Exhibit 10.1
THIS CREDIT AGREEMENT (this "Agreement") dated as of June 27, 2005 by
and among LEXINGTON CORPORATE PROPERTIES TRUST, a real estate investment trust
formed under the laws of the State of Maryland (the "Trust"), LEPERCQ CORPORATE
INCOME FUND L.P., a limited partnership formed under the laws of the State of
Delaware ("LCIF"), LEPERCQ CORPORATE INCOME FUND II L.P., a limited partnership
formed under the laws of the State of Delaware ("LCIFII") and NET 3 ACQUISITION
L.P., a limited partnership formed under the laws of the State of Delaware ("Net
3"; collectively with the Trust, LCIF and LCIFII, the "Borrowers" and each a
"Borrower"), WACHOVIA CAPITAL MARKETS, LLC, as Lead Arranger (the "Arranger")
and Book Running Manager (the "Book Running Manager"), WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent, KEY BANK, N.A., as Syndication Agent (the "Syndication
Agent"), each of SOVEREIGN BANK and PNC BANK, NATIONAL ASSOCIATION, as
Co-Documentation Agent (each a "Co-Documentation Agent"), and each of the
financial institutions initially a signatory hereto together with their
assignees pursuant to Section 12.5.(d).
WHEREAS, the Agent and the Lenders desire to make available to the
Borrowers a revolving credit facility in the initial amount of $200,000,000,
which will include a $20,000,000 letter of credit subfacility and a $10,000,000
swingline subfacility, on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Additional Costs" has the meaning given that term in Section 4.1.
"Adjusted EBITDA" means, for any given period, (a) the EBITDA of the
Trust and its Subsidiaries determined on a consolidated basis for such period,
minus (b) Capital Reserves for such period.
"Adjusted LIBOR" means, with respect to each Interest Period for any
LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest Period by
(b) a percentage equal to 1 minus the stated maximum rate (stated as a decimal)
of all reserves, if any, required to be maintained with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities") as specified in
Regulation D of the Board of Governors of the Federal Reserve System (or against
any other category of liabilities which includes
deposits by reference to which the interest rate on LIBOR Loans is determined or
any applicable category of extensions of credit or other assets which includes
loans by an office of any Lender outside of the United States of America to
residents of the United States of America). Any change in such maximum rate
shall result in a change in Adjusted LIBOR on the date on which such change in
such maximum rate becomes effective.
"Affiliate" means any Person (other than the Agent or any Lender or any
of their respective affiliates): (a) directly or indirectly controlling,
controlled by, or under common control with, the Trust; (b) directly or
indirectly owning or holding ten percent (10.0%) or more of any Equity Interest
in the Trust; or (c) ten percent (10.0%) or more of whose voting stock or other
Equity Interest is directly or indirectly owned or held by the Trust. For
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by" and "under common control with") means the
possession directly or indirectly of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
voting securities or by contract or otherwise. The Affiliates of a Person shall
include any executive officer or director of such Person. In no event shall the
Agent or any Lender or any of their respective affiliates be deemed to be an
Affiliate.
"Agent" means Wachovia Bank, National Association, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of constitutions,
statutes, laws, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means the percentage rate set forth below
corresponding to the ratio of Total Indebtedness to Capitalized Value as
determined in accordance with Section 9.1. in effect at such time:
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Level Total Indebtedness to Applicable Margin for Applicable Margin for
Capitalized Value LIBOR Loans Base Rate Loans
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1 < 0.40 to 1.00 1.20% 0.0%
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2 > 0.40 to 1.00 and < 0.50 to 1.00 1.35% 0.0%
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3 > 0.50 to 1.00 and < 0.60 to 1.00 1.50% 0.0%
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------------- -------------------------------------- -------------------------- ---------------------------
4 > 0.60 to 1.00 1.70% 0.0%
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The Applicable Margin shall be determined by the Agent from time to time, based
on the ratio of Total Indebtedness to Capitalized Value as set forth in the
Compliance Certificate most recently delivered pursuant to Section 8.3. Any
adjustment to the Applicable Margin shall be effective (a) in the case of a
Compliance Certificate delivered in connection with quarterly financial
statements pursuant to Section 8.1., as of the date 55 days following the end of
the last day of the applicable fiscal quarter covered by such
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Compliance Certificate, (b) in the case of a Compliance Certificate delivered in
connection with annual financial statements pursuant to Section 8.2., as of the
date 100 days following the end of the last day of the applicable fiscal year
covered by such Compliance Certificate, and (c) in the case of any other
Compliance Certificate, as of the date 5 Business Days following the Agent's
request for such Compliance Certificate pursuant to Section 8.3. If the
Borrowers fail to deliver a Compliance Certificate pursuant to Section 8.3., the
Applicable Margin shall equal the percentages corresponding to Level 4 until the
date of the delivery of the required Compliance Certificate. As of the Agreement
Date, and thereafter until changed as provided above, the Applicable Margin
shall be determined based on Level 3.
"Arranger" means Wachovia Capital Markets, LLC, together with its
successors and permitted assigns.
"Assignee" has the meaning given that term in Section 12.5.(d).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent and Borrower
Representative, as applicable, substantially in the form of Exhibit A.
"Base Rate" means the per annum rate of interest equal to the greater
of (a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Lender acting as the Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged by the Lender
acting as the Agent or any other Lender on any extension of credit to any
debtor.
"Base Rate Loan" means a Revolving Loan bearing interest at a rate
based on the Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include a Borrower's successors and permitted assigns.
"Borrower Representative" means the Trust.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Charlotte, North Carolina are authorized or required to
close and (b) with reference to a LIBOR Loan, any such day that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
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"Capital Reserves" means, for any period and with respect to a
Property, an amount equal to (a) $0.05 per square foot times (b) a fraction, the
numerator of which is the number of days in such period and the denominator of
which is 365. If the term Capital Reserves is used without reference to any
specific Property, then the amount shall be determined on an aggregate basis
with respect to all Properties of the Borrower and its Subsidiaries and a
proportionate share of all Properties of all Unconsolidated Affiliates.
"Capitalization Rate" means 8.75%.
"Capitalized Lease Obligation" means an obligation under a lease that
is required to be capitalized for financial reporting purposes in accordance
with GAAP. The amount of a Capitalized Lease Obligation is the capitalized
amount of such obligation as would be required to be reflected on a balance
sheet of the applicable Person prepared in accordance with GAAP as of the
applicable date.
"Capitalized Value" means the sum of all of the following of the
Borrowers and the other Subsidiaries on a consolidated basis determined in
accordance with GAAP applied on a consistent basis: (a) cash and cash
equivalents, plus (b)(i) EBITDA for the period of two fiscal quarters most
recently ended, times (ii) 2, divided by (iii) the Capitalization Rate, plus (c)
the GAAP book value of Properties acquired during the most recent period of two
consecutive fiscal quarters, plus (d) Construction-in-Process (excluding
Construction-in-Process attributable to any Property which is substantially
complete or for which construction commenced more than 18 months from the date
of determination), plus (e) the GAAP book value of Unimproved Land, Mortgage
Receivables and other promissory notes. Notwithstanding the foregoing, the
Capitalized Value attributable to the Ohio Property shall be $40,000,000 so long
as the Ohio Property is leased to Kmart Corp. on the terms contained in that
certain lease agreement entered into in October, 1982 and as in effect on the
Agreement Date. The Trust's pro rata share of assets held by Unconsolidated
Affiliates (excluding assets of the type described in the immediately preceding
clause (a)) will be included in Capitalized Value calculations consistent with
the above described treatment for wholly owned assets. For purposes of
determining Capitalized Value, EBITDA attributable to Mortgage Receivables,
other promissory notes, the Ohio Property and any Property acquired or disposed
of by a Borrower or any other Subsidiary during the immediately preceding period
of two consecutive fiscal quarters shall be excluded. In addition, for purposes
of this definition, with respect to a Property leased by a Borrower or any
Subsidiary pursuant to a Ground Lease (i) EBITDA attributable to such Property
shall be multiplied by the applicable Ground Lease Discount when including such
EBITDA in the preceding clause (b) and (ii) if such Property was acquired during
the two most recent fiscal quarters, then the GAAP book value of such Property
shall be multiplied by the applicable Ground Lease Discount when including such
book value in the preceding clause (c).
"Cash Equivalents" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not
more than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered
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commercial bank of recognized standing, or a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country,
acting through a branch or agency, which bank has capital and unimpaired surplus
in excess of $500,000,000 and which bank or its holding company has a short-term
commercial paper rating of at least A-2 or the equivalent by S&P or at least P-2
or the equivalent by Xxxxx'x; (c) reverse repurchase agreements with terms of
not more than seven days from the date acquired, for securities of the type
described in clause (a) above and entered into only with commercial banks having
the qualifications described in clause (b) above; (d) commercial paper issued by
any Person incorporated under the laws of the United States of America or any
State thereof and rated at least A-2 or the equivalent thereof by S&P or at
least P-2 or the equivalent thereof by Xxxxx'x, in each case with maturities of
not more than one year from the date acquired; and (e) investments in money
market funds registered under the Investment Company Act of 1940, as amended,
which have net assets of at least $500,000,000 and at least 85% of whose assets
consist of securities and other obligations of the type described in clauses (a)
through (d) above.
"Collateral Account" means a special non-interest bearing deposit
account or securities account maintained by, or on behalf of, the Agent and
under its sole dominion and control.
"Commitment" means, as to each Lender (other than the Swingline
Lender), such Lender's obligation (a) to make Revolving Loans pursuant to
Section 2.1., (b) to issue (in the case of the Lender then acting as Agent) or
participate in (in the case of the other Lenders) Letters of Credit pursuant to
Section 2.3.(a) and 2.3.(i), respectively (but in the case of the Lender acting
as the Agent excluding the aggregate amount of participations in the Letters of
Credit held by the other Lenders), and (c) to participate in Swingline Loans
pursuant to Section 2.2.(e), in each case, in an amount up to, but not
exceeding, the amount set forth for such Lender on its signature page hereto as
such Lender's "Commitment Amount" or as set forth in the applicable Assignment
and Acceptance Agreement, as the same may be reduced from time to time pursuant
to Section 2.11. or increased or reduced as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 12.5.
"Commitment Percentage" means, as to each Lender, the ratio, expressed
as a percentage, of (a) the amount of such Lender's Commitment to (b) the
aggregate amount of the Commitments of all Lenders; provided, however, that if
at the time of determination the Commitments have terminated or been reduced to
zero, the "Commitment Percentage" of each Lender shall be the Commitment
Percentage of such Lender in effect immediately prior to such termination or
reduction.
"Compliance Certificate" has the meaning given that term in Section
8.3.
"Construction-in-Process" means cash expenditures for land and
improvements (including indirect costs internally allocated and development
costs) determined in
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accordance with GAAP on all Properties that are under development or are
scheduled to commence development within twelve months from any date of
determination.
"Construction Budget" means the fully-budgeted costs for the
acquisition and construction of a given parcel of real property (including,
without limitation, the cost of acquiring such parcel of real property, reserves
for construction interest and operating deficits, tenant improvements, leasing
commissions and infrastructure costs) as reasonably determined by the Trust in
good faith.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.8.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Revolving Loan of one Type into a Revolving Loan of another Type pursuant
to Section 2.9.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"Debt Service" means, for any period, the sum of (a) Interest Expense
for such period, and (b) all regularly scheduled principal payments made with
respect to Indebtedness of the Borrowers and the other Subsidiaries during such
period, other than any balloon, bullet, early repayment or similar principal
payment which, in each case, repays such Indebtedness in full. Debt Service
shall include a proportionate share of items (a) and (b) of all Unconsolidated
Affiliates.
"Default" means any of the events specified in Section 10.1., whether
or not there has been satisfied any requirement for the giving of notice, the
lapse of time, or both.
"Defaulting Lender" has the meaning given that term in Section 3.11.
"Derivatives Contract" means any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the
foregoing, the term "Derivatives Contract" includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association,
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Inc., any International Foreign Exchange Master Agreement, or any other master
agreement, including any such obligations or liabilities under any such master
agreement.
"Derivatives Termination Value" means, in respect of any one or more
Derivatives Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Derivatives Contracts, (a) for
any date on or after the date such Derivatives Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the xxxx-to-market value(s) for such Derivatives
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Derivatives
Contracts (which may include any Lender).
"Development Property" means a Property which is being developed to
become an office, industrial or retail property.
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, with respect to a Person for any period (without
duplication): (a) net income (loss) of such Person for such period determined on
a consolidated basis, excluding the following (but only to the extent included
in determination of such net income (loss)): (i) depreciation and amortization;
(ii) Interest Expense; (iii) income tax expense; (iv) extraordinary or
non-recurring gains and losses; (v) noncash charges; and (vi) gains and losses
from sales of assets; plus (b) such Person's pro rata share of EBITDA of its
Unconsolidated Affiliates. EBITDA shall be adjusted to remove any impact from
straight line rent leveling adjustments required under GAAP and amortization of
intangibles associated with the amortization of above or below market rents
pursuant to Statement of Financial Accounting Standards No. 141.
"Effective Date" means the later of: (a) the Agreement Date; and (b)
the date on which all of the conditions precedent set forth in Section 5.1.
shall have been fulfilled or waived in writing by the Requisite Lenders.
"Eligible Assignee" means any Person who is, at the time of
determination: (i) a Lender or an affiliate of a Lender; (ii) a commercial bank,
trust, trust company, insurance company, investment bank or pension fund
organized under the laws of the United States of America, or any state thereof,
and having total assets in excess of $5,000,000,000; (iii) a savings and loan
association or savings bank organized under the laws of the United States of
America, or any state thereof, and having a tangible net worth of at least
$500,000,000; or (iv) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of any such country, and having total
assets in excess of $10,000,000,000, provided that such bank is acting through a
branch or agency located in the United States of America. Notwithstanding the
foregoing, while an Event of Default under subsection (a), (b), (e), (f) or (g)
of Section 10.1. exists, "Eligible Assignee" shall mean any Person that is not
an individual.
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"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, treatment, disposal or clean-up of
Hazardous Materials including, without limitation, the following: Clean Air Act,
42 U.S.C. Section 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq.; National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.;
regulations of the United States Environmental Protection Agency and any
applicable rule of common law and any judicial interpretation thereof relating
primarily to environmental protection or Hazardous Materials.
"Equity Interest" means, with respect to any Person, any share of
capital stock of (or other ownership or profit interests in) such Person, any
warrant, option or other right for the purchase or other acquisition from such
Person of any share of capital stock of (or other ownership or profit interests
in) such Person, any security convertible into or exchangeable for any share of
capital stock of (or other ownership or profit interests in) such Person or
warrant, right or option for the purchase or other acquisition from such Person
of such shares (or such other interests), and any other ownership or profit
interest in such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such
share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.
"Equity Issuance" means any issuance by a Person of any Equity Interest
in such Person and shall in any event include the issuance of any Equity
Interest upon the conversion or exchange of any security constituting
Indebtedness that is convertible or exchangeable, or is being converted or
exchanged, for Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Group" means the Borrowers, any other Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with any Borrower or any
other Subsidiary, are treated as a single employer under Section 414 of the
Internal Revenue Code.
"Event of Default" means any of the events specified in Section 10.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Excluded Subsidiary" means any Subsidiary (a) holding title to assets
which are or are to become collateral for any Secured Indebtedness of such
Subsidiary and (b) which is prohibited from Guarantying the Indebtedness of any
other Person pursuant to (i) any document, instrument or agreement evidencing
such Secured Indebtedness or (ii) a provision of such Subsidiary's
organizational documents which provision was
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included in such Subsidiary's organizational documents as a condition to the
extension of such Secured Indebtedness.
"Existing Credit Agreement" means that certain Senior Unsecured
Revolving Credit Agreement dated as of August 19, 2003, by and among the
Borrowers, the institutions from time to time party thereto as Lenders and as
Issuing Banks, Fleet National Bank, as Administrative Agent, and Wachovia, as
Syndication Agent.
"Fair Market Value" means, with respect to (a) a security listed on a
national securities exchange or the NASDAQ National Market, the price of such
security as reported on such exchange or market by any widely recognized
reporting method customarily relied upon by financial institutions and (b) with
respect to any other property, the price which could be negotiated in an
arm's-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of which is under pressure or compulsion to complete the
transaction.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.
"Fee Letter" means that certain Fee Letter dated as of May 4, 2005 by
and among the Trust, the Lead Arranger and Wachovia.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrowers hereunder or under any
other Loan Document.
"Fixed Charges" means, for any period, the sum of (a) Debt Service for
such period and (b) all Preferred Dividends paid during such period. The Trust
pro rata share of the Fixed Charges of Unconsolidated Affiliates of the Trust
shall be included in determinations of Fixed Charges.
"Floating Rate Indebtedness" means all Indebtedness of a Person which
bears interest at a variable rate during the scheduled life of such Indebtedness
and for which such Person has not obtained interest rate swap agreements,
interest rate "cap" or "collar" agreements or other similar Derivatives
Contracts which effectively cause such variable rates to be equivalent to fixed
rates acceptable to the Agent.
"Foreign Lender" means any Lender that is organized under the laws of a
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jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"Funds From Operations" means, for a given period, net income (loss) of
the Trust and its Subsidiaries determined on a consolidated basis for such
period exclusive of the following (to the extent included in the determination
of such net income (loss)): (a) gains (or losses) from debt restructuring and
sales of property during such period, (b) any non-cash charges recorded from
asset impairments and (c) depreciation with respect to real estate assets and
amortization (other than amortization of deferred financing costs) for such
period, all after adjustment for unconsolidated partnerships and joint ventures.
Adjustments for unconsolidated entities will be calculated to reflect funds from
operations on the same basis.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau, commission, board, department or other entity
(including, without limitation, the Federal Deposit Insurance Corporation, the
Comptroller of the Currency or the Federal Reserve Board, any central bank or
any comparable authority) or any arbitrator with authority to bind a party at
law.
"Ground Lease" means a ground lease containing the following terms and
conditions: (a) a remaining term (including any unexercised extension options
that the lessee can unilaterally exercise without the need to obtain the consent
of the lessor or to pay the lessor any amount as a condition to the
effectiveness of such extension) of 15 years or more from the Agreement Date;
(b) the right of the lessee to mortgage and encumber its interest in the leased
property without the consent of the lessor; (c) the obligation of the lessor to
give the holder of any mortgage Lien on such leased property written notice of
any defaults on the part of the lessee and agreement of such lessor that such
lease will not be terminated until such holder has had a reasonable opportunity
to cure or complete foreclosures, and fails to do so; (d) reasonable
transferability of the lessee's interest under such lease, including ability to
sublease; and (e) such other rights customarily required by mortgagees making a
loan secured by the interest of the holder of the leasehold estate demised
pursuant to a ground lease.
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"Ground Lease Discount" means, with respect to a Ground Lease, the
percentage set forth in the following table corresponding to the remaining term
(including an unexercised extension options that can be exercised by the lessee
without the consent of the lessor) of such Ground Lease at the time of
determination:
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Remaining Term Ground Lease Discount
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> 30 years 100%
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> 25 years and < 30 years 80%
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> 20 years and < 25 years 75%
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> 15 years and < 20 years 65%
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"Guarantor" means any Person that is a party to the Guaranty as a
"Guarantor" and in any event shall include each Material Subsidiary (unless an
Excluded Subsidiary).
"Guaranty", "Guaranteed", "Guarantying" or to "Guarantee" as applied to
any obligation means and includes: (a) a guaranty (other than by endorsement of
negotiable instruments for collection or deposit in the ordinary course of
business), directly or indirectly, in any manner, of any part or all of such
obligation, or (b) an agreement, direct or indirect, contingent or otherwise,
and whether or not constituting a guaranty, the practical effect of which is to
assure the payment or performance (or payment of damages in the event of
nonperformance) of any part or all of such obligation whether by: (i) the
purchase of securities or obligations, (ii) the purchase, sale or lease (as
lessee or lessor) of property or the purchase or sale of services primarily for
the purpose of enabling the obligor with respect to such obligation to make any
payment or performance (or payment of damages in the event of nonperformance) of
or on account of any part or all of such obligation, or to assure the owner of
such obligation against loss, (iii) the supplying of funds to or in any other
manner investing in the obligor with respect to such obligation, (iv) repayment
of amounts drawn down by beneficiaries of letters of credit (including Letters
of Credit), or (v) the supplying of funds to or investing in a Person on account
of all or any part of such Person's obligation under a Guaranty of any
obligation or indemnifying or holding harmless, in any way, such Person against
any part or all of such obligation. As the context requires, "Guaranty" shall
also mean the Guaranty to which the Guarantors are parties substantially in the
form of Exhibit J.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity,
"TCLP" toxicity or "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; (d)
asbestos in any form; (e) toxic mold; and (f) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million.
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"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) all
obligations of such Person in respect of money borrowed; (b) all obligations of
such Person, whether or not for money borrowed (i) represented by notes payable,
or drafts accepted, in each case representing extensions of credit, (ii)
evidenced by bonds, debentures, notes or similar instruments, or (iii)
constituting purchase money indebtedness, conditional sales contracts, title
retention debt instruments or other similar instruments, upon which interest
charges are customarily paid or that are issued or assumed as full or partial
payment for property or services rendered; (c) Capitalized Lease Obligations of
such Person; (d) all reimbursement obligations (contingent or otherwise) of such
Person in respect of letters of credit or acceptances (whether or not the same
have been presented for payment); (e) all Off-Balance Sheet Obligations of such
Person; (f) all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Mandatorily Redeemable Stock
issued by such Person or any other Person, valued at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; (g) all obligations of such Person in respect of any purchase
obligation, repurchase obligation, takeout commitment or forward equity
commitment, in each case evidenced by a binding agreement (excluding any such
obligation to the extent the obligation can be satisfied by the issuance of
Equity Interests (other than Mandatorily Redeemable Stock)); (h) net obligations
under any Derivatives Contract not entered into as a hedge against existing
Indebtedness, in an amount equal to the Derivatives Termination Value thereof;
(i) all Indebtedness of other Persons which such Person has Guaranteed or is
otherwise recourse to such Person (except for guaranties of customary exceptions
for fraud, misapplication of funds, environmental indemnities, bankruptcy,
insolvency, receivership and other similar events, and other similar exceptions
to nonrecourse liability); (j) all Indebtedness of another Person secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property or assets owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness or other payment obligation; and (k) such Person's pro rata
share of the Indebtedness of any Unconsolidated Affiliate of such Person. All
Loans and Letter of Credit Liabilities shall constitute Indebtedness of the
Borrowers.
"Intellectual Property" has the meaning given that term in Section
6.1.(t).
"Interest Expense" means, for any period, without duplication, (a)
total interest expense of the Trust and its Subsidiaries, including capitalized
interest not funded under a construction loan interest reserve account,
determined on a consolidated basis for such period, plus (b) the Trust's pro
rata share of Interest Expense of Unconsolidated Affiliates for such period.
"Interest Period" means with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending 1, 2, 3 or 6 months
thereafter, as the Borrowers may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as
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the case may be, except that each Interest Period that commences on the last
Business Day of a calendar month, or on a day for which there is no
corresponding day in the appropriate subsequent calendar month, shall end on the
last Business Day of the appropriate subsequent calendar month. Notwithstanding
the foregoing: (i) if any Interest Period would otherwise end after the
Termination Date, such Interest Period shall end on the Termination Date; and
(ii) each Interest Period that would otherwise end on a day which is not a
Business Day shall end on the immediately following Business Day (or, if such
immediately following Business Day falls in the next calendar month, on the
immediately preceding Business Day).
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means, with respect to any Person, any acquisition or
investment (whether or not of a controlling interest) by such Person, whether by
means of: (a) the purchase or other acquisition of any Equity Interest in
another Person, (b) a loan, advance or extension of credit to, capital
contribution to, Guaranty of Indebtedness of, or purchase or other acquisition
of any Indebtedness of, another Person, including any partnership or joint
venture interest in such other Person, or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of another Person
that constitute the business or a division or operating unit of another Person.
Any binding commitment to make an Investment in any other Person, as well as any
option of another Person to require an Investment in such Person, shall
constitute an Investment. Except as expressly provided otherwise, for purposes
of determining compliance with any covenant contained in a Loan Document, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"L/C Commitment Amount" equals $20,000,000.
"Lender" means each financial institution from time to time party
hereto as a "Lender", together with its respective successors and permitted
assigns, and as the context requires, includes the Swingline Lender.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender of which such Lender may notify the Agent in writing from time to time.
"Letter of Credit" has the meaning given that term in Section 2.3.(a).
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
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"Letter of Credit Liabilities" means, without duplication, at any time
and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such
Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations at such time due and payable in respect of all
drawings made under such Letter of Credit. For purposes of this Agreement, a
Lender (other than the Lender acting as the Agent) shall be deemed to hold a
Letter of Credit Liability in an amount equal to its participation interest in
the related Letter of Credit under Section 2.3.(i), and the Lender acting as the
Agent shall be deemed to hold a Letter of Credit Liability in an amount equal to
its retained interest in the related Letter of Credit after giving effect to the
acquisition by the Lenders other than the Lender acting as the Agent of their
participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "LIBOR" shall mean, for any LIBOR Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on the Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on the Reuters Screen LIBO Page, the applicable rate shall
be the arithmetic mean of all such rates. If for any reason none of the
foregoing rates is available, LIBOR shall be, for any Interest Period, the rate
per annum reasonably determined by the Agent as the rate of interest at which
Dollar deposits in the approximate amount of the LIBOR Loan comprising part of
such borrowing would be offered by the Agent to major banks in the London
interbank Eurodollar market at their request at or about 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period.
"LIBOR Loan" means a Revolving Loan bearing interest at a rate based on
LIBOR.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, assignment
of leases and rents, pledge, lien, charge or lease constituting a Capitalized
Lease Obligation, conditional sale or other title retention agreement, or other
security title or encumbrance of any kind in respect of any property of such
Person, or upon the income, rents or profits therefrom; (b) any arrangement,
express or implied, under which any property of such Person is transferred,
sequestered or otherwise identified for the purpose of subjecting the same to
the payment of Indebtedness or performance of any other obligation in priority
to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the Uniform Commercial Code or its
equivalent in any
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jurisdiction, other than any precautionary filing not otherwise constituting or
giving rise to a Lien, including a financing statement filed (i) in respect of a
lease not constituting a Capitalized Lease Obligation pursuant to Section 9-505
(or a successor provision) of the Uniform Commercial Code or its equivalent as
in effect in an applicable jurisdiction or (ii) in connection with a sale or
other disposition of accounts or other assets not prohibited by this Agreement
in a transaction not otherwise constituting or giving rise to a Lien; and (d)
any agreement by such Person to grant, give or otherwise convey any of the
foregoing.
"Loan" means a Revolving Loan or a Swingline Loan.
"Loan Document" means this Agreement, each Note, each Letter of Credit
Document, the Guaranty and each other document or instrument now or hereafter
executed and delivered by a Loan Party in connection with, pursuant to or
relating to this Agreement.
"Loan Party" means each of the Borrowers and each Person who guarantees
all or a portion of the Obligations and/or who pledges any collateral security
to secure all or a portion of the Obligations. Schedule 1.1.(A) sets forth the
Loan Parties in addition to the Borrowers as of the Agreement Date and indicates
whether such Loan Party is an Unencumbered Property Owner.
"Mandatorily Redeemable Stock" means, with respect to any Person, any
Equity Interest of such Person which by the terms of such Equity Interest (or by
the terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise, (a)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than an Equity Interest to the extent redeemable in exchange
for common stock or other equivalent common Equity Interests), (b) is
convertible into or exchangeable or exercisable for Indebtedness or Mandatorily
Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in
whole or in part (other than an Equity Interest which is redeemable solely in
exchange for common stock or other equivalent common Equity Interests), in each
case on or prior to the Termination Date. For the avoidance of doubt, the
parties hereto agree that the following Equity Interests of the Trust do not
qualify as Mandatorily Redeemable Stock based on their terms as in effect on the
Agreement Date: (x) 8.05% Series B Cumulative Redeemable Preferred Stock
established pursuant to Articles Supplementary filed by the Trust on June 17,
2003 with the Department of Assessments and Taxation of the State of Maryland
and (y) 6.50% Series C Cumulative Convertible Preferred Stock established
pursuant to Articles Supplementary filed by the Trust on December 8, 2004 with
the Department of Assessments and Taxation of the State of Maryland.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Trust and its Subsidiaries taken as a whole, (b) the
ability of any Borrower or any other Loan Party to perform its obligations under
any Loan Document to which it is a party, (c) the validity or enforceability of
any of the Loan Documents, (d) the rights and
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remedies of the Lenders and the Agent under any of the Loan Documents or (e) the
timely payment of the principal of or interest on the Loans or other amounts
payable in connection therewith or the timely payment of all Reimbursement
Obligations.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which any Borrower, any other Loan
Party or any other Subsidiary is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could reasonably be
expected to have a Material Adverse Effect.
"Material Subsidiary" means any Subsidiary that directly, or indirectly
through one or more other Subsidiaries, owns or leases a Property.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or
similar security instrument made by a Person owning an interest in real property
granting a Lien on such interest in real property as security for the payment of
Indebtedness of such Person or another Person.
"Mortgage Receivable" means a promissory note secured by a Mortgage of
which a Borrower, a Guarantor or one of their respective Subsidiaries is the
holder and retains the rights of collection of all payments thereunder.
"Multiemployer Plan" means at any time a multiemployer plan within the
meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is
then making or accruing an obligation to make contributions or has within the
preceding five plan years made contributions, including for these purposes any
Person which ceased to be a member of the ERISA Group during such five year
period.
"Negative Pledge" means, with respect to a given asset, any provision
of a document, instrument or agreement (other than any Loan Document) which
prohibits or purports to prohibit the creation or assumption of any Lien on such
asset as security for Indebtedness of the Person owning such asset or any other
Person; provided, however, that an agreement that conditions a Person's ability
to encumber its assets upon the maintenance of one or more specified ratios that
limit such Person's ability to encumber its assets but that do not generally
prohibit the encumbrance of its assets, or the encumbrance of specific assets,
shall not constitute a Negative Pledge.
"Net Operating Income" means, for any Property and for a given period,
the sum of the following (without duplication and determined on a consistent
basis with prior periods): (a) rents and other revenues received in the ordinary
course from such Property (including proceeds of rent loss or business
interruption insurance but excluding pre-paid rents and revenues and security
deposits except to the extent applied in satisfaction of tenants' obligations
for rent) (the foregoing, collectively "Gross Revenues") minus (b) all expenses
paid (excluding interest but including an appropriate accrual for property taxes
-16-
and insurance) related to the ownership, operation or maintenance of such
Property, including but not limited to property taxes, assessments and the like,
insurance, utilities, payroll costs, maintenance, repair and landscaping
expenses, marketing expenses, and general and administrative expenses (including
an appropriate allocation for legal, accounting, advertising, marketing and
other expenses incurred in connection with such Property, but specifically
excluding general overhead expenses of a Borrower or any Subsidiary and any
property management fees).
"Net Proceeds" means with respect to any Equity Issuance by a Person,
the aggregate amount of all cash and the Fair Market Value of all other property
(other than securities of such Person being converted or exchanged in connection
with such Equity Issuance) received by such Person in respect of such Equity
Issuance net of investment banking fees, legal fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred by such Person in connection with such Equity Issuance.
"Nonrecourse Indebtedness" means, with respect to a Person,
Indebtedness for borrowed money in respect of which recourse for payment (except
for customary exceptions for fraud, misapplication of funds, environmental
indemnities, bankruptcy, insolvency, receivership and other similar events, and
other similar exceptions to nonrecourse liability) is contractually limited to
specific assets of such Person encumbered by a Lien securing such Indebtedness.
Liability of a Person under a completion guarantee for a Development Property,
to the extent relating to the Nonrecourse Indebtedness of another Person, shall
not, in and of itself, prevent such liability from being characterized as
Nonrecourse Indebtedness.
"Note" means a Revolving Note or a Swingline Note.
"Notice of Borrowing" means a notice in the form of Exhibit B to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrowers'
request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit C to be
delivered to the Agent pursuant to Section 2.8. evidencing the Borrowers'
request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit D to be
delivered to the Agent pursuant to Section 2.9. evidencing the Borrowers'
request for the Conversion of a Loan from one Type to another Type.
"Notice of Swingline Borrowing" means a notice in the form of Exhibit E
to be delivered to the Agent pursuant to Section 2.2. evidencing the Borrowers'
request for a Swingline Loan.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement
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Obligations and all other Letter of Credit Liabilities; and (c) all other
indebtedness, liabilities, obligations, covenants and duties of the Borrowers
and the other Loan Parties owing to the Agent or any Lender of every kind,
nature and description, under or in respect of this Agreement or any of the
other Loan Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"Occupancy Rate" means, with respect to a Property at any time, the
ratio, expressed as a percentage, of (a) the net rentable square footage of such
Property leased by tenants that are not Affiliates paying rent at rates not
materially less than rates generally prevailing at the time the applicable lease
was entered into, pursuant to binding leases as to which no monetary default has
occurred and has continued unremedied for 30 or more days to (b) the aggregate
net rentable square footage of such Property.
