CREDIT AGREEMENT
dated as of
September 4, 1997
among
HOME PROPERTIES OF NEW YORK, L.P.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
___________________________
CHASE SECURITIES INC.,
as Arranger
___________________________
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Co-Agent
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Classification of Loans and Borrowings. . . . . . . . . . . . .16
SECTION 1.03. Terms Generally . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 1.04. Accounting Terms; GAAP. . . . . . . . . . . . . . . . . . . . .16
ARTICLE II
The Credits
SECTION 2.01. Commitments; Extension of Maturity Date . . . . . . . . . . . .17
SECTION 2.02. Loans and Borrowings. . . . . . . . . . . . . . . . . . . . . .17
SECTION 2.03. Requests for Borrowings . . . . . . . . . . . . . . . . . . . .18
SECTION 2.04. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . .19
SECTION 2.05. Funding of Borrowings . . . . . . . . . . . . . . . . . . . . .22
SECTION 2.06. Interest Elections. . . . . . . . . . . . . . . . . . . . . . .22
SECTION 2.07. Termination and Reduction of Commitments. . . . . . . . . . . .24
SECTION 2.08. Repayment of Loans; Evidence of Debt. . . . . . . . . . . . . .24
SECTION 2.09. Prepayment of Loans . . . . . . . . . . . . . . . . . . . . . .24
SECTION 2.10. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
SECTION 2.11. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 2.12. Alternate Rate of Interest. . . . . . . . . . . . . . . . . . .27
SECTION 2.13. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . .28
SECTION 2.14. Break Funding Payments. . . . . . . . . . . . . . . . . . . . .29
SECTION 2.15. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs . .30
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. . . . . . . . .31
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers. . . . . . . . . . . . . . . . . . . . . .32
SECTION 3.02. Authorization; Enforceability . . . . . . . . . . . . . . . . .32
SECTION 3.03. Governmental Approvals; No Conflicts. . . . . . . . . . . . . .33
SECTION 3.04. Financial Condition; No Material Adverse Change . . . . . . . .33
SECTION 3.05. Properties. . . . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 3.06. Intellectual Property . . . . . . . . . . . . . . . . . . . . .34
SECTION 3.07. Litigation and Environmental Matters. . . . . . . . . . . . . .34
SECTION 3.08. Compliance with Laws and Agreements . . . . . . . . . . . . . .35
SECTION 3.09. Investment and Holding Company Status . . . . . . . . . . . . .35
SECTION 3.10. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 3.11. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 3.12. Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 3.13. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 3.14. REIT Status . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 3.15. Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 3.16. Margin Regulations. . . . . . . . . . . . . . . . . . . . . . .36
SECTION 3.17. Representations and Warranties in the Loan Documents. . . . . .37
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. . . . . . . . . . . . . . . . . . . . . . . . .37
SECTION 4.02. Each Credit Event . . . . . . . . . . . . . . . . . . . . . . .38
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information. . . . . . . . . . .39
SECTION 5.02. Notices of Material Events. . . . . . . . . . . . . . . . . . .41
SECTION 5.03. Existence; Conduct of Business. . . . . . . . . . . . . . . . .42
SECTION 5.04. Payment of Obligations. . . . . . . . . . . . . . . . . . . . .42
SECTION 5.05. Maintenance of Properties; Insurance; Management. . . . . . . .42
SECTION 5.06. Books and Records; Inspection Rights. . . . . . . . . . . . . .43
SECTION 5.07. Compliance with Laws. . . . . . . . . . . . . . . . . . . . . .43
SECTION 5.08. Use of Proceeds and Letters of Credit . . . . . . . . . . . . .43
SECTION 5.09. Company Status. . . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 5.10. Ownership of Projects and Property; Unencumbered Assets . . . .44
SECTION 5.11. Shareholder Communication, Filings, etc . . . . . . . . . . . .44
SECTION 5.12. Further Assurances. . . . . . . . . . . . . . . . . . . . . . .44
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness and Other Financial Covenants. . . . . . . . . . .44
SECTION 6.02. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 6.03. Fundamental Changes . . . . . . . . . . . . . . . . . . . . . .45
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions . . .46
SECTION 6.05. Hedging Agreements. . . . . . . . . . . . . . . . . . . . . . .47
SECTION 6.06. Transactions with Affiliates. . . . . . . . . . . . . . . . . .47
SECTION 6.07. Restriction on Fundamental Changes. . . . . . . . . . . . . . .47
SECTION 6.08. Margin Regulations; Securities Laws . . . . . . . . . . . . . .47
SECTION 6.09. Negative Covenants of the Company and the QRS Subsidiary. . . .47
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 9.02. Waivers; Amendments . . . . . . . . . . . . . . . . . . . . . .52
SECTION 9.03. Expenses; Indemnity; Damage Waiver. . . . . . . . . . . . . . .54
SECTION 9.04. Successors and Assigns. . . . . . . . . . . . . . . . . . . . .55
SECTION 9.05. Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 9.06. Counterparts; Integration; Effectiveness. . . . . . . . . . . .57
SECTION 9.07. Severability. . . . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 9.08. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. . .57
SECTION 9.10. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . .58
SECTION 9.11. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . .58
SECTION 9.12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . .58
SECTION 9.13. Interest Rate Limitation. . . . . . . . . . . . . . . . . . . .59
SCHEDULES:
Schedule 2.01--Commitments
Schedule 3.02--Ownership Structure
Schedule 3.04--Existing Indebtedness
Schedule 3.07--Disclosed Matters
Schedule 3.13--Insurance
EXHIBITS:
Exhibit A--Form of Assignment and Acceptance
Exhibit B--Form of Guaranty
Exhibit C--Form of Note
Exhibit D-1--Form of Borrowing Request and Compliance Certificate
Exhibit D-2--Form of Notice of Issuance and Compliance Certificate
Exhibit E--Form of Opinion of Borrower's Counsel
Exhibit F--Form of Quarterly/Annual Compliance Certificate
CREDIT AGREEMENT, dated as of September 4, 1997, among HOME PROPERTIES OF
NEW YORK, L.P., a New York limited partnership, the LENDERS party hereto,
and THE CHASE MANHATTAN BANK, as Administrative Agent, and MANUFACTURERS
AND TRADERS TRUST COMPANY, as Co-Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted EBITDA" means, for any period, EBITDA for such period
plus management, development and other income for such period less the
Capital Expenditure Reserve Amount for such period.
"Adjusted NOI" means, for any period, NOI for such period from
Eligible Projects less the Capital Expenditure Reserve Amount for such
period.
"Adjusted Unencumbered NOI" means, for any period, Adjusted NOI
derived from Unencumbered Eligible Projects and which Adjusted NOI is not
subject to any Liens,
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for
such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Adjusted Recourse Secured Indebtedness" means Recourse Secured
Indebtedness where for the purposes of clause (b) of the definition of
Recourse Secured Indebtedness (i) the Secured Indebtedness to Total Property
Value of the Project is greater than 60% or (ii) the ratio of Adjusted NOI to
Debt Service of the Project is less than 1.4 to 1.0.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" means, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate
due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"Annual Compliance Certificate" shall have the meaning set forth
in Section 5.01(b)(iii).
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Applicable Percentages
shall be determined based upon the Commitments most recently in effect,
giving effect to any assignments.
"Applicable Eurodollar Margin" means, for any day, 125 basis
points.
"Assessment Rate" means, for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R.
Part 327 (or any successor provision) to the Federal Deposit Insurance
Corporation for insurance by such Corporation of time deposits made in
dollars at the offices of such member in the United States; provided that if,
as a result of any change in any law, rule or regulation, it is no longer
possible to determine the Assessment Rate as aforesaid, then the Assessment
Rate shall be such annual rate as shall be determined by the Administrative
Agent to be representative of the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date
of termination of the Commitments.
"Bankruptcy Code" shall have the meaning set forth in Section
3.15.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Book Value" means the value at which a Property is reported on
the financial statements of the Company in accordance with GAAP, less the
amount of any Indebtedness or Liens related to such Property.
"Borrower" means Home Properties of New York L.P., a New York
limited partnership.
"Borrowing" means Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans,
as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Revolving Loan in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that, when used in connection with
a Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.
"CAD" means "cash available for distribution" and shall mean, for
any period, FFO less an annual reserve for anticipated recurring, nonrevenue
generating capitalized costs, as reported on the financial statements of the
Company in accordance with GAAP.
"Capital Expenditure Reserve Amount" means, for any period, an
amount equal to (i) $350 multiplied by the number of apartment units
contained in all Projects multiplied by (ii) a fraction, the numerator of
which is equal to the number of days in such period and the denominator of
which is equal to 365.
"Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash and Cash Equivalents" means unrestricted (i) cash;
(ii) marketable direct obligations issued or unconditionally guaranteed by
the United States government and backed by the full faith and credit of the
United States government; (iii) domestic and Eurodollar certificates of
deposit and time deposits, bankers' acceptances and floating rate
certificates of deposit issued by any commercial bank organized under the
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations), which, at the time of acquisition, are rated A-1 (or better)
by S&P or P-1 (or better) by Xxxxx'x, provided that the maturities of such
Cash and Cash Equivalents shall not exceed one year; (iv) publicly traded
equity securities issued by a REIT that primarily owns multi-family
properties; and (iv) other marketable securities acceptable to the Required
Lenders.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Seciton 96011 et seq., any
amendments thereto, any successor, statutes and any regulations or guidance
promulgated thereunder.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of Section 13(d)(3) of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof), of shares representing more than 25% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Company; (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Company by Persons
who were neither (i) nominated by the board of directors of the Company nor
(ii) appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of the Borrower or the Company by any Person or group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by
any Lender or the Issuing Bank (or, for purposes of Section 2.13(b), by any
lending office of such Lender or by such Lender's or the Issuing Bank's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued
after the date of this Agreement.
"Co-Agent" means Manufacturers and Traders Trust Company, in its
capacity as co-agent for the Lenders hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" means, with respect to each Lender, the commitment
of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to assignments by or
to such Lender pursuant to Section 9.04. The initial amount of each Lender's
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as
applicable. The initial aggregate amount of the Lenders' Commitments is
$50,000,000.
"Company" means Home Properties of New York, Inc., a New York
corporation.
"Consolidated Businesses" means the Company, the Borrower, the
Management Companies, and their wholly-owned Subsidiaries.
