Exhibit 10.14
FACILITY I
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CREDIT AGREEMENT
by and among
NEW PLAN EXCEL REALTY TRUST, INC.
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK
as Administrative Agent,
BANK ONE, NA
as a Co-Documentation Agent,
FLEET NATIONAL BANK
as a Co-Documentation Agent,
and
BANK OF AMERICA, N.A.
as Managing Agent
Dated as of October 22, 2001
BNY CAPITAL MARKETS, INC.
as Sole Lead Arranger
and Bookrunner
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TABLE OF CONTENTS
1. DEFINITIONS...............................................................1
1.1. DEFINED TERMS........................................................1
1.2. OTHER DEFINITIONAL PROVISIONS.......................................23
2. AMOUNT AND TERMS OF LOANS................................................24
2.1. REVOLVING CREDIT LOANS..............................................24
2.2. NOTES...............................................................24
2.3. PROCEDURE FOR REVOLVING CREDIT LOAN BORROWINGS OTHER THAN
COMPETITIVE BID BORROWINGS.................................................25
2.4. COMPETITIVE BID BORROWINGS AND PROCEDURE FOR COMPETITIVE BID
BORROWINGS.................................................................27
2.5. TERMINATION OR REDUCTION OF COMMITMENTS.............................31
2.6. REPAYMENT OF LOANS; EVIDENCE OF DEBT................................32
2.7. PREPAYMENTS OF THE LOANS............................................32
2.8. CONVERSIONS.........................................................33
2.9. INTEREST RATE AND PAYMENT DATES.....................................34
2.10. SUBSTITUTED INTEREST RATE...........................................36
2.11. TAXES; NET PAYMENTS.................................................37
2.12. ILLEGALITY..........................................................37
2.13. INCREASED COSTS.....................................................38
2.14. INDEMNIFICATION FOR BREAK FUNDING LOSSES............................39
2.15. USE OF PROCEEDS.....................................................40
2.16. CAPITAL ADEQUACY....................................................40
2.17. ADMINISTRATIVE AGENT'S RECORDS......................................41
3. FEES; PAYMENTS...........................................................42
3.1. FACILITY FEE........................................................42
3.2. PAYMENTS; APPLICATION OF PAYMENTS...................................42
4. REPRESENTATIONS AND WARRANTIES...........................................43
4.1. EXISTENCE AND POWER.................................................43
4.2. AUTHORITY...........................................................44
4.3. BINDING AGREEMENT...................................................44
4.4. SUBSIDIARIES; DOWNREIT PARTNERSHIPS.................................44
4.5. LITIGATION..........................................................44
4.6. REQUIRED CONSENTS...................................................45
4.7. NO CONFLICTING AGREEMENTS...........................................45
4.8. COMPLIANCE WITH APPLICABLE LAWS.....................................45
4.9. TAXES...............................................................46
4.10. GOVERNMENTAL REGULATIONS............................................46
4.11. FEDERAL RESERVE REGULATIONS; USE OF LOAN PROCEEDS...................46
4.12. PLANS; MULTIEMPLOYER PLANS..........................................46
4.13. FINANCIAL STATEMENTS................................................47
4.14. PROPERTY............................................................47
4.15. FRANCHISES, INTELLECTUAL PROPERTY, ETC..............................48
4.16. ENVIRONMENTAL MATTERS...............................................48
4.17. LABOR RELATIONS.....................................................49
4.18. BURDENSOME OBLIGATIONS..............................................49
4.19. SOLVENCY............................................................50
4.20. REIT STATUS.........................................................50
4.21. LIST OF UNENCUMBERED ASSETS.........................................50
4.22. OPERATION OF BUSINESS...............................................50
4.23. NO MISREPRESENTATION................................................51
5. CONDITIONS TO FIRST LOANS................................................51
5.1. EVIDENCE OF ACTION..................................................51
5.2. THIS AGREEMENT......................................................52
5.3. NOTES...............................................................52
5.4. GUARANTY............................................................52
5.5. OTHER CREDIT AGREEMENT..............................................52
5.6. LITIGATION..........................................................52
5.7. OPINION OF COUNSEL TO THE BORROWER..................................53
5.8. EVIDENCE OF TERMINATION OF THE PRIOR FACILITY I CREDIT
AGREEMENT..................................................................53
5.9. FEES................................................................53
5.10. FEES AND EXPENSES OF SPECIAL COUNSEL................................53
6. CONDITIONS OF LENDING - ALL LOANS........................................53
6.1. COMPLIANCE..........................................................53
6.2. LOAN CLOSINGS.......................................................54
6.3. BORROWING REQUEST...................................................54
6.4. DOCUMENTATION AND PROCEEDINGS.......................................54
6.5. REQUIRED ACTS AND CONDITIONS........................................54
6.6. APPROVAL OF SPECIAL COUNSEL.........................................55
6.7. SUPPLEMENTAL OPINIONS...............................................55
6.8. OTHER DOCUMENTS.....................................................55
7. AFFIRMATIVE COVENANTS....................................................55
7.1. FINANCIAL STATEMENTS................................................55
7.2. CERTIFICATES; OTHER INFORMATION.....................................57
7.3. LEGAL EXISTENCE.....................................................60
7.4. TAXES...............................................................60
7.5. INSURANCE...........................................................60
7.6. PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF OBLIGATIONS..............61
7.7. MAINTENANCE OF PROPERTY; ENVIRONMENTAL INVESTIGATIONS...............61
7.8. OBSERVANCE OF LEGAL REQUIREMENTS....................................61
7.9. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS..............62
7.10. LICENSES, INTELLECTUAL PROPERTY.....................................62
7.11. REQUIRED ADDITIONAL GUARANTORS......................................62
7.12. REIT STATUS; OPERATION OF BUSINESS..................................63
7.13. TERMINATION OF PRIOR FACILITY I CREDIT AGREEMENT....................63
8. NEGATIVE COVENANTS.......................................................64
8.1. LIENS...............................................................64
8.2. MERGER, CONSOLIDATION AND CERTAIN DISPOSITIONS OF PROPERTY..........64
8.3. INVESTMENTS, LOANS, ETC.............................................66
8.4. BUSINESS CHANGES....................................................68
8.5. AMENDMENTS TO ORGANIZATIONAL DOCUMENTS..............................68
8.6. BANKRUPTCY PROCEEDINGS..............................................68
8.7. SALE AND LEASEBACK..................................................68
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8.8. TRANSACTIONS WITH AFFILIATES........................................68
8.9. ISSUANCE OF ADDITIONAL CAPITAL STOCK BY SUBSIDIARY GUARANTORS.......69
8.10. HEDGING AGREEMENTS..................................................69
8.11. RESTRICTED PAYMENTS.................................................69
8.12. UNENCUMBERED ASSETS COVERAGE RATIO..................................70
8.13. FIXED CHARGE COVERAGE RATIO.........................................70
8.14. MINIMUM TANGIBLE NET WORTH..........................................70
8.15. MAXIMUM TOTAL INDEBTEDNESS..........................................70
8.16. LIABILITIES TO ASSETS RATIO.........................................71
8.17. MAXIMUM BOOK VALUE OF ANCILLARY ASSETS..............................71
9. DEFAULT..................................................................71
9.1. EVENTS OF DEFAULT...................................................71
10. THE AGENT................................................................75
10.1. APPOINTMENT.........................................................75
10.2. DELEGATION OF DUTIES................................................75
10.3. EXCULPATORY PROVISIONS..............................................75
10.4. RELIANCE BY ADMINISTRATIVE AGENT....................................76
10.5. NOTICE OF DEFAULT...................................................76
10.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS..............77
10.7. INDEMNIFICATION.....................................................77
10.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.....................78
10.9. SUCCESSOR ADMINISTRATIVE AGENT......................................78
10.10. EXCULPATION OF CO-DOCUMENTATION AGENTS AND MANAGING AGENT...........79
11. OTHER PROVISIONS.........................................................79
11.1. AMENDMENTS AND WAIVERS..............................................79
11.2. NOTICES.............................................................80
11.3. NO WAIVER; CUMULATIVE REMEDIES......................................81
11.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES..........................82
11.5. PAYMENT OF EXPENSES AND TAXES.......................................82
11.6. LENDING OFFICES.....................................................83
11.7. SUCCESSORS AND ASSIGNS..............................................83
11.8. DESIGNATED LENDER...................................................85
11.9. COUNTERPARTS........................................................86
11.10. ADJUSTMENTS; SET-OFF................................................87
11.11. LENDERS' REPRESENTATIONS............................................88
11.12. INDEMNITY...........................................................88
11.13. GOVERNING LAW.......................................................89
11.14. HEADINGS DESCRIPTIVE................................................89
11.15. SEVERABILITY........................................................89
11.16. INTEGRATION.........................................................89
11.17. CONSENT TO JURISDICTION.............................................89
11.18. SERVICE OF PROCESS..................................................89
11.19. NO LIMITATION ON SERVICE OR SUIT....................................90
11.20. WAIVER OF TRIAL BY JURY.............................................90
11.21. TERMINATION.........................................................90
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LIST OF EXHIBITS AND SCHEDULES
EXHIBITS:
Exhibit A - Assignment and Assumption Agreement
Exhibit B - Commitment Amounts
Exhibit C - Competitive Bid Borrowing Request
Exhibit D - Compliance Certificate
Exhibit E - Conventional Borrowing Request
Exhibit F - Subsidiary Guaranty
Exhibit G - [Reserved]
Exhibit H - Note
Exhibit I - Secretary's Certificate (Borrower)
Exhibit J - Secretary's Certificate (Guarantors)
Exhibit K - Points for Legal Opinions
Exhibit L - Designation Agreement
Exhibit M - Form of Notice of Conversion
Exhibit N - Form of Other Guaranty
SCHEDULES:
Schedule I - Domestic and Eurodollar Lending Offices
Schedule 4.4 - Subsidiaries (including Subsidiary Guarantors)
Schedule 4.5 - Litigation
Schedule 4.12 - Plans
Schedule 4.21 - Rent Roll and List of Unencumbered Assets
CREDIT AGREEMENT, dated as of October 22, 2001, by and among NEW PLAN
EXCEL REALTY TRUST, INC., a Maryland corporation (the "Borrower"), each lender
party hereto or which becomes a "Lender" or a "Designated Lender" pursuant to
the provisions of Section 11.7 or 11.8, respectively (each a "Lender" and,
collectively, the "Lenders"), THE BANK OF NEW YORK, as administrative agent (in
such capacity, the "Administrative Agent"), BANK ONE, NA and FLEET NATIONAL BANK
(each a "Co-Documentation Agent" and, collectively, the "Co-Documentation
Agents"), and BANK OF AMERICA, N.A., as Managing Agent (in such capacity, the
"Managing Agent").
1. DEFINITIONS
1.1. Defined Terms.
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR Advances": the Loans (or any portions thereof) at such time as
they (or such portions) are made and/or being maintained at a rate of interest
based upon the Alternate Base Rate.
"Accountants": PricewaterhouseCoopers LLP, or, after the date
hereof, any of: Xxxxxx Xxxxxxxx LLP; Deloitte & Touche LLP; Ernst & Young LLP;
KPMG LLP; or any successor to any of the foregoing; or such other firm of
certified public accountants of recognized national standing selected by the
Borrower and satisfactory to the Administrative Agent.
"Adjusted Net Operating Income": for any period, the aggregate
amount of the Net Operating Income from each Unencumbered Asset during such
period, less the Capital Expense Reserve for such Unencumbered Asset during such
period.
"Advance": an ABR Advance, a Eurodollar Advance or a Competitive
Bid Advance, as the case may be.
"Affected Advance": as defined in Section 2.10.
"Affected Principal Amount": in the event that (i) the Borrower
shall fail for any reason to borrow or convert after it shall have notified the
Administrative Agent of its intent to do so in any instance in which it shall
have requested a Eurodollar Advance pursuant to Section 2.3 or 2.8, or shall
have accepted one or more offers of Competitive Bid Advances under Section 2.4,
an amount equal to the principal amount of such Eurodollar Advance or
Competitive Bid Advance; (ii) a Eurodollar Advance or Competitive Bid Advance
shall terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such
Eurodollar Advance or Competitive Bid Advance; or (iii) the Borrower shall
prepay or repay all or any part of the principal amount of a Eurodollar Advance
or Competitive Bid Advance prior to the last day of the Interest Period
applicable thereto (including, without limitation, any mandatory prepayment or a
prepayment resulting from acceleration or illegality), an amount equal to the
principal amount of such Eurodollar Advance or Competitive Bid Advance so
prepaid or repaid.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, (i) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Rate in effect on such date plus
1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Ancillary Assets": at any time, all Real Property of the Borrower
and its Subsidiaries, or in which the Borrower or any Subsidiary of the Borrower
has an interest (either directly or indirectly), and which is (i) a Development
Asset, (ii) a mortgage, or (iii) any other Real Property other than an open air
shopping center (including single tenant retail properties) or a residential
apartment building or residential apartment community (and appurtenant
amenities).
