized officer of the Administrative Agent.
12. SECURITY INTEREST AND SET-OFF.
12.1 Security Interest. Borrower hereby grants (and shall cause each
other Loan Party to grant) to the Administrative Agent and each of the Lenders,
a continuing lien, security interest and right of setoff (with setoff being
subject to Section 12.2 ) as security for all of the Obligations, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Administrative Agent or any of
the Lenders or any entity under the control of FleetBoston Financial Corporation
and its successors and assigns, or in transit to any of them.
12.2 Set-Off. If any Event of Default occurs, any such deposits,
balances or other sums credited by or due from Administrative Agent, any
affiliate of Administrative Agent or FleetBoston Financial Corporation or any of
the Lenders, or from any such affiliate of Administrative Agent or FleetBoston
Financial Corporation or any of the Lenders, to Borrower may to the fullest
extent not prohibited by applicable law at any time or from time to time,
without regard to the existence, sufficiency or adequacy of any other
collateral, and without notice or compliance with any other condition precedent
now or hereafter imposed by statute, rule of law or otherwise, all of which are
hereby waived, be set off, appropriated and applied by Administrative Agent
against any or all of Borrower's Obligations irrespective of whether demand
shall have been made and although such obligations may be unmatured, in the
manner set forth herein. Within five (5) Business Days of making any such set
off, appropriation or application, Administrative Agent agrees to notify
Borrower thereof, provided the failure to give such notice shall not affect the
validity of such set off or appropriation or application. ANY AND ALL RIGHTS TO
REQUIRE ADMINISTRATIVE AGENT OR ANY OF THE LENDERS TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a)
if an amount to be set off is to be applied to indebtedness of the Borrower to
such Lender, other than the Obligations evidenced by the Note due to such
Lender, such amount shall be applied ratably to such other indebtedness and to
the Obligations evidenced by the Note due to such Lender, and (b) if such Lender
shall receive from the Borrower, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Note due to such Lender by proceedings against the Borrower at law or in
equity or by proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and shall retain and apply to
the payment of the Note due to such Lender any amount in excess of its ratable
portion of the payments received by all of the Lenders with respect to
Obligations under the Note due to all of the Lenders, such Lender will make such
disposition and arrangements with the other Lenders with respect to such excess,
either by way of
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distribution, pro tanto assignment of claims, subrogation or otherwise as shall
result in each Lender receiving in respect of the Note its proportionate payment
as contemplated by this Agreement; provided that if all or any part of such
excess payment is thereafter recovered from such Lender, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
12.3 Right to Freeze. The Administrative Agent and each of the Lenders
shall also have the right, at its option, upon the occurrence of any event which
would entitle the Administrative Agent and each of the Lenders to set off or
debit as set forth in Section 12.2, to freeze, block or segregate any such
deposits, balances and other sums so that Borrower may not access, control or
draw upon the same.
12.4 Additional Rights. The rights of Administrative Agent, the Lenders
and each affiliate of Administrative Agent and each of the Lenders under this
Article 12 are in addition to, and not in limitation of, other rights and
remedies, including other rights of set off, which Administrative Agent or any
of the Lenders may have.
13. THE ADMINISTRATIVE AGENT AND THE LENDERS
13.1 Rights, Duties and Immunities of the Administrative Agent.
13.1.1 Appointment of Administrative Agent. Each Lender hereby
irrevocably designates and appoints Fleet National Bank as
Administrative Agent of such Lender to act as specified herein and in
the other Loan Documents, and each such Lender hereby irrevocably
authorizes the Administrative Agent to take such actions, exercise such
powers and perform such duties as are expressly delegated to or
conferred upon the Administrative Agent by the terms of this Loan
Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. The Administrative Agent agrees
to act as such upon the express conditions contained in this Article
13. The Administrative Agent shall not have any duties or
responsibilities except those expressly set forth herein or in the
other Loan Documents, nor shall it have any fiduciary relationship with
any Lender, and no implied covenants, responsibilities, duties,
obligations or liabilities shall be read into this Loan Agreement or
otherwise exist against the Administrative Agent. Except as provided
for in Section 13.3, the provisions of this Article 13 are solely for
the benefit of the Administrative Agent and the Lenders, and the
Borrower shall not have any rights as a third party beneficiary of any
of the provisions hereof; provided, however, the Borrower may rely on
any consent, waiver, approval, certificate or instrument delivered by
the Administrative Agent as evidencing that the Administrative Agent
has received, to the extent required hereunder, the prior approval of
the Required Lenders or the Lenders.
13.1.2 Administration of Loan by Administrative Agent. The
Administrative Agent shall be responsible for administering the Loan on
a day-to-day basis. In the exercise of such administrative duties, the
Administrative Agent shall use the same diligence and standard of care
that is customarily used by the Administrative Agent with respect to
similar loans held by the Administrative Agent solely for its own
account.
Each Lender delegates to the Administrative Agent the full right and
authority on its behalf to take the following specific actions in connection
with its administration of the Loan:
(i) to fund the Loan in accordance with the provisions of the
Loan
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Documents, but only to the extent of immediately available funds
provided to the Administrative Agent by the respective Lenders for such
purpose;
(ii) to receive all payments of principal, interest, fees and
other charges paid by, or on behalf of, the Borrower and, except for
fees to which the Administrative Agent is entitled pursuant to the Loan
Documents or otherwise, to distribute all such funds to the respective
Lenders as provided for hereunder;
(iii) to keep and maintain complete and accurate files and
records of all material matters pertaining to the Loan, and make such
files and records available for inspection and copying by each Lender
and its respective employees and agents during normal business hours
upon reasonable prior notice to the Administrative Agent;
(iv) to provide the Lenders with copies of all material and/or
substantive notices, reports and other information, and notice of all
material and/or substantive matters or occurrences, obtained by the
Administrative Agent provided by or with respect to the Borrower or any
other Loan Party; and
(v) to do or omit doing all such other actions as may be
reasonably necessary or incident to the implementation, administration
and servicing of the Loan and the rights and duties delegated
hereinabove.
13.1.3 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Loan Agreement or any other Loan
Document by or through its agents or attorneys-in-fact, and shall be
entitled to the advice of counsel concerning all matters pertaining to
its rights and duties hereunder or under the Loan Documents. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
13.1.4 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be liable for any action lawfully
taken or omitted to be taken by it or them under or in connection with
this Loan Agreement or the other Loan Documents, except for its or
their gross negligence or willful misconduct. Neither the
Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any recital,
statement, representation or warranty made by the Borrower or any of
its officers or agents contained in this Loan Agreement or the other
Loan Documents or in any certificate or other document delivered in
connection therewith; (ii) the performance or observance of any of the
covenants or agreements contained in, or the conditions of, this Loan
Agreement or the other Loan Documents; (iii) the state or condition of
any properties of the Borrower or any other obligor hereunder
constituting Collateral for the Obligations of the Borrower hereunder,
or any information contained in the books or records of the Borrower;
(iv) the validity, enforceability, collectibility, effectiveness or
genuineness of this Loan Agreement or any other Loan Document or any
other certificate, document or instrument furnished in connection
therewith; or (v) the validity, priority or perfection of any lien
securing or purporting to secure the Obligations or the value or
sufficiency of any of the Collateral.
13.1.5 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any notice, consent, certificate, affidavit, or other
document or writing believed by it to be genuine and correct
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and to have been signed, sent or made by the proper person or persons,
and upon the advice and statements of legal counsel (including,
without, limitation, counsel to the Borrower), independent accountants
and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to
take any action under this Loan Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of the
taking or failing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from
acting, under this Loan Agreement and the other Loan Documents in
accordance with any written request of the Required Lenders, and each
such request of the Required Lenders, and any action taken or failure
to act by the Administrative Agent pursuant thereto, shall be binding
upon all of the Lenders; provided, however, that the Administrative
Agent shall not be required in any event to act, or to refrain from
acting, in any manner which is contrary to the Loan Documents or to
applicable law.
13.1.6 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default unless the Administrative Agent has actual
knowledge of the same or has received notice from a Lender or the
Borrower referring to this Loan Agreement, describing such Default or
Event of Default and stating that such notice is a notice of default (a
"Notice of Default"). In the event that the Administrative Agent
obtains such actual knowledge or receives such a notice, the
Administrative Agent shall give prompt notice thereof to each of the
Lenders. The Administrative Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by
the Required Lenders. Unless and until the Administrative Agent shall
have received such direction, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such
action, with respect to any such Default or Event of Default as it
shall deem advisable in the best interest of the Lenders.
13.1.7 Lenders' Credit Decisions. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on the financial statements
prepared by the Borrower and such other documents and information as it
has deemed appropriate, made its own credit analysis and investigation
into the business, assets, operations, property, and financial and
other condition of the Borrower and has made its own decision to enter
into this Loan Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in determining whether or not conditions
precedent to Closing any Loan hereunder have been satisfied and in
taking or not taking any action under this Loan Agreement and the other
Loan Documents.
13.1.8 Administrative Agent's Reimbursement and
Indemnification. The Lenders agree to reimburse and indemnify the
Administrative Agent, ratably in proportion to their respective
Commitments, for (i) any amounts not reimbursed by the Borrower for
which the Administrative Agent is entitled to reimbursement by the
Borrower under this Loan Agreement or the other Loan Documents, (ii)
any other expenses incurred by the Administrative Agent on behalf of
the Lenders in connection with the preparation, execution, delivery,
administration, amendment, waiver and/or enforcement of this Loan
Agreement and the other Loan Documents, and (iii) any
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liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of this
Loan Agreement or the other Loan Documents or any other document
delivered in connection therewith or any transaction contemplated
thereby, or the enforcement of any of the terms hereof or thereof,
provided that no Lender shall be liable for any of the foregoing to the
extent that they arise from the gross negligence or willful misconduct
of the Administrative Agent. If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or
not commence, to do the action indemnified against until such
additional indemnity is furnished.
13.1.9 Administrative Agent in its Individual Capacity. With
respect to its Commitment as a Lender, and the Loans made by it and the
Note issued to it, the Administrative Agent shall have the same rights
and powers hereunder and under any other Loan Document as any Lender
and may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent and its subsidiaries and affiliates
may accept deposits from, lend money to, and generally engage in any
kind of commercial or investment banking, trust, advisory or other
business with the Borrower or any subsidiary or affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
13.1.10 Successor Administrative Agent. The Administrative
Agent may resign at any time by giving thirty (30) days' prior written
notice to the Lenders and Borrower. The Required Lenders, for good
cause, may remove Administrative Agent at any time by giving thirty
(30) days' prior written notice to the Administrative Agent, the
Borrower and the other Lenders. Upon any such resignation or removal,
the Required Lenders shall appoint a successor Administrative Agent,
which successor Administrative Agent shall, if such appointment is
prior to the occurrence of an Event of Default which is continuing, be
subject to the approval of the Borrower, which approval shall not be
unreasonably withheld or delayed. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and accepted such
appointment within thirty (30) days after the retiring Administrative
Agent's giving notice of resignation or the Required Lenders' giving
notice of removal, as the case may be, then the retiring Administrative
Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If in such instance the retiring
Administrative Agent appoints as the successor Administrative Agent a
Lender, such Lender shall accept such appointment. Each such successor
Administrative Agent shall be a Lender or a financial institution which
meets the requirements of an Eligible Assignee. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents. After any
retiring Administrative Agent's resignation hereunder, the provisions
of this Article 13 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder.
13.1.11 Duties in the Case of Enforcement. In case one or more
Events of
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Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Administrative
Agent may, and shall at the direction of the Required Lenders, and
provided that the Lenders have given to the Administrative Agent such
additional indemnities and assurances against expenses and liabilities
as the Administrative Agent may reasonably request, proceed to enforce
the provisions of this Loan Agreement and the other Loan Documents
respecting the foreclosure, the sale, or other disposition of all or
any part of the Collateral and the exercise of any other legal or
equitable rights or remedies as it may have hereunder or under any
other Loan Document or otherwise by virtue of applicable law, or to
refrain from so acting if similarly requested by the Required Lenders.
The Administrative Agent shall be fully protected in so acting or
refraining from acting upon the instruction of the Required Lenders,
and such instruction shall be binding upon all the Lenders. The
Required Lenders may direct the Administrative Agent in writing as to
the method and the extent of any such foreclosure, sale or other
disposition or the exercise of any other right or remedy, the Lenders
hereby agreeing to indemnify and hold the Administrative Agent harmless
from all costs and liabilities incurred in respect of all actions taken
or omitted in accordance with such direction, provided that the
Administrative Agent need not comply with any such direction to the
extent that the Administrative Agent reasonably believes the
Administrative Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction. The
Administrative Agent may, in its discretion but without obligation, in
the absence of direction from the Required Lenders, take such interim
actions as it believes necessary to preserve the rights of the Lenders
hereunder and in and to any Collateral securing the Obligations,
including but not limited to petitioning a court for injunctive relief,
appointment of a receiver or preservation of the proceeds of any
Collateral. Each of the Lenders acknowledges and agrees that no
individual Lender may separately enforce or exercise any of the
provisions of any of the Loan Documents, including without limitation
the Note, other than through the Administrative Agent.
13.2 Respecting Loans and Payments.
13.2.1 Procedures for Loans. Administrative Agent shall give
written notice to each Lender of each request for a Loan Advance, or
conversion of an existing Loan Advance from a Variable Rate Advance to
an Effective LIBO Rate Advance, by facsimile transmission, hand
delivery or overnight courier, not later than 11:00 a.m. (Eastern time)
(i) three (3) Business Days prior to the making of any Loan Advance,
(ii) two (2) Business Days prior to any conversion of an existing Loan
Advance to an Effective LIBO Rate Advance, or (iii) on the first day of
any conversion to a Variable Rate Advance. Each such notice shall be
accompanied by a written summary of the request for a Loan Advance and
shall specify (a) the date of the requested Loan Advance, (b) the
aggregate amount of the requested Loan Advance, (c) each Lender's pro
rata share of the requested Loan Advance, and (d) the applicable
interest rate selected by Borrower with respect to such Loan Advance,
or any portion thereof, together with the applicable Interest Period,
if any, selected, or deemed selected, by Borrower. Each Lender shall,
before 11:00 a.m. (Eastern time) on the date set forth in any such
request for a Loan Advance, make available to Administrative Agent, at
an account to be designated by Administrative Agent at Fleet National
Bank in Boston, Massachusetts, in same day funds, each Lender's ratable
portion of the requested Loan Advance. After Administrative Agent's
receipt of such funds and upon Administrative Agent's determination
that the applicable conditions to making the requested Loan Advance
have been fulfilled, Administrative Agent shall make such funds
available to Borrower as provided for in this Loan Agreement. Within a
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reasonable period of time following the making of each Loan Advance,
but in no event later than ten (10) Business Days following such Loan
Advance, Administrative Agent shall deliver to each Lender a copy of
Borrower's request for Loan Advance. Promptly after receipt by
Administrative Agent of written request from any Lender, Administrative
Agent shall deliver to the requesting Lender the accompanying
certifications and such other instruments, documents, certifications
and approvals delivered by or on behalf of Borrower to Administrative
Agent in support of the requested Loan Advance.
13.2.2 Nature of Obligations of Lenders. The obligations of
the Lenders hereunder are several and not joint. Failure of any Lender
to fulfill its obligations hereunder shall not result in any other
Lender becoming obligated to advance more than its Commitment
Percentage of the Loan, nor shall such failure release or diminish the
obligations of any other Lender to fund its Commitment Percentage
provided herein.
13.2.3 Payments to Administrative Agent. All payments of
principal of and interest on the Loan or the Note shall be made to the
Administrative Agent by the Borrower or any other obligor or guarantor
for the account of the Lenders in immediately available funds as
provided in the Note and this Loan Agreement. Except as otherwise
expressly provided herein, the Administrative Agent agrees promptly to
distribute to each Lender, on the same Business Day upon which each
such payment is made, such Lender's proportionate share of each such
payment in immediately available funds excluding Liquidation Proceeds
which shall be distributed in accordance with Section 13.2.4 below. The
Administrative Agent will disburse such payments to the Lenders on the
date of receipt thereof if received prior to 10:00 a.m. on such date
and, if not, on the next Business Day. The Administrative Agent shall
upon each distribution promptly notify Borrower of such distribution
and each Lender of the amounts distributed to it applicable to
principal of, and interest on, the proportionate share held by the
applicable Lender. Each payment to the Administrative Agent under the
first sentence of this Section shall constitute a payment by the
Borrower to each Lender in the amount of such Lender's proportionate
share of such payment, and any such payment to the Administrative Agent
shall not be considered outstanding for any purpose after the date of
such payment by the Borrower to the Administrative Agent without regard
to whether or when the Administrative Agent makes distribution thereof
as provided above. If any payment received by the Administrative Agent
from the Borrower is insufficient to pay both all accrued interest and
all principal then due and owing, the Administrative Agent shall first
apply such payment to all outstanding interest until paid in full and
shall then apply the remainder of such payment to all principal then
due and owing, and shall distribute the payment to each Lender
accordingly.
13.2.4 Distribution of Liquidation Proceeds. Subject to the
terms and conditions hereof, the Administrative Agent shall distribute
all Liquidation Proceeds in the order and manner set forth below:
First: To the Administrative Agent, towards any fees and any
expenses for which the Administrative Agent is entitled to
reimbursement under this Agreement or the other Loan
Documents not theretofore paid to the Administrative Agent.
Second: To all applicable Lenders in accordance with their
proportional share based upon their respective Commitment
Percentages until all Lenders have been reimbursed for all
fees and expenses which such Lenders have previously paid to
the Administrative Agent and not theretofore paid to such
Lenders.
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Third: To all applicable Lenders in accordance with their
proportional share based upon their respective Commitment
Percentages until all Lenders have been paid in full all
principal and interest due to such Lenders under the Loan,
with each Lender applying such proceeds for purposes of this
Agreement first against the outstanding principal balance
due to such Lender under the Loan and then to accrued and
unpaid interest due under the Loan.
Fourth: To all applicable Lenders in accordance with their
proportional share based upon their respective Commitment
Percentages until all Lenders have been paid in full all
other amounts due to such Lenders under the Loan including,
without limitation, any costs and expenses incurred directly
by such Lenders to the extent such costs and expenses are
reimbursable to such Lenders by the Borrower under the Loan
Documents.
Fifth: To the Borrower or such third parties as may be entitled to
claim Liquidation Proceeds.
13.2.5 Adjustments. If, after Administrative Agent has paid
each Lender's proportionate share of any payment received or applied by
Administrative Agent in respect of the Loan and other Obligations, that
payment is rescinded or must otherwise be returned or paid over by
Administrative Agent, whether pursuant to any bankruptcy or insolvency
law, sharing of payments clause of any loan agreement or otherwise,
such Lender shall, at Administrative Agent's request, promptly return
its proportionate share of such payment or application to
Administrative Agent, together with such Lender's proportionate share
of any interest or other amount required to be paid by Administrative
Agent with respect to such payment or application.
13.2.6 Setoff. If any Lender (including the Administrative
Agent), acting in its individual capacity, shall exercise any right of
setoff against a deposit balance or other account of the Borrower held
by such Lender on account of the obligations of the Borrower under this
Loan Agreement, such Lender shall remit to the Administrative Agent all
such sums received pursuant to the exercise of such right of setoff,
and the Administrative Agent shall apply all such sums for the benefit
of all of the Lenders hereunder in accordance with the terms of this
Loan Agreement.
13.2.7 Distribution by Administrative Agent. If in the opinion
of the Administrative Agent distribution of any amount received by it
in such capacity hereunder or under the Note or under any of the other
Loan Documents might involve any liability, it may refrain from making
distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction or has been resolved
by the mutual consent of all Lenders. In addition, the Administrative
Agent may request full and complete indemnity, in form and substance
satisfactory to it, prior to making any such distribution. If a court
of competent jurisdiction shall adjudge that any amount received and
distributed by the Administrative Agent is to be repaid, each person to
whom any such distribution shall have been made shall either repay to
the Administrative Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over to the same in such manner and
to such persons as shall be determined by such court.