"Contingent Obligation" as to any Person means, without
duplication, (i) any contingent obligation of such Person required to be
shown on such Person's balance sheet in accordance with GAAP, and (ii) any
obligation required to be disclosed in the footnotes to such Person's
financial statements in accordance with GAAP, guaranteeing partially or in
whole any non-recourse Indebtedness, lease, dividend or other obligation,
exclusive of contractual indemnities (including, without limitation, any
indemnity or price-adjustment provision relating to the purchase or sale of
securities or other assets) and guarantees of non-monetary obligations (other
than guarantees of completion) which have not yet been called on or
quantified, of such Person or of any other Person. The amount of any Contin-
gent Obligation described in clause (ii) shall be deemed to be (a) with
respect to a guaranty of interest or interest and principal, or operating
income guaranty, the sum of all payments required to be made thereunder
(which in the case of an operating income guaranty shall be deemed to be
equal to the debt service for the note secured thereby), calculated at the
interest rate applicable to such Indebtedness, through (i) in the case of an
interest or interest and principal guaranty, the stated date of maturity of
the obligation (and commencing on the date interest could first be payable
thereunder), or (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to
all guarantees not covered by the preceding clause (a) an amount equal to the
stated or determinable amount of the primary obligation in respect of which
such guaranty is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as recorded on the balance sheet and on the
footnotes to the most recent financial statements of the applicable Borrower
required to be delivered pursuant hereto. Notwithstanding anything contained
herein to the contrary, (1) guarantees of completion shall not be deemed to
be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to
be a Contingent Obligation in an amount equal to any such claim and (2) Low
Income Housing Credit Program Guarantees shall not be deemed to be Contingent
Obligations. Subject to the preceding sentence, (i) in the case of a joint
and several guaranty given by such Person and another Person (but only to the
extent such guaranty is recourse, directly or indirectly to the applicable
Borrower), the amount of the guaranty shall be deemed to be 100% thereof
unless and only to the extent that (X) such other Person has delivered Cash
or Cash Equivalents to secure all or any part of such Person's guaranteed
obligations or (Y) such other Person holds an Investment Grade Credit Rating
from either Xxxxx'x or S&P, and (ii) in the case of a guaranty, (whether or
not joint and several) of an obligation otherwise constituting Debt of such
Person, the amount of such guaranty shall be deemed to be only that amount in
excess of the amount of the obligation constituting Indebtedness of such Per-
son.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 3.07.
"dollars" or "$" refers to lawful money of the United States of
America.
"Debt Service" means for any period the sum of (i) all interest
obligations accrued on all Indebtedness with respect to a Project, (ii) all
payments of principal required to be made (other than payments of any
principal balance remaining to be paid by the terms of the applicable
Indebtedness at the maturity thereof) with respect to any Indebtedness on a
Project and (iii) the amortization of loan fees, original issue discount,
non-cash interest payments, the interest component of Capital Lease
Obligations and hedging costs (but excluding extraordinary interest expense,
and net of amortization of deferred costs associated with new financings or
refinancings of existing Indebtedness) during such period.
"EBITDA" means, for any period, NOI for such period, less
allocated corporate marketing, general and administrative expenses for such
period.
"Effective Date" means the date on which the conditions specified
in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Eligible Project" means any Project that (i) is 100% owned by a
Consolidated Business, free of all title defects and material structural
defects, (ii) has achieved an occupancy rate of not less than 80%, (iii) is
managed by the Borrower, either Management Company or other Subsidiary of the
Borrower, (iv) is free of all Hazardous Materials as verified by an
environmental assessment report in form and substance satisfactory to the
Administrative Agent.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof;
(ii) a commercial bank having total assets in excess of $5,000,000,000;
(iii) the central bank of any country which is a member of the Organization
for Economic Cooperation and Development having total assets in excess of
$10,000,000,000; or (iv) a finance company or other financial institution
reasonably acceptable to the Administrative Agent, which is regularly engaged
in making, purchasing or investing in loans and having total assets in excess
of $1,000,000,000 or is otherwise reasonably acceptable to the Administrative
Agent.
"Encumbered Eligible Project" means any Eligible Project all or
any portion of which is encumbered by a Lien.
"Environmental Laws" means any and all present and future federal,
state or local laws, rules, regulations, statutes or codes and any and all
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary of the Borrower directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the presence, generation,
use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the environment or (e)
any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"Equity Value" means Total Value less Total Outstanding
Indebtedness.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Borrower
or any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Borrower or
any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b)
any branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.17(b)), any withholding
tax that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 2.15(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations for such
day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"FFO" means "funds from operations" as defined in the National
Association of Real Estate Investment Trusts ("NAREIT") White Paper on Funds
From Operations as approved by the NAREIT Board of Governors on March 3,
1995.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Charges" means, with respect to any fiscal period, the sum
of (a) Total Interest Expense and (b) the aggregate of all scheduled
principal payments on Indebtedness made or required to be made during such
fiscal period for the Consolidated Businesses (but excluding balloon payments
of principal due upon the stated maturity of an Indebtedness) and (c) the
aggregate of all dividends declared and payable on the Company's, the
Borrower's or any of their Subsidiaries' preferred stock or preferred
partnership units, as the case may be, provided, however, that the
distributions payable on the currently outstanding Class A Limited
Partnership Interests of the Borrower shall not be included in this clause
(c).
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America.
"General Partner" means the Company and any successor general
partner(s) of the Borrower.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided, that
the term Guarantee shall not include (i) endorsements for collection or
deposit in the ordinary course of business, (ii) guarantees of completion
unless and until a claim for payment has been made thereunder, at which time
any such guaranty of completion shall be deemed to be a Guaranty in an amount
equal to any such claim and (iii) Low Income Housing Credit Program
Guarantees.
"Guaranty" means the Guaranty Agreement of even date herewith made
by the Company for the benefit of the Lenders in the form attached hereto as
Exhibit B.
"Hazardous Materials" means toxic substances, hazardous waste,
hazardous materials or hazardous substances, as such terms are defined in the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. Section
9601 et seq.), the Comprehensive Environmental, Response, Compensation and
Liability Act, as amended (42 U.S.C. Sections 9601 and 9657 et seq.) and/or
the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections
1801 et seq.), and the regulations promulgated pursuant to any such laws, any
asbestos or asbestos related products and any oils, petroleum-derived
compounds or pesticides; provided that "Hazardous Materials" shall not
include (a) materials which exist in quantities or in a compounded non-
hazardous form in compliance with all applicable Federal, state and local
laws, ordinances, rules and regulations such as asphalt contained in road
surfacing materials and (b) materials customarily used in the day-to-day
operation and maintenance of the Properties which are stored, used and
disposed of in accordance with all applicable Federal, state and local laws,
ordinances, rules and regulations such as cleaning fluids.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"Improvements" means all buildings, fixtures, structures, parking
areas, landscaping and all other improvements whether existing now or
hereafter constructed, together with all machinery and mechanical,
electrical, HVAC and plumbing systems presently located thereon and used in
the operation thereof, excluding (a) any such items owned by utility service
providers, (b) any such items owned by tenants or other third-parties
unaffiliated with the Borrower and (c) any items of personal property.
"Indebtedness" of any Person means, without duplication, (a) all
obligations (including, without limitation, Contingent Obligations) of such
Person for borrowed money or with respect to deposits or advances of any
kind, (b) all obligations (including, without limitation, Contingent
Obligations) of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations (including, without limitation, Contingent
Obligations) of such Person upon which interest charges are customarily paid,
(d) all obligations (including, without limitation, Contingent Obligations)
of such Person under conditional sale or other title retention agreements
relating to property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others 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 owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations
(including, without limitation, Contingent Obligations) of such Person,
(i) all obligations (including, without limitation, Contingent Obligations)
of such Person as an account party in respect of letters of credit and
letters of guaranty and (j) all obligations (including, without limitation,
Contingent Obligations) of such Person in respect of bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner)
to the extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Loan in accordance with Section 2.06.
"Interest Payment Date" means the first day of each calendar
month.
"Interest Period" means the period commencing on the date of any
Eurodollar Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the
Borrower may elect, provided that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end
on the next preceding Business Day and (ii) any Interest Period that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case
of a Revolving Loan, thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as
the issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.04(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time. The LC Exposure of any Lender at
any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"Lease" means a lease, license, concession agreement or other
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments thereof
and all side letters or side agreements relating thereto.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to
or substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, as the rate for dollar deposits
with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the "LIBO Rate" with
respect to such Eurodollar Borrowing for such Interest Period shall be the
rate (rounded upwards, if necessary, to the next 1/16 of 1%) at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period
are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Loan Documents" means this Agreement, the Notes, the Guaranty and
all other instruments, agreements and written obligations between the
Borrower and any of the Lenders pursuant to or in connection with the
transactions contemplated hereby.
"Low Income Housing Credit Program Guarantees" means the assurance
by the Borrower to limited partners of certain Affiliates of the Borrower, of
which the Borrower or a Subsidiary of the Borrower is the general partner,
that the real properties developed and operated by such Affiliates under the
Low Income Housing Tax Credit program established under the Code will be kept
in compliance with applicable requirements to avoid loss of, or recapture of,
low income housing tax credits.
"Management Company" means either, (i) Home Properties Management,
Inc., a Maryland corporation, 99% of the issued and outstanding capital stock
of which is and shall continue to be owned, beneficially and of record, by
the Borrower, and (ii) Conifer Realty Corporation, a Maryland corporation,
99% of the issued and outstanding capital stock of which is and shall
continue to be owned, beneficially and of record, by the Borrower.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U and Regulation G of the Federal Reserve Board as in effect from
time to time.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or condition (financial or otherwise) of
the Borrower and its wholly-owned Subsidiaries, taken as a whole, (b) the
ability of the Company, the Borrower or any of their Subsidiaries to perform
any of their obligations under this Agreement or the Loan Documents or
(c) the rights of or benefits available to the Lenders under this Agreement
or the Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount exceeding $7,500,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary of the Borrower in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means September 4, 1999, as the same may be
extended as provided in Section 2.01(b).
"Maximum Availability" means the lesser of (a) $50,000,000 and (b)
the sum of (i) 60% of the Total Property Value of Unencumbered Eligible
Projects plus (ii) 60% of the Total Property Value of Encumbered Eligible
Projects minus the amount of any Secured Indebtedness affecting such
Projects, provided that such amount in this clause (ii) shall not be less
than zero.
"Money Market", when used in reference to any Loan or Borrowing,
refers to whether such Loan or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Money Market Rate.
"Money Market Loan Maturity Date" means, with respect to any Money
Market Loan, the maturity date requested by the Borrower in connection
therewith (which date shall in no event be later than the earlier of (a) 29
days after the date of such Borrowing thereof and (b) the Maturity Date).
"Money Market Rate" means, with respect to any proposed Money
Market Loan, the quoted rate per annum obtained by the Administrative Agent
with respect thereto, and accepted by all the Lenders in their sole
discretion, no later than 10:00 a.m., New York City time, two Business Days
prior to the requested date of Borrowing (or, in the case of Money Market
Loans having a Money Market Maturity Date of six days or less from the
relevant date of Borrowing, the quoted rate per annum obtained by the
Administrative Agent with respect thereto, and accepted by all the Lenders in
their sole discretion, no later than one hour after the quote is obtained by
the Administrative Agent, which quote shall in no event be obtained later
than 12:00 noon, New York City time, on the relevant date of Borrowing).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means all cash when and as received in
connection with the sale or refinancing of any Real Property, less the amount
of Secured Indebtedness required to be repaid in connection with the sale or
refinancing of such Real Property, real estate transfer taxes payable in
connection with the sale of such Real Property and reasonable costs and
expenses paid by the Borrower or its Subsidiaries in connection with such
sale or refinancing.
"Net Offering Proceeds" means all cash received by the Company as
a result of the sale of common shares, preferred shares, partnership
interests, limited liability company interests, convertible securities or
other ownership or equity interests in the Company, less customary costs and
discounts of issuance paid by the Company.
"NOI" means net operating income derived from Projects determined
in accordance with GAAP, adjusted, however, to exclude accrued rent with
respect to tenants that are more than 90 days in arrears in the payment of
rent, and further adjusted to account for the actual management fee, if any,
paid with respect to the Projects.
"Note" means a promissory note in the form attached hereto as
Exhibit C payable to a Lender, evidencing certain of the Obligations of the
Borrower to such Lender and executed by the Borrower, as the same may be
amended, supplemented, modified or restated from time to time; "Notes" means,
collectively, all of such Notes outstanding at any given time.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more than
30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in the
ordinary course of business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any Subsidiary of the
Borrower;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) Cash and Cash Equivalents;
(b) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(c) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(d) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State thereof
which has a combined capital and surplus and undivided profits of not less
than $500,000,000; and
(e) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (b) above and entered
into with a financial institution satisfying the criteria described in
clause (d) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.