"OFAC" means U.S. Department of the Treasury's Office of Foreign Assets
Control and any successor Governmental Authority.
"Off-Balance Sheet Obligations" means liabilities and obligations of
any Borrower, any Subsidiary or any other Person in respect of "off-balance
sheet arrangements" (as defined in the SEC Off-Balance Sheet Rules) which the
Trust would be required to disclose in the "Management's Discussion and Analysis
of Financial Condition and Results of Operations" section of the Trust's report
on Form 10-Q or Form 10-K (or their equivalents) which the Trust is required to
file with the Securities and Exchange Commission (or any Governmental Authority
substituted therefor). As used in this definition, the term "SEC Off-Balance
Sheet Rules" means the Disclosure in Management's Discussion and Analysis About
Off-Balance Sheet Arrangements, Securities Act Release No. 33-8182, 68 Fed. Reg.
5982 (Feb. 5, 2003) (codified at 17 CFR pts. 228, 229 and 249).
"Ohio Property" means that certain 1.7 million square foot distribution
facility located at Warren, Ohio and currently leased to Kmart Corp.
"Operating Partnership" means LCIF, LCIFII or Net 3.
"Participant" has the meaning given that term in Section 12.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA or
pursuant to any Environmental Laws) or the claims of materialmen, mechanics,
carriers, warehousemen or landlords for labor, materials, supplies or rentals
incurred in the ordinary course of business, which are not at the time required
to be paid or discharged under Section 7.6.; (b) Liens consisting
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of deposits or pledges made, in the ordinary course of business, in connection
with, or to secure payment of, obligations under workers' compensation,
unemployment insurance or similar Applicable Laws; (c) Liens consisting of
encumbrances in the nature of zoning restrictions, easements, and rights or
restrictions of record on the use of real property, which do not materially
detract from the value of such property for its intended business use or impair
the intended business use thereof in the business of such Person; (d) the rights
of tenants under leases or subleases not interfering with the ordinary conduct
of business of such Person; (e) Liens in favor of the Agent for the benefit of
the Lenders; (f) Liens in favor of a Borrower or a Guarantor securing
obligations owing by a Subsidiary to such Borrower or such Guarantor, which
obligations have been subordinated to the Obligations on terms satisfactory to
the Agent; and (g) Liens in existence as of the Agreement Date and set forth in
Part II of Schedule 6.1.(f).
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (a) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (b) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees of any Person which was
at such time a member of the ERISA Group.
"Post-Default Rate" means, in respect of any principal of any Loan or
any other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to the Base Rate as in effect from time to time plus the Applicable
Margin for Base Rate Loans plus four percent (4.0%).
"Preferred Dividends" means, for any period and without duplication,
all Restricted Payments paid during such period on Preferred Equity Interests
issued by a Borrower or another Subsidiary. Preferred Dividends shall not
include dividends or distributions (a) paid or payable solely in Equity
Interests (other than Mandatorily Redeemable Stock) payable to holders of such
class of Equity Interests, (b) paid or payable to a Borrower or another
Subsidiary, or (c) constituting or resulting in the redemption of Preferred
Equity Interests, other than scheduled redemptions not constituting balloon,
bullet or similar redemptions in full.
"Preferred Equity Interests" means, with respect to any Person, Equity
Interests in such Person which are entitled to preference or priority over any
other Equity Interest in such Person in respect of the payment of dividends or
distribution of assets upon liquidation or both.
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"Prime Rate" means the rate of interest per annum announced publicly by
the Lender then acting as the Agent as its prime rate from time to time. The
Prime Rate is not necessarily the best or the lowest rate of interest offered by
the Lender acting as the Agent or any other Lender.
"Principal Office" means the office of the Agent located at One
Wachovia Center, Charlotte, North Carolina, or such other office of the Agent as
the Agent may designate from time to time.
"Property" means any parcel of real property owned or leased (in whole
or in part) or operated by any Borrower, any other Subsidiary or any
Unconsolidated Affiliate of the Trust and which is located in a state of the
United States of America or in the District of Columbia.
"Register" has the meaning given that term in Section 12.5.(e).
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrowers to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Requisite Lenders" means, as of any date, Lenders having at least
66-2/3% of the aggregate amount of the Commitments (not held by Defaulting
Lenders who are not entitled to vote), or, if the Commitments have been
terminated or reduced to zero, Lenders holding at least 66-2/3% of the principal
amount of the aggregate outstanding Loans and Letter of Credit Liabilities (not
held by Defaulting Lenders who are not entitled to vote). Commitments, Revolving
Loans and Letter of Credit Liabilities held by Defaulting Lenders shall be
disregarded when determining the Requisite Lenders. For purposes of this
definition, a Lender (other than the Swingline Lender) shall be deemed to hold a
Swingline Loan or a Letter of Credit Liability to the extent such Lender has
acquired a participation therein under the terms of this Agreement and has not
failed to perform its obligations in respect of such participation.
"Responsible Officer" means with respect to a Borrower or any other
Subsidiary,
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the chief executive officer and the chief financial officer of such Borrower or
such Subsidiary.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any Equity Interest of a Borrower or any other
Subsidiary now or hereafter outstanding, except a dividend payable solely in
Equity Interests of an identical or junior class to the holders of that class;
(b) any redemption, conversion, exchange, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
Equity Interest of a Borrower or any other Subsidiary now or hereafter
outstanding; and (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire any Equity
Interests of a Borrower or any other Subsidiary now or hereafter outstanding.
"Revolving Loan" means a loan made by a Lender to any Borrower pursuant
to Section 2.1.(a).
"Revolving Note" has the meaning given that term in Section 2.10.(a).
"Sanctioned Entity" means (a) an agency of the government of, (b) an
organization directly or indirectly controlled by, or (c) a Person resident in,
in each case, a country that is subject to a sanctions program identified on the
list maintained by the OFAC and published from time to time, as such program may
be applicable to such agency, organization or Person.
"Sanctioned Person" means a Person named on the list of Specially
Designated Nationals or Blocked Persons maintained by the OFAC as published from
time to time.
"Secured Indebtedness" means, with respect to a Person as of any given
date, the aggregate principal amount of all Indebtedness of such Person
outstanding at such date and that is secured in any manner by any Lien, and in
the case of the Trust, shall include (without duplication) the Trust's pro rata
share of the Secured Indebtedness of its Unconsolidated Affiliates.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities computed at the
amount which, in light of all the facts and circumstances existing at such time,
represents the amount that could reasonably be expected to become an actual and
matured liability); (b) such Person is able to pay its debts or other
obligations in the ordinary course as they mature; and (c) such Person has
capital not unreasonably small to carry on its business and all business in
which it proposes to be engaged.
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"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"Stabilized Property" means a completed Property that has at any time
achieved an Occupancy Rate of at least 80%.
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the Equity Interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other individuals performing similar functions of such corporation,
partnership or other entity (without regard to the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such Person and one or
more Subsidiaries of such Person, and shall include all Persons the accounts of
which are consolidated with those of such Person pursuant to GAAP.
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.2. in an amount up to, but not exceeding,
$10,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"Swingline Lender" means Wachovia Bank, National Association, together
with its respective successors and assigns.
"Swingline Loan" means a loan made by the Swingline Lender to any
Borrower pursuant to Section 2.2.(a).
"Swingline Note" means the promissory note of the Borrowers payable to
the order of the Swingline Lender in a principal amount equal to the amount of
the Swingline Commitment as originally in effect and otherwise duly completed,
substantially in the form of Exhibit F.
"Tangible Net Worth" means, as of a given date, (a) the stockholders'
equity of the Trust and Subsidiaries determined on a consolidated basis, plus
(b) accumulated depreciation and amortization, minus (c) the following (to the
extent reflected in determining stockholders' equity of the Trust and its
Subsidiaries): (i) the amount of any write-up in the book value of any assets
contained in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (ii) all amounts
appearing on the assets side of any such balance sheet for assets which would be
classified as intangible assets under GAAP, other than intangibles required to
be recorded under Statement of Financial Accounting Standards No. 141, all
determined on a consolidated basis. Notwithstanding the foregoing, (x)
amortization of above or below market rents pursuant to Statement of Financial
Accounting Standards No. 141
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shall not be excluded under either of the preceding clauses (i) or (ii) and (y)
the effect of marked-to-market adjustments required to be made under GAAP with
respect to assumed indebtedness shall be excluded when determining Tangible Net
Worth.
"Taxes" has the meaning given that term in Section 3.12.
"Termination Date" means the earlier of (a) the date on which the
Commitments are reduced to zero under Section 2.11. or (b) June 27, 2008 (or
such later date to which the Termination Date may be extended pursuant to
Section 2.12.).
"Titled Agents" means each of the Arranger, the Book Running Manager,
the Syndication Agent, and the Co-Documentation Agents and their respective
successors and permitted assigns.
"Total Indebtedness" means all Indebtedness of the Trust and all of its
Subsidiaries determined on a consolidated basis. For purposes of determining the
Borrowers' compliance with Section 9.1.(a) [Maximum Leverage Ratio],
Indebtedness in respect of the Borrowers' zero coupon bonds due October, 2007 on
the terms in effect on the Agreement Date and to the extent secured by the Ohio
Property shall be excluded from Total Indebtedness.
"Type" with respect to any Revolving Loan, refers to whether such Loan
is a LIBOR Loan or Base Rate Loan.
"Unconsolidated Affiliate" means, with respect to any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the consolidated financial statements of
such Person.
"Unencumbered Property Owner" means (a) each Borrower and (b) each
Subsidiary that directly or indirectly through one or more other Subsidiaries
owns or leases a Property that is not subject to a Lien securing any
Indebtedness.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unimproved Land" means land on which no development (other than
improvements that are not material and are temporary in nature) has occurred and
for which no construction is planned in the following 12 months.
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"Value" means (a) with respect to a Stabilized Property, (i)the Net
Operating Income of such Stabilized Property for the two consecutive fiscal
quarters most recently ended, times (ii) 2 divided by (iii) the Capitalization
Rate; provided, with respect to any Stabilized Property acquired during the most
recent quarter, the Value of such Stabilized Property shall be its book value
determined in accordance with GAAP and (b) with respect to a Development
Property, the value of such Property based on cost determined in accordance with
GAAP.
"Wachovia" means Wachovia Bank, National Association, together with its
successors and assigns.
"Wholly Owned Subsidiary" means any Subsidiary of a Person in respect
of which all of the equity securities or other ownership interests (other than,
in the case of a corporation, directors' qualifying shares) are at the time
directly or indirectly owned or controlled by such Person or one or more other
Subsidiaries of such Person or by such Person and one or more other Subsidiaries
of such Person.
Section 1.2. General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP;
provided that, if at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrowers or the Requisite Lenders shall so request, the Agent, the Lenders
and the Borrowers shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Requisite Lenders); provided further that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrowers shall
provide to the Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP. References in this Agreement to
"Sections", "Articles", "Exhibits" and "Schedules" are to sections, articles,
exhibits and schedules herein and hereto unless otherwise indicated. References
in this Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, supplemented,
restated or otherwise modified as of the date of this Agreement and from time to
time thereafter to the extent not prohibited hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Trust or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Trust. Titles and captions of Articles,
Sections, subsections and clauses in this
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Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement. Unless otherwise indicated, all references to time are
references to Charlotte, North Carolina time.
Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries.
When determining compliance with any financial covenant contained in
any of the Loan Documents, only the Borrowers' pro rata share of the financial
attributes of a Subsidiary that is not a Wholly Owned Subsidiary shall be
included.
ARTICLE II. CREDIT FACILITY
Section 2.1. Revolving Loans.
(a) Generally. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, each
Lender severally and not jointly agrees to make Revolving Loans to the Borrowers
in an aggregate principal amount at any one time outstanding up to, but not
exceeding, the amount of such Lender's Commitment. Subject to the terms and
conditions of this Agreement, during the period from the Effective Date to but
excluding the Termination Date, the Borrowers may borrow, repay and reborrow
Revolving Loans hereunder.
(b) Requesting Revolving Loans. The Borrowers shall give the Agent
notice pursuant to a Notice of Borrowing or telephonic notice of each borrowing
of Revolving Loans. Each Notice of Borrowing shall be delivered to the Agent
before 11:00 a.m. (i) in the case of LIBOR Loans, on the date three Business
Days prior to the proposed date of such borrowing and (ii) in the case of Base
Rate Loans, on the date one Business Day prior to the proposed date of such
borrowing. Any such telephonic notice shall include all information to be
specified in a written Notice of Borrowing and shall be promptly confirmed in
writing by the Borrowers pursuant to a Notice of Borrowing sent to the Agent by
telecopy on the same day of the giving of such telephonic notice. The Agent will
transmit by telecopy the Notice of Borrowing (or the information contained in
such Notice of Borrowing) to each Lender promptly upon receipt by the Agent.
Each Notice of Borrowing or telephonic notice of each borrowing shall be
irrevocable once given and binding on the Borrowers.
(c) Disbursements of Revolving Loan Proceeds. No later than 1:00 p.m.
on the date specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the Agent at the
Principal Office, in immediately available funds, the proceeds of the Revolving
Loan to be made by such Lender. With respect to Revolving Loans to be made after
the Effective Date, unless the Agent shall have been notified by any Lender
prior to the specified date of borrowing that such Lender does not intend to
make available to the Agent the Revolving Loan to be made by such Lender on such
date, the Agent may assume that such Lender will make the proceeds of such
Revolving Loan available to the Agent on the date of the requested borrowing as
set forth in the Notice of Borrowing and the Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the Borrowers
the
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amount of such Revolving Loan to be provided by such Lender. Subject to
satisfaction of the applicable conditions set forth in Article V. for such
borrowing, the Agent will make the proceeds of such borrowing available to the
Borrowers no later than 2:00 p.m. on the date and at the account specified by
the Borrowers in such Notice of Borrowing.
Section 2.2. Swingline Loans.
(a) Swingline Loans. Subject to the terms and conditions hereof, during
the period from the Effective Date to but excluding the Termination Date, the
Swingline Lender agrees to make Swingline Loans to the Borrowers in an aggregate
principal amount at any one time outstanding up to, but not exceeding, the
amount of the Swingline Commitment. If at any time the aggregate principal
amount of the Swingline Loans outstanding at such time exceeds the Swingline
Commitment in effect at such time, the Borrowers shall promptly (and in any
event, within 2 Business Days after notice thereof from the Agent) pay the Agent
for the account of the Swingline Lender the amount of such excess. Subject to
the terms and conditions of this Agreement, the Borrowers may borrow, repay and
reborrow Swingline Loans hereunder.
(b) Procedure for Borrowing Swingline Loans. The Borrowers shall give
the Agent and the Swingline Lender notice pursuant to a Notice of Swingline
Borrowing or telephonic notice of each borrowing of a Swingline Loan. Each
Notice of Swingline Borrowing shall be delivered to the Swingline Lender no
later than 3:00 p.m. on the proposed date of such borrowing. Any such notice
given telephonically shall include all information to be specified in a written
Notice of Swingline Borrowing and shall be promptly confirmed in writing by the
Borrowers pursuant to a Notice of Swingline Borrowing sent to the Swingline
Lender by telecopy on the same day of the giving of such telephonic notice. On
the date of the requested Swingline Loan and subject to satisfaction of the
applicable conditions set forth in Article V. for such borrowing, the Swingline
Lender will make the proceeds of such Swingline Loan available to the Borrowers
in Dollars, in immediately available funds, at the account specified by the
Borrowers in the Notice of Swingline Borrowing not later than 4:00 p.m. on such
date.
(c) Interest. Swingline Loans shall bear interest at a per annum rate
equal to the Base Rate plus the Applicable Margin for Base Rate Loans. Interest
payable on Swingline Loans is solely for the account of the Swingline Lender.
All accrued and unpaid interest on Swingline Loans shall be payable on the dates
and in the manner provided in Section 2.4. with respect to interest on Base Rate
Loans (except as the Swingline Lender and the Borrowers may otherwise agree in
writing in connection with any particular Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
minimum amount of $500,000 and integral multiples of $100,000 or such other
minimum amounts agreed to by the Swingline Lender and the Borrowers. Any
voluntary prepayment of a Swingline Loan must be in integral multiples of
$100,000 or the aggregate principal amount of all outstanding Swingline Loans
(or such other minimum amounts upon which the Swingline Lender and the Borrowers
may agree) and in connection with any such prepayment, the Borrowers must give
the Swingline Lender
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prior written notice thereof no later than 10:00 a.m. on the date of such
prepayment. The Swingline Loans shall, in addition to this Agreement, be
evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. The Borrowers
agree to repay each Swingline Loan within one Business Day of demand therefor by
the Swingline Lender and in any event, within 5 Business Days after the date
such Swingline Loan was made. Notwithstanding the foregoing, the Borrowers shall
repay the entire outstanding principal amount of, and all accrued but unpaid
interest on, the Swingline Loans on the Termination Date (or such earlier date
as the Swingline Lender and the Borrowers may agree in writing). In lieu of
demanding repayment of any outstanding Swingline Loan from the Borrowers, the
Swingline Lender may, on behalf of the Borrowers (which hereby irrevocably
direct the Swingline Lender to act on their behalf for such purpose), request a
borrowing of Base Rate Loans from the Lenders in an amount equal to the
principal balance of such Swingline Loan. The amount limitations of Section
3.5.(a) shall not apply to any borrowing of Base Rate Loans made pursuant to
this subsection. The Swingline Lender shall give notice to the Agent of any such
borrowing of Base Rate Loans not later than 12:00 noon on the proposed date of
such borrowing and the Agent shall give prompt notice of such borrowing to the
Lenders. No later than 2:00 p.m. on such date, each Lender will make available
to the Agent at the Principal Office for the account of Swingline Lender, in
immediately available funds, the proceeds of the Base Rate Loan to be made by
such Lender and, to the extent of such Base Rate Loan, such Lender's
participation in the Swingline Loan so repaid shall be deemed to be funded by
such Base Rate Loan. The Agent shall pay the proceeds of such Base Rate Loans to
the Swingline Lender, which shall apply such proceeds to repay such Swingline
Loan. At the time each Swingline Loan is made, each Lender shall automatically
(and without any further notice or action) be deemed to have purchased from the
Swingline Lender, without recourse or warranty, an undivided interest and
participation to the extent of such Lender's Commitment Percentage in such
Swingline Loan. If the Lenders are prohibited from making Loans required to be
made under this subsection for any reason, including without limitation, the
occurrence of any Default or Event of Default described in Section 10.1.(f) or
10.1.(g), upon notice from the Agent or the Swingline Lender, each Lender
severally agrees to pay to the Agent for the account of the Swingline Lender in
respect of such participation the amount of such Lender's Commitment Percentage
of each outstanding Swingline Loan. If such amount is not in fact made available
to the Agent by any Lender, the Swingline Lender shall be entitled to recover
such amount on demand from such Lender, together with accrued interest thereon
for each day from the date of demand thereof, at the Federal Funds Rate. If such
Lender does not pay such amount forthwith upon demand therefor by the Agent or
the Swingline Lender, and until such time as such Lender makes the required
payment, the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of such unpaid participation obligation for all
purposes of the Loan Documents (other than those provisions requiring the other
Lenders to purchase a participation therein). Further, such Lender shall be
deemed to have assigned any and all payments made of principal and interest on
its Loans, and any other amounts due such Lender hereunder, to the Swingline
Lender to fund Swingline Loans in the amount of the participation in
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Swingline Loans that such Lender failed to purchase pursuant to this Section
until such amount has been purchased (as a result of such assignment or
otherwise). A Lender's obligation to make payments in respect of a participation
in a Swingline Loan shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including without limitation, (i) any
claim of setoff, counterclaim, recoupment, defense or other right which such
Lender or any other Person may have or claim against the Agent, the Swingline
Lender or any other Person whatsoever, (ii) the occurrence or continuation of a
Default or Event of Default (including without limitation, any of the Defaults
or Events of Default described in Section 10.1.(f) or 10.1.(g)) or the
termination of any Lender's Commitment, (iii) the existence (or alleged
existence) of an event or condition which has had or could have a Material
Adverse Effect, (iv) any breach of any Loan Document by the Agent, any Lender or
the Borrowers or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
Section 2.3. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Agent, on behalf of the Lenders, agrees to issue for the account
of the Borrowers during the period from and including the Effective Date to, but
excluding, the date 30 days prior to the Termination Date one or more letters of
credit (each a "Letter of Credit") up to a maximum aggregate Stated Amount at
any one time outstanding not to exceed the L/C Commitment Amount.
(b) Terms of Letters of Credit. At the time of issuance, the amount,
form, terms and conditions of each Letter of Credit, and of any drafts or
acceptances thereunder, shall be subject to the reasonable approval by the Agent
and the Borrowers. Notwithstanding the foregoing, in no event may the expiration
date of any Letter of Credit extend beyond the earlier of (i) the date one year
from its date of issuance or (ii) the Termination Date; provided, however, a
Letter of Credit may contain a provision providing for the automatic extension
of the expiration date in the absence of a notice of non-renewal from the Agent
but in no event shall any such provision permit the extension of the expiration
date of such Letter of Credit beyond the Termination Date; provided, further,
that a Letter of Credit that contains an automatic extension provision may
provide for an extension of its expiration date to a date not more than one year
beyond the Termination Date so long as the Borrowers deliver to the Agent no
later than 20 days prior to the Termination Date (A) either (1) cash collateral
for and in an amount equal to such Letter of Credit on terms reasonably
acceptable to the Agent, (2) a backup letter of credit for the Agent, as agent
for the Lenders, having terms acceptable to the Agent and issued by a domestic
financial institution having a rating assigned by a Rating Agency to its senior
unsecured long term indebtedness of AA/Aa2 or (3) other collateral satisfactory
to the Agent and all of the Lenders and (B) a reimbursement agreement in form
and substance acceptable to the Agent and such other documents requested by the
Agent evidencing the Borrowers' reimbursement obligations in respect of such
Letter of Credit.
(c) Requests for Issuance of Letters of Credit. The Borrowers shall
give the Agent written notice (or telephonic notice promptly confirmed in
writing) at least 5
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Business Days prior to the requested date of issuance of a Letter of Credit,
such notice to describe in reasonable detail the proposed terms of such Letter
of Credit and the nature of the transactions or obligations proposed to be
supported by such Letter of Credit, and in any event shall set forth with
respect to such Letter of Credit the proposed (i) Stated Amount, (ii)
beneficiary, and (iii) expiration date. The Borrowers shall also execute and
deliver such customary letter of credit application forms as requested from time
to time by the Agent. Provided the Borrowers have given the notice prescribed by
the first sentence of this subsection and subject to the other terms and
conditions of this Agreement, including the satisfaction of any applicable
conditions precedent set forth in Article V., the Agent shall issue the
requested Letter of Credit on the requested date of issuance for the benefit of
the stipulated beneficiary. Upon the written request of the Borrowers, the Agent
shall deliver to the Borrowers a copy of each issued Letter of Credit within a
reasonable time after the date of issuance thereof. To the extent any term of a
Letter of Credit Document is inconsistent with a term of any Loan Document, the
term of such Loan Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrowers of the amount to be paid
by the Agent as a result of such demand and the date on which payment is to be
made by the Agent to such beneficiary in respect of such demand; provided,
however, the Agent's failure to give, or delay in giving, such notice shall not
discharge the Borrowers in any respect from the applicable Reimbursement
Obligation. The Borrowers hereby unconditionally and irrevocably agree to pay
and reimburse the Agent for the amount of each demand for payment under such
Letter of Credit on or prior to the date on which payment is to be made by the
Agent to the beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind (other than notice as provided in this
subsection). Upon receipt by the Agent of any payment in respect of any
Reimbursement Obligation, the Agent shall promptly pay to each Lender that has
acquired a participation therein under the second sentence of Section 2.3.(i)
such Lender's Commitment Percentage of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to
in the immediately preceding subsection (d), the Borrowers shall advise the
Agent whether or not the Borrowers intend to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment and, if they do, the Borrowers shall submit a timely request for such
borrowing as provided in the applicable provisions of this Agreement. If the
Borrowers fail to so advise the Agent, or if the Borrowers fail to reimburse the
Agent for a demand for payment under a Letter of Credit by the date of such
payment, then (i) if the applicable conditions contained in Article V. would
permit the making of Revolving Loans, the Borrowers shall be deemed to have
requested a borrowing of Revolving Loans (which shall be Base Rate Loans) in an
amount equal to the unpaid Reimbursement Obligation and the Agent shall give
each Lender prompt notice of the amount of the Revolving Loan to be made
available to the Agent not later than 1:00 p.m. and (ii) if such conditions
would not permit the making of Revolving Loans, the provisions of subsection (j)
of this Section shall apply. The limitations of
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Section 3.5.(a) shall not apply to any borrowing of Base Rate Loans under this
subsection.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by
the Agent of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Commitment of each Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to the product of
(i) such Lender's Commitment Percentage and (ii) the sum of (A) the Stated
Amount of such Letter of Credit plus (B) any related Reimbursement Obligations
then outstanding.
(g) Agent's Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligations. In examining documents presented in connection with
drawings under Letters of Credit and making payments under Letters of Credit
against such documents, the Agent shall only be required to use the same
standard of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrowers
assume all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any of
the Lenders shall be responsible for, and the Borrowers' obligations in respect
of the Letters of Credit shall not be affected in any manner by, (i) the form,
validity, sufficiency, accuracy, genuineness or legal effects of any document
submitted by any party in connection with the application for and issuance of or
any drawing honored under any Letter of Credit even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit, or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any Letter of Credit to comply fully with conditions required in
order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable, telex,
telecopy or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter
of Credit, or of the proceeds thereof; (vii) the misapplication by the
beneficiary of the proceeds of any drawing under any Letter of Credit; or (viii)
any consequences arising from causes beyond the control of the Agent or the
Lenders. None of the above shall affect, impair or prevent the vesting of any of
the Agent's or any Lender's rights or powers hereunder. Any action taken or
omitted to be taken by the Agent under or in connection with any Letter of
Credit, if taken or omitted in the absence of gross negligence or willful
misconduct (as determined by a court of competent jurisdiction in a final,
non-appealable judgment), shall not create against the Agent or any Lender any
liability to the Borrowers or any Lender. In this regard, the obligation of the
Borrowers to reimburse the Agent for any drawing made under any Letter of
Credit, and to repay any Revolving Loan made pursuant to the second sentence of
the immediately preceding subsection (e), shall be absolute, unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement and any other applicable
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Letter of Credit Document under all circumstances whatsoever, including without
limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, setoff,
defense or other right which any Borrower may have at any time against the
Agent, any Lender, any beneficiary of a Letter of Credit or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or in the Letter of Credit Documents or any unrelated transaction; (D) any
breach of contract or dispute between any Borrower, the Agent, any Lender or any
other Person; (E) any demand, statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein or made in connection therewith being
untrue or inaccurate in any respect whatsoever; (F) any non-application or
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; (G) payment by the Agent under any Letter
of Credit against presentation of a draft or certificate which does not strictly
comply with the terms of such Letter of Credit; and (H) any other act, omission
to act, delay or circumstance whatsoever that might, but for the provisions of
this Section, constitute a legal or equitable defense to or discharge of the
Borrowers' Reimbursement Obligations. Notwithstanding anything to the contrary
contained in this Section or Section 12.9., but not in limitation of the
Borrowers' unconditional obligation to reimburse the Agent for any drawing made
under a Letter of Credit as provided in this Section and to repay any Revolving
Loan made pursuant to the second sentence of the immediately preceding
subsection (e), the Borrowers shall have no obligation to indemnify the Agent or
any Lender in respect of any liability incurred by the Agent or such Lender
arising solely out of the gross negligence or willful misconduct of the Agent or
such Lender in respect of a Letter of Credit as determined by a court of
competent jurisdiction in a final, non-appealable judgment. Except as otherwise
provided in this Section, nothing in this Section shall affect any rights the
Borrowers may have with respect to the gross negligence or willful misconduct of
the Agent or any Lender with respect to any Letter of Credit.
(h) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefor be made
through the Agent), and no such amendment, supplement or other modification
shall be issued unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Requisite
Lenders (or all of the Lenders if required by Section 12.6.) shall have
consented thereto. In connection with any such amendment, supplement or other
modification, the Borrowers shall pay the Fees, if any, payable under the last
sentence of Section 3.6.(b).
(i) Lenders' Participation in Letters of Credit. Immediately upon the
issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an
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undivided interest and participation to the extent of such Lender's Commitment
Percentage of the liability of the Agent with respect to such Letter of Credit,
and each Lender thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be unconditionally
obligated to the Agent to pay and discharge when due, such Lender's Commitment
Percentage of the Agent's liability under such Letter of Credit. In addition,
upon the making of each payment by a Lender to the Agent in respect of any
Letter of Credit pursuant to the immediately following subsection (j), such
Lender shall, automatically and without any further action on the part of the
Agent or such Lender, acquire (i) a participation in an amount equal to such
payment in the Reimbursement Obligation owing to the Agent by the Borrowers in
respect of such Letter of Credit and (ii) a participation in a percentage equal
to such Lender's Commitment Percentage in any interest or other amounts payable
by the Borrowers in respect of such Reimbursement Obligation (other than the
Fees payable to the Agent pursuant to the third and last sentences of Section
3.6.(b)).
(j) Payment Obligation of Lenders. Each Lender severally agrees to pay
to the Agent on demand in immediately available funds in Dollars the amount of
such Lender's Commitment Percentage of each drawing paid by the Agent under each
Letter of Credit to the extent such amount is not reimbursed by the Borrowers
pursuant to Section 2.3.(d); provided, however, that in respect of any drawing
under any Letter of Credit, the maximum amount that any Lender shall be required
to fund, whether as a Revolving Loan or as a participation, shall not exceed
such Lender's Commitment Percentage of such drawing. If the notice referenced in
the second sentence of Section 2.3.(e) is received by a Lender not later than
11:00 a.m., then such Lender shall make such payment available to the Agent not
later than 2:00 p.m. on the date of demand therefor; otherwise, such payment
shall be made available to the Agent not later than 1:00 p.m. on the next
succeeding Business Day. Each Lender's obligation to make such payments to the
Agent under this subsection, and the Agent's right to receive the same, shall be
absolute, irrevocable and unconditional and shall not be affected in any way by
any circumstance whatsoever, including without limitation, (i) the failure of
any other Lender to make its payment under this subsection, (ii) the financial
condition of any Borrower or any other Loan Party, (iii) the existence of any
Default or Event of Default, including any Event of Default described in Section
10.1.(f) or 10.1.(g) or (iv) the termination of the Commitments. Each such
payment to the Agent shall be made without any offset, abatement, withholding or
deduction whatsoever.
(k) Information to Lenders. The Agent shall periodically deliver to the
Lenders information setting forth the Stated Amount of all outstanding Letters
of Credit. Other than as set forth in this subsection, the Agent shall have no
duty to notify the Lenders regarding the issuance or other matters regarding
Letters of Credit issued hereunder. The failure of the Agent to perform its
requirements under this subsection shall not relieve any Lender from its
obligations under Section 2.3.(j).
Section 2.4. Rates and Payment of Interest on Loans.
(a) Rates. The Borrowers promise to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the
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period from and including the date of the making of such Loan to but excluding
the date such Loan shall be paid in full, at the following per annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at
the Base Rate (as in effect from time to time) plus the Applicable
Margin; and
(ii) during such periods as such Loan is a LIBOR Loan, at
Adjusted LIBOR for such Loan for the Interest Period therefor plus the
Applicable Margin.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrowers shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of any Loan made by
such Lender, on all Reimbursement Obligations and on any other amount payable by
the Borrowers hereunder or under the Notes held by such Lender to or for the
account of such Lender (including without limitation, accrued but unpaid
interest to the extent permitted under Applicable Law).
(b) Payment of Interest. Accrued and unpaid interest on each Loan shall
be payable (i) in the case of a Base Rate Loan, monthly in arrears on the first
day of each calendar month, (ii) in the case of a LIBOR Loan, in arrears on the
last day of each Interest Period therefor, and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period, and (iii) in the case of any Loan, in arrears upon the
payment, prepayment or Continuation thereof or the Conversion of such Loan to a
Loan of another Type (but only on the principal amount so paid, prepaid,
Continued or Converted). Interest payable at the Post-Default Rate shall be
payable from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the
Borrowers. All determinations by the Agent of an interest rate hereunder shall
be conclusive and binding on the Lenders and the Borrowers for all purposes,
absent manifest error.
Section 2.5. Number of Interest Periods.
There may be no more than 6 different Interest Periods for LIBOR Loans
outstanding at the same time.
Section 2.6. Repayment of Loans.
The Borrowers shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Revolving Loans on the Termination
Date.
Section 2.7. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrowers may prepay any
Loan at any time without premium or penalty. The Borrowers shall give the Agent
at least one Business Day's prior written notice of the prepayment of any
Revolving Loan.