"Applicable Facility Fee Percentage": at all times during which the
applicable Pricing Level set forth below is in effect, a rate per annum equal to
the following applicable percentage amount corresponding to such Pricing Level:
Pricing Level Applicable Facility Fee Percentage
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Pricing Level I 0.100%
Pricing Level II 0.125%
Pricing Level III 0.125%
Pricing Level IV 0.150%
Pricing Level V 0.175%
Pricing Level VI 0.250%
Pricing Level VII 0.350%.
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Changes in the Applicable Facility Fee Percentage resulting from a
change in a Pricing Level shall become effective as of the opening of business
upon the date of any change in the Borrower's Senior Debt Rating, as determined
by S&P or Xxxxx'x, as the case may be, which would affect the applicable Pricing
Level.
"Applicable Lending Office": in respect of any Lender, (i) in the
case of such Lender's ABR Advances and Competitive Bid Advances, its Domestic
Lending Office and (ii) in the case of such Lender's Eurodollar Advances, its
Eurodollar Lending Office.
"Applicable Margin": with respect to the unpaid principal balance of
Eurodollar Advances, at all times during which the applicable Pricing Level set
forth below is in effect, the respective percentage set forth below next to such
Pricing Level:
Pricing Level Applicable Margin
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Pricing Level I 0.525%
Pricing Level II 0.625%
Pricing Level III 0.625%
Pricing Level IV 0.725%
Pricing Level V 0.950%
Pricing Level VI 1.000%
Pricing Level VII 1.150%.
Changes in the Applicable Margin resulting from a change in a
Pricing Level shall become effective as of the opening of business upon the date
of any change in the Senior Debt Rating of the Borrower, as determined by S&P or
Xxxxx'x, as the case may be, which would affect the applicable Pricing Level.
"Assignment and Assumption Agreement": an assignment and assumption
agreement executed by an assignor and an assignee pursuant to which such
assignor assigns to such assignee all or any portion of such assignor's Notes
and Commitments, substantially in the form of Exhibit A.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": the chairman of the board, the president,
any vice president, the Chief Financial Officer or any other duly authorized
officer (acceptable to the Administrative Agent) of the Borrower.
"Available Commitment Amount": on any day during the Revolving
Credit Period, an amount equal to the Total Commitment Amount at such time minus
the total of all Competitive Bid Borrowings outstanding on such date.
"Benefited Lender": as defined in Section 11.10.
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"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrower's Interest": for any period, (i) with respect to
Unencumbered Assets owned by a DownREIT Partnership, a fraction, expressed as a
percentage, the numerator of which is the Net Operating Income of such
Unencumbered Assets for such period, less any distributions required to be made
to partners or members of such DownREIT Partnership, other than the Borrower and
its Subsidiaries, and the denominator of which is the Net Operating Income of
such Unencumbered Assets for such period, and (ii) with respect to any Ancillary
Asset, the percentage of profits and losses with respect thereto to which the
Borrower or its Subsidiaries, directly or indirectly, may be entitled to receive
for such period.
"Borrowing Date": any Business Day specified in a Borrowing Request
delivered pursuant to Section 2.3 or 2.4, as the case may be, as a date on which
the Borrower requests the Lenders to make Loans.
"Borrowing Request": a Conventional Borrowing Request or a
Competitive Bid Borrowing Request, as the case may be.
"Business Day": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which dealings in foreign currency and exchange
and Eurodollar funding between banks may be carried on in London, England.
"Capital Leases": leases which have been, or under GAAP are required
to be, capitalized.
"Capital Expense Reserve": during any period, (i) with respect to
each Unencumbered Asset other than a residential apartment building or
residential apartment community, an amount equal to (A) a per annum rate of $.20
times (B) the total Net Rentable Area of such Unencumbered Asset, and (ii) with
respect to each Unencumbered Asset that is a residential apartment building or
residential apartment community, an amount equal to (A) $150 times (B) the
number of apartment units in such residential apartment building or community
(in each case whether or not such reserves are actually established by the
Borrower).
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"Change of Control": the occurrence of any one of the following
events:
(a) any Person or Persons acting as a group shall acquire direct
or indirect ownership of 30% or more of the Borrower's common Stock; or
(b) during any twelve month period on or after the Effective Date,
individuals who at the beginning of such period constituted the Board of
Directors of the Borrower (together with any new directors whose election by the
Board of Directors or whose nomination for election by the shareholders of the
Borrower was approved by a vote of at least a majority of the members of the
Board of Directors then in office who either were members of the Board of
Directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office; or
(c) there occurs a change of control of the Borrower of a nature
that would be required to be reported in response to Item 1a of Form 8-K filed
pursuant to Section 13 or 15 under the Securities Exchange Act of 1934, or in
any other filing by the Borrower with the Securities and Exchange Commission; or
(d) the Borrower consolidates with, is acquired by, or merges into
or with any Person (other than a merger permitted by Section 8.2).
"Chief Financial Officer": at any time, the chief financial officer
of the Borrower, or if the Borrower does not have a chief financial officer at
such time, the officer designated by the Borrower as its principal financial
officer or such other officer of the Borrower that is acceptable to the
Administrative Agent.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's undertaking
during the Revolving Credit Period to make Revolving Credit Loans, subject to
the terms and conditions hereof, in an aggregate outstanding principal amount
not exceeding such Lender's Commitment Amount.
"Commitment Amount": the amount set forth next to the name of such
Lender in Exhibit B under the heading "Commitments" as such Lender's Commitment
Amount, as the same may be reduced pursuant to Section 2.5 or changed pursuant
to Section 11.7(b).
"Commitment Percentage": on any day, and as to any Lender, the
quotient of (i) such Lender's Commitment Amount on such day, divided by (ii) the
Commitments of all Lenders on such day.
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"Competitive Bid Advance": the Revolving Credit Loans (or any
portions thereof) at such time as they (or such portions) consist of Competitive
Bid Borrowings as provided for in Section 2.4.
"Competitive Bid Borrowing": a borrowing pursuant to Section 2.4
consisting of simultaneous Competitive Bid Advances from each Lender whose offer
to make a Competitive Bid Advance as part of such borrowing has been accepted by
the Borrower under the auction bidding procedure set forth in Section 2.4.
"Competitive Bid Borrowing Request": a borrowing request in the form
of Exhibit C.
"Competitive Bid Ceiling": at any time, an amount equal to 50% of
the Total Commitment Amount at such time.
"Compliance Certificate": a certificate substantially in the form of
Exhibit D.
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidated EBITDA": for any period, net income for such period of
the Borrower and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP, plus, without duplication and to the extent deducted in
determining such net income, the sum of (i) Consolidated Interest Expense for
such period, (ii) the aggregate amount of any taxes paid during such period,
(iii) the aggregate amount attributable to depreciation and amortization for
such period, (iv) the aggregate amount of extraordinary charges during such
period and (v) the aggregate amount of non-cash expenses during such period, and
minus, without duplication and to the extent added in determining such net
income for such period, the aggregate amount of extraordinary gains during such
period.
"Consolidated Fixed Charges": during any period, the sum of each of
the following with respect to the Borrower and its Subsidiaries (without
duplication), determined on a Consolidated basis in accordance with GAAP: (i)
the aggregate amount of all interest expense, both expensed and capitalized
(including Consolidated Interest Expense) for such period, (ii) the aggregate of
all scheduled principal amounts that become payable during such period in
respect of any Indebtedness of the Borrower or its Subsidiaries (excluding
balloon payments at maturity) and (iii) the aggregate amount of all cash
dividends paid during such period in respect of preferred stock of the Borrower
or its Subsidiaries.
"Consolidated Interest Expense": for any period, interest and fees
accrued, accreted or paid by the Borrower and its Subsidiaries during such
period in respect of
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Consolidated Total Indebtedness, determined in accordance with GAAP, including
(a) the amortization of debt discounts to the extent included in interest
expense in accordance with GAAP, (b) the amortization of all fees (including
fees with respect to interest rate cap agreements or other agreements or
arrangements entered into by the Borrower or any of its Subsidiaries designed to
protect the Borrower or such Subsidiaries, as applicable, against fluctuations
in interest rates) payable in connection with the incurrence of any Indebtedness
to the extent included in interest expense in accordance with GAAP and (c) the
portion of any rents payable under capital leases allocable to interest expense
in accordance with GAAP.
"Consolidated Total Indebtedness": as of any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP, plus, if not
otherwise required to be reflected in the Borrower's Consolidated balance sheet
(and without duplication) (i) Contingent Obligations of the Borrower and its
Subsidiaries on such date which are required in accordance with GAAP to be
disclosed in a footnote to any such balance sheet, and (ii) any guarantee by the
Borrower of any Indebtedness of an unconsolidated Subsidiary or joint venture in
which the Borrower is a direct or indirect investor (to the full extent of the
amount of such guaranteed Indebtedness on such date).
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("Primary Obligations") of any other Person (the
"Primary Obligor") in any manner, whether directly or indirectly, and whether
arising from partnership or keep-well agreements, including, without limitation,
any obligation of such Person, whether contingent or not contingent (a) to
purchase any such Primary Obligation or any Property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such Primary Obligation or (ii) to maintain working capital or
equity capital of the Primary Obligor or otherwise to maintain net worth,
solvency or other financial statement condition of the Primary Obligor, (c) to
purchase Property, securities or services primarily for the purpose of assuring
the beneficiary of any such Primary Obligation of the ability of the Primary
Obligor to make payment of such Primary Obligation or (d) otherwise to assure,
protect from loss or hold harmless the beneficiary of such Primary Obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include the endorsement of instruments for deposit or
collection in the ordinary course of business. The term Contingent Obligation
shall also include the liability of a general partner in respect of the
liabilities of the partnership in which it is a general partner. The amount of
any Contingent Obligation of a Person shall be deemed to be an amount equal to
the stated or determinable amount of the Primary Obligation in respect of which
such Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
such Person in good faith.
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"Conventional Advance": an ABR Advance and/or a Eurodollar Advance.
"Conventional Borrowing Request": a borrowing request in the form of
Exhibit E.
"Conversion Date": the date on which a Eurodollar Advance is
converted to an ABR Advance, or the date on which an ABR Advance is converted to
a Eurodollar Advance, or the date on which a Eurodollar Advance is converted to
a new Eurodollar Advance, all in accordance with Section 2.8.
"Credit Party": the Administrative Agent, the Lead Arranger, the
Co-Documentation Agents, the Managing Agent, each Lender and their successors
and assigns.
"Default": any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"Defaulting Lender": at any time, any Lender that, at such time, (i)
has failed to comply with any of its obligations to make a Loan as required
pursuant to Section 2.3 or 2.4 of this Agreement, (ii) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender pursuant to the
terms of this Agreement or any of the other Loan Documents, or (iii) has advised
the Administrative Agent that it does not intend to comply with its obligations
under Section 2.3 or 2.4 by reason of having been deemed insolvent or having
become subject to a bankruptcy or insolvency proceeding.
"Designated Lender": a special purpose corporation that is engaged
in making, purchasing, or otherwise investing in commercial loans in the
ordinary course of its business and that issues (or the parent of which issues)
commercial paper rated at least "Prime-1" (or the then equivalent grade) by
Moody's or "A-1" (or the then equivalent grade) by S&P that, in either case, (i)
is organized under the laws of the United States or any state thereof, (ii)
shall have become a party to this Agreement pursuant to Section 11.8 for the
sole purposes of funding Competitive Bid Advances on behalf of a Designating
Lender and (iii) is not otherwise a Lender.
"Designating Lender": as defined in Section 11.8.
"Designation Agreement": a designation agreement in substantially
the form of Exhibit L hereto entered into between a Lender (other than a
Designated Lender) and a Designated Lender, and accepted by the Administrative
Agent.
"Development Asset": any Property of the Borrower or its
Subsidiaries, or in which the Borrower or any of its Subsidiaries has an
interest (either directly or
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indirectly) (i) which is new construction, or which is undergoing an expansion
which will increase the Net Rentable Area of such Property by 20,000 square feet
or more (provided that with respect to any Property which is under expansion, if
the balance thereof is a fully integrated, rentable property, then only the
portion of such Property that is under expansion shall be a Development Asset),
and (ii) for which a certificate of occupancy, whether temporary or permanent,
or the functional equivalent thereof, has not been issued with respect to such
construction or expansion. Notwithstanding the foregoing, any such new
construction or expansion which shall have been a Development Asset under the
criteria of this definition shall no longer be a Development Asset upon such
time as (A) the same is an income-producing Property in operating condition, and
(B) at least 70% of the Net Rentable Area (determined on an "as completed"
basis) of such construction or expansion is initially leased to tenants who have
taken possession thereof.
"Dollars" and "$": lawful currency of the United States of America.
