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SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
dated as of April 22, 1997
among
TriNet Corporate Realty Trust, Inc.,
The Banks Listed Herein
and
Xxxxxx Guaranty Trust Company of New York,
as Lead Agent
and
The First National Bank of Boston,
as Managing Co-Agent
and
Dresdner Bank AG, Los Angeles Agency
and Grand Cayman Branch,
as Co-Agent
and
Bank of Montreal, Chicago Branch
as Co-Agent
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SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement") is dated as of April 22, 1997 among TRINET CORPORATE REALTY TRUST,
INC. (the "Borrower"), the BANKS listed on the signature pages hereof, XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Lead Agent, THE FIRST NATIONAL BANK OF
BOSTON, as Managing Co-Agent, DRESDNER BANK AG, LOS ANGELES AGENCY AND GRAND
CAYMAN BRANCH, as Co-Agent, and BANK OF MONTREAL, CHICAGO BRANCH, as Co-Agent.
W I T N E S S E T H
WHEREAS, the Borrower, the Lead Agent, the Managing Co-Agent, the
Co-Agents and the Banks that were parties thereto entered into the Revolving
Credit Agreement, dated as of October 3, 1995, (the "Original Credit
Agreement");
WHEREAS, the Borrower, the Lead Agent, the Managing Co-Agent, the
Co-Agents and the Banks that were parties thereto entered into the Amended and
Restated Revolving Credit Agreement, dated as of October 9, 1996, (the "First
Amended Credit Agreement"); and
WHEREAS, the parties hereto desire to amend and restate the First
Amended Credit Agreement in its entirety as set forth in this Agreement.
NOW, THEREFORE, with reference to the foregoing recitals, in reliance
thereon and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that, effective as of
the Effective Date, the First Amended Credit Agreement is hereby amended and
restated in its entirety to read as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Adjusted CD Rate" has the meaning set forth in Section 2.7(b).
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.7(c).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Lead Agent and
submitted to the Lead Agent (with a copy to the Borrower and the Managing
Co-Agent) duly completed by such Bank.
"Agreement" shall mean this Second Amended and Restated Revolving
Credit Agreement as the same may from time to time hereafter be modified,
supplemented or amended.
"Annual EBITDA" means, with respect to all Real Property Assets and
Minority Holdings of the Borrower and its Consolidated Subsidiaries, measured as
of the last day of each calendar quarter, an amount derived from (i) for the
previous four consecutive quarters including the quarter then ended, total
revenues relating to such Real Property Assets or to the Borrower's interest in
Minority Holdings for such period, on a cash basis, plus (ii) interest and other
income of the Borrower and its Consolidated Subsidiaries for such period, less
(iii) total operating expenses and other expenses relating to such Real Property
Assets and to the Borrower's interest in Minority Holdings for such period
(other than interest, taxes, depreciation, amortization, and other non-cash
items), less (iv) total corporate operating expenses (including general overhead
expenses) and other
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expenses of the Borrower, the Consolidated Subsidiaries and the Borrower's
interest in Minority Holdings (other than interest, taxes, depreciation,
amortization and other non-cash items), for such period. In the case of any Real
Property Assets or Minority Holdings which the Borrower or the applicable
Consolidated Subsidiary shall have owned for less than four consecutive
quarters, the same shall be included in the calculation of Annual EBITDA on a
pro forma basis (i.e., the results for the period during which the Borrower or
the Consolidated Subsidiary has owned the applicable Real Property Asset or
Minority Holding shall be annualized, with appropriate adjustments for items of
income and expense which are not earned or incurred in equal monthly amounts).
"Applicable Interest Rate" means (i) with respect to any Fixed Rate
Indebtedness, the fixed interest rate applicable to such Fixed Rate Indebtedness
at the time in question, and (ii) with respect to any Floating Rate
Indebtedness, the lesser of (x) the rate at which the interest rate applicable
to such Floating Rate Indebtedness could be fixed for the remaining term of such
Floating Rate Indebtedness, at the time of calculation, by Borrower's entering
into any unsecured interest rate hedging device either not requiring an upfront
payment or if requiring an upfront payment, such upfront payment shall be
amortized over the term of such device and included in the calculation of the
interest rate (or, if such rate is incapable of being fixed by entering into an
unsecured interest rate hedging device at the time of calculation, a fixed rate
equivalent reasonably determined by Lead Agent), and (y) the rate at which the
interest rate applicable to such Floating Rate Indebtedness is actually capped
(or fixed pursuant to an interest rate hedging device), at the time of
calculation, if Borrower has entered into an interest rate cap agreement or
other interest rate hedging device with respect thereto.
"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office, and (iii) in the case of its
Money Market Loans, its Money Market Lending Office.
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"Applicable Margin" means, with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which
Borrower's Credit Rating then falls, in accordance with the table set forth
below. Any change in Borrower's Credit Rating causing it to move to a different
range on the table shall effect an immediate change in the Applicable Margin. In
the event that Borrower receives two (2) Credit Ratings that are not equivalent,
the Applicable Margin shall be determined by the lower of such two (2) Credit
Ratings. In the event that Borrower receives more than two (2) Credit Ratings,
and such ratings are not equivalent, the Applicable Margin shall be determined
by the lower of the two (2) highest ratings, provided that each of said two (2)
highest ratings shall be Investment Grade Ratings and at least one of which
shall be an Investment Grade Rating from S&P or Xxxxx'x. In the event that only
one of the Rating Agencies shall have set Borrower's Credit Rating, then the
Applicable Margin shall be based on such rating only.
Range of Applicable
Borrower's Margin for Applicable Applicable
Credit Rating Base Rate Margin for Margin for Euro
(S&P/Xxxxx'x Loans CD Loans Dollar Loans
Ratings) (% per annum) (% per annum) (% per annum)
------------ ------------- ------------- -------------
BBB+/Baa1 0.00 0.975 0.850
BBB/Baa2 0.00 1.050 0.925
BBB-/Baa3 0.15 1.175 1.050
Non-Invest-
ment Grade 0.50 1.375 1.250
"Approved Bank" shall mean banks which have (i)(a) a minimum net worth
of $500,000,000 and/or (b) total assets of $10,000,000,000, and (ii) a minimum
long term debt rating of (a) BBB+ or higher by S&P, and (b) Baa1 or higher by
Xxxxx'x.
"Assessment Rate" has the meaning set forth in Section 2.7(b).
"Assignee" has the meaning set forth in Section 9.6(c).
"Available Commitment" means, with respect to each Bank, at any time,
the amount obtained by multiplying such Bank's Commitment at such time by a
fraction, the numerator
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of which is the Total Available Commitments at such time and the denominator of
which is $200,000,000.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.6(c), and their respective
successors and each Designated Lender; provided, however, that the term "Bank"
shall exclude each Designated Lender when used in reference to a Committed Loan,
the Commitments or terms relating to the Committed Loans and the Commitments and
shall further exclude each Designated Lender for all other purposes hereunder
except that any Designated Lender which funds a Money Market Loan shall, subject
to Section 9.6(d), have the rights (including the rights given to a Bank
contained in Section 9.3 and otherwise in Article 9) and obligations of a Bank
associated with holding such Money Market Loan.
"Bank of Boston" means The First National Bank of Boston.
"Bankruptcy Code" shall mean Title 11 of the United States Code,
entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 0.5% plus the Federal Funds
Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a Base
Rate Loan in accordance with the applicable Notice of Committed Borrowing or
pursuant to Article VIII.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Borrower" means TriNet Corporate Realty Trust, Inc., a Maryland
corporation.
"Borrower's 1996 Form 10-K" means the Borrower's annual report on Form
10-K for 1996, as filed with the Securities and Exchange Commission pursuant to
the Secu-
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rities Exchange Act of 1934.
"Borrower Net Operating Cash Flow" means, as of any date of
determination, with respect to all Real Property Assets and Minority Holdings of
the Borrower and its Consolidated Subsidiaries, Property Income as of such date,
but less (x) Property Expenses with respect to all such Real Property Assets and
Minority Holdings for the preceding four quarters (which, with respect to Real
Property Assets or the Borrower's interest in Minority Holdings owned for less
than such four quarter period, shall be calculated on an estimated, pro forma
(i.e., the results for the period during which such Real Property Assets or the
Borrower's interest in such Minority Holdings have been owned shall be
annualized, with appropriate adjustments for items of income and expense which
are not earned or incurred in equal monthly amounts) basis), and (y) the greater
of an amount equal to the straight-line depreciation taken or to be taken by the
Borrower and its Consolidated Subsidiaries based on applicable useful lives
determined in accordance with federal income tax laws and regulations with
respect to Capital Expenditures incurred from and after the date hereof which
are not related to new construction with respect to the preceding four quarters,
and appropriate reserves for replacements of not less than 10 cents per square
foot per annum for each Real Property Asset which is subject to a Non-Triple Net
Lease.
"Borrowing" has the meaning set forth in Section 1.3.
"Capital Expenditures" shall mean, for any period, the sum of all
expenditures (whether paid in cash or accrued as a liability) by the Borrower
which are capitalized on the balance sheet of the Borrower in conformity with
GAAP.
"Capitalized Interest" shall mean interest which is not expensed under
GAAP.
"Cap Rate" means the Treasury Rate plus 2.8%.
"Cash and Cash Equivalents" shall mean (i) cash, (ii) direct
obligations of the United States Government, including without limitation,
treasury bills, notes and bonds, (iii) interest bearing or discounted
obligations of Federal agencies and Government sponsored entities or pools
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of such instruments offered by Approved Banks and dealers, including without
limitation, Federal Home Loan Mortgage Corporation participation sale
certificates, Government National Mortgage Association modified pass through
certificates, Federal National Mortgage Association bonds and notes, and Federal
Farm Credit System securities, (iv) time deposits, Domestic and Eurodollar
certificates of deposit, bankers' acceptances, commercial paper rated at least
A-1 by S&P and P-1 by Xxxxx'x and/or guaranteed by an Aa rating by Xxxxx'x, a AA
rating by S&P or better rated credit, floating rate notes, other money market
instruments and letters of credit each issued by Approved Banks (provided that
the same shall cease to be a "Cash or Cash Equivalent" if at any time any such
bank shall cease to be an Approved Bank), (v) obligations of domestic
corporations, including, without limitation, commercial paper, bonds, debentures
and loan participations, each of which is rated at least AA by S&P and/or Aa2 by
Xxxxx'x and/or guaranteed by an Aa rating by Xxxxx'x, a AA rating by S&P or
better rated credit, (vi) obligations issued by states and local governments or
their agencies, rated at least MIG-1 by Xxxxx'x and/or SP-1 by S&P and/or
guaranteed by an irrevocable letter of credit of an Approved Bank (provided that
the same shall cease to be a "Cash or Cash Equivalent" if at any time any such
bank shall cease to be an Approved Bank), (vii) repurchase agreements with major
banks and primary government security dealers fully secured by the U.S.
Government or agency collateral equal to or exceeding the principal amount on a
daily basis and held in safekeeping, and (viii) real estate loan pool
participations, guaranteed by an AA rating given by S&P or Aa2 rating given by
Xxxxx'x or better rated credit. Cash and Cash Equivalents shall exclude items
otherwise includable in the definition and delivered to the Existing Facility
Bank in connection with the defeasance of the Existing Facility or otherwise as
security for any thereof other than the "Reserve Account" as defined in the Loan
Agreement, dated as of December 6, 1994, between Nomura Asset Capital
Corporation and TriNet Essential Facilities XII.
"CD Base Rate" has the meaning set forth in Section 2.6(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD
Loan pursuant to the applicable Notice of Committed Borrowing.
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"CD Reference Bank" means Xxxxxx Guaranty Trust Company of New York.
"Charges" has the meaning set forth in Section 9.17.
"Co-Agents" shall mean the Lead Agent, the Managing Co-Agent, Dresdner
Bank AG, Los Angeles Agency and Grand Cayman Branch, and Bank of Montreal,
Chicago Branch.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and as
it may be further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
"Combined Asset Value" shall mean the book value of the assets of the
Borrower (including Minority Holdings) and its Consolidated Subsidiaries,
calculated on a consolidated basis, in accordance with GAAP, but without
deduction for depreciation and net of monetary obligations which are not for
borrowed money (such as accounts payable and working capital liabilities).
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof (and, for each Bank
which is an Assignee, the amount set forth in the Assignment and Assumption
Agreement entered into pursuant to Section 9.6(c) as the Assignee's Commitment),
as such amount may be reduced from time to time pursuant to Section 2.12(d) or
in connection with an assignment to an Assignee.
"Committed Loan" means a loan made by a Bank pursuant to Section 2.1;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity which is consolidated with
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Borrower in accordance with GAAP.
"Consolidated Tangible Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries
(determined on a book basis), less their consolidated Intangible Assets, all
determined as of such date. For purposes of this definition "Intangible Assets"
means with respect to any such intangible assets, the amount (to the extent
reflected in determining such consolidated stockholders' equity) of all
write-ups (other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within twelve months after
the acquisition of such business) subsequent to June 30, 1996 in the book value
of any asset (other than Real Property Assets) owned by the Borrower or a
Consolidated Subsidiary and (ii) goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit of tax loss carry forwards, copyrights,
organization or developmental expenses and other intangible assets.
"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,
guaranteeing partially or in whole any Non-Recourse Debt, 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
Contingent 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 Net Present Value of 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
Applicable Interest Rate, 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
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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 Borrower required to be delivered pursuant
to Section 4.4 hereof. Notwithstanding the foregoing, Contingent Obligations
described in clause (ii) shall be included only to the extent that any thereof
exceed the amount (as calculated above) of $1,000,000 individually, or
$5,000,000 in the aggregate. Notwithstanding anything contained herein to the
contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment or performance 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. 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 Borrower), the amount of the guaranty shall
be deemed to be 100% thereof unless and only to the extent that such other
Person has delivered Cash or Cash Equivalents to secure all or any part of such
Person's guaranteed obligations, (ii) in the case of joint and several
guarantees given by a Person in whom Borrower owns an interest (which guarantees
are non-recourse to Borrower), to the extent the guarantees, in the aggregate,
exceed 15% of Combined Asset Value, the amount in excess of 15% shall be deemed
to be a Contingent Obligation of Borrower, and (iii) 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 Debt of such
Person. Notwithstanding anything contained herein to the contrary, "Contingent
Obligations" shall be deemed not to include guarantees of Unused Commitments or
of construction loans to the extent the same have not been drawn. All matters
constituting "Contingent Obligations" shall be calculated without duplication.
"Credit Rating" means the rating assigned by the Rating Agencies to
Borrower's senior unsecured long term
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indebtedness.
"Current Closing Date" means the date on or after the Effective Date on
which the conditions set forth in Section 3.1 shall have been satisfied to the
satisfaction of the Lead Agent.
"Debt" of any Person means, without duplication, (A) as shown on such
Person's balance sheet (i) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property, and (ii) all indebtedness of such
Person evidenced by a note, bond, debenture or similar instrument (but only to
the extent disbursed with respect to construction loans), (B) the face amount of
all letters of credit issued for the account of such Person and, without
duplication, all unreimbursed amounts drawn thereunder (except to the extent any
such letter of credit is intended as a guaranty of the Debt of a Consolidated
Subsidiary), (C) all Contingent Obligations of such Person, (D) all payment
obligations of such Person under any interest rate protection agreement
(including, without limitation, any interest rate swaps, caps, floors, collars
and similar agreements) and currency swaps and similar agreements which were not
entered into specifically in connection with Debt set forth in clauses (A), (B)
or (C) hereof. For purposes of this Agreement, Debt (other than Contingent
Obligations) of the Borrower shall be deemed to include only the Borrower's pro
rata share (such share being based upon the Borrower's percentage ownership
interest as shown on the Borrower's annual audited financial statements) of the
Debt of any Person in which the Borrower, directly or indirectly, owns an
interest, provided that and to the extent that such Debt is nonrecourse, both
directly and indirectly, to the Borrower. Debt shall not include any undrawn but
uncancelled amounts under this facility.
"Default" means any condition or event which with the giving of notice
or lapse of time or both would, unless cured or waived, become an Event of
Default.
"Default Rate" has the meaning set forth in Section 2.6(d).
"Designated Lender" means a special purpose corporation that (i) shall
have become a party to this Agreement pursuant to Section 9.6(d), and (ii) is
not
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otherwise a Bank.
"Designated Lender Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A-1 hereto, evidencing the obligation of
the Borrower to repay Money Market Loans made by Designated Lenders, and
"Designated Lender Note" means any one of such promissory notes issued under
Section 9.6(d) hereof.
"Designating Lender" shall have the meaning set forth in Section 9.6(d)
hereof.
"Designation Agreement" means a designation agreement in substantially
the form of Exhibit G attached hereto, entered into by a Bank and a Designated
Lender and accepted by the Lead Agent.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address in the United States set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Bank may hereafter designate as its
Domestic Lending Office by notice to the Borrower and the Lead Agent; provided
that any Bank may so designate separate Domestic Lending Offices for its Base
Rate Loans, on the one hand, and its CD Loans, on the other hand, in which case
all references herein to the Domestic Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.7(b).
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co. or any successor
thereto.
"Effective Date" means April 22, 1997.
"Environmental Affiliate" means any partnership,
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joint venture, trust or corporation in which an equity interest is owned by the
Borrower, either directly or indirectly.
"Environmental Approvals" means any permit, license, approval, ruling,
variance, exemption or other authorization required under applicable
Environmental Laws.
"Environmental Claim" means, with respect to any Person, any notice,
claim, demand or similar communication (written or oral) by any other Person
alleging potential liability of such Person for investigatory costs, cleanup
costs, governmental response costs, natural resources damage, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
(i) the presence, or release into the environment, of any Materials of
Environmental Concern at any location, whether or not owned by such Person or
(ii) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law, in each case (with respect to both (i) and (ii) above) as
to which there is a reasonable possibility of an adverse determination with
respect thereto and which, if adversely determined, would have a Material
Adverse Effect on the Borrower.
"Environmental Laws" means any and all federal, state, and local
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, licenses,
agreements and other governmental restrictions relating to the environment, the
effect of the environment on human health or to emissions, discharges or
releases of pollutants, contaminants, Materials of Environmental Concern or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Materials of Environmental Concern or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under
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common control which, together with the Borrower or any Subsidiary, are treated
as a single employer under Section 414 of the Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Lead Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing.
"Euro-Dollar Reference Bank" means the principal London offices of
Xxxxxx Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.7(c).
"Event of Default" has the meaning set forth in Section 6.1.
"Existing Facility" means the $110 million loan facility pursuant to
the Mortgage Loan Agreement, dated as of December 6, 1994, among TriNet
Essential Facilities XII and Nomura Asset Capital Corporation.
"Existing Facility Bank" means LaSalle National Bank, as trustee.
"Facility Fee" is defined in Section 2.9(a).
"Facility Fee Percentage" means the applicable percentage per annum
determined, at any time, based on the range into which Borrower's Credit Rating
then falls, in accordance with the following table. Any change in Borrower's
Credit Rating causing it to move to a different range on the table shall effect
an immediate change in the
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Facility Fee Percentage. In the event that Borrower receives two (2) Credit
Ratings that are not equivalent, the Facility Fee Percentage shall be determined
by the lower of such two (2) Credit Ratings. In the event that Borrower receives
more than two (2) Credit Ratings, and such ratings are not equivalent, the
Facility Fee Percentage shall be determined by the lower of the two (2) highest
ratings, provided that each of said two (2) highest ratings shall be Investment
Grade Ratings and at least one of which shall be an Investment Grade Rating from
S&P or Xxxxx'x. In the event that only one of the Rating Agencies shall have set
Borrower's Credit Rating, then the Facility Fee Percentage shall be based on
such rating only.
Range of Borrower's
Credit Rating
(S&P/Xxxxx'x Facility Fee Percentage
Ratings) (% per annum)
-------- -------------
BBB+/Baal 0.150
BBB/Baa2 0.175
BBB-/Baa3 0.200
Non-Investment
Grade 0.250
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Lead Agent.
"FFO" means "funds from operations," defined to mean net income (loss)
(computed in accordance with GAAP), excluding gains (or losses) from debt
restructurings and sales of properties, plus depreciation and amortization,
after adjustments for Minority Holdings. Adjustments for Minority Holdings will
be calculated to reflect FFO on the
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same basis.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System as constituted from time to time.
"Fitch" means Fitch Investors Services, L.P. or any successor thereto.
"Fixed Rate Indebtedness" means all Debt which accrues interest at a
fixed rate.
"Floating Rate Indebtedness" means all Debt which is not Fixed Rate
Indebtedness and which is not a Contingent Obligation or an Unused Commitment.
"FMV Cap Rate" means 9.5%.
"Fronting Bank" means any Bank which is a party hereto, which is
designated by Borrower in its Notice of Borrowing as the Bank which shall issue
a Letter of Credit with respect to such Notice of Borrowing, subject, however,
to the limitations set forth in Section 2.5., which Bank shall have agreed so to
act pursuant to a separate agreement to be entered into between the Borrower and
such Bank.
"GAAP" means generally accepted accounting principles recognized as
such in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"Group of Loans" means, at any time, a group of Loans consisting of (i)
all Committed Loans which are Base Rate Loans at such time, (ii) all Committed
Loans which are Euro-Dollar Loans having the same Interest Period at such time
or (iii) all Committed Loans which are CD Loans having the same Interest Period
at such time; provided that, if a Committed Loan of any particular Bank is
converted to or made as a Base Rate Loan pursuant to Section 8.2 or 8.5, such
Loan shall be included in the same Group or Groups of Loans from time to time as
it would have been in if it had not been so converted or made.
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"Indemnitee" has the meaning set forth in Section 9.3(b).