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(b) Mandatory. If at any time the aggregate principal amount of all
outstanding Revolving Loans, together with the aggregate amount of all Letter of
Credit Liabilities and the aggregate principal amount of all outstanding
Swingline Loans, exceeds the aggregate amount of the Commitments in effect at
such time, the Borrowers shall promptly (and in any event, within 2 Business
Days after notice thereof from the Agent) pay to the Agent for the accounts of
the Lenders the amount of such excess. Such payment shall be applied to pay all
amounts of principal outstanding on the Loans and any Reimbursement Obligations
pro rata in accordance with Section 3.2. and if any Letters of Credit are
outstanding at such time the remainder, if any, shall be deposited into the
Collateral Account for application to any Reimbursement Obligations. If the
Borrowers are required to pay any outstanding LIBOR Loans by reason of this
Section prior to the end of the applicable Interest Period therefor, the
Borrowers shall pay all amounts due under Section 4.4.
Section 2.8. Continuation.
So long as no Default or Event of Default shall exist, the Borrowers
may on any Business Day, with respect to any LIBOR Loan, elect to maintain such
LIBOR Loan or any portion thereof as a LIBOR Loan by selecting a new Interest
Period for such LIBOR Loan. Each new Interest Period selected under this Section
shall commence on the last day of the immediately preceding Interest Period.
Each selection of a new Interest Period shall be made by the Borrowers giving to
the Agent a Notice of Continuation not later than 11:00 a.m. on the third
Business Day prior to the date of any such Continuation. Such notice by the
Borrowers of a Continuation shall be by telephone or telecopy, confirmed
immediately in writing if by telephone, in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR Loans and
portions thereof subject to such Continuation and (c) the duration of the
selected Interest Period, all of which shall be specified in such manner as is
necessary to comply with all limitations on Loans outstanding hereunder. Each
Notice of Continuation shall be irrevocable by and binding on the Borrowers once
given. Promptly after receipt of a Notice of Continuation, the Agent shall
notify each Lender by telecopy, or other similar form of transmission, of the
proposed Continuation. If the Borrowers shall fail to select in a timely manner
a new Interest Period for any LIBOR Loan in accordance with this Section, or if
a Default or Event of Default shall exist, such Loan will automatically, on the
last day of the current Interest Period therefor, Convert into a Base Rate Loan
notwithstanding the first sentence of Section 2.9. or the Borrowers' failure to
comply with any of the terms of such Section.
Section 2.9. Conversion.
The Borrowers may on any Business Day, upon the Borrower's giving of a
Notice of Conversion to the Agent, Convert all or a portion of a Loan of one
Type into a Loan of another Type; provided, however, a Base Rate Loan may not be
Converted to a LIBOR Loan if a Default or Event of Default shall exist. Any
Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only on,
the last day of an Interest Period for such LIBOR Loan and, upon Conversion of a
Base Rate Loan into a LIBOR Loan, the Borrowers shall pay accrued interest to
the date of Conversion on the principal amount so
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Converted. Each such Notice of Conversion shall be given not later than 11:00
a.m. on the Business Day prior to the date of any proposed Conversion into Base
Rate Loans and on the third Business Day prior to the date of any proposed
Conversion into LIBOR Loans. Promptly after receipt of a Notice of Conversion,
the Agent shall notify each Lender by telecopy, or other similar form of
transmission, of the proposed Conversion. Subject to the restrictions specified
above, each Notice of Conversion shall be by telephone (confirmed immediately in
writing) or telecopy in the form of a Notice of Conversion specifying (a) the
requested date of such Conversion, (b) the Type of Loan to be Converted, (c) the
portion of such Type of Loan to be Converted, (d) the Type of Loan such Loan is
to be Converted into and (e) if such Conversion is into a LIBOR Loan, the
requested duration of the Interest Period of such Loan. Each Notice of
Conversion shall be irrevocable by and binding on the Borrowers once given.
Section 2.10. Notes.
(a) Revolving Note. The Revolving Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrowers substantially in the form of Exhibit G (each a "Revolving Note"),
payable to the order of such Lender in a principal amount equal to the amount of
its Commitment as originally in effect and otherwise duly completed.
(b) Records. The date, amount, interest rate, Type and duration of
Interest Periods (if applicable) of each Loan made by each Lender to the
Borrowers, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and such entries shall be binding on the
Borrowers, absent manifest error; provided, however, that the failure of a
Lender to make any such record shall not affect the obligations of the Borrowers
under any of the Loan Documents.
(c) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the
Borrowers of (i) written notice from a Lender that a Note of such Lender has
been lost, stolen, destroyed or mutilated, and (ii) (A) in the case of loss,
theft or destruction, an unsecured agreement of indemnity from such Lender in
form reasonably satisfactory to the Borrowers, or (B) in the case of mutilation,
upon surrender and cancellation of such Note, the Borrowers shall at their own
expense execute and deliver to such Lender a new Note dated the date of such
lost, stolen, destroyed or mutilated Note.
Section 2.11. Voluntary Reductions of the Commitment.
The Borrowers shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate amount of Letter of Credit Liabilities and
the aggregate principal amount of all outstanding Swingline Loans) at any time
and from time to time without penalty or premium upon not less than 5 Business
Days prior written notice to the Agent of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any such
reduction and shall be irrevocable once given and effective only upon receipt by
the Agent; provided, however, if the Borrowers seek to reduce the aggregate
amount of the Commitments below $75,000,000, then the
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Commitments shall all automatically and permanently be reduced to zero. The
Agent will promptly transmit such notice to each Lender. The Commitments, once
terminated or reduced may not be increased or reinstated.
Section 2.12. Extension of Termination Date.
The Borrowers shall have the right, exercisable one time, to extend the
Termination Date by one year. The Borrowers may exercise such right only by
executing and delivering to the Agent at least 90 days but not more than 120
days prior to the current Termination Date, a written request for such extension
(an "Extension Request"). The Agent shall forward to each Lender a copy of the
Extension Request delivered to the Agent promptly upon receipt thereof. Subject
to satisfaction of the following conditions, the Termination Date shall be
extended for one year effective upon receipt of the Extension Request and
payment of the fee referred to in the following clause (b): (a) immediately
prior to such extension and immediately after giving effect thereto, (i) no
Default or Event of Default shall exist and (ii) the representations and
warranties made or deemed made by the Borrowers and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct in all
material respects on and as of the date of such extension with the same force
and effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents and (b) the
Borrowers shall have paid the Fees payable under Section 3.6.(c).
Section 2.13. Expiration or Maturity Date of Letters of Credit Past Termination
Date.
If on the date the Commitments are terminated or reduced to zero
(whether voluntarily, by reason of the occurrence of an Event of Default or
otherwise), there are any Letters of Credit outstanding hereunder, the Borrowers
shall, on such date, pay to the Agent an amount of money equal to the Stated
Amount of such Letter(s) of Credit for deposit into the Collateral Account.
Section 2.14. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, no Lender shall be required to make a Loan, the Agent shall not be
required to issue a Letter of Credit and no reduction of the Commitments
pursuant to Section 2.11. shall take effect, if immediately after the making of
such Loan, the issuance of such Letter of Credit or such reduction in the
Commitments the aggregate principal amount of all outstanding Revolving Loans,
together with the aggregate principal amount of all outstanding Swingline Loans
and the aggregate amount of all Letter of Credit Liabilities, would exceed the
aggregate amount of the Commitments at such time.
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Section 2.15. Increase of Commitments.
With the prior consent of the Agent, the Borrowers shall have the right
at any time and from time to time during the term of this Agreement to request
up to 2 increases in the aggregate amount of the Commitments (provided that
after giving effect to any increases in the Commitments pursuant to this
Section, the aggregate amount of the Commitments may not exceed $250,000,000) by
providing written notice to the Agent, which notice shall be irrevocable once
given. Each such increase in the Commitments must be in an aggregate minimum
amount of $10,000,000. No Lender shall be required to increase its Commitment
and any new Lender becoming a party to this Agreement in connection with any
such requested increase must be an Eligible Assignee. If a new Lender becomes a
party to this Agreement, or if any existing Lender agrees to increase its
Commitment, such Lender shall on the date it becomes a Lender hereunder (or
increases its Commitment, in the case of an existing Lender) (and as a condition
thereto) purchase from the other Lenders its Commitment Percentage (or in the
case of an existing Lender, the increase in the amount of its Commitment
Percentage, in each case as determined after giving effect to the increase of
Commitments) of any outstanding Revolving Loans, by making available to the
Agent for the account of such other Lenders at the Principal Office, in same day
funds, an amount equal to the sum of (A) the portion of the outstanding
principal amount of such Revolving Loans to be purchased by such Lender plus (B)
the aggregate amount of payments previously made by the other Lenders under
Section 2.3.(j) which have not been repaid plus (C) interest accrued and unpaid
to and as of such date on such portion of the outstanding principal amount of
such Revolving Loans. The Borrowers shall pay to the Lenders amounts payable, if
any, to such Lenders under Section 4.4. as a result of the prepayment of any
such Revolving Loans. No increase of the Commitments may be effected under this
Section if (x) a Default or Event of Default shall be in existence on the
effective date of such increase or (y) any representation or warranty made or
deemed made by any Borrower or any other Loan Party in any Loan Document to
which any such Loan Party is a party is not (or would not be) true or correct in
all material respects on the effective date of such increase (except for
representations or warranties which expressly relate solely to an earlier date).
In connection with any increase in the aggregate amount of the Commitments
pursuant to this subsection, (a) any Lender becoming a party hereto shall
execute such documents and agreements as the Agent may reasonably request and
(b) the Borrowers shall make appropriate arrangements so that each new Lender,
and any existing Lender increasing its Commitment, receives a new or replacement
Note, as appropriate, in the amount of such Lender's Commitment within 2
Business Days of the effectiveness of the applicable increase in the aggregate
amount of Commitments.
Section 2.16. Joint and Several Liability.
(a) The obligations of the Borrowers hereunder and under the other Loan
Documents to which any Borrower is a party shall be joint and several, and
accordingly, each Borrower confirms that it is liable for the full amount of the
"Obligations," regardless of whether incurred by such Borrower or any other
Borrower, and all of the other obligations and liabilities of the other
Borrowers hereunder and under the other Loan Documents.
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(b) Each of the Borrowers represents and warrants to the Agent and the
Lenders that the Borrowers, though separate legal entities, are mutually
dependent on each other in the conduct of their respective businesses as an
integrated operation and have determined it to be in their mutual best interests
to obtain financing from the Lenders through their collective efforts.
(c) None of the Lenders or the Agent shall be obligated or required
before enforcing any Loan Document against a Borrower: (a) to pursue any right
or remedy any of them may have against any other Borrower, any Guarantor or any
other Person or commence any suit or other proceeding against any other
Borrower, any Guarantor or any other Person in any court or other tribunal; (b)
to make any claim in a liquidation or bankruptcy of any other Borrower, any
Guarantor or any other Person; or (c) to make demand of any other Borrower, any
Guarantor or any other Person or to enforce or seek to enforce or realize upon
any collateral security held by the Lenders or the Agent which may secure any of
the Obligations.
(d) The Lenders and the Agent may, at any time and from time to time,
without the consent of, or notice to, a Borrower, and without discharging such
Borrower from its obligations hereunder, take any of the following actions: (i)
amend, modify, alter or supplement the terms of any of the Obligations of any
other Borrower, including, but not limited to, extending or shortening the time
of payment of any such Obligations or changing the interest rate that may accrue
on any of such Obligations; (ii) sell, exchange, release or otherwise deal with
all, or any part, of any collateral securing any of the Obligations and in which
any other Borrower has rights; (iii) release any other Borrower, any Guarantor
or any other Person liable in any manner for the payment or collection of the
Obligations; (iv) exercise, or refrain from exercising, any rights against any
other Borrower, any Guarantor or any other Person; and (v) apply any sum, by
whomsoever paid or however realized, to the Obligations in such order as the
Lenders shall elect.
(e) It is the intent of each Borrower, the Agent and the Lenders that
in any proceeding of the types described in Sections 10.1.(f) or 10.1.(g), a
Borrower's maximum obligation hereunder shall equal, but not exceed, the maximum
amount which would not otherwise cause the obligations of such Borrower
hereunder (or any other obligations of such Borrower to the Agent and the
Lenders) to be avoidable or unenforceable against such Borrower in such
proceeding as a result of Applicable Law, including without limitation, (i)
Section 548 of the Bankruptcy Code and (ii) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such proceeding, whether by
virtue of Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws
under which the possible avoidance or unenforceability of the obligations of
such Borrower hereunder (or any other obligations of such Borrower to the Agent
and the Lenders) shall be determined in any such proceeding are referred to as
the "Avoidance Provisions". Accordingly, to the extent that the obligations of
any Borrower hereunder would otherwise be subject to avoidance under the
Avoidance Provisions, the maximum Obligations for which such Borrower shall be
liable hereunder shall be reduced to that amount which, as of the time any of
the Obligations are deemed to have been incurred under the Avoidance Provisions,
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would not cause the obligations of such Borrower hereunder (or any other
obligations of such Borrower to the Agent and the Lenders), to be subject to
avoidance under the Avoidance Provisions. This subsection is intended solely to
preserve the rights of the Agent and the Lenders hereunder to the maximum extent
that would not cause the obligations of any Borrower hereunder to be subject to
avoidance under the Avoidance Provisions, and no Borrower or any other Person
shall have any right or claim under this Section as against the Agent and the
Lenders that would not otherwise be available to such Person under the Avoidance
Provisions.
(f) Each Borrower assumes all responsibility for being and keeping
itself informed of the financial condition of the other Borrowers and the
Guarantors, and of all other circumstances bearing upon the risk of nonpayment
of any of the Obligations and the nature, scope and extent of the risks that
such Borrower assumes and incurs hereunder, and agrees that none of the Agent or
the Lenders shall have any duty whatsoever to advise any Borrower of information
regarding such circumstances or risks.
Section 2.17. Borrower Representative.
Each of the Borrowers hereby appoints the Borrower Representative to
act as its exclusive agent for all purposes under the Loan Documents (including,
without limitation, with respect to all matters related to the borrowing and
repayment of Loans as described in Articles II. and III.). Each of the Borrowers
acknowledges and agrees that (a) the Borrower Representative may execute such
documents on behalf of any of the Borrowers as the Borrower Representative deems
appropriate in its sole discretion and each Borrower shall be bound by and
obligated by all of the terms of any such document executed by the Borrower
Representative on its behalf, (b) any notice or other communication delivered by
the Agent or any Lender hereunder to the Borrower Representative shall be deemed
to have been delivered to each of the Borrowers and (c) the Agent and each of
the Lenders shall accept (and shall be permitted to rely on) any document or
agreement executed by the Borrower Representative on behalf of the Borrowers (or
any of them). The Borrowers must act through the Borrower Representative for all
purposes under this Agreement and the other Loan Documents. Notwithstanding
anything contained herein to the contrary, to the extent any provision in this
Agreement requires any Borrower to interact in any manner with the Agent or the
Lenders, such Borrower shall do so through the Borrower Representative.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrowers under this
Agreement or any other Loan Document shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the Agent at its
Principal Office, not later than 2:00 p.m. on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day). Subject to
Section 10.4., the Borrowers may, at the time of making each payment under
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this Agreement or any Note, specify to the Agent the amounts payable by the
Borrowers hereunder to which such payment is to be applied. Each payment
received by the Agent for the account of a Lender under this Agreement or any
Note shall be paid to such Lender at the applicable Lending Office of such
Lender no later than 5:00 p.m. on the date of receipt. If the Agent fails to pay
such amount to a Lender as provided in the previous sentence, the Agent shall
pay interest on such amount until paid at a rate per annum equal to the Federal
Funds Rate from time to time in effect. If the due date of any payment under
this Agreement or any other Loan Document would otherwise fall on a day which is
not a Business Day such date shall be extended to the next succeeding Business
Day and interest shall be payable for the period of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a), 2.2.(e) and 2.3.(e) shall be made from the
Lenders, each payment of the Fees under Section 3.6.(a), the first sentence of
Section 3.6.(b) and Section 3.6.(c) shall be made for the account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.11. shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (b)
each payment or prepayment of principal of Revolving Loans by the Borrowers
shall be made for the account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Revolving Loans held by them,
provided that if immediately prior to giving effect to any such payment in
respect of any Revolving Loans the outstanding principal amount of the Revolving
Loans shall not be held by the Lenders pro rata in accordance with their
respective Commitments in effect at the time such Loans were made, then such
payment shall be applied to the Revolving Loans in such manner as shall result,
as nearly as is practicable, in the outstanding principal amount of the
Revolving Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Revolving Loans by the
Borrowers shall be made for the account of the Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; (d) the making, Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 4.6.)
shall be made pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of making of Revolving Loans) or their
respective Revolving Loans (in the case of Conversions and Continuations of
Revolving Loans) and the then current Interest Period for each Lender's portion
of each Revolving Loan of such Type shall be coterminous; (e) the Lenders'
participation in, and payment obligations in respect of, Letters of Credit under
Section 2.3., shall be pro rata in accordance with their respective Commitments;
and (f) the Lenders' participation in, and payment obligations in respect of,
Swingline Loans under Section 2.2., shall be pro rata in accordance with their
respective Commitments. All payments of principal, interest, fees and other
amounts in respect of the Swingline Loans shall be for the account of the
Swingline Lender only (except to the extent any Lender shall have acquired and
funded a participating interest in any such Swingline Loan pursuant to Section
2.2.(e), in which case such payments shall be pro rata in accordance with such
participating interests).
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Section 3.3. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on,
any Loan made by it to the Borrowers under this Agreement, or shall obtain
payment on any other Obligation owing by the Borrowers or any other Loan Party
through the exercise of any right of set-off, banker's lien or counterclaim or
similar right or otherwise or through voluntary prepayments directly to a Lender
or other payments made by the Borrowers to a Lender not in accordance with the
terms of this Agreement and such payment should be distributed to the Lenders
pro rata in accordance with Section 3.2. or Section 10.4., as applicable, such
Lender shall promptly purchase from the other Lenders participations in (or, if
and to the extent specified by such Lender, direct interests in) the Loans made
by the other Lenders or other Obligations owed to such other Lenders in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
payment (net of any reasonable expenses which may be incurred by such Lender in
obtaining or preserving such benefit) pro rata in accordance with Section 3.2.
or Section 10.4., as applicable. To such end, all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The
Borrowers agree that any Lender so purchasing a participation (or direct
interest) in the Loans or other Obligations owed to such other Lenders may
exercise all rights of set-off, banker's lien, counterclaim or similar rights
with respect to such participation as fully as if such Lender were a direct
holder of Loans in the amount of such participation. Nothing contained herein
shall require any Lender to exercise any such right or shall affect the right of
any Lender to exercise, and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the Borrowers.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or performed by such
other Lender hereunder, and the failure of any Lender to make a Loan or to
perform any other obligation to be made or performed by it hereunder shall not
relieve the obligation of any other Lender to make any Loan or to perform any
other obligation to be made or performed by such other Lender.
Section 3.5. Minimum Amounts.
(a) Borrowings and Conversions. Except as otherwise provided in
Sections 2.2.(e) and 2.3.(e), each borrowing of Base Rate Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess thereof. Each borrowing of, Conversion to and Continuation of LIBOR Loans
shall be in an aggregate minimum amount of $1,000,000 and integral multiples of
$100,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000
in
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excess thereof (or, if less, the aggregate principal amount of Revolving Loans
then outstanding).
(c) Reductions of Commitments. Each reduction of the Commitments under
Section 2.11. shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $5,000,000 in excess thereof.
(d) Letters of Credit. The initial Stated Amount of each Letter of
Credit shall be at least $100,000.
Section 3.6. Fees.
(a) Unused Fee. During the period from the Effective Date to but
excluding the Termination Date, the Borrowers agree to pay to the Agent for the
account of the Lenders an unused facility fee with respect to the average daily
difference between the (i) aggregate amount of the Commitments and (ii) the
aggregate principal amount of all outstanding Revolving Loans plus the aggregate
amount of all Letter of Credit Liabilities (the "Unused Amount"). Such fee shall
be computed by multiplying the Unused Amount by the corresponding per annum rate
set forth below:
---------------------------------------------------------------
Unused Amount Unused Fee
---------------------------------------------------------------
> 50% of the aggregate amount of Commitments 0.250%
-
---------------------------------------------------------------
< 50% of the aggregate amount of Commitments 0.125%
---------------------------------------------------------------
Such fee shall be payable in arrears on the last day of each March, June,
September or December of each calendar year, with the first payment being due on
September 30, 2005. Any such accrued and unpaid fee shall also be payable on the
Termination Date or any earlier date of termination of the Commitments or
reduction of the Commitments to zero.
(b) Letter of Credit Fees. The Borrowers agree to pay to the Agent for
the account of each Lender a letter of credit fee at a rate per annum equal to
the Applicable Margin for LIBOR Loans times the daily average Stated Amount of
each Letter of Credit for the period from and including the date of issuance of
such Letter of Credit (x) through and including the date such Letter of Credit
expires or is terminated or (y) to but excluding the date such Letter of Credit
is drawn in full and is not subject to reinstatement, as the case may be. The
fees provided for in the immediately preceding sentence shall be nonrefundable
and payable in arrears on (i) the last day of March, June, September and
December in each year, with the first payment being due on September 30, 2005,
(ii) the Termination Date, (iii) the date the Commitments are terminated or
reduced to zero and (iv) thereafter from time to time on demand of the Agent. In
addition, the Borrowers shall pay to the Agent for its own account and not the
account of any Lender, an issuance fee in respect of each Letter of Credit equal
to the greater of (i) $500 or (ii) one-eighth of one percent (0.125%) per annum
on the initial Stated Amount of such Letter of Credit (A) for the period from
and including the date of issuance of such Letter of Credit through and
including the expiration date of such Letter of Credit and (B) if the expiration
date of any Letter of Credit is extended (whether as a
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result of the operation of an automatic extension clause or otherwise), for the
period from but excluding the previous expiration date to and including the
extended expiration date. The fees provided for in the immediately preceding
sentence shall be nonrefundable and payable upon issuance (or in the case of an
extension of the expiration date, on the previous expiration date). The
Borrowers shall pay directly to the Agent from time to time on demand all
commissions, charges, costs and expenses in the amounts customarily charged by
the Agent from time to time in like circumstances with respect to the issuance
of each Letter of Credit, drawings, amendments and other transactions relating
thereto.
(c) Extension Fee. If the Borrowers exercise their right to extend the
Termination Date in accordance with Section 2.12., the Borrowers agree to pay to
the Agent for the account of each Lender a fee equal to one-fifth of one percent
(0.20%) of the amount of such Lender's Commitment (whether or not utilized) at
the time of such extension. Such fee shall be due and payable in full on the
date the Agent receives the Extension Request pursuant to such Section.
(d) Administrative and Other Fees. The Borrowers agree to pay the
administrative and other fees of the Agent pursuant to the Fee Letter and as may
otherwise be agreed to in writing by the Borrowers and the Agent from time to
time.
Section 3.7. Computations.
Unless otherwise expressly set forth herein, any accrued interest on
any Loan, any Fees or any other Obligations due hereunder shall be computed on
the basis of a year of 365 or 366 days, as applicable, and the actual number of
days elapsed; provided, however, any accrued interest on any LIBOR Rate Loan
shall be computed on the basis of a year of 360 days and the actual number of
days elapsed.
Section 3.8. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by any Borrower or any other Loan Party or
received by any Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrowers shall notify the respective Lender in writing
that the Borrowers elect to have such excess sum returned to them forthwith. It
is the express intent of the parties hereto that the Borrowers not pay and the
Lenders not receive, directly or indirectly, in any manner whatsoever, interest
in excess of that which may be lawfully paid by the Borrowers under Applicable
Law.
Section 3.9. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrowers for the use of money in connection with this
Agreement is and shall be the interest specifically described in Sections
2.4.(a)(i) and (ii) and in Section 2.2.(c). Notwithstanding the foregoing, the
parties hereto further agree and stipulate that all agency fees, syndication
fees, facility fees, closing fees, letter of credit fees, underwriting
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fees, default charges, late charges, funding or "breakage" charges, increased
cost charges, attorneys' fees and reimbursement for costs and expenses paid by
the Agent or any Lender to third parties or for damages incurred by the Agent or
any Lender, in each case in connection with the transactions contemplated by
this Agreement and the other Loan Documents, are charges made to compensate the
Agent or any such Lender for underwriting or administrative services and costs
or losses performed or incurred, and to be performed or incurred, by the Agent
and the Lenders in connection with this Agreement and shall under no
circumstances be deemed to be charges for the use of money. All charges other
than charges for the use of money shall be fully earned and nonrefundable when
due.
Section 3.10. Statements of Account.
The Agent will account to the Borrowers monthly with a statement of
Loans, Letters of Credit, accrued interest and Fees, charges and payments made
pursuant to this Agreement and the other Loan Documents, and such account
rendered by the Agent shall be deemed conclusive upon the Borrowers absent
manifest error. The failure of the Agent to deliver such a statement of accounts
shall not relieve or discharge the Borrowers from any of their obligations
hereunder.
Section 3.11. Defaulting Lenders.
(a) Generally. If for any reason any Lender (a "Defaulting Lender")
shall fail or refuse to perform any of its obligations under this Agreement or
any other Loan Document to which it is a party within the time period specified
for performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of two Business Days after notice from
the Agent, then, in addition to the rights and remedies that may be available to
the Agent or the Borrowers under this Agreement or Applicable Law, such
Defaulting Lender's right to participate in the administration of the Loans,
this Agreement and the other Loan Documents, including without limitation, any
right to vote in respect of, to consent to or to direct any action or inaction
of the Agent or to be taken into account in the calculation of the Requisite
Lenders, shall be suspended during the pendency of such failure or refusal. If a
Lender is a Defaulting Lender because it has failed to make timely payment to
the Agent of any amount required to be paid to the Agent hereunder (without
giving effect to any notice or cure periods), in addition to other rights and
remedies which the Agent or the Borrowers may have under the immediately
preceding provisions or otherwise, the Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the period
from the date on which the payment was due until the date on which the payment
is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in
satisfaction of the defaulted payment and any related interest, any amounts
otherwise payable to such Defaulting Lender under this Agreement or any other
Loan Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. Any amounts received by the Agent in respect of a
Defaulting Lender's Loans shall not be paid to such Defaulting Lender and shall
be held uninvested by the Agent and either applied against the purchase
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price of such Loans under the following subsection (b) or paid to such
Defaulting Lender upon such Defaulting Lender's curing of its default.
(b) Purchase or Cancellation of Defaulting Lender's Commitment. Any
Lender who is not a Defaulting Lender may, but shall not be obligated, in its
sole discretion, to acquire all or a portion of a Defaulting Lender's
Commitment. Any Lender desiring to exercise such right shall give written notice
thereof to the Agent and the Borrowers no sooner than 2 Business Days and not
later than 5 Business Days after such Defaulting Lender became a Defaulting
Lender. If more than one Lender exercises such right, each such Lender shall
have the right to acquire an amount of such Defaulting Lender's Commitment in
proportion to the Commitments of the other Lenders exercising such right. If
after such 5th Business Day, the Lenders have not elected to purchase all of the
Commitment of such Defaulting Lender, then the Borrowers may, by giving written
notice thereof to the Agent, such Defaulting Lender and the other Lenders,
either (i) demand that such Defaulting Lender assign its Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
12.5.(d) for the purchase price provided for below or (ii) terminate the
Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall no
longer be a party hereto or have any rights or obligations hereunder or under
any of the other Loan Documents. No party hereto shall have any obligation
whatsoever to initiate any such replacement or to assist in finding an Eligible
Assignee. Upon any such purchase or assignment, the Defaulting Lender's interest
in the Loans and its rights hereunder (but not its liability in respect thereof
or under the Loan Documents or this Agreement to the extent the same relate to
the period prior to the effective date of the purchase except to the extent
assigned pursuant to such purchase) shall terminate on the date of purchase, and
the Defaulting Lender shall promptly execute all documents reasonably requested
to surrender and transfer such interest to the purchaser or assignee thereof,
including an appropriate Assignment and Acceptance Agreement and,
notwithstanding Section 12.5.(d), shall pay to the Agent an assignment fee in
the amount of $7,000. The purchase price for the Commitment of a Defaulting
Lender shall be equal to the amount of the principal balance of the Loans
outstanding and owed by the Borrowers to the Defaulting Lender. Prior to payment
of such purchase price to a Defaulting Lender, the Agent shall apply against
such purchase price any amounts retained by the Agent pursuant to the last
sentence of the immediately preceding subsection (a). The Defaulting Lender
shall be entitled to receive amounts owed to it by the Borrowers under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by the Agent from or on behalf of
the Borrowers. There shall be no recourse against any Lender or the Agent for
the payment of such sums except to the extent of the receipt of payments from
any other party or in respect of the Loans.
Section 3.12. Taxes.
(a) Taxes Generally. All payments by the Borrowers of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any
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taxes imposed on or measured by the assets, net income, receipts or branch
profits of any Lender or the Agent, (iii) any taxes (other than withholding
taxes) with respect to the Agent or a Lender that would not be imposed but for a
connection between the Agent or such Lender and the jurisdiction imposing such
taxes (other than a connection arising solely by virtue of the activities of the
Agent or such Lender pursuant to or in respect of this Agreement or any other
Loan Document), and (iv) any taxes, fees, duties, levies, imposts, charges,
deductions, withholdings or other charges to the extent imposed as a result of
the failure of the Agent or a Lender, as applicable, to provide and keep current
(to the extent legally able) any certificates, documents or other evidence
required to qualify for an exemption from, or reduced rate of, any such taxes
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges or required by the immediately following subsection (c) to be furnished
by the Agent or such Lender, as applicable (such non-excluded items being
collectively called "Taxes"). If any withholding or deduction from any payment
to be made by the Borrowers hereunder is required in respect of any Taxes
pursuant to any Applicable Law, then the Borrowers will:
(i) pay directly to the relevant Governmental Authority the
full amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received
by the Agent or such Lender will equal the full amount that the Agent
or such Lender would have received had no such withholding or deduction
been required.
(b) Tax Indemnification. If the Borrowers fail to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the Agent,
for its account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrowers shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrowers.
(c) Tax Forms. Prior to the date that any Foreign Lender becomes a
party hereto, such Foreign Lender shall deliver to the Borrowers and the Agent
such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto (including Internal
Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor
forms), properly completed, currently effective and duly executed by such
Foreign Lender establishing that payments to it hereunder and under the Notes
are (i) not subject to United States
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Federal backup withholding tax and (ii) not subject to United States Federal
withholding tax imposed under the Internal Revenue Code. Each such Foreign
Lender shall, to the extent it may lawfully do so, (x) deliver further copies of
such forms or other appropriate certifications on or before the date that any
such forms expire or become obsolete and after the occurrence of any event
requiring a change in the most recent form delivered to the Borrowers or the
Agent and (y) obtain such extensions of the time for filing, and renew such
forms and certifications thereof, as may be reasonably requested by the
Borrowers or the Agent. The Borrowers shall not be required to pay any amount
pursuant to the last sentence of subsection (a) above to any Foreign Lender or
the Agent, if it is organized under the laws of a jurisdiction outside of the
United States of America, if such Foreign Lender or the Agent, as applicable,
fails to comply with the requirements of this subsection. If any such Foreign
Lender, to the extent it may lawfully do so, fails to deliver the above forms or
other documentation, then the Agent may withhold from any payments to be made to
such Foreign Lender under any of the Loan Documents such amounts as are required
by the Internal Revenue Code. If any Governmental Authority asserts that the
Agent did not properly withhold or backup withhold, as the case may be, any tax
or other amount from payments made to or for the account of any Foreign Lender,
such Foreign Lender shall indemnify the Agent therefor, including all penalties
and interest, any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, and costs and expenses (including all reasonable
fees and disbursements of any law firm or other external counsel and the
allocated cost of internal legal services and all disbursements of internal
counsel) of the Agent. The obligation of the Foreign Lenders under this Section
shall survive the termination of the Commitments, repayment of all Obligations
and the resignation or replacement of the Agent.
ARTICLE IV. YIELD PROTECTION, ETC.