"Domestic Lending Office": in respect of any Lender, initially, the
office or offices of such Lender designated as such on Schedule I; thereafter,
such other office of such Lender through which it shall be making or maintaining
ABR Advances or Competitive Bid Advances, as reported by such Lender to the
Administrative Agent and the Borrower.
"DownREIT Partnership": Excel Realty Partners, L.P., E. H.
Properties, L.P. and any other partnership or limited liability company
hereafter created by the Borrower for the purpose of acquiring assets qualifying
as "real estate assets" under Section 856(c) of the Code through the issuance of
partnership or limited liability company units in such partnership or limited
liability company to third parties, provided that, in the case of each such
entity (including Excel Realty Partners, L.P. and E. H. Properties, L.P.) (i)
the Borrower or a wholly owned Subsidiary of the Borrower is the sole general
partner or managing member of such partnership or limited liability company, as
the case may be, and (ii) the Borrower or its wholly owned Subsidiary shall be
entitled to receive not less than 99% of the net income and gains before
depreciation, if any, from such partnership or limited liability company after
the limited partners or non-managing members of such partnership or limited
liability company receive a stipulated distribution. Any partnership or limited
liability company created after the Effective Date must be approved by the
Administrative Agent as a "DownREIT Partnership" for purposes of being included
in this definition.
"Effective Date": the date on which the conditions specified in
Section 5 are satisfied.
"Environmental Laws": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial
- 9 -
hygiene and including, without limitation, (i) the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 USCA Section 9601 et
seq.; (ii) the Resource Conservation and RecoveRy Act of 1976, as amended, 42
USCA Section 6901 et seq.; (iii) the Toxic Substance Control Act, as amended, 15
USCA Section 2601 et seq.; (iv) the Water Pollution Control Act, as amended, 33
USCA Section 1251 et seq.; (v) the Clean Air Act, as amended, 42 USCA Section
7401 et seq.; (vi) the Hazardous Material TransportatioN Act, as amended, 49
USCA Section 1801 et seq. and (viii) all rules, regulations, judgments, decrees,
injunctions and restrictions thereunder and any analogous state law.
"Environmental Risk Property": any Real Property of the Borrower,
a Subsidiary Guarantor or a DownREIT Partnership in respect of which, at any
time:
(i) Hazardous Substances are (A) generated or manufactured
on, transported to or from, treated at, stored at or discharged from such
Real Property in violation of any Environmental Laws; (B) discharged into
subsurface waters under such Real Property in violation of any
Environmental Laws; or (C) discharged from such Real Property on or into
property or waters (including subsurface waters) adjacent to such Real
Property in violation of any Environmental Laws, and any of the foregoing
events in (A), (B) or (C) has an Adverse Environmental Impact; or
(ii) there exists with respect to such Real Property (A) a
claim, demand, suit, action, proceeding, condition, report, directive,
lien, violation, or non-compliance concerning any liability (including,
without limitation, potential liability for enforcement, investigatory
costs, cleanup costs, government response costs, removal costs, remedial
costs, natural resources damages, property damages, personal injuries or
penalties) arising in connection with: (x) any non-compliance with or
violation of the requirements of any applicable Environmental Laws, or (y)
the presence of any Hazardous Substance on such Real Property or the
release of any Hazardous Substance into the environment from such Real
Property, or (B) any actual liability in connection with the presence of
any Hazardous Substance on such Real Property or the release of any
Hazardous Substance into the environment from such Real Property, and any
of the foregoing events in (A) or (B) has an Adverse Environmental Impact.
For purposes of this definition, the term "Adverse Environmental
Impact" shall mean any event described in clauses (A), (B) or (C) of
paragraph (i) above or clauses (A) or (B) of paragraph (ii) above which
could reasonably be expected to have a material adverse effect on (1) the
value of such Real Property, (2) the marketability of such Real Property,
or (3) the ability to finance or refinance such Real Property.
- 10 -
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA Affiliate": any Person which is a member of any group of
organizations (i) described in Section 414(b) or (c) of the Code of which the
Borrower is a member, or (ii) solely for purposes of potential liability under
Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the Lien
created under Section 302(f) of ERISA and Section 412(n) of the Code, described
in Section 414(m) or (o) of the Code of which the Borrower is a member.
"ERISA Liabilities": without duplication, the aggregate of all
unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advance": collectively, the Loans (or any portions
thereof), other than Competitive Bid Advances, at such time as they (or such
portions) are made and/or being maintained at a rate of interest based upon a
particular Eurodollar Rate; and "Eurodollar Advances" shall mean all such
Eurodollar Advances in the aggregate.
"Eurodollar Lending Office": in respect of any Lender, initially,
the office, branch or affiliate of such Lender designated as such on Schedule I
(or, if no such office branch or affiliate is specified, its Domestic Lending
Office); thereafter, such other office, branch or affiliate of such Lender
through which it shall be making or maintaining Eurodollar Advances, as reported
by such Lender to the Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to each Eurodollar Advance and as
determined by the Administrative Agent, the rate of interest per annum (rounded,
if necessary, to the nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%,
then to the next higher 1/100 of 1%) equal to a fraction, the numerator of which
is the rate per annum quoted by BNY at approximately 12:00 P.M. (or as soon
thereafter as practicable) two Eurodollar Business Days prior to the first day
of such Interest Period to leading banks in the interbank eurodollar market as
the rate at which BNY is offering Dollar deposits in an amount approximately
equal to its Commitment Percentage of such Eurodollar Advance and having a
period to maturity approximately equal to the Interest Period applicable to such
Eurodollar Advance, and the denominator of which is an amount equal to 1.00
minus the aggregate of the then stated maximum rates during such Interest Period
of all reserve requirements (including marginal, emergency, supplemental and
special reserves), expressed as a decimal, established by the Board of Governors
of the Federal Reserve System and any other banking authority to which BNY and
other major United States money center banks are subject, in respect of
eurocurrency liabilities.
- 11 -
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time or any
other condition specified in Section 9 has been satisfied.
"Facility Fee": as defined in Section 3.1.
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if the day for which such rate
is to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions received by BNY as
determined by BNY and reported to the Administrative Agent.
"Financial Statements": as defined in Section 4.13.
"Fixed Charge Coverage Ratio": for any period, the ratio of (i)
Consolidated EBITDA during such period to (ii) Consolidated Fixed Charges during
such period.
"Fixed Rate Advance": A Eurodollar Advance or a Competitive Bid
Advance.
"Funds from Operations": With respect to any Person for any fiscal
period, the sum of (i) the net income of such Person for such fiscal period
(computed in accordance with GAAP), excluding gains (or losses) from debt
restructuring and sales of property, (ii) depreciation and amortization, and
(iii) other non-cash items, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures will be calculated to reflect funds from operations on the same
basis.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statement 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, consistently applied.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial,
- 12 -
regulatory or administrative functions of or pertaining to government and any
court or arbitrator.
"Ground Lease": a ground lease in favor of the Borrower, a wholly
owned Subsidiary or a DownREIT Partnership which has an unexpired term of 30
years or more (inclusive of any tenant-controlled renewal options) and which
includes within its terms those rights customarily required by mortgagees making
a loan secured by the interest of the holder of the leasehold estate demised
pursuant to such ground lease.
"Guaranty": collectively, (i) a guaranty, substantially in the form
of Exhibit F executed by each of the Subsidiary Guarantors identified on
Schedule 4.4 and delivered to the Administrative Agent for the benefit of the
Lenders on or prior to the Effective Date, (ii) each additional guaranty
substantially in the form of Exhibit F executed by each Required Additional
Guarantor and delivered to the Administrative Agent for the benefit of the
Lenders after the Effective Date and (iii) each Other Guaranty.
"Hazardous Substance": any hazardous or toxic substance, material or
waste, including, but not limited to, (i) those substances, materials, and
wastes listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and amendments thereto and replacements
therefor and (ii) any substance, pollutant or material defined as, or designated
in, any Environmental Law as a "hazardous substance," "toxic substance,"
"hazardous material," "hazardous waste," "restricted hazardous waste,"
"pollutant," "toxic pollutant" or words of similar import.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Highest Lawful Rate": with respect to any Lender, the maximum rate
of interest, if any, that at any time or from time to time may be contracted
for, taken, charged or received by such Lender on its Note or which may be owing
to such Lender pursuant to this Agreement under the laws applicable to such
Lender and this Agreement.
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (a) indebtedness for borrowed money
(including, without limitation, indebtedness under this Agreement and the Notes)
or the deferred purchase price of Property (other than trade payables incurred
in the ordinary course of business), (b) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (c) obligations with respect to any
conditional sale or title retention agreement, (d) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer
- 13 -
in respect of the issuer's payment of such drafts, (e) all liabilities secured
by any Lien on any Property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof (other than
carriers', warehousemen's, mechanics', repairmen's or other like non-consensual
statutory Liens arising in the ordinary course of business), (f) obligations
under Capital Leases, (g) Contingent Obligations and (h) ERISA Liabilities.
"Indemnified Person": as defined in Section 11.12.
"Intellectual Property": all copyrights, trademarks, patents, trade
names and service names.
"Interest Payment Date": (i) as to any ABR Advance, the first day of
each month commencing on the first such day to occur after such ABR Advance is
made or any Eurodollar Advance is converted to an ABR Advance, (ii) as to any
Eurodollar Advance in respect of which the Borrower has selected an Interest
Period of one, two or three months, the last day of such Interest Period, (iii)
as to any Eurodollar Advance in respect of which the Borrower has selected an
Interest Period of six months, the day which is three months after the first day
of such Interest Period and the last day of such Interest Period, (iv) as to any
Competitive Bid Advance in respect of which the Borrower has selected an
Interest Period of 90 days or less, the last day of the Interest Period
applicable thereto, and (v) as to any Competitive Bid Advance in respect of
which the Borrower has selected an Interest Period of more than 90 days, the day
which is 90 days after the first day of such Interest Period and the last day of
such Interest Period.
"Interest Period": (i) with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or Conversion Date with respect to such Eurodollar Advance and
ending one, two, three or six months thereafter, as selected by the Borrower in
its irrevocable Borrowing Request as provided in Section 2.3 or its irrevocable
notice of conversion as provided in Section 2.8, and (ii) with respect to any
Competitive Bid Advance, the period commencing on the Borrowing Date with
respect to such Competitive Bid Advance and ending on the maturity date thereof
specified in the Competitive Bid Borrowing Request with respect thereto given
pursuant to Section 2.4; provided, however, that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(a) if any Interest Period pertaining to a Eurodollar Advance
would otherwise end on a day which is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding Business
Day;
(b) if, with respect to the borrowing of any Loan as a Eurodollar
Advance or the conversion of one Advance to another pursuant to Section 2.8, the
- 14 -
Borrower shall fail to give due notice as provided in Section 2.3 or 2.8, as the
case may be, the Borrower shall be deemed to have elected that such Loan or
Advance shall be made as an ABR Advance;
(c) any Interest Period that begins on the last 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 end on the last
Business Day of a calendar month;
(d) with respect to any Interest Period applicable to a
Competitive Bid Advance or a Eurodollar Advance no such Interest Period shall
end after the Revolving Credit Termination Date;
(e) the Borrower shall select Interest Periods so as not to have
more than six different Interest Periods outstanding at any one time with
respect to Eurodollar Advances and three different Interest Periods outstanding
at any one time with respect to Competitive Bid Advances;
(f) no Interest Period pertaining to a Competitive Bid Advance
shall be shorter than 7 days or longer than 180 days;
(g) each Interest Period for a Competitive Bid Advance must
commence and end on a Business Day.
"Investments": as defined in Section 8.3.
"Lead Arranger": BNY Capital Markets, Inc.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan" and "Loans": a Revolving Credit Loan (or Loans) and/or a
Competitive Bid Borrowing (or Borrowings), as the case may be. All Loans shall
be made in Dollars.
"Loan Documents": collectively, this Agreement, the Guaranty (and
each Guaranty subsequently delivered pursuant to Section 7.11) and the Notes.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
- 15 -
"Material Adverse Effect": a material adverse effect on (i) the
financial condition, operations, business, or Properties of (A) the Borrower or
(B) the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the
Borrower to perform its obligations under the Loan Documents or (iii) the
ability of the Administrative Agent and the Lenders to enforce the Loan
Documents.
"Maturity Date": (i) with respect to Revolving Credit Loans made as
Conventional Advances, the earlier of the Revolving Credit Termination Date or
the date on which the Notes shall become due and payable, whether by
acceleration or otherwise, and (ii) with respect to Competitive Bid Borrowings,
the date each such Competitive Bid Borrowing is due in accordance with Section
2.4(f) or by acceleration.
"Moody's": Xxxxx'x Investors Services, Inc.
"Multiemployer Plan": a plan defined as such Section 3(37) of ERISA
to which contributions have been made by the Borrower or any ERISA Affiliate and
which is covered by Title IV of ERISA.