"Initial Closing Date" means April 22, 1997.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing specified in the
Notice of Committed Borrowing or on the date specified in the applicable Notice
of Interest Rate Election and ending 30, 60, 90, or 180 days thereafter, as the
Borrower may elect in the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month;
(c) if any Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.9 but
does not end on such date, then (i) the principal amount (if any) of
each Euro-Dollar Loan required to be repaid on such date shall have an
Interest Period ending on such date (it being understood that the
foregoing shall not be deemed to relieve the Borrower of any obligation
to pay any amounts otherwise required pursuant to Section 2.12 in
connection with such prepayment) and (ii) the remainder (if any) of
each such Euro-Dollar Loan shall have an Interest Period determined as
set forth above; and
(d) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
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(2) with respect to each CD Borrowing, the period commencing on the date of such
Borrowing specified in the Notice of Committed Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending one, two
or three months (or six months, if available, as such availability may be
determined by the Lead Agent in its sole discretion) thereafter, as the Borrower
may elect in the applicable Notice of Committed Borrowing or Notice of Interest
Rate Election; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b)(i) below) which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be extended to
the next succeeding Euro-Dollar Business Day;
(b) if any Interest Period includes a date on which a payment
of principal of the Loans is required to be made under Section 2.10 but
does not end on such date, then (i) the principal amount (if any) of
each CD Loan required to be repaid on such date shall have an Interest
Period ending on such date (it being understood that the foregoing
shall not be deemed to relieve the Borrower of any obligation to pay
any amounts otherwise required pursuant to Section 2.13 in connection
with such prepayment) and (ii) the remainder (if any) of each such CD
Loan shall have an Interest Period determined as set forth above; and
(c) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing specified in the Notice of Committed Borrowing or on the date
specified (or deemed specified) in the applicable Notice of Interest Rate
Election and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (b)(i) below) which would otherwise end
on a day which is not a Euro-Dollar Business Day shall be extended to
the next succeeding Euro-Dollar Business Day;
(b) if any Interest Period includes a date on which a payment
of principal of the Loans is required
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to be made under Section 2.10 but does not end on such date, then (i)
the principal amount (if any) of each Base Rate Loan required to be
repaid on such date shall have an Interest Period ending on such date
and (ii) the remainder (if any) of each such Base Rate Loan shall have
an Interest Period determined as set forth above; and
(c) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
(4) with respect to each Money Market LIBOR Loan, the period commencing on the
date of borrowing specified in the applicable Notice of Borrowing and ending 30,
60, 90, or 180 days thereafter, as the Borrower may elect in the applicable
Notice of Money Market Borrowing in accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month;
(c) if any Interest Period includes a date on which a payment
of principal of Loans is required to be made under Section 2.10 but
does not end on such date, then (i) the principal amount (if any) of
each Money Market LIBOR Loan required to be repaid on such date and
(ii) the remainder (if any) of each such Money Market LIBOR Loan shall
have an Interest Period determined as set forth above; and
(d) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
(5) with respect to each Money Market Absolute Rate Loan,
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the period commencing on the date of borrowing specified in the applicable
Notice of Borrowing and ending such number of days thereafter (but not less than
14 days) as the Borrower may elect in accordance with Section 2.3; provided
that:
(a) any Interest Period which would otherwise end on a day
which is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day; and
(b) if any Interest Period includes a date on which a payment
of principal of Loans is required to be made under Section 2.10 but
does not end on such date, then (i) the principal amount (if any) of
each Money Market Absolute Rate Loan required to be repaid on such date
and (ii) the remainder (if any) of each such Money Market Absolute Rate
Loan shall have an Interest Period determined as set forth above; and
(c) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
"Interest Rate Xxxxxx" has the meaning set forth
in Section 5.14.
"Investment Grade Rating" means a rating for a Person's senior
long-term unsecured debt, or if no such rating has been issued, a "shadow"
rating, of BBB- or better from S&P, and a rating or "shadow" rating of Baa3 or
better from Moody's or a rating or "shadow" rating equivalent to the foregoing
from either Duff & Xxxxxx or Fitch. Any such "shadow" rating shall be evidenced
by a letter from the applicable Rating Agency or by such other evidence as may
be reasonably acceptable to the Lead Agent (as to any such other evidence, the
Lead Agent shall present the same to, and discuss the same with, the Banks).
"Lead Agent" shall mean Xxxxxx Guaranty Trust Company of New
York in its capacity as Lead Agent hereunder, and its permitted successors in
such capacity in accordance with the terms of this Agreement.
"Legal Rate" has the meaning set forth in Sec-
tion 9.17.
"Letter(s) of Credit" has the meaning set forth in
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Section 2.2.
"Letter of Credit Collateral" has the meaning set forth in Section 6.4.
"Letter of Credit Collateral Account" has the meaning set forth in
Section 6.4.
"Letter of Credit Documents" has the meaning set forth in Section 2.17.
"Letter of Credit Usage" means at any time the sum of (i) the aggregate
maximum amount available to be drawn under the Letters of Credit then
outstanding, assuming compliance with all requirements for drawing referred to
in such Letters of Credit, and (ii) the aggregate amount which has been drawn
under Letters Credit but for which the applicable Fronting Bank and/or Banks
have not been reimbursed at such time.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.3.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the effect of creating a security interest, in
respect of such asset. For purposes of this definition, materialman's,
mechanic's, labor liens and tax liens shall not be included in the definition of
Lien. For the purposes of this Agreement, the Borrower or any Consolidated
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans or Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
"Loan Documents" means this Agreement and the Notes.
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"London Interbank Offered Rate" has the meaning set forth in Section
2.7(c).
"LTV Ratio" means the ratio, expressed as a percentage and calculated
on a quarterly basis by the Borrower, of the aggregate amount of Unsecured Debt
outstanding as of the date of determination, to the Unleveraged Assets Value as
of the date of determination.
"Managing Co-Agent" shall mean The First National Bank of Boston, in
its capacity as co-agent for the Banks hereunder, and its permitted successors
in such capacity in accordance with the terms of this Agreement.
"Margin Stock" shall have the meaning provided such term in Regulation
U and Regulation G of the Federal Reserve Board.
"Material Adverse Effect" means an effect resulting from any
circumstance or event or series of circumstances or events, of whatever nature
(but excluding general economic conditions), which does or could reasonably be
expected to, materially and adversely (i) effect the business, operations,
properties, assets or financial condition of the Borrower and its Consolidated
Subsidiaries taken as a whole, (ii) impair the ability of the Borrower and its
Consolidated Subsidiaries, taken as a whole, to fulfill its material
obligations, including their ability to perform their respective obligations
under the Loan Documents, or (iii) cause a Default under Sections 5.8, 5.9, or
5.12 (subject, however, to the right to cure as set forth in Section 2.10).
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $5,000,000.
"Materials of Environmental Concern" means and includes pollutants,
contaminants, wastes, toxic and hazardous substances, petroleum and petroleum
by-products.
"Maturity Date" shall mean the date when all of the Obligations
hereunder shall be due and payable which shall be October 8, 1999, unless
accelerated pursuant to the terms hereof.
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"Maximum Total Debt Ratio" shall mean the ratio as of the date of
determination of (i) the aggregate Debt of the Borrower and its Consolidated
Subsidiaries at the time of determination to (ii) the Tangible FMV Net Worth of
the Borrower and its Consolidated Subsidiaries.
"Minority Holdings" means partnerships, limited liability companies and
corporations held or owned by the Borrower which are not consolidated with
Borrower on Borrower's financial statements.
"Money Market Absolute Rate" has the meaning set forth in Section 2.3.
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Xxxxxx Agent; provided that any Bank may from time to time by notice to
the Borrower and the Xxxxxx Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all references herein to
the Money Market Lending Office of such Bank shall be deemed to refer to either
or both of such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant to
a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 2.3).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.3.
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.3.
"Moody's" means Xxxxx'x Investors Services, Inc. or any successor
thereto.
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"Xxxxxx" means Xxxxxx Guaranty Trust Company of New York, in its
individual capacity.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Net Present Value" shall mean, as to a specified or ascertainable
dollar amount, the present value, as of the date of calculation of any such
amount using a discount rate equal to the Base Rate in effect as of the date of
such calculation.
"New Acquisitions" shall have the meaning set forth in Section 5.16.
"Non-Recourse Debt" shall mean Debt of the Borrow- er or any
Consolidated Subsidiary for which the right of recovery of the obligee thereof
is limited to recourse against the Real Property Assets securing such Debt
(subject to such limited exceptions to the non-recourse nature of such Debt such
as fraud, misappropriation, misapplication and environmental indemnities, as are
usual and customary in like transactions at the time of the incurrence of such
Debt).
"Non-Triple Net Lease" means any lease which does not at a minimum
provide that the tenant is responsible for the payment and performance of all
maintenance and repairs relating to the real property asset.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, together with any Designated Lender Notes, and "Note" means any one of
such promissory notes issued hereunder
"Notice of Borrowing" means a Notice of Committed Borrowing (as defined
in Section 2.4) or a Notice of Money Market Borrowing (as defined in Section
2.3(f)).
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"Notice of Interest Rate Election" has the meaning set forth in Section
2.6.
"Obligations" means all obligations, liabilities and indebtedness of
every nature of the Borrower, from time to time owing to any Bank under or in
connection with this Agreement or any other Loan Document, including, without
limitation, (i) the outstanding principal amount of the Committed Loans at such
time, plus (ii) the Letter of Credit Usage at such time, plus (iii) the
outstanding principal amount of any Money Market Loans at such time.
"Operating Lease" means, with respect to any Person, any lease of an
asset which is not a lease required to be capitalized under GAAP, other than any
such lease under which such Person is the lessor.
"Operating Rent" means, as of the last day of any fiscal period, the
aggregate rent payable with respect to that fiscal period to a lessor under an
Operating Lease.
"Original Credit Agreement" has the meaning set forth in the recitals.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Period Fraction" means with respect to any period of time, a fraction,
the numerator of which is the actual number of days in such period, and the
denominator of which is three hundred and sixty (360).
"Permitted LTV Ratio" means a LTV Ratio which is 57% or lower.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
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"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Prime Rate" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Pro-Forma Debt Service" means the amount determined by applying a 25
year mortgage style amortization schedule to the aggregate amount of Unsecured
Debt outstanding as of the last day of each calendar quarter, using an interest
rate equal to the greater of (i) (A) in the case of all Unsecured Debt other
than the Loans, the Treasury Rate plus 1.32%, and (B) in the case of the Loans,
the Treasury Rate plus 1.75% and (ii) the actual rate of interest in effect with
respect to all Unsecured Debt outstanding as of the last day of such quarter,
all determined on an annualized basis.
"Property Expenses" means, when used with respect to any Real Property
Asset, the costs of maintaining such Real Property Asset which are the
responsibility of the owner thereof and that are not reimbursed by the tenant
thereof, including, without limitation, taxes, insurance, repairs and
maintenance, but provided that if such tenant is more than 60 days in arrears in
the payment of base or fixed rent, then such costs will also constitute
"Property Expenses.
"Property Income" means, when used with respect to any Real Property
Asset, annual contractual rents (other than prepaid rents and revenues and
security deposits except to the extent applied in satisfaction of tenants'
obligations for rent), in effect as of the last day of a quarter in accordance
with the applicable leases, but provided that if any tenant is more than 60 days
in arrears in the payment of base or fixed rent as of the last day of a
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28
quarter, the annual contractual rents payable pursuant to such tenant's lease
shall not constitute "Property Income".
"Rating Agencies" means, collectively, S&P, Xxxxx'x, Duff & Xxxxxx and
Fitch.
"Real Property Assets" means as of any time, the real property assets
(including interests in participating mortgages in which the Borrower's interest
therein is characterized as equity according to GAAP) owned directly or
indirectly by the Borrower and the Consolidated Subsidiaries at such time.
"Reference Bank means the CD Reference Bank or the Euro-Dollar
Reference Bank, as the context shall require.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66-2/3% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66-2/3% of the aggregate unpaid
principal amount of the Loans.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Solvent" means, with respect to any Person, that the fair saleable
value of such Person's assets exceeds the Debts of such Person.
"Tangible FMV Net Worth" means (a) the sum of (v) the quotient of
Borrower Net Operating Cash Flow as of the last day of the previous calendar
quarter and divided by the FMV Cap Rate, (w) Cash and Cash Equivalents of the
Borrower and the Consolidated Subsidiaries as of the date of
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determination, (x) all deferred rent receivables with respect to tenants of the
Real Property Assets who are not more than 60 days past due in the payment of
base or fixed rent, (y) the then current market value of any Interest Rate
Xxxxxx of the Borrower and its Consolidated Subsidiaries, and (z) the value of
land acquired by the Borrower or its Consolidated Subsidiaries after the date
hereof or the value of land owned by the Borrower or its Consolidated
Subsidiaries as of the date hereof used in connection with a build-to-suit
project, in either case based upon a then current independent MAI appraisal,
less (b) all liabilities (determined in accordance with GAAP) of such Person.
"Term" has the meaning set forth in Section 2.10.
"Termination Event" shall mean (i) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a "reportable event" not
subject to the provision for 30-day notice to the PBGC), or an event described
in Section 4062(e) of ERISA, (ii) the withdrawal by any member of the ERISA
Group from a Multiemployer Plan during a plan year in which it is a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), or the incurrence
of liability by any member of the ERISA Group under Section 4064 of ERISA upon
the termination of a Multiemployer Plan, (iii) the filing of a notice of intent
to terminate any Plan under Section 4041 of ERISA, other than in a standard
termination within the meaning of Section 4041 of ERISA, or the treatment of a
Plan amendment as a distress termination under Section 4041 of ERISA, (iv) the
institution by the PBGC of proceedings to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or cause a trustee
to be appointed to administer, any Plan or (v) any other event or condition that
might reasonably constitute grounds for the termination of, or the appointment
of a trustee to administer, any Plan or the imposition of any liability or
encumbrance or Lien on the Real Property Assets or any member of the ERISA Group
under ERISA.
"Total Available Commitments" means at any time of determination, the
lesser of (a) the aggregate amount of the Commitments at such time, or (b) the
product of the Unleveraged Assets Value and 57%, less Unsecured Debt outstanding
(other than Loans hereunder), or (c) that amount which would permit the Borrower
to be in compliance with the
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Unleveraged Assets Minimum Debt Service Coverage requirements, after taking into
account all outstanding Unsecured Debt.
"Total Debt Service" shall mean, measured as of the last day of each
calendar quarter, an amount for the previous four consecutive quarters,
including the quarter then ended, equal to the sum of (i) interest (whether
accrued, paid or capitalized) actually payable by Borrower and its Consolidated
Subsidiaries on its Debt, plus (ii) scheduled payments of principal on such
Debt, whether or not paid by Borrower and its Consolidated Subsidiaries
(excluding balloon payments) and (iii) an amount equal to the greater of (y) an
amount equal to the straight-line depreciation taken or to be taken by the
Borrower and its Consolidated Subsidiaries based on applicable useful lives,
determined in accordance with federal income tax laws and regulations with
respect to Capital Expenditures incurred from and after the date hereof which
are not related to new construction with respect to the preceding four quarters,
and (z) a customary reserve for Capital Expenditures of not less than 10 cents
per square foot for each Real Property Asset which is subject to a Non-Triple
Net Lease, as calculated by the Borrower.
"Treasury Rate" means, as of any date, a rate equal to the annual yield
to maturity on the U.S. Treasury Constant Maturity Series with a ten year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
-- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the Lead Agent
shall select, in its reasonable discretion, an alternate basis for the
determination of Treasury yield for U.S. Treasury Constant Maturity Series with
ten year maturities.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued
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but unpaid contributions), all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the ERISA Group to the PBGC or any other
Person under Title IV of ERISA.
"Unimproved Assets" means Real Property Assets upon which no material
improvements have been completed which completion is evidenced by a certificate
of occupancy or its equivalent.
"United States" means the United States of Ameri- ca, including the
fifty states and the District of Columbia.
"Unleveraged Assets" means, as of any date, the Real Property Assets
listed in Exhibit C attached hereto and made a part hereof, each of which is
100% owned in fee (or leasehold in the case of such assets listed in Exhibit C)
by Borrower or a Consolidated Subsidiary and each of which is not subject to any
Lien, subject to adjustment as set forth herein, together with all New
Acquisitions or Real Property Assets which have become part of the Unleveraged
Assets as of such date in accordance with Section 3.3 and which are not subject
to any Lien, subject to adjustment as set forth herein, but excluding (i) any
Unleveraged Assets which have been released from this Agreement as of such date
in accordance with Sections 5.14, 5.15 and all other terms of this Agreement,
(ii) Unimproved Assets, or (iii) owned directly or indirectly by a Minority
Holding.
"Unleveraged Assets Net Operating Cash Flow" means as of any date of
determination with respect to the Unleveraged Assets, Property Income as of such
date, but less (x) Property Expenses with respect to the Unleveraged Assets for
the preceding four quarters (which, with respect to a Unleveraged Asset owned
for less than such four quarter period, shall be calculated on an estimated, pro
forma basis (i.e., the results for the period during which such Unleveraged
Asset has been owned shall be annualized, with appropriate adjustments for items
of income and expense which are not earned or incurred in equal monthly
amounts)), and (y) the greater of an amount equal to the straight-line
depreciation taken or to be taken by the Borrower and its Consolidated
Subsidiaries based on applicable useful lives determined in accordance with
federal income tax laws and regulations with respect to Capital Expenditures
incurred
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from and after the date hereof which are not related to new construction with
respect to the preceding four calendar quarters, and appropriate reserves for
replacements of not less than 10 cents per square foot per annum for each Real
Property Asset where the Unleveraged Asset is subject to a Non-Triple Net Lease,
and (z) management fees which shall be deemed to be equal to two percent (2%) of
Property Income of the Unleveraged Assets.
"Unleveraged Assets Value" means the quotient of (i) the aggregate
Unleveraged Asset Net Operating Cash Flow determined as of the last day of the
calendar quarter, and (ii) the FMV Cap Rate.
"Unleveraged Assets Minimum Debt Service Coverage" means as of the last
day of each calendar quarter, Unleveraged Asset Net Operating Cash Flow equal to
or greater than 175% of Pro-Forma Debt Service.
"Unsecured Debt" means Debt of the Borrower and all Consolidated
Subsidiaries which is not secured by a Lien.
"Unused Commitments" shall mean an amount equal to all unadvanced funds
(other than unadvanced funds in connection with any construction loan) which any
third party is obligated to advance to Borrower or another Person or otherwise
pursuant to any loan document, written instrument or otherwise (in the case of a
loan to another Person, Borrower's share of the Debt shall be calculated in the
same manner as that set forth in the last sentence of the definition of "Debt").
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Lead Agent; provided that, if the Borrower notifies the Lead Agent that
the Borrower wishes to amend any covenant in Article V to eliminate the effect
of any change in GAAP on the operation
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of such covenant (or if the Lead Agent notifies the Borrower that the Required
Banks wish to amend Article V for such purpose), then the Borrower's compliance
with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner reasonably
satisfactory to the Borrower and the Required Banks.
SECTION 1.3. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on the same date, all of which Loans are of the same type (subject to
Article VIII) and, except in the case of Base Rate Loans, have the same Interest
Period. Borrowings are classified for purposes of this Agreement either by
reference to the pricing of Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article II under which participation therein is
determined (i.e., a "Committed Borrowing" is a Borrowing under Section 2.1 in
which all Banks participate in proportion to their Commitments, while a "Money
Market Borrowing" is a Borrowing under Section 2.3.
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ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make Committed Loans to the
Borrower or participate in Letters of Credit issued by the Fronting Bank on
behalf of Borrower pursuant to this Article from time to time during the term
hereof in amounts such that the aggregate principal amount of Committed Loans by
such Bank at any one time outstanding together with such Bank's pro rata share
(based on the ratio of its Commitment to the aggregate of all Commitments) of
Letter of Credit Usage shall not exceed the amount of its Available Commitment.
The aggregate amount of Committed Loans together with the Letter of Credit Usage
and outstanding Money Market Loans shall not exceed the lesser of (i) Two
Hundred Million Dollars ($200,000,000) or (ii) the Total Available Commitments
(subject, however, to the right to cure as set forth in Section 2.11(a),
provided the LTV Ratios do not exceed 60%, as set forth therein, or Section
2.11(c), and provided further that during such cure period, the Borrower may
only borrow in order to acquire a New Acquisition that will cure any Default
under Sections 2.11(a) or (c)), and the aggregate dollar amount of all Letters
of Credit issued and outstanding shall not exceed Thirty Million Dollars
($30,000,000). Each Borrowing outstanding under this Section 2.1 (other than a
Borrowing in connection with a draw under a Letter of Credit) shall be in an
aggregate principal amount of $2,500,000, or an integral multiple of $100,000 in
excess thereof (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.2(c)) and shall be made from the several
Banks ratably in proportion to their respective Commitments. Subject to the
limitations set forth herein, any amounts repaid may be reborrowed.
SECTION 2.2. Notice of Committed Borrowing. (a) The Borrower shall give
Lead Agent notice not later than 12:00 noon (New York City time) (x) one
Domestic Business Day before each Base Rate Borrowing, (y) three Euro-Dollar
Business Days before each Euro-Dollar Borrowing or (z) three Domestic Business
Days before each CD Borrowing, specifying:
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(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case of
a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans, CD Loans or Euro-Dollar Loans,
(iv) in the case of a Euro-Dollar Borrowing or a CD Borrowing, the
duration of the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period, and
(v) the intended use for the proceeds of such Borrowing.
Notwithstanding the time frame set forth in clause (a)(x) above, in the
event that the Money Market Quotes submitted by the Banks pursuant to Section
2.3(c) below are, in the aggregate, in an amount less than the principal amount
requested by the Borrower in the related Money Market Quote Request, then the
Borrower shall be permitted to give the Lead Agent notice of its intent to make
a Base Rate Borrowing, in the amount of the difference between accepted Money
Market Quotes and the principal amount requested by Borrower in the related
Money Market Quote Request, no later than 12:00 Noon (New York City time) on the
date of such Borrowing.
(b) The Borrower shall give the Lead Agent and the designated Fronting
Bank, written notice that it desires to have Letters of Credit (a "Letter of
Credit") issued hereunder no later than 10:00 A.M., New York City time, at least
three (3) Domestic Business Days prior to the date of such issuance. Each such
notice shall specify (i) the designated Fronting Bank, (ii) the aggregate amount
of the requested Letters of Credit, (iii) the individual amount of each
requested Letters of Credit and the number of Letters of Credit to be issued,
(iv) the date of such issuance (which shall be a Domestic Business Day), (v) the
name and address of the beneficiary, (vi) the expiration date of the Letter of
Credit (which in no event shall be later than ten (10) Domestic Business Days
prior to the Maturity Date), (vii) the purpose and circumstances for which such
Letter of
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Credit is being issued, and (viii) the terms upon which each such Letters of
Credit may be drawn down (which terms shall not leave any discretion to Fronting
Bank). Each such notice may be revoked telephonically by Borrower to each of the
applicable Fronting Bank and the Lead Agent any time prior to the date of
issuance of the Letter of Credit by the applicable Fronting Bank, provided such
revocation is confirmed in writing by Borrower to Fronting Bank and the Lead
Agent within one (1) Domestic Business Day by facsimile. No later than 10:00
A.M. New York City time on the date that is three (3) Domestic Business Days
prior to the date of issuance, Borrower shall specify a precise description of
the documents and the verbatim text of any certificate to be presented by the
beneficiary of such Letter of Credit, which if presented by such beneficiary
prior to the expiration date of the Letter of Credit would require Fronting Bank
to make a payment under the Letter of Credit; provided that Fronting Bank may,
in its reasonable judgment, require changes in any such documents and
certificates only in conformity with changes in customary and commercially
reasonable practice or law and provided further, that no Letter of Credit shall
require payment against a conforming draft to be made thereunder on the
following Domestic Business Day that such draft is presented if such
presentation is made later than 10:00 A.M. New York City time (except that if
the beneficiary of any Letter of Credit requests at the time of the issuance of
its Letter of Credit that payment be made on the same Domestic Business Day
against a conforming draft, such beneficiary shall be entitled to such a same
day draw, provided such draft is presented to the applicable Fronting Bank no
later than 10:00 A.M. New York City time and provided further that, prior to the
issuance of such Letter of Credit, Borrower shall have requested to Fronting
Bank and the Lead Agent that such beneficiary shall be entitled to a same day
draw). In determining whether to pay on such Letter of Credit, Fronting Bank
shall be responsible only to determine that the documents and certificates
required to be delivered under the Letter of Credit have been delivered and that
they comply on their face with the requirements of that Letter of Credit.