Section 4.1 Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrowers shall promptly pay to the Agent for
the account of each affected Lender from time to time such amounts as such
Lender may reasonably determine to be necessary to compensate such Lender for
any costs incurred by such Lender that it determines are attributable to its
making or maintaining of any LIBOR Loans or its obligation to make any LIBOR
Loans hereunder, any reduction in any amount receivable by such Lender under
this Agreement or any of the other Loan Documents in respect of any of such
Loans or such obligation or the maintenance by such Lender of capital in respect
of its Loans or its Commitment (such increases in costs and reductions in
amounts receivable being herein called "Additional Costs"), to the extent
resulting from any Regulatory Change that: (i) changes the basis of taxation of
any amounts payable to such Lender under this Agreement or any of the other Loan
Documents in respect of any of such Loans or its Commitment (other than taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges which are excluded from the definition of Taxes pursuant to the first
sentence of Section 3.12.(a)); or (ii) imposes or modifies any reserve, special
deposit or similar requirements (other than Regulation D of the Board of
Governors of the Federal Reserve System or other reserve requirement to the
extent utilized in the determination of Adjusted LIBOR for such Loan) relating
to any extensions of credit or other assets of, or any deposits with or
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other liabilities of, such Lender, or any commitment of such Lender (including,
without limitation, the Commitment of such Lender hereunder); or (iii) has or
would have the effect of reducing the rate of return on capital of such Lender
to a level below that which such Lender could have achieved but for such
Regulatory Change (taking into consideration such Lender's policies with respect
to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
the provisions of the immediately preceding subsection (a), if, by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrowers (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert any other Type of
Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 4.6.
shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting
the obligations of the Borrowers under the preceding subsections of this Section
(but without duplication), if as a result of any Regulatory Change or any
risk-based capital guideline or other requirement heretofore or hereafter issued
by any Governmental Authority there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of
Credit and the result shall be to increase the cost to the Agent of issuing (or
any Lender of purchasing participations in) or maintaining its obligation
hereunder to issue (or purchase participations in) any Letter of Credit or
reduce any amount receivable by the Agent or any Lender hereunder in respect of
any Letter of Credit, then, upon demand by the Agent or such Lender, the
Borrowers shall pay promptly, and in any event within 3 Business Days of demand,
to the Agent for its account or the account of such Lender, as applicable, from
time to time as specified by the Agent or a Lender, such additional amounts as
shall be sufficient to compensate the Agent or such Lender for such increased
costs or reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the
Agent and each Lender agrees to notify the Borrowers of any event occurring
after the Agreement Date entitling the Agent or such Lender to compensation
under any of the preceding subsections of this Section as promptly as
practicable; provided, however, the failure of the Agent or any Lender to give
such notice shall not release the Borrowers from any of their obligations
hereunder (and in the case of a Lender, to the Agent). The Agent or such Lender
agrees to furnish to the Borrowers (and in the case of a Lender, to the Agent) a
certificate setting forth in reasonable detail the basis and amount of each
request by the Agent or such Lender for compensation under this Section. Absent
manifest error, determinations by the Agent or any Lender of the effect of any
Regulatory
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Change shall be conclusive, provided that such determinations are made on a
reasonable basis and in good faith.
Section 4.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of Adjusted LIBOR for any Interest Period:
(a) the Agent reasonably determines (which determination shall
be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining
Adjusted LIBOR for such Interest Period, or
(b) the Agent reasonably determines (which determination shall
be conclusive) that Adjusted LIBOR will not adequately and fairly
reflect the cost to the Lenders of making or maintaining LIBOR Loans
for such Interest Period;
then the Agent shall give the Borrowers and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrowers shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either repay such
Loan or Convert such Loan into a Base Rate Loan.
Section 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if any Lender
shall reasonably determine (which determination shall be conclusive and binding)
that it has become unlawful for such Lender to honor its obligation to make or
maintain LIBOR Loans hereunder, then such Lender shall promptly notify the
Borrowers thereof (with a copy to the Agent) and such Lender's obligation to
make or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall
be suspended until such time as such Lender may again make and maintain LIBOR
Loans (in which case the provisions of Section 4.6. shall be applicable).
Section 4.4. Compensation.
The Borrowers shall pay to the Agent for the account of each Lender,
upon the request of such Lender through the Agent, such amount or amounts as
shall be sufficient (in the reasonable opinion of such Lender) to compensate it
for any loss, cost or expense that such Lender reasonably determines is
attributable to:
(a) any payment or prepayment (whether mandatory or optional)
of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender for
any reason (including, without limitation, acceleration) on a date
other than the last day of the Interest Period for such Loan; or
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(b) any failure by the Borrowers for any reason (including,
without limitation, the failure of any of the applicable conditions
precedent specified in Article V. to be satisfied) to borrow a LIBOR
Loan from such Lender on the requested date for such borrowing, or to
Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on
the requested date of such Conversion or Continuation.
Upon the Borrowers' request, any Lender requesting compensation under this
Section shall provide the Borrowers with a statement setting forth in reasonable
detail the basis for requesting such compensation and the method for determining
the amount thereof. Absent manifest error, determinations by any Lender in any
such statement shall be conclusive, provided that such determinations are made
on a reasonable basis and in good faith.
Section 4.5. Affected Lenders.
If (a) a Lender requests compensation pursuant to Section 3.12. or
4.1., and the Requisite Lenders are not also doing the same, or (b) the
obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or
4.3. but the obligation of the Requisite Lenders shall not have been suspended
under such Sections, then, so long as there does not then exist any Default or
Event of Default, the Borrowers may demand that such Lender (the "Affected
Lender"), and upon such demand the Affected Lender shall promptly, assign its
Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 12.5.(d) for a purchase price equal to the aggregate
principal balance of all Loans then owing to the Affected Lender plus any
accrued but unpaid interest thereon and accrued but unpaid fees owing to the
Affected Lender, or any other amount as may be mutually agreed upon by such
Affected Lender and Eligible Assignee. Each of the Agent and the Affected Lender
shall reasonably cooperate in effectuating the replacement of such Affected
Lender under this Section, but at no time shall the Agent, such Affected Lender
nor any other Lender be obligated in any way whatsoever to initiate any such
replacement or to assist in finding an Eligible Assignee. The exercise by the
Borrowers of their rights under this Section shall be at the Borrowers' sole
cost and expense and at no cost or expense to the Agent, the Affected Lender or
any of the other Lenders. The terms of this Section shall not in any way limit
the Borrowers' obligation to pay to any Affected Lender compensation owing to
such Affected Lender pursuant to Section 3.12. or 4.1. with respect to periods
up to the date of replacement.
Section 4.6. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or
to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 4.1.(b) or 4.3., then such Lender's LIBOR Loans shall be automatically
Converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s) for LIBOR Loans (or, in the case of a Conversion required by Section
4.1.(b) or 4.3., on such earlier date as such Lender may specify to the
Borrowers with a copy to the Agent)
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and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1. or 4.3. that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as Base
Rate Loans, and all Base Rate Loans of such Lender that would otherwise
be Converted into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrowers (with a copy to the Agent) that the
circumstances specified in Section 4.1. or 4.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding, then such Lender's
Base Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
Section 4.7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Section 3.12., 4.1. or 4.3. to reduce the
liability of the Borrowers or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
Section 4.8. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article IV.
shall be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
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ARTICLE V. CONDITIONS PRECEDENT
Section 5.1. Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the
first Credit Event hereunder, whether as the making of a Loan or the issuance of
a Letter of Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) Counterparts of this Agreement executed by each of the
parties hereto;
(ii) Revolving Notes executed by the Borrowers, payable to
each Lender and complying with the applicable provisions of Section
2.10., and the Swingline Note executed by the Borrower;
(iii) The Guaranty executed by each Guarantor existing as of
the Effective Date;
(iv) An opinion of counsel to the Borrowers and each other
Loan Party that is an Unencumbered Property Owner, addressed to the
Agent, the Lenders and the Swingline Lender, addressing the matters set
forth in Exhibit H;
(v) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of the Borrowers and each other Loan Party that is
an Unencumbered Property Owner certified as of a recent date by the
Secretary of State of the state of formation of such Loan Party;
(vi) A certificate of good standing or certificate of similar
meaning with respect to each such Loan Party issued as of a recent date
by the Secretary of State of the state of formation of each such Loan
Party and certificates of qualification to transact business or other
comparable certificates issued by each Secretary of State (and any
state department of taxation, as applicable) of each state in which
such Loan Party is required to be so qualified and where the failure to
be so qualified could reasonably be expected to have a Material Adverse
Effect;
(vii) A certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of each such Loan Party with respect to each of the officers of such
Loan Party authorized to execute and deliver the Loan Documents to
which such Loan Party is a party, and in the case of the Borrowers, and
the officers of the Borrower Representative then authorized to deliver
Notices of Borrowing, Notices of Swingline Borrowings,
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Notices of Continuation and Notices of Conversion and to request the
issuance of Letters of Credit;
(viii) Copies certified by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each
such Loan Party of (i) the by-laws of such Loan Party, if a
corporation, the operating agreement of such Loan Party, if a limited
liability company, the partnership agreement of such Loan Party, if a
limited or general partnership, or other comparable document in the
case of any other form of legal entity and (ii) all corporate,
partnership, member or other necessary action taken by such Loan Party
to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(ix) The Fees then due and payable under Section 3.6., and any
other Fees payable to the Agent, the Titled Agents and the Lenders on
or prior to the Effective Date;
(x) A Compliance Certificate calculated as of March 31, 2005
(giving pro forma effect to the financing contemplated by this
Agreement and the use of the proceeds of the Loans to be funded on the
Closing Date);
(xi) A letter from the agent under the Existing Credit
Agreement providing information regarding the payment in full of
amounts outstanding thereunder and providing for the termination
thereof; and
(xii) Such other documents, agreements and instruments as the
Agent on behalf of the Lenders may reasonably request; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) There shall not have occurred or become known to the Agent
or any of the Lenders any event, condition, situation or status since
the date of the information contained in the financial and business
projections, budgets, pro forma data and forecasts concerning the Trust
and its Subsidiaries delivered to the Agent and the Lenders prior to
the Agreement Date that has had or could reasonably be expected to
result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (1) result in a
Material Adverse Effect or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect
the ability of the Borrowers or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party;
(iii) The Trust and its Subsidiaries shall have received all
approvals, consents and waivers, and shall have made or given all
necessary filings and notices, as shall be required to consummate the
transactions contemplated hereby
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without the occurrence of any default under, conflict with or violation
of (1) any Applicable Law or (2) any agreement, document or instrument
to which any Borrower or any other Loan Party is a party or by which
any of them or their respective properties is bound, except for such
approvals, consents, waivers, filings and notices the receipt, making
or giving of which would not reasonably be likely to (A) have a
Material Adverse Effect, or (B) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect
the ability of any Borrower or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions
contemplated by the Loan Documents.
Section 5.2. Conditions Precedent to All Loans and Letters of Credit.
The obligations of the Lenders to make any Loans, of the Agent to issue
Letters of Credit, and of the Swingline Lender to make any Swingline Loan are
all subject to the further condition precedent that: (a) no Default or Event of
Default shall exist as of the date of the making of such Loan or date of
issuance of such Letter of Credit or would exist immediately after giving effect
thereto; and (b) the representations and warranties made or deemed made by the
Borrowers and each other Loan Party in the Loan Documents to which any of them
is a party, shall be true and correct in all material respects on and as of the
date of the making of such Loan or date of issuance of such Letter of Credit
with the same force and effect as if made on and as of such date except to the
extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been
true and correct in all material respects on and as of such earlier date) and
except for changes in factual circumstances not prohibited under the Loan
Documents. Each Credit Event shall constitute a certification by the Borrowers
to the effect set forth in the preceding sentence (both as of the date of the
giving of notice relating to such Credit Event and, unless the Borrowers
otherwise notify the Agent prior to the date of such Credit Event, as of the
date of the occurrence of such Credit Event). In addition, if such Credit Event
is the making of a Loan or the issuance of a Letter of Credit, the Borrowers
shall be deemed to have represented to the Agent and the Lenders at the time
such Loan is made or Letter of Credit issued that all conditions to the
occurrence of such Credit Event contained in this Article V. have been
satisfied.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties.
In order to induce the Agent and each Lender to enter into this
Agreement and to make Loans and issue Letters of Credit, the Borrowers
represents and warrants to the Agent and each Lender as follows:
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(a) Organization; Power; Qualification. Each of the Borrowers, the
other Loan Parties and the other Subsidiaries is a corporation, partnership or
other legal entity, duly organized or formed, validly existing and in good
standing under the jurisdiction of its incorporation or formation, has the power
and authority to own or lease its respective properties and to carry on its
respective business as now being and hereafter proposed to be conducted and is
duly qualified and is in good standing as a foreign corporation, partnership or
other legal entity, and authorized to do business, in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material
Adverse Effect.
(b) Ownership Structure. As of the Agreement Date, Part I of Schedule
6.1.(b) is a complete and correct list of all Subsidiaries of the Trust setting
forth for each such Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding any Equity Interests in such Subsidiary,
(iii) the nature of the Equity Interests held by each such Person, (iv) the
percentage of ownership of such Subsidiary represented by such Equity Interests
and (v) whether such Subsidiary is a Material Subsidiary and/or an Excluded
Subsidiary. Except as disclosed in such Schedule, as of the Agreement Date (i)
each of the Trust and its Subsidiaries owns, free and clear of all Liens (other
than Permitted Liens), and has the unencumbered right to vote, all outstanding
Equity Interests in each Person shown to be held by it on such Schedule, (ii)
all of the issued and outstanding capital stock of each such Person organized as
a corporation is validly issued, fully paid and nonassessable and (iii) there
are no outstanding subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including, without limitation, any
stockholders' or voting trust agreements) for the issuance, sale, registration
or voting of, or outstanding securities convertible into, any additional shares
of capital stock of any class, or partnership or other ownership interests of
any type in, any such Person. As of the Agreement Date Part II of Schedule
6.1.(b) correctly sets forth all Unconsolidated Affiliates of the Trust,
including the correct legal name of such Person, the type of legal entity which
each such Person is, and all Equity Interests in such Person held directly or
indirectly by the Trust.
(c) Authorization of Agreement, Etc. Each Borrower has the right and
power, and has taken all necessary action to authorize it, to borrow and obtain
other extensions of credit hereunder. The Borrowers and each other Loan Party
have the right and power, and has taken all necessary action to authorize it, to
execute, deliver and perform each of the Loan Documents to which it is a party
in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. The Loan Documents to which any Borrower or any
other Loan Party is a party have been duly executed and delivered by the duly
authorized officers of such Person and each is a legal, valid and binding
obligation of such Person enforceable against such Person in accordance with its
respective terms except as the same may be limited by bankruptcy, insolvency,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
(other than the payment of principal) contained herein or therein and as may be
limited by equitable principles generally.
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(d) Compliance of Loan Documents with Laws, Etc. The execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which any Borrower or any other Loan Party is a party in accordance
with their respective terms and the borrowings and other extensions of credit
hereunder do not and will not, by the passage of time, the giving of notice, or
both: (i) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to any Borrower or any other Loan
Party; (ii) conflict with, result in a breach of or constitute a default under
the organizational documents of any Borrower or any other Loan Party, or any
indenture, agreement or other instrument to which any Borrower or any other Loan
Party is a party or by which it or any of its respective properties may be
bound; or (iii) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by any Borrower
or any other Loan Party.
(e) Compliance with Law; Governmental Approvals. Each of the Borrowers,
each other Loan Party and each other Subsidiary is in compliance with each
Governmental Approval applicable to it and in compliance with all other
Applicable Laws (including without limitation, Environmental Laws) relating to a
Borrower, a Subsidiary or such other Loan Party except for noncompliances which,
and Governmental Approvals the failure to possess which, could not, individually
or in the aggregate, reasonably be expected to cause a Default or Event of
Default or have a Material Adverse Effect.
(f) Title to Properties; Liens. As of the Agreement Date, Part I of
Schedule 6.1.(f) is a complete and correct listing of all of the real property
owned or leased by each Borrower, each other Loan Party and each other
Subsidiary. Each such Person has good, marketable and legal title to, or a valid
leasehold interest in, its respective assets. As of the Agreement Date, there
are no Liens against any assets of any Borrower, any other Loan Party or any
other Subsidiary except for Permitted Liens.
(g) Existing Indebtedness. Schedule 6.1.(g) is, as of the Agreement
Date, a complete and correct listing of all Indebtedness of the Trust and its
Subsidiaries, including without limitation, Guarantees of the Trust and its
Subsidiaries, and indicating whether such Indebtedness is Secured Indebtedness.
(h) Material Contracts. Schedule 6.1.(h) is, as of the Agreement Date,
a true, correct and complete listing of all Material Contracts. No event or
condition exists which with the giving of notice, the lapse of time, or both,
would permit any party to any such Material Contract to terminate such Material
Contract.
(i) Litigation. Except as set forth on Schedule 6.1.(i), there are no
actions, suits, investigations or proceedings pending (nor, to the knowledge of
the Borrowers, are there any actions, suits or proceedings threatened) against
or in any other way relating adversely to or affecting any Borrower, any other
Loan Party or any other Subsidiary or any of their respective property in any
court or before any arbitrator of any kind or before or by any other
Governmental Authority which could reasonably be expected to have a Material
Adverse Effect. There are no strikes, slow downs, work stoppages or walkouts
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or other labor disputes in progress or threatened relating to any Borrower, any
other Loan Party or any other Subsidiary which could reasonably be expected to
have a Material Adverse Effect.
(j) Taxes. All federal, state and other tax returns of each Borrower,
each other Loan Party and each other Subsidiary required by Applicable Law to be
filed have been duly filed, and all federal, state and other taxes, assessments
and other governmental charges or levies upon each Borrower, each other Loan
Party and each other Subsidiary and their respective properties, income, profits
and assets which are due and payable have been paid, except any such nonpayment
which is at the time permitted under Section 7.6. As of the Agreement Date, none
of the United States income tax returns of any Borrower, any other Loan Party or
any other Subsidiary is under an audit. All charges, accruals and reserves on
the books of the Trust and each of its Subsidiaries in respect of any taxes or
other governmental charges are in accordance with GAAP.
(k) Financial Statements. The Trust has furnished to each Lender copies
of (i) the audited consolidated balance sheet of the Trust and its consolidated
Subsidiaries for the fiscal year ending December 31, 2004, and the related
audited consolidated statements of operations, cash flows and changes in
shareholders' equity for the fiscal year ending on such dates, with the opinion
thereon of KPMG LLP, and (ii) the unaudited consolidated balance sheet of the
Trust and its consolidated Subsidiaries for the fiscal quarter ending March 31,
2005, and the related unaudited consolidated statements of operations and cash
flows of the Trust and its consolidated Subsidiaries for the fiscal quarter
ending on such date. Such financial statements (including in each case related
schedules and notes) present fairly, in all material respects and in accordance
with GAAP consistently applied throughout the periods involved, the consolidated
financial position of the Trust and its consolidated Subsidiaries as at their
respective dates and the results of operations and the cash flow for such
periods (subject, as to interim statements, to changes resulting from normal
year-end audit adjustments). Except as set forth in the Schedules to this
Agreement, neither the Trust nor any of its Subsidiaries has on the Agreement
Date any contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, in each case, that is material and that would be
required to be set forth in its financial statements or in the notes thereto,
except as referred to or reflected or provided for in said financial statements.
(l) No Material Adverse Change. Since December 31, 2004, there has been
no material adverse change in the business, assets, liabilities, financial
condition, results of operations or business prospects of the Trust and its
Subsidiaries taken as a whole. Each of the Borrowers, the other Loan Parties and
the other Subsidiaries is Solvent.
(m) ERISA. Each member of the ERISA Group is in compliance with its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material
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Xxxxxxx Xxxxxx. As of the Agreement Date, no member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could reasonably be expected to result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA.
(n) Not Plan Assets; No Prohibited Transaction. None of the assets of
any Borrower, any other Loan Party or any other Subsidiary constitute "plan
assets" within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder. The execution, delivery and
performance of this Agreement and the other Loan Documents, and the borrowing
and repayment of amounts hereunder, do not and will not constitute non-exempt
"prohibited transactions" under ERISA or the Internal Revenue Code.
(o) Absence of Defaults. None of the Borrowers, any of the other Loan
Parties or any of the other Subsidiaries is in default under its articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents, and no event has occurred, which has not been remedied, cured or
waived, which, in any such case: (i) constitutes a Default or an Event of
Default; or (ii) constitutes, or which with the passage of time, the giving of
notice, or both, would constitute, a default or event of default by any
Borrower, any other Loan Party or any other Subsidiary under any agreement
(other than this Agreement) or judgment, decree or order to which any Borrower,
any other Loan Party or any other Subsidiary is a party or by which any
Borrower, any other Loan Party or any other Subsidiary, or any of their
respective properties may be bound where such default or event of default could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(p) Environmental Laws. Each of the Borrowers, the other Loan Parties
and the other Subsidiaries has obtained all Governmental Approvals which are
required under Environmental Laws and is in compliance with all terms and
conditions of such Governmental Approvals which the failure to obtain or to
comply with could reasonably be expected to have a Material Adverse Effect.
Except for any of the following matters that could not be reasonably expected to
have a Material Adverse Effect, (i) the Trust is not aware of, and has not
received notice of, any past, present, or future events, conditions,
circumstances, activities, practices, incidents, actions, or plans which, with
respect to any Borrower, any other Loan Party or any other Subsidiary, may
interfere with or prevent compliance or continued compliance with Environmental
Laws, or may give rise to any common-law or legal liability, or otherwise form
the basis of any claim, action, demand, suit, proceeding, hearing, or
investigation, based on or related to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling or the emission,
discharge, release or threatened release into the environment, of any Hazardous
Material; and (ii) there is no civil, criminal, or administrative action, suit,
demand, claim, hearing, notice, or demand letter, notice of violation,
investigation, or
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proceeding pending or, to the Trust's knowledge, threatened, against any
Borrower, any other Loan Party or any other Subsidiary relating to any
Environmental Laws.
(q) Investment Company; Public Utility Holding Company. None of the
Borrowers, any of the other Loan Parties or any of the other Subsidiaries is (i)
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, (ii) a
"holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (iii) subject to any other Applicable Law which purports to
regulate or restrict its ability to borrow money or to consummate the
transactions contemplated by this Agreement or to perform its obligations under
any Loan Document to which it is a party.
(r) Margin Stock. None of the Borrowers, any of the other Loan Parties
or any of the other Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System.
(s) Affiliate Transactions. Except as is not prohibited by Section
9.11., none of the Borrowers, any of the other Loan Parties or any of the other
Subsidiaries is a party to any transaction with an Affiliate.
(t) Intellectual Property. Each of the Borrowers, other Loan Parties
and the other Subsidiaries owns or has the right to use, under valid license
agreements or otherwise, all material patents, licenses, franchises, trademarks,
trademark rights, service marks, service xxxx rights, trade names, trade name
rights, trade secrets and copyrights (collectively, "Intellectual Property")
necessary to the conduct of its businesses as now conducted and as contemplated
by the Loan Documents, without known conflict with any patent, license,
franchise, trademark, trademark right, service xxxx, service xxxx right, trade
secret, trade name, copyright or other proprietary right of any other Person.
The Borrowers, the other Loan Parties and the other Subsidiaries have taken all
such steps as they deem reasonably necessary to protect their respective rights
under and with respect to such Intellectual Property. No material claim has been
asserted by any Person with respect to the use of any such Intellectual Property
by any Borrower, any other Loan Party or any other Subsidiary, or challenging or
questioning the validity or effectiveness of any such Intellectual Property. The
use of such Intellectual Property by the Borrowers, the other Loan Parties and
the other Subsidiaries, does not infringe on the rights of any Person, subject
to such claims and infringements as do not, in the aggregate, give rise to any
liabilities on the part of any Borrower, any other Loan Party or any other
Subsidiary that could reasonably be expected to have a Material Adverse Effect.
(u) Business. As of the Agreement Date, the Trust and its Subsidiaries
are engaged in the business of acquiring, owning, and managing net leased
office, industrial and retail properties and providing investment advisory and
asset management services to
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institutional investors in the net lease area, together with other business
activities incidental thereto.
(v) Broker's Fees. No broker's or finder's fee, commission or similar
compensation will be payable with respect to the transactions contemplated
hereby. No other similar fees or commissions will be payable by any Loan Party
for any other services rendered to the Trust or any of its Subsidiaries
ancillary to the transactions contemplated hereby.
(w) Accuracy and Completeness of Information. No written information,
report or other papers or data (excluding financial projections and other
forward looking statements) furnished to the Agent or any Lender by, on behalf
of, or at the direction of, any Borrower, any other Loan Party or any other
Subsidiary in connection with, pursuant to or relating in any way to this
Agreement, contained any untrue statement of a fact material to the
creditworthiness of the Borrowers, the other Loan Parties and the other
Subsidiaries taken as a whole or omitted to state a material fact necessary in
order to make such statements contained therein, in light of the circumstances
under which they were made, not misleading. All financial statements (including
in each case all related schedules and notes) furnished to the Agent or any
Lender by, on behalf of, or at the direction of, any Borrower, any other Loan
Party or any other Subsidiary in connection with, pursuant to or relating in any
way to this Agreement, present fairly, in all material respects and in
accordance with GAAP consistently applied throughout the periods involved, the
financial position of the Persons involved as at the date thereof and the
results of operations for such periods (subject, as to interim statements, to
changes resulting from normal year-end audit adjustments). All financial
projections and other forward looking statements prepared by or on behalf of any
Borrower, any other Loan Party or any other Subsidiary that have been or may
hereafter be made available to the Agent or any Lender were or will be prepared
in good faith based on reasonable assumptions as of the date of such
information; provided, however, the Agent and the Lenders recognize that such
projections as to future events are not to be viewed as facts or guarantees of
future performance and that actual results during the period or periods covered
by any such projections may differ from the projected results. As of the
Effective Date, no fact is known to any Borrower which has had, or may in the
future have (so far as such Borrower can reasonably foresee), a Material Adverse
Effect which has not been set forth in the financial statements referred to in
Section 6.1.(k) or in such information, reports or other papers or data or
otherwise disclosed in writing to the Agent and the Lenders.
(x) REIT Status. The Trust qualifies as a REIT and is in compliance
with all requirements and conditions imposed under the Internal Revenue Code to
allow the Trust to maintain its status as a REIT.
(y) Foreign Assets Control. To the knowledge of the Trust and the
Borrowers after due inquiry, none of the Borrower, any Subsidiary or any
Affiliate of the Borrower: (i) is a Sanctioned Person, (ii) has any of its
assets in Sanctioned Entities, or (iii) derives
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any of its operating income from investments in, or transactions with,
Sanctioned Persons or Sanctioned Entities.
Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of any Borrower, any other Loan Party
or any other Subsidiary to the Agent or any Lender pursuant to or in connection
with this Agreement or any of the other Loan Documents (including, but not
limited to, any such statement made in or in connection with any amendment
hereto or thereto or any such statement contained in any certificate, financial
statement or other instrument delivered by or on behalf of any Borrower, any
other Loan Party or any other Subsidiary prior to the Agreement Date and
delivered to the Agent or any Lender in connection with the underwriting or
closing of the transactions contemplated hereby) shall constitute
representations and warranties made by the Borrowers in favor of the Agent or
any of the Lenders under this Agreement. All representations and warranties made
under this Agreement and the other Loan Documents shall be deemed to be made at
and as of the Agreement Date, the Effective Date, the date on which any
extension of the Termination Date is effectuated pursuant to Section 2.12. and
the date of the occurrence of any Credit Event, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct
in all material respects on and as of such earlier date) and except for changes
in factual circumstances not prohibited under the Loan Documents. All such
representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents and the making of
the Loans and the issuance of the Letters of Credit.
ARTICLE VII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 12.6., the Borrowers
shall comply with the following covenants:
Section 7.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 9.7., the Borrowers shall,
and shall cause each other Loan Party and each other Subsidiary to, preserve and
maintain its respective existence, rights, franchises, licenses and privileges
in the jurisdiction of its incorporation or formation and qualify and remain
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
Section 7.2. Compliance with Applicable Law and Material Contracts.
The Borrowers shall, and shall cause each other Loan Party and each
other Subsidiary to, comply with (a) all Applicable Laws, including the
obtaining of all
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Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect, and (b) all terms and conditions of
all Material Contracts to which it is a party.
Section 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrowers shall, and shall cause each other Loan Party and each other Subsidiary
to, (a) protect and preserve all of its respective material properties,
including, but not limited to, all Intellectual Property, and maintain in good
repair, working order and condition all tangible properties, ordinary wear and
tear excepted, and (b) make or cause to be made all needed and appropriate
repairs, renewals, replacements and additions to such properties, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
Section 7.4. Conduct of Business.
The Borrowers shall, and shall cause each other Loan Party and each
other Subsidiary to, carry on, their respective businesses as described in
Section 6.1.(u).
Section 7.5 Insurance.
In addition to the requirements of any of the other Loan Documents, the
Borrowers shall, and shall cause each other Loan Party and each other Subsidiary
to, maintain insurance (on a replacement cost basis) with financially sound and
reputable insurance companies against such risks and in such amounts as is
customarily maintained by Persons engaged in similar businesses or as may be
required by Applicable Law, and from time to time deliver to the Agent upon its
request a detailed list, together with copies of all policies of the insurance
then in effect, stating the names of the insurance companies, the amounts and
rates of the insurance, the dates of the expiration thereof and the properties
and risks covered thereby.
Section 7.6. Payment of Taxes and Claims.
The Borrowers shall, and shall cause each other Loan Party and each
other Subsidiary to, pay and discharge when due (a) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any properties belonging to it, and (b) all lawful claims of materialmen,
mechanics, carriers, warehousemen and landlords for labor, materials, supplies
and rentals which, if unpaid, might become a Lien on any properties of such
Person; provided, however, that this Section shall not require the payment or
discharge of any such tax, assessment, charge, levy or claim which is being
contested in good faith by appropriate proceedings which operate to suspend the
collection thereof and for which adequate reserves have been established on the
books of the applicable Borrower, or Subsidiary, in accordance with GAAP.
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Section 7.7. Visits and Inspections.
The Borrowers shall, and shall cause each other Loan Party and each
other Subsidiary to, permit representatives or agents of any Lender or the
Agent, from time to time after reasonable prior notice if no Event of Default
shall be in existence, and as often as may be reasonably requested, but only
during normal business hours, to: (a) visit and inspect all properties of the
Borrowers the other Loan Parties and the other Subsidiaries to the extent any
such right to visit or inspect is within the control of such Person; (b) inspect
and make extracts from their respective books and records, including but not
limited to management letters prepared by independent accountants; and (c)
discuss with its officers and employees, and its independent accountants, its
business, properties, condition (financial or otherwise), results of operations
and performance. If requested by the Agent, the Borrowers shall execute an
authorization letter addressed to its accountants authorizing the Agent or any
Lender to discuss the financial affairs of any Borrower, any other Loan Party or
any other Subsidiary with its accountants. The exercise by the Agent or a Lender
of its rights under this Section shall be at the expense of the Agent or such
Lender, as the case may be, unless an Event of Default shall exist in which case
it shall be at the expense of the Borrowers.
Section 7.8. Use of Proceeds; Letters of Credit.
The Borrowers shall use the proceeds of the Loans and the Letters of
Credit for general corporate purposes only, including the acquisition,
renovation and improvement of real property. No part of the proceeds of any Loan
or Letter of Credit will be used (a) for the purpose of buying or carrying
"margin stock" within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or (b) to finance any operations
in, finance investments or activities in, or make any payments to, a Sanctioned
Person or Sanctioned Entity.
Section 7.9. Environmental Matters.
The Borrowers shall, and shall cause all of the other Loan Parties and
all of the other Subsidiaries to, comply with all Environmental Laws the failure
with which to comply could reasonably be expected to have a Material Adverse
Effect. If any Borrower, any other Loan Party or any other Subsidiary: (a)
receives notice that any violation of any Environmental Law may have been
committed or is about to be committed by such Person, (b) receives notice that
any administrative or judicial complaint or order has been filed or is about to
be filed against any Borrower, any other Loan Party or any other Subsidiary
alleging violations of any Environmental Law or requiring any Borrower, any
other Loan Party or any other Subsidiary to take any action in connection with
the release of Hazardous Materials or (c) receives any notice from a
Governmental Authority or private party alleging that any Borrower, any other
Loan Party or any other Subsidiary may be liable or responsible for costs
associated with a response to or cleanup of a release of Hazardous Materials or
any damages caused thereby, and the matters referred to in such notices,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, the Borrowers shall
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provide the Agent with a copy of such notice promptly, and in any event within
10 Business Days, after the receipt thereof by a Borrower, any other Loan Party
or any other Subsidiary. The Borrowers shall, and shall cause the other Loan
Parties and the other Subsidiaries to, take promptly all actions necessary to
prevent the imposition of any Liens on any of their respective properties
arising out of or related to any Environmental Laws.
Section 7.10. Books and Records.
The Borrowers shall, and shall cause each of the other Loan Parties and
each of the other Subsidiaries to, maintain books and records pertaining to its
respective business operations in such detail, form and scope as is consistent
with good business practice and in accordance with GAAP.
Section 7.11. Further Assurances.
The Borrowers shall, at the Borrowers' cost and expense and upon
request of the Agent, execute and deliver or cause to be executed and delivered,
to the Agent such further instruments, documents and certificates, and do and
cause to be done such further acts that may be reasonably necessary or advisable
in the reasonable opinion of the Agent to carry out more effectively the
provisions and purposes of this Agreement and the other Loan Documents.
Section 7.12. New Subsidiaries/Guarantors.