13.2.8 Delinquent Lender. If for any reason any Lender shall
fail or refuse to abide by its obligations under this Loan Agreement,
including without limitation its obligation to make available to
Administrative Agent its pro rata share of any Loans,
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expenses or setoff (a "Delinquent Lender") and such failure is not
cured within five (5) days of receipt from the Administrative Agent of
written notice thereof, then, in addition to the rights and remedies
that may be available to Administrative Agent, other Lenders, the
Borrower or any other party at law or in equity, and not at limitation
thereof, (i) such Delinquent Lender's right to participate in the
administration of, or decision-making rights related to, the Loans,
this Loan Agreement or the other Loan Documents shall be suspended
during the pendency of such failure or refusal, with such Delinquent
Lender's Commitment not being included when calculating any Required
Lender or Unanimous Lender decision hereunder, and (ii) a Delinquent
Lender shall be deemed to have assigned any and all payments due to it
from the Borrower, whether on account of outstanding Loans, interest,
fees or otherwise, to the remaining non-delinquent Lenders for
application to, and reduction of, their proportionate shares of all
outstanding Loans until, as a result of application of such assigned
payments the Lenders' respective pro rata shares of all outstanding
Loans shall have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency. The Delinquent Lender's decision-making and participation
rights and rights to payments as set forth in clauses (i) and (ii)
hereinabove shall be restored only upon the payment by the Delinquent
Lender of its pro rata share of any Loans or expenses as to which it is
delinquent, together with interest thereon at the Default Rate from the
date when originally due until the date upon which any such amounts are
actually paid.
The non-delinquent Lenders shall also have the right, but not the
obligation, in their respective, sole and absolute discretion, to acquire for no
cash consideration, (pro rata, based on the respective Commitments of those
Lenders electing to exercise such right) the Delinquent Lender's Commitment to
fund future Loans (the "Future Commitment"). Upon any such purchase of the pro
rata share of any Delinquent Lender's Future Commitment, the Delinquent Lender's
share in future Loans and its rights under the Loan Documents with respect
thereto shall terminate on the date of purchase, and the Delinquent Lender shall
promptly execute all documents reasonably requested to surrender and transfer
such interest, including, if so requested, an Assignment and Acceptance. Each
Delinquent Lender shall indemnify Administrative Agent and each non-delinquent
Lender from and against any and all loss, damage or expenses, including but not
limited to reasonable attorneys' fees and funds advanced by Administrative Agent
or by any non-delinquent Lender, on account of a Delinquent Lender's failure to
timely fund its pro rata share of a Loan or to otherwise perform its obligations
under the Loan Documents.
13.2.9 Holders. The Administrative Agent may deem and treat
the Lender designated in the Register as the proportionate owner of
such interest in the Note for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as
the case may be, shall have been filed with the Administrative Agent.
Any request, authority or consent of any person or entity who, at the
time of making such request or giving such authority or consent, is the
holder of any designated interest in the Note shall be conclusive and
binding on any subsequent holder, transferee or endorsee, as the case
may be, of such interest in the Note or of any Note or Note issued in
exchange therefor.
13.3 Assignment and Participation.
13.3.1 Conditions to Assignment by Lenders. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or
a portion of its interests, rights and obligations under this Loan
Agreement (including all or a portion of its
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Xxxxxxxxxx Xxxxxxxxxx and Commitment and the same portion of the Loans
at the time owing to it and the portion of the Note held by it), upon
satisfaction of the following conditions: (a) each of the
Administrative Agent, in its reasonable discretion, and the Borrower
shall have given its prior written consent to such assignment (provided
that, in the case of the Borrower, such consent shall not be
unreasonably withheld, delayed, or conditioned and shall not be
required if a Default or Event of Default shall have occurred and be
continuing); (b) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and
obligations under this Loan Agreement, (c) each assignment shall be in
an amount that is at least $5,000,000.00 and is a whole multiple of
$1,000,000.00, (d) each Lender which is a Lender at the time of such
assignment shall retain, free of any such assignment, an amount of its
Commitment of not less than $5,000,000.00, and (e) the parties to such
assignment shall execute and deliver to the Administrative Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, substantially in the form of Exhibit H hereto (an
"Assignment and Acceptance"). Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, and written notice
thereof to the Borrower, (x) the assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder, and (y) the
assigning Lender shall, to the extent provided in such assignment and
upon payment to the Administrative Agent of the registration fee
referred to in Section 13.3.3, be released from its obligations under
this Loan Agreement.
13.3.2 Certain Representations and Warranties. Limitations,
Covenants. By executing and delivering an Assignment and Acceptance,
the parties to the assignment thereunder confirm to and agree with each
other and the other parties hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Loan Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Loan Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or
mortgage;
(b) the assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Borrower and its affiliates, related entities or subsidiaries or
any other person primarily or secondarily liable in respect of any of
the Obligations, or the performance or observance by the Borrower or
any other person primarily or secondarily liable in respect of any of
the Obligations of any of their obligations under this Loan Agreement
or any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Loan Agreement, together with copies of the most recent financial
statements provided by the Borrower as required by the terms of this
Loan Agreement, together with such other documents and information as
it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance;
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(d) such assignee will, independently and without reliance
upon the assigning Lender, the Administrative Agent or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Loan Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
(f) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers under this Loan Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Loan
Agreement are required to be performed by it as a Lender; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
13.3.3 Register. The Administrative Agent shall maintain a
copy of each Assignment and Acceptance delivered to it and a register
or similar list (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitment Percentage of, and
principal amount of the Loan owing to the Lenders from time to time.
The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Loan Agreement. The
Register shall be available for inspection by the Borrower and the
Lenders at any reasonable time and from time to time upon reasonable
prior notice. Upon each such recordation, the assigning Lender agrees
to pay to the Administrative Agent a registration fee in the sum of
$3,000.00.
13.3.4 New Notes. Upon its receipt of an Assignment and
Acceptance executed by the parties to such assignment, together with
each Note subject to such assignment, the Administrative Agent shall
(a) record the information contained therein in the Register, and (b)
give prompt notice thereof to the Borrower and the Lenders (other than
the assigning Lender). Within five (5) Business Days after receipt of
such notice, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent, in exchange for each surrendered
Note, a new Note to the order of such Eligible Assignee in an amount
equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained
some portion of its obligations hereunder, a new Note to the order of
the assigning Lender in an amount equal to the amount retained by it
hereunder. Such new Notes shall provide that they are replacements for
the surrendered Notes, shall be in an aggregate principal amount equal
to the aggregate principal amount of the surrendered Notes, shall be
dated the effective date of such Assignment and Acceptance and shall
otherwise be substantially the form of the assigned Notes. The
surrendered Notes shall be cancelled and returned to the Borrower.
13.3.5 Participations. Each Lender may sell participations to
one or more banks or other financial institutions in all or a portion
of such Lender's rights and obligations under this Loan Agreement and
the other Loan Documents; provided that (a) each such
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participation shall be in a minimum amount of $5,000,000.00, (b) each
participant shall meet the requirements of an Eligible Assignee, (c)
any such sale or participation shall not affect the rights and duties
of the selling Lender hereunder to the Borrower, and (d) the only
rights granted to the participant pursuant to such participation
arrangements with respect to waivers, amendments or modifications of
the Loan Documents shall be the rights to approve waivers, amendments
or modifications that would reduce the principal of or the interest
rate on any Loans, extend the term or increase the amount of the
Commitment of such Lender as it relates to such participant, reduce the
amount of any commitment fees to which such participant is entitled or
extend any regularly scheduled payment date for principal or interest.
13.3.6 Disclosure. The Borrower agrees that in addition to
disclosures made in accordance with standard and customary banking
practices any Lender may disclose information obtained by such Lender
pursuant to this Loan Agreement to assignees or participants and
potential assignees or participants hereunder; provided that such
assignees or participants or potential assignees or participants shall
agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose
such information to a third party, except as required by law or legal
process and (c) not to make use of such information for purposes of
transactions unrelated to such contemplated assignment or
participation.
13.3.7 Miscellaneous Assignment Provisions. Any assigning
Lender shall retain its rights to be indemnified pursuant to Section
7.18 with respect to any claims or actions arising prior to the date of
such assignment. If any assignee Lender is not incorporated under the
laws of the United States of America or any state thereof, it shall,
prior to the date on which any interest or fees are payable hereunder
or under any of the other Loan Documents for its account, deliver to
the Borrower and the Administrative Agent certification as to its
exemption from deduction or withholding of any United States federal
income taxes. Anything contained in this Section 13.3.7 to the contrary
notwithstanding, any Lender may at any time pledge all or any portion
of its interest and rights under this Loan Agreement (including all or
any portion of its Note) to any of the twelve Federal Reserve Banks
organized under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341. No
such pledge or the enforcement thereof shall release the pledgor Lender
from its obligations hereunder or under any of the other Loan
Documents.
13.3.8 Assignment by Borrower. The Borrower shall not assign
or transfer any of its rights or obligations under any of the Loan
Documents without the prior written consent of each of the Lenders.
13.4 Administrative Matters.
13.4.1 Amendment, Waiver, Consent, Etc. Except as otherwise
provided herein or as to any term or provision hereof which
specifically provides for the consent or approval of the Administrative
Agent, the Required Lenders and/or the Lenders, as applicable, no term
or provision of this Loan Agreement or any other Loan Document may be
changed, waived, discharged or terminated, nor may any consent required
or permitted by this Loan Agreement or any other Loan Document be
given, unless such change, waiver, discharge, termination or consent
receives the written approval of the Required Lenders.
Notwithstanding the foregoing, the unanimous written approval of all
the Lenders (other
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than a Defaulting Lender) shall be required with respect to any proposed
amendment, waiver, discharge, termination, or consent which:
(i) has the effect of (a) extending the final scheduled
maturity or the date of any amortization payment of any Loan or Note,
(b) reducing the rate or extending the time of payment of interest or
fees thereon, (c) increasing or reducing the principal amount thereof,
or (d) otherwise postponing or forgiving any indebtedness thereunder,
(ii) releases or discharges any material portion of the
Collateral other than in accordance with the express provisions of the
Loan Documents,
(iii) amends, modifies or waives any provisions of this
Section 13.4,
(iv) amends any of the Financial Covenants,
(v) modifies the percentage specified in the definition of
Required Lenders,
(vi) approves any Individual Property as a Borrowing Base
Property,
(vii) except as otherwise provided in this Loan Agreement,
changes the amount of any Lender's Commitment or Commitment Percentage,
or
(viii) releases or waives any guaranty of the Obligations or
indemnifications provided in the Loan Documents;
and provided, further, that without the consent of the Administrative Agent, no
such action shall amend, modify or waive any provision of this Article or any
other provision of any Loan Document which relates to the rights or obligations
of the Administrative Agent.
13.4.2 Deemed Consent or Approval. With respect to any
requested amendment, waiver, consent or other action which requires the
approval of the Required Lenders or all of the Lenders, as the case may
be, in accordance with the terms of this Loan Agreement, or if the
Administrative Agent is required hereunder to seek, or desires to seek,
the approval of the Required Lenders or all of the Lenders, as the case
may be, prior to undertaking a particular action or course of conduct,
the Administrative Agent in each such case shall provide each Lender
with written notice of any such request for amendment, waiver or
consent or any other requested or proposed action or course of conduct,
accompanied by such detailed background information and explanations as
may be reasonably necessary to determine whether to approve or
disapprove such amendment, waiver, consent or other action or course of
conduct. The Administrative Agent may (but shall not be required to)
include in any such notice, printed in capital letters or boldface
type, a legend substantially to the following effect:
"THIS COMMUNICATION REQUIRES IMMEDIATE RESPONSE. FAILURE TO RESPOND
WITHIN TEN (10) CALENDAR DAYS FROM THE RECEIPT OF THIS COMMUNICATION
SHALL CONSTITUTE A DEEMED APPROVAL BY THE ADDRESSEE OF THE ACTION
REQUESTED BY THE BORROWER OR THE COURSE OF CONDUCT PROPOSED BY THE
ADMINISTRATIVE AGENT AND RECITED ABOVE,"
and if (and only if) the foregoing legend is included by the Administrative
Agent in its
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communication, a Lender shall be deemed to have approved or consented to such
action or course of conduct for all purposes hereunder if such Lender fails to
object to such action or course of conduct by written notice to the
Administrative Agent within ten (10) calendar days of such Lender's receipt of
such notice.
13.5 Arranger. Notwithstanding the provisions of this Agreement or of
the other Loan Documents, the Arranger shall have no powers, rights, duties,
responsibilities or liabilities with respect to this Agreement and the other
Loan Documents. To the extent requested by the Administrative Agent, the
Arranger has coordinated, or will coordinate, the initial syndication of the
Loan and the assignment of interests in the Loan.
14. CASUALTY AND TAKING.
14.1 Casualty or Taking; Obligation To Repair. In the event of the
occurrence of an Event of Loss as to any Collateral Property, Borrower shall
give immediate written notice thereof to Administrative Agent and proceed with
reasonable diligence, in full compliance with all Legal Requirements and the
other requirements of the Loan Documents, to repair, restore, rebuild or replace
the affected Collateral Property (each, the "Repair Work").
14.2 Adjustment of Claims. All insurance claims or condemnation or
similar awards shall be adjusted or settled by Borrower, at Borrower's sole cost
and expense, but subject to Administrative Agent's prior written approval for
any Borrowing Base Property, which approval shall not be unreasonably withheld;
provided that (i) the Administrative Agent shall have the right to participate
in any adjustment or settlement for any Borrowing Base Property with respect to
which the Net Proceeds in the aggregate are equal to or greater than Five
Hundred Thousand Dollars ($500,000.00) and (ii) if any Event of Default exists
under any of the Loan Documents, Administrative Agent shall have the right to
adjust, settle, and compromise such claims without the approval of Borrower.
14.3 Payment and Application of Insurance Proceeds and Condemnation
Awards.
14.3.1 Except as otherwise provided for herein, all Net
Proceeds shall be paid to Administrative Agent and, at Administrative
Agent's option, be applied to Borrower's Obligations or released, in
whole or in part, to pay for the actual cost of repair, restora tion,
rebuilding or replacement (collectively, "Cost To Repair"). If any Net
Proceeds are received directly by any Loan Party, such Loan Party shall
hold such Net Proceeds in trust for the Administrative Agent and shall
promptly deliver such Net Proceeds in kind to the Administrative Agent.
Notwithstanding any other term or provision of this Agreement, provided
no Default or Event of Default is then in existence, all Net Proceeds
related to any Collateral Property which is not a Borrowing Base
Property shall be released to the Borrower to such repair and
reconstruction, without the Borrower having to satisfy the conditions
of section 14.3 and 14.4 hereof.
14.3.2 Notwithstanding the terms and provisions hereof, with
respect to any Borrowing Base Property, if the Net Proceeds do not
exceed Five Hundred Thousand Dollars ($500,000.00) and the
Insurance/Taking Release Conditions have been satisfied in a manner
reasonably acceptable to the Administrative Agent, Administrative Agent
shall release the Net Proceeds to pay for the actual Cost to Repair and
the applicable Loan Party shall commence and diligently prosecute to
completion, the Repair Work relative to the subject Collateral
Property, with any excess being retained by the applicable Loan Party.
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14.3.3 Notwithstanding the terms and provisions hereof, with
respect to any Borrowing Base Property, if either (i) the Net Proceeds
are equal to or greater than Five Hundred Thousand Dollars
($500,000.00) or (ii) the Net Proceeds do not exceed Five Hundred
Thousand Dollars ($500,000.00), but the Insurance/Taking Release
Conditions have not been satisfied with respect to such Event of Loss,
the Administrative Agent shall release so much of the Net Proceeds as
may be required to pay for the actual Cost To Repair in accordance the
limitations and procedures set forth in Section 14.4, if the following
conditions are satisfied in a manner reasonably acceptable to the
Administrative Agent:
(i) no Default or Event of Default shall have occurred and
be continuing under the Loan Documents;
(ii) in Administrative Agent's good faith judgment such Net
Proceeds together with any additional funds as may be
deposited with and pledged to Administrative Agent, on behalf
of the Lenders, are sufficient to pay for the Cost To Repair.
In order to make this determination, Administrative Agent
shall be furnished by the Borrower with an estimate of the
Cost to Repair accompanied by an independent architect's or
engineer's certification as to such Cost to Repair and
appropriate plans and specifications for the Repair Work;
(iii) the subject Event of Loss was not a Major Event of
Loss;
(iv) Administrative Agent in the exercise of its reasonable
discretion, shall have determined that all rents from Leases
of the subject Collateral Property which are to xxxxx pursuant
to their terms are to be payable to the Borrowing Base
Property Owner, subject to deductibles, if any, permitted
pursuant to the insurance policies to be maintained pursuant
to this Agreement, from Rent Loss Proceeds;
(v) in Administrative Agent's good faith judgment, the
Repair Work can reasonably be completed on or before the time
required under applicable Legal Requirements; and
(vi) the Borrowing Base Property remains a Stabilized Asset.
14.4 Conditions To Release of Insurance Proceeds. If Administrative
Agent elects or is required to release insurance proceeds, Administrative Agent
may impose reasonable conditions on such release which shall include, but not be
limited to, the following:
14.4.1 Prior written approval by Administrative Agent, which
approval shall not be unreasonably withheld or delayed of plans,
specifications, cost estimates, contracts and bonds for the Repair
Work;
14.4.2 Waivers of lien, architect's and/or engineer's
certificates, and other evidence of costs, payments and completion as
Administrative Agent may reasonably require;
14.4.3 The funds shall be released upon final completion of
the Repair Work, unless Borrower requests earlier funding, in which
event partial monthly disbursements equal to 90% of the costs of the
work completed prior to the certification by the
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applicable Lender's Consultant and if there is no Lender's Consultant,
an independent architect or engineer retained by the Borrower, that the
Repair Work is completed, and then upon final completion of the Repair
Work as certified by such Lender's Consultant or independent architect
or engineer, and the receipt by Administrative Agent of satisfactory
evidence of payment and release of all liens, the balance of the funds
shall be released;
14.4.4 Determination by Administrative Agent that the
undisbursed balance of such Net Proceeds on deposit with Administrative
Agent, together with additional funds deposited for the purpose, shall
be at least sufficient to pay for the remaining Cost To Repair, free
and clear of all liens and claims for lien;
14.4.5 All work to comply with the Legal Requirements
applicable to the construction of the Improvements; and
14.4.6 The absence of any Default under any Loan Documents.
14.5 The Administrative Agent shall have the right to hire, at the cost
and expense of the Borrower, a Lender's Consultant to assist the Administrative
Agent in the determination of the satisfaction of the conditions provided for
herein for the release of the Net Proceeds, to pay the Costs to Repair and to
periodically inspect the status of the construction of any Repair Work.
14.6 In the event that the Administrative Agent makes any Net Proceeds
available to any Loan Party for the payment of Costs to Repair as provided for
herein, upon the completion of the Repair Work as certified by the applicable
Lender's Consultant and if there is no Lender's Consultant, an independent
architect or engineer retained by the Borrower, and receipt by Administrative
Agent of satisfactory evidence of payment and release of all liens, any excess
Net Proceeds still held by the Administrative Agent shall be remitted by the
Administrative Agent to the Borrower provided that no Event of Default shall
have occurred and be continuing;
14.7 The terms and provisions of this Article 14 shall be subject to
the terms and provisions of any Lease as to which the Administrative Agent has
agreed otherwise with respect to the use and disbursement of Net Proceeds in any
agreement entered into between the tenant under such Lease and the
Administrative Agent.
14.8 The Administrative Agent acknowledges that provided that no Event
of Default has occurred and is continuing, all Rent Loss Proceeds shall be
payable to the Borrower or the applicable Loan Party.
15. GENERAL PROVISIONS.
15.1 Notices. Any notice or other communication in connection with this
Loan Agreement, the Note, the Security Documents, or any of the other Loan
Documents, shall be in writing, and (i) deposited in the United States Mail,
postage prepaid, by registered or certified mail, or (ii) hand delivered by any
commercially recognized courier service or overnight delivery service such as
Federal Express, or (iii) sent by facsimile transmission if a FAX Number is
designated below addressed:
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If to Borrower:
Cedar Shopping Centers Partnership, L.P.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx
FAX Number: (000) 000-0000
and
Attention: Xxxxxx X. X'Xxxxxx
FAX Number: (000) 000-0000
with copies by regular mail or such hand delivery or facsimile transmission to:
Cedar Shopping Centers Partnership, L.P.