"Project" means any residential housing building, related group
of buildings or community owned 100%, directly or indirectly, by any of the
Consolidated Businesses.
"Property" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business.
"QRS Subsidiary" means the Company's wholly-owned Subsidiary that
after the date hereof owns limited partnership interests in the Borrower.
"Qualified Community Reinvestment Projects" means those Projects
that comply with the Community Reinvestment Act or other applicable federal
and state laws.
"Quarterly Compliance Certificate" shall have the meaning set
forth in Section 5.01(a)(iii).
"Real Property" means all of the Borrower's present and future
right, title and interest (including, without limitation, any leasehold
estate) in (i) any plots, pieces or parcels of land, (ii) any IMarket Loan, the
maturity date requested by the Borrower in connection
therewith (which date shall in no event be later than the earlier of (a) 29
days after the date of such Borrowing thereof and (b) the Maturity Date).
"Money Market Rate" means, with respect to any proposed Money Market
Loan, the quoted rate per annum obtained by the Administrative Agent with
respect thereto, and accepted by all the Lenders in their sole discretion, no
later than 10:00 a.m., New York City time, two Business Days prior to the
requested date of Borrowing (or, in the case of Money Market Loans having a
Money Market Maturity Date of six days or less from the relevant date of
Borrowing, the quoted rate per annum obtained by the Administrative Agent
with respect thereto, and accepted by all the Lenders in their sole discretion,
no later than one hour after the quote is obtained by the Administrative Agent,
which quote shall in no event be obtained later than 12:00 noon, New York City
time, on the relevant date of Borrowing).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means all cash when and as received in connection
with the sale or refinancing of any Real Property, less the amount of Secured
Indebtedness required to be repaid in connection with the sale or refinancing
of such Real Property, real estate transfer taxes payable in connection with
the sale of such Real Property and reasonable costs and expenses paid by the
Borrower or its Subsidiaries in connection with such sale or refinancing.
"Net Offering Proceeds" means all cash received by the Company as a
result of the sale of common shares, preferred shares, partnership interests,
limited liability company interests, convertible securities or other ownership
or equity interests in the Company, less customary costs and discounts of
issuance paid by the Company.
"NOI" means net operating income derived from Projects determined
in accordance with GAAP, adjusted, however, to exclude accrued rent with
respect to tenants that are more than 90 days in arrears in the payment of
rent, and further adjusted to account for the actual management fee, if any,
paid with respect to the Projects.
"Note" means a promissory note in the form attached hereto as
Exhibit C payable to a Lender, evidencing certain of the Obligations of the
Borrower to such Lender and executed by the Borrower, as the same may be
amended, supplemented, modified or restated from time to time; "Notes" means,
collectively, all of such Notes outstanding at any given time.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interefere with the
ordinary conduct of business of the Borrower or any Subsidiary of the
Borrower;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) Cash and Cash Equivalents;
(b) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(c) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Moody's;
(d) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which has
a combined capital and surplus and undivided profits of not less than
$500,000,000; and
(e) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (b) above and entered
into with a financial institution satisfying the criteria described in
clause (d) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV or ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan BAnk as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Project" means any residential housing building, related group of
buildings or community owned 100%, directly or indirectly, by any of the
Consolidated Businesses.
"Property" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business.
"QRS Subsidiary" means the Company's wholly-owned Subsidiary that
after the date hereof owns limited partnership interests in the Borrower.
"Qualified Community Reinvestment Projects" means those Projects that
comply with the Community Reinvestment Act or other applicable federal and
state laws.
"Quarterly Compliance Certificate" shall have the meaning set forth
in Section 5.01(a)(iii).
"Real Property" means all of the Borrower's present and future
right, title and interest (including, without limitation, any leasehold estate)
in (i) any plots, pieces or parcels of land, (ii) any Improvements of every
nature whatsoever (the rights and interests described in clauses (i) and (ii)
above being the "Premises"), (iii) all easements, rights of way, gores of land
or any lands occupied by streets, ways alleys, passages, sewer rights, water
courses, water rights and powers, and public places adjoining such land, and
any other interests in property constituting appurtenances to the Premises,
or which hereafter shall in any way belong, relate or be appurtenant thereto,
(iv) all hereditaments, gas, oil, minerals (with the right to extract, sever
and remove such gas, oil and minerals), and easements, of every nature
whatsoever, located in, on or benefiting the Premises and (v) all other
rights and privileges thereunto belonging or appertaining and all extensions,
additions, improvements, betterments, renewals, substitutions and
replacements to or of any of the rights and interests described in clauses
(iii) and (iv) above.
"Recourse Secured Indebtedness" means (a) Guarantees of the
mpany, the Borrower and their Subsidiaries and (b) Secured Indebtedness
affecting any Project that is recourse to the Borrower or its Subsidiaries.
"Register" has the meaning set forth in Section 9.04.
"REIT" means a domestic trust or corporation that qualifies as a
real estate investment trust under the provisions of Sections 856, et seq. of
the Code.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing at least 75% of the sum
of the total Revolving Credit Exposures and unused Commitments at such time.
"Restricted Payment" is defined in Section 6.01 hereof.
"Revolving Credit Exposure" means, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and its LC Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"Secured Indebtedness" means any Indebtedness secured by a Lien.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for new
negotiable non-personal time deposits in dollars of over $100,000 with
maturities approximately equal to three months and (b) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to
any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in
effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of
the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day) or, if such rate is not
so reported on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day is not a
Business Day, on the next preceding Business Day) by the Administrative Agent
from three negotiable certificate of deposit dealers of recognized standing
selected by it.
"Total Interest Expense" means, for any period, the sum of (i)
interest expense of the Consolidated Businesses paid during such period and
(ii) interest expense of the Consolidated Businesses accrued and/or
capitalized for such period in each case including participating interest
expense, the amortization of loan fees, original issue discount, non-cash
interest payment, the interest component of Capital Lease Obligations and
hedging costs but excluding extraordinary interest expense, and net of amor-
tization of deferred costs associated with new financings or refinancings of
existing Indebtedness.
"Total Outstanding Indebtedness" means, as of any date, the sum
of (i) all Indebtedness of the Consolidated Businesses and (ii) without
duplication, all Contingent Obligations of the Consolidated Businesses which
are recourse to the Borrower. "Total Outstanding Indebtedness" shall not be
deemed to include (a) completion guarantees of construction loans or (b) Low
Income Housing Tax Credit Program Guarantees.
"Total Property Value" means, as of any date, the sum of (i) with
respect to all Eligible Projects which have been owned by the Borrower for
not less than four full consecutive calendar quarters, as of the first day of
each fiscal quarter for the immediately preceding consecutive four calendar
quarters, an amount equal to Adjusted NOI relating to such Eligible Project
for such period divided by an annual interest rate equal to 9.5%, and (ii)
with respect to all Eligible Projects which have been owned by the Borrower
for less than four full consecutive calendar quarters, an amount equal to the
cost of acquiring such Eligible Projects less reasonable and customary
transaction costs incurred in connection with such acquisition.
"Total Value" means, as of any date, the sum of (i) Total Property
Value for all Eligible Projects; (ii) an amount equal to 500% of the EBITDA
derived from management and development activities of the Consolidated
Businesses as of the first day of each fiscal quarter for the immediately
preceding consecutive four calendar quarters; (iii) unrestricted Permitted
Investments of the Consolidated Businesses; (iv) an amount equal to 50% of
Book Value of undeveloped land and Projects on which construction is in
progress, up to a maximum of 10% of Total Value before including the amount
of Total Value derived from this clause (iv); (v) an amount equal to 75% of
all (1) investments in notes secured by mortgages on the Property of any
Person (including Affiliates) and (2) obligations of Affiliates and
directors, officers and employees of the Company, the Borrower, the
Borrower's Subsidiaries, the Borrower's Affiliates and the Management
Companies to repay any loans and advances; and (vi) Borrower's pro rata share
of investments in Real Property not constituting Eligible Projects, valued at
the lower of cost or the value specified in clauses (i) through (vi) above.
"Transactions" means the execution, delivery and performance by
the Borrower of this Agreement, the borrowing of Loans, the use of the
proceeds thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate or the Money Market Rate.
"Unencumbered Eligible Project" means any Eligible Project with
is not an Encumbered Eligible Project.
"Unsecured Interest Expense" means the interest expense paid,
accrued or capitalized on all Total Outstanding Indebtedness that is not
Secured Indebtedness for the applicable period.
"Withdrawal Liability" means liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Type
(e.g., a "Eurodollar Loan"). Borrowings also may be classified and referred
to by Type (e.g., a "Eurodollar Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
to include such Person's successors and assigns, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments; Extension of Maturity Date. (a)
Subject to the terms and conditions set forth herein, each Lender agrees to
make Loans to the Borrower from time to time during the Availability Period
in an aggregate principal amount that will not result in (i) such Lender's
Revolving Credit Exposure exceeding such Lender's Commitment or (ii) the sum
of the total Revolving Credit Exposures exceeding the total Maximum
Availability. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Loans.
(b) At the option of the Borrower and subject to the terms and
conditions set forth herein, the Borrower may request that the Maturity Date
be extended by one year to September 4, 2000. If the Borrower desires to so
extend the Maturity Date, it shall deliver written notice of such desire (the
"Extension Notice") to the Administrative Agent not later than the date which
is ninety (90) days prior to the Maturity Date, together with (i) a
certificate of a Financial Officer of the Borrower certifying that (A) the
representations and warranties of the Borrower set forth in this Agreement
are true and correct on and as of the date of certification, (B) no Default
has occurred and is continuing and (C) no event has occurred since the date
of this Agreement which has had, and continues to have, or is reasonably
likely to have, a Material Adverse Effect; and (ii) the payment of any fee
provided for in Section 2.10(c). Upon receipt of the foregoing, the Maturity
Date then in effect shall be extended until September 4, 2000, but the
Borrower shall have no further right to extend the Maturity Date.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made
as part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.12, each Borrowing shall be comprised
entirely of ABR Loans, Money Market Loans or Eurodollar Loans as the Borrower
may request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in accord-
ance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Loan, such Loan shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $1,000,000. At the time that
each ABR Loan is made, such Borrowing shall be in an aggregate amount that is
an integral multiple of $100,000 and not less than $1,000,000; provided that
an ABR Loan may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(e).
Borrowings of more than one Type may be outstanding at the same time;
provided that there shall not at any time be more than a total of five
Eurodollar Loans outstanding.
(d) Notwithstanding anything herein to the contrary, at no
time shall the aggregate Revolving Credit Exposure be greater than the
Maximum Availability.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date.