(a) Requirement to Become Guarantor. Within 10 Business Days of any
Person (other than an Excluded Subsidiary) becoming a Material Subsidiary after
the Effective Date or a Material Subsidiary becoming an Unencumbered Property
Owner after the Effective Date, the Borrowers shall deliver to the Agent each of
the following items (to the extent not previously delivered to the Agent), each
in form and substance satisfactory to the Agent: (i) an Accession Agreement
executed by such Material Subsidiary and (ii) if such Material Subsidiary is an
Unencumbered Property Owner, the items that would have been delivered under
Sections 5.1.(a)(iv) through (viii) and (xii) if such Material Subsidiary had
been one on the Effective Date; provided, however, promptly (and in any event
within 10 Business Days) upon any Excluded Subsidiary ceasing to be subject to
the restriction which prevented it from becoming a Guarantor on the Effective
Date or delivering an Accession Agreement pursuant to this Section, as the case
may be, such Subsidiary shall comply with the provisions of this Section. Upon
the request of a Lender, the Agent shall send to such Lender copies of each of
the foregoing items once the Agent has received all such items with respect to a
Material Subsidiary.
(b) Release of a Guarantor. The Borrowers may request in writing that
the Agent release, and upon receipt of such request the Agent shall release, a
Guarantor from the Guaranty so long as: (i) such Guarantor (x) qualifies, or
will qualify simultaneously with its release from the Guaranty, as an Excluded
Subsidiary or (y) has ceased to be, or simultaneously with its release from the
Guaranty will cease to be, a Material Subsidiary or Subsidiary; (ii) such
Guarantor is not otherwise required to be a party to the Guaranty under the
immediately preceding subsection (a); (iii) no Default or Event of Default shall
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then be in existence or would occur as a result of such release, including
without limitation, a Default or Event of Default resulting from a violation of
any of the covenants contained in Section 9.1.; and (iv) the Agent shall have
received such written request at least 10 Business Days prior to the requested
date of release. Delivery by the Borrowers to the Agent of any such request
shall constitute a representation by the Borrowers that the matters set forth in
the preceding sentence (both as of the date of the giving of such request and as
of the date of the effectiveness of such request) are true and correct with
respect to such request.
Section 7.13. REIT Status.
The Trust shall at all times maintain its status as a REIT.
Section 7.14. Exchange Listing.
The Trust shall maintain at least one class of common shares of the
Trust having trading privileges on the New York Stock Exchange or the American
Stock Exchange or which is the subject of price quotations in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System.
ARTICLE VIII. INFORMATION
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrowers shall
furnish to each Lender (or to the Agent if so provided below) at its Lending
Office:
Section 8.1. Quarterly Financial Statements.
As soon as available and in any event within 10 days after the same is
required to be filed with the Securities and Exchange Commission (but in no
event later than 55 days after the end of each of the first, second and third
fiscal quarters of the Trust), the unaudited consolidated balance sheet of the
Trust and its Subsidiaries as at the end of such period and the related
unaudited consolidated statements of income and cash flows of the Trust and its
Subsidiaries for such period, setting forth in each case in comparative form the
figures as of the end of and for the corresponding periods of the previous
fiscal year, all of which shall be in form and substance reasonably satisfactory
to the Agent and shall be certified by the chief financial officer or chief
accounting officer of the Trust, in his or her opinion, to present fairly, in
accordance with GAAP and in all material respects, the consolidated financial
position of the Trust and its Subsidiaries as at the date thereof and the
results of operations for such period (subject to normal year-end audit
adjustments); provided, however, the Borrowers shall not be required to deliver
an item required under this Section if such item is contained in a Form 10-Q
filed by the Trust with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor) and is publicly available to the
Agent and the Lenders.
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Section 8.2. Year-End Statements.
As soon as available and in any event within 10 days after the same is
required to be filed with the Securities and Exchange Commission (but in no
event later than 100 days after the end of each fiscal year of the Trust), the
audited consolidated balance sheet of the Trust and its Subsidiaries as at the
end of such fiscal year and the related audited consolidated statements of
income, changes in shareholders' equity and cash flows of the Trust and its
Subsidiaries for such fiscal year, setting forth in comparative form the figures
as at the end of and for the previous fiscal year, all of which shall be (a) in
form and substance reasonably satisfactory to the Agent, (b) certified by the
chief financial officer or chief accounting officer of the Trust, in his or her
opinion, to present fairly, in accordance with GAAP and in all material
respects, the consolidated financial position of the Trust and its Subsidiaries
as at the date thereof and the results of operations for such period and (c)
accompanied by the report thereon of independent certified public accountants of
recognized national standing, whose certificate shall be without a "going
concern" or like qualification or exception, or a qualification arising out of
the scope of the audit, and who shall have authorized the Trust to deliver such
financial statements and report to the Agent and the Lenders; provided, however,
the Borrowers shall not be required to deliver an item required under this
Section if such item is contained in a Form 10-K filed by the Trust with the
Securities and Exchange Commission (or any Governmental Authority substituted
therefor) and is publicly available to the Agent and the Lenders.
Section 8.3. Compliance Certificate.
At the time financial statements are furnished pursuant to Sections
8.1. and 8.2., and if the Agent or the Requisite Lenders reasonably believe that
a Default or Event of Default may exist or may be likely to occur, within 5
Business Days of the Agent's request with respect to any other fiscal period, a
certificate substantially in the form of Exhibit I (a "Compliance Certificate")
executed by the chief financial officer or chief accounting officer of the
Trust: (a) setting forth in reasonable detail as at the end of such quarterly
accounting period, fiscal year, or other fiscal period, as the case may be, the
calculations required to establish whether or not the Borrowers were in
compliance with the covenants contained in Sections 9.1., 9.2. and 9.4. and (b)
stating that, to the best of his or her knowledge, information and belief after
due inquiry, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Borrowers with respect
to such event, condition or failure. Together with each Compliance Certificate
delivered in connection with quarterly or annual financial statements, the
Borrowers shall deliver a statement of Funds From Operations for the fiscal
period then ending, in form and detail reasonably satisfactory to the Agent.
Section 8.4. Other Information.
(a) Management Reports. Promptly upon receipt thereof, copies of all
management reports, if any, submitted to any Borrower or its Board of Directors
by its independent public accountants;
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(b) Securities Filings. Prompt notice of the filing of all registration
statements, reports on Forms 10-K, 10-Q and 8-K (or their equivalents) and all
other periodic reports which any of the Borrowers, any other Loan Party or any
other Subsidiary shall file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor) or any national securities
exchange, and promptly upon the filing thereof copies of any of the foregoing
that is not publicly available to the Agent and the Lenders or that the Agent or
any Lender may request;
(c) Shareholder Information; Press Releases. Promptly upon the mailing
thereof to the shareholders of the Trust or Operating Partnership generally,
copies of all financial statements, reports and proxy statements so mailed and
promptly upon the issuance thereof copies of all press releases issued by any
Borrower or any other Subsidiary;
(d) ERISA. If and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement, and such failure or amendment has
resulted or could reasonably be expected to result in the imposition of a Lien
or the posting of a bond or other security, a certificate of a duly authorized
executive of the Trust setting forth details as to such occurrence and the
action, if any, which the Trust or applicable member of the ERISA Group is
required or proposes to take;
(e) Litigation. To the extent any Borrower or any other Subsidiary is
aware of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in
any other way relating adversely to, or adversely affecting, any Borrower or any
other Subsidiary or any of their respective properties, assets or businesses
which could reasonably be expected to have a Material Adverse Effect, and prompt
notice of the receipt of notice that any United States income tax returns of the
Trust or any of its Subsidiaries are being audited;
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(f) Change of Management or Financial Condition. Prompt notice of any
change in the senior management of the Trust or the Operating Partnership and
any change in the business, assets, liabilities, financial condition, results of
operations or business prospects of any Borrower or any other Subsidiary which
has had or could reasonably be expected to have a Material Adverse Effect;
(g) Default. Notice of the occurrence of any of the following promptly
upon a Responsible Officer of the Trust obtaining knowledge thereof: (i) any
Default or Event of Default or (ii) any event which constitutes or which with
the passage of time, the giving of notice, or otherwise, would constitute a
default or event of default by any Borrower or any other Subsidiary under any
Material Contract to which any such Person is a party or by which any such
Person or any of its respective properties may be bound;
(h) Judgments. Prompt notice of any order, judgment or decree in excess
of $5,000,000 having been entered against any Borrower or any other Subsidiary
or any of their respective properties or assets;
(i) Material Asset Sales. Prompt notice of the sale, transfer or other
disposition of any material assets of any Borrower or any other Subsidiary to
any Person other than a Borrower or another Subsidiary;
(j) Patriot Act Information. From time to time and promptly upon each
request, information identifying any Borrower or any other Loan Party as a
Lender may request in order to comply with the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)); and
(k) Other Information. From time to time and promptly upon each
request, such data, certificates, reports, statements, opinions of counsel,
documents or further information regarding the business, assets, liabilities,
financial condition, results of operations or business prospects of any
Borrower, any other Loan Party or any other Subsidiary as the Agent or any
Lender may reasonably request.
ARTICLE IX. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 12.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 12.6., the Borrowers shall
comply with the following covenants:
Section 9.1. Financial Covenants.
The Borrowers shall not permit:
(a) Maximum Leverage Ratio. The ratio of (i) Total Indebtedness to (ii)
Capitalized Value, to exceed 0.65 to 1.00 at any time.
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(b) Minimum Debt Service Ratio. The ratio of (i) Adjusted EBITDA of the
Trust and its Subsidiaries determined on a consolidated basis for the period of
two consecutive fiscal quarters of the Trust most recently ending to (ii) Debt
Service for such period, to be less than 1.50 to 1.00 at any time.
(c) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted
EBITDA for the period of two consecutive fiscal quarters of the Trust most
recently ending to (ii) Fixed Charges for such period, to be less than 1.40 to
1.00 at any time.
(d) Maximum Recourse Secured Indebtedness Ratio. The ratio of (i)
Secured Indebtedness (excluding Nonrecourse Indebtedness) of the Borrowers and
the Guarantors determined on a consolidated basis to (ii) Capitalized Value, to
be greater than 0.10 to 1.00 at any time.
(e) Maximum Loan to Value Ratio. The ratio of (x) the principal amount
of Secured Indebtedness (other than Nonrecourse Indebtedness) secured by a Lien
on a Stabilized Property or a Development Property to (y) the Value of such
Property, to exceed the applicable ratio in the following table at any time:
--------------------------------------------------------
Property Type Maximum Ratio
--------------------------------------------------------
Stabilized Property 0.75 to 1.00
--------------------------------------------------------
Development Property 0.80 to 1.00
--------------------------------------------------------
(f) Minimum Net Worth. Tangible Net Worth at any time to be less than
(i) $845,175,000 plus (ii) 75.0% of the Net Proceeds of all Equity Issuances
effected by the Trust or any Subsidiary after March 31, 2005 (other than (x)
Equity Issuances to the Trust or any Subsidiary and (y) Equity Issuances by the
Trust or any Subsidiary, to the extent the proceeds thereof are used at the time
of such Equity Issuance to redeem, repurchase or otherwise acquire or retire any
other Equity Interest (other than Mandatorily Redeemable Stock) of the Trust or
such Subsidiary, as the case may be).
(g) Floating Rate Indebtedness. The ratio of (i) Floating Rate
Indebtedness of the Trust and its Subsidiaries determined on a consolidated
basis to (ii) Total Indebtedness, to exceed 0.35 to 1.00 at any time.
Section 9.2. Restricted Payments.
The Trust shall not, and shall not permit any of its Subsidiaries to,
declare or make any Restricted Payment; provided, however, that the Trust and
its Subsidiaries may declare and make the following Restricted Payments so long
as no Default or Event of Default would result therefrom:
(a) the Operating Partnership may make cash distributions to the Trust
and other holders of partnership interests in the Operating Partnership with
respect to any fiscal year ending during the term of this Agreement to the
extent necessary for the Trust to make, and the Trust may so make, cash
distributions to its shareholders in an aggregate
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amount not to exceed the greater of (i) the amount required to be distributed
for the Trust to maintain its status as a REIT or (ii) 90.0% of Funds From
Operation;
(b) the Trust may make cash distributions to its shareholders of
capital gains resulting from gains from certain asset sales to the extent
necessary to avoid payment of taxes on such asset sales imposed under Sections
857(b)(3) and 4981 of the Internal Revenue Code;
(c) any Borrower or any Subsidiary may acquire the Equity Interests of
a Subsidiary that is not a Wholly Owned Subsidiary;
(d) any Subsidiary (other than the Operating Partnership) that is not a
Wholly Owned Subsidiary may make cash distributions to holders of Equity
Interests issued by such Subsidiary;
(e) Subsidiaries may pay Restricted Payments to the Trust or any other
Subsidiary; and
(f) An Operating Partnership or the Trust, as applicable, may exchange
Equity Interest in such Operating Partnership for Equity Interests in the Trust.
Notwithstanding the foregoing, but subject to the following sentence, if a
Default or Event of Default exists, the Operating Partnership may only make cash
distributions to the Trust and other holders of partnership interests in the
Operating Partnership, and the Trust may distribute to its shareholders such
cash distributions received from the Operating Partnership, during any fiscal
year in an aggregate amount not to exceed the minimum amount necessary for the
Trust to maintain its status as a REIT. If a Default or Event of Default
specified in Section 10.1.(a), Section 10.1.(b), Section 10.1.(f) or Section
10.1.(g) shall exist, or if as a result of the occurrence of any other Event of
Default any of the Obligations have been accelerated pursuant to Section
10.2.(a), the Trust shall not, and shall not permit any Subsidiary to, make any
Restricted Payments to any Person other than to the Trust or any Subsidiary.
Section 9.3. Indebtedness.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, incur, assume, or otherwise become obligated in respect
of any Indebtedness after the Agreement Date if immediately prior to the
assumption, incurring or becoming obligated in respect thereof, or immediately
thereafter and after giving effect thereto, a Default or Event of Default is or
would be in existence, including without limitation, a Default or Event of
Default resulting from a violation of any of the covenants contained in Section
9.1.
Section 9.4. Certain Permitted Investments.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, make any Investment in or otherwise own the following
items which
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would cause the aggregate value of such holdings of the Borrowers, the other
Loan Parties and the other Subsidiaries to exceed the applicable limits set
forth below:
(a) Investments in Unconsolidated Affiliates and other Persons that are
not Subsidiaries, such that the aggregate value of such Investments (determined
in a manner consistent with the definition of Capitalized Value or, if not
contemplated under the definition of Capitalized Value, as determined in
accordance with GAAP) exceeds 20.0% of Capitalized Value at any time;
(b) raw land, such that the current book value of all raw land exceeds
10.0% of Capitalized Value;
(c) Development Property such that the aggregate Construction Budget
for all such Development Property exceeds 15.0% of Capitalized Value at any
time;
(d) Mortgage Receivables and other promissory notes, such that the
aggregate book value of all such Mortgage Receivables and promissory notes
exceeds 10.0% of Capitalized Value at any time; and
(e) Properties leased under ground leases by any Borrower or any
Subsidiary, as lessee, such that the current value (determined in accordance
with the applicable provisions of the term "Capitalized Value") of such
Properties exceeds 10.0% of Capitalized Value at any time.
In addition to the foregoing limitations, the aggregate value of all of the
items subject to the limitations in the preceding clauses (a) through (e) shall
not exceed 30.0% of Capitalized Value at any time.
Section 9.5. Investments Generally.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, directly or indirectly, acquire, make or purchase any
Investment, or permit any Investment of such Person to be outstanding on and
after the Agreement Date, other than the following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 6.1.(b);
(b) Investments to acquire Equity Interests of a Subsidiary or any
other Person who after giving effect to such acquisition would be a Subsidiary,
so long as in each case (i) immediately prior to such Investment, and after
giving effect thereto, no Default or Event of Default is or would be in
existence and (ii) if such Subsidiary is (or after giving effect to such
Investment would become) a Material Subsidiary, and is not an Excluded
Subsidiary, the terms and conditions set forth in Section 7.12. are satisfied;
(c) Investments permitted under Section 9.4.;
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(d) Investments in Cash Equivalents;
(e) intercompany Indebtedness among the Loan Parties and the Wholly
Owned Subsidiaries of the Loan Parties provided that such Indebtedness is
permitted by the terms of Section 9.3.;
(f) loans and advances to officers and employees for moving,
entertainment, travel and other similar expenses in the ordinary course of
business consistent with past practices; and
(g) any other Investment so long as immediately prior to making such
Investment, and immediately thereafter and after giving effect thereto, no
Default or Event of Default is or would be in existence.
Section 9.6. Liens; Negative Pledges; Other Matters.
(a) The Borrowers shall not, and shall not permit any other Loan Party
or any other Subsidiary to, create, assume, or incur any Lien (other than
Permitted Liens) upon any of its properties, assets, income or profits of any
character whether now owned or hereafter acquired if immediately prior to the
creation, assumption or incurring of such Lien, or immediately thereafter, a
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of any of
the covenants contained in Section 9.1.
(b) The Borrowers shall not, and shall not permit any other Loan Party
or any other Subsidiary to, enter into, assume or otherwise be bound by any
Negative Pledge except for a Negative Pledge contained in (i) an agreement (x)
evidencing Indebtedness which such Borrower, Loan Party or Subsidiary may
create, incur, assume, or permit or suffer to exist under Section 9.3., (y)
which Indebtedness is secured by a Lien permitted to exist under the Loan
Documents, and (z) which prohibits the creation of any other Lien on only the
property securing such Indebtedness as of the date such agreement was entered
into; or (ii) in an agreement relating to the sale of a Subsidiary or assets
pending such sale, provided that in any such case the Negative Pledge applies
only to the Subsidiary or the assets that are the subject of such sale.
(c) The Borrowers shall not, and shall not permit any other Loan Party
or any other Subsidiary to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary (other than an Excluded Subsidiary) to: (i) pay
dividends or make any other distribution on any of such Subsidiary's capital
stock or other equity interests owned by a Borrower or any Subsidiary; (ii) pay
any Indebtedness owed to a Borrower or any Subsidiary; (iii) make loans or
advances to a Borrower or any Subsidiary; or (iv) transfer any of its property
or assets to a Borrower or any Subsidiary.
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Section 9.7. Merger, Consolidation, Sales of Assets and Other
Arrangements.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to: (i) enter into any transaction of merger or
consolidation; (ii) liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); or (iii) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or
substantially all of its business or assets, whether now owned or hereafter
acquired; provided, however, that:
(a) any of the actions described in the immediately preceding clauses
(i) through (iii) may be taken with respect to any Subsidiary or any other Loan
Party (other than a Borrower) so long as immediately prior to the taking of such
action, and immediately thereafter and after giving effect thereto, no Default
or Event of Default is or would be in existence; notwithstanding the foregoing,
any such Loan Party (other than a Borrower) may enter into a transaction of
merger pursuant to which such Loan Party is not the survivor of such merger only
if (i) the Borrowers shall have given the Agent and the Lenders at least 10
Business Days' prior written notice of such merger, such notice to include a
certification to the effect that immediately after and after giving effect to
such action, no Default or Event of Default is or would be in existence; (ii) if
the survivor entity is a Material Subsidiary (and not an Excluded Subsidiary)
within 5 Business Days of consummation of such merger, the survivor entity (if
not already a Guarantor) shall have executed and delivered an assumption
agreement in form and substance reasonably satisfactory to the Agent pursuant to
which such survivor entity shall expressly assume all of such Loan Party's
Obligations under the Loan Documents to which it is a party; (iii) within 10
Business Days of consummation of such merger, the survivor entity delivers to
the Agent the following: (A) items of the type referred to in Sections
5.1.(a)(iv) through (viii) with respect to the survivor entity as in effect
after consummation of such merger (if not previously delivered to the Agent and
still in effect), (B) copies of all documents entered into by such Loan Party or
the survivor entity to effectuate the consummation of such merger, including,
but not limited to, articles of merger and the plan of merger, (C) copies,
certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of such Loan Party or the survivor entity, of all
corporate and shareholder action authorizing such merger and (D) copies of any
filings with the Securities and Exchange Commission in connection with such
merger; and (iv) such Loan Party and the survivor entity each takes such other
action and delivers such other documents, instruments, opinions and agreements
as the Agent may reasonably request;
(b) the Borrowers, the other Loan Parties and the other Subsidiaries
may lease and sublease their respective assets, as lessor or sublessor (as the
case may be), in the ordinary course of their business;
(c) a Person may merge with and into a Borrower so long as (i) such
Borrower is the survivor of such merger, (ii) immediately prior to such merger,
and immediately thereafter and after giving effect thereto, no Default or Event
of Default is or would be in existence, and (iii) the Borrowers shall have given
the Agent and the Lenders
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at least 10 Business Days' prior written notice of such merger, such notice to
include a certification as to the matters described in the immediately preceding
clause (ii) (except that such prior notice shall not be required in the case of
the merger of a Subsidiary with and into a Borrower);
(d) the Borrowers and the other Loan Parties may sell, transfer or
dispose of assets among themselves, and the other Subsidiaries that are not Loan
Parties may sell, transfer or dispose of assets among themselves or to a
Borrower or other Loan Party.
Section 9.8. Fiscal Year.
The Trust shall not change its fiscal year from that in effect as of
the Agreement Date.
Section 9.9 Modifications to Material Contracts.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, enter into any amendment or modification to any
Material Contract which could reasonably be expected to have a Material Adverse
Effect.
Section 9.10. Modifications of Organizational Documents.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, amend, supplement, restate or otherwise modify its
articles or certificate of incorporation, by-laws, operating agreement,
declaration of trust, partnership agreement or other applicable organizational
document if such amendment, supplement, restatement or other modification could
reasonably be expected to have a Material Adverse Effect.
Section 9.11. Transactions with Affiliates.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, permit to exist or enter into, any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate (other than a Loan Party), except
transactions in the ordinary course of and pursuant to the reasonable
requirements of the business of such Borrower, other Loan Party or other
Subsidiary and upon fair and reasonable terms which are no less favorable to
such Borrower, other Loan Party or other Subsidiary than would be obtained in a
comparable arm's length transaction with a Person that is not an Affiliate.
Section 9.12. ERISA Exemptions.
The Borrowers shall not, and shall not permit any other Loan Party or
any other Subsidiary to, permit any of its respective assets to become or be
deemed to be "plan assets" within the meaning of ERISA, the Internal Revenue
Code and the respective regulations promulgated thereunder.
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ARTICLE X. DEFAULT
Section 10.1 Events of Default.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment of Principal. Any Borrower shall fail to pay
when due (whether upon demand, at maturity, by reason of acceleration or
otherwise) the principal of any of the Loans, or any Reimbursement Obligation.
(b) Default in Payment of Interest and Other Obligations. Any Borrower
shall fail to pay when due any interest on any of the Loans or any of the other
payment Obligations owing by the Borrowers under this Agreement or any other
Loan Document, or any other Loan Party shall fail to pay when due any payment
Obligation owing by such other Loan Party under any Loan Document to which it is
a party, and such failure shall continue for a period of 5 Business Days.
(c) Default in Performance. (i) Any Borrower shall fail to perform or
observe any term, covenant, condition or agreement contained in the second
proviso of the second sentence of Section 2.3.(b), in Section 8.4.(g) or in
Article IX. or (ii) any Borrower or any other Loan Party shall fail to perform
or observe any term, covenant, condition or agreement contained in this
Agreement or any other Loan Document to which it is a party and not otherwise
mentioned in this Section and in the case of this clause (ii) only such failure
shall continue for a period of 30 days after the earlier of (x) the date upon
which a Responsible Officer of any Borrower or such other Loan Party obtains
knowledge of such failure or (y) the date upon which any Borrower has received
written notice of such failure from the Agent.
(d) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of any Borrower or any other Loan
Party under this Agreement or under any other Loan Document, or any amendment
hereto or thereto, or in any other writing or statement at any time furnished or
made or deemed made by or on behalf of any Borrower or any other Loan Party to
the Agent or any Lender, shall at any time prove to have been incorrect or
misleading, in light of the circumstances in which made or deemed made, in any
material respect when furnished or made or deemed made.
(e) Indebtedness Cross-Default; Derivatives Contracts.
(i) Any Borrower, any other Loan Party or any other Subsidiary
shall fail to pay when due and payable, within any applicable grace or
cure period, the principal of, or interest on, any Indebtedness (other
than the Loans and Reimbursement Obligations) having an aggregate
outstanding principal amount of $10,000,000 or more in the case of
Indebtedness that is not Nonrecourse
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Indebtedness, or $25,000,000 or more in the case of Nonrecourse
Indebtedness (all such Indebtedness being referred to as "Material
Indebtedness"); or
(ii) (x) the maturity of any Material Indebtedness shall have
been accelerated in accordance with the provisions of any indenture,
contract or instrument evidencing, providing for the creation of or
otherwise concerning such Material Indebtedness or (y) any Material
Indebtedness shall have been required to be prepaid or repurchased
prior to the stated maturity thereof;
(iii) any other event shall have occurred and be continuing
which permits any holder or holders of Material Indebtedness, any
trustee or agent acting on behalf of such holder or holders or any
other Person, to accelerate the maturity of any such Material
Indebtedness or require any such Material Indebtedness to be prepaid or
repurchased prior to its stated maturity; or
(iv) there occurs under any Derivatives Contract an Early
Termination Date (as defined in such Derivatives Contract) resulting
from (A) any event of default under such Derivatives Contract as to
which any Loan Party is the Defaulting Party (as defined in such
Derivatives Contract) or (B) any Termination Event (as so defined)
under such Derivatives Contract as to which any Loan Party is an
Affected Party (as so defined) and, in either event, the Derivatives
Termination Value owed by any Loan Party as a result thereof is
$10,000,000 or more.
(f) Voluntary Bankruptcy Proceeding. Any Borrower, any other Loan Party
or any other Subsidiary (other than a Subsidiary that, together with all other
Subsidiaries then subject to a bankruptcy proceeding or other proceeding or
condition described in this subsection or the immediately following subsection,
does not account for more than $25,000,000 of Capitalized Value) shall: (i)
commence a voluntary case under the Bankruptcy Code of 1978, as amended, or
other federal bankruptcy laws (as now or hereafter in effect); (ii) file a
petition seeking to take advantage of any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; (iii) consent to, or fail to contest in a
timely and appropriate manner, any petition filed against it in an involuntary
case under such bankruptcy laws or other Applicable Laws or consent to any
proceeding or action described in the immediately following subsection; (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign; (v) admit in writing its inability to pay its debts as they
become due; (vi) make a general assignment for the benefit of creditors; (vii)
make a conveyance fraudulent as to creditors under any Applicable Law; or (viii)
take any corporate or partnership action for the purpose of effecting any of the
foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against any Borrower, any other Loan Party or any other Subsidiary
(other than a Subsidiary that, together with all other Subsidiaries then subject
to a bankruptcy
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proceeding or other proceeding or condition described in this subsection or the
immediately preceding subsection, does not account for more than $25,000,000 of
Capitalized Value) in any court of competent jurisdiction seeking: (i) relief
under the Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws
(as now or hereafter in effect) or under any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of such Person, or of all or any
substantial part of the assets, domestic or foreign, of such Person, and such
case or proceeding shall continue undismissed or unstayed for a period of 60
consecutive calendar days, or an order granting the remedy or other relief
requested in such case or proceeding against such Borrower, such other Loan
Party or such other Subsidiary (including, but not limited to, an order for
relief under such Bankruptcy Code or such other federal bankruptcy laws) shall
be entered.
(h) Litigation; Enforceability. Any Borrower or any other Loan Party
shall disavow, revoke or terminate (or attempt to terminate) any Loan Document
to which it is a party or shall otherwise challenge or contest in any action,
suit or proceeding in any court or before any Governmental Authority the
validity or enforceability of any Loan Document, or any Loan Document shall
cease to be in full force and effect (except as a result of the express terms
thereof).
(i) Judgment. A judgment or order for the payment of money or for an
injunction shall be entered against any Borrower, any other Loan Party, or any
other Subsidiary by any court or other tribunal and (i) such judgment or order
shall continue for a period of 30 days without being paid, stayed or dismissed
through appropriate appellate proceedings and (ii) either (A) the amount of such
judgment or order for which insurance has not been acknowledged in writing by
the applicable insurance carrier (or the amount as to which the insurer has
denied liability) exceeds, individually or together with all other such
outstanding judgments or orders entered against (x) in the case of the Borrowers
and the other Loan Parties, $10,000,000 or (y) in the case of the other
Subsidiaries, $25,000,000 or (B) in the case of an injunction or other
non-monetary judgment, such judgment could reasonably be expected to have a
Material Adverse Effect.
(j) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of any Borrower, any other Loan
Party or any other Subsidiary which (i) exceeds, individually or together with
all other such warrants, writs, executions and processes, (x) against the
Borrowers and other Loan Parties, $10,000,000 in amount or (y) against the other
Subsidiaries, $25,000,000 in amount, and in any such case such warrant, writ,
execution or process shall not be discharged, vacated, stayed or bonded for a
period of 30 days; provided, however, that if a bond has been issued in favor of
the claimant or other Person obtaining such warrant, writ, execution or process,
the issuer of such bond shall execute a waiver or subordination agreement in
form and substance satisfactory to the Agent pursuant to which the issuer of
such bond subordinates its right of reimbursement, contribution or subrogation
to the Obligations and waives or subordinates any Lien it may have on the assets
of any Loan Party.
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(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Liabilities in excess of $10,000,000
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer, any Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan must be terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur a current payment obligation in excess
of $10,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents.
(m) Change of Control/Change in Management.
(i) Any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person will be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 20.0% of the total voting power of the then
outstanding voting stock of the Trust; or
(ii) During any period of 12 consecutive months ending after
the Agreement Date, individuals who at the beginning of any such
12-month period constituted the Board of Trustees of the Trust
(together with any new trustees whose election by such Board or whose
nomination for election by the shareholders of the Trust was approved
by a vote of a majority of the trustees then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Trustees of the Trust
then in office.
Section 10.2. Remedies Upon Event of Default.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default
specified in Section 10.1.(f) or 10.1.(g), (A)(i) the principal of, and
all accrued interest on,
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the Loans and the Notes at the time outstanding, (ii) an amount equal
to the Stated Amount of all Letters of Credit outstanding as of the
date of the occurrence of such Event of Default for deposit into the
Collateral Account pursuant to Section 10.5. and (iii) all of the other
Obligations of the Borrowers, including, but not limited to, the other
amounts owed to the Lenders, the Swingline Lender and the Agent under
this Agreement, the Notes or any of the other Loan Documents shall
become immediately and automatically due and payable by the Borrowers
without presentment, demand, protest, or other notice of any kind, all
of which are expressly waived by the Borrowers and (B) all of the
Commitments, the obligation of the Lenders to make Revolving Loans, the
Swingline Commitment, the obligation of the Swingline Lender to make
Swingline Loans, and the obligation of the Agent to issue Letters of
Credit hereunder, shall all immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall exist, the
Agent shall, at the direction of the Requisite Lenders, do one or more
of the following: (A) declare (1) the principal of, and accrued
interest on, the Loans and the Notes at the time outstanding, (2) an
amount equal to the Stated Amount of all Letters of Credit outstanding
as of the date of the occurrence of such other Event of Default for
deposit into the Collateral Account pursuant to Section 10.5. and/or
(3) all of the other Obligations, including, but not limited to, the
other amounts owed to the Lenders and the Agent under this Agreement,
the Notes or any of the other Loan Documents to be forthwith due and
payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all
of which are expressly waived by the Borrowers and (B) terminate the
Commitments, the Swingline Commitment, the obligation of the Lenders to
make Loans hereunder and the obligation of the Agent to issue Letters
of Credit hereunder.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise any and all of its rights under any and
all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise all other rights and remedies it may
have under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
the Agent and the Lenders shall be entitled to the appointment of a receiver for
the assets and properties of the Trust and its Subsidiaries, without notice of
any kind whatsoever and without regard to the adequacy of any security for the
Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the business operations of the Trust and its
Subsidiaries and to exercise such power as the court shall confer upon such
receiver.
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Section 10.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Section 10.1.(g), the
Commitments shall immediately and automatically terminate.
Section 10.4. Allocation of Proceeds.
If an Event of Default shall exist and maturity of any of the
Obligations has been accelerated, all payments received by the Agent under any
of the Loan Documents, in respect of any principal of or interest on the
Obligations or any other amounts payable by the Borrowers hereunder or
thereunder, shall be applied in the following order and priority:
(a) amounts due the Agent in respect of fees and expenses due
under Section 12.2.;
(b) amounts due the Lenders in respect of fees and expenses
due under Section 12.2., pro rata in the amount then due each Lender;
(c) payments of interest on Swingline Loans;
(d) payments of interest on all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(e) payments of principal of Swingline Loans;
(f) payments of principal of all other Loans, Reimbursement
Obligations and other Letter of Credit Liabilities, to be applied for
the ratable benefit of the Lenders; provided, however, to the extent
that any amounts available for distribution pursuant to this subsection
are attributable to the issued but undrawn amount of an outstanding
Letters of Credit, such amounts shall be paid to the Agent for deposit
into the Collateral Account;
(g) amounts due the Agent and the Lenders pursuant to Sections
11.7. and 12.9.;
(h) payment of all other Obligations and other amounts due and
owing by the Borrowers and the other Loan Parties under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders; and
(i) any amount remaining after application as provided above,
shall be paid to the Borrowers or whomever else may be legally entitled
thereto.