00 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esquire
FAX Number: (000) 000-0000
and to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxx, Esquire
Fax Number: (000) 000-0000
If to Administrative Agent or as Lender:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Mail Stop: XX XX 00000X
FAX Number: (000) 000-0000
And
Attention: Commercial Real Estate Loan
Administration Manager,
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with copies by regular mail or such hand delivery or facsimile
transmission to:
Xxxxxx & Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esquire
FAX Number: (000) 000-0000
If to Lenders:
COMMERZBANK AG NEW YORK BRANCH
2 World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PB CAPITAL CORPORATION
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MANUFACTURERS AND TRADERS TRUST COMPANY
Xxx X & X Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Office of the General Counsel
SOVEREIGN BANK
00 Xxxxx Xxxxxx, 0xx xxxxx
Mail Code: MA1 SST 04-11
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: T. Xxxxxxx Xxxxxxx, Vice President
XXXXXXX XXXXX BANK, FSB
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
CITIZENS BANK
0000 Xxxxxxxx Xxxx 194-0245, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000
and to such addresses as set forth in the Assignment and Acceptance.
Any such addressee may change its address for such notices to such other address
in the United States as such addressee shall have specified by written notice
given as set forth above. All periods of notice shall be measured from the
deemed date of delivery.
A notice shall be deemed to have been given, delivered and received for
the purposes of all Loan Documents upon the earliest of: (i) if sent by such
certified or registered mail, on the third Business Day following the date of
postmark, or (ii) if hand delivered at the specified address by such courier or
overnight delivery service, when so delivered or tendered for delivery during
customary business hours on a Business Day, or (iii) if so mailed, on the date
of actual
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receipt as evidenced by the return receipt, or (iv) if so delivered, upon actual
receipt, or (v) if facsimile transmission is a permitted means of giving notice,
upon receipt as evidenced by confirmation.
15.2 Limitations on Assignment. Borrower may not assign this Agreement
or the monies due thereunder without the prior written consent of the Lenders in
each instance, but in such event Lenders may nevertheless at their option make
the Loan under this Agreement to Borrower or to those who succeed to the title
of Borrower and all sums so advanced by Lenders shall be deemed a Loan Advance
under this Agreement and not to be modifications thereof and shall be secured by
all of the Collateral given at any time in connection herewith.
15.3 Further Assurances. Borrower shall upon request from
Administrative Agent from time to time execute, seal, acknowledge and deliver
such further instruments or documents which Administrative Agent may reasonably
require to better perfect and confirm its rights and remedies hereunder, under
the Note, under the Security Documents and under each of the other Loan
Documents.
15.4 Payments.
(i) All payments shall be applied first to the payment of all
fees, expenses and other amounts due to the Administrative Agent (excluding
principal and interest), then to accrued interest, and the balance on account of
outstanding principal; provided, however, that after an Event of Default,
payments will be applied to the obligations of Borrower to Administrative Agent
and the Lenders as Administrative Agent determines in its sole discretion.
(ii) Any payments required by this Agreement, the Note or any
of the other Loan Documents, or any other instruments or agreements executed in
connection herewith or therewith, may (but not before the due date thereof) be
deducted by each Lender from the amount, if any, not already advanced, and the
same shall be deemed to be a Loan Advance, or may be deducted from any Loan
Advance due hereunder. Any attorneys' fees, appraisal charge, inspection fee, or
any other expense payable by Borrower as herein provided for, or incurred in
connection with the drafting of the Loan Documents and other instruments
evidencing or securing the Obligations and all other Loan Documents may be
likewise deducted from the amounts, if any, not already advanced or from any
Loan Advance payable to Borrower and, in any event, charged as a Loan Advance
hereunder.
15.5 Parties Bound. The provisions of this Agreement and of each of the
other Loan Documents shall be binding upon and inure to the benefit of Borrower
and the Administrative Agent and each of the Lenders and their respective
successors and assigns, except as otherwise prohibited by this Agreement or any
of the other Loan Documents.
This Agreement is a contract by and among Borrower, the Administrative
Agent and each of the Lenders for their mutual benefit, and no third person
shall have any right, claim or interest against either Administrative Agent, any
of the Lenders or Borrower by virtue of any provision hereof.
15.6 Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury
Trial.
15.6.1 Substantial Relationship. It is understood and agreed
that all of the Loan Documents were negotiated, executed and delivered
in The Commonwealth of Massachusetts, which Commonwealth the parties
agree has a substantial relationship to
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the parties and to the underlying transactions embodied by the Loan
Documents.
15.6.2 Place of Delivery. Borrower agrees to furnish to
Administrative Agent at the Administrative Agent's office in Boston,
Massachusetts all further instruments, certifications and documents to
be furnished hereunder.
15.6.3 Governing Law. This Agreement, except as otherwise
provided in Section 15.6.4, and each of the other Loan Documents shall
in all respects be governed, construed, applied and enforced in
accordance with the internal laws of The Commonwealth of Massachusetts
without regard to principles of conflicts of law, except insofar as the
formation of Borrower under Delaware law requires Delaware law to apply
with respect to matters of authorization to enter into the transactions
contemplated by this Agreement.
15.6.4 Exceptions. Notwithstanding the foregoing choice of
law:
(i) The procedures governing the enforcement by
Administrative Agent of its foreclosure and other remedies
under the Security Documents and under the other Loan
Documents with respect to each Collateral Property shall be
governed by the laws of the State in which such Collateral
Property is located;
(ii) Administrative Agent shall comply with applicable law
of such State to the extent required by the law of such
jurisdiction in connection with the foreclosure of the
security interests and liens created under the Security
Documents and the other Loan Documents with respect to each
Collateral Property or other assets situated in such State;
and
(iii) provisions of Federal law and the law of such State
shall apply in defining the terms Hazardous Materials,
Environmental Legal Requirements and Legal Requirements
applicable to each Collateral Property as such terms are used
in this Loan Agreement, the Environmental Indemnity and the
other Loan Documents.
Nothing contained herein or any other provisions of the Loan Documents
shall be construed to provide that the substantive laws of any other
State shall apply to any parties, rights and obligations under any of
the Loan Documents, which, except as expressly provided in clauses (i),
(ii) and (iii) of this Section 15.6.4., are and shall continue to be
governed by the substantive law of The Commonwealth of Massachusetts,
except as set forth in clauses (i), (ii) and (iii) of this Section
15.6.4. In addition, the fact that portions of the Loan Documents may
include provisions drafted to conform to the law of any other State is
not intended, nor shall it be deemed, in any way, to derogate the
parties' choice of law as set forth or referred to in this Loan
Agreement or in the other Loan Documents. The parties further agree
that the Administrative Agent may enforce its rights under the Loan
Documents including, but not limited to, its rights to xxx the Borrower
or to collect any outstanding indebtedness in accordance with
applicable law.
15.6.5 Consent to Jurisdiction. Borrower hereby consents to
personal jurisdiction in any state or Federal court located within The
Commonwealth of Massachusetts.
15.6.6 JURY TRIAL WAIVER. BORROWER, ADMINISTRATIVE AGENT,
AND EACH OF THE LENDERS MUTUALLY HEREBY KNOWINGLY,
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VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON THIS LOAN AGREEMENT, ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS LOAN AGREEMENT OR ANY OTHER LOAN
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF
ADMINISTRATIVE AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF
THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NEITHER
PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS
PROHIBITED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. BORROWER CERTIFIES THAT NO REPRESENTATIVE,
ADMINISTRATIVE AGENT OR ATTORNEY OF ADMINISTRATIVE AGENT OR ANY LENDER
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ADMINISTRATIVE AGENT OR
ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR
BORROWER, ADMINISTRATIVE AGENT, AND EACH OF THE LENDERS TO ENTER INTO
THE TRANSACTIONS CONTEMPLATED HEREBY.
15.7 Survival. All representations, warranties, covenants and
agreements of Borrower, or a Loan Party, herein or in any other Loan Document,
or in any notice, certificate, or other paper delivered by or on behalf of
Borrower or a Loan Party pursuant hereto are significant and shall be deemed to
have been relied upon by Administrative Agent and each of the Lenders
notwithstanding any investigation made by Administrative Agent or any of the
Lenders or on its behalf and shall survive the delivery of the Loan Documents
and the making of the Loan pursuant thereto. No review or approval by
Administrative Agent or the Lenders or any of their representatives, of any
opinion letters, certificates by professionals or other item of any nature shall
relieve Borrower or anyone else of any of the obligations, warranties or
representations made by or on behalf of Borrower or a Loan Party, or any one or
more of them, under any one or more of the Loan Documents.
15.8 Cumulative Rights. All of the rights of Administrative Agent and
the Lenders hereunder and under each of the other Loan Documents and any other
agreement now or hereafter executed in connection herewith or therewith, shall
be cumulative and may be exercised singly, together, or in such combination as
Administrative Agent may determine in its sole good faith judgment.
15.9 Claims Against Administrative Agent or Lenders.
15.9.1 Borrower Must Notify. The Administrative Agent and each
of the Lenders shall not be in default under this Agreement, or under
any other Loan Document, unless a written notice specifically setting
forth the claim of Borrower shall have been given to Administrative
Agent and each of the Lenders within thirty (30) days after Borrower
first had actual knowledge or actual notice of the occurrence of the
event which
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Borrower alleges gave rise to such claim and Administrative Agent or
any of the Lenders does not remedy or cure the default, if any there
be, with reasonable promptness thereafter. Such actual knowledge or
actual notice shall refer to what was actually known by, or expressed
in a written notification furnished to, any of the persons or officials
referred to in Exhibit D as Authorized Representatives.
15.9.2 Remedies. If it is determined by the final order of a
court of competent jurisdiction, which is not subject to further
appeal, that Administrative Agent or any of the Lenders has breached
any of its obligations under the Loan Documents and has not remedied or
cured the same with reasonable promptness following notice thereof,
Administrative Agent's and each of the Lenders' responsibilities shall
be limited to: (i) where the breach consists of the failure to grant
consent or give approval in violation of the terms and requirements of
a Loan Document, the obligation to grant such consent or give such
approval and to pay Borrower's reasonable costs and expenses including,
without limitation, reasonable attorneys' fees and disbursements in
connection with such court proceedings; and (ii) in the case of any
such failure to grant such consent or give such approval, or in the
case of any other such default by Administrative Agent or any of the
Lenders, where it is also so determined that Administrative Agent or
any of the Lenders acted in gross negligence or bad faith, the payment
of any actual, direct, compensatory damages sustained by Borrower as a
result thereof plus Borrower's reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees and
disbursements in connection with such court proceedings.
15.9.3 Limitations. In no event, however, shall Administrative
Agent and each of the Lenders be liable to Borrower or to any Loan
Party or anyone else for other damages such as, but not limited to,
indirect, speculative or punitive damages whatever the nature of the
breach by Administrative Agent or any of the Lenders of its obligations
under this Loan Agreement or under any of the other Loan Documents. In
no event shall Administrative Agent or any of the Lenders be liable to
Borrower or to any Loan Party or anyone else unless a written notice
specifically setting forth the claim of Borrower shall have been given
to Administrative Agent and each of the Lenders within the time period
specified above.
15.10 Regarding Consents. Except to the extent expressly provided
herein, any and all consents to be made hereunder by the Administrative Agent,
Required Lenders, or Lenders shall be in the discretion of the Party to whom
consent rights are given hereunder.
15.11 Obligations Absolute. Except to the extent prohibited by
applicable law which cannot be waived, the Obligations of Borrower and the
obligations of the Guarantor and the other Loan Parties under the Loan Documents
shall be joint and several, absolute, unconditional and irrevocable and shall be
paid strictly in accordance with the terms of the Loan Documents under all
circumstances whatsoever, including, without limitation, the existence of any
claim, set off, defense or other right which Borrower or any Loan Party may have
at any time against Administrative Agent or any of the Lenders whether in
connection with the Loan or any unrelated transaction.
15.12 Table of Contents, Title and Headings. Any Table of Contents, the
titles and the headings of sections are not parts of this Loan Agreement or any
other Loan Document and shall not be deemed to affect the meaning or
construction of any of its or their provisions.
15.13 Counterparts. This Loan Agreement and each other Loan Document
may be
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executed in several counterparts, each of which when executed and delivered is
an original, but all of which together shall constitute one instrument. In
making proof of this agreement, it shall not be necessary to produce or account
for more than one such counterpart which is executed by the party against whom
enforcement of such loan agreement is sought.
15.14 Satisfaction of Commitment Letter. The Loan being made pursuant
to the terms hereof and of the other Loan Documents is being made in
satisfaction of Administrative Agent's and each of the Lenders' obligations
under the Commitment Letter dated October 16, 2003, as amended. The terms,
provisions and conditions of this Agreement and the other Loan Documents
supersede the provisions of the Commitment Letter.
15.15 Time Of the Essence. Time is of the essence of each provision of
this Agreement and each other Loan Document.
15.16 No Oral Change. This Loan Agreement and each of the other Loan
Documents may only be amended, terminated, extended or otherwise modified by a
writing signed by the party against which enforcement is sought (except no such
writing shall be required for any party which, pursuant to a specific provision
of any Loan Document, is required to be bound by changes without such party's
assent). In no event shall any oral agreements, promises, actions, inactions,
knowledge, course of conduct, course of dealings or the like be effective to
amend, terminate, extend or otherwise modify this Loan Agreement or any of the
other Loan Documents.
15.17 Monthly Statements. While Administrative Agent may issue invoices
or other statements on a monthly or periodic basis (a "Statement"), it is
expressly acknowledged and agreed that: (i) the failure of Administrative Agent
to issue any Statement on one or more occasions shall not affect Borrower's
obligations to make payments under the Loan Documents as and when due; (ii) the
inaccuracy of any Statement shall not be binding upon Lenders and so Borrower
shall always remain obligated to pay the full amount(s) required under the Loan
Documents as and when due notwithstanding any provision to the contrary
contained in any Statement; (iii) all Statements are issued for information
purposes only and shall never constitute any type of offer, acceptance,
modification, or waiver of the Loan Documents or any of Lenders' rights or
remedies thereunder; and (iv) in no event shall any Statement serve as the basis
for, or a component of, any course of dealing, course of conduct, or trade
practice which would modify, alter, or otherwise affect the express written
terms of the Loan Documents.
[The balance of this page is intentionally left blank]
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IN WITNESS WHEREOF this Agreement has been duly executed and delivered
as a sealed instrument at Boston, Massachusetts, as of the date first written
above.
BORROWER: CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.
By: Cedar Shopping Centers, Inc., general partner
By: _______________________________
Name:
Title:
ADMINISTRATIVE AGENT: FLEET NATIONAL BANK
By: ______________________________
Name: Xxxxx X. Xxxxxx
Title: Director
LENDERS: FLEET NATIONAL BANK
By: ______________________________
Name: Xxxxx X. Xxxxxx
Title: Director
COMMERZBANK AG NEW YORK BRANCH
By: ______________________________
Name:
Title: _________________
By: ______________________________
Name:
Title: _________________
PB CAPITAL CORPORATION
By: ______________________________
Name:
Title: ____________________
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: ______________________________
Name:
Title: _______________________
S-1
SOVEREIGN BANK
By: ______________________________
Name:
Title: ____________________
XXXXXXX XXXXX BANK, FSB
By: ______________________________
Name:
Title: _______________________
CITIZENS BANK
By: ______________________________
Name:
Title: _______________________
S-2
EXHIBITS:
Section
Reference
Number
------
Exhibit A - Definitions.........................................................................................1.1
Exhibit B-1 - Requisition; Availability Certificate...........................................................2.1.2
Exhibit C - Note................................................................................................3.2
Exhibit D - Authorized Representatives............................................................................4
Exhibit E - Required Property, Hazard and Other Insurance.........................................5.1.11, 6.16, 7.5
Exhibit F - Ownership Interests and Taxpayer Identification Numbers.............................................6.4
Exhibit G - Compliance Certificate...........................................................................7.2.5
Exhibit H - Form of Assignment and Acceptance...............................................................13.3.1
Exhibit I - Lenders' Commitment...........................................................................Exhibit A
Exhibit J - Borrowing Base Properties.....................................................................Exhibit A
Exhibit K - Loan Agenda...................................................................................Exhibit A
Exhibit EC - Estoppel Certificate.........................................................................Exhibit A
Exhibit TP - Theater Parcel...................................................................................3.3.7
Exhibit CC - Closing Compliance Certificate...................................................................3.3.7
S-3
EXHIBIT A TO LOAN AGREEMENT
DEFINITIONS
Additional Collateral Request as defined in Section 3.5.
Administrative Agent. Fleet National Bank, acting as agent for the Lenders.
Adjusted Appraised Value. With respect to any Collateral Property that is the
subject of an Appraisal, the appraised value set forth in such Appraisal, as
such may be reviewed and adjusted by the Administrative Agent acting reasonably
and in good faith.
Adjusted Capitalized Value. With respect to any Borrowing Base Property, (i)
which is a Stabilized Asset, the most recent fiscal quarter Adjusted Net
Operating Income for such Borrowing Base Property, annualized, capitalized at a
nine and one-quarter percent (9.25%) capitalization rate and (ii) which is a
Non-Stabilized Asset, undepreciated Book Value (as reported on the financial
statements for the subject Borrowing Base Property Owner).
Adjusted LIBO Rate. The term "Adjusted LIBO Rate" means for each Interest Period
the rate per annum obtained by dividing (i) the LIBO Rate for such Interest
Period, by (ii) a percentage equal to one hundred percent (100%) minus the
maximum reserve percentage applicable during such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System for determining the maximum reserve requirements (including,
without limitation, any basic, supplemental, marginal and emergency reserve
requirements) for Administrative Agent (or of any subsequent holder of a Note
which is subject to such reserve requirements) in respect of liabilities or
assets consisting of or including Eurocurrency liabilities (as such term is
defined in Regulation D of the Board of Governors of the Federal Reserve System)
having a term equal to the Interest Period.
Adjusted Net Operating Income: For any period of determination, for any
Individual Property, the Pro Rata Share of (i) Net Operating Income less (ii)
management fees (calculated as the greater of either 3% of total revenue or
actual management expenses incurred), to the extent not already deducted from
Net Operating Income, less (iii) allowances for capital expenditures in the
amount of $0.20 per annum per rentable square foot of completed improvements.
Affiliate shall mean, as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
Aggregate Borrowing Base Value shall mean, as determined by the Administrative
Agent as of each Calculation Date, the aggregate of the Borrowing Base Values
for all Borrowing Base Properties.
Agreement as defined in the Preamble.
Applicable Margin shall mean for LIBO Rate Loans and for Variable Rate Loans,
respectively, the following:
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--------------------------------------------------------------------------------
Level Leverage Applicable Applicable
Ratio Margin for Margin for
LIBO Rate Variable
Loans Rate Loans
--------------------------------------------------------------------------------
1 Leverage 225 basis 50 basis
Ratio<60% points points
--------------------------------------------------------------------------------
2 Leverage 250 basis 75basis
Ratio=>60% points points
to <=65%
--------------------------------------------------------------------------------
3 Leverage 275 basis 100 basis
Ratio >65% points points
--------------------------------------------------------------------------------
The Applicable Margin shall remain in effect until the Administrative Agent has
provided the Borrower with written notice (in the manner provided in the Loan
Agreement) that the Applicable Margin has been modified due to a change in the
Leverage Ratio as of any Calculation Date, with any such change then being
implemented retroactively to such Calculation Date. The initial Applicable
Margin hereunder shall be established at Level 1.
Appraisal shall mean an MAI appraisal ordered by the Administrative Agent in
form and substance acceptable to the Required Lenders and prepared by an
appraiser acceptable to the Administrative Agent.
Arranger as defined in the cover page.
Assignment and Acceptance as defined in Section 13.3.1.
Authorized Representatives as defined in Section 4 and listed on Exhibit D.
Availability shall mean, from time to time, an amount determined by the
Administrative Agent as of each Calculation Date equal to the lesser of the
following:
(a) sixty-five percent (65%) of the Aggregate Borrowing Base Value of
the Borrowing Base Properties as of such Calculation Date; or
(b) the Implied Loan Amount.
Banking Day. The term "Banking Day" means a day on which banks are not required
or authorized by law to close in the city in which Administrative Agent's
principal office is situated.
Book Value shall mean the value of such property or asset, as determined in
accordance with GAAP.
Borrower as defined in the Preamble.
Borrower GP shall mean CSC.
Borrower Subsidiaries shall mean, individually and collectively, all of the
Subsidiaries of the
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Borrower and/or CSC.