(f) Notwithstanding any other provision of this Agreement, no
Loans with interest accruing at the Money Market Rate shall be made unless
all the Lenders accept the quoted Money Market Rate obtained by the
Administrative Agent.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of the proposed
Borrowing, (b) in the case of a Money Market Borrowing, not later than 11:00
a.m., New York City time, two Business Days before the date of the proposed
Borrowing (or, in the case of Money Market Loans having a Money Market
Maturity Date of six days or less from the relevant date of Borrowing, not
later than 11:00 a.m., New York City time, on the date of the proposed
Borrowing), or (c) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(e) may be
given not later than 10:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in the form of
Exhibit D-1 attached hereto, or such other form approved by the
Administrative Agent, and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing, a
Eurodollar Borrowing or a Money Market Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest
Period";
(v) in the case of a Money Market Borrowing, the Money Market
Loan Maturity Date to be applicable thereto, which shall be
a date contemplated by the definition of the term "Money
Market Maturity Date"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be a Eurodollar Borrowing with an Interest Period of one
month's duration. If no Interest Period is specified with respect to any
requested Eurodollar Borrowing, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If no Money Market
Maturity Date is specified with respect to any requested Money Market
Borrowing, then the Borrower shall be deemed to have selected a Money Market
Maturity Date that is seven days after the date of such Borrowing. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of
the amount of such Lender's Loan to be made as part of the requested
Borrowing.
SECTION 2.04. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance
of Letters of Credit for its own account, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to
time during the Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and
conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the
Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice in the
form of Exhibit D-2 attached hereto, or such other form approved by the
Administrative Agent, and signed by the Borrower requesting the issuance of
a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or extension,
the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of
credit application on the Issuing Bank's standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment, renewal
or extension (i) the LC Exposure shall not exceed an amount equal to 10% of
the Maximum Availability and (ii) the sum of the total Revolving Credit
Exposures shall not exceed the Maximum Availability.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from the Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by the Issuing Bank and
not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to
the Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 12:00 noon, New York City time, on the
date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on
such date, or, if such notice has not been received by the Borrower prior to
such time on such date, then not later than 12:00 noon, New York City time,
on (i) the Business Day that the Borrower receives such notice, if such
notice is received prior to 10:00 a.m., New York City time, on the day of
receipt, or (ii) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such
time on the day of receipt; provided that, if such LC Disbursement is not
less than $1,000,000, the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 that such
payment be financed with a Money Market Loan in an equivalent amount and, to
the extent so financed, the Borrower's obligation to make such payment shall
be discharged and replaced by the resulting Money Market Loan. If the
Borrower fails to make such payment when due, the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the payment then due
from the Borrower in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Lender shall pay to
the Administrative Agent its Applicable Percentage of the payment then due
from the Borrower, in the same manner as provided in Section 2.05 with
respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Issuing Bank the amounts so received by it
from the Lenders. Promptly following receipt by the Administrative Agent of
any payment from the Borrower pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the Issuing Bank or, to the extent
that Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their interests
may appear. Any payment made by a Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of
ABR Revolving Loans as contemplated above) shall not constitute a Loan and
shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented under a Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank
under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit, or (iv) any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative Agent, the
Lenders nor the Issuing Bank, nor any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation
of technical terms or any consequence arising from causes beyond the control
of the Issuing Bank; provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Bank's failure
to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit,
the Issuing Bank may, in its sole discretion, either accept and make payment
upon such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent
a demand for payment under a Letter of Credit. The Issuing Bank shall
promptly notify the Administrative Agent, the Lenders and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the
Issuing Bank has made or will make an LC Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders with
respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; provided that, if the Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section, then Section 2.11(e)
shall apply. Interest accrued pursuant to this paragraph shall be for the
account of the Issuing Bank, except that interest accrued on and after the
date of payment by any Lender pursuant to paragraph (e) of this Section to
reimburse the Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall
become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.10(b). From and
after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Bank" shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the replacement
of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by
it prior to such replacement, but shall not be required to issue additional
Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Administrative Agent or the Required Lenders demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of
any Event of Default with respect to the Borrower described in clause (h) or
(i) of Article VII. Such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower
for the LC Exposure at such time or, if the maturity of the Loans has been
accelerated, be applied to satisfy other obligations of the Borrower under
this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been
cured or waived to the satisfaction of the Required Lenders.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower designated by the
Borrower in the applicable Borrowing Request; provided that ABR Revolving
Loans made to finance the reimbursement of an LC Disbursement as provided in
Section 2.04(e) shall be remitted by the Administrative Agent to the Issuing
Bank.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the Borrower, the interest rate applicable to ABR Loans.
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Loan initially shall
be of the Type specified in the applicable Borrowing Request and, in the case
of a Eurodollar Loan, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the Borrower may elect to convert such
Loan to a different Type or to continue such Loan and, in the case of a
Eurodollar Loan, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative
Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with
respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case
the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing,
a Eurodollar Borrowing or a Money Market Borrowing;
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving
effect to such election, which shall be a period
contemplated by the definition of the term "Interest
Period"; and
(v) if the resulting Borrowing is a Money Market Borrowing, the
Money Market Loan Maturity Date to be applicable thereto,
which shall be a date contemplated by the definition of the
term "Money Market Maturity Date."
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration, and if any such
Interest Election Request requests a Money Market Borrowing but does not
specify a Money Market Maturity Date, then the Borrower shall be deemed to
have selected a Money Market Maturity Date that is seven days after the date
of such Borrowing.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to (i) a Eurodollar Loan prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Loan shall be
converted to a Eurodollar Loan with an Interest Period of one month's
duration and (ii) a Money Market Loan prior to the Money Market Maturity Date
applicable thereto, then, unless such Borrowing is repaid as provided herein,
on the Money Market Maturity Date such Loan shall be converted to an ABR
Loan. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so notifies the Borrower, then, so long as an Event
of Default is continuing (i) no outstanding Loan may be converted to or
continued as a Eurodollar Loan and (ii) unless repaid, each Eurodollar Loan
shall be converted to an ABR Loan at the end of the Interest Period
applicable thereto and each Money Market Loan shall be converted to an ABR
Loan on the Money Market Maturity Date applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $100,000 and not less
than $1,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans
in accordance with Section 2.09, the Revolving Credit Exposures would exceed
the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by
the Borrower pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of
the Commitments shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole
or in part, subject to prior notice in accordance with paragraph (b) of this
Section.
(b) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Loan, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Loan, not later than 11:00 a.m., New York City time, one
Business Day before the date of prepayment, or (iii) in the case of
prepayment of a Money Market Loan, not later than 11:00 a.m., New York City
time, one Business Day before the date of prepayment. Each such notice shall
be irrevocable and shall specify the prepayment date and the principal amount
of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.07, then such
notice of prepayment may be revoked if such notice of termination is revoked
in accordance with Section 2.07. Promptly following receipt of any such
notice relating to a Loan, the Administrative Agent shall advise the Lenders
of the contents thereof. Each partial prepayment of any Loan shall be in an
amount that would be permitted in the case of an advance of a Loan of the
same Type as provided in Section 2.02. Each prepayment of a Loan shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section
2.11.
(c) If at any time the Borrower or any of its Subsidiaries receives
proceeds from the sale, transfer, assignment, conveyance or refinancing of
any Real Property or any interest in any Real Property, the Borrower shall be
required to prepay a portion of the Loan in an amount equal to the Net Cash
Proceeds unless the Borrower shall have obtained prior written consent from
the Required Lenders to retain the Net Cash Proceeds. In the event of a
required prepayment in accordance with this clause (c), the Borrower shall
simultaneously with the receipt of such Net Cash Proceeds make such
prepayment together with the interest accrued to the date of the prepayment
on the principal amount prepaid. In connection with the prepayment of any
Loan prior to the maturity thereof, the Borrower shall also pay any
applicable expenses pursuant to Section 2.14 hereof. Each such prepayment
shall be applied to prepay ratably the Loans of the Lender. As used in this
clause (c) only, the phrase "sale, transfer, assignment, conveyance or
refinancing" shall not include sales or conveyances among Borrower and any of
its Subsidiaries.
(d) If at any time the Revolving Credit Exposure exceeds the
Maximum Availability, the Borrower shall be required to prepay a portion of
the Loan in an amount equal to such excess. In the event of a required
prepayment in accordance with this clause (d), the Borrower shall immediately
make such prepayment together with the interest accrued to the date of the
prepayment on the principal amount prepaid and shall, to the extent
necessary, return or cause to be returned to the Issuing Bank such Letters of
Credit so that immediately following such prepayment and return of such
Letters of Credit the Revolving Credit Exposure shall not exceed the Maximum
Availability; provided that in lieu of returning any such Letters of Credit,
the Borrower may deposit with the Administrative Agent cash collateral in
accordance with Section 2.04(j). In connection with the prepayment of any
Loan prior to the maturity thereof, the Borrower shall also pay any
applicable expenses pursuant to Section 2.14 hereof. Each such prepayment
shall be applied to prepay ratably the Loans of the Lender.
(e) If at any time (i) the Company or the Borrower merges or
consolidates with another Person and the Company or the Borrower, as the case
may be, is not the surviving entity, or (ii) the Company, the Borrower, any
of its Subsidiaries or either Management Company, individually or
collectively, ceases to provide property management and leasing services to
at least 80% of the total number of Projects in which the Borrower has an
ownership interest (the date any such event shall occur being the "Prepayment
Date"), the Borrower shall be required to prepay the Loans in their entirety
as if the Prepayment Date were the Maturity Date, and the Commitment shall be
terminated as of the Prepayment Date, without further notice to the Borrower.
In the event of a required prepayment in accordance with this clause (e), the
Borrower shall on the Prepayment Date make such prepayment together with the
interest accrued to the date of the prepayment on the principal amount
prepaid and shall return or cause to be returned all Letters of Credit to the
Issuing Bank. In connection with the prepayment of any Loan prior to the
maturity thereof, the Borrower shall also pay any applicable expenses
pursuant to Section 2.14 hereof. Each such prepayment shall be applied to
prepay ratably the Loans of the Lender. Amounts prepaid pursuant to this
clause (e) may not be reborrowed.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender an unused facility fee,
which shall accrue at a rate of 22.5 basis points per annum on the daily
amount of the unused Commitment of such Lender during the period from and
including the date hereof to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving
Credit Exposure after its Commitment terminates, then such facility fee shall
continue to accrue on the daily amount of such Lender's Revolving Credit
Exposure from and including the date on which its Commitment terminates to
but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued unused facility fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the
date on which the Commitments terminate, commencing on the first such date to
occur after the date hereof; provided that any unused facility fees accruing
after the date on which the Commitments terminate shall be payable on demand.
All unused facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate of 125
basis points per annum on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and (ii) to
the Issuing Bank a fronting fee, which shall accrue at the rate of 12.5 basis
points per annum on the average daily amount of the LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of
the date of termination of the Commitments and the date on which there ceases
to be any LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Effective
Date; provided that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to
the Issuing Bank pursuant to this paragraph shall be payable within 10 days
after demand. All participation fees and fronting fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) In the event that the Borrower exercises its option to extend
the Maturity Date in accordance with Section 2.10(b), the Borrower shall pay
to the Administrative Agent for the account of each Lender an aggregate
amount equal to 15 basis points on the then amount of the Commitment, which
amount shall be allocated among the Lender's pro rata in the proportion of
the respective Commitments of each Lender.
(d) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed
upon between the Borrower and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances. Upon its receipt of fees to which the
Lenders are entitled, the Administrative Agent shall promptly remit such fees
to the Lenders as provided herein.
SECTION 2.11. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate, which rates are
subject to change without notice to the Borrower as specified in the
definition of Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Eurodollar Margin.
(c) The Loans comprising each Money Market Borrowing shall bear
interest at the Money Market Rate.