"Net Operating Income": for any period and with respect to all
assets which are Unencumbered Assets during such period, net income for such
period, determined in accordance with GAAP, attributable to Unencumbered Assets,
plus depreciation and amortization, interest expense and any extraordinary or
non-recurring losses deducted in calculating such net income, minus
extraordinary or non-recurring gains and payments (including rent insurance
proceeds and condemnation awards) included in such net income, minus any portion
of such net income attributable to rents paid by any tenant which is an
Affiliate of the Borrower, minus an amount (but not less than zero) equal to the
difference between (i) 3% of Operating Income for such period, less (ii)
management fees payable in respect of such Unencumbered Assets during such
period. For purposes of any calculation of Net Operating Income, real estate
taxes, ground rent and insurance, shall be included only at their stabilized,
recurring levels.
"Net Rentable Area": with respect to any Real Property, the floor
area of any buildings, structures or improvements thereof (expressed in square
feet) available for leasing to tenants, as determined in accordance with the
leases or site plans or leasing plans for such Real Property, or if such leases
or site plans do not set forth the floor area demised thereunder (or if such
Real Property is not subject to a lease), then as determined by the Borrower in
accordance with an industry-accepted protocol approved by the Administrative
Agent.
"Non-Recourse Exclusions": With respect to any Indebtedness of any
Person which is secured by one or more parcels of Real Property or interests
therein and which is not a general obligation of such Person, any usual and
customary exclusions from the non-recourse limitations governing such
Indebtedness, including, without limitation, exclusions for claims that (i) are
based on fraud, intentional misrepresentation
- 16 -
or misapplication of funds, (ii) result from intentional mismanagement of or
waste at such Real Property, (iii) arise from the presence of Hazardous
Substances on such Real Property; or (iv) are the result of any unpaid real
estate taxes and assessments.
"Non-Recourse Indebtedness": At any time, Indebtedness of the
Borrower and of its Subsidiaries at such time which is secured by one or more
parcels of Real Property or interests therein and which is not a general
obligation of the Borrower or such Subsidiary, the holder of such Indebtedness
having recourse solely to the parcels of Real Property securing such
Indebtedness, the leases thereon and the rents and profits thereof (except for
recourse against the general credit of the Borrower or its Subsidiaries for any
Non-Recourse Exclusions), provided that in calculating the amount of
Non-Recourse Indebtedness at any time, the amount of any Non-Recourse Exclusions
which are the subject of a final judgment shall not be included in Non-Recourse
Indebtedness.
"Note" and "Notes": as defined in Section 2.2.
"Operating Property": Any Real Property which at any time (i) is an
income-producing property in operating condition and in respect of which no
material part thereof has been damaged by fire or other casualty (unless such
damage has been repaired) or condemned (unless such condemnation has been
restored), (ii) is a retail shopping center, residential apartment building,
office building or other operating Property, (iii) for which a certificate of
occupancy, whether temporary or permanent, or the functional equivalent thereof,
has been issued for all improvements comprising the same and are in full force
and effect, and (iv) is at least 60% occupied by tenants who have accepted the
property and are paying rent in accordance with the terms of their leases, and
"Operating Properties" means all such Operating Properties, collectively.
"Other Credit Agreement": that certain Credit Agreement (Facility
II) dated as of November 17, 1999 among the Borrower, the Administrative Agent,
the Co-Documentation Agents and the lenders party thereto providing for a senior
revolving credit facility in favor of the Borrower, as the same has been amended
and as may be hereafter amended from time to time.
"Other Guaranty" each guaranty substantially in the form of Exhibit
N executed by each Other Guarantor and delivered to the Administrative Agent for
the benefit of the Lenders after the Effective Date.
"Other Guarantor": any wholly-owned Subsidiary required to execute
and deliver an Other Guaranty pursuant to Section 7.11(b).
"Participating Lender": defined in Section 2.4.
- 17 -
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": an individual, a partnership, a corporation, a business
trust, a limited liability company, a joint stock company, a trust, an
unincorporated association, a joint venture, a Governmental Authority or any
other entity of whatever nature.
"Plan": any employee benefit or other plan established or maintained
by the Borrower or any ERISA Affiliate and which is covered by or subject to the
minimum funding standards of Title IV of ERISA, other than a Multiemployer Plan.
"Pricing Level": one of the following seven pricing levels, as
applicable, provided that if the ratings by S&P and Moody's in any such Pricing
Level are split by more than one equivalent rating level, the operative rating
would be deemed to be one rating level higher than the lower of the two ratings,
and provided, further, that during any period that the Borrower has no Senior
Debt Rating, Pricing Level VII would be the applicable Pricing Level:
"Pricing Level I": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is greater than or equal to AA- by S&P
or Aa3 by Moody's;
"Pricing Level II": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is greater than or equal to A by S&P or
A2 by Moody's and Pricing Level I is not applicable;
"Pricing Level III": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A- by
S&P or A3 by Moody's and Pricing Levels I and II are not applicable;
"Pricing Level IV": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is greater than or equal to BBB+ by S&P
or Baa1 by Moody's and Pricing Levels I, II and III are not applicable;
"Pricing Level V": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is equal to BBB by S&P or Baa2 by
Moody's and Pricing Levels I, II, III and IV are not applicable;
"Pricing Level VI": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is equal to BBB- by S&P or Baa3 by
Moody's and Pricing Levels I, II, III, IV and V are not applicable; and
- 18 -
"Pricing Level VII": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is less than or equal to BB+ by S&P or
Ba1 by Xxxxx'x and Pricing Levels I, II, III, IV, V and VI are not
applicable.
"Prior Facility I Credit Agreement" shall mean that certain Credit
Agreement (Facility I) dated as of November 17, 1999 among the Borrower, the
Administrative Agent, the Co-Documentation Agents and the lenders signatory
thereto, as amended.
"Property": all types of real, personal, tangible, intangible or
mixed property.
"Proposed Bid Rate": as applied to any Remaining Interest Period
with respect to a Lender's Competitive Bid Advance, the rate per annum that such
Lender in good faith would have quoted to the Borrower had the Borrower
requested that such Lender offer to make a Competitive Bid Advance on the first
day of such Remaining Interest Period, assuming no Default or Event of Default
existed on such day and that the Borrower had the right to borrow hereunder on
such day; each such rate to be determined by such Lender in good faith in its
sole discretion.
"Rated Period": Any period during which S&P and Xxxxx'x are
maintaining a Senior Debt Rating and such Senior Debt Rating is at least BBB- as
determined by S&P, and at least Baa3, as determined by Xxxxx'x.
"Real Property": all real Property, and all interests in real
Property, owned, leased or held by the Borrower or any Subsidiary of the
Borrower.
"REIT": a Person qualifying as a real estate investment trust under
sections 856-859 of the Code and the regulations and rulings of the Internal
Revenue Service issued thereunder.
"Remaining Interest Period": (i) in the event that the Borrower
shall fail for any reason to borrow a Loan in respect of which it shall have
requested a Eurodollar Advance or convert an Advance to a Eurodollar Advance
after it shall have notified the Administrative Agent of its intent to do so
pursuant to Section 2.3 or 2.8 or accepted one or more offers of Competitive Bid
Advances under Section 2.4, a period equal to the Interest Period that the
Borrower elected in respect of such Eurodollar Advance or Competitive Bid
Advance; or (ii) in the event that a Eurodollar Advance or Competitive Bid
Advance shall terminate for any reason prior to the last day of the Interest
Period applicable thereto, a period equal to the remaining portion of such
Interest Period if such Interest Period had not been so terminated; or (iii) in
the event that the Borrower shall prepay or repay all or any part of the
principal amount of a Eurodollar Advance or Competitive Bid Advance (including,
without limitation, any mandatory prepayment or a prepayment resulting from
acceleration or illegality) prior to the last day of the Interest
- 19 -
Period applicable thereto, a period equal to the period from and including the
date of such prepayment or repayment to but excluding the last day of such
Interest Period.
"Rent Roll": a schedule prepared by the Borrower from time to time
identifying (i) the Real Property owned by the Borrower or its Subsidiaries and
stating whether such items of Real Property are Unencumbered Assets at such
time, (ii) the annual base rent payable under each lease of Real Property owned
by the Borrower or any of its Subsidiaries, (iii) the commencement and
termination dates of the term of each such lease, (iv) any renewal options with
respect to such lease, (v) the Net Rentable Area of the space demised under each
such lease and (vi) such other information as the Administrative Agent may
reasonably require.
"Required Additional Guarantor": any Subsidiary required to execute
and deliver a Guaranty pursuant to Section 7.11(a).
"Required Lenders": means (a) so long as the Commitments remain in
effect (i) if no Loans are outstanding at such time or there are Loans comprised
of Conventional Advances and Competitive Bid Advances, Lenders (other than any
Defaulting Lenders or Designated Lenders) having Commitments equal to at least
51% of the Commitments of all Lenders at such time; (ii) if Loans outstanding at
such time are comprised of Conventional Advances only, Lenders (other than any
Defaulting Lenders or Designated Lenders) holding Notes having an unpaid
principal balance equal to at least 51% of the aggregate Loans then outstanding;
and (iii) if Loans outstanding at such time are comprised of Competitive Bid
Advances only, Lenders (other than any Defaulting Lenders or Designated Lenders)
having Commitments equal to at least 51% of the Commitments of all Lenders at
such time (whether used or unused); and (b) if the Commitments have been
terminated, Lenders (other than any Defaulting Lenders but including any
Designated Lenders) whose Loans have an unpaid principal balance equal to at
least 51% of the aggregate Loans then outstanding.
"Restricted Payment": as to any Person, any dividend or other
distribution by such Person (whether in cash, securities or other property) with
respect to any shares of any class of equity securities or beneficial interests
of such Person, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
shares or beneficial interests or any option, warrant or other right to acquire
any such shares or beneficial interests.
"Revolving Credit Expiration Date:" the earlier of the Maturity Date
or the Revolving Credit Termination Date.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined in
Section 2.1.
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"Revolving Credit Period:" the period from the Effective Date
through the day preceding the Revolving Credit Expiration Date.
"Revolving Credit Termination Date": October 21, 2002.
"Senior Debt Rating": the senior unsecured non-credit-enhanced debt
rating of the Borrower as determined by S&P and/or Xxxxx'x from time to time.
"Special Counsel": Xxxxx, Xxxxxx & Xxxxxx, LLP, special counsel to
BNY.
"S&P": Standard & Poor's Ratings Group.
"Stock": any and all shares, rights, interests, participations,
warrants, depositary receipts or other equivalents (however designated) of
corporate stock, including, without limitation, so-called "phantom stock,"
preferred stock and common stock.
"Subsidiary": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person, directly or indirectly, either (i) in respect of a
corporation, owns or controls more than 50% of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or might have
voting power by reason of the happening of any contingency, or (ii) in respect
of an association, partnership, limited liability company, joint venture or
other business entity, is entitled to share, either directly or indirectly
through an entity described in clause (i) above, in more than 50% of the profits
and losses, however determined.
"Subsidiary Guarantor" means the Subsidiaries of the Borrower listed
on Schedule 4.4 and designated thereof as a Subsidiary Guarantor, each Required
Additional Guarantor, and their successors and assigns; and "Subsidiary
Guarantors" shall mean all such guarantors, collectively.
"Tangible Net Worth": as of any date of determination thereof with
respect to the Borrower and its Subsidiaries, determined on a Consolidated basis
in accordance with GAAP, the remainder of (i) the amounts which would, in
conformity with GAAP, be included under "shareholder's equity" (or any like
caption) on a Consolidated balance sheet of the Borrower and its Subsidiaries as
at such date, minus (ii) the net book value of all assets of the Borrower and
its Subsidiaries on a Consolidated basis (to the extent reflected in the
Consolidated balance sheet of the Borrower at such date) which would be treated
as intangibles under GAAP, including, without limitation, goodwill (whether
representing the excess cost over book value of assets acquired or otherwise),
patents, trademarks, trade names, franchises, copyrights, licenses, service
marks, rights with
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respect to the foregoing and deferred charges (including, without limitation,
unamortized debt discount and expense, organization costs and research and
development costs).
"Taxes": any present or future income, stamp or other taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings, or other charges
of whatever nature, now or hereafter imposed, levied, collected, withheld, or
assessed by any Governmental Authority.
"Total Capital": on any date, the sum of, without duplication, (i)
all Indebtedness of the Borrower and its Subsidiaries on such date which, in
accordance with GAAP, is considered long term debt of the Borrower and its
Subsidiaries, (ii) the amounts which would, in conformity with GAAP, be included
under "shareholder's equity" (or any like caption) on a Consolidated balance
sheet of the Borrower and its Subsidiaries as at such date, (iii) the value of
all issued and outstanding preferred stock of the Borrower as set forth on the
balance sheet of the Borrower as at such date, and (iv) all Loans outstanding on
such date.