SECTION 2.3. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Borrowings
pursuant to Section 2.1, the Borrower
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may, as set forth in this Section, request the Banks during the Term to make
offers to make Money Market Loans to the Borrower, not to exceed, at such time,
the lesser of (i) the Total Available Commitments and (ii) $100,000,000. The
Banks may, but shall have no obligation to, make such offers and the Borrower
may, but shall have no obligation to, accept any such offers in the manner set
forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Lead Agent by telex or facsimile transmission a Money Market Quote Request
substantially in the form of Exhibit D hereto so as to be received not later
than 10:30 A.M. (New York City time) on (x) the fourth Euro-Dollar Business Day
prior to the date of Borrowing proposed therein, in the case of a LIBOR Auction
or (y) the Domestic Business Day next preceding the date of Borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in either case, such other
time or date as the Borrower and the Lead Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $500,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period,
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate, and
(v) whether the Banks will be permitted to designate a
Designated Lender to fund such Money Market Loans.
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The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Lead Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Lead Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit E hereto, which shall constitute an invita- tion by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Lead Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 9.1 not later than (x) 10:00 A.M. (New York
City time) on the third Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 10:00 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Borrower and the Lead Agent shall
have mutually agreed and shall have notified to the Banks not later than the
date of the Money Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective); provided that Money
Market Quotes submitted by the Lead Agent (or any affiliate of the Lead Agent)
in the capacity of a Bank may be submitted, and may only be submitted, if the
Lead Agent or such affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than fifteen (15) minutes prior to the
applicable deadline for the other Banks. Subject to Articles III and VI, any
Money Market Quote so made shall be irrevocable except with the written consent
of the Lead Agent given on the instructions of the Borrower. If, and only if,
the Borrower elected in the applicable Money Market Quote
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Request to permit the Banks to designate Designated Lenders to fund such Money
Market Loans, such Money Market Loans may be funded by such Bank's Designated
Lender (if any) as provided in Section 9.6(d), however such Bank shall not be
required to specify in its Money Market Quote whether such Money Market Loans
will be funded by such Designated Lender.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit F hereto and shall in any case specify:
(1) the proposed date of Borrowing,
(2) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x) must
be $5,000,000 or a larger multiple of $500,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested
and (z) may be subject to an aggregate limitation as to the principal
amount of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(3) in the case of a LIBOR Auction, the margin above or below
the applicable London Interbank Offered Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added to
or subtracted from such base rate,
(4) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan,
and
(5) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
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(1) is not substantially in conformity with Exhibit F
hereto or does not specify all of the information required by
subsection (d)(ii) above;
(2) contains qualifying, conditional or similar language;
(3) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(4) arrives after the time set forth in subsec- tion
(d)(i).
(e) Notice to Borrower. The Lead Agent shall promptly
notify the Borrower (x) with respect to each Money Market Quote submitted in
accordance with subsection (d), of the terms of such Money Market Quote and the
identity of the Bank submitting such Money Market Quote and (y) of any Money
Market Quote that amends, modifies or is otherwise inconsistent with a previous
Money Market Quote submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be disregarded by
the Lead Agent unless such subsequent Money Market Quote is submitted solely to
correct a manifest error in such former Money Market Quote. The Lead Agent's
notice to the Borrower shall specify (A) the aggregate principal amount of Money
Market Loans for which offers have been received for each Interest Period
specified in the related Money Market Quote Request, (B) the respective
principal amounts and Money Market Margins or Money Market Absolute Rates, as
the case may be, so offered and (C) if applicable, limitations on the aggregate
principal amount of Money Market Loans for which offers in any single Money
Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than
12:00 noon (New York City time) on (x) the third Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Lead Agent shall
have mutually agreed and shall have notified to the Banks not later than the
date of the Money Market Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective), the Borrower shall
notify the Lead Agent of its
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acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing
must be $10,000,000 or a larger multiple of $500,000;
(iii) acceptance of offers may only be made on the basis
of ascending Money Market Margins or Money Market Absolute Rates,
as the case may be; and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(g) Allocation by Lead Agent. If offers are made by two or more
Banks with the same Money Market Margins or Money Market Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Lead Agent among such Banks as nearly as possible (in
multiples of $500,000, as the Lead Agent may deem appropriate) in proportion to
the aggregate principal amounts of such offers. Determinations by the Lead Agent
of the amounts of Money Market Loans shall be conclusive in the absence of
manifest error.
(h) Notification by Lead Agent. Upon receipt of the Borrower's
Notice of Money Market Borrowing in accordance with Section 2.3(f) hereof, the
Lead Agent shall, on the date such Notice of Money Market Borrowing is received
by the Lead Agent, notify each Bank of the principal amount of the Money Market
Borrowing accepted by the Borrower and of such Bank's share (if any) of such
Money Market Borrowing and such Notice of Money Market Borrowing shall not
thereafter be revocable by the Borrower. Provided that the
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Borrower elected in the applicable Money Market Quote Request to permit the
Banks to designate Designated Lenders to fund such Money Market Loans, a Bank
who is notified that it has been selected to make a Money Market Loan may
designate its Designated Lender (if any) to fund such Money Market Loan on its
behalf, as described in Section 9.6(d). Any Designated Lender which funds a
Money Market Loan shall on and after the time of such funding become the obligee
under such Money Market Loan and be entitled to receive payment thereof when
due. No Bank shall be relieved of its obligation to fund a Money Market Loan,
and no Designated Lender shall assume such obligation, prior to the time the
applicable Money Market Loan is funded.
SECTION 2.4. Notice to Banks; Funding of Loans.
(a) Upon receipt of a notice from Borrower in accordance with
Section 2.2 hereof (each such notice being a "Notice of Committed Borrowing"),
the Lead Agent shall, on the date such Notice of Committed Borrowing is received
by the Lead Agent, notify Managing Co-Agent and each Bank of the contents
thereof and of such Bank's share of such Borrowing, of the interest rate
determined pursuant thereto and the Interest Period(s) (if different from those
requested by the Borrower) and (unless such Notice of Committed Borrowing is for
the issuance of a Letter of Credit) such Notice of Committed Borrowing shall not
thereafter be revocable by the Borrower.
(b) Not later than 1:00 p.m. (New York City time) on the date of
each Borrowing as indicated in the Notice of Committed Borrowing, each Bank
shall (except (x) with respect to Notices of Committed Borrowing for issuances
of Letters of Credit, and (y) as provided in subsection (c) of this Section)
make available its share of such Borrowing in Federal funds immediately
available in New York City, to the Lead Agent at its address referred to in
Section 9.1. If Borrower has requested the issuance of a Letter of Credit, no
later than 12:00 Noon (New York City time) on the date of such issuance as
indicated in the Notice of Committed Borrowing, Fronting Bank shall issue such
Letter of Credit in the amount so requested and deliver the same to Borrower,
with a copy thereof to the Lead Agent. Immediately upon the issuance of each
Letter of Credit by Fronting Bank, such Fronting Bank shall be deemed to have
sold and transferred to each other Bank, and each such other Bank
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shall be deemed to, and hereby agrees to, have irrevocably and unconditionally
purchased and received from Fronting Bank, without recourse or warranty, an
undivided interest and a participation in such Letter of Credit, any drawing
thereunder, and the obligations of Borrower hereunder with respect thereto, and
any security therefor or guaranty pertaining thereto, in an amount equal to
such Bank's ratable share thereof (based upon the ratio its Commitment bears the
aggregate of all Commitments). Upon any change in any of the Commitments in
accordance herewith, there shall be an automatic adjustment to such
participations to reflect such changed shares. The applicable Fronting Bank
shall have the primary obligation to fund any and all draws made with respect to
such Letter of Credit notwithstanding any failure of a participating Bank to
fund its ratable share of any such draw. Unless the Lead Agent determines that
any applicable condition specified in Article III has not been satisfied, the
Lead Agent will instruct the applicable Fronting Bank to make such Letter of
Credit available to the Borrower and such Fronting Bank shall make such Letter
of Credit available to the Borrower at the Borrower's aforesaid address on the
date of the issuance of such Letter of Credit. Without in any way implying a
right of Fronting Bank not to issue a Letter of Credit as provided for herein,
if a Fronting Bank shall fail to issue a Letter of Credit (notwithstanding that
the applicable conditions specified in Article III have been satisfied), the
Borrower may designate a substitute Fronting Bank, provided that the notice
periods set forth in Section 2.2(b) above shall begin anew.
(c) Unless the Lead Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to the
Lead Agent such Bank's share of such Borrowing, the Lead Agent may assume that
such Bank has made such share available to the Lead Agent on the date of such
Borrowing in accordance with subsection (b) of this Section 2.4 and the Lead
Agent may, in reliance upon such assumption, but shall not be obligated to, make
available to the Borrower on such date a corresponding amount on behalf of such
Bank. If and to the extent that such Bank shall not have so made such share
available to the Lead Agent, such Bank and the Borrower severally agree to repay
to the Lead Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is
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repaid to the Lead Agent, at (i) in the case of the Borrower, a rate per annum
equal to the higher of the Federal Funds Rate and the interest rate applicable
thereto pursuant to Section 2.7 and (ii) in the case of such Bank, the Federal
Funds Rate. If such Bank shall repay to the Lead Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
SECTION 2.5. Notes.
(a) The Loans of each Bank shall be evidenced by a single Note
payable to the order of such Bank for the account of its Applicable Lending
Office in an amount equal to the aggregate amount of such Bank's Commitment.
(b) Each Bank may, by notice to the Borrower, the Lead Agent and
the Managing Co-Agent, request that its Loans of a particular type be evidenced
by a separate Note in an amount equal to the aggregate unpaid principal amount
of such Loans. Any additional costs incurred by the Lead Agent, the Borrower or
the Banks in connection with preparing such a Note shall be at the sole cost and
expense of the Bank requesting such Note. In the event any Loans evidenced by
such a Note are paid in full prior to the Maturity Date, any such Bank shall
return such Note to Borrower. Each such Note shall be in substantially the form
of Exhibit A hereto with appropriate modifications to reflect the fact that it
evidences solely Loans of the relevant type. Each reference in this Agreement to
the "Note" of such Bank shall be deemed to refer to and include any or all of
such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(a),
the Lead Agent shall forward such Note to such Bank. Each Bank shall record the
date, amount, type and maturity of each Loan made by it and the date and amount
of each payment of principal made by the Borrower with respect thereto, and may,
if such Bank so elects in connection with any transfer or enforcement of its
Note, endorse on the appropriate schedule appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding; provided
that the failure of any Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Notes. Each
Bank is hereby irrevocably authorized by the
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Borrower so to endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
(d) The Loans shall mature, and the principal amount thereof
shall be due and payable, on the Maturity Date.
(e) There shall be no more than fifteen (15) Euro-Dollar Loans
and CD Loans outstanding at any one time.
SECTION 2.6 Letters of Credit. (a) Subject to the terms contained
in this Agreement and the other Loan Documents, upon the receipt of a Notice of
Committed Borrowing requesting the issuance of a Letter of Credit, Fronting Bank
shall issue a Letter of Credit or Letters of Credit in such form or as is
reasonably acceptable to Borrower, in an aggregate amount equal to the amount
requested, provided that after the issuance of such Letters of Credit, (i) the
aggregate amount of issued and outstanding Letters of Credit shall not exceed
Thirty Million Dollars ($30,000,000), and (ii) the Letter of Credit Usage, when
added to the aggregate principal amount of the Loans outstanding, shall not
exceed the lesser of (y) Two Hundred Million Dollars ($200,000,000) or (z) the
Total Available Commitments (subject, however, to the right to cure as set forth
in Section 2.11(a), provided the LTV Ratios do not exceed 60%, as set forth
therein, or Section 2.11(c), and provided further that during such cure period,
the Borrower may only borrow in order to acquire a New Acquisition that will
cure any Default under Sections 2.11(a). Fronting Bank shall notify Agent and
each Bank of the issuance of any such Letter of Credit, together with the amount
thereof, simultaneously therewith.
(b) Each Letter of Credit shall be issued in the minimum
aggregate amount of Three Hundred Thousand Dollars ($300,000) or any amount in
excess thereof.
(c) In the event of any request for a drawing under any Letter of
Credit by the beneficiary thereunder, Fronting Bank shall notify Borrower and
the Lead Agent (and the Lead Agent shall promptly notify each Bank thereof) on
or before the date on which Fronting Bank intends to honor such drawing, and,
except as provided in this subsection
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(c), Borrower shall reimburse Fronting Bank, in immediately available funds, on
the same day on which such drawing is honored in an amount equal to the amount
of such drawing. Notwithstanding anything contained herein to the contrary,
however, unless Borrower shall have notified the Lead Agent and Fronting Bank
prior to 10:00 a.m. (New York time) on the date of such drawing (provided that
the same shall be a Domestic Business Day) that Borrower intends to reimburse
Fronting Bank for the amount of such drawing with funds other than the proceeds
of the Loans, Borrower shall be deemed to have timely given a Notice of
Committed Borrowing pursuant to Section 2.2 to the Lead Agent, requesting a
Borrowing of Base Rate Loans on the date on which such drawing is honored and in
an amount equal to the amount of such drawing. Each Bank shall, in accordance
with Section 2.4(b), make available its share of such Borrowing to the Lead
Agent, the proceeds of which shall be applied directly by the Lead Agent to
reimburse Fronting Bank for the amount of such draw. In the event that any Bank
fails to make available to Fronting Bank the amount of such Bank's participation
on the date of a drawing, Fronting Bank shall be entitled to recover such amount
on demand from such Bank together with interest at the Federal Funds Rate
commencing on the date of drawing.
(d) If, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any court or administrative or
governmental authority charged with the administration thereof shall either (a)
impose, modify or deem applicable any reserve, special deposit or similar
requirement against letters of credit issued by, or assets held by, or deposits
in or for the account of, or participations in any letter of credit, upon any
Bank (including Fronting Bank) or (b) impose on any Bank any other condition
regarding this Agreement or such Bank (including Fronting Bank) as it pertains
to the Letters of Credit or any participation therein and the result of any
event referred to in the preceding clause (a) or(b) shall be to increase the
cost to the Fronting Bank or any Bank of issuing or maintaining any Letter of
Credit or participating therein then the Borrower shall pay to the Fronting Bank
or such Bank, upon written demand therefor to the Borrower from the Lead Agent,
such additional amounts as shall be required to compensate the Fronting Bank or
such Bank for such increased costs or reduction in amounts received or
receivable hereunder together with interest thereon at the Federal
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Funds Rate plus the Applicable Margin on Base Rate Loans at such time. The
amount specified in the written demand shall be conclusive in the absence of
demonstrable error.
(e) Borrower hereby agrees to protect, indemnify, pay and save
Fronting Bank harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees and disbursements) which Fronting Bank may incur or be subject
to as a result of (i) the issuance of the Letters of Credit, other than as a
result of the gross negligence or wilful misconduct of Fronting Bank or (ii) the
failure of Fronting Bank to honor a drawing under any Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or governmental authority (collectively,
"Governmental Acts"). As between Borrower or any Fronting Bank, Borrower assumes
all risks of the acts and omission of, or misuses of the Letters of Credit
issued by Fronting Bank by the beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, Fronting Bank shall not be
responsible (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of such Letters of Credit, even if it should in
fact prove to be in any and all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or insufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit unless such
noncompliance constitutes gross negligence or willful misconduct; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
message, by mail, cable, telegraph, telex, facsimile transmission, or otherwise;
(v) for errors in interpretation of any technical terms; (vi) for any loss or
delay in the transmission or otherwise of any documents required in order to
make a drawing under any such Letter of Credit or of the proceeds thereof; (vii)
for the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of such Letter of Credit; and (viii) for any consequence arising from
causes beyond the control of Fronting
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Bank including any Government Acts. None of the above shall affect, impair or
prevent the vesting of Fronting Bank's rights and powers hereunder. In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by Fronting Bank under or in
connection with the Letters of Credit issued by it or the related certificates,
if taken or omitted in good faith, shall not put Fronting Bank under any
resulting liability to Borrower.
(f) If Fronting Bank or the Lead Agent is required at any time,
pursuant to any bankruptcy, insolvency, liquidation or reorganization law or
otherwise, to return to Borrower any reimbursement by Borrower of any drawing
under any Letter of Credit, each Bank shall pay to Fronting Bank or the Lead
Agent, as the case may be, its share of such payment, but without interest
thereon unless Fronting Bank or the Lead Agent is required to pay interest on
such amounts to the person recovering such payment, in which case with interest
thereon, computed at the same rate, and on the same basis, as the interest that
Fronting Bank or the Lead Agent is required to pay.
SECTION 2.7. Method of Electing Interest Rates. (a) The Loans
included in each Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans or CD Loans as of any Euro-Dollar
Business Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or CD Loans or elect to continue such
Loans as Euro-Dollar Loans for an additional Interest Period, in each case
effective on the last day of the then current Interest Period applicable to such
Loans, or on such other date designated by Borrower in the Notice of Interest
Rate Election, provided Borrower shall pay any losses pursuant to Section 2.14;
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(iii) if such Loans are CD Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or Euro-Dollar Loans or elect to continue
such Loans as CD Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such Loans or
on such other date designated by Borrower in the Notice of Interest Rate
Election, provided Borrower shall pay any losses pursuant to Section 2.14.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Lead Agent at least three (3) Euro-Dollar Business Days
before the conversion or continuation selected in such notice is to be
effective. A Notice of Interest Rate Election may, if it so specifies, apply to
only a portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group, (ii) the portion to which such Notice applies, and the remaining
portion to which it does not apply, are each $500,000 or any larger multiple of
$100,000, (iii) there shall be no more than fifteen (15) Euro-Dollar Loans and
CD Loans outstanding at any time, (iv) no Loan may be continued as, or converted
into, a Euro-Dollar Loan or CD Loan when any Event of Default has occurred and
is continuing, and (v) no Interest Period shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or con- tinuation selected
in such notice is to be effective, which shall comply with the applicable clause
of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if such new Loans are Euro-Dollar Loans or CD Loans, the
duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro- Dollar Loans or
CD Loans for an additional Interest Period,
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the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Lead Agent shall notify the
Managing Co-Agent and each Bank the same day as it receives such Notice of
Interest Rate Election of the contents thereof, the interest rates determined
pursuant thereto and the Interest Periods (if different from those requested by
the Borrower) and such notice shall not thereafter be revocable by the Borrower.
If the Borrower fails to deliver a timely Notice of Interest Rate Election to
the Lead Agent for any Group of Euro-Dollar Loans or CD Loans, such Loans shall
be converted into Base Rate Loans on the last day of the then current Interest
Period applicable thereto.
(d) The Borrower may elect CD Loans only if Euro-Dollar Loans are
not available in accordance with Sections 8.2 or 8.3 hereof.
SECTION 2.8. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until the
date it is repaid or converted into a Euro-Dollar Loan or CD Loan pursuant to
Section 2.7 or at the Maturity Date, at a rate per annum equal to the Base Rate
plus the Applicable Margin for Base Rate Loans for such day. Such interest shall
be payable for each Interest Period on the last day thereof.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during the Interest Period applicable thereto, at a
rate per annum equal to the sum of the Applicable Margin for CD Loans for such
day plus the Adjusted CD Rate applicable to such Interest Period; provided that
if any CD Loan or any portion thereof shall, as a result of clause (2)(a) or
(2)(b)(i) of the definition of Interest Period, have an Interest Period of less
than one month, such portion shall bear interest during such Interest Period at
the rate applicable to Base Rate Loans during such period. Such interest shall
be
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payable for each Interest Period on the last day thereof, or if such Interest
Period is longer than one month, at intervals of 30 days after the first day
thereof.
The "Adjusted CD Rate" applicable to any Interest Period means
a rate per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate
of interest determined by the Lead Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from the CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective
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date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.3(d) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for
Euro-Dollar Loans for such day plus the Adjusted London Interbank Offered Rate
applicable to such Interest Period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than 30 days, at intervals of 30 days after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the London
Interbank Offered Rate applicable during such Interest Period by (ii) 1.00 minus
the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to the Euro-Dollar Reference Bank in the London interbank market at
approximately 11:00 a.m. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
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"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) Subject to Section 8.1, each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.8(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.3. Each Money Market Absolute
Rate Loan shall bear interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.3. Such interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than ninety days, at
intervals of ninety days after the first day thereof.
(e) In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of the
Loans, and, to the extent permitted by applicable law, overdue interest in
respect of all Loans, shall bear interest at the annual rate equal to the sum of
the Prime Rate and four percent (4%) (the "Default Rate").
(f) The Lead Agent shall determine each inter- est rate
applicable to the Loans hereunder. The Lead Agent shall give prompt notice to
the Borrower and the Banks of
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each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of demonstrable error. The Lead Agent shall send an
invoice to the Borrower setting forth the interest due at least five (5)
Domestic Business Days prior to any interest payment date, provided that failure
to do so shall not affect the Borrower's obligations hereunder to pay interest.
It is understood that the Borrower shall not be in Default under Section 6.1(a)
as to interest for so long as it shall pay in accordance with the provisions
hereof any amounts indicated on any such invoices or revised invoices.
(g) The Reference Bank agrees to use its best efforts to furnish
quotations to the Lead Agent as contemplated by this Section. If the Reference
Bank is not the Lead Agent and does not furnish a timely quotation, the
provisions of Section 8.1 shall apply.
SECTION 2.9. Fees.
(a) Facility Fee. The Borrower shall pay to the Lead Agent for
the account of the Banks ratably in proportion to their respective Commitments a
facility fee accruing at a rate per annum equal to the then applicable Facility
Fee Percentage on the amount of the Commitments, such fee being payable
quarterly in arrears. The Facility Fee shall be payable in arrears on each
January 1, April 1, July 1 and October 1 during the Term.