(d) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is
not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal
of any Loan, 2% plus the rate otherwise applicable to such Loan as provided
in the preceding paragraphs of this Section or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a)
of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for the immediately preceding calendar month and
upon termination of the Commitments; provided that (i) interest accrued
pursuant to paragraph (d) of this Section 2.11 shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the
date of such repayment or prepayment and (iii) in the event of any conversion
of any Eurodollar Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year),
and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable
Alternate Base Rate, Adjusted LIBO Rate and Money Market Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest Period;
or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Loan to, or
continuation of any Loan as, a Eurodollar Loan shall be ineffective and (ii)
if any Borrowing Request requests a Eurodollar Loan, such Borrowing shall be
made as a Money Market Loan with a Money Market Maturity Date of seven days
from the date of such Borrowing, provided that if the circumstances giving
rise to such notice affect only one Interest Period or one Type of
Borrowings, then the other Interest Periods and Type of Borrowings shall be
permitted.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this
Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
the Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such
Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or
on the capital of such Lender's or the Issuing Bank's holding company, if
any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender or
the Issuing Bank or such Lender's or the Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies and the policies of such Lender's or
the Issuing Bank's holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or the Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b)
of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing
Bank, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or
the Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies the Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
the Issuing Bank's intention to claim compensation therefor; provided,
further, that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.09(b) and is revoked in accordance therewith) or
(d) the assignment of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.17, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the
period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest which would accrue on such principal
amount for such period at the interest rate which such Lender would bid were
it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section shall be delivered to
the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within
10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder shall be made free and clear of
and without deduction for any Indemnified Taxes or Other Taxes; provided that
if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on
its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of
a receipt issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made directly to the
Issuing Bank as expressly provided herein and except that payments pursuant
to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments hereunder shall be made in
dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting
in such Lender receiving payment of a greater proportion of the aggregate
amount of its Loans and participations in LC Disbursements than the
proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in
the Loans and participations in LC Disbursements of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans and participations in LC
Disbursements; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans or participations in LC Disbursements
to any assignee or participant, other than to the Borrower or any Subsidiary
or Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(d) or (e), 2.05(b) or 2.16(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are
fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a)
If any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If any Lender requests compensation under Section 2.13, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.15, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Issuing Bank, which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.13 or payments required to be made pursuant to
Section 2.15, such assignment will result in a reduction in such compensation
or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower, the
Company and their Affiliates is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, is
qualified to do business in, and is in good standing in, every jurisdiction
where it owns property or where the conduct of its business or the ownership
of its property or assets (including, without limitation, the Projects)
requires such qualification. Neither the Borrower, the Company nor any of
their Affiliates are "foreign persons" within the meaning of Section 1445 of
the Code.
SECTION 3.02. Authorization; Enforceability. (a) The Transactions
have been duly authorized by all necessary partnership action of the Borrower
and the General Partner has the requisite power and authority to execute,
deliver and perform this Agreement and the other Loan Documents on behalf of
the Borrower. The Guaranty has been duly authorized by all necessary action
of the Company and the Company has the requisite power and authority to
execute, deliver and perform the Guaranty and the other Loan Documents to
which it is a party. This Agreement and each other Loan Document to which it
is a party has been duly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law. The Guaranty and
each other Loan Document to which it is a party has been duly executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights generally and subject to general principles
of equity, regardless of whether considered in a proceeding in equity or at
law.
(b) Schedule 3.02 contains a diagram indicating the ownership
structure of the Company, the Borrower and their respective Subsidiaries,
indicating the nature of such interest with respect to each Person included
in such diagram and accurately sets forth (1) the correct legal name of such
Person, the jurisdiction of its incorporation or organization and the
jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding
shares or interests of each class of securities of the Company. None of such
issued and outstanding securities is subject to any vesting, redemption, or
repurchase agreement, and there are no warrants or options outstanding with
respect to such securities, except as noted on such Schedule. The
outstanding capital stock of the Company is duly authorized, validly issued,
fully paid and nonassessable. The Company has no Subsidiaries other than as
set forth on such Schedule 3.02.
SECTION 3.03. Governmental Approvals; No Conflicts. Neither the
Transactions nor the execution, delivery and performance of the Loan
Documents by the Borrower or the Company, as the case may be, (a) requires
any consent or approval of, registration or filing with, or any other action
by, any Governmental Authority, except such as have been obtained or made and
are in full force and effect and except as may be required under applicable
federal securities laws, (b) violates any applicable law or regulation or the
charter, by-laws, partnership agreement or other organizational documents of
the Company, the Borrower or any of their Subsidiaries, or any order of any
Governmental Authority, (c) violates or results in a default under any
indenture, agreement or other instrument binding upon the Company, the
Borrower or any of their Subsidiaries or their assets, or give rise to a
right thereunder to require any payment to be made by the Borrower or any of
its Subsidiaries or (d) results in the creation or imposition of any Lien on
any asset of the Borrower or any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders (i) its annual
audited financial statements for the fiscal year ended December 31, 1996,
reported on by Coopers & Xxxxxxx LLP, independent public accountants, and
(ii) quarterly financial statements for the quarter ended June 30, 1997,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its Subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since June 30, 1997, there has been no change, event or
circumstance which has had or is reasonably likely to have a Material Adverse
Effect.
(c) Neither the Borrower nor any of its Subsidiaries has any
Contingent Obligation or liability for any taxes, long-term leases or commit-
ments, not reflected in its audited financial statements delivered to the
Administrative Agent on or prior to the Effective Date or otherwise disclosed
to the Administrative Agent and the Lenders in writing, which will have or is
reasonably likely to have a Material Adverse Effect.
(d) Schedule 3.04 sets forth, as of the date hereof, all
Indebtedness of the Borrower and its Subsidiaries and there are no defaults
in the payment of principal or interest on any such Indebtedness and no
payments thereunder have been deferred or extended beyond their stated
maturity.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Subsidiaries has good and marketable title to, or valid leasehold interests
in, all its Property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended
purposes. Ownership of all wholly owned Projects and other Property of the
Consolidated Businesses is held by the Borrower and its Subsidiaries and is
not held directly by the Company.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened proceedings or actions to revoke, attack, invalidate, rescind or
modify in any material respect (i) the zoning of any Projects, or any part
thereof, or (ii) any building or other permits issued heretofore issued with
respect to any Project, or asserting that any such zoning or permits do not
permit the operation of any such Project or any part thereof or that any
improvements located on such Project cannot be operated in accordance with
its intended use or is in violation of applicable law. There are no pending
or, to the best knowledge of the Borrower, threatened or contemplated
proceedings relating to any (A) taking by eminent domain or other
condemnation of any portion of any Project, (B) condemnation or relocation of
any roadways abutting any Project and (C) denial of access to any Project
from any point of access to such Project. Each Project has adequate and
permanent legal access to water, gas and electrical public utilities, storm,
and sanitary sewerage facilities, other required public utilities (with
respect to each of the aforementioned items by means of either a direct
connection to the source of such utilities or through connections available
on publicly dedicated roadways directly abutting such Project), parking and
means of access between such Project and public highways over recognized curb
cuts; and all of the foregoing comply with all applicable laws, rules and
regulations of Governmental Authorities.
(c) Neither the existence of any Improvements upon a Project or the
present use or condition of any Project violate in any material respect any
applicable laws, rules and regulations of Governmental Authorities. Each
Project may be operated in its current fashion and the Borrower has received
no notices from any Governmental Authority alleging any violation by any
Project of any applicable laws, rules or regulations. All of the
Improvements located on the Projects and the use of such Improvements are
covered by existing valid certificates of occupancy and all other
certificates and permits required by applicable laws, rules, regulations, and
ordinances or in connection with the use, occupancy, and operation thereof.
No material portion of any Projects, nor any Improvements located on such
Projects that are material to the operation, use, or value thereof, have been
damaged in any respect as a result of any fire, explosion, accident, flood,
or other casualty, except to the extent that the same have been restored to
their condition prior thereto. No written notices of violation of any
federal, state, or local law or ordinance or order or requirement have been
received with respect to any Projects.
(d) There are no pending or, to the best of Borrower's knowledge,
proposed special or other assessments for public improvements or otherwise
affecting any Project, nor, to the best of Borrower's knowledge, are there
any contemplated improvements to any Projects that may result in such special
or other assessments.
(e) Each Project is free of material structural defects and all
building systems contained therein are in good working order subject to
ordinary wear and tear.
(f) Each Project is being operated and maintained in accordance
with the Borrower's usual and customary business practices.
SECTION 3.06. Intellectual Property. The Company, the Borrower
and their Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to
its business, and the use thereof by the Company, the Borrower and their
Subsidiaries does not infringe upon the rights of any other Person, except
for any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.07. Litigation and Environmental Matters. (a) There are
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the best knowledge of the Borrower,
threatened against or affecting the Company, the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this Agreement
or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Company, the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis
for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material
Adverse Effect.
(d) Except as may be disclosed in detail by the Borrower to the
Lenders in writing from time to time, no Hazardous Materials are located on
or about any of the Properties, and the Properties do not contain any
underground tanks for the storage or disposal of Hazardous Materials;
provided that notwithstanding the delivery of any such notice, the Borrower
and each of its Subsidiaries shall at all times be in compliance with all
laws, rules, regulations and orders of any Governmental Authority applicable
to it or its Properties except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. Further, (i) the Borrower has not, and to the knowledge of
the Borrower no other Person has, (A) stored or treated Hazardous Materials,
(B) disposed of Hazardous Materials or incorporated Hazardous Materials into,
on or around any of the Properties, and (C) permitted any underground storage
tanks to exist on any of the Properties, (ii) no complaint, order, citation
or notice with regard to air emissions, water discharges, noise emissions, or
Hazardous Materials, if any, or any other environmental, health, or safety
matters affecting any of the Properties or any portion thereof, from any
person, government or entity, has been issued to the Borrower which has not
been remedied or cured, and (iii) the Borrower has complied with all
applicable laws, rules or regulations affecting the Properties.
SECTION 3.08. Compliance with Laws and Agreements. Each of the
Company, the Borrower and its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it
or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.09. Investment and Holding Company Status. Neither the
Company, the Borrower nor any of its Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.10. Taxes. Each of the Company, Borrower and its
Subsidiaries has timely filed or caused to be filed all Tax returns and
reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower
or such Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.11. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $250,000 the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by
more than $250,000 the fair market value of the assets of all such
underfunded Plans.
SECTION 3.12. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to
which the Company, the Borrower or any of its Subsidiaries is subject, and
all other matters known to the Borrower, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect. None of the reports, financial statements, certificates or other
information furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
SECTION 3.13. Insurance. Schedule 3.13 accurately sets forth as
of the Effective Date all insurance policies and programs currently in effect
with respect to the Properties, assets and business of the Company, the Bor-
rower and its Subsidiaries, specifying for each such policy and program, (i)
the amount thereof, (ii) the risks insured against thereby, (iii) the name of
the insurer and each insured party thereunder, (iv) the policy or other iden-
tification number thereof, and (v) the expiration date thereof. The Borrower
has delivered to the Administrative Agent copies of all insurance policies
set forth on Schedule 3.13. Such insurance policies and programs are
currently in full force and effect, and, together with payment by the insured
of scheduled deductible payments, are in amounts sufficient to cover the re-
placement value of the respective Properties and assets of the Borrower and
its Subsidiaries.
SECTION 3.14. REIT Status. The Company qualifies as a REIT under
the Code.