"Total Commitment Amount": on any day the sum of the Commitment
Amounts of all Lenders on such day.
"Unencumbered Asset": Any Operating Property which at any time (i)
is wholly owned in fee simple by the Borrower, a wholly owned Subsidiary of the
Borrower or a DownREIT Partnership (or is the subject of a Ground Lease), (ii)
is free and clear of all Liens (other than Liens permitted under clauses (i),
(ii), (iii), (iv), (v) (vi), (viii) and (ix) of Section 8.1), (iii) does not
have applicable to it (or to any such Ground Lease) any restriction on the
pledge, transfer, mortgage or assignment of such Operating Property or Ground
Lease (including any restriction imposed by the organizational documents of any
such Subsidiary or DownREIT Partnership), (iv) if owned by any such Subsidiary
or DownREIT Partnership, the Stock, partnership interests or membership
interests, as the case may be, of such Subsidiary or DownREIT Partnership that
are owned by the Borrower or any Subsidiary are not subject to any pledge or
security interest in favor of any Person other than the Borrower or a Subsidiary
Guarantor, (v) is not an Environmental Risk Property; (vi) does not have, to the
best of the Borrower's knowledge, any title, survey, environmental or other
defect which could reasonably be expected to materially and adversely affect the
value, use or marketability thereof, and (vii) is located within the contiguous
00 xxxxxx xx xxx xxxxxxxxxxx Xxxxxx Xxxxxx; and "Unencumbered Assets" mean all
such Unencumbered Assets, collectively.
"Unencumbered Assets Coverage Ratio": on any date of determination
the ratio of (i) the sum of all Adjusted Net Operating Income for all
Unencumbered Assets of the Borrower and its Subsidiaries on a Consolidated
basis, plus the Borrower's Interest in all Adjusted Net Operating Income for all
Unencumbered Assets owned by a DownREIT Partnership, in each case for the fiscal
quarter most recently then ending, to (ii) the
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portion of the Consolidated Interest Expense consisting of interest on all
unsecured Indebtedness of the Borrower and its Subsidiaries as of such fiscal
quarter end.
"Unencumbered Asset Value": as of any date the quotient of (i) an
amount equal to the Adjusted Net Operating Income for all Unencumbered Assets in
the aggregate for the four fiscal quarters of the Borrower most recently ending
as of such date, divided by (ii) 10%. For purposes of any determination of
Unencumbered Asset Value, the following limitations and methodology shall apply:
(A) the Adjusted Net Operating Income of any Unencumbered Asset owned by a
DownREIT Partnership shall be based on the Borrower's Interest in the Adjusted
Net Operating Income for each such Unencumbered Asset for the four fiscal
quarters having ended as of such date; (B) in the event more than 10% of the
gross base rents payable under all leases for Properties of the Borrower, its
Subsidiaries or a DownREIT Partnership (including the Borrower's Interest in any
Property) shall be payable by one tenant and its Subsidiaries, then Unencumbered
Asset Value shall be reduced by the percentage amount of such excess multiplied
by the Unencumbered Asset Value attributable to the Properties leased or
controlled by such tenant and its Subsidiaries, and (C) in the event that the
Borrower or a Subsidiary of the Borrower shall not have owned an Unencumbered
Asset for the entire previous four fiscal quarters, then for the purposes of
determining the Unencumbered Asset Value with respect to such Unencumbered
Asset, the Adjusted Net Operating Income for such Unencumbered Asset shall be
annualized in a manner reasonably satisfactory to the Administrative Agent.
1.2. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the meanings
given such terms herein when used in the Loan Documents or any certificate,
opinion or other document made or delivered pursuant hereto or thereto, unless
otherwise defined therein.
(b) As used in the Loan Documents and in any certificate, opinion
or other document made or delivered pursuant hereto or thereto, accounting terms
not defined in Section 1.1, and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
schedule and exhibit references contained herein shall refer to Sections hereof
or schedules or exhibits hereto unless otherwise expressly provided herein.
(d) The word "or" shall not be exclusive; "may not" is prohibitive
and not permissive.
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(e) Unless the context otherwise requires, words in the singular
number include the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the
contrary, references to time shall refer to New York City time.
2. AMOUNT AND TERMS OF LOANS.
2.1. Revolving Credit Loans.
Subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans (each a "Revolving Credit Loan" and, as
the context may require, collectively with all Revolving Credit Loans of such
Lender and with the Revolving Credit Loans of all other Lenders, the "Revolving
Credit Loans") to the Borrower from time to time during the Revolving Credit
Period, in an aggregate principal amount not to exceed at any time (exclusive of
any Competitive Bid Advances of such Lender at such time) such Lender's
Commitment Amount. At no time shall the aggregate outstanding principal amount
of the Revolving Credit Loans of all Lenders exceed the Total Commitment Amount.
During the Revolving Credit Period, the Borrower may borrow, prepay in whole or
in part and reborrow under the Commitments, all in accordance with the terms and
conditions of this Agreement. Subject to the provisions of Sections 2.3, 2.4 and
2.8, Revolving Credit Loans may be (a) ABR Advances, (b) Eurodollar Advances,
(c) Competitive Bid Advances or (d) any combination thereof.
2.2. Notes.
(a) Notes as Evidence of Indebtedness. The Revolving Credit Loans
of each Lender made as Conventional Advances shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit H, with appropriate
insertions therein as to date and principal amount (each, as endorsed or
modified from time to time, a "Note" and, collectively with the Notes of all
other Lenders, the "Notes"), payable to the order of such Lender for the account
of its Applicable Lending Office and representing the obligation of the Borrower
to pay the lesser of (a) the original amount of the Commitment of such Lender
and (b) the aggregate unpaid principal balance of all Revolving Credit Loans
made as a Conventional Advances plus interest and other amounts due and owing to
the Lenders under the Loan Documents.
(b) The Notes Generally. Each Note shall bear interest from the
date thereof on the unpaid principal balance thereof at the applicable interest
rate or rates per annum determined as provided in Section 2.9 and shall be
stated to mature on the Maturity Date. The following information shall be
recorded by each Lender on its books and, prior to any transfer of any such
Notes, endorsed by such Lender on the schedule attached thereto or any
continuation thereof: (i) the date and amount of each Revolving
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Credit Loan of such Lender made as a Conventional Advance; (ii) its character as
an ABR Advance, a Eurodollar Advance or a combination thereof; (iii) the
interest rate and Interest Period applicable to Eurodollar Advances; and (iv)
each payment and prepayment of the principal thereof; provided, that the failure
of such Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower to make payment when due of any amount owing under
the Loan Documents.
2.3. Procedure for Revolving Credit Loan Borrowings Other than
Competitive Bid Borrowings.
(a) Revolving Credit Loans. Except for Revolving Credit Loans
which the Borrower has requested be made as Competitive Bid Advances (as to
which the provisions of Section 2.4 shall apply), and subject to the limitations
set forth in Sections 2.1 and 2.3(c), the Borrower may borrow under the
Commitments on any Business Day during the Revolving Credit Period by providing
notice thereof in accordance with Section 2.3(b).
(b) Borrowing Requests. To request Revolving Credit Loans pursuant
to Section 2.3(a), the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Advance, not later than
12:00 P.M., New York City time, two Business Days before the date of the
proposed borrowing of Revolving Credit Loans or (b) in the case of an ABR
Advance, not later than 12:00 P.M., New York City time, one Business Day before
the date of such proposed advance (or on the same date of such proposed advance,
in the case of a borrowing required pursuant to Section 7.13). Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request signed by the Borrower. Each such telephonic and written
Borrowing Request shall specify the following information: (i) the aggregate
amount of the requested borrowing of Revolving Credit Loans; (ii) the date of
such borrowing of Revolving Credit Loans, which shall be a Business Day; (iii)
whether the requested Revolving Credit Loan is to be an ABR Advance or a
Eurodollar Advance; (iv) in the case of a Eurodollar Advance, the initial
Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and (v) the location and number
of the Borrower's account to which funds are to be disbursed, which shall comply
with the requirements of Section 2.3(d).
(c) Limits on Advances. Each borrowing of (i) ABR Advances shall
be in a minimum aggregate principal amount equal to $1,000,000 or such amount
plus a whole multiple of $100,000 in excess thereof, or, if less, the Available
Commitment Amount, and (ii) Eurodollar Advances shall be in an aggregate
principal amount equal to $5,000,000 or such amount plus a whole multiple of
$100,000 in excess thereof, or, if less, the Available Commitment Amount.
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(d) Funding of Revolving Credit Loans. Upon receipt of each notice
of borrowing from the Borrower, the Administrative Agent shall promptly notify
each Lender of the contents thereof. Subject to its receipt of the notice
referred to in the preceding sentence, each Lender will make the amount of its
Commitment Percentage of each borrowing of Revolving Credit Loans pursuant to
this Section available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent set forth in Section 11.2 not
later than 12:30 P.M. on the relevant Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent at such office. The
amounts so made available to the Administrative Agent on the Borrowing Date will
then, subject to the satisfaction of the terms and conditions of this Agreement,
as determined by the Administrative Agent, be made available on such date to the
Borrower by the Administrative Agent at the office of the Administrative Agent
specified in Section 11.2 by crediting the account of the Borrower on the books
of such office with the aggregate of said amounts received by the Administrative
Agent.
(e) Effect of Incomplete Borrowing Request. If no election is made
as to the whether the Revolving Credit Loans shall be ABR Advances or Eurodollar
Advances, then the requested Revolving Credit Loans shall be an ABR Advance. If
no Interest Period is specified with respect to any requested borrowing of
Eurodollar Advances, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration.
(f) Administrative Agent's Assumption. Unless the Administrative
Agent shall have received prior notice from a Lender (by telephone or otherwise,
such notice to be promptly confirmed by telecopy or other writing) that such
Lender will not make available to the Administrative Agent such Lender's pro
rata share of the Revolving Credit Loans requested by the Borrower, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the Borrowing Date in accordance with this
Section, provided that such Lender received notice of the proposed borrowing
from the Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on the Borrowing Date a
corresponding amount. If and to the extent such Lender shall not have so made
such pro rata share available to the Administrative Agent, such Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount (to the extent not previously paid by the other),
together with interest thereon for each day from the date such amount is made
available to the Borrower until the date such amount is paid to the
Administrative Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 2.9 for ABR Advances or
Eurodollar Advances, as set forth in the applicable Conventional Borrowing
Request, and, in the case of such Lender, the Federal Funds Rate in effect on
each such day (as determined by the Administrative Agent). Such payment by the
Borrower, however, shall be without prejudice to its rights against such Lender.
If such Lender shall pay to the Administrative Agent such corresponding amount,
such amount
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so paid shall constitute such Lender's Revolving Credit Loan as part of the
Revolving Credit Loans for purposes of this Agreement, which Revolving Credit
Loan shall be deemed to have been made by such Lender on the Borrowing Date
applicable to such Revolving Credit Loans, but without prejudice to the
Borrower's rights against such Lender.
2.4. Competitive Bid Borrowings and Procedure for Competitive Bid
Borrowings.
(a) Competitive Bid Borrowings. Subject to the terms and
conditions of this Agreement, each Lender severally agrees that during any Rated
Period, the Borrower may effect Competitive Bid Borrowings under this Section
2.4 from time to time on any Business Day during the Revolving Credit Period in
the manner set forth below, provided, however, that the principal balance of all
Competitive Bid Advances outstanding hereunder shall not at any time exceed the
lesser of (x) the Competitive Bid Ceiling, and (y) the Total Commitment Amount
less the outstanding principal balance of all Conventional Advances.
(b) Procedure for Competitive Bid Borrowings. The Borrower may
request a Competitive Bid Borrowing under this Section 2.4 during the Revolving
Credit Period by giving to the Administrative Agent, not later than 12:00 P.M.
at least three Business Days prior to the date of the proposed Competitive Bid
Borrowing, a Competitive Bid Borrowing Request in the form of Exhibit C,
specifying (i) the proposed date of the Competitive Bid Borrowing, (ii) the
aggregate amount of the proposed Competitive Bid Borrowing (which amount shall
not be less than $5,000,000 or such amount plus a whole multiple of $100,000 in
excess thereof), (iii) the proposed Interest Period for the Competitive Bid
Advances to be made as part of such Competitive Bid Borrowing (which Interest
Period shall end not later than 5 days prior to the Revolving Credit Termination
Date, and shall otherwise comply with the applicable provisions of the
definition of "Interest Period"), and (iv) such other terms to be applicable to
such Competitive Bid Borrowing as the Borrower may specify. The Administrative
Agent shall promptly notify (by telephone or otherwise, to be promptly confirmed
by telecopy or other writing) each Lender of each Competitive Bid Borrowing
Request received by it and the terms contained in such Competitive Bid Borrowing
Request. Such notice shall not be delivered separately to any Designated Lender,
but shall be deemed delivered to a Designated Lender when delivered to the
Designating Lender responsible for having appointed such Designated Lender as
its Designated Lender.