(b) Letter of Credit Fee. During the Term, but provided no Event
of Default shall have occurred and be continuing, Borrower shall pay to the Lead
Agent, for the account of the Banks in proportion to their interests in
respective undrawn issued Letters of Credit, a fee (the "Letter of Credit Fee")
in an amount equal to a rate per annum of the Applicable Margin for Euro-Dollar
Loans on the daily average of the amount undrawn and available under issued
Letters of Credit, which fee shall be payable, in arrears, on the first Domestic
Business Day of each January, April, July and October. From the occurrence and
during the continuance of an Event of Default, the Letter of Credit Fee shall be
increased to such Applicable Margin plus 4% per annum on the daily average of
such issued and undrawn Letters of Credit.
(c) Fees Non-Refundable. All fees set forth in
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this Section 2.8 shall be deemed to have been earned on the date payment is due
in accordance with the provisions hereof and shall be non-refundable. The
obligation of the Borrower to pay such fees in accordance with the provisions
hereof shall be binding upon the Borrower and shall inure to the benefit of the
Lead Agent, the Managing Co-Agent and the Banks regardless of whether any Loans
are actually made.
SECTION 2.10. Maturity Date.
The term (the "Term") of the Commitments shall terminate and
expire on October 8, 1999 (the "Maturity Date"). Upon the date of the
termination of the Term, any Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such date.
SECTION 2.11. Mandatory Prepayment.
(a) If as of the last day of any calendar quarter the LTV Ratio
exceeds the Permitted LTV Ratio, but the LTV Ratio is not greater than 60%, and
provided that no Event of Default has occurred and is continuing, Borrower shall
either (i) add additional Real Property Assets to the Unleveraged Assets within
ninety (90) days of the date the LTV Ratio exceeded the Permitted LTV Ratio, in
accordance with the provisions of Section 3.4, or (ii) pay to the Lead Agent,
for the account of the Banks, or pay to the holder(s) of any outstanding
Unsecured Debt, within 90 days of the date the LTV Ratio exceeded the Permitted
LTV Ratio, in each case in an amount such that the LTV Ratio subsequent to such
payment is in compliance with the Permitted LTV Ratio. In the event that the LTV
Ratio exceeds 60%, then Borrower shall, within five (5) Domestic Business Days
from the date the Permitted LTV Ratio is exceeded, pay to the Lead Agent, for
the account of the Banks, or pay to the holder(s) of any outstanding Unsecured
Debt, an amount such that the LTV Ratio subsequent to such payment is in
compliance with the Permitted LTV Ratio.
(b) Borrower shall not sell or release an Unleveraged Asset
unless after giving effect to such sale or release, either (i) Borrower shall
remain in compliance with the provisions hereof, including without limitation,
the provisions of Section 5.8, or (ii) prepay an amount at least equal to, the
greater of (x) the amount required such that the LTV Ratio remains in compliance
with the Permitted LTV
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Ratio and the Unleveraged Assets Minimum Debt Service Coverage after such sale
or release calculated on a pro forma basis (i.e., calculated as though the
contemplated transaction has occurred as of the date four (4) quarters
previously), and (y) the amount required such that the Loans, on a pro forma
basis (i.e., calculated as though the contemplated transaction had occurred as
of the date four (4) quarters previously), remain in compliance with the
requirements of Section 5.8.
(c) In the event that the Unleveraged Assets Minimum Debt Service
Coverage is not maintained as of the last day of a calendar quarter, the
Borrower will either (i) add a New Acquisition or a Real Property Asset to the
Unleveraged Assets in accordance with Section 3.3 which, on a pro forma basis
(i.e. the Unleveraged Assets Minimum Debt Service Coverage shall be recalculated
to include such New Acquisition or Real Property Asset as though the same had
been a Unleveraged Asset for the entire applicable period) would result in
compliance with the Unleveraged Assets Minimum Debt Service Coverage, or (ii)
prepay an amount necessary to cause the Unleveraged Assets Minimum Debt Service
Coverage to be in compliance. Failure by the Borrower to comply with the
Unleveraged Assets Minimum Debt Service Coverage within 90 days of the date of
such non-compliance shall be an Event of Default.
SECTION 2.12. Optional Prepayments.
(a) The Borrower may, upon at least one (1) Domestic Business
Day's notice to the Lead Agent, prepay any Base Rate Borrowing in whole at any
time, or from time to time in part in amounts aggregating One Million Dollars
($1,000,000) or any larger multiple of One Hundred Thousand Dollars ($100,000),
by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such
Borrowing.
(b) The Borrower may, upon at least three (3) Euro-Dollar
Business Days' notice to the Lead Agent, prepay any Euro-Dollar Loan or CD Loan
as of the last day of the Interest Period applicable thereto. Except as provided
in Article VIII, the Borrower may not prepay all or any portion of the principal
amount of any Euro-Dollar Loan or CD Loan
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prior to the end of the Interest Period applicable thereto unless the Borrower
shall also pay any applicable expenses pursuant to Section 2.14. Any such
prepayment shall be upon at least three (3) Euro-Dollar Business Days notice to
the Lead Agent. The Lead Agent shall notify the Borrower of any amounts due
pursuant to Section 2.14 in connection with such prepayment within two (2)
Euro-Dollar Business Days after receipt of such notice from the Borrower (but
subject to the right to submit subsequently a corrected statement). Each such
optional prepayment shall be in the amounts set forth in Section 2.12(a) above
and shall be applied to prepay ratably the Loans of the Banks included.
(c) The Borrower may not prepay any Money Market Loan.
(d) The Borrower may at any time and from time to time cancel all
or any part of the Commitments by the delivery to the Lead Agent of a notice of
cancellation within the applicable time periods set forth in Sections 2.12(a)
and (b) if there are Loans then outstanding or, if there are no Loans
outstanding at such time as to which the Commitments with respect thereto are
being cancelled, upon at least one (1) Domestic Business Day's notice to the
Lead Agent, whereupon, in either event, all or such portion of the Commitments,
as applicable, shall terminate as to the Banks, pro rata on the date set forth
in such notice of cancellation, and, if there are any Loans then outstanding,
Borrower shall prepay, as applicable, all or such portion of Loans outstanding
on such date in accordance with the requirements of Section 2.12(a) and (b).
Borrower shall be permitted to designate in its notice of cancellation which
Loans, if any, are to be prepaid. In no event shall Borrower be permitted to
cancel Commitments for which a Letter of Credit has been issued and is
outstanding unless Borrower returns such Letter of Credit to the applicable
Fronting Bank.
(e) The Borrower may, upon at least one Domestic Business Day's
notice to the Lead Agent (by 11:00 a.m. New York time of such Domestic Business
Day), reimburse the Lead Agent on behalf of the appropriate Fronting Bank for
the amount of any drawing under a Letter of Credit in whole or in part in any
amount.
(f) The Borrower may at any time return any
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undrawn Letters of Credit to the Fronting Bank in whole, but not in part, and
the Fronting Bank shall promptly cancel such returned Letters of Credit and give
the Borrower, the Lead Agent and each of the Banks notice of such cancellation.
(g) Upon receipt of a notice of prepayment or cancellation or a
return of a Letter of Credit pursuant to this Section, the Lead Agent shall
promptly notify the Managing Co-Agent and each Bank of the contents thereof and
of such Bank's ratable share (if any) of such prepayment or cancellation and
such notice shall not thereafter be revoca- ble by the Borrower.
(h) Any amounts so prepaid pursuant to Section 2.12(a) or (b) may
be reborrowed. In the event Borrower elects to cancel all or any portion of the
Commitments pursuant to Section 2.12(d) hereof, such amounts may not be
reborrowed.
SECTION 2.13. General Provisions as to Payments.
(a) The Borrower shall make each payment of interest on the Loans
and of fees hereunder, not later than 12:00 Noon (New York City time) on the
date when due, in Federal or other funds immediately available in New York City,
to the Lead Agent at its address referred to in Section 9.1. The Lead Agent will
promptly (and in any event within one (1) Domestic Business Day after receipt
thereof) distribute to each Bank its ratable share of each such payment received
by the Lead Agent for the account of the Banks. Whenever any payment of
principal of, or interest on the Base Rate Loans or CD Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
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(b) Unless the Lead Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Lead Agent may assume
that the Borrower has made such payment in full to the Lead Agent on such date
and the Lead Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent that the Borrower shall not have so made such
payment, each Bank shall repay to the Lead Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Lead Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any payment
of principal with respect to any Euro-Dollar Loan or CD Loan (pursuant to
Article II, VI or VIII or otherwise) on any day other than the last day of the
Interest Period applicable thereto, or if the Borrower fails to borrow any
Euro-Dollar Loans or CD Loan after notice has been given to any Bank in
accordance with Section 2.4(a), or if Borrower shall deliver a Notice of
Interest Rate Election specifying that a Euro-Dollar Loan or CD Loan shall be
converted on a date other than the first (lst) day of the then current Interest
Period applicable thereto, the Borrower shall reimburse each Bank within 15 days
after certification of such Bank of such loss or expense (which shall be
delivered by each such Bank to Lead Agent for delivery to Borrower) for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow, provided that such Bank shall have delivered to Lead Agent and Lead
Agent shall have delivered to the Borrower a certification as to the amount of
such loss or expense, which certification shall set forth the basis for such
loss or expense and shall be conclusive in the absence of demonstrable error.
SECTION 2.15. Computation of Interest and Fees. Interest based on
the Prime Rate or Federal Funds Rate hereunder shall be computed on the basis of
a year of 365
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days (or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.16. Use of Proceeds. The Borrower shall use the
proceeds of the Loans for general corporate purposes, including, without
limitation, for the repayment of any Debt of the Borrower or of any of its
Consolidated Subsidiaries, as well as for the acquisition, financing and
improvement of Real Property Assets intended to be used in the Borrower's
existing business and the Unleveraged Assets and for general working capital
needs of the Borrower.
SECTION 2.17. Letter of Credit Usage Absolute. The obligations of
the Borrower under this Agreement in respect of any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement (as the same may be amended from time to time) and such
other agreement or instrument under all circumstances, including, without
limitation, to the extent permitted by law, the following circumstances:
(a) any lack of validity or enforceability of any Letter of
Credit or any other agreement or instrument relating thereto (collectively, the
"Letter of Credit Documents") or any Loan Document;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Borrower in respect of
the Letters of Credit or any other amendment or waiver of or any consent by the
Borrower to departure from all or any of the Letter of Credit Documents or any
Loan Document, provided that no Fronting Bank shall consent to any such change
or amendment unless previously consented to in writing by the Borrower;
(c) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the obligations of the Borrower in respect of the Letters of
Credit;
(d) the existence of any claim, set-off, defense or
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other right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Lead Agent, the Managing
Co-Agent or any Bank (other than a defense based on the gross negligence or
wilful misconduct of the Lead Agent, the Managing Co-Agent, Fronting Bank or
such Bank) or any other Person, whether in connection with the Loan Documents,
the transactions contemplated hereby or by the Letters of Credit Documents or
any unrelated transaction;
(e) any draft or any other document presented under or in
connection with any Letter of Credit or other Loan Document proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; provided that payment by the
Fronting Bank under such Letter of Credit against presentation of such draft or
document shall not have constituted gross negligence or wilful misconduct of the
Fronting Bank;
(f) payment by the Fronting Bank against presentation of a draft
or certificate that does not comply with the terms of the Letter of Credit;
provided that such payment shall not have constituted gross negligence or wilful
misconduct of the Fronting Bank; and
(g) any other circumstance or happening whatsoever other than the
payment in full of all obligations hereunder in respect of any Letter of Credit
or any agreement or instrument relating to any Letter of Credit, whether or not
similar to any of the foregoing, that might otherwise constitute a defense
available to, or a discharge of, the Borrower; provided that such other
circumstance or happening shall not have been the result of gross negligence or
wilful misconduct of the Fronting Bank or any issuing Bank.
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ARTICLE III
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the
date (the "Current Closing Date") when each of the following conditions is
satisfied (or waived by the Lead Agent and the Banks), each document to be dated
the Current Closing Date unless otherwise indicated:
(a) the Borrower shall have executed and delivered to the Lead
Agent a Note for the account of each Bank dated on or before the Current Closing
Date complying with the provisions of Section 2.5 (and upon receipt of same, the
"Notes" delivered pursuant to the First Amended Credit Agreement shall be
returned to Borrower);
(b) the Borrower, the Lead Agent and Managing Co-Agent and each
of the Banks shall have executed and delivered to the Borrower, the Lead Agent
and Managing Co-Agent a duly executed original of this Agreement;
(c) the Lead Agent shall have received an opinion of counsel for
the Borrower, acceptable to the Lead Agent, the Managing Co-Agent, the Banks and
their counsel;
(d) the Lead Agent shall have received all documents the Lead
Agent may reasonably request relating to the existence of the Borrower, the
authority for and the validity of this Agreement and the other Loan Documents,
and any other matters relevant hereto, all in form and substance satisfactory to
the Lead Agent. Such documentation shall include, without limitation, the
articles of incorporation of the Borrower, as amended, modified or supplemented
to the Current Closing Date, certified to be true, correct and complete by a
senior officer of the Borrower as of a date not more than ten (10) days prior to
the Current Closing Date, together with a good standing certificate as to the
Borrower from the Secretary of State (or the equivalent thereof) of Maryland,
each to be dated not more than thirty (30) days prior to the Current Closing
Date;
(e) the Lead Agent shall have received all certificates,
agreements and other documents and papers
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referred to in this Section 3.1 and the Notice of Borrowing referred to in
Section 3.2, if applicable, unless otherwise specified, in sufficient
counterparts, satisfactory in form and substance to the Lead Agent in its sole
discretion;
(f) the Borrower shall have taken all actions required to
authorize the execution and delivery of this Agreement and the other Loan
Documents and the performance thereof by the Borrower;
(g) the Lead Agent shall be satisfied that neither the Borrower
nor any Consolidated Subsidiary is subject to any present or contingent
environmental liability which could have a Material Adverse Effect;
(h) the Lead Agent shall have received wire transfer instructions
in connection with the Loans, if any, to be made on the Current Closing Date;
(i) the Lead Agent shall have received, for its and any other
Bank's account, all fees due and payable pursuant to Section 2.9 hereof on or
before the Current Closing Date, and the fees and expenses accrued through the
Current Closing Date of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP;
(j) the Lead Agent shall have received copies of all consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by the Borrower and the applicable Consolidated
Subsidiaries, and the validity and enforceability, of the Loan Documents, or in
connection with any of the transactions contemplated thereby, and such consents,
licenses and approvals shall be in full force and effect;
(k) the Lead Agent shall have received the audited financial
statements of the Borrower and its Consolidated Subsidiaries for the fiscal year
ending December 31, 1996; and
(l) no "Default" or "Event of Default" (as such terms are defined
in the Original Credit Agreement) shall have occurred and be continuing under
the Original Credit Agreement.
SECTION 3.2. Borrowings. The obligation of any
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Bank to make a Loan or to participate in any Letter of Credit issued by the
Fronting Bank and the obligation of the Fronting Bank to issue a Letter of
Credit is subject to the satisfaction of the following conditions (as reasonably
determined by the Lead Agent; it being agreed that the Lead Agent shall notify
the Banks of any condition that it intends to waive):
(a) the Current Closing Date shall have occurred on or prior to
April 30, 1997;
(b) receipt by the Lead Agent of a Notice of Borrowing as
required by Section 2.2 and 2.4 or 2.3;
(c) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans and the Letter of Credit Usage will not exceed the
aggregate amount of the Total Available Commitments and with respect to each
Bank, such Bank's pro rata portion of the Committed Loans and the Letter of
Credit Usage will not exceed such Bank's Commitment;
(d) immediately before and after such Borrowing, no Default or
Event of Default shall have occurred and be continuing both before and after
giving effect to the making of such Loans or issuing of such Letters of Credit;
(e) the representations and warranties of the Borrower contained
in this Agreement shall be true and correct in all material respects on and as
of the date of such Borrowing both before and after giving effect to the making
of such Loans;
(f) no law or regulation shall have been adopted, no order,
judgment or decree of any governmental authority shall have been issued, and no
litigation shall be pending, which does or seeks to enjoin, prohibit or
restrain, the making or repayment of the Loans, the issuance of any Letter of
Credit or any participations therein or the consummation of the transactions
contemplated by this Agreement;
(g) no event, act or condition shall have occurred after the
Current Closing Date which, in the reasonable judgment of the Lead Agent or the
Required Banks,
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as the case may be, has had or is likely to have a Material Adverse Effect; and
(h) immediately after such Borrowing or issuance of such Letter
of Credit, the aggregate outstanding undrawn issued Letters of Credit shall not
exceed Thirty Million Dollars ($30,000,000).
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(c), (d), (e), (f), and (g) (to the extent that Borrower is or should have been
aware of any Material Adverse Effect) of this Section, except as otherwise
disclosed in writing by Borrower to the Banks. Notwithstanding anything to the
contrary, no Borrowing shall be permitted if such Borrowing would cause Borrower
to fail to be in compliance with any of the covenants contained in this
Agreement or in any of the other Loan Documents.
SECTION 3.3. New Acquisitions and Additional Real Property
Assets. In the event Borrower shall acquire one or more New Acquisitions, each
such New Acquisition may be added to the Unleveraged Assets upon written notice
from Borrower to the Lead Agent specifying that such New Acquisition has been
acquired and setting forth with respect to such New Acquisition, the same
information currently set forth in Exhibit C with respect to each Unleveraged
Asset listed thereon and provided that the same shall comply in all respects
with the provisions hereof (including Section 5.16). In addition, any Real
Property Asset may be added to the Unleveraged Assets upon written notice from
the Borrower to the Lead Agent, provided that, as of the date of such notice,
such Real Property Asset shall satisfy the criteria set forth in Section 5.16
with respect to New Acquisitions, and provided further that such notice shall
contain the same information with respect to such Real Property Asset as is
currently set forth in Exhibit C with respect to each Unleveraged Asset listed
thereon and provided that the same shall comply in all respects with the
provisions hereof. Borrower may deliver any such notice to the Lead Agent
simultaneously with the delivery of any Notice of Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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In order to induce the Lead Agent, Managing Co-Agent and each of
the other Banks which is or may become a party to this Agreement to make the
Loans, the Borrower makes the following representations and warranties as of the
Current Closing Date. Such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the other Loan
Documents and the making of the Loans.
SECTION 4.1. Existence and Power. The Borrower is a corporation,
duly formed, validly existing and in good standing as a corporation under the
laws of Maryland and has all powers and all material governmental licenses,
authorizations, consents and approvals required to own its property and assets
and carry on its business as now conducted or as it presently proposes to
conduct and has been duly qualified and is in good standing in every
jurisdiction in which the failure to be so qualified and/or in good standing is
likely to have a Material Adverse Effect.
SECTION 4.2. Power and Authority. The Borrower has the corporate
power and authority to execute, deliver and carry out the terms and provisions
of each of the Loan Documents to which it is a party and has taken all necessary
corporate action to authorize the execution and delivery on behalf of the
Borrower and the performance by the Borrower of such Loan Documents. The
Borrower has duly executed and delivered each Loan Document to which it is a
party in accordance with the terms of this Agreement, and each such Loan
Document constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable insolvency, bankruptcy or other laws affecting creditors
rights generally, or general principles of equity, whether such enforceability
is considered in a proceeding in equity or at law.
SECTION 4.3. No Violation. Neither the execu- tion, delivery or
performance by or on behalf of the Borrower of the Loan Documents to which it is
a party, nor compliance by the Borrower with the terms and provisions thereof
nor the consummation of the transactions contemplated by the Loan Documents, (i)
will materially contravene any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court
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or governmental instrumentality or (ii) will materially conflict with or result
in any breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
the Borrower or any of its Consolidated Subsidiaries pursuant to the terms of
any indenture, mortgage, deed of trust, or other agreement or other instrument
to which the Borrower (or of any partnership of which the Borrower is a partner)
or any of its Consolidated Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it is subject, or (iii) will cause a
material default by the Borrower under any organizational document of any Person
in which the Borrower has an interest, or cause a material default under the
Borrower's articles of incorporation or by laws.
SECTION 4.4. Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries dated as of December 31, 1996 and the related
consolidated statements of Borrower's financial position for the fiscal year
then ended, reported on by Coopers & Xxxxxxx LLP and set forth in the Borrower's
1996 Form 10-K, a copy of which has been delivered to each of the Banks, fairly
present, in conformity with GAAP, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year. (b)
Since [December 31, 1996], (i) except as may have been disclosed in writing to
the Banks, nothing has occurred having a Material Adverse Effect, and (ii)
except as previously disclosed to the Banks, the Borrower has not incurred any
material indebtedness or guaranty.
SECTION 4.5. Litigation. Except as previously disclosed by the
Borrower in writing to the Banks, there is no action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened against or affecting,
(i) the Borrower or any of its Consolidated Subsidiaries, (ii) the Loan
Documents or any of the transactions contemplated by the Loan Documents or (iii)
any of its assets, before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable
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possibility of an adverse decision which could, individually, or in the
aggregate have a Material Adverse Effect or which in any manner draws into
question the validity of this Agreement or the other Loan Documents.
SECTION 4.6. Compliance with ERISA. (a) Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of ERISA
and the Code with respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and the Code with
respect to each Plan. No member of the ERISA Group has (i) sought a waiver of
the minimum funding standard under Section 412 of the Code in respect of any
Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Code or (iii) incurred any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA.
(b) The transactions contemplated by the Loan Documents will not
constitute a nonexempt prohibited transaction (as such term is defined in
Section 4975 of the Code or Section 406 of ERISA) that could subject the Lead
Agent, Managing Co-Agent or the Banks to any tax or penalty or prohibited
transactions imposed under Section 4975 of the Code or Section 502(i) of ERISA.
SECTION 4.7. Environmental Matters. In the ordinary course of its
business, the Borrower conducts periodic reviews of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Consolidated Subsidiaries, including without limitation the Real Property
Assets, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently owned, any
capital or operating expenditures required to achieve or maintain compliance
with environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
and any actual or potential liabilities to third parties, including employees,
and any related costs and expenses). On the basis of this review, the Borrower
has
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reasonably concluded that such associated liabilities and costs, including
the costs of compliance with Environmental Laws, are unlikely to have a Material
Adverse Effect on the Borrower and its Consolidated Subsidiaries.