Borrower Reduction Date as defined in Section 2.2.2.(ii).
Borrower Termination Date as defined in Section 2.2.2.(i).
Borrowing Base Property and Borrowing Base Properties. The Individual Properties
initially listed in Exhibit J hereto, plus any Individual Property which
subsequently becomes a Borrowing Base Property in accordance with Section 3.5,
hereof, but not including (i) any Borrowing Base Property which is determined by
the Administrative Agent to no longer be a Borrowing Base Property in accordance
with Section 3.4, hereof, or (ii) any Borrowing Base Property which is released
as Collateral in accordance with Section 3.3, hereof.
Borrowing Base Property Requirements.
(a) The Individual Property satisfies all Eligibility Criteria.
(b) The Borrower (or applicable Loan Party) has executed all Security
Documents in connection with such Individual Property, including, without
limitation, the Security Documents set forth in Sections 3.1.1 through and
including Section 3.1.6, hereof.
(c) The Individual Property is owned, ground leased or net leased by a
Wholly- Owned Subsidiary of the Borrower or CSC, except as otherwise approved by
the Agent and the Lenders.
(d) Administrative Agent shall have received and completed a
satisfactory review of such due diligence as the Administrative Agent and the
Lenders may reasonably require with respect to any Individual Property,
including, without limitation:
(i) (1) A mortgagee's title insurance policy naming the
Administrative Agent, on behalf of the Lenders, as the first
mortgagee, which meets Administrative Agent's title insurance
requirements previously furnished to Borrower to the
reasonable satisfaction of Administrative Agent and
Administrative Agent's counsel; and (2) such other evidence of
the perfection of its security interests as Administrative
Agent and Administrative Agent's counsel may reasonably
require;
(ii) A current, on site instrument survey of the Individual
Property containing a certification thereon, or on a separate
surveyor's certificate, of a land surveyor reasonably
acceptable to Administrative Agent which meets Administrative
Agent's survey requirements previously furnished to Borrower
to the reasonable satisfaction of Administrative Agent and its
counsel;
(iii) If the Individual Property is ground leased by the
Borrowing Base Property Owner, a copy of the Ground Lease.
Further, in the event that the ground lessor of the Individual
Property is (i) an Affiliate of any Loan Party, the said
ground lessor shall join in the Mortgage to include within the
Collateral the fee interest in the said Individual Property or
(ii) not an Affiliate of any Loan Party, the Administrative
Agent shall receive an Estoppel Certificate in the form of
Exhibit EC annexed hereto from the ground lessor or in the
form required by the ground lease provided such form is
reasonably acceptable to the Administrative Agent.
EA-3
(iv) The Borrower has utilized reasonable efforts to obtain
executed estoppel certificates and subordination,
nondisturbance and attornment agreements from tenants under
Major Leases;
(v) Copies of all Major Leases and, to the extent required
by the Administrative Agent, copies of other Leases;
(vi) A copy of the property management agreement with
respect to the Individual Property, if any, and, if requested
by the Administrative Agent, a consent by the property manager
to the collateral assignment of the property management
agreement to the Administrative Agent, on behalf of the
Lenders;
(vii) A copy of any reciprocal easement agreements with
respect to the Individual Property and, only if there are
material financial obligations of a recurring and defined
nature payable by the owner of the Borrowing Base Property
thereunder, if requested by the Administrative Agent, an
Estoppel Certificate from all of the parties thereto in form
and substance reasonably acceptable to the Administrative
Agent;
(viii) Evidence of existence of all Licenses and Permits to
evidence compliance with Legal Requirements with respect to
the use and operation of the Individual Property;
(ix) Evidence of insurance complying with the requirements
of Exhibit E, hereto;
(x) A current Appraisal;
(xi) A current environmental Phase I Site Assessment
performed by a firm reasonably acceptable to the
Administrative Agent within six (6) months of submission to
the Administrative Agent, which indicates the property is free
from recognized hazardous materials or substances apparent
from the inspection, or affected by such environmental matters
as may be reasonably acceptable to the Administrative Agent in
its sole and absolute discretion;
(xii) A current structural report performed by a firm
reasonably acceptable to the Administrative Agent within six
(6) months of submission to the Administrative Agent relative
to any improvements on the Individual Property; and
(xiii) Such other real estate documents reasonably deemed
appropriate for commercially reasonable underwriting by the
Administrative Agent in respect of the Borrowing Base
Property.
Borrowing Base Property Owner and Borrowing Base Property Owners shall mean,
from time to time, the Wholly-Owned Subsidiary or Subsidiaries of the Borrower
or CSC which is or are the owner or owners of the fee simple interest in, or the
approved ground lessee of, a Borrowing Base Property or the Borrowing Base
Properties.
Borrowing Base Value shall mean, as of each Calculation Date, (i) for each
Borrowing Base Property which is a Stabilized Asset, (x) the Adjusted Appraised
Value of such Borrowing Base
EA-4
Property, as determined by an Appraisal completed within the prior twelve (12)
month period, or, if selected by the Administrative Agent, (y) the Adjusted
Capitalized Value of such Borrowing Base Property, and (ii) for each Borrowing
Base Property which is a Non-Stabilized Asset, (x) the Adjusted Appraised Value
of such Borrowing Base Property, as determined by the most recent Appraisal of
such Borrowing Base Property, or, if by selected by the Administrative Agent,
(y) the Adjusted Capitalized Value of such Borrowing Base Property.
Notwithstanding the above, for purposes of determining the Borrowing Base Value,
the Borrowing Base Value for any Borrowing Base Property as to which an Event of
Loss has occurred shall be equal (x) the Adjusted Appraised Value of such
Borrowing Base Property, as determined by an Appraisal completed within the
prior twelve (12) month period, or, if selected by the Administrative Agent, the
Adjusted Capitalized Value of such Borrowing Base Property for a period equal to
the lesser of (i) twelve (12) months from the occurrence of the Event of Loss or
(ii) the determination that the subject Borrowing Base Property is not, or
ceases to be, a Restoration Property.
Breakage Fees as defined in Section 2.3.15.
Business Day shall mean any day of the year on which offices of Administrative
Agent are not required or authorized by law to be closed for business in Boston,
Massachusetts. If any day on which a payment is due is not a Business Day, then
the payment shall be due on the next day following which is a Business Day, and
such extension of time shall be included in computing interest and fees in
connection with such payment. Further, if there is no corresponding day for a
payment in the given calendar month (i.e., there is no "February 30th"), the
payment shall be due on the last Business Day of the calendar month. Saturday
and Sunday shall never be considered a Business Day.
Calculation Date shall mean the last day of each calendar quarter commencing
with March 31, 2004.
Calculation Period shall mean for each Calculation Date, the just completed
calendar quarter (inclusive of the applicable Calculation Date).
Capital Stock shall mean (i) with respect to any Person that is a corporation,
any and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including without
limitation, each class or series of common stock and preferred stock of such
Person and (ii) with respect to any Person that is not a corporation, any and
all investment units, partnership, membership or other equity interests of such
Person.
Cash Flow Projections shall mean a detailed schedule of all cash Distributions
projected to be made to the Borrower from the Borrower Subsidiaries, as detailed
on the model delivered to the Administrative Agent prior to the Closing Date,
and subject to change as shall be detailed in the respective Officer's
Certificate to be provided to the Administrative Agent as set forth herein.
Change of Control shall mean the occurrence of any of the following:
(a) The acquisition by any Person, or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended) of Persons acting in concert, of beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended), directly or
indirectly, of 50% or more of the outstanding shares of voting stock of
CSC, other than short term acquisitions necessary in connection with
the ultimate sale or other offerings of equity interests otherwise
permitted hereunder;
EA-5
(b) During any period of twelve (12) consecutive calendar months,
individuals:
(1) who were directors of CSC on the first day of such period;
or
(2) whose election or nomination for election to the board of
directors of CSC was recommended or approved by at least a
majority of the directors then still in office who were
directors of CSC on the first day of such period, or whose
election or nomination for election was so approved,
shall cease to constitute a majority of the board of directors
of CSC; or
(c) CSC shall cease to be the sole general partner of Borrower; or
(d) CSC shall cease to own a minimum of 50% of the beneficial ownership
interest in the Borrower, or
(e) With respect to any Borrowing Base Property Owner, the transfer of
any ownership interest therein such that such Borrowing Base Property
Owner is not a Wholly-Owned Subsidiary of the Borrower or CSC.
Closing Compliance Certificate as defined in Section 5.1.2(ii).
Closing Date as defined in Section 5.1.
Code shall mean the Internal Revenue Code of 1986, as amended from time to time,
and the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
Collateral as defined in Section 3.1.
Collateral Property and Collateral Properties shall mean any Borrowing Base
Property or Borrowing Base Properties and other Individual Properties which (i)
were a Borrowing Base Property, (ii) were no longer deemed such under Section
3.4.1, and (iii) for which the Release Conditions have not been satisfied, as
described in Section 3.4.3.
Collateral Release Request as defined in Section 3.3.
Combined EBITDA shall mean the sum of the Pro Rata share of EBITDA for each
Consolidated CSC Entity and each Unconsolidated CSC Entity.
Commitment shall mean, with respect to each Lender, the amount set forth on
Exhibit I hereto as the amount of such Lender's commitment to make advances to
the Borrower, as may be amended from time to time by the Administrative Agent as
provided in Article 13.
Commitment Percentage shall mean, with respect to each Lender, the percentage
set forth on Exhibit I hereto as such Lender's percentage of the aggregate
Commitments of all of the Lenders, as may be amended from time to time by the
Administrative Agent as provided in Article 13.
Consolidated or Consolidating means consolidated or consolidating as defined in
accordance with GAAP.
EA-6
Consolidated CSC Entity or Consolidated CSC Entities shall mean, singly and
collectively, the Borrower, CSC, and any Wholly-Owned Subsidiary of the Borrower
or CSC.
Cost to Repair as defined in Section 14.3.1.
CSC as defined in Section 1.4.
CSC Party and CSC Parties shall mean, singly and collectively, each Loan Party
and each Borrower Subsidiary.
Debt shall mean, with respect to any Person, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) all indebtedness of such
Person for the deferred purchase price of property or services (other than
property and services purchased, and expense accruals and deferred compensation
items arising, in the ordinary course of business), (iii) all obligations of
such Person evidenced by notes, bonds, debentures or other similar instruments
(other than performance, surety and appeal bonds arising in the ordinary course
of business), (iv) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (v) all obligations of such Person under leases which
have been, or should be, in accordance with generally accepted accounting
principles, recorded as capital leases, to the extent required to be so
recorded, (vi) all reimbursement, payment or similar obligations of such Person,
contingent or otherwise, under acceptance, letter of credit or similar
facilities (other than letters of credit in support of trade obligations or in
connection with workers' compensation, unemployment insurance, old-age pensions
and other social security benefits in the ordinary course of business), (vii)
all Debt in the nature of that referred to in clauses (i) through (vi) above
which is guaranteed directly or indirectly by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (A) to pay
or purchase such Debt or to advance or supply funds for the payment or purchase
of such Debt, (B) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against loss
in respect of such Debt, (C) to supply funds to or in any other manner invest in
the debtor (including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or (D)
otherwise to assure a creditor against loss in respect of such Debt, (viii) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any indebtedness or other obligation of any
Person, either directly or indirectly, of the nature described in clauses (i)
through (vi), and (ix) all Debt referred to in clauses (i) through (vi) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien, security interest or other
charge or encumbrance upon or in property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Debt. For the purposes of
the calculation of the Financial Covenants, Debt of any entity in which a Person
owns an ownership interest shall be calculated on a Pro Rata basis, unless such
Person has delivered a guaranty or other indemnity in connection with such Debt
creating a greater proportionate liability, in which event, such greater
liability shall apply.
Default as defined in Section 10.1.
Default Rate as defined in Section 2.3.13.
Delinquent Lender as defined in Section 13.2.8.
EA-7
Depository Account as defined in Section 7.14.1.
Development Assets shall mean Individual Properties as to which construction of
the associated or contemplated improvements has commenced (either new
construction or substantial renovation) but has not yet been completed such that
a certificate of occupancy (or the local equivalent) for a substantial portion
of the intended improvements has not yet been issued or, for any completed
project, until the earlier to occur of (a) such Individual Property becoming a
Stabilized Asset, or (b) one hundred eighty (180) days after completion.
Distribution shall mean, with respect to any Person, that such Person has paid a
dividend or returned any equity capital to its stockholders, members or partners
or made any other distribution, payment or delivery of property (other than
common stock or partnership or membership interests of such Person) or cash to
its stockholders, members or partners as such, or redeemed, retired, purchased
or otherwise acquired, directly or indirectly, for a consideration any shares of
any class of its capital stock or any membership or partnership interests (or
any options or warrants issued by such Person with respect to its capital stock
or membership or partnership interests), or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock or any membership or partnership interests of
such Person (or any options or warrants issued by such Person with respect to
its capital stock or membership or partnership interests). Without limiting the
foregoing, "Distributions" with respect to any Person shall also include all
payments made by such Person with respect to any stock appreciation rights,
plans, equity incentive or achievement plans or any similar plans.
Dollars shall mean lawful money of the United States.
Drawdown Date as defined in Section 2.1.2(i).
EBITDA shall mean for any Person the sum of (i) net income (or loss), plus (ii)
actual interest paid or payable respecting all Debt to the extent included as an
expense in the calculation of net income (or loss), plus (iii) total Tax
Expenses to the extent included as an expense in the calculation of net income
(or loss), plus (iv) total depreciation and amortization expense, to the extent
included as an expense in the calculation of net income (or loss), plus (v)
losses from extraordinary items, nonrecurring items, asset sales, write-ups or
forgiveness of debt, to the extent included as an expense in the calculation of
net income, minus (vi) gains from extraordinary items, nonrecurring items, asset
sales, write-ups or forgiveness of debt, to the extent included as income in the
calculation of net income, minus (vii) allowances for capital expenditures in
the amount of $0.20 per annum per rentable square foot of improvements, adjusted
(viii) for the elimination of straight line rents, all of the foregoing as
determined in accordance with GAAP, as appropriate. Without limiting the
generality of the foregoing, in determining EBITDA, net income shall include as
income, Rent Loss Proceeds.
Effective LIBO Rate. The term "Effective LIBO Rate" means the per annum rate
equal to the aggregate of (x) the Adjusted LIBO Rate, plus (y) the Applicable
Margin for Effective LIBO Rate Loans.
Effective LIBO Rate Advance. The term "Effective LIBO Rate Advance" means any
principal outstanding under this Agreement which pursuant to this Agreement
bears interest at the Effective LIBO Rate.
Eligibility Criteria shall mean the following criteria which must be satisfied
in a manner
EA-8
acceptable to the Administrative Agent for each Borrowing Base Property:
(a) the Borrowing Base Property is a retail center located in the
United States owned by a Borrowing Base Property Owner;
(b) the Borrower provides reasonably acceptable historical operating
and leasing information;
(c) the Borrower provides a certification as to the absence of any
material environmental issues;
(d) the Borrower provides certification as to the absence of any
material structural issues; and
(e) no liens or encumbrances shall exist on the Borrowing Base Property
upon its inclusion as a Borrowing Base Property, other than Permitted Liens.
Eligible Assignee shall mean any of (a) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted accounting
principles; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of any country
which is a member of the OECD; and (e) any other assignee that, in the
reasonable judgment of the Administrative Agent, is a reputable institutional
investor with substantial experience in lending and originating loans similar to
the Loan, or in purchasing, investing in or otherwise holdings such loans,
having a financial net worth of at least $100,000,000 and (f) any Lender
Affiliate or a Related Fund of a Lender. For the purposes hereof, "Lender
Affiliate" shall mean, (a) with respect to any Person who would otherwise be an
Eligible Assignee under clauses (a) - (e), above (a "Qualified Assignee"), (i)
an Affiliate of such Qualified Assignee or (ii) any entity (whether a
corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is administered (including
as placement agent therefor) or managed by a Qualified Assignee or an Affiliate
of such Qualified Assignee and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit and is managed by
the same investment advisor as such Lender or by an Affiliate of such investment
advisor(i.e., a Related Fund of such Lender). Further, for the purposes hereof,
"Related Fund" shall mean, with respect to a Lender which is a fund that invests
in loans, any other such fund managed by the same investment advisor as such
Lender or by an Affiliate of such Lender or such advisor. Neither the Borrower
nor an affiliate of the Borrower shall be Eligible Assignee.
Environmental Indemnity as defined in Section 3.1.5.
Environmental Legal Requirements as defined in the Environmental Indemnity.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended
from
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time to time, and the regulations promulgated and rulings issued thereunder.
Section references to ERISA are to ERISA, as in effect at the date of this
Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
ERISA Affiliate shall mean each person (as defined in Section 3(9) of ERISA)
which together with either Borrower or a Loan Party would be deemed to be a
"single employer" (i) within the meaning of Section 414(b), (c), (m) or (o) of
the Code or (ii) as a result of either Borrower or a Loan Party being or having
been a general partner of such person.
Established Loan Amount shall mean, as of the date hereof, One Hundred Million
Dollars ($100,000,000.00).
Event of Default as defined in Section 10.1.
Event of Loss shall mean, with respect to any Collateral Property, any of the
following: (a) any loss or destruction of, or damage to, such Collateral
Property; or (b) any actual condemnation, seizure or taking, by exercise of the
power of eminent domain or otherwise, of such Collateral Property, or
confiscation of such Collateral Property or the requisition of such Collateral
Property by a Governmental Agency or any Person having the power of eminent
domain, or any voluntary transfer of such Collateral Property or any portion
thereof in lieu of any such condemnation, seizure or taking.
Extended Maturity Date as defined in Section 2.2.1.
Extended Term as defined in Section 2.2.1.
FAD shall mean, for CSC, FFO (i) adjusted for the Pro Rata share of straight
line rents, (ii) less the Pro Rata share of all regularly scheduled principal
amortization payments (other than any final "balloon" payments due at maturity)
and (iii) less the Pro Rata share of allowances for tenant improvements and
leasing costs in the amount of $0.40 per annum per rentable square foot of
improvements.
Federal Funds Rate shall mean: For any day, a fluctuating interest rate per
annum equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York, or
if such rate is not so published for any day that is a Business Day, the average
of the quotations for such day on such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by the Administrative Agent.
FFO shall mean, for CSC, net income (loss) (computed in accordance with GAAP)
excluding gains (or losses) from debt restructurings and sales of real property,
plus real estate related depreciation and amortization and after adjustments for
unconsolidated partnerships and joint ventures, as set forth in more detail
under the definitions and interpretations thereof relative to funds from
operations promulgated by the National Association of Real Estate Investment
Trusts or its successor.
Financial Covenants shall mean those covenants of the Borrower set forth in
Sections 7.19, 7.20, 7.21, 7.22, 7.23 and 7.24.
Fiscal Year shall mean each twelve month period commencing on January 1 and
ending on
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December 31.
Fixed Charges shall mean the aggregate of the Pro Rata Share of all (a) Interest
Expenses, (b) regularly scheduled principal amortization payments (other than
any final "balloon" payments due at maturity) on all Debt of the Consolidated
CSC Entities and the Unconsolidated CSC Entities, (c) preferred dividend
payments or required Distributions (other than Distributions by the Borrower to
holders of OP units and Distributions by CSC to common equity holders) paid or
payable by the Consolidated CSC Entities and the Unconsolidated CSC Entities,
(d) Ground Lease Payments unless already deducted from Net Operating Income or
Combined EBITDA, and (e) Tax Expenses for the Consolidated CSC Entities and the
Unconsolidated CSC Entities, all of the foregoing as determined in accordance
with GAAP.
Fixed Charge Ratio shall mean, for each Calculation Period, the ratio of (a)
Combined EBITDA to (b) Fixed Charges.
Foreign Lender as defined in Section 2.6.3(B).
Formation Documents shall mean, singly and collectively, the partnership
agreements, joint venture agreements, limited partnership agreements, limited
liability company or operating agreements and certificates of limited
partnership and certificates of formation, articles (or certificate) of
incorporation and by-laws and any similar agreement, document or instrument of
any Person, as amended subject to the terms and provisions hereof.