Section 10.5. Collateral Account.
(a) As collateral security for the prompt payment in full when due of
all Letter of Credit Liabilities and the other Obligations, the Borrowers hereby
pledge and grant to
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the Agent, for the ratable benefit of the Agent and the Lenders as provided
herein, a security interest in all of their respective right, title and interest
in and to the Collateral Account and the balances from time to time in the
Collateral Account (including the investments and reinvestments therein provided
for below). The balances from time to time in the Collateral Account shall not
constitute payment of any Letter of Credit Liabilities until applied by the
Agent as provided herein. Anything in this Agreement to the contrary
notwithstanding, funds held in the Collateral Account shall be subject to
withdrawal only as provided in this Section.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Agent in such Cash Equivalents as the Agent shall determine in
its sole discretion. All such investments and reinvestments shall be held in the
name of and be under the sole dominion and control of the Agent for the ratable
benefit of the Lenders. The Agent shall exercise reasonable care in the custody
and preservation of any funds held in the Collateral Account and shall be deemed
to have exercised such care if such funds are accorded treatment substantially
equivalent to that which the Agent accords other funds deposited with the Agent,
it being understood that the Agent shall not have any responsibility for taking
any necessary steps to preserve rights against any parties with respect to any
funds held in the Collateral Account.
(c) If a drawing pursuant to any Letter of Credit occurs on or prior to
the expiration date of such Letter of Credit, the Borrowers and the Lenders
authorize the Agent to use the monies deposited in the Collateral Account and
proceeds thereof to make payment to the beneficiary with respect to such drawing
or the payee with respect to such presentment.
(d) If an Event of Default exists, the Requisite Lenders may, in their
discretion, at any time and from time to time, instruct the Agent to liquidate
any such investments and reinvestments and apply proceeds thereof to the
Obligations in accordance with Section 10.4.
(e) So long as no Default or Event of Default exists, and to the extent
amounts on deposit in or credited to the Collateral Account exceed the aggregate
amount of the Letter of Credit Liabilities then due and owing, the Agent shall,
from time to time, at the request of the Borrowers, deliver to the Borrowers
within 10 Business Days after the Agent's receipt of such request from the
Borrowers, against receipt but without any recourse, warranty or representation
whatsoever, such amount of the credit balances in the Collateral Account as
exceeds the aggregate amount of the Letter of Credit Liabilities at such time.
(f) The Borrowers shall pay to the Agent from time to time such fees as
the Agent normally charges for similar services in connection with the Agent's
administration of the Collateral Account and investments and reinvestments of
funds therein.
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Section 10.6. Performance by Agent.
If any Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may, after notice to the
Borrowers, perform or attempt to perform such covenant, duty or agreement on
behalf of such Borrower after the expiration of any cure or grace periods set
forth herein. In such event, the Borrowers shall, at the request of the Agent,
promptly pay any amount reasonably expended by the Agent in such performance or
attempted performance to the Agent, together with interest thereon at the
applicable Post-Default Rate from the date of such expenditure until paid.
Notwithstanding the foregoing, neither the Agent nor any Lender shall have any
liability or responsibility whatsoever for the performance of any obligation of
any Borrower under this Agreement or any other Loan Document.
Section 10.7. Rights Cumulative.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the Agent and
the Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
ARTICLE XI. THE AGENT
Section 11.1 Authorization and Action.
Each Lender hereby appoints and authorizes the Agent to take such
action as contractual representative on such Lender's behalf and to exercise
such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Not in limitation of the
foregoing, each Lender authorizes and directs the Agent to enter into the Loan
Documents for the benefit of the Lenders. Each Lender hereby agrees that, except
as otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender or to impose
on the Agent duties or obligations other than those expressly provided for
herein. At the request of a Lender, the Agent will forward to such Lender copies
or, where appropriate, originals of the documents delivered to the Agent
pursuant to this Agreement or the other Loan Documents. The Agent will also
furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to the Agent by any Borrower, any other Loan
Party or any other Affiliate of any Borrower, pursuant to this Agreement or any
other Loan Document not already delivered to such Lender pursuant to the terms
of this Agreement or any such other Loan Document. As to any matters not
expressly provided for by the Loan
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Documents (including, without limitation, enforcement or collection of any of
the Obligations), the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Requisite Lenders (or all of the Lenders if explicitly
required under any other provision of this Agreement), and such instructions
shall be binding upon all Lenders and all holders of any of the Obligations;
provided, however, that, notwithstanding anything in this Agreement to the
contrary, the Agent shall not be required to take any action which exposes the
Agent to personal liability or which is contrary to this Agreement or any other
Loan Document or Applicable Law. Not in limitation of the foregoing, the Agent
shall not exercise any right or remedy it or the Lenders may have under any Loan
Document upon the occurrence of a Default or an Event of Default unless the
Requisite Lenders (or all of the Lenders if explicitly required under any
provision of this Agreement) have so directed the Agent to exercise such right
or remedy.
Section 11.2. Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other
Loan Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any other Loan
Document, except for its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment. Without limiting the generality of the foregoing, the Agent: (a) may
treat the payee of any Note as the holder thereof until the Agent receives
written notice of the assignment or transfer thereof signed by such payee and in
form satisfactory to the Agent; (b) may consult with legal counsel (including
its own counsel or counsel for the Borrowers or any other Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender or any other Person and shall not be
responsible to any Lender or any other Person for any statements, warranties or
representations made by any Person in or in connection with this Agreement or
any other Loan Document; (d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any of this Agreement or any other Loan Document or the satisfaction of any
conditions precedent under this Agreement or any Loan Document on the part of
the Borrowers or other Persons (except for the delivery to it of any certificate
or document specifically required to be delivered to it pursuant to Section
5.1.) or inspect the property, books or records of the Borrowers or any other
Person; (e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Loan Document, any other instrument or document furnished
pursuant thereto or any collateral covered thereby or the perfection or priority
of any Lien in favor of the Agent on behalf of the Lenders in any such
collateral; and (f) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone or
telecopy) believed by it to be genuine and signed, sent or given by the proper
party or parties. Unless set forth in writing to the
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contrary, the making of its initial Loan by a Lender shall constitute a
certification by such Lender to the Agent and the other Lenders that the
Borrowers have satisfied the conditions precedent for initial Loans set forth in
Sections 5.1. and 5.2. that have not previously been waived by the Requisite
Lenders.
Section 11.3. Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or the Borrowers referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default." Further, if the
Agent receives such a "notice of default", the Agent shall give prompt notice
thereof to the Lenders.
Section 11.4. Wachovia as Lender.
Wachovia, as a Lender, shall have the same rights and powers under this
Agreement and any other Loan Document as any other Lender and may exercise the
same as though it were not the Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Wachovia in each case in its
individual capacity. Wachovia and its affiliates may each accept deposits from,
maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with, any Borrower, any other Loan Party or any other
affiliate thereof as if it were any other bank and without any duty to account
therefor to the other Lenders. Further, the Agent and any affiliate may accept
fees and other consideration from any Borrower for services in connection with
this Agreement and otherwise without having to account for the same to the other
Lenders. The Lenders acknowledge that, pursuant to such activities, Wachovia or
its affiliates may receive information regarding the Trust, other Loan Parties,
other Subsidiaries and other Affiliates (including information that may be
subject to confidentiality obligations in favor of such Person) and acknowledge
that the Agent shall be under no obligation to provide such information to them.
Section 11.5. Approvals of Lenders.
All communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given in
the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
the Agent by the Borrowers in respect of the matter or issue to be resolved, and
(d) shall include the Agent's recommended course of action or determination in
respect thereof. Each Lender
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shall reply promptly, but in any event within 10 Business Days (or such lesser
or greater period as may be specifically required under the Loan Documents) of
receipt of such communication. Except as otherwise provided in this Agreement,
unless a Lender shall give written notice to the Agent that it specifically
objects to the recommendation or determination of the Agent (together with a
written explanation of the reasons behind such objection) within the applicable
time period for reply, such Lender shall be deemed to have conclusively approved
of or consented to such recommendation or determination.
Section 11.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the Agent
nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other affiliates has made any representations or warranties
as to the financial condition, operations, creditworthiness, solvency or other
information concerning the business or affairs of any Borrower, any other Loan
Party, any Subsidiary or any other Person to such Lender and that no act by the
Agent hereafter taken, including any review of the affairs of any Borrower, any
other Loan Party or any other Subsidiary, shall be deemed to constitute any such
representation or warranty by the Agent to any Lender. Each Lender acknowledges
that it has made its own credit and legal analysis and decision to enter into
this Agreement and the transactions contemplated hereby, independently and
without reliance upon the Agent, any other Lender or counsel to the Agent, or
any of their respective officers, directors, employees and agents, and based on
the financial statements of the Trust, the Subsidiaries or any other Affiliate
thereof, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Trust, the other Loan Parties, the Subsidiaries and
other Persons, its review of the Loan Documents, the legal opinions required to
be delivered to it hereunder, the advice of its own counsel and such other
documents and information as it has deemed appropriate. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent,
any other Lender or counsel to the Agent or any of their respective officers,
directors, employees and agents, and based on such review, advice, documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Agent under this Agreement or any of the other
Loan Documents, the Agent shall have no duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of any Borrower, any
other Loan Party or any other Affiliate thereof which may come into possession
of the Agent, or any of its officers, directors, employees, agents,
attorneys-in-fact or other affiliates. Each Lender acknowledges that the Agent's
legal counsel in connection with the transactions contemplated by this Agreement
is only acting as counsel to the Agent and is not acting as counsel to such
Lender.
Section 11.7. Indemnification of Agent.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do so)
pro rata in
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accordance with such Lender's respective Commitment Percentage, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, reasonable out-of-pocket costs and expenses, or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against the Agent (in its capacity as Agent but not as a Lender)
in any way relating to or arising out of the Loan Documents, any transaction
contemplated hereby or thereby or any action taken or omitted by the Agent under
the Loan Documents (collectively, "Indemnifiable Amounts"); provided, however,
that no Lender shall be liable for any portion of such Indemnifiable Amounts to
the extent resulting from the Agent's gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable
judgment or if the Agent fails to follow the written direction of the Requisite
Lenders (or all of the Lenders if expressly required hereunder) unless such
failure results from the Agent following the advice of counsel to the Agent of
which advice the Lenders have received notice. Without limiting the generality
of the foregoing but subject to the preceding proviso, each Lender agrees to
reimburse the Agent (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees of the
counsel(s) of the Agent's own choosing) incurred by the Agent in connection with
the preparation, negotiation, execution, or enforcement of, or legal advice with
respect to the rights or responsibilities of the parties under, the Loan
Documents, any suit or action brought by the Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any "lender liability" suit or
claim brought against the Agent and/or the Lenders, and any claim or suit
brought against the Agent, and/or the Lenders arising under any Environmental
Laws. Such out-of-pocket expenses (including counsel fees) shall be advanced by
the Lenders on the request of the Agent notwithstanding any claim or assertion
that the Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by the Agent that the Agent will reimburse the Lenders if it is
actually and finally determined by a court of competent jurisdiction that the
Agent is not so entitled to indemnification. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder
or under the other Loan Documents and the termination of this Agreement. If the
Borrowers shall reimburse the Agent for any Indemnifiable Amount following
payment by any Lender to the Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Agent shall share such reimbursement on a ratable
basis with each Lender making any such payment.
Section 11.8 Successor Agent.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrowers. The Agent may be
removed as Agent under the Loan Documents for good cause by all of the Lenders
(other than the Lender then acting as Agent) upon 30-days' prior written notice
to the Agent. Upon any such resignation or removal, the Requisite Lenders (other
than the Lender then acting as Agent, in the case of the removal of the Agent
under the immediately preceding sentence) shall have the right to appoint a
successor Agent which appointment shall, provided no Default or Event of Default
exists, be subject to the Borrowers' approval, which approval shall not be
unreasonably withheld or delayed (except that the Borrowers shall, in all
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events, be deemed to have approved each Lender and its affiliates as a successor
Agent). If no successor Agent shall have been so appointed in accordance with
the immediately preceding sentence, and shall have accepted such appointment,
within 30 days after the resigning Agent's giving of notice of resignation or
the Lenders' removal of the resigning Agent, then the resigning or removed Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
Lender, if any Lender shall be willing to serve, and otherwise shall be a
commercial bank having total combined assets of at least $50,000,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Agent, and the
retiring or removed Agent shall be discharged from its duties and obligations
under the Loan Documents. Such successor Agent shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or shall make other arrangements satisfactory to the current Agent,
in either case, to assume effectively the obligations of the current Agent with
respect to such Letters of Credit. After any Agent's resignation or removal
hereunder as Agent, the provisions of this Article XI. shall continue to inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under the Loan Documents.
Section 11.9. Titled Agents.
Each of the Titled Agents in each such respective capacity, assumes no
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Loans, or for any duties as
an agent hereunder for the Lenders. The titles of "Lead Arranger", "Book Running
Manager", "Syndication Agent" and "Co-Documentation Agent" are solely honorific
and imply no fiduciary responsibility on the part of the Titled Agents to the
Agent, the Borrowers or any Lender and the use of such titles does not impose on
the Titled Agents any duties or obligations greater than those of any other
Lender or entitle the Titled Agents to any rights other than those to which any
other Lender is entitled.
ARTICLE XII. MISCELLANEOUS
Section 12.1. Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to a Borrower:
Lexington Corporate Properties Trust
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If to the Agent:
Wachovia Bank, National Association
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to a Lender:
To such Lender's address or telecopy number, as applicable,
set forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement;
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered or sent by overnight courier, when delivered. Notwithstanding the
immediately preceding sentence, all notices or communications sent by telecopy
to the Agent or any Lender under Article II. shall be effective only when
actually received by the intended addressee. Neither the Agent nor any Lender
shall incur any liability to the Borrowers (nor shall the Agent incur any
liability to the Lenders) for acting upon any telephonic notice referred to in
this Agreement which the Agent or such Lender, as the case may be, believes in
good faith to have been given by a Person authorized to deliver such notice or
for otherwise acting in good faith hereunder. Failure of a Person designated to
get a copy of a notice to receive such copy shall not affect the validity of
notice properly given to any other Person.
Section 12.2. Expenses.
The Borrowers agree (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses actually incurred in connection with
the preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents (including due diligence expenses and
travel expenses relating to closing), and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of counsel
to the Agent and costs and expenses in connection with the use of IntraLinks,
Inc. or other similar information transmission systems in connection with the
Loan Documents, (b) to pay or reimburse the Agent and the Lenders for all their
reasonable costs and expenses actually incurred in connection with the
enforcement or preservation of any rights under the Loan Documents, including
the reasonable fees and disbursements of their respective counsel and any
payments in indemnification or otherwise payable by the Lenders to the Agent
pursuant to the Loan Documents, (c) to pay, and indemnify and hold harmless the
Agent and the Lenders from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting
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from any failure to pay or delay in paying, documentary, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of any of the Loan Documents, or
consummation of any amendment, supplement or modification of, or any waiver or
consent under or in respect of, any Loan Document and (d) to the extent not
already covered by any of the preceding subsections, to pay or reimburse the
Agent and the Lenders for all their costs and expenses incurred in connection
with any bankruptcy or other proceeding of the type described in Section
10.1.(f) or 10.1.(g), including the reasonable fees and disbursements of counsel
to the Agent and any Lender, whether such fees and expenses are incurred prior
to, during or after the commencement of such proceeding or the confirmation or
conclusion of any such proceeding. If the Borrowers shall fail to pay any
amounts required to be paid by them pursuant to this Section, the Agent and/or
the Lenders may pay such amounts on behalf of the Borrowers and either deem the
same to be Loans outstanding hereunder or otherwise Obligations owing hereunder.
Upon the Borrowers' request, the Agent or any Lender requesting payment of any
amounts under this Section shall provide the Borrowers with a statement setting
forth in reasonable detail the basis for requesting such amounts.
Section 12.3. Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant is hereby authorized by each
Borrower, at any time or from time to time during the continuance of an Event of
Default, without prior notice to any Borrower or to any other Person, any such
notice being hereby expressly waived, but in the case of a Lender or Participant
subject to receipt of the prior written consent of the Agent exercised in its
sole discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account of
any Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by
Section 10.2., and although such obligations shall be contingent or unmatured.
Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWERS, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED
ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND THE BORROWERS HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST
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ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN
DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG THE BORROWERS, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR
NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.
(b) EACH OF THE BORROWERS, THE AGENT AND EACH LENDER HEREBY AGREES
THAT THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK AND ANY
STATE COURT LOCATED IN BOROUGH OF MANHATTAN, NEW YORK, NEW YORK, SHALL HAVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
BORROWERS, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO
THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWERS AND EACH
OF THE LENDERS EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR
DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM, AND EACH AGREES
NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION
SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY
LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN
SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH
PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR
EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
Section 12.5. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, except that no Borrower may assign or otherwise transfer any
of its rights or obligations under this Agreement without the prior written
consent of all Lenders and any such assignment or other transfer to which all of
the Lenders have not so consented shall be null and void.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrowers.
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(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, (i) any
such participating interest must be for a constant and not a varying percentage
interest and (ii) after giving effect to any such participation by a Lender, the
amount of its Commitment, or if the Commitments have been terminated, the
aggregate outstanding principal balance of Notes held by it, in which it has not
granted any participating interests must be equal to at least $10,000,000.
Except as otherwise provided in Section 12.3., no Participant shall have any
rights or benefits under this Agreement or any other Loan Document. A
Participant shall not be entitled to receive any greater payment under Section
3.12. than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrowers' prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.12. unless the Borrowers are
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers and the Agent, to comply with Section
3.12.(c) as though it were a Lender. In the event of any such grant by a Lender
of a participating interest to a Participant, such Lender shall remain
responsible for the performance of its obligations hereunder, and the Borrowers
and the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement pursuant to which any Lender may grant such a participating interest
shall provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrowers hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided, however, such Lender may agree with the
Participant that it will not, without the consent of the Participant, agree to
(i) increase, or extend the term or extend the time or waive any requirement for
the reduction or termination of, such Lender's Commitment, (ii) extend the date
fixed for the payment of principal of or interest on the Loans or portions
thereof owing to such Lender, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon or (v)
release any Guarantor (except as otherwise permitted under Section 7.12.(c)). An
assignment or other transfer which is not permitted by subsection (d) or (e)
below shall be given effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this subsection (c). Upon
request from the Agent, a Lender shall notify the Agent of the sale of any
participation hereunder and, if requested by the Agent, certify to the Agent
that such participation is permitted hereunder and that the requirements of
Section 3.12. (c) have been satisfied.
(d) Any Lender may with the prior written consent of the Agent
and, so long as no Default or Event of Default exists, the Borrowers (which
consent, in each case, shall not be unreasonably withheld (it being agreed that
the Borrowers' withholding of consent to an assignment which would result in the
Borrowers having to pay amounts under Section 3.12. shall be deemed to be
reasonable)), assign to one or more Eligible Assignees (each an "Assignee") all
or a portion of its rights and obligations under this
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Agreement and the Notes (including all or a portion of its Commitments and the
Loans owing to such Lender); provided, however, (i) no such consent by the
Borrowers shall be required in the case of any assignment to another Lender or
any affiliate of such Lender or another Lender and no such consent by the Agent
shall be required in the case of any assignment by a Lender to any affiliate of
such Lender; (ii) unless the Borrowers and the Agent otherwise agree, after
giving effect to any partial assignment by a Lender, the Assignee shall hold,
and the assigning Lender shall retain, a Commitment, or if the Commitments have
been terminated, Loans having an outstanding principal balance, of at least
$10,000,000 and integral multiples of $5,000,000 in excess thereof; and (iii)
each such assignment shall be effected by means of an Assignment and Acceptance
Agreement. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be
a Lender party to this Agreement with respect to the assigned interest as of the
effective date of the Assignment and Acceptance Agreement and shall have all the
rights and obligations of a Lender with respect to the assigned interest as set
forth in such Assignment and Acceptance Agreement, and the transferor Lender
shall be released from its obligations hereunder with respect to the assigned
interest to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to
this subsection, the transferor Lender, the Agent and the Borrowers shall make
appropriate arrangements so that new Notes are issued to the Assignee and such
transferor Lender, as appropriate. In connection with any such assignment, the
transferor Lender shall pay to the Agent an administrative fee for processing
such assignment in the amount of $3,500.
(e) The Agent shall maintain at the Principal Office a copy of
each Assignment and Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register"). The Agent shall
give each Lender and the Borrowers notice of the assignment by any Lender of its
rights as contemplated by this Section. The Borrowers, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment, the Agent shall, if such Assignment and Acceptance
Agreement has been completed and if the Agent receives the processing and
recording fee described in subsection (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers.
(f) In addition to the assignments and participations permitted
under the foregoing provisions of this Section, any Lender may assign and pledge
all or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such
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Loans and Notes shall be fully transferable as provided therein. No such
assignment shall release the assigning Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning any Borrower,
any other Loan Party or any other Subsidiary in the possession of such Lender
from time to time to Assignees and Participants (including prospective Assignees
and Participants) subject to compliance with Section 12.8.
(h) Anything in this Section to the contrary notwithstanding, no
Lender may assign or participate any interest in any Loan held by it hereunder
to any Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of
the Borrowers and the Agent, it will not make any assignment hereunder in any
manner or under any circumstances that would require registration or
qualification of, or filings in respect of, any Loan or Note under the
Securities Act or any other securities laws of the United States of America or
of any other jurisdiction.
Section 12.6. Amendments.
(a) Except as otherwise expressly provided in this Agreement, any
consent or approval required or permitted by this Agreement or any other Loan
Document to be given by the Lenders may be given, and any term of this Agreement
or of any other Loan Document may be amended, and the performance or observance
by any Borrower or any other Loan Party or any other Subsidiary of any terms of
this Agreement or such other Loan Document or the continuance of any Default or
Event of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Requisite Lenders (and, in the case of an amendment to any Loan Document,
the written consent of each Loan Party a party thereto).
(b) Notwithstanding the foregoing, without the prior written
consent of each Lender adversely affected thereby, no amendment, waiver or
consent shall do any of the following:
(i) increase the Commitments of the Lenders (except for any
increase in the Commitments effectuated pursuant to Section 2.15. as to
other Lenders consenting to such increase) or subject the Lenders to
any additional obligations;
(ii) reduce the principal of, or interest rates that have
accrued or that will be charged on the outstanding principal amount of,
any Loans or other Obligations;
(iii) reduce the amount of any Fees payable hereunder or
postpone any date fixed for payment thereof;
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(iv) modify the definition of the term "Termination Date"
(except as contemplated under Section 2.12.) or otherwise postpone any
date fixed for any payment of any principal of, or interest on, any
Loans or any other Obligations (including the waiver of any Default or
Event of Default as a result of the nonpayment of any such Obligations
as and when due), or extend the expiration date of any Letter of Credit
beyond the Termination Date;
(v) amend or otherwise modify the provisions of Section 3.2.;
(vi) modify the definition of the term "Requisite Lenders" or
otherwise modify in any other manner the number or percentage of the
Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof, including without
limitation, any modification of this Section 12.6. if such modification
would have such effect;
(vii) release any Guarantor from its obligations under the
Guaranty (except as otherwise permitted under Section 7.12.(b));
(viii) amend or otherwise modify the provisions of Section
2.14.; or
(ix) increase the number of Interest Periods permitted with
respect to Loans under Section 2.5.
(c) No amendment, waiver or consent, unless in writing and signed
by the Agent, in such capacity, in addition to the Lenders required hereinabove
to take such action, shall affect the rights or duties of the Agent under this
Agreement or any of the other Loan Documents. Any amendment, waiver or consent
relating to Section 2.2. or the obligations of the Swingline Lender under this
Agreement or any other Loan Document shall, in addition to the Lenders required
hereinabove to take such action, require the written consent of the Swingline
Lender.
(d) No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon and any amendment,
waiver or consent shall be effective only in the specific instance and for the
specific purpose set forth therein. Except as otherwise provided in Section
11.5., no course of dealing or delay or omission on the part of the Agent or any
Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Any Event of Default occurring hereunder shall continue to
exist until such time as such Event of Default is waived in writing in
accordance with the terms of this Section, notwithstanding any attempted cure or
other action by any Borrower, any other Loan Party or any other Person
subsequent to the occurrence of such Event of Default. Except as otherwise
explicitly provided for herein or in any other Loan Document, no notice to or
demand upon the Borrowers shall entitle the Borrowers to any other or further
notice or demand in similar or other circumstances.
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Section 12.7. Nonliability of Agent and Lenders.
The relationship between the Borrowers, on the one hand, and the
Lenders and the Agent, on the other hand, shall be solely that of borrower and
lender. Neither the Agent nor any Lender shall have any fiduciary
responsibilities to the Borrowers and no provision in this Agreement or in any
of the other Loan Documents, and no course of dealing between or among any of
the parties hereto, shall be deemed to create any fiduciary duty owing by the
Agent or any Lender to any Lender, any Borrower, any other Loan Party or any
other Subsidiary. Neither the Agent nor any Lender undertakes any responsibility
to the Borrowers to review or inform the Borrowers of any matter in connection
with any phase of the Borrowers' business or operations.
Section 12.8. Confidentiality.
The Agent and each Lender shall use reasonable efforts to assure that
information about Borrowers, the other Loan Parties and the other Subsidiaries,
and the Properties thereof and their operations, affairs and financial
condition, not generally disclosed to the public, which is furnished to the
Agent or any Lender pursuant to the provisions of this Agreement or any other
Loan Document, is used only for the purposes of this Agreement and the other
Loan Documents and shall not be divulged to any Person other than the Agent, the
Lenders, and their respective agents who are actively and directly participating
in the evaluation, administration or enforcement of the Loan Documents and other
transactions between the Agent or such Lender, as applicable, and the Borrowers,
but in any event the Agent and the Lenders may make disclosure: (a) to any of
their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
requested by any potential or actual Assignee, Participant or other transferee
in connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required or requested by any Governmental Authority or representative thereof or
pursuant to legal process or in connection with any legal proceedings or as
otherwise required by Applicable Law; (d) to the Agent's or such Lender's
independent auditors and other professional advisors (provided they shall be
notified of the confidential nature of the information); (e) after the happening
and during the continuance of an Event of Default, to any other Person, in
connection with the exercise by the Agent or the Lenders of rights hereunder or
under any of the other Loan Documents; (f) upon the Borrowers' prior consent
(which consent shall not be unreasonably withheld), to any contractual
counter-parties to any swap or similar hedging agreement or to any rating
agency; and (g) to the extent such information (x) becomes publicly available
other than as a result of a breach of this Section actually known to such Lender
to be such a breach or (y) becomes available to the Agent or any Lender on a
nonconfidential basis from a source other than any Borrower or any Affiliate.
Notwithstanding the foregoing, the Agent and each Lender may disclose any such
confidential information, without notice to any Borrower or any other Loan
Party, to Governmental Authorities in connection with any regulatory examination
of the Agent or such Lender or in accordance with the regulatory compliance
policy of the Agent or such Lender.
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Section 12.9. Indemnification.
(a) The Borrowers shall and hereby agree to indemnify, defend and
hold harmless the Agent, each of the Lenders, any affiliate of the Agent or any
Lender, and their respective directors, officers, shareholders, agents,
employees and counsel (each referred to herein as an "Indemnified Party") from
and against any and all of the following (collectively, the "Indemnified
Costs"): losses, costs, claims, damages, liabilities, deficiencies, judgments or
reasonable expenses of every kind and nature (including, without limitation,
amounts paid in settlement, court costs and the reasonable fees and
disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection
therewith, but excluding losses, costs, claims, damages, liabilities,
deficiencies, judgments or expenses indemnification in respect of which is
specifically covered by Section 3.12. or 4.1. or expressly excluded from the
coverage of such Section 3.12. or 4.1.) incurred by an Indemnified Party in
connection with, arising out of, or by reason of, any suit, cause of action,
claim, arbitration, investigation or settlement, consent decree or other
proceeding (the foregoing referred to herein as an "Indemnity Proceeding") which
is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of any
Loans or issuance of Letters of Credit hereunder; (iii) any actual or proposed
use by any Borrower of the proceeds of the Loans or Letters of Credit; (iv) the
Agent's or any Lender's entering into this Agreement; (v) the fact that the
Agent and the Lenders have established the credit facility evidenced hereby in
favor of the Borrowers; (vi) the fact that the Agent and the Lenders are
creditors of the Borrowers and have or are alleged to have information regarding
the financial condition, strategic plans or business operations of the Trust and
the Subsidiaries; (vii) the fact that the Agent and the Lenders are material
creditors of the Borrowers and are alleged to influence directly or indirectly
the business decisions or affairs of the Borrowers and the other Subsidiaries or
their financial condition; (viii) the exercise of any right or remedy the Agent
or the Lenders may have under this Agreement or the other Loan Documents; (ix)
any civil penalty or fine assessed by the OFAC against, and all reasonable costs
and expenses (including counsel fees and disbursements) incurred in connection
with defense thereof by, the Agent or any Lender as a result of conduct of any
Borrower, any other Loan Party or any Subsidiary that violates a sanction
enforced by the OFAC; or (x) any violation or non-compliance by any Borrower or
any Subsidiary of any Applicable Law (including any Environmental Law)
including, but not limited to, any Indemnity Proceeding commenced by (A) the
Internal Revenue Service or state taxing authority or (B) any Governmental
Authority or other Person under any Environmental Law, including any Indemnity
Proceeding commenced by a Governmental Authority or other Person seeking
remedial or other action to cause the Trust or its Subsidiaries (or its
respective properties) (or the Agent and/or the Lenders as successors to any
Borrower) to be in compliance with such Environmental Laws; provided, however,
that the Borrowers shall not be obligated to indemnify any Indemnified Party for
any acts or omissions of such Indemnified Party in connection with matters
described in this subsection to the extent arising from the gross negligence or
willful misconduct of such Indemnified Party, as determined by a court of
competent jurisdiction in a final, non-appealable judgment.
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(b) The Borrowers' indemnification obligations under this Section
12.9. shall apply to all Indemnity Proceedings arising out of, or related to,
the foregoing whether or not an Indemnified Party is a named party in such
Indemnity Proceeding. In this regard, this indemnification shall cover all
Indemnified Costs of any Indemnified Party in connection with any deposition of
any Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of any
Borrower or any Subsidiary, any shareholder of any Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of any Borrower), any account
debtor of any Borrower or any Subsidiary or by any Governmental Authority. If
indemnification is to be sought hereunder by an Indemnified Party, then such
Indemnified Party shall notify the Borrowers of the commencement of any
Indemnity Proceeding; provided, however, that the failure to so notify the
Borrowers shall not relieve the Borrowers from any liability that they may have
to such Indemnified Party pursuant to this Section 12.9.
(c) This indemnification shall apply to any Indemnity Proceeding
arising during the pendency of any bankruptcy proceeding filed by or against any
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid
to third-persons by, an Indemnified Party shall be advanced by the Borrowers at
the request of such Indemnified Party notwithstanding any claim or assertion by
the Borrowers that such Indemnified Party is not entitled to indemnification
hereunder, upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrowers if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and
defense of, and may formulate its own strategy with respect to, any Indemnity
Proceeding covered by this Section and, as provided above, all Indemnified Costs
incurred by such Indemnified Party shall be reimbursed by the Borrowers. No
action taken by legal counsel chosen by an Indemnified Party in investigating or
defending against any such Indemnity Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrowers hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that if (i) the
Borrowers are required to indemnify an Indemnified Party pursuant hereto and
(ii) the Borrowers have provided evidence reasonably satisfactory to such
Indemnified Party that the Borrowers have the financial wherewithal to reimburse
such Indemnified Party for any amount paid by such Indemnified Party with
respect to such Indemnity Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnity Proceeding without the prior written consent of
the Borrowers (which consent shall not be unreasonably withheld or delayed).
Notwithstanding the foregoing, an Indemnified Party may settle or compromise any
such Indemnity Proceeding without the prior written consent of the Borrowers
where (x) no monetary relief is sought against
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such Indemnified Party in such Indemnity Proceeding or (y) there is an
allegation of a violation of law by such Indemnified Party.
(f) If and to the extent that the obligations of the Borrowers
under this Section are unenforceable for any reason, the Borrowers hereby agree
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under Applicable Law.
(g) The Borrowers' obligations under this Section shall survive
any termination of this Agreement and the other Loan Documents and the payment
in full in cash of the Obligations, and are in addition to, and not in
substitution of, any other of their obligations set forth in this Agreement or
any other Loan Document to which it is a party.