(c) Decision of Lenders to make Competitive Bid Advances. Each
Lender may, if, in its sole discretion, it elects so to do, irrevocably offer to
make one or more Revolving Credit Loans as Competitive Bid Advances to the
Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates
of interest specified by such Lender in its sole discretion, by notifying (by
telephone or otherwise, to be promptly
- 27 -
confirmed by telecopy or other writing) the Administrative Agent, before 12:00
P.M. two Business Days before the Borrowing Date of such proposed Competitive
Bid Borrowing of (i) the minimum amount and maximum amount of each Competitive
Bid Advance which such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the proviso to the
first sentence of Section 2.4(a), exceed such Lender's Commitment), and (ii) the
rate or rates of interest therefor and such Lender's Applicable Lending Office
with respect to such Competitive Bid Advance, provided that any such offer made
by a Designated Lender shall be made solely through the Designating Lender
responsible for having appointed such Designated Lender as its Designated
Lender. No Lender shall be required to specify in its Competitive Bid Advance
offer whether such Competitive Bid Advance will be funded by its Designated
Lender. The Administrative Agent shall notify the Borrower of all such offers
before 12:30 P.M. two Business Days before such proposed Borrowing Date,
provided that if BNY in its capacity as a Lender shall in its sole discretion
elect to make any such offer, it shall notify the Borrower of such offer before
11:30 A.M. two Business Days before such proposed Borrowing Date. If any Lender
other than BNY shall fail to notify the Administrative Agent before 12:00 P.M.,
and if BNY in its capacity as a Lender shall fail to notify the Borrower before
11:30 A.M., two Business Days before the proposed Borrowing Date, that it elects
to make such an offer, such Lender shall be deemed to have elected not to make
such an offer and such Lender shall not be obligated to, and shall not, make any
Competitive Bid Advance as part of such Competitive Bid Borrowing. Any offer
submitted after the time required above shall be disregarded by the
Administrative Agent unless such offer is submitted to correct a manifest error
in a prior offer.
(d) Borrower's Acceptance or Cancellation. The Borrower shall,
before 1:00 P.M. two Business Days before the date of such proposed Competitive
Bid Borrowing, either
(i) cancel such Competitive Bid Borrowing Request by notice
to the Administrative Agent to that effect, or
(ii) in its sole discretion, irrevocably accept one or more
of the offers made by a Lender or Lenders pursuant to paragraph (c) above
in ascending order of the rates offered therefor, by giving notice to the
Administrative Agent of the amount of each Competitive Bid Advance (which
amount shall be equal to or greater than the minimum amount, and equal to
or less than the maximum amount, notified to the Borrower by the
Administrative Agent on behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (c)) to be made by each Lender as part of
such Competitive Bid Borrowing, and reject any remaining offers made by
Lenders pursuant to paragraph (c) above, by giving the Administrative
Agent notice to that effect, provided, however, that the aggregate amount
of such offers accepted by the Borrower shall be equal at least to
$5,000,000. If offers for Competitive Bid Advances at the same interest
rate are
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made by two or more Lenders pursuant to paragraph (c) above for a greater
aggregate minimum principal amount than the amount in respect of which
offers for Competitive Bid Advances are accepted by the Borrower at such
interest rate, the principal amount of Competitive Bid Advances accepted
at such interest rate shall be allocated by the Borrower among such
Lenders as nearly as possible in proportion to the respective minimum
principal amounts offered by such Lenders. No such Lender shall be
obligated to make such Competitive Bid Advance in a principal amount less
than the minimum amount offered by such Lender without consenting to such
lesser amount. If any Lender declines to make a Competitive Bid Advance at
such lesser amount, the Borrower shall be entitled in its sole discretion
to determine which of such offers at the same interest rate it shall
accept.
If the Borrower notifies the Administrative Agent that a Competitive
Bid Borrowing Request is cancelled pursuant to paragraph (d)(i) above, the
Administrative Agent shall give prompt notice (by telephone or otherwise, to be
promptly confirmed by telecopy or other writing) thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
If the Borrower accepts one or more of the offers made by any Lender
or Lenders pursuant to paragraph (d)(ii) above, the Administrative Agent shall,
as promptly as practicable on the second Business Day before such proposed
Borrowing Date, notify (A) each Lender that has made an offer as described in
paragraph (c) above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether any offer or offers made by such Lender pursuant to
paragraph (c) above have been accepted by the Borrower and (B) each Lender whose
offer to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing (a "Participating Lender") of the amount of each Loan to be made by
such Lender as part of such Competitive Bid Borrowing has been accepted by the
Borrower, together with a specification of the interest rate and Interest
Payment Date or Dates in respect of each such Competitive Bid Advance. Each such
Participating Lender shall, before 11:30 A.M. on the date of such Competitive
Bid Borrowing make available, or cause its Designated Lender, if any, to make
available, for the account of its Applicable Lending Office to the
Administrative Agent at its address specified in Section 11.2 such Lender's
portion of such Competitive Bid Borrowing, in funds immediately available to the
Administrative Agent at such office. Competitive Bid Borrowings may be funded by
a Lender's Designated Lender as provided in Section 11.8, however, the
Designating Lender of such Designated Lender shall be responsible for making
such Competitive Bid Advance should such Designated Lender fail to do so. Upon
satisfaction of the applicable terms and conditions of this Agreement and after
receipt by the Administrative Agent of such amount from each such Participating
Lender, the Administrative Agent will make such amount available on such date to
the Borrower at the office of the Administrative Agent specified in Section 11.2
by crediting the account of the Borrower on the books of such office with the
aggregate of such amounts, in like
- 29 -
funds as received by the Administrative Agent. After each Competitive Bid
Borrowing, if requested by any Lender, the Administrative Agent shall within a
reasonable time furnish to such Lender such information in respect of such
Competitive Bid Borrowing as such Lender shall reasonably request. Unless the
Administrative Agent shall have received prior notice from a Participating
Lender (by telephone or otherwise, such notice to be promptly confirmed by
telecopy or other writing) that such Participating Lender will not make
available such Participating Lender's Competitive Bid Advance, the
Administrative Agent may assume that such Participating Lender has made such
Participating Lender's portion of such Competitive Bid Borrowing available to
the Administrative Agent on such Borrowing Date in accordance with this Section,
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such Borrowing Date a corresponding amount. If and
to the extent such Participating Lender shall not have made such portion
available to the Administrative Agent, such Participating Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon for each day from the date such
amount is made available to the Borrower until the date such amount is paid to
the Administrative Agent at a rate per annum equal to, in the case of the
Borrower, the rate of interest for such Competitive Bid Advance accepted by the
Borrower in its notice to the Administrative Agent under Section 2.4(d)(ii),
and, in the case of such Lender, the Federal Funds Rate in effect on such day
(as determined by the Administrative Agent). Such payment by the Borrower,
however, shall be without prejudice to its rights against such Participating
Lender. If such Participating Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's
Competitive Bid Advance as a part of such Competitive Bid Advances for purposes
of this Agreement, which Competitive Bid Advance shall be deemed to have been
made by such Participating Lender on the Borrowing Date applicable thereto, but
without prejudice to the Borrower's rights against such Participating Lender.
Notwithstanding its appointment of a Designated Lender, no Lender
which is a Designating Lender shall be relieved of its obligation to fund a
Competitive Bid Advance, and no Designated Lender shall be deemed to assume such
obligation, prior to the time such Competitive Bid Advance is funded.
(e) Subsequent Competitive Bid Borrowings Permitted. Within the
limits and on the conditions set forth in this Section 2.4, the Borrower may
from time to time borrow under this Section 2.4, repay pursuant to paragraph (f)
below, and reborrow under this Section 2.4.
(f) Repayment of Competitive Bid Borrowings. The Borrower shall
repay to the Administrative Agent for the account of each Participating Lender
which has made a Competitive Bid Advance on the last day of the Interest Period
for such Competitive Bid Advance (such Interest Period being that specified by
the Borrower in
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the related Competitive Bid Borrowing Request delivered pursuant to Section
2.4(b) above) the then unpaid principal amount of such Competitive Bid Advance.
(g) Interest on Competitive Bid Borrowings. The Borrower shall pay
interest on the unpaid principal balance of each Competitive Bid Advance from
the date of such Competitive Bid Advance to the date the principal amount of
such Competitive Bid Advance is repaid in full, at the rate of interest for such
Competitive Bid Advance specified by the Participating Lender making (or whose
Designated Lender made) such Competitive Bid Advance in such Participating
Lender's notice with respect thereto delivered pursuant to Section 2.4(c) above
payable on the Interest Payment Date specified by the Borrower for such
Competitive Bid Advance in the related Competitive Bid Borrowing Request
delivered pursuant to Section 2.4(b) above. Any Designated Lender which funds a
Competitive Bid Advance shall on and after the time of such funding become the
obligee under such Competitive Bid Advance.
(h) Competitive Bid Notes. At the request of any Lender, the
Borrower will deliver to such Lender a note, in the form mutually agreeable to
such Lender and the Borrower, evidencing the obligation of the Borrower to pay
the Competitive Bid Advances of such Lender, and interest thereon, in accordance
with Section 2.4(f).
(i) In General. Each Competitive Bid Advance shall be subject to
all of the provisions of this Agreement generally, provided, however, that a
Competitive Bid Advance shall not reduce a Lender's obligation to fund its
Commitment Percentage of any ABR Advance or Eurodollar Advance.
2.5. Termination or Reduction of Commitments.
(a) Voluntary Reductions. The Borrower shall have the right, upon
at least three Business Days' prior written notice to the Administrative Agent,
at any time to terminate the Commitments or from time to time to permanently
reduce the Commitments, provided that (i) the total of the Commitments shall not
be reduced below an amount equal to the sum of the aggregate principal balance
of the Revolving Credit Loans then outstanding thereunder, and (ii) any such
reduction of the Commitments shall be in the minimum amount of $5,000,000 or
such amount plus a whole multiple of $100,000 in excess thereof.
(b) In General. Reductions of the Commitments shall be applied pro
rata according to the Commitments of each Lender, as the case may be.
Simultaneously with each reduction of the Commitments under this Section, the
Borrower shall pay the Facility Fee accrued (but not yet paid) on the amount by
which the Commitments have been reduced and prepay the Loans outstanding
thereunder by the amount, if any, by which the aggregate unpaid principal
balance of such Loans exceeds the amount of the Commitments, as so reduced. If
any prepayment is made under this Section with respect
- 31 -
to any Fixed Rate Advances, in whole or in part, prior to the last day of the
applicable Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 2.14. No reduction or termination of the Commitments may
be reinstated.
2.6. Repayment of Loans; Evidence of Debt
(a) Promise to Pay. The Borrower hereby unconditionally promises
to pay to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Revolving Credit Loan on the Maturity Date.
Competitive Bid Borrowings shall be paid pursuant to Section 2.4.
(b) Lenders' Accounts. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the debt of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) Administrative Agent's Accounts. The Administrative Agent
shall maintain accounts in which it shall record (i) the amount of each
Revolving Credit Loan and Competitive Bid Borrowing made hereunder, the type of
Advance thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any other sum received
by the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) Entries Made in Accounts. The entries made in the accounts
maintained pursuant to paragraphs (b) and (c) of this Section shall, to the
extent not inconsistent with any entries made in any Note and absent manifest
error, be prima facie evidence of the existence and amounts of the obligations
recorded therein, provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the
terms of this Agreement.
(e) Loans Evidenced by Notes. The Loans and interest thereon shall
at all times (including after assignment pursuant to Section 11.7) be
represented by one or more Notes in like form payable to the order of the payee
named therein and its registered assigns.
2.7. Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its option, prepay
the ABR Advances and Eurodollar Advances, in whole or in part, without premium
or penalty (other than any indemnification amounts, as provided for in Section
2.14) at any time and from time to time by notifying the Administrative Agent in
writing at least one Business Day prior to the proposed prepayment date in the
case of Loans consisting of
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ABR Advances and at least three Business Days prior to the proposed prepayment
date in the case of Loans consisting of Eurodollar Advances, specifying the
Loans to be prepaid consisting of ABR Advances, Eurodollar Advances or a
combination thereof, the amount to be prepaid and the date of prepayment. Such
notice shall be irrevocable and the amount specified in such notice shall be due
and payable on the date specified, together with accrued interest to the date of
such payment on the amount prepaid. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Lender in respect thereof.
Partial prepayments of ABR Advances and/or Eurodollar Advances shall be in an
aggregate minimum principal amount of $1,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof, or, if less, the outstanding principal
balance thereof. After giving effect to any partial prepayment with respect to
Eurodollar Advances which were made (whether as the result of a borrowing or a
conversion) on the same date and which had the same Interest Period, the
outstanding principal amount of such Eurodollar Advances shall be at least
(subject to Section 2.3(c)) $1,000,000 or such amount plus a whole multiple of
$100,000 in excess thereof. Notwithstanding anything in this Agreement to the
contrary, voluntary prepayments by the Borrower of Competitive Bid Advances are
not permitted.