Funding Evidence shall mean, in connection with the Borrower raising the funds
necessary to make a Mandatory Principal Payment as required under Section
2.3.8(i), evidence in connection with (i) the sale of any asset, that the
Borrower has entered into a sales agreement, letter of intent, or listed the
asset for sale with a recognized broker or (ii) the financing or refinancing of
an asset, that the Borrower has obtained a commitment for such financing or
submitted a loan application to a recognized financial institution.
GAAP shall mean generally accepted accounting principles in the United States of
America as of the date applicable.
Governmental Authority shall mean any court, board, agency, commission, office
or authority of any nature whatsoever for any governmental xxxx (xxxxxxx, xxxxx,
xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise) whether now or hereafter in
existence.
Ground Leases shall mean, from time to time, any Ground Lease relative to an
Individual Property and with respect to Ground Leases covering Borrowing Base
Properties, for which the Administrative Agent has given its prior written
approval.
Ground Lease Payments shall mean the sum of the Pro Rata share of (i) payments
made by the Consolidated CSC Entities under Ground Leases, plus (ii) payments
made under Ground Leases by Unconsolidated CSC Entities. Ground Lease Payments
shall not include the payments made by Cedar-South Philadelphia I, LLC under
that certain ground lease dated as of October 31, 2003 by and between SPSP
Corporation, Passyunk Supermarket, Inc., and Twenty Fourth Street Passyunk
Partners, L.P., as landlord, and Cedar-South Philadelphia I, LLC, as tenant.
Guaranty as defined in Section 3.1.4.
Guarantor or Guarantors as defined in Section 1.4.
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Hazardous Materials shall mean and include asbestos, mold, flammable materials,
explosives, radioactive substances, polychlorinated biphenyls, radioactive
substances, other carcinogens, oil and other petroleum products, pollutants or
contaminants that could be a detriment to the environment, and any other
hazardous or toxic materials, wastes, or substances which are defined,
determined or identified as such in any past, present or future federal, state
or local laws, rules, codes or regulations, or any judicial or administrative
interpretation of such laws, rules, codes or regulations.
Implied Debt Service shall mean the greater of (a) the annual amount of
principal and interest payable on a hypothetical loan in an amount equal to the
Implied Loan Amount, based upon a twenty-five (25) year direct reduction monthly
amortization schedule and a per annum interest rate equal to the greater of (i)
the actual blended interest rate for the Loan, or (ii) the 10-year Treasury Rate
as of the Calculation Date plus the Applicable Margin for LIBO Rate Loans, or
(b) an annual debt service constant of eight percent (8.00%).
Implied Debt Service Coverage Ratio shall mean as of each Calculation Date, the
ratio of the Adjusted Net Operating Income for all Borrowing Base Properties for
the most recent fiscal quarter, annualized, to Implied Debt Service; such
calculation and results to be as verified by the Administrative Agent.
Implied Loan Amount shall mean a principal amount which would generate as of any
Calculation Date an Implied Debt Service Coverage Ratio of 1.60 to 1.00, which
Implied Loan Amount may be revised by the Administrative Agent after the Closing
Date or any Calculation Date, as applicable, to reflect additions, removals and
other adjustments to the Borrowing Base Properties since the Closing Date or the
most recent Calculation Date, as applicable.
Initial Maturity Date as defined in Section 2.2.1.
Initial Term as defined in Section 2.2.1.
Increased Cost Event as defined in Section 2.6.1.
Indemnified Party as defined in Section 7.17.
Individual Property and Individual Properties shall mean, from time to time, all
real estate property owned or ground leased by any Consolidated CSC Entity or
any Unconsolidated CSC Entity, together with all improvements, fixtures,
equipment, and personalty relating to such property.
Insurance/Taking Release Conditions shall mean as to any Event of Loss, the
following conditions: (a) the Cost to Repair is less than or equal to Five
Hundred Thousand Dollars ($500,000.00); (b) no Event of Default shall have
occurred and be continuing; (c) the Borrowing Base Property and the use thereof
after the Repair Work will be in compliance with, and permitted under, all
applicable Legal Requirements; and (d) such Event of Loss does not materially
impair access to the Borrowing Base Property.
Interest Expense shall mean the sum of the Pro Rata share of (i) the aggregate
actual interest (whether expensed or capitalized) paid or payable respecting all
Debt by the Consolidated CSC Entities, and (ii) the aggregate actual interest
(whether expensed or capitalized) paid or payable by the Unconsolidated CSC
Entities.
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Interest Expense Coverage shall mean the ratio for each Calculation Period of:
(A) Combined EBITDA to (B) Interest Expense.
Interest Period.
(A) The term "Interest Period" means with respect to each Effective
LIBO Rate Advance: a period of one (1), two (2), or three (3) consecutive
months, subject to availability, as selected, or deemed selected, by Borrower at
least two (2) Business Days prior to the initial date of such Effective LIBO
Rate Advance, or if an advance is already outstanding, at least two (2) Business
Days prior to the end of the current Interest Period. Each such Interest Period
shall commence on the Business Day so selected, or deemed selected, by Borrower
and shall end on the numerically corresponding day in the first, second, or
third month thereafter, as applicable. Provided, however: (i) if there is no
such numerically corresponding day, such Interest Period shall end on the last
Business Day of the applicable month, (ii) if the last day of such an Interest
Period would otherwise occur on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day; but (iii) if such
extension would otherwise cause such last day to occur in a new calendar month,
then such last day shall occur on the next preceding Business Day.
(B) The term "Interest Period" shall mean with respect to each Variable
Rate Advance consecutive periods of one (1) day each.
(C) No Interest Period may be selected which would end beyond the then
Maturity Date of the Loan. If the last day of an Interest Period would otherwise
occur on a day which is not a Business Day, such last day shall be extended to
the next succeeding Business Day, except as provided above in clause (A)
relative to an Effective LIBO Rate Advance.
Investment shall mean the acquisition of any real property or tangible personal
property or of any stock or other security, any loan, advance, bank deposit,
money market fund, contribution to capital, extension of credit (except for
accounts receivable arising in the ordinary course of business and payable in
accordance with customary terms), or purchase or commitment or option to
purchase or otherwise acquire real estate or tangible personal property or stock
or other securities of any party or any part of the business or assets
comprising such business, or any part thereof.
Knowledge or knowledge shall mean with respect to the Borrower, CSC and the
Borrower Subsidiaries, (a) the actual knowledge of Xxx X. Xxxxxx, Xxxxxx X.
Xxxxxx or Xxxxxx X. X'Xxxxxx, or (b) the actual knowledge of such Persons'
successors to their positions (or positions similar thereto) as officers of CSC.
Notwithstanding the foregoing, such named parties and their successors are not
parties to this Agreement and shall have no liability for a breach of any
representation, warranty, covenant or agreement deemed to be made to their
actual knowledge.
Land Assets shall mean Individual Properties constituting raw or undeveloped
land as to which construction of contemplated improvements has not commenced or
which does not generate rental revenues under a Ground Lease.
Late Charge as defined in Section 2.3.14.
L/C Draw shall mean a payment made by the Administrative Agent pursuant to a
Letter of Credit which was presented to the Administrative Agent for a draw of
proceeds thereunder.
L/C Exposure shall mean, at any time, the sum of (a) the aggregate undrawn
amount of all
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outstanding Letters of Credit at such time, plus (b) the aggregate amount of all
L/C Draws that have not yet been reimbursed by or on behalf of the Borrower, or
repaid through a Loan Advance, at such time.
Lease shall mean any lease relative to all or any portion of an Individual
Property.
Legal Requirements shall mean all applicable federal, state, county and local
laws, by-laws, rules, regulations, codes and ordinances, and the requirements of
any governmental agency or authority having or claiming jurisdiction with
respect thereto, including, but not limited to, those applicable to zoning,
subdivision, building, health, fire, safety, sanitation, the protection of the
handicapped, and environmental matters and shall also include all orders and
directives of any court, governmental agency or authority having or claiming
jurisdiction with respect thereto.
Lenders as defined in the Preamble.
Lenders' Consultant as defined in Section 7.28.
Letter of Credit as defined in Section 2.7.1.
Leverage Ratio shall mean the quotient (expressed as a percentage) resulting
from dividing (i) the aggregate of all Debt of the Consolidated CSC Entities and
the Unconsolidated CSC Entities by (ii) the Total Asset Value.
LIBO Rate. The term "LIBO Rate" means, as applicable to any Effective LIBO Rate
Advance, the rate per annum as determined on the basis of the offered rates for
deposits in Dollars, for a period of time equal to the Interest Period for the
Effective LIBO Rate Advance which appears on the "Telerate Page 3750" as of
11:00 a.m. London time on the day that is two (2) London Banking Days preceding
the first day of such Effective LIBO Rate Advance (or if the Effective LIBO Rate
Advance is the conversion of an outstanding Effective LIBO Rate Advance, two
London Banking Days preceding the end of the Interest Period of such outstanding
advance); provided, however, if the rate described above does not appear on the
Telerate System on any applicable interest determination date, the LIBO Rate
shall be the rate (rounded upward, if necessary, to the nearest one hundred-
thousandth of a percentage point), determined on the basis of the offered rates
for deposits in Dollars for a period of time comparable to such Interest Period
which are offered by four major banks in the London interbank market at
approximately 11:00 a.m. London time, on the day that is two (2) London Banking
Days preceding the first day of such Effective LIBO Rate Advance as selected by
Administrative Agent (or if the Effective LIBO Rate Advance is the conversion of
an outstanding Effective LIBO Rate Advance, two London Banking Days preceding
the end of the Interest Period of such outstanding advance). The principal
London office of each of the four major London banks will be requested to
provide a quotation of its Dollar deposit offered rate. If at least two (2) such
quotations are provided, the rate for that date will be the arithmetic mean of
the quotations. If fewer than two (2) quotations are provided as requested, the
rate for that date will be determined on the basis of the rates quoted for loans
in Dollars to leading European banks for a period of time comparable to such
Interest Period offered by major banks in New York City at approximately 11:00
a.m. New York City time, on the day that is two (2) London Banking Days
preceding the first day of such Effective LIBO Rate Advance (or if the Effective
LIBO Rate Advance is the conversion of an outstanding Effective LIBO Rate
Advance, two London Banking Days preceding the end of the Interest Period of
such outstanding advance).
Lien shall mean any mortgage, deed of trust, lien, pledge, hypothecation,
assignment, security interest, or any other encumbrance, charge or transfer,
including, without limitation, any conditional
EA-14
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and mechanic's,
materialmen's and other similar liens and encumbrances.
Licenses and Permits shall mean all licenses, permits, authorizations and
agreements issued by or agreed to by any governmental authority, or by a private
party pursuant to a Permitted Title Exception, and including, but not limited
to, building permits, occupancy permits and such special permits, variances and
other relief as may be required pursuant to Legal Requirements which may be
applicable to any Collateral Property.
Line Fee as defined in Section 2.4.2.
Line Percentage shall mean 0.25% per annum for any quarter during which the
average daily balance for such quarter of the aggregate of (x) the outstanding
principal balance of the Loan and (y) the L/C Exposure is less than the Total
Commitment.
Liquidation Proceeds. Amounts received by the Administrative Agent and/or the
Lenders in the exercise of the rights and remedies under the Loan Documents
(including, but not limited to, all rents, profits and other proceeds received
by the Administrative Agent and/or the Lenders from the liquidation of, or
exercising rights upon the occurrence of an Event of Default relative to, any
Collateral, but not including any amount bid at a foreclosure sale or on behalf
of the Administrative Agent or otherwise credited to the Borrower in, any
deed-in-lieu of foreclosure or similar transaction).
Loan as defined in Section 1.3.
Loan Advances shall mean any advance of any proceeds of the Loan hereunder, and
as defined in Section 2.1.1.
Loan Agenda shall mean that Document Agenda respecting the establishment of the
Loan annexed hereto as Exhibit K.
Loan Agreement as defined in the Preamble.
Loan Documents as defined in Section 3.2.
Loan Party and Loan Parties shall mean, singly and collectively, the Borrower,
CSC, and any Borrower Subsidiary which is a party to any Loan Document or the
beneficiary of any Letter of Credit, each Borrowing Base Property Owner, and any
Subsidiary and Affiliate of any of the foregoing which is party to any Loan
Document.
Loan Termination Date shall mean the Maturity Date.
London Banking Day. The term "London Banking Day" means any day on which
dealings in deposits in Dollars are transacted in the London interbank market.
Major Event of Loss shall mean, with respect to any Borrowing Base Property,
both (1) any of the following: (a) any loss or destruction of, or damage to,
such Borrowing Base Property such that either (x) the repairs and restoration
thereof cannot be completed, in the judgment of the applicable Lender's
Consultant and if there is no Lender's Consultant, an independent architect or
engineer retained by the Borrower, within six (6) months after the occurrence of
such loss, damage or
EA-15
destruction or (y) rendering more than fifty (50%) percent of the said Borrowing
Base Property unusable for the purposes conducted thereon immediately prior to
such loss, destruction or damage, as determined by the applicable Lender's
Consultant and if there is no Lender's Consultant, an independent architect or
engineer retained by the Borrower; or (b) any actual condemnation, seizure or
taking, by exercise of the power of eminent domain or otherwise, of such
Borrowing Base Property, or confiscation of such Borrowing Base Property or the
requisition of such Borrowing Base Property by a Governmental Agency or any
Person having the power of eminent domain, or any voluntary transfer of such
Borrowing Base Property or any portion thereof in lieu of any such condemnation,
seizure or taking, rendering more than fifty (50%) percent of the said leaseable
area of Borrowing Base Property unusable for the purposes conducted thereon
immediately prior to action, as determined by the applicable Lender's Consultant
and if there is no Lender's Consultant, an independent architect or engineer
retained by the Borrower, and (2) the Administrative Agent does not elect under
Section 14.3.3 to make the Net Proceeds with respect to such Event of Loss
available for Repair Work.
Major Lease shall mean (i) any Lease for space in any Borrowing Base Property
(x) in excess of 25,000 rentable square feet, or (y) in excess of 15,000
rentable square feet and in excess of ten (10%) percent of the rentable square
footage of such Borrowing Base Property, or (ii) any Lease with a tenant who is
a tenant in more than one Borrowing Base Property and who leases 25,000 or more
rentable square feet, in the aggregate, in all Borrowing Base Properties.
Mandatory Principal Payment as defined in Section 2.3.8(ii).
Material Adverse Effect shall mean a material adverse effect on (i) the
business, assets, operations or financial or other condition of any of the
Borrower, CSC, or, taken as a whole, the Loan Parties, (ii) the ability of any
of the Borrower, CSC, or, taken as a whole, the Loan Parties to perform any
material Obligations or to pay any Obligations which it is or they are obligated
to pay in accordance with the terms hereof or of any other Loan Document, (iii)
the rights of, or benefits available to, the Administrative Agent and/or any of
the Lenders under any Loan Document or (iv) any Lien given to Administrative
Agent and/or any of the Lenders on any material portion of the Collateral or the
priority of any such Lien.
Maturity shall mean the Initial Maturity Date, or, if extended pursuant to the
terms hereof, the Extended Maturity Date, or, in any instance, upon acceleration
of the Loan, if the Loan has been accelerated by Lenders upon an Event of
Default.
Maturity Date as defined in Section 2.2.1.
Maximum Loan Amount as defined in Section 2.1.1.
Net Operating Income: For any period of determination, (i) net operating income
generated by an Individual Property for such period (i.e., gross operating
income, inclusive of any rent loss insurance, less expenses (exclusive of debt
service, capital expenditures and vacancy allowances and before depreciation and
amortization)), determined in accordance with GAAP, as generated by, through or
under Leases, and (ii) all other income arising from direct operations of or
licenses or operating agreements for any part of the Individual Property
determined on a GAAP basis. For purposes hereof, all rental income shall be
adjusted for straight line rents. Borrower shall provide Administrative Agent
with all information and materials required by Administrative Agent necessary
for the determination of Net Operating Income. If any Leases are scheduled to
expire during such period of determination, no rents or other amounts payable
under such Leases with respect to any portion of such period occurring after
such scheduled expiration date shall be included
EA-16
in the determination of Net Operating Income for such period. If any Leases are
scheduled to commence (and rent and occupancy pursuant thereto are also
scheduled to commence) during such period of determination, the rents and other
amounts payable under such Leases with respect to any period occurring after the
scheduled commencement date shall be included in the determination of Net
Operating Income for such period.
Net Proceeds. (1) The net amount of all insurance proceeds received under any
insurance policies other than Rent Loss Proceeds as a result of the occurrence
of an Event of Loss described in clause (a) of the definition of Event of Loss
with respect to any Collateral Property, after deduction of the reasonable costs
and expenses (including, but not limited to reasonable counsel fees), if any, in
collecting the same, or (2) the net amount of all awards and payments received
with respect to the occurrence of an Event of Loss described in clause (b) of
the definition of Event of Loss, after deduction of the reasonable costs and
expenses (including, but not limited to reasonable counsel fees), if any, in
collecting the same, whichever the case may be.
Net Worth shall mean (a) the sum of (i) total stockholders' equity and (ii)
limited partners' interest in the Borrower as of the Calculation Date appearing
on the consolidated financial statements of the Borrower and CSC, plus (b)
depreciation and amortization provided after December 31, 2003 through the
Calculation Date on a cumulative basis.
Non-Retail Assets shall mean Individual Properties that generate more than
fifteen (15%) percent of base rental revenues from non-retail tenants.
Non-Stabilized Asset shall mean an Individual Property that is not a Stabilized
Asset.
Note. Collectively, the Notes payable to each Lender in the aggregate original
principal amount of the Established Loan Amount.
Notice of Default as defined in Section 13.1.6.
Notice of Letter of Credit as defined in Section 2.7.1.
Notice of Rate Selection as defined in Section 2.3.3.
Obligations shall mean without limitation, all and each of the following,
whether now existing or hereafter arising:
(a) Any and all direct and indirect liabilities, debts, and
obligations of the Borrower or any Loan Party to the
Administrative Agent or any Lender under or arising out of the
Loan Documents, each of every kind, nature, and description.
(b) Each obligation to repay any loan, advance,
indebtedness, note, obligation, overdraft, or amount now or
hereafter owing by the Borrower or any Loan Party to the
Administrative Agent or any Lender (including all future
advances whether or not made pursuant to a commitment by the
Administrative Agent or any Lender) under or arising out of
the Loan Documents, whether or not any of such are liquidated,
unliquidated, primary, secondary, secured, unsecured, direct,
indirect, absolute, contingent, or of any other type, nature,
or description, or by reason of any cause of action which the
Administrative Agent or any Lender may hold against the
Borrower or any Loan Party including, without limitation, any
obligation arising under any interest rate hedging, cap or
other protection arrangement with the Administrative
EA-17
Agent or any Lender.
(c) All notes and other obligations of the Borrower or any
Loan Party now or hereafter assigned to or held by the
Administrative Agent or any Lender under or arising out of the
Loan Documents, each of every kind, nature, and description.
(d) All interest, fees, and charges and other amounts which
may be charged by the Administrative Agent or any Lender to
the Borrower or any Loan Party and/or which may be due from
the Borrower or any Loan Party to the Administrative Agent or
any Lender from time to time under or arising out of the Loan
Documents.
(e) All costs and expenses incurred or paid by the
Administrative Agent or any Lender in respect of any agreement
between the Borrower or any Loan Party and the Administrative
Agent or any Lender or instrument furnished by the Borrower or
any Loan Party to the Administrative Agent or any Lender
(including, without limitation, costs of collection,
attorneys' reasonable fees, and all court and litigation costs
and expenses) in connection with the Loan.
(f) Any and all covenants of the Borrower or any Loan Party
to or with the Administrative Agent or any Lender and any and
all obligations of the Borrower or any Loan Party to act or to
refrain from acting in accordance with any agreement between
the Borrower or any Loan Party and the Administrative Agent or
any Lender or instrument furnished by the Borrower or any Loan
Party to the Administrative Agent or any Lender in connection
with the Loan.
Occupancy Ratio shall mean with respect to any Borrowing Base Property, the
ratio as determined by the Administrative Agent of the rentable square footage
thereof as to which tenants are in physical occupancy and paying rent, to the
total rentable square footage thereof. For purposes of determining the Occupancy
Ratio, the Occupancy Ratio for any Borrowing Base Property as to which an Event
of Loss has occurred shall be equal to the greater of (i) the actual Occupancy
Ratio with respect thereto or (ii) the Occupancy Ratio immediately prior to the
said Event of Loss for a period equal to the lesser of (x) six (6) months from
the occurrence of the Event of Loss or (y) the determination that the subject
Borrowing Base Property is not, or ceases to be, a Restoration Property.