SECTION 3.15. Solvency. Within the meaning of Section 548 of Title
11 of the United States Code entitled "Bankruptcy" as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"), the Uniform
Fraudulent Transfer Act and the Uniform Fraudulent Conveyance Act as in
effect in any relevant jurisdiction, and any similar laws or statutes, and
after giving effect to the transactions contemplated hereby: the fair
saleable value of the Borrower's assets exceeds and will, immediately
following the making of the Loans, exceed the Borrower's total liabilities
including, without limitation, subordinated, unliquidated, disputed, and
contingent liabilities; the fair saleable value of the Borrower's assets is
and will, immediately following the making of each Loan, be greater than the
Borrower's probable liabilities, including the maximum amount of its
contingent liabilities on its debts as such debts become absolute and
matured; the Borrower's assets do not and, immediately following the making
of the Loans will not, constitute unreasonably small capital to carry out its
business as conducted or as proposed to be conducted; and the Borrower does
not intend to, and does not believe that it will, incur debts and liabilities
(including without limitation contingent liabilities and other commitments)
beyond its ability to pay such debts as they mature (taking into account the
timing and amounts of cash to be received by the Borrower and the amounts to
be payable on or in respect of obligations of the Borrower).
SECTION 3.16. Margin Regulations. The Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
any margin stock or margin securities (within the meaning of Regulations G,
T, U and X issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Loan will be used, directly or indirectly, to purchase
or carry any margin stock or margin securities or to extend credit to others
for the purpose of purchasing or carrying any margin stock or margin
securities. None of the transactions contemplated by this Agreement will
violate or result in a violation of Section 7 of the Securities Exchange Act
of 1934, as amended.
SECTION 3.17. Representations and Warranties in the Loan Documents.
The representations and warranties of the Borrower and the Company, as the
case may be, in each of the Loan Documents are true, complete and correct in
all material respects, and the Borrower hereby confirms each such
representation and warranty as being true, complete and correct in all
material respects as of the relevant dates with the same effect as if set
forth in its entirety herein.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to
make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall
not become effective until the date on which each of the following conditions
is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from the Company and each party hereto either (i) a counterpart of this
Agreement and all other Loan Documents to which it is a party, signed on
behalf of such party including, without limitation, the Guaranty, or
(ii) written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature page of each
such Loan Document) that such party has signed a counterpart of this
Agreement and all other Loan Documents required to be delivered by the
Administrative Agent.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Xxxxx Xxxxxxxx Xxxxxx & Xxxxx LLP,
counsel for the Borrower, substantially in the form of Exhibit E, and
covering such other matters relating to the Borrower, the Company, this
Agreement or the Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests such counsel to deliver such
opinion.
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good
standing of the Borrower, the Company and their Affiliates, the
authorization of the Transactions and any other legal matters relating
to the Borrower, the Company and their Affiliates, this Agreement or the
Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, an Executive Vice
President or a Financial Officer of the General Partner, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) No change in the business, assets, management, operations,
financial condition or prospects of the Borrower or any of its
Properties shall have occurred since June 30, 1997 which change, in the
judgment of the Administrative Agent, will have or is reasonably likely
to have a Material Adverse Effect.
(f) Except as disclosed to the Administrative Agent and the Lend-
ers, since June 30, 1997, neither the Borrower nor the Company shall
have (i) entered into any (as determined in good faith by the Admin-
istrative Agent) commitment or transaction, including, without limita-
tion, transactions for borrowings and capital expenditures, which are
not in the ordinary course of the Borrower's or the Company's business,
(ii) declared or paid any dividends or other distributions other than
dividends paid to the shareholders of the Company for the quarter ended
June 30, 1997, (iii) established compensation or employee benefit plans
or (iv) redeemed or issued any equity Securities other than shares of
common stock, par value $.01 per share, of the Company (1) issued from
time to time pursuant to the terms and conditions of the Company's
Dividend Reinvestment and Stock Purchase, Resident Stock Purchase and
Employee Stock Purchase Plan and (2) issued in exchange for limited
partnership interests in the Borrower.
(g) Since June 30, 1997, no agreement or license relating to the
business, operations or employee relations of the Borrower or any of its
Properties shall have been terminated, modified, revoked, breached or
declared to be in default, the termination, modification, revocation,
breach or default under which, in the reasonable judgment of the
Administrative Agent, would result in a Material Adverse Effect.
(h) Since June 30, 1997, no material adverse change shall have
occurred in the conditions in the capital markets or the market for loan
syndications generally.
(i) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set forth
in this Agreement shall be true and correct on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
(c) The Borrower has not received written notice from the Required
Lenders that an event has occurred since the date of this Agreement
which has had, and continues to have, or is reasonably likely to have,
a Material Adverse Effect.
(d) The Borrower shall have delivered a certificate in the form of
Exhibit D-1 or D-2, as applicable, attached hereto, signed by a
Financial Officer of the Borrower, (1) representing and certifying that
immediately prior to and immediately after the requested Borrowing or
the issuance, amendment or extension of a Letter of Credit, the Company,
the Borrower and their Subsidiaries are in compliance with the
representations, warranties and covenants set forth in this Agreement
and (2) including the calculations set forth therein.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a)
through (d) of this Section 4.02.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) Quarterly Reports.
(i) Borrower Quarterly Financial Reports. As soon as
practicable, and in any event within forty-five (45) days after the end
of each fiscal quarter in each fiscal year (other than the last fiscal
quarter in each fiscal year), a consolidated balance sheet and the
related consolidated statement of operations of the Borrower and its
Subsidiaries (to be prepared and delivered quarterly in conjunction with
the other reports delivered hereunder) for each such fiscal quarter, in
each case in form and substance used in the preparation of the
consolidating financial statements of the Company and, with respect to
the statement of operations, in comparative form, the corresponding
figures for the corresponding periods of the previous fiscal year,
certified by a Financial Officer of the Borrower as fairly presenting
the consolidated financial position of the Borrower as of the dates
indicated and the results of their operations for the months indicated
in accordance with GAAP, subject to normal quarterly adjustments but
without certain footnote disclosures required by GAAP.
(ii) Company Quarterly Financial Reports. As soon as practicable,
and in any event within forty-five (45) days after the end of each
fiscal quarter in each fiscal year (other than the last fiscal quarter
in each fiscal year), a consolidated balance sheet and the related
consolidated statements of operations and cash flow of the Company, the
Borrower and its Subsidiaries on Form 10-Q as at the end of such period
and, with respect to the statements of operations and cash flow, setting
forth in comparative form the corresponding figures for the correspond-
ing period of the previous fiscal year, certified by a Financial Officer
of the Company as fairly presenting the consolidated and consolidating
financial position of the Company, the Borrower and its Subsidiaries as
at the date indicated and the results of their operations and cash flow
for the period indicated in accordance with GAAP, subject to normal
adjustments but without certain footnote disclosures required by GAAP
(as permitted by the requirements for reporting on Form 10-Q).
(iii) Quarterly Compliance Certificates. Together with each
delivery of any quarterly report pursuant to clauses (i) and (ii) of
this Section 5.01(a), the Borrower shall deliver a certificate of the
Borrower and the Company in the form of Exhibit F attached hereto (the
"Quarterly Compliance Certificate"), signed by the Borrower's and the
Company's respective Financial Officers, representing and certifying (1)
that the Financial Officer signatory thereto has reviewed the terms of
the Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the transactions and
consolidated and consolidating financial condition of the Company, the
Borrower and its Subsidiaries, during the fiscal quarter covered by such
reports, that such review has not disclosed the existence during or at
the end of such fiscal quarter, and that such officer does not have
knowledge of the existence as at the date of such Quarterly Compliance
Certificate, of any condition or event which constitutes an Event of
Default or Default or mandatory prepayment event, or, if any such condi-
tion or event existed or exists, and specifying the nature and period
of existence thereof and what action the Company and/or the Borrower or
any of its Subsidiaries has taken, is taking and proposes to take with
respect thereto; and (2) the calculations evidencing compliance with
each of the financial covenants set forth in Article VI hereof.
(b) Annual Reports.
(i) Borrower Financial Statements. As soon as practicable, and
in any event within ninety (90) days after the end of each fiscal year,
a consolidated balance sheet and the related consolidated statement of
operations of the Borrower and its Subsidiaries as at the end of such
fiscal year, in each case in form and substance used in the preparation
of the consolidating financial statements of the Company and, with
respect to the statement of operations, in comparative form, the corre-
sponding figures for the corresponding periods of the previous fiscal
year, certified by a Financial Officer of the Borrower as fairly pre-
senting the consolidated financial position of the Borrower as of the
dates indicated and the results of their operations for the months
indicated in accordance with GAAP, subject to normal year-end
adjustments but without certain footnote disclosures required by GAAP.
(ii) Company Financial Statements. As soon as practicable, and
in any event within ninety (90) days after the end of each fiscal year,
(i) an audited consolidated balance sheet and the related consolidated
statements of operations and cash flow of the Company and its
Subsidiaries on Form 10-K as at the end of such fiscal year and a report
setting forth in comparative form the corresponding figures from the
consolidated financial statements of the Company and its Subsidiaries
for the prior fiscal year; (ii) a report with respect thereto of Coopers
& Xxxxxxx LLP or other nationally recognized independent certified
public accountants acceptable to the Administrative Agent, which report
shall be unqualified and shall state that such financial statements
fairly present the consolidated financial position of the Company and
its Subsidiaries as at the dates indicated and the consolidated results
of its operations and cash flow for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except for
changes with which Coopers & Xxxxxxx LLP or any such other independent
certified public accountants, if applicable, shall concur and which
shall have been disclosed in the notes to the financial statements)
(which report shall be subject to the confidentiality limitations set
forth herein); and (iii) in the event that the report referred to in
clause (ii) above is qualified, a copy of the management letter or any
similar report delivered to the Company or to any officer or employee
thereof by such independent certified public accountants in connection
with such financial statements. The Administrative Agent and each
Lender (through the Administrative Agent) may, with the consent of the
Company (which consent shall not be unreasonably withheld), communicate
directly with such accountants, with any such communication to occur
together with a representative of the Company, at the expense of the
Administrative Agent (or the Lender requesting such communication), upon
reasonable notice and at reasonable times during normal business hours.
(iii) Annual Compliance Certificates. Together with each delivery
of any annual report pursuant to clauses (i) and (ii) of this Section
5.01(b), the Borrower shall deliver a certificate of the Borrower and
the Company in the form of Exhibit F attached hereto (the "Annual Com-
pliance Certificate"), signed by the Borrower's and the Company's re-
spective Financial Officers, representing and certifying (1) that the
officer signatory thereto has reviewed the terms of the Loan Documents,
and has made, or caused to be made under his/her supervision, a review
in reasonable detail of the transactions and consolidated and
consolidating financial condition of the Company, the Borrower and its
Subsidiaries, during the accounting period covered by such reports, that
such review has not disclosed the existence during or at the end of such
accounting period, and that such officer does not have knowledge of the
existence as at the date of such Annual Compliance Certificate, of any
condition or event which constitutes an Event of Default or Default or
mandatory prepayment event, or, if any such condition or event existed
or exists, and specifying the nature and period of existence thereof and
what action the Company and/or the Borrower or any of its Subsidiaries
has taken, is taking and proposes to take with respect thereto; and (2)
the calculations evidencing compliance with each of the financial
covenants set forth in Article VI hereof.
(c) Accountant's Certificate. Concurrently with any delivery of
financial statements under clause (b) above, a certificate of the accounting
firm that reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial statements
of any Default (which certificate may be limited to the extent required by
accounting rules or guidelines).
(d) Property Reports. When requested by the Administrative Agent
or the Required Lenders, a rent roll and income statement with respect to any
Project.