(b) In General. If any prepayment is made in respect of any Fixed
Rate Advance, in whole or in part, prior to the last day of the applicable
Interest Period, the Borrower agrees to indemnify the Lenders in accordance with
Section 2.14.
2.8. Conversions.
(a) Conversion Elections. The Borrower may elect from time to time
to convert Eurodollar Advances to ABR Advances by giving the Administrative
Agent at least one Business Day's prior irrevocable notice of such election,
specifying the amount to be so converted, provided, that any such conversion of
Eurodollar Advances shall only be made on the last day of the Interest Period
applicable thereto. In addition, the Borrower may elect from time to time to
convert ABR Advances to Eurodollar Advances or to convert Eurodollar Advances to
new Eurodollar Advances by giving the Administrative Agent at least two Business
Days' prior irrevocable notice of such election, specifying the amount to be so
converted and the initial Interest Period relating thereto, provided that any
such conversion of ABR Advances to Eurodollar Advances shall only be made on a
Business Day and any such conversion of Eurodollar Advances to new Eurodollar
Advances shall only be made on the last day of the Interest Period applicable to
the Eurodollar Advances which are to be converted to such new Eurodollar
Advances. Each such notice shall be in the form of Exhibit M and must be
delivered to the Administrative Agent prior to 12:00 noon on the Business Day
required by this Section for the delivery of such notices to the Administrative
Agent. The Administrative Agent shall promptly provide the Lenders with notice
of any such election. ABR Advances and Eurodollar Advances may be converted
pursuant to this Section in whole or in part, provided that conversions of ABR
Advances to Eurodollar Advances, or
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Eurodollar Advances to new Eurodollar Advances, shall be in an aggregate
principal amount of $5,000,000 or such amount plus a whole multiple of $100,000
in excess thereof. This Section shall not apply to Competitive Bid Borrowings,
which may not be converted or continued beyond the Interest Period applicable
thereto.
(b) Effect on Conversions if an Event of Default. Notwithstanding
anything in this Section to the contrary, no ABR Advance may be converted to a
Eurodollar Advance, and no Eurodollar Advance may be converted to a new
Eurodollar Advance, if a Default or Event of Default has occurred and is
continuing either (i) at the time the Borrower shall notify the Administrative
Agent of its election to convert or (ii) on the requested Conversion Date. In
such event, such ABR Advance shall be automatically continued as an ABR Advance
or such Eurodollar Advance shall be automatically converted to an ABR Advance on
the last day of the Interest Period applicable to such Eurodollar Advance. If an
Event of Default shall have occurred and be continuing, the Administrative Agent
shall, at the request of the Required Lenders, notify the Borrower (by telephone
or otherwise) that all, or such lesser amount as the Required Lenders shall
designate, of the outstanding Eurodollar Advances shall be automatically
converted to ABR Advances, in which event such Eurodollar Advances shall be
automatically converted to ABR Advances on the date such notice is given.
(c) Conversion not a Borrowing. Each conversion shall be effected
by each Lender by applying the proceeds of its new ABR Advance or Eurodollar
Advance, as the case may be, to its Advances (or portion thereof) being
converted (it being understood that such conversion shall not constitute a
borrowing for purposes of Sections 4, 5 or 6).
2.9. Interest Rate and Payment Dates.
(a) Prior to Maturity. Except as otherwise provided in Section
2.9(b), prior to the Maturity Date, the Loans shall bear interest on the
outstanding principal balance thereof at the applicable interest rate or rates
per annum set forth below:
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ADVANCES RATE
-------- ----
Each ABR Advance Alternate Base Rate.
Each Eurodollar Eurodollar Rate for the
Advance applicable Interest Period
plus the Applicable Margin.
Competitive Bid The rate for the applicable
Advance Competitive Bid Advance
determined pursuant to Section 2.4.
(b) Event of Default. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of the
Loans and any overdue interest or other amount payable under the Loan Documents
shall bear interest, whether before or after the entry of any judgment thereon,
at a rate per annum equal to the Alternate Base Rate plus 2%.
(c) Interest Payment Dates. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan, provided that
(i) interest accrued pursuant to paragraph (b) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Advance prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(d) General. Interest on (i) ABR Advances, to the extent based on
the BNY Rate, shall be calculated on the basis of a 365 or 366-day year (as the
case may be), and (ii) ABR Advances, to the extent based on the Federal Funds
Rate, Eurodollar Advances and Competitive Bid Advances shall be calculated on
the basis of a 360-day year, in each case for the actual number of days elapsed,
including the first day but excluding the last. Any change in the interest rate
on the Loans resulting from a change in the Alternate Base Rate or a Pricing
Level shall become effective as of the opening of business on the day on which
such change shall become effective. The Administrative Agent shall, as soon as
practicable, notify the Borrower and the Lenders of the effective date and the
amount of each such change in the Alternate Base Rate or a Pricing Level, but
any failure to so notify shall not in any manner affect the obligation of the
Borrower to pay interest on the Loans in the amounts and on the dates required.
Each determination of the Alternate Base Rate, a Eurodollar Rate or a Pricing
Level by the Administrative Agent pursuant to this Agreement shall be conclusive
and binding on the Borrower and the Lenders absent manifest error. At no time
shall the interest rate payable on the Loans of any Lender, together with the
Facility Fee and all other amounts payable under the Loan Documents, to the
extent the same are construed to constitute interest, exceed the
- 35 -
Highest Lawful Rate. If interest payable to a Lender on any date would exceed
the maximum amount permitted by the Highest Lawful Rate, such interest payment
shall automatically be reduced to such maximum permitted amount, and interest
for any subsequent period, to the extent less than the maximum amount permitted
for such period by the Highest Lawful Rate, shall be increased by the unpaid
amount of such reduction. Any interest actually received for any period in
excess of such maximum allowable amount for such period shall be deemed to have
been applied as a prepayment of the Loans. The Borrower acknowledges that to the
extent interest payable on ABR Advances is based on the BNY Rate, the BNY Rate
is only one of the bases for computing interest on loans made by the Lenders,
and by basing interest payable on ABR Advances on the BNY Rate, the Lenders have
not committed to charge, and the Borrower has not in any way bargained for,
interest based on a lower or the lowest rate at which the Lenders may now or in
the future make loans to other borrowers.
2.10. Substituted Interest Rate.
In the event that (i) the Administrative Agent shall have reasonably
determined (which determination shall be conclusive and binding upon the
Borrower) that by reason of circumstances affecting the interbank eurodollar
market either adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate applicable pursuant to Section 2.9 or (ii) the Required Lenders
shall have notified the Administrative Agent that they have reasonably
determined (which determination shall be conclusive and binding on the Borrower)
that the applicable Eurodollar Rate will not adequately and fairly reflect the
cost to such Lenders of maintaining or funding loans bearing interest based on
such Eurodollar Rate, with respect to any portion of the Loans that the Borrower
has requested be made as Eurodollar Advances or Eurodollar Advances that will
result from the requested conversion of any portion of the Advances into
Eurodollar Advances (each, an "Affected Advance"), the Administrative Agent
shall promptly notify the Borrower and the Lenders (by telephone or otherwise,
to be promptly confirmed in writing) of such determination, on or, to the extent
practicable, prior to the requested Borrowing Date or Conversion Date for such
Affected Advances. If the Administrative Agent shall give such notice, (a) any
Affected Advances shall be made as ABR Advances, (b) the Advances (or any
portion thereof) that were to have been converted to Affected Advances shall be
converted to or continued as ABR Advances and (c) any outstanding Affected
Advances shall be converted, on the last day of the then current Interest Period
with respect thereto, to ABR Advances. Until any notice under clauses (i) or
(ii), as the case may be, of this Section has been withdrawn by the
Administrative Agent (by notice to the Borrower promptly upon either (x) the
Administrative Agent having determined that such circumstances affecting the
interbank eurodollar market no longer exist and that adequate and reasonable
means do exist for determining the Eurodollar Rate pursuant to Section 2.9 or
(y) the Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Advances (or any portion thereof) Affected
Advances), no further Eurodollar Advances shall be
- 36 -
required to be made by the Lenders nor shall the Borrower have the right to
convert all or any portion of the Loans to Eurodollar Advances.
2.11. Taxes; Net Payments.
(a) All payments made by the Borrower or Subsidiary Guarantor
and/or Other Guarantor under the Loan Documents shall be made free and clear of,
and without reduction for or on account of, any taxes, levies, imposts,
deductions, charges or withholdings required by law to be withheld from any
amounts payable under the Loan Documents. A statement setting forth the
calculations of any amounts payable pursuant to this paragraph submitted by a
Lender to the Borrower shall be conclusive absent manifest error. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.
(b) Each Lender which is a foreign corporation within the meaning
of Section 1442 of the Code shall deliver to the Borrower such certificates,
documents or other evidence as the Borrower may reasonably require from time to
time as are necessary to establish that such Lender is not subject to
withholding under Section 1441 or 1442 of the Code or as may be necessary to
establish, under any law hereafter imposing upon the Borrower, an obligation to
withhold any portion of the payments made by the Borrower under the Loan
Documents, that payments to the Administrative Agent on behalf of such Lender
are not subject to withholding.
2.12. Illegality.
Notwithstanding any other provisions herein, if any law, regulation,
treaty or directive hereafter enacted, promulgated, approved or issued, or any
change in any presently existing law, regulation, treaty or directive, or in the
interpretation or application thereof, shall make it unlawful for any Lender to
make or maintain its Eurodollar Advances as contemplated by this Agreement, such
Lender shall so notify the Administrative Agent and the Administrative Agent
shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon (i) the commitment of such Lender hereunder to make Eurodollar
Advances or convert ABR Advances to Eurodollar Advances shall forthwith be
suspended and (ii) such Lender's Loans then outstanding as Eurodollar Advances
affected hereby, if any, shall be converted automatically to ABR Advances on the
last day of the then current Interest Period applicable thereto or within such
earlier period as required by law. If the commitment of any Lender with respect
to Eurodollar Advances is suspended pursuant to this Section and thereafter it
is once again legal for such Lender to make or maintain Eurodollar Advances,
such Lender's commitment to make or maintain Eurodollar Advances shall be
reinstated and such Lender shall notify the Administrative Agent and the
Borrower of such event. Notwithstanding the foregoing, to the extent that the
conditions giving rise to the notice
- 37 -
requirement set forth in this Section can be eliminated by the transfer of such
Credit Party's Loans or Commitment to another of its branches, and to the extent
that such transfer is not inconsistent with such Credit Party's internal
policies of general application and only if, as determined by such Credit Party
in its sole discretion, the transfer of such Loan or Commitment, as the case may
be, would not otherwise adversely affect such Loans or such Credit Party, the
Borrower may request, and such Lender shall use reasonable efforts to effect,
such transfer.
2.13. Increased Costs.
In the event that any law, regulation, treaty or directive hereafter
enacted, promulgated, approved or issued or any change in any presently existing
law, regulation, treaty or directive therein or in the interpretation or
application thereof by any Governmental Authority charged with the
administration thereof or compliance by any Credit Party (or any corporation
directly or indirectly owning or controlling such Credit Party) with any request
or directive, whether or not having the force of law, from any central bank or
other Governmental Authority, agency or instrumentality:
(a) does or shall subject any Credit Party to any Taxes of any
kind whatsoever with respect to any Eurodollar Advances or its obligations under
this Agreement to make Eurodollar Advances, or change the basis of taxation of
payments to any Credit Party of principal, interest or any other amount payable
hereunder in respect of its Eurodollar Advances, including any Taxes required to
be withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, tax on the overall net income of such
Credit Party or its Applicable Lending Office for any of such Advances by the
jurisdiction in which such Credit Party is incorporated or has its principal
office or such Applicable Lending Office, including, in the case of Credit
Parties incorporated in any State of the United States, such tax imposed by the
United States); or
(b) does or shall impose, modify or make applicable any reserve,
special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Credit Party in respect of its Eurodollar Advances, which, in the case of
Eurodollar Advances, is not otherwise included in the determination of the
Eurodollar Rate;
and the result of any of the foregoing is to increase the cost to such Credit
Party of making, issuing, renewing, converting or maintaining its Eurodollar
Advances or its commitment to make such Eurodollar Advances, or to reduce any
amount receivable hereunder in respect of its Eurodollar Advances, then, in any
such case, the Borrower shall pay such Credit Party, upon its demand, any
additional amounts necessary to compensate such Credit Party for such additional
cost or reduction in such amount
- 38 -
receivable which such Credit Party deems to be material as determined by such
Credit Party; provided, however, that nothing in this Section shall require the
Borrower to indemnify the Credit Parties with respect to withholding Taxes for
which the Borrower has no obligation under Section 2.11. No failure by any
Credit Party to demand compensation for any increased cost during any Interest
Period shall constitute a waiver of such Credit Party's right to demand such
compensation at any time. A statement setting forth the calculations of any
additional amounts payable pursuant to the foregoing sentence submitted by a
Credit Party to the Borrower shall be conclusive absent manifest error. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and any of the Commitments or the payment of the Notes and all
other amounts payable under the Loan Documents. Failure to demand compensation
pursuant to this Section shall not constitute a waiver of such Credit Party's
right to demand such compensation. To the extent that any increased costs of the
type referred to in this Section are being incurred by a Credit Party and such
costs can be eliminated or reduced by the transfer of such Credit Party's Loans
or Commitment to another of its branches, and to the extent that such transfer
is not inconsistent with such Credit Party's internal policies of general
application and only if, as determined by such Credit Party in its sole
discretion, the transfer of such Loan or Commitment, as the case may be, would
not otherwise materially adversely affect such Loan or such Credit Party, the
Borrower may request, and such Lender shall use reasonable efforts to effect,
such transfer.