Section 12.10. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b)
all Letters of Credit (other than Letters of Credit the expiration dates of
which extend beyond the Termination Date as permitted under Section 2.3.(b) and
in respect of which the Borrowers have satisfied the requirements of such
Section) have terminated, (c) none of the Lenders nor the Swingline Lender is
obligated any longer under this Agreement to make any Loans and (d) all
Obligations (other than obligations which survive as provided in the following
two sentences) have been paid and satisfied in full, this Agreement shall
terminate. The indemnities to which the Agent, the Lenders and the Swingline
Lender are entitled under the provisions of Sections 3.12., 4.1., 4.4., 11.7.,
12.2. and 12.9. and any other provision of this Agreement and the other Loan
Documents, and the provisions of Section 12.4., shall continue in full force and
effect and shall protect the Agent, the Lenders and the Swingline Lender (i)
notwithstanding any termination of this Agreement, or of the other Loan
Documents, against events arising after such termination as well as before and
(ii) at all times after any such party ceases to be a party to this Agreement
with respect to all matters and events existing on or prior to the date such
party ceased to be a party to this Agreement.
Section 12.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
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Section 12.13. Patriot Act.
The Lenders and the Agent each hereby notifies the Borrowers that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name
and address of the Borrowers and other information that will allow such Lender
or the Agent, as applicable, to identify the Borrowers in accordance with such
Act.
Section 12.14. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
Section 12.15. Obligations with Respect to Loan Parties.
The obligations of a Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense such Borrower may have that such Borrower does
not control such Loan Parties.
Section 12.16. Limitation of Liability.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender shall have any liability
with respect to, and the Borrowers hereby waive, release, and agree not to xxx
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by any Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents. The Borrowers hereby waive, release, and agree not
to xxx the Agent or any Lender or any of the Agent's or any Lender's affiliates,
officers, directors, employees, attorneys, or agents for punitive damages in
respect of any claim in connection with, arising out of, or in any way related
to, this Agreement or any of the other Loan Documents, or any of the
transactions contemplated by this Agreement or financed hereby.
Section 12.17. Entire Agreement.
This Agreement and the other Loan Documents referred to herein embody
the final, entire agreement among the parties hereto and supersede any and all
prior commitments, agreements, representations, and understandings, whether
written or oral, relating to the subject matter hereof and thereof and may not
be contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto. There are no oral
agreements among the parties hereto.
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Section 12.18. Construction.
The Agent, each Borrower and each Lender acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and the other Loan Documents with its legal
counsel and that this Agreement and the other Loan Documents shall be construed
as if jointly drafted by the Agent, the Borrowers and the Lenders.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed by their authorized officers all as of the day and year
first above written.
LEXINGTON CORPORATE PROPERTIES TRUST
By: _____________________________________________
Name: X. Xxxxxx Eglin
Title: President
LEPERCQ CORPORATE INCOME FUND L.P.
By: Lex GP-1 Trust, its sole general partner
By:_________________________________________
Name: X. Xxxxxx Eglin
Title: President
LEPERCQ CORPORATE INCOME FUND II L.P.
By: Lex GP-1 Trust, its sole general partner
By:_________________________________________
Name: X. Xxxxxx Eglin
Title: President
NET 3 ACQUISITION L.P.
By: Lex GP-1 Trust, its sole general partner
By:_________________________________________
Name: X. Xxxxxx Eglin
Title: President
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
June 27, 2005 with Lexington Corporate Properties Trust et al.]
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent, as a Lender and as
Swingline Lender
By:__________________________________
Name:___________________________
Title:__________________________
Commitment Amount:
$45,000,000
Lending Office (all Types of Loans):
Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxx Xxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
June 27, 2005 with Lexington Corporate Properties Trust et al.]
KEYBANK NATIONAL ASSOCIATION
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Commitment Amount:
$45,000,000
Lending Office (all Types of Loans):
KeyBank National Association
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
June 27, 2005 with Lexington Corporate Properties Trust et al.]
SOVEREIGN BANK
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Commitment Amount:
$30,000,000
Lending Office (all Types of Loans):
Xxxxxxxxx Xxxx
00 Xxxxx Xxxxxx
XX0 XXX 04-11
Xxxxxx, XX 00000
Attn: T. Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
June 27, 2005 with Lexington Corporate Properties Trust et al.]
PNC BANK, N.A.
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans):
PNC Bank, N.A.
PNC Firstside Center
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Stock
Telephone: 000-000-0000
Telecopier: 000-000-0000
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
June 27, 2005 with Lexington Corporate Properties Trust et al.]
BRANCH BANKING AND TRUST COMPANY
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Commitment Amount:
$20,000,000
Lending Office (all Types of Loans):
Branch Banking and Trust Company
Corporate Banking Division
16th Floor
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000
Attn: Xxxx Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
June 27, 2005 with Lexington Corporate Properties Trust et al.]
PEOPLES BANK
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Commitment Amount:
$20,000,000
Lending Office (all Types of Loans):
Peoples Bank
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
June 27, 2005 with Lexington Corporate Properties Trust et al.]
COMERICA BANK
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Commitment Amount:
$15,000,000
Lending Office (all Types of Loans):
Comerica Bank
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopy: 313-222-3697
EXECUTION VERSION
================================================================================
CREDIT AGREEMENT
Dated as of June 27, 2005
by and among
LEXINGTON CORPORATE PROPERTIES TRUST,
LEPERCQ CORPORATE INCOME FUND L.P.,
LEPERCQ CORPORATE INCOME FUND II L.P.,
and
NET 3 ACQUISITION L.P.,
as Borrowers
WACHOVIA CAPITAL MARKETS, LLC,
as Lead Arranger
and
Book Running Manager,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
KEY BANK, N.A.,
as Syndication Agent,
Each of
SOVEREIGN BANK,
and
PNC BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents,
and
THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO
AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5.,
as Lenders
================================================================================
TABLE OF CONTENTS
Article I. Definitions...................................................................................1
Section 1.1. Definitions......................................................................1
Section 1.2. General; References to Times.....................................................24
Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries............................25
Article II. Credit Facility..............................................................................25
Section 2.1. Revolving Loans..................................................................25
Section 2.2. Swingline Loans..................................................................26
Section 2.3. Letters of Credit................................................................28
Section 2.4. Rates and Payment of Interest on Loans...........................................32
Section 2.5. Number of Interest Periods.......................................................33
Section 2.6. Repayment of Loans...............................................................33
Section 2.7. Prepayments......................................................................33
Section 2.8. Continuation.....................................................................34
Section 2.9. Conversion.......................................................................34
Section 2.10. Notes............................................................................35
Section 2.11. Voluntary Reductions of the Commitment...........................................35
Section 2.12. Extension of Termination Date....................................................36
Section 2.13. Expiration or Maturity Date of Letters of Credit Past
Termination Date........................................................................36
Section 2.14. Amount Limitations...............................................................36
Section 2.15. Increase of Commitments..........................................................37
Section 2.16. Joint and Several Liability......................................................37
Section 2.17. Borrower Representative.........................................................39
Article III. Payments, Fees and Other General Provisions.................................................39
Section 3.1. Payments.........................................................................39
Section 3.2. Pro Rata Treatment...............................................................40
Section 3.3. Sharing of Payments, Etc.........................................................41
Section 3.4. Several Obligations..............................................................41
Section 3.5. Minimum Amounts..................................................................41
Section 3.6. Fees.............................................................................42
Section 3.7. Computations.....................................................................43
Section 3.8. Usury............................................................................43
Section 3.9. Agreement Regarding Interest and Charges.........................................43
Section 3.10. Statements of Account............................................................44
Section 3.11. Defaulting Lenders...............................................................44
Section 3.12. Taxes............................................................................45
Article IV. Yield Protection, Etc........................................................................47
Section 4.1. Additional Costs; Capital Adequacy...............................................47
Section 4.2. Suspension of LIBOR Loans........................................................49
Section 4.3. Illegality.......................................................................49
Section 4.4. Compensation.....................................................................49
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Section 4.5. Affected Lenders.................................................................50
Section 4.6. Treatment of Affected Loans......................................................50
Section 4.7. Change of Lending Office.........................................................51
Section 4.8. Assumptions Concerning Funding of LIBOR Loans....................................51
Article V. Conditions Precedent..........................................................................52
Section 5.1. Initial Conditions Precedent.....................................................52
Section 5.2. Conditions Precedent to All Loans and Letters of Credit..........................54
Article VI. Representations and Warranties...............................................................54
Section 6.1. Representations and Warranties...................................................54
Section 6.2. Survival of Representations and Warranties, Etc..................................61
Article VII. Affirmative Covenants.......................................................................61
Section 7.1. Preservation of Existence and Similar Matters....................................61
Section 7.2. Compliance with Applicable Law and Material Contracts............................61
Section 7.3. Maintenance of Property..........................................................62
Section 7.4. Conduct of Business..............................................................62
Section 7.5. Insurance........................................................................62
Section 7.6. Payment of Taxes and Claims......................................................62
Section 7.7. Visits and Inspections...........................................................63
Section 7.8. Use of Proceeds; Letters of Credit...............................................63
Section 7.9. Environmental Matters............................................................63
Section 7.10. Books and Records................................................................64
Section 7.11. Further Assurances...............................................................64
Section 7.12. New Subsidiaries/Guarantors......................................................64
Section 7.13. REIT Status......................................................................65
Section 7.14. Exchange Listing.................................................................65
Article VIII. Information................................................................................65
Section 8.1. Quarterly Financial Statements...................................................65
Section 8.2. Year-End Statements..............................................................66
Section 8.3. Compliance Certificate..............................................66
Section 8.4. Other Information................................................................66
Article IX. Negative Covenants...........................................................................68
Section 9.1. Financial Covenants..............................................................68
Section 9.2. Restricted Payments..............................................................69
Section 9.3. Indebtedness.....................................................................70
Section 9.4. Certain Permitted Investments....................................................70
Section 9.5. Investments Generally............................................................71
Section 9.6. Liens; Negative Pledges; Other Matters...........................................72
Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements....................73
Section 9.8. Fiscal Year......................................................................74
Section 9.9. Modifications to Material Contracts..............................................74
Section 9.10. Modifications of Organizational Documents........................................74
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Section 9.11. Transactions with Affiliates.....................................................74
Section 9.12. ERISA Exemptions.................................................................74
Article X. Default.......................................................................................75
Section 10.1. Events of Default................................................................75
Section 10.2. Remedies Upon Event of Default...................................................78
Section 10.3. Remedies Upon Default............................................................80
Section 10.4. Allocation of Proceeds...........................................................80
Section 10.5. Collateral Account...............................................................80
Section 10.6. Performance by Agent.............................................................82
Section 10.7. Rights Cumulative................................................................82
Article XI. The Agent....................................................................................82
Section 11.1. Authorization and Action.........................................................82
Section 11.2. Agent's Reliance, Etc............................................................83
Section 11.3. Notice of Defaults...............................................................84
Section 11.4. Wachovia as Lender...............................................................84
Section 11.5. Approvals of Lenders.............................................................84
Section 11.6. Lender Credit Decision, Etc......................................................85
Section 11.7. Indemnification of Agent.........................................................85
Section 11.8. Successor Agent..................................................................86
Section 11.9. Titled Agents....................................................................87
Article XII. Miscellaneous...............................................................................87
Section 12.1. Notices..........................................................................87
Section 12.2. Expenses.........................................................................88
Section 12.3. Setoff...........................................................................89
Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.................................89
Section 12.5. Successors and Assigns...........................................................90
Section 12.6. Amendments.......................................................................93
Section 12.7. Nonliability of Agent and Lenders................................................95
Section 12.8. Confidentiality..................................................................95
Section 12.9. Indemnification..................................................................96
Section 12.10. Termination; Survival............................................................98
Section 12.11. Severability of Provisions.......................................................98
Section 12.12. GOVERNING LAW....................................................................98
Section 12.13. Patriot Act......................................................................99
Section 12.14. Counterparts.....................................................................99
Section 12.15. Obligations with Respect to Loan Parties.........................................99
Section 12.16. Limitation of Liability..........................................................99
Section 12.17. Entire Agreement.................................................................99
Section 12.18. Construction.....................................................................100
SCHEDULE 1.1.(A) List of Loan Parties
SCHEDULE 6.1.(b) Ownership Structure
SCHEDULE 6.1.(f) Title to Properties; Liens
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SCHEDULE 6.1.(g) Indebtedness and Guaranties
SCHEDULE 6.1.(h) Material Contracts
SCHEDULE 6.1.(i) Litigation
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Notice of Continuation
EXHIBIT D Form of Notice of Conversion
EXHIBIT E Form of Notice of Swingline Borrowing
EXHIBIT F Form of Swingline Note
EXHIBIT G Form of Revolving Note
EXHIBIT H Form of Opinion of Counsel
EXHIBIT I Form of Compliance Certificate
EXHIBIT J Form of Guaranty
-iv-
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT dated as of ___________, 200_
(the "Agreement") by and among _________________________ (the "Assignor"),
_________________________ (the "Assignee"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent (the "Agent").
WHEREAS, the Assignor is a Lender under that certain Credit Agreement
dated as of June 27, 2005 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among Lexington
Corporate Properties Trust, Lepercq Corporate Income Fund L.P., Lepercq
Corporate Income Fund II L.P. and Net 3 Acquisition L.P. (collectively, the
"Borrowers"), the financial institutions party thereto and their assignees under
Section 12.5. thereof (the "Lenders"), the Agent, and the other parties thereto;
WHEREAS, the Assignor desires to assign to the Assignee, among other
things, all or a portion of the Assignor's Commitment under the Credit
Agreement, all on the terms and conditions set forth herein; and
WHEREAS, the Agent consents to such assignment on the terms and
conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Assignment.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by the Assignee to the Assignor pursuant
to Section 2 of this Agreement, effective as of ____________, 200_ (the
"Assignment Date"), the Assignor hereby irrevocably sells, transfers and assigns
to the Assignee, without recourse, a $__________ interest (such interest being
the "Assigned Commitment") in and to the Assignor's Commitment and all of the
other rights and obligations of the Assignor under the Credit Agreement, the
Assignor's Revolving Note and the other Loan Documents (representing ______% in
respect of the aggregate amount of all Lenders' Commitments), including without
limitation, a principal amount of outstanding Revolving Loans equal to
$_________ and all voting rights of the Assignor associated with the Assigned
Commitment, all rights to receive interest on such amount of Revolving Loans and
all facility and other Fees with respect to the Assigned Commitment and other
rights of the Assignor under the Credit Agreement and the other Loan Documents
with respect to the Assigned Commitment. The Assignee, subject to the terms and
conditions hereof, hereby assumes all obligations of the Assignor as a Lender
with respect to the Assigned Commitment, which obligations shall include, but
shall not be limited to, the obligation to make Revolving Loans to the Borrowers
with respect to the Assigned Commitment, the obligation to pay the Agent amounts
due in respect of draws under Letters of Credit as required under Section
2.3.(i) of the Credit Agreement and the obligation to indemnify the Agent as
provided in
A-1
the Credit Agreement (the foregoing enumerated obligations, together with all
other similar obligations more particularly set forth in the Credit Agreement
and the other Loan Documents, collectively, the "Assigned Obligations"). The
Assignor shall have no further duties or obligations with respect to, and shall
have no further interest in, the Assigned Obligations or the Assigned Commitment
from and after the Assignment Date.
(b) The assignment by the Assignor to the Assignee hereunder is without
recourse to the Assignor. The Assignee makes and confirms to the Agent, the
Assignor, and the other Lenders all of the representations, warranties and
covenants of a Lender under Article XI. of the Credit Agreement. Not in
limitation of the foregoing, the Assignee acknowledges and agrees that, except
as set forth in Section 4 below, the Assignor is making no representations or
warranties with respect to, and the Assignee hereby releases and discharges the
Assignor for any responsibility or liability for: (i) the present or future
solvency or financial condition of any Borrower, any other Loan Party or any
other Subsidiary, (ii) any representations, warranties, statements or
information made or furnished by any Borrower, any other Loan Party or any other
Subsidiary in connection with the Credit Agreement or otherwise, (iii) the
validity, efficacy, sufficiency, or enforceability of the Credit Agreement, any
other Loan Document or any other document or instrument executed in connection
therewith, or the collectibility of the Assigned Obligations, (iv) the
perfection, priority or validity of any Lien with respect to any collateral at
any time securing the Obligations or the Assigned Obligations under the Notes or
the Credit Agreement and (v) the performance or failure to perform by any
Borrower or any other Loan Party of any obligation under the Credit Agreement or
any other Loan Document to which it is a party. Further, the Assignee
acknowledges that it has, independently and without reliance upon the Agent, or
any affiliate or subsidiary thereof, the Assignor or any other Lender and based
on the financial statements supplied by the Borrowers and such other documents
and information as it has deemed appropriate, made its own credit and legal
analysis and decision to become a Lender under the Credit Agreement. The
Assignee also acknowledges that it will, independently and without reliance upon
the Agent, 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 Credit Agreement or
any other Loan Documents or pursuant to any other obligation. Except as
expressly provided in the Credit Agreement, the Agent shall have no duty or
responsibility whatsoever, either initially or on a continuing basis, to provide
the Assignee with any credit or other information with respect to any Borrower
or any other Loan Party or to notify the Assignee of any Default or Event of
Default. The Assignee has not relied on the Agent as to any legal or factual
matter in connection therewith or in connection with the transactions
contemplated thereunder.
Section 2. Payment by Assignee. In consideration of the assignment made
pursuant to Section 1 of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, such amount as they may agree.
Section 3. Payments by Assignor. The Assignor agrees to pay to the
Agent on the Assignment Date the administration fee, if any, payable under the
applicable provisions of the Credit Agreement.
A-2
Section 4. Representations and Warranties of Assignor. The Assignor
hereby represents and warrants to the Assignee that (a) as of the Assignment
Date (i) the Assignor is a Lender under the Credit Agreement having a Commitment
under the Credit Agreement (without reduction by any assignments thereof which
have not yet become effective), equal to $____________ [and $__________,
respectively], and that the Assignor is not in default of its obligations under
the Credit Agreement; and (ii) the outstanding balance of Revolving Loans owing
to the Assignor (without reduction by any assignments thereof which have not yet
become effective) is $____________; and (b) it is the legal and beneficial owner
of the Assigned Commitment which is free and clear of any adverse claim created
by the Assignor.
Section 5. Representations, Warranties and Agreements of Assignee. The
Assignee (a) represents and warrants that it is (i) legally authorized to enter
into this Agreement, (ii) an "accredited investor" (as such term is used in
Regulation D of the Securities Act) and (iii) an Eligible Assignee; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered in connection therewith or pursuant
thereto and such other documents and information (including without limitation
the Loan Documents) as it has deemed appropriate to make its own credit analysis
and decision to enter into this Agreement; (c) appoints and authorizes the Agent
to take such action as contractual representative on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Agent by the terms
thereof together with such powers as are reasonably incidental thereto; and (d)
agrees that, if not already a Lender and to the extent of the Assigned
Commitment, it will become a party to and shall be bound by the Credit Agreement
and the other Loan Documents to which the other Lenders are a party on the
Assignment Date and will perform in accordance therewith all of the obligations
which are required to be performed by it as a Lender with respect to the
Assigned Commitment.
Section 6. Recording and Acknowledgment by the Agent. Following the
execution of this Agreement, the Assignor will deliver to the Agent (a) a duly
executed copy of this Agreement for acknowledgment and recording by the Agent
and (b) the Assignor's Revolving Note. Upon such acknowledgment and recording,
from and after the Assignment Date, the Agent shall make all payments in respect
of the interest assigned hereby (including payments of principal, interest, Fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for periods prior
to the Assignment Date directly between themselves.
Section 7. Addresses. The Assignee specifies as its address for notices
and its Lending Office for all Loans, the offices set forth on Schedule 1
attached hereto.
Section 8. Payment Instructions. All payments to be made to the
Assignee under this Agreement by the Assignor, and all payments to be made to
the Assignee under the Credit Agreement, shall be made as provided in the Credit
Agreement in accordance with the instructions set forth on Schedule 1 attached
hereto or as the Assignee may otherwise notify the Agent.
Section 9. Effectiveness of Assignment. This Agreement, and the
assignment and assumption contemplated herein, shall not be effective until (a)
this Agreement is executed and
A-3
delivered by each of the Assignor, the Assignee, the Agent, and if required
under Section 12.5.(d) of the Credit Agreement, the Borrowers, and (b) the
payment to the Assignor of the amounts, if any, owing by the Assignee pursuant
to Section 2 hereof and (c) the payment to the Agent of the amounts, if any,
owing by the Assignor pursuant to Section 3 hereof. Upon recording and
acknowledgment of this Agreement by the Agent, from and after the Assignment
Date, (i) the Assignee shall be a party to the Credit Agreement with respect to
the Assigned Commitment and have the rights and obligations of a Lender
thereunder to the extent of the Assigned Commitment and (ii) the Assignor shall
relinquish its rights (except as otherwise provided in Section 12.10. of the
Credit Agreement) and be released from its obligations under the Credit
Agreement with respect to the Assigned Commitment; provided, however, that if
the Assignor does not assign its entire interest under the Loan Documents, it
shall remain a Lender entitled to all of the benefits and subject to all of the
obligations thereunder with respect to its Commitment.
Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 11. Counterparts. This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 12. Headings. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
Section 13. Amendments; Waivers. This Agreement may not be amended,
changed, waived or modified except by a writing executed by the Assignee and the
Assignor; provided, however, any amendment, waiver or consent which shall affect
the rights or duties of the Agent under this Agreement shall not be effective
unless signed by the Agent.
Section 14. Entire Agreement. This Agreement embodies the entire
agreement between the Assignor and the Assignee with respect to the subject
matter hereof and supersedes all other prior arrangements and understandings
relating to the subject matter hereof.
Section 15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 16. Definitions. Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
[Include this Section only if Borrowers' consent is required under
Section 12.5.(d) Section 17. Agreements of the Borrowers. The Borrowers hereby
agree that the Assignee shall be a Lender under the Credit Agreement having a
Commitment equal to the Assigned Commitment. The Borrowers agree that the
Assignee shall have all of the rights and remedies of a Lender under the Credit
Agreement and the other Loan Documents, including, but not limited to, the right
of a Lender to receive payments of principal and interest with respect to the
A-4
Assigned Obligations, and to the Revolving Loans made by the Lenders after the
date hereof and to receive the commitment and other Fees payable to the Lenders
as provided in the Credit Agreement. Further, the Assignee shall be entitled to
the indemnification provisions from the Borrowers in favor of the Lenders as
provided in the Credit Agreement and the other Loan Documents. The Borrowers
further agree, upon the execution and delivery of this Agreement, to execute in
favor of the Assignee, and if applicable the Assignor, Notes as required by
Section 12.5.(d) of the Credit Agreement. Upon receipt by the Assignor of the
amounts due the Assignor under Section 2, the Assignor agrees to surrender to
the Borrowers such Assignor's Notes.]
[Signatures on Following Pages]
A-5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment and Acceptance Agreement as of the date and year first written above.
ASSIGNOR:
[NAME OF ASSIGNOR]
By:_________________________________
Name:__________________________
Title:_________________________
ASSIGNEE:
[NAME OF ASSIGNEE]
By:_________________________________
Name:__________________________
Title:_________________________
Accepted as of the date first written above.
AGENT:
WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent
By:_________________________________________
Name:__________________________________
Title:_________________________________
[Signatures Continued on Following Page]
A-6
[Include signature of the Borrower Representative
only if required under Section 12.5.(d) of the
Credit Agreement]
Agreed and consented to as of the
date first written above.
BORROWERS:
LEXINGTON CORPORATE PROPERTIES
TRUST, as Borrower Representative on its own
behalf and on behalf of the other Borrowers
By:_________________________________________
Name:__________________________________
Title:_________________________________
A-7
SCHEDULE 1
Information Concerning the Assignee
-----------------------------------
Notice Address:
------------------------------------
------------------------------------
------------------------------------
Telephone No.:
----------------------
Telecopy No.:
-----------------------
Lending Office:
------------------------------------
------------------------------------
------------------------------------
Telephone No.:
----------------------
Telecopy No.:
-----------------------
Payment Instructions:
------------------------------------
------------------------------------
A-8
EXHIBIT B
FORM OF NOTICE OF BORROWING
____________, 200_
Wachovia Bank, National Association, as Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Corporate Properties
Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P.
and Net 3 Acquisition L.P. (collectively, the "Borrowers"), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the
"Lenders"), Wachovia Bank, National Association, as Agent (the "Agent"), and the
other parties thereto. Capitalized terms used herein, and not otherwise defined
herein, have their respective meanings given them in the Credit Agreement.
1. Pursuant to Section 2.1.(b) of the Credit Agreement, the
Borrowers hereby request that the Lenders make Revolving Loans
to the Borrowers in an aggregate principal amount equal to
$___________________.
2. The Borrowers request that such Revolving Loans be made
available to the Borrowers on ____________, 200_.
3. The Borrowers hereby request that the requested Revolving
Loans all be of the following Type:
[Check one box only]
_
|_| Base Rate Loans
|_| LIBOR Loans, each with an initial Interest Period
for a duration of:
_
[Check one box only] |_| 1 month
|_| 2 months
|_| 3 months
|_| 6 months
4. The Borrowers request that the proceeds of this borrowing of
Revolving Loans be made available to the Borrowers by
____________________________.
B-1
The Borrowers hereby certify to the Agent and the Lenders that as of
the date hereof and as of the date of the making of the requested
Revolving Loans and after giving effect thereto, (a) no Default or
Event of Default exists or will exist immediately after giving effect
to the requested Revolving Loans, and (b) the representations and
warranties made or deemed made by the Borrowers and each other Loan
Party in the Loan Documents to which any of them is a party are and
shall be true and correct in all material respects, except to the
extent that such representations and warranties expressly relate solely
to an earlier date (in which case such representations and warranties
shall have been true and correct in all material respects on and as of
such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents. In addition, the Borrowers certify
to the Agent and the Lenders that all conditions to the making of the
requested Revolving Loans contained in Article V. of the Credit
Agreement will have been satisfied (or waived in accordance with the
applicable provisions of the Loan Documents) at the time such Revolving
Loans are made.
If notice of the requested borrowing of Revolving Loans was previously
given by telephone, this notice is to be considered the written confirmation of
such telephone notice required by Section 2.1.(b) of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Borrowing as of the date first written above.
LEXINGTON CORPORATE PROPERTIES
TRUST, as Borrower Representative
on its own behalf and on behalf
of the other Borrowers
By: ________________________________
Name:__________________________
Title:_________________________
B-2
EXHIBIT C
FORM OF NOTICE OF CONTINUATION
____________, 200_
Wachovia Bank, National Association, as Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Corporate Properties
Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P.
and Net 3 Acquisition L.P. (collectively, the "Borrowers"), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the
"Lenders"), Wachovia Bank, National Association, as Agent (the "Agent"), and the
other parties thereto. Capitalized terms used herein, and not otherwise defined
herein, have their respective meanings given them in the Credit Agreement.
Pursuant to Section 2.8. of the Credit Agreement, the Borrowers hereby
request a Continuation of a borrowing of Loans under the Credit Agreement, and
in that connection sets forth below the information relating to such
Continuation as required by such Section of the Credit Agreement:
1. The proposed date of such Continuation is ____________, 200__.
2. The aggregate principal amount of Loans subject to the
requested Continuation is $________________________ and was
originally borrowed by the Borrowers on ____________, 200_.
3. The portion of such principal amount subject to such
Continuation is $________________________.
4. The current Interest Period for each of the Loans subject to
such Continuation ends on ________________, 200_.
5. The duration of the new Interest Period for each of such Loans
or portion thereof subject to such Continuation is:
_
[Check one box only] |_| 1 month
|_| 2 months
|_| 3 months
C-1
_
|_| 6 months
The Borrowers hereby certify to the Agent and the Lenders that as of
the date hereof, as of the proposed date of the requested Continuation, and
after giving effect to such Continuation, no Default or Event of Default exists
or will exist.
If notice of the requested Continuation was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.8. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Continuation as of the date first written above.
LEXINGTON CORPORATE PROPERTIES
TRUST, as Borrower Representative
on its own behalf and on behalf
of the other Borrowers
By: ________________________________
Name:__________________________
Title:_________________________
C-2
EXHIBIT D
FORM OF NOTICE OF CONVERSION
____________, 200_
Wachovia Bank, National Association, as Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Corporate Properties
Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P.
and Net 3 Acquisition L.P. (collectively, the "Borrowers"), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the
"Lenders"), Wachovia Bank, National Association, as Agent (the "Agent"), and the
other parties thereto. Capitalized terms used herein, and not otherwise defined
herein, have their respective meanings given them in the Credit Agreement.
Pursuant to Section 2.9. of the Credit Agreement, the Borrowers hereby
request a Conversion of a borrowing of Loans of one Type into Loans of another
Type under the Credit Agreement, and in that connection sets forth below the
information relating to such Conversion as required by such Section of the
Credit Agreement:
1. The proposed date of such Conversion is ______________, 200_.
2. The Loans to be Converted pursuant hereto are currently:
_
[Check one box only] |_| Base Rate Loans
|_| LIBOR Loans
3. The aggregate principal amount of Loans subject to the
requested Conversion is $_____________________ and was
originally borrowed by the Borrowers on ____________, 200_.
4. The portion of such principal amount subject to such
Conversion is $___________________.
D-1
5. The amount of such Loans to be so Converted is to be converted
into Loans of the following Type:
[Check one box only]
_
|_| Base Rate Loans
|_| LIBOR Loans, each with an initial Interest Period
for a duration of:
_
[Check one box only] |_| 1 month
|_| 2 months
|_| 3 months
|_| 6 months
The Borrowers hereby certify to the Agent and the Lenders that as of
the date hereof and as of the date of the requested Conversion and
after giving effect thereto, (a) no Default or Event of Default exists
or will exist (provided the certification under this clause (a) shall
not be made in connection with the Conversion of a Loan into a Base
Rate Loan), and (b) the representations and warranties made or deemed
made by the Borrowers and each other Loan Party in the Loan Documents
to which any of them is a party are and shall be true and correct in
all material respects, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which
case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date) and
except for changes in factual circumstances not prohibited under the
Loan Documents.
If notice of the requested Conversion was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.9. of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Conversion as of the date first written above.
LEXINGTON CORPORATE PROPERTIES
TRUST, as Borrower Representative
on its own behalf and on behalf
of the other Borrowers
By: ________________________________
Name:__________________________
Title:_________________________
D-2
EXHIBIT E
FORM OF NOTICE OF SWINGLINE BORROWING
____________, 200__
Wachovia Bank, National Association, as Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx X. Xxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Corporate Properties
Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P.
and Net 3 Acquisition L.P. (collectively, the "Borrowers"), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the
"Lenders"), Wachovia Bank, National Association, as Agent (the "Agent"), and the
other parties thereto. Capitalized terms used herein, and not otherwise defined
herein, have their respective meanings given them in the Credit Agreement.
1. Pursuant to Section 2.2.(b) of the Credit Agreement, the
Borrowers hereby request that the Swingline Lender make a
Swingline Loan to the Borrowers in an amount equal to
$____________________.
2. The Borrowers request that such Swingline Loan be made
available to the Borrowers on ____________, 200_.
3. The Borrowers request that the proceeds of such Swingline Loan
be made available to the Borrowers by
______________________________.
The Borrowers hereby certify to the Agent, the Swingline Lender and the
Lenders that as of the date hereof, as of the date of the making of the
requested Swingline Loan, and after making such Swingline Loan, (a) no Default
or Event of Default exists or will exist, and (b) the representations and
warranties made or deemed made by the Borrowers and each other Loan Party in the
Loan Documents to which any of them is a party are and shall be true and correct
in all material respects, except to the extent that such representations and
warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and except for changes in factual
circumstances not prohibited under the Loan Documents. In addition, the
Borrowers certify to the Agent and the Lenders that all conditions to the making
of the requested Swingline Loan contained in Article V. of the Credit Agreement
will have been satisfied at the time such Swingline Loan is made.
E-1
If notice of the requested borrowing of this Swingline Loan was
previously given by telephone, this notice is to be considered the written
confirmation of such telephone notice required by Section 2.2.(b) of the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Notice of Swingline Borrowing as of the date first written above.
LEXINGTON CORPORATE PROPERTIES
TRUST, as Borrower Representative
on its own behalf and on behalf
of the other Borrowers
By: ________________________________
Name:__________________________
Title:_________________________
E-2
EXHIBIT F
FORM OF SWINGLINE NOTE
$10,000,000 June 27, 2005
FOR VALUE RECEIVED, each of the undersigned, LEXINGTON CORPORATE
PROPERTIES TRUST, a real estate investment trust formed under the laws of the
State of Maryland (the "Trust"), LEPERCQ CORPORATE INCOME FUND L.P., a limited
partnership formed under the laws of the State of Delaware ("LCIF"), LEPERCQ
CORPORATE INCOME FUND II L.P., a limited partnership formed under the laws of
the State of Delaware ("LCIFII"), and NET 3 ACQUISITION L.P., a limited
partnership formed under the laws of the State of Delaware ("Net 3";
collectively with the Trust, LCIF and LCIFII, the "Borrowers" and each a
"Borrower"), hereby jointly and severally promises to pay to the order of
WACHOVIA BANK, NATIONAL ASSOCIATION (the "Swingline Lender") at its address at
One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
or at such other address as may be specified in writing by the Swingline Lender
to the Borrowers, the principal sum of TEN MILLION AND NO/100 DOLLARS
($10,000,000) (or such lesser amount as shall equal the aggregate unpaid
principal amount of Swingline Loans made by the Swingline Lender to the
Borrowers under the Credit Agreement), on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount owing hereunder, at the rates and on the dates provided in the Credit
Agreement.