(e) Community Reinvestment Act. Promptly following any request
therefor, such other information regarding the Loans and the use thereof,
Qualified Community Reinvestment Projects and the Company, the Borrower and
its Subsidiaries as any Lender may request to determine compliance by the
Projects with the Community Reinvestment Act or other applicable federal or
state law; provided that the Borrower shall have no obligation hereunder to
deliver any such information to any Lender more than one time in any calendar
quarter.
(f) Additional Information. Promptly following any request
therefor, such other information regarding the operations, business affairs
and financial condition of the Company, the Borrower or any Subsidiary of the
Borrower, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. (a) The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of
the following:
(i) the occurrence of any Default;
(ii) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(iii) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $250,000; and
(iv) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
certificate of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.
(b) The Borrower shall deliver to the Administrative Agent and the
Lenders written notice of each of the following not less than ten (10)
Business Days prior to the occurrence thereof: (i) a sale, transfer or other
disposition of assets, in a single transaction or series of related transac-
tions, for consideration in excess of an amount equal to 10% of the Total
Value, (ii) an acquisition of assets, in a single transaction or series of
related transactions, for consideration in excess of 10% of the Total Value,
and (iii) the grant of a Lien with respect to assets, in a single transaction
or series of related transactions, in connection with Indebtedness aggre-
gating an amount in excess of 10% of the Total Value. In addition, simulta-
neously with delivery of any such notice, the Borrower shall deliver to the
Administrative Agent a certificate of the Borrower and its financial Officer
certifying that Borrower is in compliance with this Agreement and the other
Loan Documents both on a historical basis and on a pro forma basis, exclusive
of the property sold, transferred and/or encumbered and inclusive of the
property to be acquired or the indebtedness to be incurred, together with
calculations, in the form of Schedule B to Exhibit F attached hereto,
evidencing compliance with each of the financial covenants set forth in
Article VI hereof.
To the extent such proposed transaction, after giving effect to the
prepayment required to be made pursuant to Section 2.09(c), would result in
a failure to comply with the financial covenants set forth herein, the
Borrower shall prepay outstanding Loans in such amount, as determined by the
Administrative Agent, as may be required to reduce the Obligations so that
the Borrower will be in compliance with the covenants set forth herein upon
the consummation of the contemplated transaction.
SECTION 5.03. Existence; Conduct of Business. The Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business.
SECTION 5.04. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance; Management.
(a) The Borrower will, and will cause each of its Subsidiaries to, (i) keep
and maintain all Property useful and necessary to the conduct of its business
in good working order and condition, ordinary wear and tear excepted, and
(ii) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are described in Section
3.13 or substantially similar policies and programs as are acceptable to the
Administrative Agent.
(b) The Borrower, its wholly-owned Subsidiaries and either
Management Company, individually or collectively, shall at all times manage
Projects constituting the greater of (i) 80% of Total Value or (ii) 80% of
the total number of apartment units comprising the Projects.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings
and transactions in relation to its business and activities. The Borrower
will, and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, T, U and X. The proceeds of the Loans will be used
only for the purposes of:
(a) acquisition of residential housing Projects similar to and
consistent with the types of Projects owned and/or operated by the
Borrower on the Effective Date (including Qualified Community
Reinvestment Projects), located in the Northeast, Mid-Atlantic and
Midwest regions of the United States;
(b) renovation of Projects owned and operated by the Borrower;
(c) redemptions by the Borrower of interests of limited
partnership units in the Borrower issued in connection with the
acquisition from time to time of Projects;
(d) financing expansions, renovations and new construction related
to Properties owned and operated by the Borrower or its Subsidiaries and
Affiliates; provided, however, that in no event, shall more than 50% of
aggregate amount of the Loans be used for the construction of any new
Projects;
(e) repayment in full, on or before the Effective Date, of the
Borrower's $35,000,000 unsecured revolving credit facility with
Manufacturers and Traders Trust Company;
(f) refinancing of existing Indebtedness for borrowed money
secured by Projects;
(g) payment by the Borrower of distributions to its partners
(including the Company); and
(h) working capital needs of the Borrower, provided, however, in
no event shall the LC Exposure and the amount of the Loans used by the
Borrower for working capital purposes exceed 10% of the Maximum
Availability in the aggregate.
Promptly upon the utilization of any proceeds of the Loans in
connection with the acquisition, expansion, renovation or construction of a
Qualified Community Reinvestment Project, the Borrower shall deliver to the
Administrative Agent a certificate of a Financial Officer or other executive
officer of the Borrower setting for the details of each such utilization.
SECTION 5.09. Company Status. The Company shall at all times (a)
remain a publicly traded company listed on the New York Stock Exchange, (b)
maintain its status as a REIT under Sections 856-860 of the Code and (c)
retain direct or indirect management and control of the Borrower.
SECTION 5.10. Ownership of Projects and Property; Unencumbered
Assets. The ownership of substantially all wholly owned Projects and other
Property of the Consolidated Businesses shall be held by the Borrower and its
Subsidiaries and shall not be held directly by the Company.
SECTION 5.11. Shareholder Communication, Filings, etc. Promptly
upon the mailing or filing thereof, the Borrower shall deliver to the
Administrative Agent copies of all financial statements, reports and proxy
statements mailed to the Company's shareholders, and copies of all of the
Company's final registration statements and other final documents filed with
the Securities and Exchange Commission (or any successor thereto) or any
national securities exchange.
SECTION 5.12. Further Assurances. The Borrower agrees upon demand
of the Administrative Agent to do any act or execute any additional documents
as may be reasonably required by the Administrative Agent to exercise or
enforce its rights under this Agreement, the Notes or the other Loan
Documents and to realize thereon. This covenant shall survive the
termination of this Agreement until payment in full of all amounts due
hereunder or under the Notes and the other Loan Documents, provided that the
covenant shall be reinstated if any payment of all amounts due hereunder or
under the Notes and the other Loan Documents is required to be returned to
the payor or any other party under any applicable bankruptcy law.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees
with the Lenders that:
SECTION 6.01. (a) Indebtedness and Other Financial Covenants.
Neither the Borrower nor any of its Subsidiaries shall directly or indirectly
create, incur, assume or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except that the Borrower and/or its
Subsidiaries may create, incur, assume or otherwise become or remain directly
or indirectly liable with respect to any Indebtedness to the extent that
Total Outstanding Indebtedness, would not exceed (i) 55% of Total Value, or
(ii) in the case of Secured Indebtedness of the Consolidated Businesses, 50%
of Total Value, or (iii) in the case of Recourse Secured Indebtedness of the
Consolidated Businesses, 35% of Total Value, or (iv) in the case of Adjusted
Recourse Secured Indebtedness, 12.5% of Total Value. Notwithstanding
anything to the contrary herein contained, in no event shall (x) the
aggregate amount of completion guarantees with respect to Projects at any
time exceed 15% of Total Value and (y) the aggregate amount of Low Income
Housing Credit Program Guarantees at any time exceed 15% of Total Value.
(b) Minimum Equity Value. The Equity Value shall at no time be
less than $135,400,000, plus an amount equal to 85% of all Net Offering Pro-
ceeds received by the Company after the date hereof.
(c) Minimum Consolidated Interest Coverage Ratio. As of the first
day of each calendar quarter for the immediately preceding four consecutive
calendar quarters, the ratio of Adjusted EBITDA to Total Interest Expense for
such period shall not be less than 2.15 to 1.0.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first day
of each calendar quarter for the immediately preceding four consecutive
calendar quarters, the ratio of Adjusted Unencumbered NOI to Unsecured Inter-
est Expense shall not be less than 1.65 to 1.0.
(e) Minimum Unencumbered Total Property Value. The Total Property
Value of Unencumbered Eligible Projects shall at no time be less than the
greater of (a) 120% of the Revolving Credit Exposure at such time and (b)
$50,000,000. Unencumbered Eligible Projects shall consist at all times of
not less than seven Eligible Projects.
(f) Minimum Fixed Charge Coverage Ratio. As of the first day of
each calendar quarter for the immediately preceding four consecutive calendar
quarters, the ratio of Adjusted NOI to Fixed Charges shall not be less than
1.8 to 1.0.
(g) Maximum Dividend Payout Ratio. The Company shall not make any
Restricted Payment during any of its fiscal quarters, which, when added to
all Restricted Payments made during the three immediately preceding fiscal
quarters, exceeds the greater of (i) 90% of FFO, and 110% of CAD, and (ii)
the amounts required to maintain its status as a REIT under the Code. For
purposes of this provision, "Restricted Payment" means (i) any dividend or
other distribution on any shares of the Company's capital stock (except
dividends payable solely in shares of its capital stock or in rights to
subscribe for or purchase shares of its capital stock), or (ii) any payment
on account of the purchase, redemption, retirement or acquisition of (a) any
shares of the Company's capital stock or (b) any option, warrant or other
right to acquire shares of the Company's capital stock.
(h) Maximum Availability. The Revolving Credit Exposure shall not
at any time exceed the Maximum Availability. If at any time the Revolving
Credit Exposure exceeds the Maximum Availability, the Borrower shall
immediately prepay a portion of the Loan in an amount equal to such excess as
provided for in Section 2.09(d).
SECTION 6.02. Liens. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any Lien
on any Property now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Permitted Encumbrances; and
(b) Liens securing permitted Secured Indebtedness, provided that
a maximum Secured Indebtedness in an amount equal to not more than 15%
of Total Value may be secured by any one Project or several cross-
collateralized Projects.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and
will not permit any of its Subsidiaries to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate
with it, or sell, transfer, lease or otherwise dispose of (in one transaction
or in a series of transactions) all or substantially all of its assets, or
all or substantially all of the stock of any of its Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve,
except (i) in connection with the issuance transfer, conversion or repurchase
of limited partnership interests in Borrower, and (ii) if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing any Person may merge into the Borrower in a
transaction in which the Borrower is the surviving entity and any Subsidiary
of the Borrower may merge into the Borrower in a transaction in which the
Borrower is the surviving entity.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and its Subsidiaries on the
date of execution of this Agreement and businesses reasonably related
thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary of the Borrower prior
to such merger) any capital stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise acquire (in
one transaction or a series of transactions) any assets of any other Person
constituting a business unit, except:
(a) Permitted Investments;
(b) investments in Real Property;
(c) investments (including loans) in the Borrower's Subsidiaries,
the Borrower's Affiliates and the Management Company;
(d) loans to directors, officers and employees of the Company, the
Borrower, the Borrower's Subsidiaries, the Borrower's Affiliates and
either Management Company;
(e) investments in notes secured by mortgages on any Real Property
of any Person;
(f) investments in Real Property under development or
construction; and
(g) investments in equity securities issued by a REIT that
primarily owns multi-family properties.
Notwithstanding the foregoing, the investments set forth above shall
be limited in the following manner: (i) the aggregate amount of investments
in land and/or Real Property under development or construction shall not
exceed 10% of Total Value; (ii) the aggregate amount of investments in
partnerships, joint ventures, corporations, limited liability companies or
other entities which are not wholly-owned by the Borrower or its Subsidiaries
shall not exceed 10% of Total Value; (iii) the aggregate amount of invest-
ments by the Borrower and its Subsidiaries in Properties which are not
residential in nature shall not exceed 5% of Total Value; (iv) the aggregate
outstanding principal amount of such loans to directors, officers and
employees shall not exceed $10,000,000; and (v) the aggregate amount of
investments in equity securities issued by REITs that primarily own multi-
family properties shall not exceed 10% of Total Value.