SECTION 4.8. Taxes. United States Federal income tax returns of
the Borrower and its Consolidated Subsidiaries have been prepared and filed
through the fiscal year ended December 31, 1995. The Borrower and its
Consolidated Subsidiaries have filed all United States Federal income tax
returns and all other material tax returns which are required to be filed by
them and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Consolidated Subsidiary. The charges,
accruals and reserves on the books of the Borrower and its Consolidated
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 4.9. Full Disclosure. All information heretofore
furnished by the Borrower to the Lead Agent, Managing Co-Agent or any Bank for
purposes of or in connection with this Agreement or the Original Credit
Agreement or any transaction contemplated hereby or thereby is true and accurate
in all material respects on the date as of which such information is stated or
certified. The Borrower has disclosed to the Lead Agent, Managing Co-Agent and
the Banks in writing any and all facts which have or may have (to the extent the
Borrower can now reasonably foresee) a Material Adverse Effect.
SECTION 4.10. Solvency. On the Current Closing Date and after
giving effect to the transactions contemplated by the Loan Documents occurring
on the Current Closing Date, the Borrower will be Solvent.
SECTION 4.11. Use of Proceeds; Margin Regula- tions. All proceeds
of the Loans will be used by the Borrower only in accordance with the provisions
hereof. No part of the proceeds of any Loan will be used by the Borrower to
purchase or carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock. Neither the making of any Loan nor
the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulations G, T, U or X of the Federal Reserve Board.
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SECTION 4.12. Governmental Approvals. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with the execution, delivery and performance of any Loan Document
or the consummation of any of the transactions contemplated thereby other than
those that have already been duly made or obtained and remain in full force and
effect or those which, if not made or obtained, would not have a Material
Adverse Effect;
SECTION 4.13. Investment Company Act; Public Utility Holding
Company Act. Neither the Borrower nor any Consolidated Subsidiary is (x) an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, (y) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
SECTION 4.14. Principal Offices. As of the Current Closing Date,
the principal office, chief executive office and principal place of business of
the Borrower is Four Embarcadero Center, Suite 3150, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000.
SECTION 4.15. REIT Status. For the fiscal year ended December 31,
1996, the Borrower qualified and the Borrower intends to continue to qualify as
a real estate investment trust under the Code.
SECTION 4.16. Patents, Trademarks, etc. The Borrower has obtained
and holds in full force and effect all patents, trademarks, servicemarks, trade
names, copyrights and other such rights, free from burdensome restrictions,
which are necessary for the operation of its business as presently conducted,
the impairment of which is likely to have a Material Adverse Effect.
SECTION 4.17. Ownership of Property. Schedule
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4.17 attached hereto and made a part hereof sets forth all the real property
owned or leased by the Borrower and Persons in which the Borrower, directly or
indirectly, owns an interest as of the Current Closing Date. As of the Current
Closing Date, the Borrower and such Persons have good and insurable fee simple
title (or leasehold title if so designated on Schedule 4.17) to all of such real
property, subject to customary encumbrances and liens as of the date of this
Agreement. As of the date of this Agreement, there are no mortgages, deeds of
trust, indentures, debt instruments or other agreements creating a Lien against
any of the Real Property Assets except as disclosed on Schedule 4.17.
SECTION 4.18. No Default. No Event of Default or, to the best of
the Borrower's knowledge, Default exists under or with respect to any Loan
Document and the Borrower is not in default in any material respect beyond any
applicable grace period under or with respect to any other material agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound in any respect, the existence of which default is likely to
result in a Material Adverse Effect.
SECTION 4.19. Licenses, etc. The Borrower has obtained and does
hold in full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditation, easements, rights of way and
other consents and approvals which are necessary for the operation of its
businesses as presently conducted, the absence of which is likely to have a
Material Adverse Effect.
SECTION 4.20. Compliance With Law. The Borrower and each of the
Real Property Assets are in compliance with all laws, rules, regulations,
orders, judgments, writs and decrees, including, without limitation, all
building and zoning ordinances and codes, the failure to comply with which is
likely to have a Material Adverse Effect.
SECTION 4.21. No Burdensome Restrictions. Except as may have been
disclosed by the Borrower in writing to the Banks, Borrower is not a party to
any agreement or instrument or subject to any other obligation or any charter or
corporate or partnership restriction, as the case may be, which, individually or
in the aggregate, is likely to have a
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Material Adverse Effect.
SECTION 4.22. Brokers' Fees. The Borrower has not dealt with any
broker or finder with respect to the transactions contemplated by this Agreement
or otherwise in connection with this Agreement, and the Borrower has not done
any act, had any negotiations or conversation, or made any agreements or
promises which will in any way create or give rise to any obligation or
liability for the payment by the Borrower of any brokerage fee, charge,
commission or other compensation to any party with respect to the transactions
contemplated by the Loan Documents, other than the fees payable to the Lead
Agent, the Managing Co-Agent and the Banks, and certain other Persons as
previously disclosed in writing to the Lead Agent.
SECTION 4.23. Labor Matters. There are no collective bargaining
agreements or Multiemployer Plans covering the employees of the Borrower and the
Borrower has not suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five years.
SECTION 4.24. Insurance. The Borrower currently maintains, or, if
the Borrower does not maintain, then it will cause its tenants to maintain,
insurance at 100% replacement cost insurance coverage (subject to customary
deductibles) in respect of each of the Real Property Assets, as well as
commercial general liability insurance (including "builders' risk") against
claims for personal, and bodily injury and/or death, to one or more persons, or
property damage, as well as workers' compensation insurance, in each case with
respect to liability and casualty insurance with insurers having an A.M. Best
policyholders' rating of not less than A-IX in amounts that prudent owner of
assets such as the Real Property Assets would maintain.
SECTION 4.25. Organizational Documents. The documents delivered
pursuant to Section 3.1(d) constitute, as of the Current Closing Date, all of
the organizational documents (together with all amendments and modifications
thereof) of the Borrower. The Borrower represents that it has delivered to the
Lead Agent true, correct and complete copies of each of the documents set forth
in this Section 4.25.
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ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has
any Commitment hereunder or any Obligations remain unpaid:
SECTION 5.1. Information. The Borrower will deliver to each of
the Banks:
(a) as soon as available and in any event within five (5)
Domestic Business Days after the same is required to be filed with the
Securities and Exchange Commission (but in no event later than 120 days after
the end of each fiscal year of the Borrower) a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of Borrower's financial position for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the Securities
and Exchange Commission and reported on by Coopers & Xxxxxxx LLP or other
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within five (5)
Domestic Business Days after the same is required to be filed with the
Securities and Exchange Commission (but in no event later than 75 days after the
end of each of the first three quarters of each fiscal year of the Borrower),
(i) a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of Borrower's financial position for such quarter and for the portion
of the Borrower's fiscal year ended at the end of such quarter, setting forth in
the case of such Borrower's financial position in comparative form the figures
for the corresponding quarter and the corresponding portion of the Borrower's
previous fiscal year, and (ii) and such other information reasonably requested
by the Lead Agent and Managing Co-Agent or any Bank;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and
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(b) above, a certificate of the chief financial officer or the chief accounting
officer of the Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Section 5.8 on the date of such financial statements; (ii)
stating whether, to such officer's knowledge, any Default exists on the date of
such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto; and (iii) certifying (x) that such financial statements fairly
present the financial condition and the results of operations of the Borrower on
the dates and for the periods indicated, on the basis of GAAP, with respect to
the Borrower subject, in the case of interim financial statements, to normally
recurring year-end adjustments, and (y) that such officer has reviewed the terms
of the Loan Documents and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the business and condition of the
Borrower during the period beginning on the date through which the last such
review was made pursuant to this Section 5.1(c) (or, in the case of the first
certification pursuant to this Section 5.1(c), the Current Closing Date) and
ending on a date not more than ten (10) Domestic Business Days prior to the date
of such delivery and that (1) on the basis of such financial statements and such
review of the Loan Documents, no Event of Default existed under Section 6.1(b)
with respect to Sections 5.8 and 5.9 at or as of the date of said financial
statements, and (2) on the basis of such review of the Loan Documents and the
business and condition of the Borrower, to the best knowledge of such officer,
no Default or Event of Default under any other provision of Section 6.1 occurred
or, if any such Default or Event of Default has occurred, specifying the nature
and extent thereof and, if continuing, the action the Borrower proposes to take
in respect thereof and (3) no event has occurred which would give rise to a
mandatory prepayment pursuant to Section 2.11 hereof. Such certificate shall set
forth the calculations required to establish the matters described in clauses
(1) and (3) above;
(d) (i) within five (5) Domestic Business Days after any officer
of the Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer, the chief accounting
officer, controller, or other executive officer of the
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Borrower setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto; and (ii) promptly and in any
event within five (5) Domestic Business Days after the Borrower obtains
knowledge thereof, notice of (x) any litigation or governmental proceeding
pending or threatened against the Borrower or the Real Property Assets as to
which there is a reasonable possibility of an adverse determination and which,
if adversely determined, is likely to individually or in the aggregate, result
in a Material Adverse Effect, (y) any other event, act or condition which is
likely to result in a Material Adverse Effect, and (z) any event giving rise to
a mandatory prepayment pursuant to Section 2.11;
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all xxxxx- cial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) (other than the exhibits thereto, which exhibits will be provided
upon request therefor by any Bank) which the Borrower shall have filed with the
Securities and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice of intent
to terminate any
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Plan under Section 4041(c) of ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment
or contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security, a certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth details as to such occurrence
and action, if any, which the Borrower or applicable member of the ERISA Group
is required or proposes to take;
(h) promptly and in any event within five (5) Domestic Business
Days after the Borrower obtains actual knowledge of any of the following events,
a certificate of the Borrower, executed by an officer of the Borrower,
specifying the nature of such condition, and the Borrower's or, if the Borrower
has actual knowledge thereof, the Environmental Affiliate's proposed initial
response thereto: (i) the receipt by the Borrower, or, if the Borrower has
actual knowledge thereof, any of the Environmental Affiliates of any
communication (written or oral), whether from a governmental authority, citizens
group, employee or otherwise, that alleges that the Borrower, or, if the
Borrower has actual knowledge thereof, any of the Environmental Affiliates, is
not in compliance with applicable Environmental Laws, and such noncompliance is
likely to have a Material Adverse Effect, (ii) the Borrower shall obtain actual
knowledge that there exists any Environmental Claim pending against the Borrower
or any Environmental Affiliate and such Environmental Claim is likely to have a
Material Adverse Effect or (iii) the Borrower obtains actual knowledge of any
release, emission, discharge or disposal of any Material of Environmental
Concern that is likely to form the basis of any Environmental Claim against the
Borrower or any Environmental Affiliate which in any such event is likely to
have a Material Adverse Effect;
(i) promptly and in any event within five (5) Domestic Business
Days after receipt of any material notices or correspondence from any company or
agent for any company providing insurance coverage to the Borrower relating to
any loss in excess of $1,500,000 of the Borrower, copies of such notices and
correspondence;
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(j) simultaneously with delivery of the certificate required
pursuant to Section 5.1(c), an updated Schedule 4.17, certified by the chief
financial officer or any senior vice president or executive vice president of
the Borrower as true, correct and complete as of the date such updated schedules
are delivered;
(k) within five (5) days after filing of the annual income tax
return with the Internal Revenue Service, evidence reasonably satisfactory to
the Lead Agent that the Borrower continues to qualify as a real estate
investment trust under the Internal Revenue Code;
(l) simultaneously with delivery of the information required by
Sections 5.1(a) and (b), a statement of Unleveraged Asset Net Operating Cash
Flow with respect to each Unleveraged Asset and a list of all Unleveraged Assets
and all other Real Property Assets and Minority Holdings;
(m) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the Lead
Agent, at the request of any Bank, may reasonably request in writing; and
(n) promptly after request therefor by any Bank, copies of
insurance certificates with respect to each Unleveraged Asset.
SECTION 5.2. Payment of Obligations. The Borrower and its
Consolidated Subsidiaries will pay and discharge, at or before maturity, all its
respective material obligations and liabilities including, without limitation,
any obligation pursuant to any agreement by which it or any of its properties is
bound and any liabilities, except where such liabilities may be contested in
good faith by appropriate proceedings, and will maintain in accordance with
GAAP, appropriate reserves for the accrual of any of the same.
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SECTION 5.3. Maintenance of Property; Insurance; Leases.
(a) The Borrower will keep, and will cause each Consolidated
Subsidiary to keep, all property useful and necessary in its business, including
without limitation the Real Property Assets (for so long as it constitutes Real
Property Assets), in good repair, working order and condition, or shall take all
reasonable steps to cause the tenant of such Real Property Asset to perform its
maintenance obligation under its lease, ordinary wear and tear excepted.
(b) The Borrower shall maintain, or cause to be maintained,
insurance comparable to that described in Section 4.24 hereof with insurers
meeting the qualifications described therein, which insurance shall in any event
not provide for less coverage than insurance customarily carried by owners of
properties similar to, and in the same locations as, the Real Property Assets,
and (b) furnish to each Bank from time to time, upon written request,
certificates of insurance and such other information relating to such insurance
as such Bank may reasonably request. The Borrower will deliver to the Banks (i)
on the date of the first Borrowing hereunder, a certificate dated such date
showing the amount of coverage as of such date, (ii) upon request of any Bank
through the Lead Agent from time to time full information as to the insurance
carried, (iii) within five (5) days of receipt of notice from any insurer a copy
of any notice of cancellation or material change in coverage from that existing
on the date of this Agreement and (iv) forthwith, notice of any cancellation or
nonrenewal of coverage by the Borrower.
(c) The Borrower will not, and will not permit any of its
Consolidated Subsidiaries to amend, modify or terminate any lease with respect
to any Unleveraged Asset, without prior written notice to the Lead Agent, if, in
the Borrower's reasonable judgment, such amendment, modification or termination
would result in a decrease of two percent (2%) or more in the Unleveraged Assets
Value at the time. The Lead Agent promptly shall notify the Banks of any such
consent given by the Lead Agent.
SECTION 5.4. Conduct of Business and Maintenance of Existence.
The Borrower will continue to engage in business of the same general type as now
conducted
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by the Borrower, and will preserve, renew and keep in full force and effect, its
corporate existence and its respective rights, privileges and franchises
necessary for the normal conduct of business.
SECTION 5.5. Compliance with Laws. The Borrower will comply in
all material respects with all applicable laws, ordinances, rules, regulations,
and requirements of governmental authorities (including, without limitation,
Environmental Laws, and all zoning and building codes with respect to the Real
Property Assets and ERISA and the rules and regulations thereunder and all
federal securities laws) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings.
SECTION 5.6. Inspection of Property, Books and Records. The
Borrower will keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities; and will permit representatives of any Bank at such
Bank's expense to visit and inspect any of its properties, including without
limitation the Real Property Assets, to examine and make abstracts from any of
its books and records and to discuss its affairs, finances and accounts with its
officers and independent public accountants, all at such reasonable times, upon
reasonable prior notice and as often as may reasonably be desired.
SECTION 5.7. Existence. The Borrower shall do or cause to be
done, all things necessary to preserve and keep in full force and effect its and
its Consolidated Subsidiaries' existence and its patents, trademarks,
servicemarks, tradenames, copyrights, franchises, licenses, permits,
certificates, authorizations, qualifications, accreditation, easements, rights
of way and other rights, consents and approvals the nonexistence of which is
likely to have a Material Adverse Effect.
SECTION 5.8. Financial Covenants.
(a) Debt Service Coverage. Measured as of the last day of each
calendar quarter, the ratio of Annual EBITDA to Total Debt Service will not be
less than 2.0:1.
(b) Maximum Debt to Tangible FMV Net Worth. As
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of the last day of each calendar quarter, the Maximum Total Debt Ratio will be
less than 1.0:1.
(c) EBITDA Coverage. As of the last day of each calendar quarter,
the ratio of (x) Annual EBITDA to (y) the sum of (i) total dividends paid by the
Borrower for the last four consecutive quarters, plus (ii) Total Debt Service,
will not be less than 1.0:1.
(d) Dividends. The Borrower will not, as determined on an
aggregate annual basis, pay any dividends in excess of 95% of the Borrower's FFO
for such year. During the continuance of a monetary Event of Default, Borrower
shall only pay those dividends necessary to maintain its status as a real estate
investment trust.
(e) Minimum Consolidated Tangible Net Worth. Consolidated
Tangible Net Worth of the Borrower and its Consolidated Subsidiaries will at no
time be less than $320,000,000.
(f) LTV Ratio. At no time shall the LTV Ratio exceed the
Permitted LTV Ratio, subject, however, to the Borrower's rights to cure pursuant
to Section 2.11(a). Failure to restore compliance with this Section 5.8(f) in
accordance with Section 2.11(a) shall be an immediate Event of Default.
(g) Unleveraged Assets Minimum Debt Service Coverage. As of the
last day of each calendar quarter, the Borrower shall be in compliance with the
Unleveraged Assets Minimum Debt Service Coverage, subject, however, to the
Borrower's rights to cure pursuant to Section 2.11(c). Failure to restore
compliance with this Section 5.8(g) in accordance with Section 2.11(c) shall be
an immediate Event of Default.
SECTION 5.9. Restriction on Fundamental Changes. (a) The
Borrower shall not enter into any merger or consolidation, unless (i) the
Borrower is the surviving entity, (ii) the entity which is merged into Borrower
is predominantly in the commercial real estate business, (iii) the
creditworthiness of the surviving entity's long term unsecured debt or implied
senior debt, as applicable, is not lower than Borrower's creditworthiness two
months immediately preceding such merger and (iv) in the case of
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any merger where the then fair market value of the assets of the entity which is
merged into the Borrower is (a) fifteen percent (15%) or more of the Borrower's
then Combined Asset Value, the Lead Agent and Managing Co-Agent consent thereto
in writing, (b) thirty-five percent (35%) or more of the Borrower's then
Combined Asset Value, the Required Banks consent thereto in writing. The
Borrower shall not liquidate, wind-up or dissolve (or suffer any liquidation
or dissolution), discontinue its business or convey, lease, sell, transfer or
otherwise dispose of, in one transaction or series of transactions, all or
substantially all of its business or property, whether now or hereafter
acquired. No new Minority Holdings or other new business lines shall be created
without the prior written consent of the Lead Agent and Managing Co-Agent (which
consent shall not be unreasonably withheld or delayed), excluding any joint
ventures in which, in aggregate, Borrower's ownership interest is less than 30%
of Borrower's Combined Asset Value. Nothing in this Section shall be deemed to
prohibit the sale or leasing of portions of the Real Property Assets in the
ordinary course of business.
(b) The Borrower shall not amend its articles of incorporation,
by-laws, or other organizational documents in any manner that would have a
Material Adverse Effect without the Lead Agent's consent, which shall not be
unreasonably withheld.
(c) The Borrower shall deliver to Lead Agent copies of all
amendments to its articles of incorporation, by-laws, or other organizational
documents no less than ten (10) days after the effective date of any such
amendment.
SECTION 5.10. Changes in Business. The Borrower shall not enter
into any business which is substantially different from that conducted by the
Borrower on the Current Closing Date after giving effect to the transactions
contemplated by the Loan Documents. The Borrower shall carry on its business
operations through the Borrower and its Subsidiaries. For purposes of this
Section, the activities permitted under Section 5.17 shall be considered part of
the Borrower's current business.
SECTION 5.11. Margin Stock. None of the proceeds of the Loan will
be used, directly or indirectly, for the purpose, whether immediate, incidental
or ultimate,
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of buying or carrying any Margin Stock.
SECTION 5.12. Hedging Requirements. Within five (5) Domestic
Business Days after the last day of each calendar quarter, commencing December
31, 1995, the Borrower shall have in effect "Interest Rate Xxxxxx" on the
greater of (i) 50% of Borrower's average Debt during the immediately preceding
twelve-month period, and (ii) 50% of the then aggregate Debt of the Borrower.
"Interest Rate Xxxxxx" shall mean interest rate exchange, collar, cap, swap,
adjustable strike cap, adjustable strike corridor or similar agreements, each of
which (i) shall have a minimum term of two (2) years, or, in the case of loans
pursuant to which interest shall accrue at a rate other than a fixed rate, a
term equal to the term of such floating rate loan (to the extent the term of
such floating rate loan is less than two (2) years), (ii) shall have the effect
of capping the interest rates covered thereby at a rate equal to or lower than
the Cap Rate at the time of purchase or execution, and (iii) shall be with an
Approved Bank (which for purposes of this Section 5.12 only shall be deemed to
be an entity other than an Approved Bank but with a long-term credit rating of
"A" or better by S&P and "A2" or better by Xxxxx'x) as the counterparty. It is
acknowledged and agreed that the Borrower shall have no obligation to replace
any Interest Rate Hedge even if the counterparty thereto shall cease to be an
Approved Bank. The Borrower shall submit evidence of its compliance with
Interest Rate Xxxxxx to the Lead Agent together with the certificate required to
be delivered by the Borrower pursuant to Section 5.1(c).
SECTION 5.13. Borrower Status. Borrower shall at all times (i)
remain a publicly traded company listed on the New York Stock Exchange, and (ii)
maintain its status as a self-directed and self-administered real estate
investment trust under the Code.
SECTION 5.14. Sale of Unleveraged Assets. Prior to the sale or
transfer of any Real Property Asset or Minority Holding with a Property Income
representing more than ten percent (10%) of the Property Income of the
Unleveraged Assets, the Borrower shall (i) deliver prior written notice to the
Lead Agent and the Banks, (ii) deliver to the Lead Agent a certificate from its
Chief Financial Officer certifying that at the time of such sale or other
disposal, the Borrower is in compliance with, and expects to remain in
compliance with all of the covenants contained in Sections 5.8 and 5.12 are and
shall continue to be true and accurate in all respects, and (iii) in the case of
an
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Unleveraged Asset, pay to the Lead Agent an amount equal to that required
pursuant to Section 2.11(b).
SECTION 5.15. Liens; Release of Liens. Neither the Borrower nor
any of its Subsidiaries shall at any time during the Term directly or indirectly
create, incur, assume or permit to exist any Lien for borrowed monies or any
other Lien unless the same is being contested in good faith or the same is
discharged, bonded off or paid within thirty (30) days of filing of such Lien,
on or with respect to any Unleveraged Asset. Notwithstanding the foregoing,
Borrower may obtain a release from the terms of this Agreement of any
Unleveraged Asset if, with respect to the release of any Unleveraged Asset with
a Property Income representing more than ten percent (10%) of the Property
Income of the Unleveraged Assets, Borrower has complied with Section 2.11(b) and
prior to or simultaneously with such release (i) Borrower shall pay to the Lead
Agent any amounts due pursuant to Section 2.11(b), and (ii) Borrower delivers to
the Lead Agent a certificate from its Chief Financial Officer certifying that at
the time of the release the Borrower is in compliance with, and expects to
remain in compliance with, all of the covenants contained in Sections 5.8 and
5.12.