Officer's Certificate shall mean a certificate delivered to the Administrative
Agent by the Borrower, a Borrower Subsidiary, or a Guarantor, as the case may be
respectively, which is signed by an authorized officer thereof (or an authorized
officer of the direct or indirect managing general partner or managing member,
as applicable, of the Borrower, Borrower Subsidiary, or Guarantor, if and as
applicable).
PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.
Permitted Debt as defined in Section 8.4.
Permitted Distributions shall mean (a) so long as no Event of Default exists and
is continuing, or would be created thereby, any Distributions by the Borrower
and CSC, (i) in any amount, provided that such Distributions shall not exceed
(x) ninety-five (95%) percent of FFO for the trailing twelve (12) month period,
and (y) one hundred (100%) percent of FAD for the trailing twelve (12) month
period (with the initial test to be for the quarter ending December 31, 2004),
(ii) concerning the repurchase or redemption of stock of CSC or partnership
interests in the Borrower, or (iii)
EA-18
concerning the issuance of operating partnership units or stock in return for
equity interests in connection with any Permitted Investment (provided, any
Distributions by the Borrower or CSC shall be permitted as are necessary for CSC
to maintain REIT status, if such Distributions are greater than the amounts set
forth in subclause (a)(i), above) or (b) at any time after and during the
continuance of any Event of Default, such Distributions as are necessary for CSC
to maintain REIT status (measured on a trailing twelve (12) month period basis),
all of the foregoing tested by the Administrative Agent on the Calculation Date
with results based upon the results for the most recent Calculation Period, such
calculation and results to be as verified by the Administrative Agent.
Permitted Liens as defined in Section 8.2.
Permitted Investments shall mean the following:
(a) The Pro Rata share of Investments in Development Assets
(valued at undepreciated Book Value) which, in the aggregate,
do not exceed twenty five percent (25%) of Total Asset Value;
(b) The Pro Rata share of Investments in Land Assets which, in
the aggregate, valued at Book Value do not exceed five percent
(5%) of Total Asset Value;
(c) Investments in Unconsolidated CSC Entities including,
without limitation, the purchase of all or any portion of any
interests held by persons that are not Wholly- Owned
Subsidiaries of the Borrower;
(d) The Pro Rata share of Investments in Non-Retail Assets
which, in the aggregate, do not exceed five percent (5%) of
Total Asset Value;
(e) Investments in interest rate swaps, caps and other similar
rate protection agreements; and
(f) Investments in Individual Properties or in entities which
own such Individual Properties, provided that such investment
does not cause a breach of a Financial Covenant.
Provided, however, that the aggregate of the Pro Rata Share of Investments
described in clauses (a), (b) and (d) above shall not exceed thirty percent
(30%) of Total Asset Value.
Person shall mean any individual, corporation, partnership, joint venture,
estate, trust, unincorporated association or limited liability company, any
federal, state, county or municipal government or any bureau, department or
agency thereof and any fiduciary acting in such capacity on behalf of any of the
foregoing.
Plan shall mean any multiemployer or single-employer plan as defined in Section
4001 of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) any Loan Party or an ERISA Affiliate, and each such
plan for the five year period immediately following the latest date on which
such Loan Party or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
Preliminary Approval shall mean the following:
(a) Delivery by the Borrower to the Administrative Agent and the
Lenders of the
EA-19
following with respect to any Individual Property proposed to be a Borrowing
Base Property, each such item to the reasonable satisfaction of the
Administrative Agent and the Lenders:
(i) physical description;
(ii) current rent roll and operating statements;
(iii) to the extent then available in Borrower's files, the
following: a survey, environmental reports, copies of existing title insurance
policies or a title commitment, and copies of all title exceptions, engineering
reports and similar information; and
(iv) the Borrower's certification that to its knowledge the
proposed Borrowing Base Property presently satisfies (or is anticipated to
satisfy upon the grant of such Collateral) the Eligibility Criteria set forth in
subsections (a), (c), (d), and (e), of the definition of Eligibility Criteria.
(b) Administrative Agent and the Lenders shall, within ten (10)
Business Days after delivery of all items described in subsection (a), above,
grant or deny the preliminary approval for the proposed replacement Borrowing
Base Property.
Prime Rate. The term "Prime Rate" means the greater of (i) a variable per annum
rate of interest so designated from time to time by Fleet National Bank (or any
successor thereto), as its prime rate, or (ii) the Federal Funds Rate plus 0.50%
per annum. The Prime Rate is a reference rate and does not necessarily represent
the lowest or best rate being charged to any customer.
Pro Rata shall mean a calculation based on the percentage of the Capital Stock
of or other equity interest in any Person owned, directly or indirectly, by the
Borrower and/or CSC. For the purposes of this definition, the Pro Rata Share of
a Consolidated CSC Entity shall be deemed to be 100%.
Register as defined in Section 13.3.3.
REIT means a "real estate investment trust" as such term is defined in Section
856 of the Code.
Release Conditions as defined in Section 3.3.
Release Price shall mean, with respect to any Borrowing Base Property, the
amount, if any, necessary to reduce the aggregate outstanding principal amount
of the Loans plus the L/C Exposure to the Maximum Loan Amount (computed without
regard to the Borrowing Base Property for which the Borrower is seeking
release).
Rent Loss Proceeds. The proceeds received under any rent loss or business
interruption insurance policies.
Repair Work as defined in Section 14.1.
Reportable Event shall mean an event described in Section 4043(b) of ERISA with
respect to a Plan other than those events as to which the 30-day notice period
is waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Regulation
Section 2615, or as otherwise now or hereafter defined in ERISA.
Required Lenders. As of any date, the Lenders holding at least Sixty-Six and
2/3rds (66 2/3%)
EA-20
percent of the outstanding principal amount due under the Note on such date; and
if no such principal is outstanding, the Lenders whose aggregate Commitments
constitute at least Sixty-Six and 2/3rds (66 2/3%) percent of the Total
Commitment.
Restoration Property. Any Collateral Property as to which an Event of Loss has
occurred and as to which the Net Proceeds are being made available in accordance
with the terms and provisions of Article 14 for Repair Work relative to the
subject Collateral Property and such Repair Work can be completed in six (6)
months, as determined by the Administrative Agent in its reasonable discretion.
Security Documents as defined in Section 3.2.
Stabilized Asset shall mean an Individual Property which has an Occupancy Ratio
of equal to or greater than eighty percent (80%). If due to the occurrence of an
Event of Loss as to any Borrowing Base Property which was a Stabilized Asset
prior to such Event of Loss, the Occupancy Ratio with respect thereto is less
than eighty percent (80%), such Borrowing Base Property shall continue to be
deemed to be a Stabilized Asset (notwithstanding that the Occupancy Ratio with
respect thereto is less than eighty percent (80%) as a result of such Event of
Loss) for a period equal to the lesser of (i) six (6) months from the occurrence
of the Event of Loss or (ii) the determination that the subject Borrowing Base
Property is not, or ceases to be, a Restoration Property.
State shall mean the State or Commonwealth in which the subject of such
reference or any part thereof is located.
Subsidiary shall mean, with respect to any Person, any corporation, association,
limited liability company, partnership or other business entity of which
securities or other ownership interests representing more than 50% of either (x)
the beneficial ownership interest or (y) ordinary voting power are, at the time
as of which any determination is being made, owned or controlled, directly or
indirectly, by such Person.
Tax Expenses shall mean tax expense (if any) attributable to income and
franchise taxes based on or measured by income, whether paid or accrued.
Total Asset Value shall mean the aggregate of:
(a) for all Individual Properties (which are not Individual Properties
acquired within the prior 90 days from the Calculation Date,
Development Assets, or Land Assets), the Pro Rata share of the
Calculations Period's aggregate Adjusted Net Operating Income for all
such Individual Properties, annualized, capitalized at a rate of 9.25%,
plus
(b) for Land Assets, and for all Individual Properties which were
acquired within the prior 90 days from the Calculation Date, the Pro
Rata share of the undepreciated Book Value as of the Calculation Date;
plus
(c) for Development Assets, at the Borrower's option, either the Pro
Rata share of the undepreciated Book Value as of the Calculation Date
or the Pro Rata share of the Calculations Period's aggregate Adjusted
Net Operating Income for such Development Asset, annualized,
capitalized at a rate of 9.25%; plus
(d) for all unencumbered cash and cash equivalent investments,
restricted cash held by a qualified intermediary, and escrows owned by
the Consolidated CSC Entities and the Unconsolidated CSC Entities, the
Pro Rata share of the Book Value as of the Calculation
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Date of such assets; plus
(e) deposits corresponding to outstanding Letters of Credit.
The Pro Rata Share of Development Assets completed within the prior 90
days from a Calculation Date will be valued as set forth in (c) above for a
maximum of one hundred eighty (180) days from completion (and continuing until
end of such Calculation Period ) and based on Adjusted Net Operating Income
under subsection (a) above thereafter.
Total Commitment. The sum of the Commitments of the Lenders, as in effect from
time to time.
Treasury Rate The term "Treasury Rate" means, as of the date of any calculation
or determination, the latest published rate for United States Treasury Notes or
Bills (but the rate on Bills issued on a discounted basis shall be converted to
a bond equivalent) as published weekly in the Federal Reserve Statistical
Release H.15(519) of Selected Interest Rates in an amount which approximates (as
determined by Administrative Agent) the amount (i) approximately comparable to
the portion of the Loan to which the Treasury Rate applies for the Interest
Period, or (ii) in the case of a prepayment, the amount prepaid and with a
maturity closest to the original maturity of the installment which is prepaid in
whole or in part.
UCC or the Uniform Commercial Code means the Uniform Commercial Code in effect
in the Commonwealth of Massachusetts, provided, that as same relates to a
Collateral Property, the UCC shall mean the Uniform Commercial Code as adopted
in such jurisdiction.
Unconsolidated CSC Entity or Unconsolidated CSC Entities shall mean each Person
as to which the Borrower and/or CSC own, directly or indirectly, any Capital
Stock, but which is not a Wholly- Owned Subsidiary.
Unfunded Current Liability of any Plan means the amount, if any, by which the
actuarial present value of the accumulated plan benefits under the Plan as of
the close of its most recent plan year exceeds the fair market value of the
assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
United States and U.S. shall each mean the United States of America.
Variable Rate means a per annum rate equal at all times to the Prime Rate plus
the Applicable Margin for Prime Rate Loans, with changes therein to be effective
simultaneously without notice or demand of any kind with any change in the Prime
Rate.
Variable Rate Advance means any principal amount outstanding under this
Agreement which pursuant to this Agreement bears interest at the Variable Rate.
Variable Rate Indebtedness means any Debt that bears interest at a variable rate
without the benefit of an interest rate hedge or other interest rate protection
agreement.
Wholly-Owned Subsidiary shall mean, with respect to any Person, any other Person
as to which one- hundred (100%) percent of the Capital Stock thereof is owned,
directly or indirectly, by such Person, and, for purposes of this definition,
Cedar-Riverview, LP and Delaware 1851 Associates, L.P., shall be deemed to be
Wholly-Owned Subsidiaries of the Borrower.
EA-22
EA-23
EXHIBIT B-1 TO LOAN AGREEMENT
REQUISITION AND AVAILABILITY CERTIFICATE
TO: Fleet National Bank ("Administrative Agent")
RE: Loan Agreement dated as of January 30, 2004 (the "Loan Agreement")
between Administrative Agent, the lenders described therein and Cedar
Shopping Centers Partnership, L.P. ("Borrower")
LOAN REQUEST NO.:________________
AMOUNT OF LOAN ADVANCE REQUESTED: $__________________
DATE:________________, 200__
This Borrower's Certificate and Request for Loan Advance is submitted
by Borrower to Administrative Agent pursuant to the provisions of the Loan
Agreement in order to induce Lenders to make the Loan Advance identified above.
Capitalized terms used herein which are not otherwise specifically defined shall
have the same meaning herein as in the Loan Agreement.
Borrower hereby requests Lenders to make a Loan Advance under the Notes
in the following amount: $_________________.
The Loan Advance is requested for the following
purposes:_____________________________________________________________________
______________________________________________________________________________
_____________________________________________________________________________.
The Loan Advance requested of $______________, when added to prior Loan
Advances under the Notes of $________________, plus the L/C Exposure of
$__________________, will result in aggregate Loans plus L/C Exposure of
$_______________.
The types of Loans requested are as follows:
Variable Rate: $__________________________
Effective LIBO Rate $__________________________
Interest Period____________
$__________________________
Interest Period____________
The Maximum Loan Amount shall not be exceeded upon the making of the
Loan Advance requested hereunder. Calculations of the Maximum Loan Amount,
current Loan balance, and amount of the Loan available to be advanced and/or
L/C's available to be issued are set forth on the Availability Certificate
annexed hereto.
Borrower hereby certifies, warrants and represents to Administrative
Agent and the Lenders that (except for each condition precedent to Lender's
obligation to make the requested Loan Advance) this request: (i) constitutes an
affirmation by Borrower that, except as otherwise disclosed
EB-1
in writing to the Administrative Agent, each of the warranties and
representations made in the Loan Agreement, including, without limitation, the
Borrower's continued compliance with the Financial Covenants, as satisfied by
the Closing Compliance Certificate, or once delivered, the most recent
Compliance Certificate delivered by the Borrower to the Agent, remains true and
correct in all material respects as of the date of this request and, unless
Administrative Agent is notified to the contrary prior to the disbursement of
the Loan Advance, will be so on the date of such Loan Advance; and (ii)
constitutes the representation and warranty of Borrower that the information set
forth in this request is true, accurate and complete in all material respects.
The Borrower hereby further certifies, warrants and represents to
Administrative Agent and the Lenders that: (i) to the best of the Borrower's
knowledge, the financial information provided by the Borrower to the Agent
remains true and accurate in all material respects; (ii) the Borrower is in
compliance with the financial covenants contained in the Loan Agreement to the
extent set forth below; (iii) to the best of the Borrower's knowledge, an Event
of Default which is continuing has not occurred under the Loan Agreement or any
of the other Loan Documents.
--------------------------------------------------------------------------------------------------------------
Covenant Requirement Actual
--------------------------------------------------------------------------------------------------------------
Interest Expense Coverage Not less than 2.00:1
--------------------------------------------------------------------------------------------------------------
Leverage Ratio Less than 70%
--------------------------------------------------------------------------------------------------------------
Fixed Charge Ratio Not less than 1.50:1.
--------------------------------------------------------------------------------------------------------------
Borrower's Net Worth Not less than 85% of the
Borrower's Net Worth as of December 31,
2003, plus 85% of cumulative net cash
proceeds, as set forth in the Loan
Agreement
--------------------------------------------------------------------------------------------------------------
Occupancy Ratio for Not less than 85% for the
Borrowing Base Properties aggregate of all Borrowing
Base Properties, and not less
than 80% for each individual
Borrowing Base Property
--------------------------------------------------------------------------------------------------------------
Aggregate Pro Rata amount Less than 30% of the
of the Variable Rate aggregate Pro Rata amount of
Indebtedness of the the total Debt of the
Consolidated CSC Entities Consolidated CSC Entities
and the Unconsolidated CSC and the Unconsolidated CSC
Entities Entities
--------------------------------------------------------------------------------------------------------------
Calculations of the Financial Covenants are set forth in the Closing
Compliance Certificate, or once delivered, the most recent Compliance
Certificate delivered by the Borrower to the Agent.
This request is submitted to Administrative Agent for the purpose of
inducing Lenders to make a Loan Advance and Borrower intends that Administrative
Agent and the Lenders shall rely upon the same being true, accurate and complete
in all material respects.
If all conditions precedent to Lenders' obligation to make a Loan
Advance are satisfied,
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please disburse the Loan Advance on ______________, 200__.
WITNESS the execution hereof as an instrument under seal as of the
_______ day of _____________, 200__.
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping Centers, Inc.,
its general partner
By: _________________________
Name: _________________________
Title: _________________________
EB-3
AVAILABILITY CERTIFICATE
1. Maximum Loan Amount
a. Established Loan Amount $___,000,000.00
b. Total Commitment $___,000,000.00
c. Availability (calculated below) $_________
lesser of (a), (b) and (c) $__________
2. Loan Balance
a. Outstanding Balance of Loan $_________
plus
b. L/C Exposure $_________
(a) plus (b) $__________
3. Amount of Loan available to be advanced and/or L/C's
available to be issued
1 minus 2 $__________
EB-4
Availability Calculation
a. Aggregate Borrowing Base Value* $__________
(calculated below)
Multiplied by 65% $__________
b. Implied Loan Amount $__________
(calculated below)
lesser of (a) or (b) $___________
EB-5
*Borrowing Base Value Calculation
(prepare for each Borrowing Base Property)
(a) If Stabilized Asset
(i) Adjusted Appraised Value $____________
(complete only if Appraisal completed
within prior 12 months)
(ii) Adjusted Capitalized Value** $____________
(calculated below)
**Adjusted Capitalized Value Calculation (For Stabilized Asset)
Adjusted Net Operating Income for most recent
fiscal quarter, annualized $____________
capitalized at 9.25% $____________
(b) If Non-Stabilized Asset
(i) Adjusted Appraised Value $____________
(ii) Adjusted Capitalized Value $____________
(Undepreciated Book Value)
EB-6
Calculation of Borrowing Base Value if Event of Loss Has Occurred
(i) Adjusted Capitalized Value $___________
(calculated in the
manner set forth
above for Stabilized Asset, subject
to the limits of Borrowing Base Value,
or Non Stabilized Asset, as applicable)
Multiplied by 65% $___________
EB-7
Implied Loan Amount Calculation
Principal amount which generates Implied Debt Service Coverage Ratio of 1.60 to
1.00, calculated in accordance with the worksheet which is to be annexed hereto.
EB-8
EXHIBIT C TO LOAN AGREEMENT
NOTE
PROMISSORY NOTE
$__0,000,000.00 January __, 2004
19. Promise To Pay.
FOR VALUE RECEIVED, CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a
Delaware limited partnership having an address at 00 Xxxxx Xxxxxx Xxxxxx, Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter, the "Borrower") promises to pay to the
order of FLEET NATIONAL BANK, a national banking association having an address
at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter, a
"Lender"), the principal sum of ______ MILLION DOLLARS ($____,000,000.00), or so
much thereof as may be advanced by or on behalf of Lender, with interest
thereon, or on the amount thereof from time to time outstanding, to be computed,
as hereinafter provided, on each advance from the date of its disbursement until
such principal sum shall be fully paid. Interest and principal shall be payable
in installments as set forth in the Loan Agreement (as defined below). The total
principal sum, or the amount thereof outstanding, together with any accrued but
unpaid interest, shall be due and payable in full on January __, 2007
(hereinafter, the "Maturity Date"), which term is further defined in, and is
subject to extension and/or acceleration in accordance with, the Loan Agreement
pursuant to which this Note has been issued.
20. Loan Agreement.
This Note is issued pursuant to the terms, provisions and conditions of
an agreement captioned "Loan Agreement" (hereinafter, as the same may be
modified, amended or restated from time to time, the "Loan Agreement") dated as
of even date among Borrower, Lender, and the other financial institutions named
therein (the Lender and such other institutions, the "Lenders") and Fleet
National Bank as Agent (hereinafter, the "Agent") and evidences the Loan and
Loan Advances made by or on behalf of the Lender pursuant thereto. Capitalized
terms used herein which are not otherwise specifically defined shall have the
same meaning herein as in the Loan Agreement. This Note is one of several Notes
executed and delivered by the Borrower to the Lenders in accordance with the
terms and provisions of the Loan Agreement.
21. Acceleration; Event of Default.
At the option of the Agent, subject to the terms of the Loan Agreement,
this Note and the indebtedness evidenced hereby shall become immediately due and
payable without further notice or demand, and notwithstanding any prior waiver
of any breach or default, or other indulgence, upon the occurrence of an Event
of Default. Upon the occurrence and during the continuance of an Event of
Default, Agent shall have, in addition to any rights and remedies contained
herein, any and all rights and remedies set forth in the Loan Agreement or any
other Loan Document.