SECTION 6.05. Hedging Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business
to hedge or mitigate risks to which the Borrower or any Subsidiary of the
Borrower is exposed in the conduct of its business or the management of its
liabilities.
SECTION 6.06. Transactions with Affiliates. Neither the Borrower
nor any of its Subsidiaries shall directly or indirectly enter into or permit
to exist any transaction (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder or holders of more than 5% of any class of equity securities of the
Borrower, or with any Affiliate of the Borrower which is not its Subsidiary,
on terms that determined by the respective Boards of Directors of the Company
to be less favorable to the Borrower or any of its Subsidiaries, as applica-
ble, than those that might be obtained in an arm's length transaction at the
time from Persons who are not such a holder or Affiliate. Nothing contained
in this Section 6.06 shall prohibit (a) increases in compensation and
benefits for officers and employees of the Borrower or any of its
Subsidiaries which are customary in the industry or consistent with the past
business practice of the Borrower or such Subsidiary, provided that no Event
of Default or Default has occurred and is continuing; (b) payment of
customary partners' indemnities; or (c) performance of any obligations
arising under the Loan Documents.
SECTION 6.07. Restriction on Fundamental Changes. Neither the
Borrower nor any of its Subsidiaries shall enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation
or dissolution), or convey, lease, sell, transfer or otherwise dispose of, in
one transaction or series of transactions, all or substantially all of the
Borrower's or any such Subsidiary's business or Property, whether now or
hereafter acquired, except in connection with issuance, transfer, conversion
or repurchase of limited partnership interests in Borrower. Notwithstanding
the foregoing, the Borrower shall be permitted to merge with another Person
so long as the Borrower is the surviving Person following such merger.
SECTION 6.08. Margin Regulations; Securities Laws. Neither the
Borrower nor any of its Subsidiaries, shall use all or any portion of the
proceeds of any credit extended under this Agreement to purchase or carry
Margin Stock.
SECTION 6.09. Negative Covenants of the Company and the QRS
Subsidiary. (a) The Company will not acquire any assets of any nature
whatsoever, other than (i) additional partnership units in the Borrower and
(ii) its interest in the QRS Subsidiary and other Subsidiaries of the
Company. The QRS Subsidiary will not acquire any assets of any nature
whatsoever, other than its limited partnership interests in the Borrower.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities or any Liens on its
assets or any part thereof except (i) as the general partner of the Borrower
in connection with trade payable incurred in the ordinary course of business,
(ii) Indebtedness, the net proceeds of which are contributed to the QRS
Subsidiary or the Borrower, as the case may be, simultaneously with the
incurrence thereof by the Company, (iii) Guaranties of Indebtedness of any
Affiliate of the Company incurred in the ordinary course of such Affiliate's
business and (iv) the obligation to pay dividends when and if declared by the
Company. From and after the date hereof, the QRS Subsidiary will not incur
any Indebtedness or any other obligations or liabilities or any Liens on its
assets or any part thereof.
(c) From and after the date hereof, (i) the Company will not retain
any Net Offering Proceeds, and the same will be contributed by the Company to
the Borrower, or if the QRS Subsidiary is a limited partner in the Borrower,
to the QRS Subsidiary simultaneously with receipt thereof by the Company and
(ii) the QRS Subsidiary will not retain any Net Offering Proceeds so
contributed to it by the Company, and the same will be contributed by the QRS
Subsidiary to the Borrower simultaneously with receipt thereof by the QRS
Subsidiary.
(d) The Company shall not enter into any merger or consolidation,
or liquidate, wind-up or dissolve (or suffer any liquidation or dissolution),
or convey, lease, sell, transfer or otherwise dispose of, in one transaction
or series of transactions, any of its business or assets, including its
interests in the Borrower or in the QRS Subsidiary. Notwithstanding the
foregoing, the Company shall be permitted to merge with another Person so
long as the Company is the surviving Person following such merger. The QRS
Subsidiary shall not enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series
of transactions, any of its business or assets, including its interests in
the Borrower.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay (i) any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise or
(ii) any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise, and such
failure shall continue unremedied for a period of three days after
notice;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue unremedied
for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries in or in connection
with this Agreement or any amendment or modification hereof or waiver
hereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or
any amendment or modification hereof or waiver hereunder, shall prove to
have been incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Article V or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 15 days after notice thereof
from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);
(f) the Company, the Borrower or any Subsidiary of the Borrower
shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Material Indebtedness, when and
as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness unless prohibited by this
Agreement;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company, the Borrower or any Subsidiary of the
Borrower or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company, the Borrower or any Subsidiary of the Borrower
or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Company, the Borrower or any Subsidiary of the Borrower
shall (i) voluntarily commence any proceeding or file any petition
seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company, the Borrower or any
Subsidiary of the Borrower or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Company, the Borrower or any Subsidiary of the Borrower
shall become unable, admit in writing or fail generally to pay its debts
as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against the Company,
the Borrower, any Subsidiary of the Borrower or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Company, the Borrower or any Subsidiary of the
Borrower to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of
the Borrower and its Subsidiaries in an aggregate amount exceeding
$250,000;
(m) a Change in Control shall occur;
(n) an event shall occur which has a Material Adverse Effect;
(o) the Company shall fail to (i) maintain its status as a REIT
for federal income tax purposes, or (ii) continue as a general partner
of the Borrower, or (iii) comply with all Requirements of Law applicable
to it and its businesses and Properties, in each case where the failure
to so comply individually or in the aggregate will have or is reasonably
likely to have a Material Adverse Effect, or (iv) remain listed on the
New York Stock Exchange, or (v) file all tax returns and reports re-
quired to be filed by it with any Governmental Authority as and when re-
quired to be filed or to pay any taxes, assessments, fees or other gov-
ernmental charges upon it or its Property, assets, receipts, sales, use,
payroll, employment, licenses, income, or franchises which are shown in
such returns, reports or similar statements to be due and payable as and
when due and payable, except for taxes, assessments, fees and other
governmental charges (A) that are being contested by the Company in good
faith by an appropriate proceeding diligently pursued, (B) for which
adequate reserves have been made on its books and records, and (C) the
amounts the non-payment of which would not, individually or in the
aggregate, result in a Material Adverse Effect;
(p) the Company shall merge or liquidate with or into any other
Person and, as a result thereof and after giving effect thereto, (i) the
Company is not the surviving Person or (ii) such merger or liquidation
would effect an acquisition of or investment in any Person not otherwise
permitted under the terms of this Agreement. The Borrower shall merge
or liquidate with or into any other Person and, as a result thereof and
after giving effect thereto, (i) the Borrower is not the surviving
Person or (ii) such merger or liquidation would effect an acquisition of
or Investment in any Person not otherwise permitted under the terms of
this Agreement; or
(q) the Guaranty shall at any time and for any reason other than
pursuant to the terms thereof, cease to be in full force and effect or
shall be declared null and void, or the validity or enforceability
thereof shall be contested by the Company or the Company shall deny it
has any further liability or obligation thereunder;
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent
shall, at the request of the Required Lenders, by notice to the Borrower,
take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due
and payable in whole (or in part, in which case any principal not so declared
to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent
to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of
the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth herein, the Administrative Agent shall not have
any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in
Section 9.02) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge
of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection
with this Agreement by a person other than the Administrative Agent, (ii) the
contents of any certificate, report or other document delivered hereunder or
in connection herewith by a person other than the Administrative Agent,
(iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein by a person other than the
Administrative Agent, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to
be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel, independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by
it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the Administrative
Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
Notwithstanding anything to the contrary herein contained, the Co-
Agent, the Administrative Agent, each Lender and the Issuing Bank hereby
agree that the Co-Agent assumes no obligations, duties or rights of the
Administrative Agent under this Agreement, all of which obligations, duties
and rights shall be and remain solely vested in the Administrative Agent.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail, return receipt requested, or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx (Telecopy No. 716-546-5433),
with a copy to the Borrower at the same address, Attention: Xxx X. Xxxx
(Telecopy No. 716-546-5433);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxxx (Telecopy No. 212-622-3395), with a copy to The Chase Manhattan
Bank, 000 Xxxx Xxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxxx X. Xxxxx,
Esq., Chase Legal Department (Telecopy No. 212-270-2934);
(c) if to the Issuing Bank, to The Chase Manhattan Bank, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx
(Telecopy No. 212-622-3395); and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the
date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of
whether the Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and
the Administrative Agent with the prior written consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment
of any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan or LC Disbursement, or any
interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.16(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, or (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided further that
no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Issuing Bank hereunder without the
prior written consent of the Administrative Agent or the Issuing Bank, as the
case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of outside and in-house counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Co-Agent, including the reasonable
fees, charges and disbursements of counsel for the Co-Agent, in connection
with the review, negotiation and execution of this Agreement, (iii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iv) all out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, and the other Loan Documents
including, without limitation, the Note, or in connection with the Loans made
or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.
(b) The Borrower hereby indemnifies the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and holds
each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any
other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the negligence of such Indemnitee proven by clear and
convincing evidence (and not merely a preponderance of the evidence) or
willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Issuing Bank
under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent or the Issuing Bank, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with,
or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than ten Business Days after written demand therefor.
SECTION 9.04. 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 assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of
Credit), except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues any Letter of Credit) and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided
that (i) except in the case of an assignment to a Lender or an Affiliate of
a Lender, each of the Borrower and the Administrative Agent (and, in the case
of an assignment of all or a portion of a Commitment or any Lender's
obligations in respect of its LC Exposure, the Issuing Bank must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender
or an Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000 unless each of
the Borrower and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Agreement, (iv)
the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h) or (i) of Article VII has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York
a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrower, the Issuing Bank and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b)
of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.16(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 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 Borrower's 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 2.17 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and 9.03
and Article VIII shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Agreement and any separate letter agreements with respect to fees payable to
the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject
matter hereof. This Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the
account of the Borrower against any of and all the obligations of the
Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement and all the other Loan Documents shall be
construed in accordance with and governed by the law of the State of New
York.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, or such other jurisdiction or venue as the Required
Lenders may determine, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court, or in such other jurisdiction or venue as the Required Lenders
may so determine. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred
to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part
of this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent,
the Issuing Bank and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available
to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, "Information" means all information received from
the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank
or any Lender on a nonconfidential basis prior to disclosure by the Borrower;
provided that, in the case of information received from the Borrower after
the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"),
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by the Lender holding
such Loan in accordance with applicable law, the rate of interest payable in
respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but
were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
By:_____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
By:________________________________________
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY,
individually and as Co-Agent
By:________________________________________
Name:
Title:
Schedule 2.01
Commitments
The Chase Manhattan Bank $15,000,000
Manufacturers and Traders Trust Company $35,000,000
Schedule 3.02
Ownership Structure
See attached
Schedule 3.04
Existing Indebtedness
See attached
Schedule 3.07
Disclosed Matters
None
Schedule 3.13
Insurance
See attached
Exhibit A
Form of Assignment and Acceptance
See attached
Exhibit B
Form of Guaranty
See attached
Exhibit C
Form of Note
See attached
Exhibit D-1
Form of Borrowing Request and Compliance Certificate
See attached
Exhibit D-2
Form of Notice of Issuance and Compliance Certificate
See attached
Exhibit E
Form of Opinion of Borrower's Counsel
See attached
Exhibit F
Form of Quarterly/Annual Compliance Certificate