SECTION 5.16. New Acquisitions. Borrower may use proceeds of the
Loans to acquire additional Real Property Assets to be included as an
Unleveraged Asset, subject to the requirements set forth below ("New
Acquisitions"). It is understood and agreed that the Borrower may also use
proceeds of the Loans to acquire Real Property Assets that are not New
Acquisitions and in accordance with all other terms of this Agreement. New
Acquisitions to be included as Unleveraged Assets shall be (i) income producing
commercial properties (x) subject to existing long-term leases or (y) purchased
in connection with sale-leaseback transactions, (ii) free of any Liens, and
(iii) either (x) at a minimum, 90% leased or (y) at a minimum, 80% leased at the
time of acquisition and 90% leased within six (6) months thereafter (it being
understood that if such New Acquisition is not 90% leased within such six (6)
months, then such New Acquisition shall not be deemed to be an Unleveraged
Asset.
SECTION 5.17. Development Activities. The Borrower shall not
engage in any development activities other than development of "build-to-suit"
improvements pre-leased to the tenant (in connection with which the Borrower
shall have no construction completion risk) except for
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development in connection with the expansion and/or repositioning or restoration
following a casualty or condemnation of existing improvements on Real Property
Assets. Notwithstanding the foregoing, the Borrower may engage in all other
build-to-suit development activities where there is construction completion risk
provided that in no event shall the value (determined in accordance with the
definition of Combined Asset Value) of the Real Property Assets under such other
type of development exceed twenty percent (20%) of the Borrower's Combined Asset
Value.
SECTION 5.18. Business Loans. The Borrower acknowledges that all
of the Loans are business loans and no portion of the proceeds of the Loans will
be used for personal, family or household purposes.
SECTION 5.19. No Bankruptcy Proceedings. Each of the Borrower,
the Banks, the Lead Agent, the Managing Co-Agent and the Co-Agents hereby agrees
that it will not institute against any Designated Lender or join any other
Person in instituting against any Designated Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
federal or state bankruptcy or similar law, until the later to occur of (i) one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Designated Lender and (ii) the Maturity Date.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. The occurrence and continuation
of one or more of the following events (each, an "Event of Default") shall
constitute an event of default hereunder:
(a) the Borrower shall fail to pay when due any principal of any
Loan, or the Borrower shall fail to pay when due interest on any Loan or any
fees or any other amount payable hereunder and the same shall continue for a
period of two (2) Domestic Business Days;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 5.8, Section 5.9(a) or (b), or Sections 5.10 to 5.15,
inclusive, and Section 5.17.
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(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to the
Borrower by the Lead Agent, or if such default is of such a nature that it
cannot with reasonable effort be completely remedied within said period of
thirty (30) days (other than payment of any monetary amount or a default
pursuant to Section 5.8(e)) such additional period of time as may be reasonably
necessary to cure same, provided Borrower commences such cure within said thirty
(30) day period and diligently prosecutes same, until completion, but in no
event shall such extended period exceed one hundred twenty (120) days;
(d) any representation, warranty, certification or statement made
by the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made);
(e) The Borrower or any Consolidated Subsidiary shall default in
the payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) of any amount owing in respect of any Debt
the aggregate outstanding principal amount is in excess of $10,000,000 (other
than the Obligations) and such default shall continue beyond the giving of any
required notice and the expiration of any applicable grace period and such
default has not been waived, in writing, by the holder of any such Debt; or the
Borrower shall default in the performance or observance of any obligation or
condition with respect to any such Debt or any other event shall occur or
condition exist beyond the giving of any required notice and the expiration of
any applicable grace period, if the effect of such default, event or condition
is to accelerate the maturity of any such indebtedness or to permit (without any
further requirement of notice or lapse of time) the holder or holders thereof,
or any trustee or agent for such holders, to accelerate the maturity of any such
indebtedness;
(f) the Borrower or any Consolidated Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or
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other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(g) an involuntary case or other proceeding shall be commenced
against the Borrower or any Consolidated Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 90 days; or an order for relief shall be entered against the Borrower
or any Consolidated Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(h) one or more final, non-appealable judgments or decrees in an
aggregate amount of Five Million Dollars ($5,000,000) or more shall be entered
by a court or courts of competent jurisdiction against the Borrower or its
Consolidated Subsidiaries (other than any judgment as to which, and only to the
extent, a reputable insurance company has acknowledged coverage of such claim in
writing) and (i) any such judgments or decrees shall not be stayed, discharged,
paid, bonded or vacated within thirty (30) days or (ii) enforcement proceedings
shall be commenced by any creditor on any such judgments or decrees;
(i) there shall be a change in the majority of the Board of
Directors of Borrower during any twelve (12) month period;
(j) any Person (including affiliates of such Person) or "group"
(as such term is defined in applicable federal securities laws and regulations)
shall acquire more than thirty percent (30%) of the common shares of the
Borrower;
(k) the Borrower shall cease at any time to qualify as a real
estate investment trust under the Code;
(l) if any Termination Event with respect to a
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Plan shall occur as a result of which Termination Event or Events any member of
the ERISA Group has incurred or may incur any liability to the PBGC or any other
Person and the sum (determined as of the date of occurrence of such Termination
Event) of the insufficiency of such Plan and the insufficiency of any and all
other Plans with respect to which such a Termination Event shall occur and be
continuing (or, in the case of a Multiple Employer Plan with respect to which a
Termination Event described in clause (ii) of the definition of Termination
Event shall occur and be continuing, the liability of the Borrower) is equal to
or greater than $5,000,000;
(m) if, any member of the ERISA Group shall commit a failure
described in Section 402(f)(1) of ERISA or Section 412(n)(1) of the Code and the
amount of the lien determined under Section 402(f)(3) of ERISA or Section
412(n)(3) of the Code that could reasonably be expected to be imposed on any
member of the ERISA Group or their assets in respect of such failure shall be
equal to or greater than $5,000,000;
(n) at any time, for any reason the Borrower seeks to repudiate
its obligations under any Loan Document; or
(o) a default beyond any applicable notice or grace period under
any of the other Loan Documents.
SECTION 6.2. Rights and Remedies. (a) Upon the occurrence of any
Event of Default described in Sections 6.1(f) or (g), the Commitment shall
immediately terminate and the unpaid principal amount of, and any and all
accrued interest on, the Loans and any and all accrued fees and other
Obligations hereunder shall automatically become immediately due and payable,
with all additional interest from time to time accrued thereon and without
presentation, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and notice of acceleration), all of which are
hereby expressly waived by the Borrower; and upon the occurrence and during the
continuance of any other Event of Default, the Lead Agent may (and upon the
demand of the Required Banks shall), by written notice to the Borrower,
terminate the Commitment and may (and upon the demand of the Required Banks
shall), in addition to the exercise of all of the rights and remedies permitted
the Lead Agent and the Banks at law or equity or under any of the other Loan
Documents,
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declare the unpaid principal amount of and any and all accrued and unpaid
interest on the Loans and any and all accrued fees and other Obligations
hereunder to be, and the same shall thereupon be, immediately due and payable
with all additional interest from time to time accrued thereon and without
presentation, demand, or protest or other requirements of any kind other than as
provided in the Loan Documents (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower.
(b) Notwithstanding anything to the contrary contained in this
Agreement or in any other Loan Document, the Managing Co-Agent, the Lead Agent,
and the Banks each agree that any exercise or enforcement of the rights and
remedies granted to the Managing Co-Agent, the Lead Agent or the Banks under
this Agreement or at law or in equity with respect to this Agreement or any
other Loan Documents shall be commenced and maintained by the Managing Co-Agent
or the Lead Agent on behalf of the Managing Co-Agent, the Lead Agent and/or the
Banks. The Lead Agent shall act at the direction of the Required Banks in
connection with the exercise of any and all remedies at law, in equity or under
any of the Loan Documents or, if the Required Banks are unable to reach
agreement, then, from and after an Event of Default, the Lead Agent may pursue
such rights and remedies as it may determine.
SECTION 6.3. Notice of Default. The Lead Agent shall give notice
to the Borrower under Section 6.1(c) promptly upon being requested to do so by
the Required Banks and shall thereupon notify all the Banks thereof. The Lead
Agent promptly will notify the Banks after becoming aware of any Default or
Event of Default.
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SECTION 6.4 Actions in Respect of Letters of Credit. (a) If, at
any time and from time to time, any Letter of Credit shall have been issued
hereunder and an Event of Default shall have occurred and be continuing, then,
upon the occurrence and during the continuation thereof, the Lead Agent may,
whether in addition to the taking by the Lead Agent of any of the actions
described in this Article or otherwise, make a demand upon the Borrower to, and
forthwith upon such demand (but in any event within ten (10) days after such
demand), the Borrower shall pay to the Lead Agent, on behalf of the Banks, in
same day funds at the Lead Agent's office designated in such demand, for deposit
in a special cash collateral account (the "Letter of Credit Collateral Account")
to be maintained in the name of the Lead Agent (on behalf of the Banks) and
under its sole dominion and control at such place as shall be designated by the
Lead Agent, an amount equal to the amount of the Letter of Credit Usage under
the Letters of Credit. Interest shall accrue on the Letter of Credit Collateral
Account at a rate equal to the rate on overnight funds.
(b) The Borrower hereby pledges, grants and assigns to the Lead
Agent, as Lead Agent, for its benefit and for the ratable benefit of the Banks a
lien on and a security interest in, the following collateral (the "Letter of
Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash deposited
therein and all certificates and instruments, if any, from time to time
representing or evidencing the Letter of Credit Collateral Account;
(ii) all notes, certificates of deposit and other instruments
from time to time hereafter delivered to or otherwise possessed by the Lead
Agent for or on behalf of the Borrower in substitution for or in respect of any
or all of the then existing Letter of Credit Collateral;
(iii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the then existing Letter of Credit
Collateral; and
(iv) to the extent not covered by the above clauses, all proceeds
of any or all of the foregoing Letter of Credit Collateral.
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The lien and security interest granted hereby secures the payment of all
obligations of the Borrower now or hereafter existing hereunder and under any
other Loan Document.
(c) The Borrower hereby authorizes the Lead Agent for the ratable
benefit of the Banks to apply, from time to time after funds are deposited in
the Letter of Credit Collateral Account, funds then held in the Letter of Credit
Collateral Account to the payment of any amounts, in such order as the Lead
Agent may elect, as shall have become or shall become due and payable by the
Borrower to the Banks in respect of the Letters of Credit.
(d) Neither the Borrower nor any Person claiming or acting on
behalf of or through the Borrower shall have any right to withdraw any of the
funds held in the Letter of Credit Collateral Account, except as provided in
Section 6.4(h).
(e) The Borrower agrees that it will not (i) sell or otherwise
dispose of any interest in the Letter of Credit Collateral or (ii) create or
permit to exist any lien, security interest or other charge or encumbrance upon
or with respect to any of the Letter of Credit Collateral, except for the
security interest created by this Section 6.4.
(f) If any Event of Default shall have occurred and be
continuing:
(i) The Lead Agent may, in its sole discretion, without
notice to the Borrower except as required by law and at any time from time to
time, charge, set off or otherwise apply all or any part of first, (x) amounts
previously drawn on any Letter of Credit that have not been reimbursed by the
Borrower and (y) any Letter of Credit Usage described in clause (ii) of the
definition thereof that are then due and payable and second, any other unpaid
Obligations then due and payable against the Letter of Credit Collateral Account
or any part thereof, in such order as the Lead Agent shall elect. The rights of
the Lead Agent under this Section 6.4 are in addition to any rights and remedies
which any Bank may have.
(ii) The Lead Agent may also exercise, in its sole discretion,
in respect of the Letter of Credit Collateral Account, in addition to the other
rights and remedies provided herein or otherwise available to it, all the rights
and remedies of a secured party upon default under the Uniform Commercial Code
in effect in the State of New York at
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that time.
(g) The Lead Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Letter of Credit Collateral if the
Letter of Credit Collateral is accorded treatment substantially equal to that
which the Lead Agent accords its own property, it being understood that,
assuming such treatment, the Lead Agent shall not have any responsibility or
liability with respect thereto.
(h) At such time as all Events of Default have been cured or
waived in writing, all amounts remaining in the Letter of Credit Collateral
Account shall be promptly returned to the Borrower. Absent such cure or written
waiver, any surplus of the funds held in the Letter of Credit Collateral Account
and remaining after payment in full of all of the Obligations of the Borrower
hereunder and under any other Loan Document after the Maturity Date shall be
paid to the Borrower or to whomsoever may be lawfully entitled to receive such
surplus.
ARTICLE VII
THE AGENTS
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Lead Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Lead Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
SECTION 7.2. Agency and Affiliates. Xxxxxx and Bank of Boston
shall have the same rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though it were not the Lead
Agent or Managing Co-Agent respectively, and Xxxxxx and Bank of Boston and their
affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not the Lead Agent and Managing Co-Agent, respectively,
hereunder, and the term "Bank" and "Banks" shall include Xxxxxx and Bank of
Boston in their individual capacities.
SECTION 7.3. Action by Lead Agent and Managing Co-Agent. The
obligations of the Lead Agent and Managing
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Co-Agent hereunder are only those expressly set forth herein. Without limiting
the generality of the foregoing, the Lead Agent shall not be required to take
any action with respect to any Default or Event of Default, except as expressly
provided in Article VI.
SECTION 7.4. Consultation with Experts. The Lead Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Lead Agent and Managing Co-Agent. None
of the Lead Agent, the Managing Co-Agent nor any of their affiliates nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or not taken by it in connection herewith (i) with the consent
or at the request of the Required Banks or (ii) in the absence of its own gross
negligence or wilful misconduct. None of the Lead Agent, the Managing Co-Agent
nor any of its directors, officers, agents or employees shall be responsible for
or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of the Borrower; (iii) the satisfaction of any condition specified
in Article III, except receipt of items required to be delivered to the Lead
Agent or the Managing Co-Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement, the other Loan Documents or any other instrument
or writing furnished in connection herewith. Neither the Lead Agent nor the
Managing Co-Agent shall incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a bank
wire, telex or similar writing) believed by it to be genuine or to be signed by
the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Lead Agent and the Managing
Co-Agent and their affiliates and their respective directors, officers, agents
and employees (to the extent not reimbursed by the Borrower) against any cost,
expense (including counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitee's gross negligence or
wilful misconduct) that such indemnitee may suffer
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or incur in connection with this Agreement, the other Loan Documents or any
action taken or omitted by such indemnitee hereunder. In the event that the
Managing Co-Agent or the Lead Agent shall, subsequent to its receipt of
indemnification payment(s) from Banks in accordance with this section, recoup
any amount from the Borrowers, or any other party liable therefor in connection
with such indemnification, such Managing Co-Agent or the Lead Agent shall
reimburse the Banks which previously made the payment(s) pro rata, based upon
the actual amounts which were theretofore paid by each Bank. The Managing
Co-Agent or the Lead Agent, as the case may be, shall reimburse such Banks so
entitled to reimbursement within two (2) Domestic Business Days of its receipt
of such funds from the Borrowers or such other party liable therefor.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Lead Agent, the Managing Co-Agent or
any other Bank, 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 Bank also acknowledges that it will, independently and without
reliance upon the Lead Agent, Managing Co-Agent or any other Bank, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking any action
under this Agreement.
SECTION 7.8. Successor Lead Agent or Managing Co-Agent. The Lead
Agent or the Managing Co-Agent may resign at any time by giving notice thereof
to the Banks, the Borrower and each other and the Lead Agent or the Managing
Co-Agent, as applicable, shall resign in the event its Commitment is reduced to
zero. Upon any such resignation, the Required Banks shall have the right to
appoint a successor Lead Agent or Managing Co-Agent, as applicable, which
successor Lead Agent or successor Managing Co-Agent (as applicable) shall,
provided no Event of Default has occurred and is then continuing, be subject to
Borrower's approval, which approval shall not be unreasonably withheld or
delayed (except that Borrower shall, in all events, be deemed to have approved
Bank of Boston as a successor Lead Agent and Xxxxxx as a successor Managing
Co-Agent). If no successor Lead Agent or Managing Co-Agent (as applicable) shall
have been so appointed by the Required Banks and approved by the Borrower, and
shall have accepted such appointment, within 30 days after the retiring Lead
Agent or Managing Co-Agent (as applicable) gives notice of resig-
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nation, then the retiring Lead Agent or retiring Managing Co-Agent (as
applicable) may, on behalf of the Banks, appoint a successor Lead Agent or
Managing Co-Agent (as applicable), which shall be the Managing Co-Agent or the
Lead Agent, as the case may be, who shall act until the Required Banks shall
appoint a Lead Agent or Managing Co-Agent. Upon the acceptance of its
appointment as the Lead Agent or Managing Co-Agent hereunder by a successor Lead
Agent or successor Managing Co-Agent, as applicable, such successor Lead Agent
or successor Managing Co-Agent, as applicable, shall thereupon succeed to and
become vested with all the rights and duties of the retiring Lead Agent or
retiring Managing Co-Agent, as applicable, and the retiring Lead Agent or the
retiring Managing Co-Agent, as applicable, shall be discharged from its duties
and obligations hereunder. After any retiring Lead Agent's or retiring Managing
Co-Agent's resignation hereunder, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
the Lead Agent or the Managing Co-Agent, as applicable. In addition, if Xxxxxx
Guaranty Trust Company of New York ("Xxxxxx"), as Lead Agent, shall at any time
hold Commitments equal to less than $10,000,000 in the aggregate, it shall
promptly notify the Banks and the Borrower thereof and shall offer to resign as
Lead Agent. If such offer shall be accepted by the Required Banks (for this
purpose only, Xxxxxx shall be deemed to have accepted its own offer to resign),
a successor Lead Agent shall be appointed in accordance with this Section 7.8.
SECTION 7.9. Financial Covenants. The Lead Agent shall monitor
and confirm all financial calculations made by the Borrower contained in the
officer's certificate which shall be delivered by the Borrower pursuant to
Section 5.1 hereof within five (5) days after the Lead Agent's receipt thereof.
If the Lead Agent finds any calculation to be incorrect or believes that an
Event of Default shall have occurred, the Lead Agent shall notify the Borrower,
the Managing Co-Agent and the Banks thereof, within two (2) Domestic Business
Days after such determination.
SECTION 7.10. Receipt of Notices. All notices, reports and
information received by the Lead Agent with respect to the Borrower and not
otherwise delivered to the Banks by the Borrower, shall be delivered to the
Banks within one (1) Domestic Business Day of the Lead Agent's receipt thereof.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Euro-Dollar Borrowing, CD Borrowing or Money Market Borrowing:
(a) the Lead Agent is advised by the Reference Bank that deposits
in dollars (in the applicable amounts) are not being offered to the Reference
Bank in the relevant market for such Interest Period, or
(b) in the case of CD Borrowings or Euro-Dollar Borrowings, Banks
having 50% or more of the aggregate principal amount of the affected loans
advise the Lead Agent that the Adjusted London Interbank Offered Rate or the
Adjusted CD Rate, as the case may be, as determined by the Lead Agent will not
adequately and fairly reflect the cost to such Banks of funding their
Euro-Dollar Loans or CD Loans for such Interest Period, the Lead Agent shall
forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Lead Agent notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the Banks to make CD Loans or
Euro-Dollar Loans, as the case may be, or to continue or convert outstanding
Loans as or into CD Loans or Euro-Dollar Loans, as the case may be, shall be
suspended and (ii) each outstanding CD Loan or Euro-Dollar Loan, as the case may
be, shall be converted into a Base Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless the Borrower notifies the Lead Agent
at least two Domestic Business Days before the date of any Euro-Dollar
Borrowing, CD Borrowing or Money Market LIBOR Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
(i) if such Borrowing is a Committed Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Borrowing is a Money Market LIBOR
Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall bear
interest for each day from and including the first day to but excluding the last
day of the Interest Period applicable thereto at the Base Rate for such day.
SECTION 8.2. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law,
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rule or regulation, or any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Euro-Dollar Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it unlawful
or impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain
or fund its Euro-Dollar Loans, CD Loans or Money Market Loans or to issue any
Letter of Credit as a Fronting Bank or to participate in any Letter of Credit
issued by a Fronting Bank, the Lead Agent shall forthwith give notice thereof to
the other Banks and the Borrower, whereupon until such Bank notifies the
Borrower and the Lead Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank to make or convert
Euro-Dollar Loans, CD Loans or Money Market Loans or to issue Letters of Credit
shall be suspended. With respect to Euro-Dollar Loans or Money Market LIBOR
Loans, before giving any notice to the Lead Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine
that it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans, CD Loans or Money Market LIBOR Loans (as the case may be) to
maturity and shall so specify in such notice, the Borrower shall be deemed to
have delivered a Notice of Interest Rate Election and such Euro-Dollar Loan, CD
Loan or Money Market LIBOR Loan (as the case may be) shall be converted as of
such date to a Base Rate Loan (without payment of any amounts that Borrower
would otherwise be obligated to pay pursuant to Section 2.14 hereof with respect
to Loans converted pursuant to this Section 8.2) and, in the case of Euro-Dollar
Loans, in an equal principal amount from such Bank (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
or CD Loans of the other Banks), and such Bank shall make such a Base Rate Loan.
If at any time, it shall be unlawful or impossible for any Bank
to make, maintain or fund its Euro-Dollar Loans and CD Loans, the Borrower shall
have the right, upon five (5) Domestic Business Day's notice to the Lead Agent,
to either (x) cause a bank, reasonably acceptable to the Lead Agent, to offer to
purchase the Commitments of such Bank for an amount equal to such Bank's
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outstanding Loans, and to become a Bank hereunder, which offer such Bank is
hereby required to accept, or (y) to repay in full all Loans then outstanding of
such Bank, together with interest and all other amounts due thereon, upon which
event, such Bank's Commitments shall be deemed to be cancelled pursuant to
Section 2.12(d).
SECTION 8.3. Increased Cost and Reduced Return.
(a) If on or after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or (y) the date of the
related Money Market Quote, in the case of any Money Market Loan, the adoption
of any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank (or
its Applicable Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve Percentage and (ii) with
respect to any Euro-Dollar Loan any such requirement with respect to which such
Bank is entitled to compensation during the relevant Interest Period under
Section 2.8), special deposit, insurance assessment (excluding, with respect to
any CD Loan, any such requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Applicable Lending Office) or shall impose
on any Bank (or its Applicable Lending Office) or on the United States market
for certificates of deposit or the London interbank market any other condition
affecting its Euro-Dollar Loans, CD Loans or Money Market LIBOR Loans, its Note
or its obligation to make such Loans and the result of any of the foregoing is
to increase the cost to such Bank (or its Applicable Lending Office) of making
or maintaining any such Loan, or to reduce the amount of any sum received or
receivable by such Bank (or its Applicable Lending Office) under this Agreement
or under its Note with respect thereto, by an amount deemed by such Bank to be
material, then, within 15 days after demand by such Bank (with a copy to the
Agent), the Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such increased
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cost or reduction.