The date and amount of each Swingline Loan, and each payment made on
account of the principal thereof, shall be recorded by the Swingline Lender on
its books and, prior to any transfer of this Note, endorsed by the Swingline
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Swingline Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrowers to make a payment
when due of any amount owing under the Credit Agreement or hereunder.
This Note is the Swingline Note referred to in the Credit Agreement
dated as of June 27, 2005 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and among the Borrowers,
the financial institutions party thereto and their assignees under Section 12.5.
thereof (the "Lenders"), Wachovia Bank, National Association, as Agent, and the
other parties thereto, and evidences Swingline Loans made to the Borrowers
thereunder. Terms used but not otherwise defined in this Note have the
respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Swingline
Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.5. of the Credit Agreement, this Note
may not be assigned by the Swingline Lender to any Person.
F-1
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrowers hereby waive presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
THE OBLIGATIONS OF THE BORROWERS UNDER THIS NOTE SHALL BE JOINT AND
SEVERAL, AND ACCORDINGLY, EACH BORROWER CONFIRMS THAT IT IS LIABLE FOR THE FULL
AMOUNT OF THE OBLIGATIONS OF EACH OF THE OTHER BORROWERS HEREUNDER.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Swingline Note under seal as of the date first written above.
LEXINGTON CORPORATE PROPERTIES TRUST
By:______________________________________________
Name:_______________________________________
Title:______________________________________
LEPERCQ CORPORATE INCOME FUND L.P.
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1 Trust, its sole general partner
By:_________________________________________
Name:__________________________________
Title:_________________________________
NET 3 ACQUISITION L.P.
By: LEX GP-1 Trust, its sole general partner
By:_________________________________________
Name:__________________________________
Title:_________________________________
F-2
SCHEDULE OF SWINGLINE LOANS
This Note evidences Swingline Loans made under the within-described
Credit Agreement to the Borrowers, on the dates and in the principal amounts set
forth below, subject to the payments and prepayments of principal set forth
below:
Principal Amount Amount Paid or Unpaid Principal Notation
Date of Loan of Loan Prepaid Amount Made By
------------ ------- ------- ------ -------
F-3
EXHIBIT G
FORM OF REVOLVING NOTE
$____________________ _______________, 200_
FOR VALUE RECEIVED, each of the undersigned, LEXINGTON CORPORATE
PROPERTIES TRUST, a real estate investment trust formed under the laws of the
State of Maryland (the "Trust"), LEPERCQ CORPORATE INCOME FUND L.P., a limited
partnership formed under the laws of the State of Delaware ("LCIF"), LEPERCQ
CORPORATE INCOME FUND II L.P., a limited partnership formed under the laws of
the State of Delaware ("LCIFII"), and NET 3 ACQUISITION L.P., a limited
partnership formed under the laws of the State of Delaware ("Net 3";
collectively with the Trust, LCIF and LCIFII, the "Borrowers" and each a
"Borrower"), hereby jointly and severally promises to pay to the order of
____________________ (the "Lender"), in care of Wachovia Bank, National
Association, as Agent (the "Agent") at Wachovia Bank, National Association, One
Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or
at such other address as may be specified in writing by the Agent to the
Borrowers, the principal sum of ________________ AND ____/100 DOLLARS
($____________) (or such lesser amount as shall equal the aggregate unpaid
principal amount of Revolving Loans made by the Lender to the Borrowers under
the Credit Agreement (as herein defined)), on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount owing hereunder, at the rates and on the dates provided in the
Credit Agreement.
The date and amount of each Revolving Loan made by the Lender to the
Borrowers, and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrowers to make a payment
when due of any amount owing under the Credit Agreement or hereunder.
This Note is one of the Revolving Notes referred to in the Credit
Agreement dated as of June 27, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among the
Borrowers, the financial institutions party thereto and their assignees under
Section 12.5. thereof (the "Lenders"), the Agent, and the other parties thereto.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 12.5.(d) of the Credit Agreement, this
Note may not be assigned by the Lender to any Person.
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THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
The Borrowers hereby waive presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
Time is of the essence for this Note.
THE OBLIGATIONS OF THE BORROWERS UNDER THIS NOTE SHALL BE JOINT AND
SEVERAL, AND ACCORDINGLY, EACH BORROWER CONFIRMS THAT IT IS LIABLE FOR THE FULL
AMOUNT OF THE OBLIGATIONS OF EACH OF THE OTHER BORROWERS HEREUNDER.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Revolving Note under seal as of the date first written above.
LEXINGTON CORPORATE PROPERTIES TRUST
By:______________________________________________
Name:_______________________________________
Title:______________________________________
LEPERCQ CORPORATE INCOME FUND L.P.
LEPERCQ CORPORATE INCOME FUND II L.P.
By: LEX GP-1 Trust, its sole general partner
By:_________________________________________
Name:__________________________________
Title:_________________________________
NET 3 ACQUISITION L.P.
By: LEX GP-1 Trust, its sole general partner
By:_________________________________________
Name:__________________________________
Title:_________________________________
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SCHEDULE OF REVOLVING LOANS
This Note evidences Revolving Loans made under the within-described
Credit Agreement to the Borrowers, on the dates and in the principal amounts set
forth below, subject to the payments and prepayments of principal set forth
below:
Principal Amount Unpaid
Date of Amount of Paid or Principal Notation
Loan Loan Prepaid Amount Made By
---- ---- ------- ------ -------
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EXHIBIT H
FORM OF OPINION OF COUNSEL
[LETTERHEAD OF COUNSEL TO THE LOAN PARTIES]
June 27, 2005
Wachovia Bank, National Association, as Agent
000 X. Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
The Lenders party to the Credit Agreement referred
to below
Ladies and Gentlemen:
We have acted as counsel to Lexington Corporate Properties Trust, a
real estate investment trust formed under the laws of the State of Maryland (the
"Trust"), Lepercq Corporate Income Fund L.P., a limited partnership formed under
the laws of the State of Delaware ("LCIF"), Lepercq Corporate Income Fund II
L.P., a limited partnership formed under the laws of the State of Delaware
("LCIFII") and Net 3 Acquisition L.P., a limited partnership formed under the
laws of the State of Delaware ("Net 3"; collectively with the Trust, LCIF and
LCIFII, the "Borrowers" and each a "Borrower"), in connection with the
negotiation, execution and delivery of that certain Credit Agreement dated as of
June 27, 2005 (the "Credit Agreement"), by and among the Borrowers, the
financial institutions party thereto and their assignees under Section 12.5.
thereof (the "Lenders"), Wachovia Bank, National Association, as Agent (the
"Agent"), and the other parties thereto. We have also acted as counsel to each
of the Guarantors listed on Schedule 1 attached hereto (the "Guarantors";
together with the Borrowers, the "Loan Parties"), in connection with the
Guaranty and the other Loan Documents identified below to which they are party.
Capitalized terms not otherwise defined herein have the respective meaning given
them in the Credit Agreement.
In these capacities, we have reviewed executed copies of the following:
(a) the Credit Agreement;
(b) the Notes;
(c) the Guaranty; and
(d) [list other applicable Loan Documents].
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The documents and instruments set forth in items (a) through (d) above are
referred to herein as the "Loan Documents".
In addition to the foregoing, we have reviewed the [articles or
certificate of incorporation, by-laws, declaration of trust, partnership
agreement and limited liability company operating agreement, as applicable,] of
each Loan Party and certain resolutions of the board of trustees or directors,
as applicable, of each Loan Party (collectively, the "Organizational Documents")
and have also examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, and other instruments,
and made such other investigations of law and fact, as we have deemed necessary
or advisable for the purposes of rendering this opinion. In our examination of
documents, we assumed the genuineness of all signatures on documents presented
to us as originals (other than the signatures of officers of the Loan Parties)
and the conformity to originals of documents presented to us as conformed or
reproduced copies.
Based upon the foregoing, and subject to all of the qualifications and
assumptions set forth herein, we are of the opinion that:
1. Each Loan Party is a [corporation, trust, partnership or limited
liability company, as applicable,] duly organized or formed, validly existing
and in good standing under the laws of the State of its organization or
formation and has the power to execute and deliver, and to perform its
obligations under, the Loan Documents to which it is a party, to own and use its
assets, and to conduct its business as presently conducted. Each Loan Party is
qualified to transact business as a foreign [corporation, trust, partnership or
limited liability company, as applicable,] in the indicated jurisdictions set
forth on Schedule I attached hereto.
2. Each Loan Party has duly authorized the execution and delivery of
the Loan Documents to which it is a party and the performance by such Loan Party
of all of its obligations under each such Loan Document.
3. Each Loan Party has duly executed and delivered the Loan Documents
to which it is a party.
4. Each Loan Document is a valid and binding obligation of each Loan
Party which is a party thereto, enforceable against each such Loan Party in
accordance with its terms, except as such enforceability may be limited by: (a)
applicable bankruptcy, insolvency, reorganization, moratorium, arrangement or
similar laws relating to or affecting the enforcement of creditors' rights
generally and (b) the fact that equitable remedies or relief (including, but not
limited to, the remedy of specific performance) are subject to the discretion of
the court before which any such remedies or relief may be sought.
5. The execution and delivery by each Loan Party of the Loan Documents
to which it is a party do not, and if each Loan Party were now to perform its
obligations under such Loan Documents, such performance would not, result in
any:
(a) violation of such Loan Party's Organizational Documents;
H-2
(b) violation of any existing federal or state constitution,
statute, regulation, rule, order, or law to which such Loan Party or
its assets are subject;
(c) breach or violation of or default under, any agreement,
instrument, indenture or other document evidencing any indebtedness for
money borrowed or any other material agreement to which, to our
knowledge, such Loan Party is bound or under which a Loan Party or its
assets is subject;
(d) creation or imposition of a lien or security interest in,
on or against the assets of such Loan Party under any agreement,
instrument, indenture or other document evidencing any indebtedness for
money borrowed or any other material agreement to which, to our
knowledge, such Loan Party is bound or under which a Loan Party or its
assets is subject; or
(e) violation of any judicial or administrative decree, writ,
judgment or order to which, to our knowledge, such Loan Party or its
assets are subject.
6. The execution, delivery and performance by each Loan Party of each
Loan Document to which it is a party, and the consummation of the transactions
thereunder, do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any Governmental
Authority of the United States of America or the States of ___________,
___________ or ___________.
7. To our knowledge, there are no judgments outstanding against any of
the Loan Parties or affecting any of their respective assets, nor is there any
litigation or other proceeding against any of the Loan Parties or its assets
pending or overtly threatened, could reasonably be expected to have a materially
adverse effect on (a) the business, assets, liabilities, condition (financial or
otherwise), results of operations or business prospects of any Borrower or any
other Loan Party or (b) the validity or enforceability of any of the Loan
Documents.
8. None of the Loan Parties is, or, after giving effect to any Loan
will be, subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act or the Investment Company Act of 1940 or to any
federal or state statute or regulation limiting its ability to incur
indebtedness for borrowed money.
9. Assuming that the Borrowers apply the proceeds of the Loans as
provided in the Credit Agreement, the transactions contemplated by the Loan
Documents do not violate the provisions of Regulations T, U or X of the Board of
Governors of the Federal Reserve System of the United States of America.
10. The consideration to be paid to the Agent and the Lenders for the
financial accommodations to be provided to the Loan Parties pursuant to the
Credit Agreement does not violate any law of the States of New York or
____________ relating to interest and usury.
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This opinion is limited to the laws of the States of _____________,
_____________ and ____________ and the federal laws of the United States of
America, and we express no opinions with respect to the law of any other
jurisdiction.
[Other Customary Qualifications/Assumptions/Limitations]
This opinion is furnished to you solely for your benefit in connection
with the consummation of the transactions contemplated by the Credit Agreement
and may not be relied upon by any other Person, other than an Assignee of a
Lender, or for any other purpose without our express, prior written consent.
Very truly yours,
[NAME OF LAW FIRM]
By:_______________________________________
A Partner
H-4
SCHEDULE 1
Guarantors
----------
--------------------------------------------------------------------------------
Name Jurisdiction of Formation Jurisdictions of Foreign
Qualification
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
H-5
EXHIBIT I
FORM OF COMPLIANCE CERTIFICATE
_______________, 200_
Wachovia Bank, National Association, as Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx X. Xxxx
Each of the Lenders Party to the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June 27,
2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Corporate Properties
Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P.
and Net 3 Acquisition L.P. (collectively, the "Borrowers"), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the
"Lenders"), Wachovia Bank, National Association, as Agent (the "Agent") and the
other parties thereto. Capitalized terms used herein, and not otherwise defined
herein, have their respective meanings given them in the Credit Agreement.
Pursuant to Section 8.3. of the Credit Agreement, the undersigned
hereby certifies to the Agent and the Lenders as follows:
(1) The undersigned is the _____________________ of the Trust.
(2) The undersigned has examined the books and records of the
Trust and has conducted such other examinations and investigations as are
reasonably necessary to provide this Compliance Certificate.
(3) To the best of the undersigned's knowledge, information and
belief after due inquiry, no Default or Event of Default exists [if such is not
the case, specify such Default or Event of Default and its nature, when it
occurred and whether it is continuing and the steps being taken by the Borrowers
with respect to such event, condition or failure].
(4) The representations and warranties made or deemed made by the
Borrowers and the other Loan Parties in the Loan Documents to which any is a
party, are true and correct in all material respects on and as of the date
hereof except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
I-1
warranties shall have been true and correct in all material respects on and as
of such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents.
(5) Attached hereto as Schedule 1 are reasonably detailed
calculations establishing whether or not the Trust and its Subsidiaries were in
compliance with the covenants contained in Sections 9.1., 9.2. and 9.4. of the
Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the date first above written.
___________________________
Name:______________________
Title:_____________________
I-2
Schedule 1
----------
[Calculations to be Attached]
I-3
EXHIBIT J
FORM OF GUARANTY
THIS GUARANTY dated as of June 27, 2005, executed and delivered by each
of the undersigned and the other Persons from time to time party hereto pursuant
to the execution and delivery of an Accession Agreement in the form of Annex I
hereto (all of the undersigned, together with such other Persons each a
"Guarantor" and collectively, the "Guarantors") in favor of (a) WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as Agent (the "Agent") for the Lenders
under that certain Credit Agreement dated as of June 27, 2005 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by and among Lexington Corporate Properties Trust, Lepercq
Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P. and Net 3
Acquisition L.P. (collectively, the "Borrowers"), the financial institutions
party thereto and their assignees under Section 12.5. thereof (the "Lenders"),
the Agent, and the other parties thereto, and (b) the Lenders and the Swingline
Lender.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders
have agreed to make available to the Borrowers certain financial accommodations
on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Borrowers and each of the Guarantors, though separate
legal entities, are mutually dependent on each other in the conduct of their
respective businesses as an integrated operation and have determined it to be in
their mutual best interests to obtain financing from the Agent and the Lenders
through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrowers under the Credit Agreement and,
accordingly, each Guarantor is willing to guarantee the Borrowers' obligations
to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is a
condition to the Agent and the Lenders making, and continuing to make, such
financial accommodations to the Borrowers.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of all of the
following (collectively referred to as the "Guarantied Obligations"): (a) all
indebtedness and obligations owing by the Borrowers to any Lender or the Agent
under or in connection with the Credit Agreement and any other Loan Document,
including without limitation, the repayment of all principal of the Loans and
the Reimbursement
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Obligations, and the payment of all interest, Fees, charges, attorneys' fees and
other amounts payable to any Lender or the Agent thereunder or in connection
therewith; (b) any and all extensions, renewals, modifications, amendments or
substitutions of the foregoing; (c) all expenses, including, without limitation,
reasonable attorneys' fees and disbursements, that are incurred by the Lenders
and the Agent in the enforcement of any of the foregoing or any obligation of
such Guarantor hereunder; and (d) all other Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is
a guaranty of payment, and not of collection, and a debt of each Guarantor for
its own account. Accordingly, none of the Lenders or the Agent shall be
obligated or required before enforcing this Guaranty against any Guarantor: (a)
to pursue any right or remedy any of them may have against any Borrower, any
other Guarantor or any other Person or commence any suit or other proceeding
against any Borrower, any other Guarantor or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of any
Borrower, any other Guarantor or any other Person; or (c) to make demand of any
Borrower, any other Guarantor or any other Person or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders or the Agent
which may secure any of the Guarantied Obligations.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
Guarantied Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any Applicable Law now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Agent or the Lenders with respect thereto. The liability of each Guarantor under
this Guaranty shall be absolute, irrevocable and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a) (i) any change in the amount, interest rate or due date or
other term of any of the Guarantied Obligations, (ii) any change in the time,
place or manner of payment of all or any portion of the Guarantied Obligations,
(iii) any amendment or waiver of, or consent to the departure from or other
indulgence with respect to, the Credit Agreement, any other Loan Document, or
any other document or instrument evidencing or relating to any Guarantied
Obligations, or (iv) any waiver, renewal, extension, addition, or supplement to,
or deletion from, or any other action or inaction under or in respect of, the
Credit Agreement, any of the other Loan Documents, or any other documents,
instruments or agreements relating to the Guarantied Obligations or any other
instrument or agreement referred to therein or evidencing any Guarantied
Obligations or any assignment or transfer of any of the foregoing;
(b) any lack of validity or enforceability of the Credit
Agreement, any of the other Loan Documents, or any other document, instrument or
agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(c) any furnishing to the Agent or the Lenders of any security for
the Guarantied Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral securing any of the Obligations;
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(d) any settlement or compromise of any of the Guarantied
Obligations, any security therefor, or any liability of any other party with
respect to the Guarantied Obligations, or any subordination of the payment of
the Guarantied Obligations to the payment of any other liability of any Borrower
or any other Loan Party;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to such
Guarantor, any Borrower, any other Loan Party or any other Person, or any action
taken with respect to this Guaranty by any trustee or receiver, or by any court,
in any such proceeding;
(f) any act or failure to act by any Borrower, any other Loan
Party or any other Person which may adversely affect such Guarantor's
subrogation rights, if any, against the Borrowers to recover payments made under
this Guaranty;
(g) any nonperfection or impairment of any security interest or
other Lien on any collateral, if any, securing in any way any of the
Obligations;
(h) any application of sums paid by any Borrower, any other
Guarantor or any other Person with respect to the liabilities of the Borrowers
to the Agent or the Lenders, regardless of what liabilities of the Borrowers
remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of
any Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, a Guarantor hereunder (other than
indefeasible payment and performance in full).
Section 4. Action with Respect to Guarantied Obligations. The Lenders
and the Agent may, at any time and from time to time, without the consent of, or
notice to, any Guarantor, and without discharging any Guarantor from its
obligations hereunder, take any and all actions described in Section 3 and may
otherwise: (a) amend, modify, alter or supplement the terms of any of the
Guarantied Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Guarantied Obligations or changing the
interest rate that may accrue on any of the Guarantied Obligations; (b) amend,
modify, alter or supplement the Credit Agreement or any other Loan Document; (c)
sell, exchange, release or otherwise deal with all, or any part, of any
collateral securing any of the Obligations; (d) release any other Loan Party or
other Person liable in any manner for the payment or collection of the
Guarantied Obligations; (e) exercise, or refrain from exercising, any rights
against any Borrower, any other Guarantor or any other Person; and (f) apply any
sum, by whomsoever paid or however realized, to the Guarantied Obligations in
such order as the Lenders shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes
to the Agent and the Lenders all of the representations and warranties made by
the Borrowers with respect to
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or in any way relating to such Guarantor in the Credit Agreement and the other
Loan Documents, as if the same were set forth herein in full.
Section 6. Covenants. Each Guarantor will comply with all covenants
which the Borrowers are to cause such Guarantor to comply with under the terms
of the Credit Agreement or any of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent and/or the
Lenders are prevented under Applicable Law or otherwise from demanding or
accelerating payment of any of the Guarantied Obligations by reason of any
automatic stay or otherwise, the Agent and/or the Lenders shall be entitled to
receive from each Guarantor, upon demand therefor, the sums which otherwise
would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever
made on the Agent or any Lender for repayment or recovery of any amount or
amounts received in payment or on account of any of the Guarantied Obligations,
and the Agent or such Lender repays all or part of said amount by reason of (a)
any judgment, decree or order of any court or administrative body of competent
jurisdiction, or (b) any settlement or compromise of any such claim effected by
the Agent or such Lender with any such claimant (including any Borrower or a
trustee in bankruptcy for any Borrower), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding on it, notwithstanding any revocation hereof or the cancellation of the
Credit Agreement, any of the other Loan Documents, or any other instrument
evidencing any liability of the Borrowers, and such Guarantor shall be and
remain liable to the Agent or such Lender for the amounts so repaid or recovered
to the same extent as if such amount had never originally been paid to the Agent
or such Lender.
Section 10. Subrogation. Upon the making by any Guarantor of any
payment hereunder for the account of the Borrowers, such Guarantor shall be
subrogated to the rights of the payee against the Borrowers; provided, however,
that such Guarantor shall not enforce any right or receive any payment by way of
subrogation or otherwise take any action in respect of any other claim or cause
of action such Guarantor may have against any Borrower arising by reason of any
payment or performance by such Guarantor pursuant to this Guaranty, unless and
until all of the Guarantied Obligations have been indefeasibly paid and
performed in full. If any amount shall be paid to such Guarantor on account of
or in respect of such subrogation rights or other claims or causes of action,
such Guarantor shall hold such amount in trust for the benefit of the Agent and
the Lenders and shall forthwith pay such amount to the Agent to be credited and
applied against the Guarantied Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement or to be held by the Agent as
collateral security for any Guarantied Obligations existing.
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Section 11. Payments Free and Clear. All sums payable by each Guarantor
hereunder, whether of principal, interest, Fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any Taxes), and if any Guarantor
is required by Applicable Law or by a Governmental Authority to make any such
deduction or withholding, such Guarantor shall pay to the Agent and the Lenders
such additional amount as will result in the receipt by the Agent and the
Lenders of the full amount payable hereunder had such deduction or withholding
not occurred or been required.
Section 12. Set-off. In addition to any rights now or hereafter granted
under any of the other Loan Documents or Applicable Law and not by way of
limitation of any such rights, each Guarantor hereby authorizes the Agent and
each Lender, at any time during the continuance of an Event of Default, without
any prior notice to such Guarantor or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or Participant subject to
receipt of the prior written consent of the Agent exercised in its sole
discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender, or any
affiliate of the Agent or such Lender, to or for the credit or the account of
such Guarantor against and on account of any of the Guarantied Obligations,
although such obligations shall be contingent or unmatured. Each Guarantor
agrees, to the fullest extent permitted by Applicable Law, that any Participant
may exercise rights of setoff or counterclaim and other rights with respect to
its participation as fully as if such Participant were a direct creditor of such
Guarantor in the amount of such participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants
and agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of any Borrower to such Guarantor of whatever description, including
without limitation, all intercompany receivables of such Guarantor from any
Borrower (collectively, the "Junior Claims") shall be subordinate and junior in
right of payment to all Guarantied Obligations. If an Event of Default shall
exist, then no Guarantor shall accept any direct or indirect payment (in cash,
property or securities, by setoff or otherwise) from any Borrower on account of
or in any manner in respect of any Junior Claim until all of the Guarantied
Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor,
the Agent and the Lenders that in any Proceeding, such Guarantor's maximum
obligation hereunder shall equal, but not exceed, the maximum amount which would
not otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
Applicable Law, including without limitation, (a) Section 548 of the Bankruptcy
Code of 1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such Proceeding,
whether by virtue of Section 544 of the Bankruptcy Code or otherwise. The
Applicable Laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Agent and the Lenders) shall be determined in any such
Proceeding are referred to as the "Avoidance Provisions". Accordingly, to the
extent that the obligations of any Guarantor hereunder would otherwise be
subject to avoidance under the Avoidance Provisions,
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the maximum Guarantied Obligations for which such Guarantor shall be liable
hereunder shall be reduced to that amount which, as of the time any of the
Guarantied Obligations are deemed to have been incurred under the Avoidance
Provisions, would not cause the obligations of such Guarantor hereunder (or any
other obligations of such Guarantor to the Agent and the Lenders), to be subject
to avoidance under the Avoidance Provisions. This Section is intended solely to
preserve the rights of the Agent and the Lenders hereunder to the maximum extent
that would not cause the obligations of any Guarantor hereunder to be subject to
avoidance under the Avoidance Provisions, and no Guarantor or any other Person
shall have any right or claim under this Section as against the Agent and the
Lenders that would not otherwise be available to such Person under the Avoidance
Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of each Borrower
and the other Guarantors, and of all other circumstances bearing upon the risk
of nonpayment of any of the Guarantied Obligations and the nature, scope and
extent of the risks that such Guarantor assumes and incurs hereunder, and agrees
that neither the Agent nor any of the Lenders shall have any duty whatsoever to
advise any Guarantor of information regarding such circumstances or risks.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
SECTION 17. WAIVER OF JURY TRIAL.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED
ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO
ARISING OUT OF THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY
OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG ANY
GUARANTOR, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY
OF THE LOAN DOCUMENTS.
(b) EACH OF THE GUARANTORS, THE AGENT AND EACH LENDER HEREBY
AGREES THAT THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR
ANY STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK, NEW YORK, SHALL
HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG
ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER
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ARISING HEREFROM OR THEREFROM. EACH GUARANTOR AND EACH OF THE LENDERS EXPRESSLY
SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY
FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR
CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE
ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH
PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR
EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS GUARANTY.
Section 18. Loan Accounts. The Agent and each Lender may maintain books
and accounts setting forth the amounts of principal, interest and other sums
paid and payable with respect to the Guarantied Obligations, and in the case of
any dispute relating to any of the outstanding amount, payment or receipt of any
of the Guarantied Obligations or otherwise, the entries in such books and
accounts shall be deemed conclusive evidence of the amounts and other matters
set forth herein, absent manifest error. The failure of the Agent or any Lender
to maintain such books and accounts shall not in any way relieve or discharge
any Guarantor of any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
Agent or any Lender in the exercise of any right or remedy it may have against
any Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Agent or any Lender of any such right or
remedy shall preclude any other or further exercise thereof or the exercise of
any other such right or remedy.
Section 20. Termination. This Guaranty shall remain in full force and
effect until indefeasible payment in full of the Guarantied Obligations and the
other Obligations and the termination or cancellation of the Credit Agreement in
accordance with its terms.
Section 21. Successors and Assigns. Each reference herein to the Agent
or the Lenders shall be deemed to include such Person's respective successors
and assigns (including, but not limited to, any holder of the Guarantied
Obligations) in whose favor the provisions of this Guaranty also shall inure,
and each reference herein to each Guarantor shall be deemed to include such
Guarantor's successors and assigns, upon whom this Guaranty also shall be
binding. The Lenders may, in accordance with the applicable provisions of the
Credit
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Agreement, assign, transfer or sell any Guarantied Obligation, or grant or sell
participations in any Guarantied Obligations, to any Person without the consent
of, or notice to, any Guarantor and without releasing, discharging or modifying
any Guarantor's obligations hereunder. Subject to Section 12.8. of the Credit
Agreement, each Guarantor hereby consents to the delivery by the Agent or any
Lender to any Assignee or Participant (or any prospective Assignee or
Participant) of any financial or other information regarding any Borrower or any
Guarantor. No Guarantor may assign or transfer its rights or obligations
hereunder to any Person without the prior written consent of all Lenders and any
such assignment or other transfer to which all of the Lenders have not so
consented shall be null and void.
Section 22. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
GUARANTORS HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR
CONFIRMS THAT IT IS LIABLE FOR THE FULL AMOUNT OF THE "GUARANTIED OBLIGATIONS"
AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS
HEREUNDER.
Section 23. Amendments. This Guaranty may not be amended except in
writing signed by the Requisite Lenders (or all of the Lenders if required under
the terms of the Credit Agreement), the Agent and each Guarantor.
Section 24. Payments. All payments to be made by any Guarantor pursuant
to this Guaranty shall be made in Dollars, in immediately available funds to the
Agent at the Principal Office, not later than 2:00 p.m. on the date of demand
therefor.
Section 25. Notices. All notices, requests and other communications
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given (a) to each Guarantor at its address set forth below
its signature hereto, (b) to the Agent or any Lender at its respective address
for notices provided for in the Credit Agreement, or (c) as to each such party
at such other address as such party shall designate in a written notice to the
other parties. Each such notice, request or other communication shall be
effective (i) if mailed, when received; (ii) if telecopied, when transmitted; or
(iii) if hand delivered, when delivered; provided, however, that any notice of a
change of address for notices shall not be effective until received.
Section 26. Severability. In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 27. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 28. Limitation of Liability. Neither the Agent nor any Lender,
nor any affiliate, officer, director, employee, attorney, or agent of the Agent
or any Lender, shall have any liability with respect to, and each Guarantor
hereby waives, releases, and agrees not to xxx any of them upon, any claim for
any special, indirect, incidental, or consequential damages suffered or incurred
by a Guarantor in connection with, arising out of, or in any way related to,
this Guaranty or any of the other Loan Documents, or any of the transactions
contemplated by this Guaranty,
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the Credit Agreement or any of the other Loan Documents. Each Guarantor hereby
waives, releases, and agrees not to xxx the Agent or any Lender or any of the
Agent's or any Lender's affiliates, officers, directors, employees, attorneys,
or agents for punitive damages in respect of any claim in connection with,
arising out of, or in any way related to, this Guaranty, the Credit Agreement or
any of the other Loan Documents, or any of the transactions contemplated by
Credit Agreement or financed thereby.
Section 29. Definitions. (a) For the purposes of this Guaranty:
"Proceeding" means any of the following: (i) a voluntary or involuntary
case concerning any Guarantor shall be commenced under the Bankruptcy Code of
1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any
other applicable bankruptcy laws) is appointed for, or takes charge of, all or
any substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for adjustment
of debts, whether now or hereafter in effect, is commenced relating to any
Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any
order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
(ix) any Guarantor shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or (x) any corporate action
shall be taken by any Guarantor for the purpose of effecting any of the
foregoing.
(b) Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.
[Signature on Next Page]
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
[GUARANTORS]
Address for Notices:
c/o Lexington Corporate Properties Trust
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of ____________, 200__, executed and
delivered by ______________________, a _____________ (the "New Guarantor"), in
favor of (a) WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as Agent (the
"Agent") for the Lenders under that certain Credit Agreement dated as of June
27, 2005 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Lexington Corporate Properties
Trust, Lepercq Corporate Income Fund L.P., Lepercq Corporate Income Fund II L.P.
and Net 3 Acquisition L.P. (collectively, the "Borrowers"), the financial
institutions party thereto and their assignees under Section 12.5. thereof (the
"Lenders"), the Agent, and the other parties thereto, and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders
have agreed to make available to the Borrowers certain financial accommodations
on the terms and conditions set forth in the Credit Agreement;
WHEREAS, the Borrowers, the New Guarantor, and the existing Guarantors,
though separate legal entities, are mutually dependent on each other in the
conduct of their respective businesses as an integrated operation and have
determined it to be in their mutual best interests to obtain financing from the
Agent and the Lenders through their collective efforts;
WHEREAS, the New Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such financial
accommodations available to the Borrowers under the Credit Agreement and,
accordingly, the New Guarantor is willing to guarantee the Borrowers'
obligations to the Agent and the Lenders on the terms and conditions contained
herein; and
WHEREAS, the New Guarantor's execution and delivery of this Agreement
is a condition to the Agent and the Lenders continuing to make such financial
accommodations to the Borrowers.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Guarantor, the New
Guarantor agrees as follows:
Section 1. Accession to Guaranty. The New Guarantor hereby agrees that
it is a "Guarantor" under that certain Guaranty dated as of June 27, 2005 (as
amended, supplemented, restated or otherwise modified from time to time, the
"Guaranty"), made by each Subsidiary of the Trust a party thereto in favor of
the Agent and the Lenders and assumes all obligations of a "Guarantor"
thereunder and agrees to be bound thereby, all as if the New Guarantor had been
an original signatory to the Guaranty. Without limiting the generality of the
foregoing, the New Guarantor hereby:
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(a) irrevocably and unconditionally guarantees the due and
punctual payment and performance when due, whether at stated maturity, by
acceleration or otherwise, of all Guarantied Obligations (as defined in the
Guaranty);
(b) makes to the Agent and the Lenders as of the date hereof each
of the representations and warranties contained in Section 5 of the Guaranty and
agrees to be bound by each of the covenants contained in Section 6 of the
Guaranty; and
(c) consents and agrees to each provision set forth in the
Guaranty.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the New Guarantor has caused this Accession
Agreement to be duly executed and delivered under seal by its duly authorized
officers as of the date first written above.
[NEW GUARANTOR]
By:______________________________________________
Name:_______________________________________
Title:______________________________________
Address for Notices:
c/o Lexington Corporate Properties Trust
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Agent
By:_________________________________________
Name:__________________________________
Title:_________________________________
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