22. Certain Waivers, Consents and Agreements.
Each and every party liable hereon, or for the indebtedness evidenced
hereby, whether as maker, endorser, guarantor, surety or otherwise hereby: (a)
waives presentment, demand, protest, suretyship defenses and defenses in the
nature thereof; (b) waives any defenses based upon, and
EC-1
specifically assents to, any and all extensions and postponements of the time
for payment, changes in terms and conditions and all other indulgences and
forbearances which may be granted by the Agent or the holder to any party now or
hereafter liable hereunder or for the indebtedness evidenced hereby; (c) agrees
to any substitution, exchange, release, surrender or other delivery of any
security or collateral now or hereafter held hereunder or in connection with the
Loan Agreement, or any of the other Loan Documents, and to the addition or
release of any other party or person primarily or secondarily liable; (d) agrees
that if any security or collateral given to secure this Note or the indebtedness
evidenced hereby or to secure any of the obligations set forth or referred to in
the Loan Agreement, or any of the other Loan Documents, shall be found to be
unenforceable in full or to any extent, or if Agent or any other party shall
fail to duly perfect or protect such collateral, the same shall not relieve or
release any party liable hereon or thereon nor vitiate any other security or
collateral given for any obligations evidenced hereby or thereby; (e) agrees to
pay all costs and expenses actually incurred by Agent and Lenders or any other
holder of this Note in connection with the indebtedness evidenced hereby
pursuant to the Loan Agreement, including, without limitation, all reasonable
attorneys' fees and costs, for the implementation of the Loan, the collection of
the indebtedness evidenced hereby and the enforcement of rights and remedies
hereunder or under the other Loan Documents, whether or not suit is instituted;
and (f) consents to all of the terms and conditions contained in this Note, the
Loan Agreement, the Mortgage, the Assignment of Leases and Rents, and all other
instruments now or hereafter executed evidencing or governing all or any portion
of the security or collateral for this Note and for such Loan Agreement, or any
one or more of the other Loan Documents.
23. Delay Not A Bar.
No delay or omission on the part of the Agent or the holder in
exercising any right hereunder or any right under any instrument or agreement
now or hereafter executed in connection herewith, or any agreement or instrument
which is given or may be given to secure the indebtedness evidenced hereby or by
the Loan Agreement, or any other agreement now or hereafter executed in
connection herewith or therewith shall operate as a waiver of any such right or
of any other right of such holder, nor shall any delay, omission or waiver on
any one occasion be deemed to be a bar to or waiver of the same or of any other
right on any future occasion.
24. Partial Invalidity.
The invalidity or unenforceability of any provision hereof, of the Loan
Agreement, of the other Loan Documents, or of any other instrument, agreement or
document now or hereafter executed in connection with the Loan made pursuant
hereto and thereto shall not impair or vitiate any other provision of any of
such instruments, agreements and documents, all of which provisions shall be
enforceable to the fullest extent now or hereafter permitted by law.
25. Compliance With Usury Laws.
All agreements among Borrower, Guarantor, Agent and Lenders are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to Agent or Lenders for
the use or the forbearance of the indebtedness evidenced hereby exceed the
maximum permissible under applicable law. As used herein, the term "applicable
law", shall mean the law in effect as of the date hereof, provided, however,
that in the event there is a change in the law which results in a higher
permissible rate of interest, then this Note shall be governed by such new law
as of its effective date. In this regard, it is expressly agreed that it is the
intent of Borrower, Agent and Lenders in the execution, delivery and acceptance
of this Note to contract in strict compliance with
EC-2
the laws of the Commonwealth of Massachusetts from time to time in effect. If,
under or from any circumstances whatsoever, fulfillment of any provision hereof
or of any of the Loan Documents or the Security Documents at the time
performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by applicable law, then the obligation to be fulfilled
shall automatically be reduced to the limit of such validity, and if under or
from any circumstances whatsoever Agent or Lenders should ever receive as
interest an amount which would exceed the highest lawful rate, such amount which
would be excessive interest shall be applied to the reduction of the principal
balance evidenced hereby and not to the payment of interest. This provision
shall control every other provision of all agreements among Borrower, the
Guarantor, Agent and Lenders.
26. Use of Proceeds.
All proceeds of the Loan shall be used solely for the purposes more
particularly provided for and limited by the Loan Agreement.
27. Security.
This Note is secured by the Collateral as set forth in the Loan
Agreement. The Collateral for this Note may be held by the Agent, on behalf of
the Lender and the other Lenders.
28. Notices.
Any notices given with respect to this Note shall be given in the
manner provided for in the Loan Agreement.
29. Governing Law and Consent to Jurisdiction.
29.1 Substantial Relationship. It is understood and agreed that all of
the Loan Documents were delivered in the Commonwealth of Massachusetts, which
Commonwealth the parties agree has a substantial relationship to the parties and
to the underlying transactions embodied by the Loan Documents.
29.2 Place of Delivery. Borrower agrees to furnish to Lender at
Lender's office in Boston, Massachusetts, all further instruments,
certifications and documents to be furnished hereunder, if any.
29.3 Governing Law. This Note and each of the other Loan Documents,
except as otherwise provided in Section 11.4, shall in all respects be governed,
construed, applied and enforced in accordance with the internal laws of the
Commonwealth of Massachusetts without regard to principles of conflicts of law,
except insofar as formation of the Borrower under Delaware law requires Delaware
law to apply with respect to matters of authorization to enter into the
transaction contemplated by this Note.
29.4 Exceptions. Notwithstanding the foregoing choice of law:
(a) the procedures governing the enforcement
by Agent and each of the Lenders of its foreclosure
and other remedies against Borrower under the
Security Documents and under the other Loan Documents
with respect to each Collateral Property, including
by way of illustration, but not in limitation,
actions for foreclosure, for injunctive relief or for
the appointment of a receiver, shall be governed by
the laws of the State in which such
EC-3
Collateral Property is located;
(b) Agent and each of the Lenders shall
comply with the applicable law of the State in which
such Collateral Property is located to the extent
required by the law of such jurisdiction in
connection with the foreclosure of the security
interests and liens created under the Security
Documents and the other Loan Documents with respect
to each Collateral Property or other assets situated
in such State; and
(c) provisions of Federal law and the law of
such State shall apply in defining the terms
Hazardous Materials, Environmental Legal Requirements
and Legal Requirements applicable to each Collateral
Property as such terms are used in the Loan
Agreement, the Environmental Indemnity and the other
Loan Documents.
Nothing contained herein or any other provisions of the Loan Documents
shall be construed to provide that the substantive laws of any other
State shall apply to any parties' rights and obligations under any of
the Loan Documents, which, except as expressly provided in clauses (A),
(B) and (C) of this Section 11.4, are and shall continue to be governed
by the substantive law of Commonwealth of Massachusetts. In addition,
the fact that portions of the Loan Documents may include provisions
drafted to conform to the law of any other State is not intended, nor
shall it be deemed, in any way, to derogate the parties' choice of law
as set forth or referred to in this Note, the Loan Agreement or in the
other Loan Documents. The parties further agree that the Agent may
enforce its rights under the Loan Documents including, but not limited
to, its rights to xxx the Borrower or to collect any outstanding
indebtedness in accordance with applicable law
29.5 Consent to Jurisdiction. THE BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN THE LOAN AGREEMENT. THE BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
30. Waiver of Jury Trial.
BORROWER, AGENT AND LENDERS MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY OTHER
LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF AGENT OR ANY LENDER RELATING TO THE
ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT
NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY
LAW, BORROWER HEREBY
EC-4
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDER TO
ACCEPT THIS NOTE AND MAKE THE LOAN.
31. No Oral Change.
This Note and the other Loan Documents may only be amended, terminated,
extended or otherwise modified by a writing signed by the party against which
enforcement is sought in accordance with the terms and conditions of the Loan
Agreement. In no event shall any oral agreements, promises, actions, inactions,
knowledge, course of conduct, course of dealing, or the like be effective to
amend, terminate, extend or otherwise modify this Note or any of the other Loan
Documents.
32. Rights of the Agent and Holder.
This Note, and the rights and remedies provided for herein, may be
enforced by Agent, the holder, or any subsequent holder hereof. Wherever the
context permits, each reference to the term "holder" herein shall mean and refer
to Agent, the holder, or the then subsequent holder of this Note.
33. Right to Pledge.
Lender may at any time pledge all or any portion of its rights under
the Loan Documents including any portion of this Note to any of the twelve (12)
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341. No such pledge or enforcement thereof shall release Lender
from its obligations under any of the Loan Documents.
34. Setoff.
The terms and provisions of Article 12 of the Loan Agreement are
incorporated herein by reference.
[Remainder of page left intentionally blank]
EC-5
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed
as of the date set forth above as a sealed instrument.
Witness: BORROWER:
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.
By: Cedar Shopping Centers, Inc., Its General Partner
_________________ By: ______________________
Name: ______________________
Title: ______________________
EC-6
EXHIBIT D TO LOAN AGREEMENT
AUTHORIZED REPRESENTATIVES
1. Xxx X. Xxxxxx, President of Cedar Shopping Centers, Inc.
2. Xxxxxx X. Xxxxxx, Vice President of Cedar Shopping Centers, Inc.
3. Xxxxxx X. X'Xxxxxx, Chief Financial Officer of Cedar Shopping Centers, Inc.
ED-1
EXHIBIT E TO LOAN AGREEMENT
REQUIRED PROPERTY, HAZARD AND OTHER INSURANCE
Borrower or the applicable Loan Party shall at all times provide and
maintain the following insurance coverages with respect to each Collateral
Property and the Collateral issued by companies qualified to do business in the
applicable jurisdictions where the Collateral Property is located, having a
Best's Rating of not less than A-VIII and otherwise acceptable to Administrative
Agent in its sole reasonable discretion:
(i) physical insurance on an all-risk basis without exception
(including, without limitation, flood required if property is in a
"Special Flood Hazard Area" A or V, vandalism and malicious mischief,
earthquake, collapse, boiler explosion, sprinkler coverage, mold
infestation, cost of demolition, increased costs of construction and
the value of the undamaged portion of the building and soft costs
coverage) covering all the real estate, fixtures and personal property
to the extent of the full insurable value thereof, on a builder's risk
non-reporting form prior to completion and occupancy to Occupy
Endorsement, having replacement cost and agreed amount endorsements
(with deductibles not in excess of insurable value);
(ii) rent loss or business interruption insurance in an amount
equal to one year's projected rentals or gross revenues;
(iii) public liability insurance, with underlying and umbrella
coverages totaling not less than $2,000,000.00 per occurrence and
$10,000,000.00 in the aggregate or such other amounts as may be
determined by Administrative Agent from time to time;
(iv) automobile liability insurance (including non-owned
automobile) with a coverage of $1, 000, 000 per occurrence during
construction;
(v) worker's compensation, employer's liability and other
insurance required by law;
(vi) such other insurance coverages in such amounts as
Administrative Agent may request consistent with the customary
practices of prudent developers and owners of similar properties.
An actual insurance policy or certified copy thereof, or a binder, certificate
of insurance, or other evidence of property coverage in the form of Xxxxx 27
(Evidence of Property Coverage), Xxxxx 25 (Certificate of Insurance), or a
30-day binder in form acceptable to Administrative Agent with an unconditional
undertaking to deliver the policy or a certified copy within thirty (30) days,
shall be delivered at closing of the Loan and prior to the first Loan Advance.
Flood insurance shall be provided if the property or the collateral is
located in a flood zone, flood risk or flood hazard area as designated pursuant
to the Federal Flood Disaster Protection Act of 1973, as amended, and the
Regulations thereunder, or if otherwise reasonably required by Administrative
Agent.
Administrative Agent, on behalf of the Lenders, shall be named as first
mortgagee on policies of all-risk-type insurance on the Collateral Property, as
loss payee on the Collateral and its contents, and as first mortgagee on
rent-loss or business interruption coverages related thereto.
EE-1
Except with respect to public liability insurance, as to which
Administrative Agent, on behalf of the Lenders, shall be named as an additional
insured with respect to the Collateral Property or the Collateral, all other
required insurance coverages shall have a so-called "Mortgagee's endorsement" or
"Lenders' loss-payable endorsement" which shall provide in substance as follows:
A. Subject to the terms of this Agreement, loss or damage, if
any, under the policy shall be paid to Administrative Agent and its
successors and assigns in whatever form or capacity its interest may
appear and whether said interest be vested in said Administrative Agent
in its individual or in its disclosed or undisclosed fiduciary or
representative capacity, or otherwise, or vested in a nominee or
trustee of said Administrative Agent.
B. The insurance under the policy, or under any rider or
endorsement attached thereto, as to the interest only of Administrative
Agent, its successors and assigns, shall not be invalidated nor
suspended:
(a) by any error, omission or change respecting the
ownership, description, possession or location of the subject
of the insurance or the interests therein or the title
thereto; or
(b) by the commencement of foreclosure or similar
proceedings or the giving of notice of sale of any of the
property covered by the policy by virtue of any mortgage, deed
of trust, or security interest; or
(c) by any breach of warranty, act, omission, neglect, or
noncompliance with any provisions of the policy by the named
insured, or any one else, whether before or after a loss,
which under the provisions of the policy of insurance, would
invalidate or suspend the insurance as to the named insured,
excluding, however, any acts or omissions of Administrative
Agent while exercising active control and management of the
insured property.
C. Insurer shall provide Administrative Agent and each of the
Lenders with not less than thirty (30) days, prior written notice of
cancellation of the policy (for non- payment or any other reason) or of
the non-renewal thereof.
D. The insurer reserves the right to cancel the policy at any
time, but only as provided by its terms. However, in such case this
policy shall continue in force for the benefit of Administrative Agent
for thirty (30) days after written notice of such cancel lation is
received by Administrative Agent and shall then cease.
E. Should legal title to and beneficial ownership of any of
the property covered under the policy become vested in Administrative
Agent or its agents, successors or assigns, insurance under the policy
shall continue for the term thereof for the benefit of Administrative
Agent.
F. All notices herein provided to be given by the insurer to
Administrative Agent in connection with this policy and Administrative
Agent's loss payable endorsement shall be mailed to or delivered to
Administrative Agent by certified or registered mail, return receipt
requested, as follows:
EE-2
Fleet National Xxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Mail Code CT4M10J
Attention: Central Insurance Unit
EE-3
EXHIBIT F TO LOAN AGREEMENT
OWNERSHIP INTERESTS AND TAXPAYER IDENTIFICATION NUMBERS
-------------------------------------------------------------------------------------------------------------
TAX
IDENTIFICATION
ENTITY NAME PARTNERS/MEMBERS NUMBER
-------------------------------------------------------------------------------------------------------------
Cedar-South Philadelphia I, Cedar-South Philadelphia II, 00-0000000
LLC LLC (100%)
-------------------------------------------------------------------------------------------------------------
Cedar-South Philadelphia II, Cedar Shopping Centers 00-0000000
LLC Partnership, L.P. (100%)
-------------------------------------------------------------------------------------------------------------
Cedar-Riverview LP Cedar-Riverview LLC (1%; 00-0000000
general partner); CSC-
Riverview LLC (99%; limited
partner)
-------------------------------------------------------------------------------------------------------------
Cedar-Riverview LLC Cedar Shopping Centers 00-0000000
Partnership, L.P. (100%)
-------------------------------------------------------------------------------------------------------------
CSC-Riverview LLC Cedar Shopping Centers 00-0000000
Partnership, L.P. (100%)
-------------------------------------------------------------------------------------------------------------
Cedar Lender LLC Cedar Shopping Centers 00-0000000
Partnership, L.P. (100%)
-------------------------------------------------------------------------------------------------------------
Delaware 1851 Associates, LP Cedar-Columbus LLC (1%; 00-0000000
general partner); CSC-
Columbus LLC (99%; limited
partner)
-------------------------------------------------------------------------------------------------------------
Cedar-Columbus LLC Cedar Shopping Centers 00-0000000
Partnership, L.P. (100%)
-------------------------------------------------------------------------------------------------------------
Cedar Sunset Crossing, LLC Cedar Shopping Centers 00-0000000
Partnership, L.P. (100%)
-------------------------------------------------------------------------------------------------------------
EF-1
-------------------------------------------------------------------------------------------------------------
CSC-Columbus LLC Cedar Shopping Centers 00-0000000
Partnership, L.P. (100%)
-------------------------------------------------------------------------------------------------------------
EG-1
EXHIBIT G TO LOAN AGREEMENT
COMPLIANCE CERTIFICATE
TO: The Administrative Agent and Lenders party to the Loan Agreement
Described Below
This Compliance Certificate is furnished pursuant to that certain Loan
Agreement dated as of January 30, 2004 (the "Loan Agreement"), among Cedar
Shopping Centers Partnership, L.P. ("Borrower"), Fleet National Bank, as
Administrative Agent and the Lenders identified therein. Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the
meanings ascribed thereto in the Loan Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected/authorized ______________________ of Cedar
Shopping Centers, Inc., general partner of the Borrower.
2. I have reviewed the terms of the Loan Agreement and I have made, or
have caused to be made under my supervision, a review of the transactions and
conditions of the Borrower during the accounting period covered by the attached
financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
an Event of Default or an event which, with notice or the passage of time or
both, would constitute an Event of Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below.
4. Schedule 1 attached hereto sets forth financial data and
computations at and for the period ending __________ evidencing the Borrower's
compliance with certain covenants of the Loan Agreement, except as set forth
below, all of which data and computations are true, complete and correct in all
material respects to my knowledge.
Described below are the exceptions, if any, to paragraphs 3 and 4,
listing the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
______________________________________________________________________________
______________________________________________________________________________
EG-2
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this ___ day of__________, 200___.
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Shopping Centers, Inc.,
its general partner
By: _______________________
Name: _______________________
Title: _______________________
EG-3
Schedule 1 to Compliance Certificate
-----------------------------------------------------------------------------------------------------------------------
Covenant Requirement Actual
-----------------------------------------------------------------------------------------------------------------------
Interest Expense Coverage Not less than 2.00:1
-----------------------------------------------------------------------------------------------------------------------
Leverage Ratio Less than 70%
-----------------------------------------------------------------------------------------------------------------------
Fixed Charge Ratio Not less than 1.50:1.
-----------------------------------------------------------------------------------------------------------------------
Borrower's Net Worth Not less than 85% of the
Borrower's Net Worth as of December 31,
2003, plus 85% of cumulative net cash
proceeds, as set forth in the Loan
Agreement
-----------------------------------------------------------------------------------------------------------------------
Occupancy Ratio for Not less than 85% for the
Borrowing Base Properties aggregate of all Borrowing
Base Properties, and not less
than 80% for each individual
Borrowing Base Property
-----------------------------------------------------------------------------------------------------------------------
Aggregate Pro Rata amount Less than 30% of the
of the Variable Rate aggregate Pro Rata amount of
Indebtedness of the the total Debt of the
Consolidated CSC Entities Consolidated CSC Entities
and the Unconsolidated CSC and the Unconsolidated CSC
Entities Entities
-----------------------------------------------------------------------------------------------------------------------
EG-4
EXHIBIT H TO LOAN AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated: as of _______________
Reference is made to the Loan Agreement, dated as of January 30, 2004
(as amended and in effect from time to time, the "Loan Agreement"), by and among
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a Delaware limited partnership having
an address at c/o Cedar Shopping Centers, Inc., 00 Xxxxx Xxxxxx Xxxxxx, Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter, the "Borrower", which Borrower is not a
party to this Mortgage), Fleet National Bank and the other lending institutions
which become parties to the Loan Agreement (Fleet National Bank and the other
lending institutions which become parties to the Loan Agreement are collectively
referred to as the "Lenders" and individually as the "Lender"), and Fleet
National Bank, as Agent (hereinafter, the "Agent"). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Loan Agreement.
___________________ (the "Assignor") and ________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, a __________ (____%)
interest in and to all of the Assignor's rights and obligations under the Loan
Documents as of the Effective Date (as herein after defined). The amount of the
Assignor's Commitment being purchased by and assigned to the Assignee as of the
Effective Date is $________________
2. The Assignor (i) represents that as of the date hereof, its
Commitment Percentage (without giving effect to assignments thereof which have
not yet become effective) is ________ and the outstanding balance of the Loan
owing to the Assignor under the Note held by the Assignor (unreduced by any
assignments thereof which have not yet become effective) is $_______________;
(ii) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any
other instrument or document furnished pursuant thereto, other than that the
Assignor is the legal and beneficial owner of the interest being assigned by it
hereunder, that such interest is free and clear of any adverse claim, that it is
legally authorized to enter into this Assignment and Acceptance, and it has no
knowledge of the occurrence of an Event of Default under the Loan Agreement;
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, or any other person which
may be primarily or secondarily liable in respect of any of the Obligations or
any of their obligations, or the performance or observance by the Borrower, or
any other person prima rily or secondarily liable in respect of any of the
obligations under any of the Loan Documents or any other instrument or document
delivered or executed pursuant thereto; and (iv) requests that the Agent reflect
on the Register maintained by the Agent the assignment to the Assignee of that
portion of the Commitment as set forth herein.