(b) If any Bank shall have reasonably determined that, after the
date hereof, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
reasonably deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Lead Agent and Managing
Co-Agent), the Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower, the Lead Agent
and the Managing Co-Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation pursuant to
this Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of demonstrable error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods.
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(d) If at any time, any Bank shall be owed amounts pursuant to
this Section 8.3, the Borrower shall have the right, upon five (5) Domestic
Business Day's notice to the Lead Agent to either (x) cause a bank, reasonably
acceptable to the Lead Agent, to offer to purchase the Commitments of such Bank
for an amount equal to such Bank's outstanding Loans, and to become a Bank
hereunder, which offer such Bank is hereby required to accept, or (y) to repay
in full all Loans then outstanding of such Bank, together with interest and all
other amounts due thereon, upon which event, such Bank's Commitment shall be
deemed to be cancelled pursuant to Section 2.12(d).
SECTION 8.4. Taxes.
(a) Any and all payments by the Borrower to or for the account of
any Bank, the Managing Co-Agent or the Lead Agent hereunder or under any other
Loan Document shall be made free and clear of and without deduction for any and
all present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank, the Managing Co-Agent and the Lead Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Bank, the Managing Co-Agent or the Lead Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise or similar taxes imposed on it, by
the jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note or Letter of Credit
or participation therein to any Bank, the Fronting Bank, the Managing Co-Agent
or the Lead Agent, (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 8.4) such Bank, the Managing Co-Agent
or the Lead Agent (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, (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
law and (iv) the Borrower shall furnish to the Lead Agent, at its address
referred to in Section 9.1, the original or a
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certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
Letter of Credit or participation therein or from the execution or delivery of,
or otherwise with respect to, this Agreement or any Note (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank, the Managing
Co-Agent and the Lead Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 8.4) paid by such Bank,
the Managing Co-Agent or the Lead Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 15 days from the date such
Bank, the Managing Co-Agent or the Lead Agent (as the case may be) makes demand
therefor.
(d) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Borrower (but
only so long as such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 8.4(a).
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section 8.4(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to
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the date on which a form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.4(a) with respect to
Taxes imposed by the United States; provided, however, that should a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or
for the account of any Bank pursuant to this Section 8.4, then such Bank will
change the jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such change,
in the judgment of such Bank, is not otherwise disadvantageous to such Bank.
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make, or convert outstanding Loans
to, Euro-Dollar Loans has been suspended pursuant to Section 8.2 or (ii) any
Bank has demanded compensation under Section 8.3 or 8.4 with respect to its CD
Loans or Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Bank through the Lead Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) Borrower shall be deemed to have delivered a Notice of
Interest Rate Election with respect to such affected Euro-Dollar Loans or CD
Loans and thereafter all Loans which would otherwise be made (or continued as or
converted into, as the case may be) by such Bank as Euro-Dollar Loans shall be
made instead as Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans or CD Loans of the
other Banks) unless the Borrower shall deliver a Notice of Interest Rate
Election specifying CD Loans, and
(b) after each of its Euro-Dollar Loans or CD Loans (as the case
may be) has been repaid (or converted to a Base Rate Loan), all payments of
principal which would otherwise be applied to repay such Loans shall be applied
to repay its Base Rate Loans instead, and
(c) Borrower will not be required to make any
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payment which would otherwise be required by Section 2.14 with respect to such
Euro-Dollar Loans or CD Loans converted to CD Loans or Base Rate Loans pursuant
to clause (a) above.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission followed by telephonic confirmation or similar
writing) and shall be given to such party: (x) in the case of the Borrower, the
Managing Co-Agent or the Lead Agent, at its address, telex number or facsimile
number set forth on the signature pages hereof with a duplicate copy thereof, in
the case of the Borrower, to the Borrower, at Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxxx, XX 00000, Attn.: A. Xxxxxxx Xxxxx, (y) in the case of any
Bank, at its address, telex number or facsimile number set forth in its
Administrative Questionnaire or (z) in the case of any party, such other
address, telex number or facsimile number as such party may hereafter specify
for the purpose by notice to the Lead Agent and the Borrower. Each such notice,
request or other communication shall be effective (i) if given by telex or
facsimile transmission, when such telex or facsimile is transmitted to the telex
number or facsimile number specified in this Section and the appropriate
answerback or facsimile confirmation is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (iii) if given by a nationally
recognized overnight carrier, 24 hours after such communication is deposited
with such carrier with postage prepaid, or (iv) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Lead Agent and the Managing Co-Agent under Article II or Article VIII
shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Lead Agent,
the Managing Co-Agent or any Bank in exercising any right, power or privilege
hereunder or under any Note shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
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remedies provided by law.
SECTION 9.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable out-of-pocket costs
and expenses of the Lead Agent and the Managing Co-Agent (including reasonable
fees and disbursements of special counsel Skadden, Arps, Slate, Xxxxxxx & Xxxx
and, in connection with the preparation of this Agreement, the Loan Documents
and the documents and instruments referred to therein, or any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all reasonable out-of-pocket expenses
incurred by the Lead Agent and each Bank, including fees and disbursements of
counsel for the Lead Agent and each of the Banks, in connection with the
enforcement of the Loan Documents and the instruments referred to therein and
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Managing Co-Agent, the
Lead Agent and each Bank, their respective affiliates and the respective
directors, officers, agents and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from and against any and all
liabilities, losses, damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any investigative, administrative
or judicial proceeding (whether or not such Indemnitee shall be designated a
party thereto) that may at any time (including, without limitation, at any time
following the payment of the Obligations) be imposed on, asserted against or
incurred by any Indemnitee but excluding those liabilities, losses, damages,
costs and expenses incurred solely by reason of the gross negligence or wilful
misconduct of any Indemnitee as finally determined by a court of competent
jurisdiction, as a result of, or arising out of, or in any way related to or by
reason of, (i) any of the transactions contemplated by the Loan Documents or the
execution, delivery or performance of any Loan Document, (ii) any violation by
the Borrower or the Environmental Affiliates of any applicable Environmental
Law, (iii) any Environmental Claim arising out of the management, use, control,
ownership or operation of property or assets by the Borrower or any of the
Environmental Affiliates, including, without limitation, all on-site and
off-site activities involving Materials of Environmental
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Concern, (iv) the breach of any environmental representation or warranty set
forth herein, (v) the grant to the Lead Agent, the Managing Co-Agent, and the
Banks of any Lien in any property or assets of the Borrower or any stock or
other equity interest in the Borrower, and (vi) the exercise by the Lead Agent,
the Managing Co-Agent, and the Banks of their rights and remedies (including,
without limitation, foreclosure) under any agreements creating any such Lien.
The Borrower's obligations under this Section shall survive the termination of
this Agreement and the payment of the Obligations.
SECTION 9.4. Sharing of Set-Offs. In addition to any rights now
or hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
but subject to the prior consent of the Lead Agent and the Managing Co-Agent, to
set off and to appropriate and apply any and all deposits (general or special,
time or demand, provisional or final) and any other indebtedness at any time
held or owing by such Bank (including, without limitation, by branches and
agencies of such Bank wherever located) to or for the credit or the account of
the Borrower against and on account of the Obligations of the Borrower then due
and payable to such Bank under this Agreement or under any of the other Loan
Documents, including, without limitation, all interests in Obligations purchased
by such Bank. Each Bank agrees that if it shall, by exercising any right of
set-
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off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to any Note held by
it or Letter of Credit issued by it (in its capacity as a Fronting Bank) or
participation therein which is greater than the proportion received by any other
Bank in respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank or Letter of Credit issued by such
other Bank (in its capacity as a Fronting Bank) or participated in by such other
Bank, the Bank receiving such proportionately greater payment shall purchase
such participations in the Notes held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall impair
the right of any Bank to exercise any right of set-off or counterclaim it may
have to any deposits not received in connection with the Loans and to apply the
amount subject to such exercise to the payment of indebtedness of the Borrower
other than its indebtedness under the Notes. The Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that any holder of a
participation in a Note, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such participation.
Notwithstanding anything to the contrary contained herein, any Bank may, by
separate agreement with the Borrower, waive its right to set off contained
herein or granted by law and any such written waiver shall be effective against
such Bank under this Section 9.4.
SECTION 9.5. Amendments and Waivers. Any provision of this
Agreement or the Notes or other Loan Documents may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the Borrower
and the Required Banks (and, if the rights or duties of the Lead Agent or the
Managing Co-Agent are affected thereby, by the Lead Agent or the Managing
Co-Agent, as applicable); provided that no such amendment or waiver with respect
to this Agreement, the Notes or any other Loan Documents shall, unless signed by
all the Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any reduction
or termination of any Commitment, (iv) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Notes, or the number of
Banks, which shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement, (v) modify the
provisions of Section 9.15, (vi) permit Liens on the Unleveraged Assets, or
(vii) modify the provisions of this Section 9.5. From and after an Event of
Default, the Lead Agent shall act in accordance with the provisions of Section
6.2(b). Notwithstanding the foregoing, no amendment, waiver or consent shall,
unless in writing and signed by the Designating Lender on behalf of its
Designated Lender affected thereby, (a) subject such Designated Lender to any
additional obligations, (b) reduce the principal of, interest on, or other
amounts due with respect to, the Designated Lender Note made payable to such
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Designated Lender, or (c) postpone any date fixed for any payment of principal
of, or interest on, or other amounts due with respect to the Designated Lender
Note made payable to the Designated Lender.
SECTION 9.6. 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, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks and the Lead Agent. The Lead Agent and the Banks
shall not assign their respective interests under this Agreement except as set
forth in Section 7.8 (with respect to the Lead Agent and the Managing Co-Agent)
and this Article IX (with respect to the Banks).
(b) Any Bank may at any time grant (i) prior to the occurrence of
an Event of Default, to one or more banks or other financial institutions in
minimum amounts of not less than $10,000,000 (or any lesser amount in the case
of participations to an existing Bank) and (ii) after the occurrence and during
the continuation of an Event of Default, to any Person in any amount (in each
case, a "Participant") participating interests in its Commitment or any or all
of its Loans. Any participation made during the continuation of an Event of
Default shall not be affected by the subsequent cure of such Event of Default.
In the event of any such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower and the Lead Agent, such
Bank shall remain responsible for the performance of its obligations hereunder,
and the Borrower, the Managing Co-Agent and the Lead Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii), (iii), (iv) or (v) of Section 9.5 without the consent of the Participant.
The Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the
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benefits of Article VIII with respect to its participating interest. An
assignment or other transfer which is not permitted by subsection (c) or (d)
below shall be given effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign (i) prior to the occurrence
of an Event of Default to one or more banks or other financial institutions in
minimum amounts of not less than $10,000,000 (or any lesser amount in the case
of assignments to an existing Bank) and (ii) after the occurrence and during the
continuation of an Event of Default, to any Person (in each case, an "Assignee")
all, or a proportionate part of all, of its rights and obligations under this
Agreement, the Notes and the other Loan Documents, and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit "B" hereto executed by such
Assignee and such transferor Bank, with (and subject to) the consent of the
Borrower and the Lead Agent, which consent shall not be unreasonably withheld or
delayed; provided that if an Assignee is an affiliate of such transferor Bank,
no such consent shall be required, provided that if the transferor Bank has a
rating as of the date of such assignment of A or better, such affiliate shall
have a rating of at least A and with respect to all other Banks, the rating of
such affiliate's senior unsecured indebtedness shall be at least investment
grade at such time (although nothing contained in this Agreement shall limit
that right of any Bank to assign its interest herein as aforesaid to any
successor by merger or consolidation); and provided further that, upon the
occurrence and during the continuation of an Event of Default, a Bank may assign
its interest herein to any affiliate, regardless of rating and furthermore, that
Borrower's consent to an Assignee will not be required. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment as set forth in
such instrument of assumption, and no further consent or action by any party
shall be required and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Lead Agent and the
Borrower shall make appropriate arrangements so that, if required, a new Note is
issued to
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the Assignee. In connection with any such assignment, the transferor Bank shall
pay to the Lead Agent an administrative fee for processing such assignment in
the amount of $2,500. If the Assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the Borrower
and the Lead Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 8.4. Any
assignment made during the continuation of an Event of Default shall not be
affected by any subsequent cure of such Event of Default.
(d) Any Bank (each, a "Designating Lender") may at any time
designate one Designated Lender to fund Money Market Loans on behalf of such
Designating Lender subject to the terms of this Section 9.6(d) and the
provisions in Section 9.6(b) and (c) shall not apply to such designation. No
Bank may designate more than one (1) Designated Lender. The parties to each such
designation shall execute and deliver to the Lead Agent for its acceptance a
Designation Agreement. Upon such receipt of an appropriately completed
Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Lender, the Lead Agent will accept such
Designation Agreement and will give prompt notice thereof to the Borrower,
whereupon, (i) the Borrower shall execute and deliver to the Designating Bank a
Designated Lender Note payable to the order of the Designated Lender, (ii) from
and after the effective date specified in the Designation Agreement, the
Designated Lender shall become a party to this Agreement with a right (subject
to the provisions of Section 2.3(b)) to make Money Market Loans on behalf of its
Designating Lender pursuant to Section 2.3 after the Borrower has accepted a
Money Market Loan (or portion thereof) of the Designating Lender, and (iii) the
Designated Lender shall not be required to make payments with respect to any
obligations in this Agreement except to the extent of excess cash flow of such
Designated Lender which is not otherwise required to repay obligations of such
Designated Lender which are then due and payable; provided, however, that
regardless of such designation and assumption by the Designated Lender, the
Designating Lender shall be and remain obligated to the Borrower, the Co-Agents
and the Banks for each and every of the obligations of the Designating Lender
and its related Designated Lender with respect to this Agreement, including,
without limitation, any indemnification obligations under Section 7.6 hereof and
any sums otherwise payable to the Borrower by the Designated Lender. Each
Designating Lender shall serve as the administrative agent of the Designated
Lender and shall on
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behalf of, and to the exclusion of, the Designated Lender: (i) receive any and
all payments made for the benefit of the Designated Lender and (ii) give and
receive all communications and notices and take all actions hereunder,
including, without limitation, votes, approvals, waivers, consents and
amendments under or relating to this Agreement and the other Loan Documents. Any
such notice, communication, vote, approval, waiver, consent or amendment shall
be signed by the Designating Lender as administrative agent for the Designated
Lender and shall not be signed by the Designated Lender on its own behalf and
shall be binding upon the Designated Lender to the same extent as if signed by
the Designated Lender on its own behalf. The Borrower, the Lead Agent, the
Managing Co-Agent, the Co-Agents and the Banks may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No
Designated Lender may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than assignments to the
Designating Lender which originally designated such Designated Lender or
otherwise in accordance with the provisions of Section 9.6 (b) and (c).
(e) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(f) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.3 or 8.4
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 9.7. Collateral. Each of the Banks represents to the Lead
Agent and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.8. Governing Law; Submission to Jurisdiction. (a) THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
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(WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement
or any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and appellate courts from any thereof. The
Borrower irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the hand delivery, or
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower at its address set forth below. The Borrower hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement or any other Loan Document brought in the courts referred to
above and hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of
the Lead Agent or the Managing Co-Agent to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Borrower in any other jurisdiction.
SECTION 9.9. Marshalling; Recapture. Neither of the Lead Agent,
the Managing Co-Agent nor any Bank shall be under any obligation to xxxxxxxx any
assets in favor of the Borrower or any other party or against or in payment of
any or all of the Obligations. To the extent any Bank receives any payment by or
on behalf of the Borrower in connection with this Agreement, which payment or
any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to the Borrower or its estate,
trustee, receiver, custodian or any other party under any bankruptcy law, state
or federal law, common law or equitable cause, then to the extent of such
payment or repayment, the Obligation or part thereof which has been paid,
reduced or satisfied by the amount so repaid shall be reinstated by the amount
so repaid and shall be included within the liabilities of the Borrower to such
Bank as of the date such initial payment, reduction or satisfaction occurred.
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SECTION 9.10. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the Lead Agent and
the Borrower of counterparts hereof signed by each of the parties hereto (or, in
the case of any party as to which an executed counterpart shall not have been
received, receipt by the Lead Agent in form satisfactory to it of telegraphic,
telex or other written confirmation from such party of execution of a
counterpart hereof by such party).
SECTION 9.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
LEAD AGENT, THE MANAGING CO-AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVE ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.12. Survival. All indemnities set forth herein shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder.
SECTION 9.13. Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any domestic or foreign branch office,
subsidiary or affiliate of such Bank.
SECTION 9.14. Limitation of Liability. No claim may be made by
the Borrower or any other Person acting by or through Borrower against the Lead
Agent, the Managing Co-Agent or any Bank or the affiliates, directors, officers,
employees, attorneys or agent of any of them for any consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement or by the other Loan Documents, or any act, omission or event
occurring in connection therewith; and the Borrower hereby waives, releases and
agrees not to xxx upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.
SECTION 9.15. Recourse Obligation. This Agreement and the
Obligations hereunder are fully recourse
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to the Borrower. Notwithstanding the foregoing, no recourse under or upon any
obligation, covenant, or agreement contained in this Agreement shall be had
against any officer, director, shareholder or employee of the Borrower except in
the event of fraud or misappropriation of funds on the part of such officer,
director, shareholder or employee.
SECTION 9.16. Confidentiality. The Lead Agent, the Managing
Co-Agent and the Banks each agree (on behalf of themselves and each of their
affiliates, directors, officers, employees and representatives) to use
reasonable precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of this nature and in
accordance with safe and sound practices, any non-public information supplied to
them by the Borrower or its agents pursuant to this Agreement which is
identified by the Borrower as being confidential at the time the same is
delivered to the Lead Agent, Managing Co-Agent or a Bank, as applicable,
provided that nothing herein shall limit the disclosure of any such information
(i) to the extent required by statute, rule, regulation or judicial process,
(ii) to counsel for the Lead Agent, Managing Co-Agent or a Bank, (iii) to
examiners, auditors or accountants (provided that with respect to such auditors
or accountants only, they agree to be bound by the restrictions set forth in
this Section 9.16) or, (iv) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or prospective
assignee or participant) first agrees to be bound by these provisions. None of
the Lead Agent, Managing Co-Agent or the Banks shall be deemed to have breached
this Section 9.16 if a prohibited disclosure of confidential information by such
party is inadvertent.
SECTION 9.17. Legal Rate. Notwithstanding anything in this Credit
Agreement or any Loan Document to the contrary, if at any time the interest rate
applicable to the Notes, together with all fees and charges which are treated as
interest under applicable law (collectively, the "Charges"), as provided
for in this Credit Agreement or in any other document executed in connection
herewith, or otherwise contracted for, charged, received, taken or reserved by
the Lead Agent, on behalf of the Banks, shall exceed the maximum lawful rate
(the "Legal Rate") which may be contracted for, charged, taken, received
or reserved by the Lead Agent, on behalf of the Banks in accordance with
applicable law, the rate of interest payable under such Notes, together with all
Charges payable, shall be limited to the Legal Rate and any interest or Charges
not so
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charged, taken, received or reserved by Lead Agent, on behalf of the
Banks at such time shall be spread, prorated or amortized over the term of such
Notes to the fullest extent permitted by law.
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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.
TRINET CORPORATE REALTY TRUST, INC.
By:______________________________
Name:
Title:
Facsimile number: (000) 000-0000
Address: Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Commitments
$25,000,000 XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: ______________________________
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
$25,000,000 THE FIRST NATIONAL BANK OF BOSTON
By: ______________________________
Name:
Title:
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$22,500,000 DRESDNER BANK AG, NEW YORK BRANCH
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
$25,000,000 BANK OF MONTREAL, CHICAGO BRANCH
By: _____________________________
Name:
Title:
$17,500,000 COMMERZBANK AKTIENGESELLSCHAFT, LOS ANGELES BRANCH
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
$17,500,000 NBD BANK
By: _____________________________
Name:
Title:
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$17,500,000 KEY BANK NATIONAL ASSOCIATION
(f/k/a Society Bank)
By: _____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
$15,000,000 PNC BANK, N.A.
By: _____________________________
Name: Xxxxx Xxxxxxx
Title: Vice President
$15,000,000 SIGNET BANK
By: _____________________________
Name:
Title:
$10,000,000 BANQUE NATIONALE DE PARIS
By: _____________________________
Name:
Title:
$10,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: _____________________________
Name:
Title:
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Total Commitments
$200,000,000 THE FIRST NATIONAL BANK
OF BOSTON, as Managing Co-Agent
By: ___________________________
Name:
Title:
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: _________________
Telecopy: _________________
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Lead Agent
By: ___________________________
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
DOMESTIC AND EURO-CURRENCY
LENDING OFFICE:
c/o X.X. Xxxxxx Services Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. XxXxxx
Telecopy: (000) 000-0000/1872
116
000
XXXXXXX X
XXXX
Xxx Xxxx, Xxx Xxxx
________ __, 1997
For value received, TriNet Corporate Realty Trust, Inc., a
Maryland corporation (the "Borrower"), promises to pay to the order of
____________ (the "Bank"), for the account of its Applicable Lending Office, the
unpaid principal amount of each Loan made by the Bank to the Borrower pursuant
to the Credit Agreement referred to below on the Maturity Date (as such term is
defined in the Credit Agreement). The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Xxxxxx Guaranty Trust Company of
New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Notes referred to in, and is delivered
pursuant to and subject to all of the terms of, the Second Amended and Restated
Revolving Credit Agreement dated as of April 22, 1997 among the Borrower, the
banks listed on the signature pages thereof, The First
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119
National Bank of Boston, as Managing Co-Agent and Xxxxxx Guaranty Trust Company
of New York, as Lead Agent (as the same may be amended from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit Agreement for provisions for
the prepayment hereof and the acceleration of the maturity hereof. The Borrower
waives presentment, demand, protest and notice of protest and non-payment of
this Note.
This Note and the Obligations hereunder are fully recourse to the
Borrower. Notwithstanding the foregoing, no recourse under or upon any
obligation, covenant, or condition contained in this Note shall be had against
any officer, director, shareholder or employee of the Borrower except in the
event of fraud or misappropriation of funds on the part of such officer,
director, shareholder or employee.
This Note shall be governed by, and construed in accordance with,
the laws of the State of New York, without reference to the conflict of laws
principals thereof.
TRINET CORPORATE REALTY TRUST, INC.