EH-1
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Loan Documents, together with copies of the most
recent financial statements delivered pursuant to the Loan Agreement and such
other documents and information as the Assignee has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (iii) agrees that it will, independently and without reliance upon
the Assignor 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 Loan Documents; (iv) confirms that it
is an Eligible Assignee; (v) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers as are expressly
delegated to or conferred upon the Assignor as agent by the terms of the Loan
Documents together with such other powers as are reasonably incidental
thereto;(vi) agrees that it will perform all the obligations which by the terms
of the Loan Documents are required to be performed by the Assignee as a Lender
in accordance with the terms of the Loan Documents; and (vi) specifies as to its
address for notices the office set forth beneath its name on the signature page
hereof.
4. The effective date for this Assignment and Acceptance shall be
______________ , ______(the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance and
recording in the Register by the Agent.
5. Upon such acceptance and recording, from and after the Effective
Date, (i) the Assignee shall be a party to the Loan Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder, and (ii) the Assignor shall, with respect to that portion of
its interest under the Loan Documents assigned hereunder relinquish its future
rights and be released from its future obligations under the Loan Documents but
shall remain liable for all obligations which arose prior to such assignment.
6. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the rights and obligations
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 for periods prior to the Effective Date by the Agent or
with respect to the making of this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS.
EH-2
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer thereunto duly authorized, as of the date first above
written.
______________________________
"Assignor"
By:___________________________
Title:________________________
______________________________
"Assignee"
By:___________________________
Title:________________________
Notice Address: ______________
______________
______________
Telephone No.: _______________
Telecopier No.: ______________
EH-3
Consented to in accordance with the terms of the Loan Agreement as of this ___
day of ______________, 20__.
AGENT: FLEET NATIONAL BANK
By: ______________________________
Name: ____________________________
Title: ___________________________
BORROWER: CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.
By: Cedar Shopping Centers, Inc., general partner
By: _______________________________
Name: _______________________________
Title: _______________________________
EH-4
EXHIBIT I TO LOAN AGREEMENT
LENDERS' COMMITMENT
--------------------------------------------------------------------------------------------------------------
Lender Commitment Amount Commitment Percentage
--------------------------------------------------------------------------------------------------------------
FLEET NATIONAL BANK $19,000,000.00 19%
--------------------------------------------------------------------------------------------------------------
COMMERZBANK AG $19,000,000.00 19%
NEW YORK BRANCH
--------------------------------------------------------------------------------------------------------------
PB CAPITAL $14,000,000.00 14%
CORPORATION
--------------------------------------------------------------------------------------------------------------
MANUFACTURERS AND $14,000,000.00 14%
TRADERS TRUST
COMPANY
--------------------------------------------------------------------------------------------------------------
SOVEREIGN BANK $14,000,000.00 14%
--------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXX BANK, $10,000,000.00 10%
FSB
--------------------------------------------------------------------------------------------------------------
CITIZENS BANK $10,000,000.00 10%
--------------------------------------------------------------------------------------------------------------
EI-1
EXHIBIT J
BORROWING BASE PROPERTIES
--------------------------------------------------------------------------------
Borrowing Base Property Adjusted Appraised Value as of Closing
--------------------------------------------------------------------------------
South Philadelphia Shopping Plaza $36,400,000.00
Philadelphia, Pennsylvania
--------------------------------------------------------------------------------
Riverview Shopping Center $21,900.000.00
Philadelphia, Pennsylvania
--------------------------------------------------------------------------------
Sunset Crossing Shopping Center, Xxxxxxx, $11,250,000.00
Pennsylvania
--------------------------------------------------------------------------------
Columbus Crossing Shopping Center $23,000,000.00
Philadelphia, Pennsylvania
--------------------------------------------------------------------------------
EJ-1
EXHIBIT EC
ESTOPPEL CERTIFICATE
ESTOPPEL CERTIFICATE AND AGREEMENT
WHEREAS, _________________ a _____________ having an address at
_________________ (hereinafter, the "Landlord"), is the owner in fee simple of
that certain parcel of real estate numbered ______________________, and commonly
known as ____________________________, as more particularly described in Exhibit
A annexed hereto (hereinafter, the "Premises");
WHEREAS, the Landlord has leased the Premises to __________________, a
_____________________ having and address at _______________________
(hereinafter, the "Tenant"), pursuant to that certain ground lease dated as of
____________ __, ______ (hereinafter, with any amendments, modifications,
extensions, replacements or renewals, the "Lease"), a copy of which is attached
hereto as Exhibit B and made a part hereof (All capitalized terms used herein
which are not otherwise defined shall have the meaning ascribed to such term
under the Lease);
WHEREAS, Fleet National Bank, a national banking association having an
address at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as agent
(hereinafter, the "Agent") on behalf of itself and certain other lenders
(hereinafter, individually and collectively referred to as the "Lender" or
"Lenders"), has agreed to establish a loan arrangement (hereinafter, the "Loan
Arrangement") with Cedar Shopping Centers Partnership, L.P., a Delaware limited
partnership having an address at c/o Cedar Shopping Centers, Inc., 00 Xxxxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter, the
"Borrower");
WHEREAS, the Tenant has substantial financial dealings with the
Borrower and is affiliated with the Borrower (by ownership and by contractual
relationship and/or other meaningful business relationship), and the extension
of credit and the providing of financial accommodations to the Borrower will
enhance and benefit the business activities and interests of the Tenant;
WHEREAS, as a prior condition to establishing the Loan Arrangement, the
Agent and the Lenders require that, among other collateral to be granted, the
Tenant grant to the Agent, on behalf of the Lenders, a leasehold mortgage in and
to the rights of the Tenant to the Lease and the Premises and a security
interest in other property of the Tenant, said leasehold mortgage and security
interests to be created by the execution and delivery by the Tenant of that
certain Leasehold Mortgage and Security Agreement dated as of January __, 2004
(hereinafter, with any extensions, modifications and amendments, the "Leasehold
Mortgage");
WHEREAS, as a further condition to establishing the Loan Arrangement,
the Agent and
EEC-1
the Lenders require that the Landlord certify, represent, covenant, and agree to
the matters described in this Estoppel Certificate and Agreement (hereinafter,
this "Estoppel Certificate"); and
WHEREAS, it is in the best interest of the Landlord that the Loan
Arrangement be established.
NOW, THEREFORE, in consideration of the foregoing, and upon the request
of the Agent and the Lenders, Landlord and the Tenant hereby make the following
representations and covenants:
1. The Landlord and Tenant represent that:
1.1 the Lease is currently in full force and effect;
1.2 the Lease has not been modified or amended;
1.3 neither the Tenant nor Landlord is in default under the Lease,
nor has any event occurred which is, or solely with the
passage of time would be, an event of default under the Lease;
and
1.4 the term of the Lease commences on ________ __, ____ and
expires on _______ ___, ____.
2. The Landlord represents that all rent presently due under the Lease has
been paid in full, and no additional rent is presently due under the
Lease; and as of the date of this Estoppel Certificate, there are no
other payments due and payable from the Tenant to the Landlord under
the Lease.
3. The Landlord represents and warrants that its fee interest in the
Premises is unencumbered, except as set forth in Exhibit C attached
hereto.
4. The Landlord acknowledges and agrees that the interest of the Landlord
in and to the Premises and the Lease shall not be encumbered beyond
that which such interests are encumbered as of the date hereof in any
manner whatsoever without the prior written consent of the Agent.
5. The Landlord hereby:
5.1 acknowledges and consents to the granting of the Leasehold
Mortgage, and acknowledges and recognizes that the Agent, as
the mortgagee of the leasehold interest in the Lease, is
entitled to the benefit of all of the rights and privileges
provided to a leasehold mortgagee under the Lease;
EEC-2
5.2 recognizes the rights of the Agent, and any successor,
assignee or transferee of the Agent, in and to the Premises as
described in the Leasehold Mortgage, and consents to the
exercise by the Agent of its rights under the Leasehold
Mortgage upon the occurrence of an event of default by the
Tenant under the Leasehold Mortgage;
5.3 recognizes the right of the Agent, and any successor, assignee
or transferee of the Agent, to exercise any options,
including, without limitation, any renewal or extension
options or rights of first refusal provided to the Tenant
under the Lease, and agrees that if, prior to the exercise by
the Agent of its rights under the Leasehold Mortgage, the
Tenant fails to exercise within the applicable time periods
set forth in the Lease any option including, without
limitation, any renewal or extension option or right of first
refusal, the Landlord shall notify the Agent as
attorney-in-fact for the Tenant and the Agent shall be
authorized, at its option, to exercise any option or right
within sixty (60) days of receipt of such notice and the
Landlord shall recognize said exercise of any option or right
by the Agent;
5.4 agrees that the interest of the Landlord in and to the
Premises and the Lease shall not be transferred or assigned
unless the transferee or assignee provides a written agreement
to the Agent that (i) said transfer or assignment is subject
to the terms and conditions of the Lease, and this Estoppel
Certificate, and (ii) the transferee or assignee assumes the
obligations of the Landlord thereunder and hereunder;
5.5 acknowledges that notwithstanding the occurrence of any event
of default under the Lease, the Landlord will not terminate,
or allow or suffer the termination of, the Lease, without the
prior written consent of Agent; and
5.6 agrees that notwithstanding the terms of the Lease, any and
all insurance proceeds or eminent domain or condemnation
awards or proceeds with respect to the Premises shall be
subject to the approval of the Agent and shall be payable to
the Agent, or otherwise made available for the repair or
restoration of the Premises, all in accordance with the terms
and provisions of the Leasehold Mortgage.
6. Upon notice to the Landlord by the Agent of the exercise of Agent's
rights against Tenant (whether pursuant to the Leasehold Mortgage or
otherwise) the Landlord shall:
6.1 not interfere with any enforcement by the Agent of the Agent's
rights in and to the personal property of the Tenant located
on the Premises;
EEC-3
6.2 not distrain nor assert any claim against the personal
property of Tenant;
6.3 permit the Agent to enter upon the Premises and remove the
personal property from the Premises, provided, the Agent
agrees that it shall promptly repair, at the Agent's expense,
any physical damage to the Premises caused by said removal;
and
6.4 not interfere with the disposal of the personal property by
sale (by public auction or otherwise) conducted on the
Premises.
7. Until such time as the Agent executes and records a discharge of the
Leasehold Mortgage:
7.1 no modifications, extensions, renewals or surrender of the
Lease shall be effective without the prior written consent of
the Agent;
7.2 the Landlord shall not convey the Premises to the Tenant
without the prior written consent of the Agent;
7.3 any and all rights, easements and development agreements to be
granted by, or entered into with, the Landlord relative to the
Premises shall not be granted or entered into without the
prior written consent of the Agent; and
7.4 the Landlord shall waive any provisions of the Lease which
provide that Tenant shall, upon request of the Landlord,
subordinate the Lease to any lien of any present or future
mortgages granted by the Landlord.
8. In the event of any default by the Tenant under the Lease, the Landlord
shall:
8.1 cause a copy of any notice of default by the Tenant under
the Lease or notice of termination of the Lease to be sent
to the Agent, and the Landlord agrees that any such notice
of default or termination shall not be deemed duly given and
effective unless and until a copy of such notice is actually
received by the Agent; and
8.2 permit the Agent to cure or cause to be cured such default
within thirty (30) days of the receipt of notice from the
Landlord of Tenant's default if such default may be cured by
the payment of money, or, otherwise, within sixty (60) days
of the receipt of such notice.
9. If the Agent fails to cause any default of the Tenant under the Lease
to be cured, or such default is incapable of being cured, during the
applicable time period, the Landlord shall further refrain from
exercising its rights and/or remedies under the Lease and shall not
EEC-4
terminate the Lease if the Agent has provided the Landlord with written
notice that either:
9.1 the Agent intends to cause the default to be cured and the
Agent is diligently pursuing the cure of such default; or
9.2 the Agent has or intends to make demand upon Tenant for
payment or performance under any agreement between Tenant and
the Agent pertaining to the Loan Arrangement and the Agent
diligently pursues the exercise of its rights thereunder.
10. Any successor, assignee or transferee of the Agent shall have thirty
(30) days from the consummation of such succession, assignment, or
transfer within which to cure or cause to be cured any default of the
Tenant under the Lease.
11. Any default of the Tenant under the Lease which is cured or which is
caused to be cured by the Agent within the applicable cure period,
shall be deemed to have been waived by the Landlord and the Landlord
shall not be entitled to exercise any rights or remedies granted to
Landlord under the Lease on account of the occurrence of such default.
12. In the event any default of Tenant under the Lease is incapable of
being cured, the Landlord shall, upon the request of the Agent, execute
a new lease with the Agent upon the same terms and conditions (but
providing for the revival of any rights and/or options which may have
lapsed due to the Tenant's action or inaction under the Lease) as the
Lease and such new lease shall have the same relative priority in
right, title and interest in and to the Premises as the Lease.
13. The Agent shall not become liable for the obligations of the Tenant
under the Lease unless and until the Agent obtains possession of the
Premises and expressly agrees to assume all such obligations, and then,
only for the period during which the Agent is in possession of the
Premises. Upon the sale, transfer or assignment by the Agent of its
interest in the Lease and/or the Premises, the Agent shall have no
further liability to the Landlord.
14. Whether or not the Agent assumes the obligations of Tenant pursuant to
Section 13, above, the Agent shall have no liability to the Landlord
for any obligations of Tenant under the Lease arising prior to such
assumption by the Agent.
15. All notices under this Estoppel Certificate shall be sent certified
mail, return receipt requested as follows:
If to Landlord:
_________________________
EEC-5
_________________________
_________________________
Attention: ______________
With a copy to:
_________________________
_________________________
_________________________
Attention: ______________
If to the Tenant:
_________________________
_________________________
_________________________
Attention: ______________
With a copy to:
_________________________
_________________________
_________________________
Attention: ______________
If to the Agent:
Fleet National Bank
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Director
With a copy to:
Xxxxxx & Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esquire
All notices hereunder shall be deemed to have been received three (3)
days after the date of mailing in accordance with the above described
requirements.
16. Upon the request of the Agent, the Landlord will provide the Agent with
estoppel
EEC-6
certificates, in form acceptable to Agent, with respect to the
status of the Lease and the compliance by the Landlord and/or Tenant
with regard to specific terms, provisions and conditions set forth
thereunder.
17. Each party hereto agrees to execute such documents as may be reasonably
required from time to time to evidence or effectuate the terms and
provisions hereof.
18. This Estoppel Certificate is binding on, and shall inure to the benefit
of, the Tenant, the Agent, and the Landlord, and each of their
successor and assigns.
[The balance of this page is intentionally left blank]
EEC-7
It is intended that this Estoppel Certificate take effect as a sealed
instrument as of this ___ day of ____________, 2003.
LANDLORD:
_________________________
By: ______________________________
Name: ______________________________
Title: ______________________________
TENANT:
__________________________
By: ______________________________
Name: ______________________________
Title: ______________________________
AGENT:
FLEET NATIONAL BANK
By: ______________________________
Name: ______________________________
Title: ______________________________
EEC-8
EXHIBIT A
Premises
(See Attached)
EEC-9
EXHIBIT B
Lease
(See Attached)
EEC-10
EXHIBIT C
Encumbrances
EEC-11
EXHIBIT TP
THEATER PARCEL
ALL THAT CERTAIN lot or piece of ground, with the buildings and improvements
thereon erected, SITUATE in the 1st Xxxx, City of Philadelphia, Commonwealth of
Pennsylvania, being bounded and described according to a Plan of Survey,
prepared by Xxxx X. Xxxxxxx, Professional Land Surveyor, dated February 19,
1997, last revised December 12, 2003, as follows:
BEGINNING at the intersection of the Northeast side of Xxxxxxxxx Street (50 feet
wide) with the Southeast side of Water Street (50 feet wide); thence along the
same North 14 degrees 41 minutes 39 seconds East 331.03 feet to a point in line
of Parcel "B" on said Plan; thence along the same the following two (2) courses
and distances (1) South 63 degrees 36 minutes 02 seconds East passing partly
through a party wall 61.271 feet to a point (2) North 14 degrees 41 minutes 39
seconds East 80.761 feet to a point on the Southwest side of Xxxx Street (80
feet wide); thence along the same South 75 degrees 13 minutes 21 seconds East
195.00 feet to a point on the Northwest side of Xxxxxxxxxxx Xxxxxxxx Boulevard
(formerly Delaware Avenue 150 feet wide); thence along the same South 14 degrees
41 minutes 39 seconds West 399.520 feet to a point on the previously mentioned
Northeast side of Xxxxxxxxx Street (50 feet wide); thence along the same North
75 degrees 13 minutes 21 seconds West 255.000 feet to the first mentioned point
and place of beginning.
CONTAINING 97,401 square feet or 2.236 acres.
BEING known as #0000 Xxxxx Xxxxxxxxxxx Xxxxxxxx Xxxxxxxxx (formerly Delaware
Avenue).
BEING Registry #9 S 16-93, 94.
ETP-1
SCHEDULE 1.3
1. $17,000,000.00 from Cedar Shopping Centers Partnership, L.P., to Fleet
National Bank to be applied against the existing $17,000,000.00 loan of
Fleet National Bank, as agent under that certain Loan Agreement dated
December 23, 2003, to Cedar Shopping Centers Partnership, L.P.
2. $1,000,000.00 to be advanced to the Borrower pay to certain closing and
transactional costs and expenses, and other working capital needs of
the Borrower.
S-1
SCHEDULE 6.14.2(i)
--------------------------------------------------------------------------------
BORROWING BASE PROPERTY FEE OR LEASEHOLD ESTATE INTEREST
--------------------------------------------------------------------------------
South Philadelphia Shopping Plaza Leasehold
Philadelphia, Pennsylvania
--------------------------------------------------------------------------------
Riverview Shopping Center Fee and Leasehold
Philadelphia, Pennsylvania
--------------------------------------------------------------------------------
Sunset Crossing Shopping Center Fee
Xxxxxxx, Pennsylvania
--------------------------------------------------------------------------------
Columbus Crossing Shopping Center Fee
Philadelphia, Pennsylvania
--------------------------------------------------------------------------------
RIGHTS OF FIRST REFUSAL
Right of First Refusal, executed on October 31, 2003, and effective as of
November 3, 2003, granted by Cedar-Riverview LP, a Pennsylvania limited
partnership, to Firehouse Realty Corp., a Pennsylvania corporation, Xxxx
Development Associates, Inc., a Pennsylvania corporation, South River View
Plaza, Inc., a Pennsylvania corporation, River View Development Corp., a
Pennsylvania corporation, and Riverview Commons, Inc., a Pennsylvania
corporation.
Right of First Refusal, executed on November 19, 2003, and effective as of
December 9, 2003, granted by Delaware 1851 Associates, LP, a Pennsylvania
limited partnership, to Welsh-Square, Inc., a Pennsylvania corporation,
Indenture of Trust of Xxxx Xxxxxxxxx dated as of June 9, 1998, a Pennsylvania
trust, and Irrevocable Indenture of Trust of Xxxxxx Xxxxxxxxx dated July 13,
1999, a Pennsylvania trust.
S-2
SCHEDULE 6.14.4(ii)
NONE
S-3
SCHEDULE 6.14.4(iii)
NONE
S-4
SCHEDULE 6.14.4(iv)
NONE
S-5
SCHEDULE 6.14.5
-------------------------------------------------------------------------------
AFFILIATED WITH AN AFFILIATE OF A LOAN
GROUND LESSOR(S) PARTY?
-------------------------------------------------------------------------------
SPSP Corporation No
00 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
-------------------------------------------------------------------------------
Passyunk Supermarket, Inc. No
00 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
-------------------------------------------------------------------------------
Twenty Fourth Street Passyunk No
Partners, L.P.
00 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
-------------------------------------------------------------------------------
S-6