By: ______________________
Name:
Title:
A-2
120
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
---------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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A-3
000
XXXXXXX X-0
XXXX
Xxx Xxxx, Xxx Xxxx
________ __, 1997
For value received, TriNet Corporate Realty Trust, Inc., a
Maryland corporation (the "Borrower"), promises to pay to the order of
____________ (the "Bank"), for the account of its Applicable Lending Office, the
unpaid principal amount of each Loan made by the Bank to the Borrower pursuant
to the Credit Agreement referred to below on the Maturity Date (as such term is
defined in the Credit Agreement). The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Xxxxxx Guaranty Trust Company of
New York, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with respect
to each such Loan then outstanding may be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Designated Lender Notes referred to in,
and is delivered pursuant to and subject to all of the terms of, the Second
Amended and Restated Revolving Credit Agreement dated as of April 22, 1997 among
the Borrower, the banks listed on the signature pages thereof, The First
National Bank of Boston, as Managing Co-Agent and Xxxxxx Guaranty Trust Company
of New York, as Lead Agent (as the same may be amended
A1-1
122
from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof. The Borrower waives presentment, demand, protest and
notice of protest and non-payment of this Note.
This Note and the Obligations hereunder are fully recourse to the
Borrower. Notwithstanding the foregoing, no recourse under or upon any
obligation, covenant, or condition contained in this Note shall be had against
any officer, director, shareholder or employee of the Borrower except in the
event of fraud or misappropriation of funds on the part of such officer,
director, shareholder or employee.
This Note shall be governed by, and construed in accordance with,
the laws of the State of New York, without reference to the conflict of laws
principals thereof.
TRINET CORPORATE REALTY TRUST, INC.
By: ______________________
Name:
Title:
A1-2
123
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
---------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
TRANSFER SUPPLEMENT (this "Transfer Supplement") dated as of ,
199 between (the "Assignor") and having an address at (the "Purchasing Bank").
W I T N E S S E T H:
WHEREAS, the Assignor has made loans to TriNet Corporate Realty
Trust, Inc., a Maryland corporation (the "Borrower"), pursuant to the Second
Amended and Restated Revolving Credit Agreement, dated as of April 22, 1997 (as
the same may be amended, supplemented or otherwise modified through the date
hereof, the "Credit Agreement"), among the Borrower, the banks party thereto,
Xxxxxx Guaranty Trust Company of New York, as Lead Agent, and The First National
Bank of Boston, as Managing Co-Agent. All capitalized terms used and not
otherwise defined herein shall have the respective meanings set forth in the
Credit Agreement;
WHEREAS, the Purchasing Bank desires to purchase and assume from
the Assignor, and the Assignor desires to sell and assign to the Purchasing
Bank, certain rights, title, interest and obligations under the Credit
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. In consideration of the amount set forth in the receipt (the
"Receipt") given by Assignor to Purchasing Bank of even date herewith, and
transferred by wire to Assignor, the Assignor hereby assigns and sells, without
recourse, representation or warranty except as specifically set forth herein, to
the Purchasing Bank, and the Purchasing Bank hereby purchases and assumes from
the Assignor, a % interest (the "Purchased Interest") of the Loans constituting
a portion of the Assignor's rights and obligations under the Credit Agreement as
of the Effective Date (as defined below) including, without limitation, such
percentage interest of the Assignor in any Loans owing to the Assignor, any Note
held by the Assignor, any Loan Commitment of the Assignor and any other interest
of the Assignor under any of the Loan Documents.
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2. The Assignor (i) represents and warrants that as of the date
hereof the aggregate outstanding principal amount of its share of the Loans
owing to it (without giving effect to assignments thereof which have not yet
become effective) is $ ; (ii) represents and warrants that it is the legal
and beneficial owner of the interests being assigned by it hereunder and that
such interests are free and clear of any adverse claim; (iii) represents and
warrants that it has not received any notice of Default or Event of Default from
the Borrower; (iv) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations (or
the truthfulness or accuracy thereof) made in or in connection with the Credit
Agreement, or the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, or
the other Loan Documents or any other instrument or document furnished pursuant
thereto; and (v) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or the other Loan Documents or any other instrument or document
furnished pursuant thereto. Except as specifically set forth in this Paragraph
2, this assignment shall be without recourse to Assignor.
3. The Purchasing Bank (i) confirms that it has received a copy
of the Credit Agreement, and the other Loan Documents, together with such
financial statements and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Transfer Supplement and to become a party to the Credit Agreement, and has not
relied on any statements made by Assignor or Skadden, Arps, Slate, Xxxxxxx &
Xxxx; (ii) agrees that it will, independently and without reliance upon any of
the Lead Agent, the Managing Co-Agent, the Assignor or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of the Borrower and will make its own credit analysis,
appraisals and decisions in taking or not taking action under the Credit
Agreement, and the other Loan Documents; (iii) appoints and authorizes the Lead
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement, and the other Loan Documents as are delegated to the
Agent by the terms thereof, together with such powers as are incidental thereto;
(iv) agrees that it will be bound by and perform in accordance with their terms
all of the obligations which by the terms of the Credit Agreement are required
to be performed by it as a Bank; (v) specifies as its
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address for notices and lending office, the office set forth beneath its name on
the signature page hereof; (vi) it has full power and authority to execute and
deliver, and perform under, this Transfer Supplement, and all necessary
corporate and/or partnership action has been taken to authorize, and all
approvals and consents have been obtained for, the execution, delivery and
performance thereof; (vii) this Transfer Supplement constitutes its legal, valid
and binding obligation enforceable in accordance with its terms; and (viii) the
interest being assigned hereunder is being acquired by it for its own account,
for investment purposes only and not with a view to the public distribution
thereof and without any present intention of its resale in either case that
would be in violation of applicable securities laws.
4. This Transfer Supplement shall be effective on the date (the
"Effective Date") on which all of the following have occurred (i) it shall have
been executed and delivered by the parties hereto, (ii) copies hereof shall have
been delivered to the Lead Agent and the Borrower, and (iii) the Purchasing Bank
shall have paid to the Assignor the agreed purchase price as set forth in the
Receipt.
5. On and after the Effective Date, (i) the Purchasing Bank shall
be a party to the Credit Agreement and, to the extent provided in this Transfer
Supplement, have the rights and obligations of a Bank thereunder and be entitled
to the benefits and rights of the Banks thereunder and (ii) the Assignor shall,
to the extent provided in this Transfer Supplement as to the Purchased Interest,
relinquish its rights and be released from its obligations under the Credit
Agreement.
6. From and after the Effective Date, the Assignor shall cause
the Lead Agent to make all payments under the Credit Agreement, and the Notes in
respect of the Purchased Interest assigned hereby (including, without
limitation, all payments of principal, fees and interest with respect thereto
and any amounts accrued but not paid prior to such date) to the Purchasing Bank.
7. This Transfer Supplement may be executed in any number of
counterparts which, when taken together, shall be deemed to constitute one and
the same instrument.
8. Assignor hereby represents and warrants to Purchasing Bank
that it has made all payments demanded to date by Xxxxxx Guaranty Trust Company
of New York ("Xxxxxx") as Lead Agent in connection with the Assignor's pro rata
share of the obligation to reimburse the Agent for its expenses. In the event
Xxxxxx, as Lead Agent, shall demand reimbursement for fees and expenses from
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000
Xxxxxxxxxx Xxxx for any period prior to the Effective Date, Assignor hereby
agrees to promptly pay Xxxxxx, as Lead Agent, such sums directly, subject,
however, to Paragraph 12 hereof.
9. Assignor will, at the cost of Assignor, and without expense to
Purchasing Bank, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, assignments, notices of assignments, transfers and
assurances as Purchasing Bank shall, from time to time, reasonably require, for
the better assuring, conveying, assigning, transferring and confirming unto
Purchasing Bank the property and rights hereby given, granted, bargained, sold,
aliened, enfeoffed, conveyed, confirmed, assigned and/or intended now or
hereafter so to be, on which Assignor may be or may hereafter become bound to
convey or assign to Purchasing Bank, or for carrying out the intention or
facilitating the performance of the terms of this Agreement or for filing,
registering or recording this Agreement.
10. The parties agree that no broker or finder was instrumental
in bringing about this transaction. Each party shall indemnify, defend the other
and hold the other free and harmless from and against any damages, costs or
expenses (including, but not limited to, reasonable attorneys' fees and
disbursements) suffered by such party arising from claims by any broker or
finder that such broker or finder has dealt with said party in connection with
this transaction.
11. Subject to the provisions of Paragraph 12 hereof, if, with
respect to the Purchased Interest only, Assignor shall on or after the Effective
Date receive (a) any cash, note, securities, property, obligations or other
consideration in respect of or relating to the Loan or the Loan Documents or
issued in substitution or replacement of the Loan or the Loan Documents, (b) any
cash or non-cash consideration in any form whatsoever distributed, paid or
issued in any bankruptcy proceeding in connection with the Loan or the Loan
Documents or (c) any other distribution (whether by means of repayment,
redemption, realization of security or otherwise), Assignor shall accept the
same as Purchasing Bank's agent and hold the same in trust on behalf of and for
the benefit of Purchasing Bank, and shall deliver the same forthwith to
Purchasing Bank in the same form received, with the endorsement (without
recourse) of Assignor when necessary or appropriate. If the Assignor shall fail
to deliver any funds received by it within the same Business Day of receipt,
unless such funds are received by Assignor after 4:00 p.m., Eastern Standard
Time, then the following business day after receipt, said funds shall accrue
interest at the federal funds interest rate and in addition to promptly
remitting said amount, Assignor
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shall remit such interest from the date received to the date such amount is
remitted to the Purchasing Bank.
12. Assignor and Purchasing Bank each hereby agree to
indemnify and hold harmless the other, each of its directors and each of its
officers in connection with any claim or cause of action based on any matter or
claim based on the acts of either while acting as a Bank under the Credit
Agreement. Promptly after receipt by the indemnified party under this Section of
notice of the commencement of any action, such indemnified party shall notify
the indemnifying party in writing of the commencement thereof. If any such
action is brought against any indemnified party and that party notifies the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof. In no event
shall the indemnified party settle or consent to a settlement of such cause of
action or claim without the consent of the indemnifying party.
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13. THIS TRANSFER SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
Wire Transfer Instructions: --------------------------------------
By:
-----------------------------------
Name:
Title:
--------------------------------------
By:
-----------------------------------
Name:
Title:
Receipt Acknowledged this
___ day of ___, 199_:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Lead Agent
By:
-----------------------------
Name:
Title:
130
EXHIBIT C
Unleveraged Assets Information
(1) Location
(2) Purchase price or value
(3) Rent roll
(4) Square footage of improvements; percentage leased
(5) ownership interest (fee/leasehold)
(6) disclosure of any material environmental condition
131
EXHIBIT D
Form of Money Market Quote Request
----------------------------------
[Date]
To: Xxxxxx Guaranty Trust Company of New York (the "Lead Agent")
From: TriNet Corporate Realty Trust, Inc.
Re: Second Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of April 22, 1997 among TriNet Corporate
Realty Trust, Inc., the Banks parties thereto and the Lead Agent
We hereby give notice pursuant to Section 2.3 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount* Interest Period**
----------------- -----------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
The funding of Money Market Loans made in connection with this
Money Market Quote Request [may/may not] be made by Designated Lenders.
Terms used herein have the meanings assigned to them in the
Credit Agreement.
TriNet Corporate Realty Trust, Inc.
By________________________
Name:
Title:
----------
* Amount must be $10,000,000 or a larger multiple of $500,000.
** Not less than one month (LIBOR Auction) or not less than 30 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest
Period.
132
EXHIBIT E
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to TriNet Corporate Realty Trust, Inc.
(the "Borrower")
Pursuant to Section 2.3 of the Second Amended and Restated Credit
Agreement dated as of April 22, 1997 among TriNet Corporate Realty Trust, Inc.,
the Banks parties thereto and the undersigned, as Lead Agent, we are pleased on
behalf of the Borrower to invite you to submit Money Market Quotes to the
Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than 10:00 A.M.
(New York City time) on [date].
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Lead Agent
By______________________
Authorized Officer
133
EXHIBIT F
Form of Money Market Quote
--------------------------
To: Xxxxxx Guaranty Trust Company of New York, as Lead Agent
Re: Money Market Quote to TriNet Corporate Realty Trust, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
_____________________________
3. Date of Borrowing:____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
----------------------------------------------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans
for which the above offers may be accepted shall not exceed
$____________.]**
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in
the Second Amended and Restated Credit Agreement dated as of April 22,
1997 among TriNet Corporate Realty Trust, Inc., the Banks parties
thereto and yourselves, as Lead Agent, irrevocably obligates us to make
the Money Market Loan(s) for which any offer(s) are accepted, in whole
or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
134
FORM OF DESIGNATION AGREEMENT
-----------------------------
Dated _____________, 199___
Reference is made to that certain Second Amended and Restated
Revolving Credit Agreement dated as of April 22, 1997 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement") among TRINET
CORPORATE REALTY TRUST, INC., the banks parties thereto, and XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK (the "Lead Agent"), as Lead Agent. Terms defined in
the Credit Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the
"Designee"), the Lead Agent and Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make Money Market Loans
pursuant to Article III of the Credit Agreement. Any assignment by Designor to
Designee of its rights to make a Money Market Loan pursuant to such Article III
shall be effective at the time of the funding of such Money Market Loan and not
before such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each
Loan Document, together with copies of the financial statements referred to in
Articles IV and V of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will
independently and without reliance upon the Lead Agent, the Designor or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under any Loan Document; (c) confirms that it is a Designated
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Lender; (d) appoints and authorizes the Lead Agent to take such action as agent
on its behalf and to exercise such powers and discretion under any Loan Document
as are delegated to the Lead Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; and (e) agrees to be
bound by each and every provision of each Loan Document and further agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of any Loan Document are required to be performed by it as a Bank.
4. The Designee hereby appoints Designor as Designee's agent and
attorney in fact, and grants to Designor an irrevocable power of attorney, to
receive payments made for the benefit of Designee under the Credit Agreement, to
deliver and receive all communications and notices under the Credit Agreement
and other Loan Documents and to exercise on Designee's behalf all rights to vote
and to grant and make approvals, waivers, consents of amendments to or under the
Credit Agreement or other Loan Documents. Any document executed by the Designor
on the Designee's behalf in connection with the Credit Agreement or other Loan
Documents shall be binding on the Designee. The Borrower, the Lead Agent and
each of the Banks may rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Lead Agent for acceptance
and recording by the Lead Agent. The effective date for this Designation
Agreement (the "Effective Date") shall be the date of acceptance hereof by the
Lead Agent, unless otherwise specified on the signature page thereto.
6. The Lead Agent hereby agrees that it will not institute
against any Designated Lender or join any other Person in instituting against
any Designated Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any federal or state bankruptcy or similar law,
until the later to occur of (i) one year and one day after the payment in full
of the latest maturing commercial paper note issued by such Designated Lender
and (ii) the Maturity Date.
7. The Designor unconditionally agrees to pay or reimburse the
Designee and save the Designee harmless against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed or asserted
by any of the parties to the Loan Documents against the Designee, in its
capacity as such, in any way relating to or arising out of this Agreement or any
other Loan Documents or any action taken or
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136
omitted by the Designee hereunder or thereunder, provided that the Designor
shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
if the same results from the Designee's gross negligence or willful misconduct.
8. Upon such acceptance and recording by the Lead Agent, as of
the Effective Date, the Designee shall be a party to the Credit Agreement with a
right (subject to the provisions of Section 2.3(b)) to make Money Market Loans
as a Bank pursuant to Section 2.3 of the Credit Agreement and the rights and
obligations of a Bank related thereto; provided, however, that the Designee
shall not be required to make payments with respect to such obligations except
to the extent of excess cash flow of such Designee which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable. Notwithstanding the foregoing, the Designor, as administrative agent
for the Designee, shall be and remain obligated to the Borrower, the Co-Agents
and the Banks for each and every of the obligations of the Designee and its
Designor with respect to the Credit Agreement, including, without limitation,
any indemnification obligations under Section 7.6 of the Credit Agreement and
any sums otherwise payable to the Borrower by the Designee.
9. This Designation Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
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IN WITNESS WHEREOF, the Designor and the Designee, intending to
be legally bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date:
________________________, 199__
[NAME OF DESIGNOR], as Designor
By:__________________________________
Title:_______________________________
[NAME OF DESIGNEE] as Designee
By:__________________________________
Title:_______________________________
Applicable Lending Office
(and address for notices):
[ADDRESS]
Accepted this _____ day
of ____ , 19__
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Lead Agent
By:__________________________________
Title:_______________________________
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139
SCHEDULE 4.17
140
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.................................................... 3
SECTION 1.2. Accounting Terms and Determinations............................ 31
SECTION 1.3. Types of Borrowings............................................ 31
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend............................................ 32
SECTION 2.2. Notice of Committed Borrowing.................................. 32
SECTION 2.3. Money Market Borrowings........................................ 34
SECTION 2.4. Notice to Banks; Funding of Loans.............................. 40
SECTION 2.5. Notes.......................................................... 42
SECTION 2.6 Letters of Credit.............................................. 43
SECTION 2.7. Method of Electing Interest Rates.............................. 46
SECTION 2.8. Interest Rates................................................. 48
SECTION 2.9. Fees........................................................... 52
SECTION 2.10. Maturity Date................................................. 53
SECTION 2.11. Mandatory Prepayment.......................................... 53
SECTION 2.12. Optional Prepayments.......................................... 54
SECTION 2.13. General Provisions as to Payments............................. 56
SECTION 2.14. Funding Losses................................................ 57
SECTION 2.15. Computation of Interest and Fees.............................. 57
SECTION 2.16. Use of Proceeds............................................... 57
SECTION 2.17. Letter of Credit Usage Absolute............................... 58
ARTICLE III
CONDITIONS
SECTION 3.1. Closing........................................................ 59
SECTION 3.2. Borrowings..................................................... 61
SECTION 3.3. New Acquisitions and Additional Real Property Assets........... 62
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
141
Page
----
SECTION 4.1. Existence and Power..................................... 63
SECTION 4.2. Power and Authority..................................... 63
SECTION 4.3. No Violation............................................ 64
SECTION 4.4. Financial Information................................... 64
SECTION 4.5. Litigation.............................................. 65
SECTION 4.6. Compliance with ERISA................................... 65
SECTION 4.7. Environmental Matters................................... 65
SECTION 4.8. Taxes................................................... 66
SECTION 4.9. Full Disclosure......................................... 66
SECTION 4.10. Solvency............................................... 66
SECTION 4.11. Use of Proceeds; Margin Regulations.................... 67
SECTION 4.12. Governmental Approvals................................. 67
SECTION 4.13. Investment Company Act; Public Utility Holding
Company Act.......................................... 67
SECTION 4.14. Principal Offices...................................... 67
SECTION 4.15. REIT Status............................................ 67
SECTION 4.16. Patents, Trademarks, etc............................... 68
SECTION 4.17. Ownership of Property.................................. 68
SECTION 4.18. No Default............................................. 68
SECTION 4.19. Licenses, etc.......................................... 68
SECTION 4.20. Compliance With Law.................................... 68
SECTION 4.21. No Burdensome Restrictions............................. 69
SECTION 4.22. Brokers' Fees.......................................... 69
SECTION 4.23. Labor Matters.......................................... 69
SECTION 4.24. Insurance.............................................. 69
SECTION 4.25. Organizational Documents............................... 70
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
SECTION 5.1. Information............................................ 70
SECTION 5.2. Payment of Obligations................................. 74
SECTION 5.3. Maintenance of Property; Insurance; Leases............. 74
SECTION 5.4. Conduct of Business and Maintenance of Existence....... 75
SECTION 5.5. Compliance with Laws................................... 76
SECTION 5.6. Inspection of Property, Books and Records.............. 76
SECTION 5.7. Existence.............................................. 76
SECTION 5.8. Financial Covenants.................................... 76
SECTION 5.9. Restriction on Fundamental Changes..................... 77
SECTION 5.10. Changes in Business.................................... 78
SECTION 5.11. Margin Stock........................................... 78
SECTION 5.12. Hedging Requirements................................... 78
SECTION 5.13. Borrower Status........................................ 79
SECTION 5.14. Sale of Unleveraged Assets............................. 79
SECTION 5.15. Liens; Release of Liens................................ 79
SECTION 5.16. New Acquisitions....................................... 80
SECTION 5.17. Development Activities................................. 80
SECTION 5.18. Business Loans......................................... 81
142
SECTION 5.19. No Bankruptcy Proceedings.............................. 81
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default....................................... 81
SECTION 6.2. Rights and Remedies..................................... 84
SECTION 6.3. Notice of Default....................................... 85
ARTICLE VII
THE AGENTS
SECTION 7.1. Appointment and Authorization........................... 87
SECTION 7.2. Agency and Affiliates................................... 88
SECTION 7.3. Action by Lead Agent and Managing Co-Agent.............. 88
SECTION 7.4. Consultation with Experts............................... 88
SECTION 7.5. Liability of Lead Agent and Managing Co-Agent........... 88
SECTION 7.6. Indemnification......................................... 89
SECTION 7.7. Credit Decision......................................... 89
SECTION 7.8. Successor Lead Agent or Managing Co-Agent............... 89
SECTION 7.9. Financial Covenants..................................... 90
SECTION 7.10. Receipt of Notices...................................... 91
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair.................................................. 91
SECTION 8.2. Illegality.............................................. 92
SECTION 8.3. Increased Cost and Reduced Return....................... 93
SECTION 8.4. Taxes................................................... 95
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar
Loans................................................... 97
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices................................................. 98
SECTION 9.2. No Waivers.............................................. 98
SECTION 9.3. Expenses; Indemnification............................... 99
SECTION 9.4. Sharing of Set-Offs.....................................100
SECTION 9.5. Amendments and Waivers..................................101
SECTION 9.6. Successors and Assigns..................................102
SECTION 9.7. Collateral..............................................105
143
SECTION 9.8. Governing Law; Submission to Jurisdiction...............105
SECTION 9.9. Marshalling; Recapture..................................106
SECTION 9.10. Counterparts; Integration; Effectiveness...............106
SECTION 9.11. WAIVER OF JURY TRIAL...................................107
SECTION 9.12. Survival...............................................107
SECTION 9.13. Domicile of Loans......................................107
SECTION 9.14. Limitation of Liability................................107
SECTION 9.15. Recourse Obligation....................................107
SECTION 9.16. Confidentiality........................................107
SECTION 9.17. Legal Rate.............................................108
Exhibit A - Form of Note
Exhibit A-1 - Form of Designated Lender Note
Exhibit B - Transfer Supplement
Exhibit C - Unleveraged Assets Information
Exhibit D - Form of Money Market Quote Request
Exhibit E - Form of Invitation for Money Market Quotes
Exhibit F - Form of Money Market Quote
Exhibit G - Form of Designation Agreement
Schedule 4.17 - Real Property owned or leased by Borrower