2.14. Indemnification for Break Funding Losses.
Notwithstanding anything contained herein to the contrary, if (i)
the Borrower shall fail to borrow or convert on a Borrowing Date or Conversion
Date after it shall have given notice to do so in which it shall have requested
a Eurodollar Advance pursuant to Section 2.3 or 2.8, (ii) the Borrower shall
fail to borrow after having accepted one or more offers of Competitive Bid
Advances under Section 2.4, or (iii) a Eurodollar Advance or Competitive Bid
Advance shall be terminated or prepaid for any reason prior to the last day of
the Interest Period applicable thereto (including, without limitation, any
mandatory prepayment or a prepayment resulting from acceleration or illegality),
the Borrower agrees to indemnify each Credit Party against, and to pay on demand
directly to such Credit Party, any loss or expense suffered by such Credit Party
as a result of such failure to borrow or convert, or such termination or
repayment, including, without limitation, an amount, if greater than zero, equal
to:
A x (B-C) x D
---
360
where:
"A" equals such Credit Party's pro rata share of the
Affected Principal Amount;
- 39 -
"B" equals the applicable Eurodollar Rate or the rate which such
Competitive Bid Advance bears to such Loan, as the case may be;
"C" equals the applicable Eurodollar Rate or Proposed Bid Rate (in each
case expressed as a decimal), as the case may be, in effect on or about
the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on or about such
date, for deposits (or in the case of a Proposed Bid Rate, based on the
rate such Credit Party would have quoted) in an amount equal approximately
to such Credit Party's pro rata share of the Affected Principal Amount
with an Interest Period equal approximately to the applicable Remaining
Interest Period, as determined by such Credit Party;
"D" equals the number of days from and including the first day of the
applicable Remaining Interest Period to but excluding the last day of such
Remaining Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Credit Party) suffered by such Credit Party
in connection with such Eurodollar Advance or Competitive Bid Advance,
including, without limitation, in liquidating or employing deposits acquired to
fund or maintain the funding of its pro rata share of the Affected Principal
Amount, or redeploying funds prepaid or repaid, in amounts which correspond to
its pro rata share of the Affected Principal Amount. A statement setting forth
the calculations of any amounts payable pursuant to this Section submitted by a
Credit Party to the Borrower shall be conclusive and binding on the Borrower
absent manifest error. The obligations of the Borrower under this Section shall
survive the termination of this Agreement and the Commitments and the payment of
the Notes and all other amounts payable under the Loan Documents.
2.15. Use of Proceeds.
The proceeds of Loans shall be used solely for general business
purposes, and such use shall conform to the provisions of Section 4.11, provided
that the first Loans hereunder shall be applied to pay in full any loans
outstanding under the Prior Facility I Credit Agreement, together with all
interest, fees, breakage costs and other amounts outstanding and/or accrued
thereunder.
2.16. Capital Adequacy.
If (i) after the date hereof, the enactment or promulgation of, or
any change or phasing in of, any United States or foreign law or regulation or
in the interpretation thereof by any Governmental Authority charged with the
administration thereof, (ii) compliance with any directive or guideline from any
central bank or United States or
- 40 -
foreign Governmental Authority (whether or not having the force of law)
promulgated or made after the date hereof, or (iii) compliance with the
Risk-Based Capital Guidelines of the Board of Governors of the Federal Reserve
System as set forth in 12 CFR Parts 208 and 225, or of the Comptroller of the
Currency, Department of the Treasury, as set forth in 12 CFR Part 3, or similar
legislation, rules, guidelines, directives or regulations under any applicable
United States or foreign Governmental Authority affects or would affect the
amount of capital required to be maintained by a Credit Party (or any lending
office of such Credit Party) or any corporation directly or indirectly owning or
controlling such Credit Party or imposes any restriction on or otherwise
adversely affects such Credit Party (or any lending office of such Credit Party)
or any corporation directly or indirectly owning or controlling such Credit
Party and such Credit Party shall have reasonably determined that such
enactment, promulgation, change or compliance has the effect of reducing the
rate of return on such Credit Party's capital or the asset value to such Credit
Party of any Loan made by such Credit Party as a consequence, directly or
indirectly, of its obligations to make and maintain the funding of its Loans at
a level below that which such Credit Party could have achieved but for such
enactment, promulgation, change or compliance (after taking into account such
Credit Party's policies regarding capital adequacy) by an amount deemed by such
Credit Party to be material, then, upon demand by such Credit Party, the
Borrower shall promptly pay to such Credit Party such additional amount or
amounts as shall be sufficient to compensate such Credit Party for such
reduction in such rate of return or asset value. A certificate in reasonable
detail as to such amounts submitted to the Borrower and the Administrative Agent
setting forth the determination of such amount or amounts that will compensate
such Credit Party for such reductions shall be presumed correct absent manifest
error. No failure by any Credit Party to demand compensation for such amounts
hereunder shall constitute a waiver of such Credit Party's right to demand such
compensation at any time. Such Credit Party shall, however, use reasonable
efforts to notify the Borrower of such claim within 90 days after the officer of
such Credit Party having primary responsibility for this Agreement has obtained
knowledge of the events giving rise to such claim. The obligations of the
Borrower under this Section shall survive the termination of this Agreement and
the Commitments and the payment of the Notes and all other amounts payable under
the Loan Documents.
2.17. Administrative Agent's Records.
The Administrative Agent's records with respect to the Loans, the
interest rates applicable thereto, each payment by the Borrower of principal and
interest on the Loans, and fees, expenses and any other amounts due and payable
in connection with this Agreement shall be presumptively correct absent manifest
error as to the amount of the Loans, and the amount of principal and interest
paid by the Borrower in respect of such Loans and as to the other information
relating to the Loans, and amounts paid and payable by the Borrower hereunder
and under the Notes. The Administrative Agent will when requested by the
Borrower advise the Borrower of the principal and interest outstanding
- 41 -
under the Loans as of the date of such request and the dates on which such
payments are due.
3. FEES; PAYMENTS
3.1. Facility Fee.
(a) The Borrower agrees to pay to the Administrative Agent, for
the account of the Lenders in accordance with each Lender's Commitment
Percentage, a fee (the "Facility Fee"), from the Effective Date through the
Maturity Date, computed as follows: during the Revolving Credit Period, an
amount, determined periodically as hereinafter set forth, equal to the product
of (i) the Applicable Facility Fee Percentage times (ii) the average daily Total
Commitment Amount. The Facility Fee shall be payable quarterly in arrears on the
last day of each March, June, September and December of each year, commencing on
the first such day following the Effective Date, on any optional reduction of
the Total Commitment Amount, and on the Maturity Date. The Facility Fee (and the
Applicable Facility Fee Percentage) shall be calculated on the basis of a 360
day year for the actual number of days elapsed without regard to the amount of
Loans outstanding during any period for which the Facility Fee is computed.
(b) The Borrower agrees to pay any other fees payable to any
Credit Party under any separate agreement at the times so agreed upon in such
separate agreements.
(c) The Facility Fee shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution
directly to the Credit Party to whom such Facility Fee is payable. The Facility
Fee shall not be refundable under any circumstances.
3.2. Payments; Application of Payments.
Each payment, including each prepayment, of principal and interest
on the Loans and the Facility Fee shall be made by the Borrower to the
Administrative Agent, without set-off, deduction or counterclaim, at its office
set forth in Section 11.2 in funds immediately available to the Administrative
Agent at such office by 12:00 noon on the due date for such payment. Promptly
upon receipt thereof by the Administrative Agent, the Administrative Agent shall
remit, in like funds as received, (i) to the Lenders who maintain any of their
Loans as ABR Advances or Eurodollar Advances, each such Lender's pro rata share
of such payments which are in respect of principal or interest due on such ABR
Advances or Eurodollar Advances, (ii) to the Lenders who maintain any of their
Revolving Credit Loans as Competitive Bid Advances, each such Lender's pro rata
share of such payments which are in respect of principal or interest due on such
Competitive Bid Advances in accordance with Sections 2.4(c) and (d), and (iii)
in the
- 42 -
case of the Facility Fee, to all Lenders pro rata according to each Lender's
Commitment Percentage thereof. The failure of the Borrower to make any such
payment by such time shall not constitute a default hereunder, provided that
such payment is made on such due date, but any such payment made after 12:00
noon on such due date shall be deemed to have been made on the next Business Day
for the purpose of calculating interest on amounts outstanding on the Loans. If
any payment hereunder or under the Notes shall be due and payable on a day which
is not a Business Day, the due date thereof (except as otherwise provided in the
definition of Interest Period) shall be extended to the next Business Day and
(except with respect to payments in respect of the Facility Fee) interest shall
be payable at the applicable rate specified herein during such extension. If any
payment is made with respect to any Eurodollar Advance or Competitive Bid
Advance prior to the last day of the applicable Interest Period, the Borrower
shall indemnify each Lender in accordance with Section 2.14.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:
4.1. Existence and Power.
(a) The Borrower is a Maryland corporation duly organized and
validly existing and in good standing under the laws of Maryland, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
jurisdiction in which the nature of the business conducted therein or the
Property owned therein make such qualification necessary, except where such
failure to qualify could not reasonably be expected to have a Material Adverse
Effect.
(b) Each Subsidiary of the Borrower (including each Subsidiary
Guarantor) is a corporation, partnership, limited liability company, real estate
investment trust or business trust, is validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to own its Property and to carry on its business as now conducted,
and is in good standing and authorized to do business in each other jurisdiction
in which the nature of the business conducted therein or the Property owned
therein make such qualification necessary, except where such failure to qualify
could not reasonably be expected to have a Material Adverse Effect.
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4.2. Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents to which it is a
party and to make the borrowings contemplated thereby, to execute, deliver and
carry out the terms of the Notes and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all proper and
necessary corporate action.
4.3. Binding Agreement.
(a) The Loan Documents to which the Borrower is a party constitute
the valid and legally binding obligations of the Borrower, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally.
(b) The execution, delivery and performance by the Borrower of the
Loan Documents to which it is a party does not violate the provisions of any
applicable statute, law (including, without limitation, any applicable usury or
similar law), rule or regulation of any Governmental Authority.
4.4. Subsidiaries; DownREIT Partnerships.
As of the Effective Date, the Borrower has only the Subsidiaries set
forth on Schedule 4.4. Schedule 4.4 sets forth the name of, and the ownership
interest of the Borrower in, each Subsidiary of the Borrower and identifies each
Subsidiary that is a Subsidiary Guarantor, in each case as of the Effective
Date. The shares of each corporate Subsidiary of the Borrower that are owned by
the Borrower are duly authorized, validly issued, fully paid and nonassessable
and are owned free and clear of any Liens. The interest of the Borrower in each
non-corporate Subsidiary is owned free and clear of any Liens (other than Liens
applicable to a partner under the terms of any partnership agreement to secure
the Borrower's obligation to make capital contributions or similar payments
thereunder). As of the Effective Date, the only DownREIT Partnerships are Excel
Realty Partners, L.P. and E.H. Properties, L.P.
4.5. Litigation.
(a) There are no actions, suits or proceedings at law or in equity
or by or before any Governmental Authority (whether or not purportedly on behalf
of the Borrower or any Subsidiary of the Borrower) pending or, to the knowledge
of the Borrower, threatened against the Borrower or any Subsidiary of the
Borrower or any of their respective Properties or rights, which (i) if adversely
determined, could reasonably be expected to have a Material Adverse Effect, (ii)
call into question the validity or enforceability of any of the Loan Documents,
or (iii) could reasonably be expected to
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result in the rescission, termination or cancellation of any franchise, right,
license, permit or similar authorization held by the Borrower or any Subsidiary
of the Borrower, which rescission, termination or cancellation could reasonably
be expected to have a Material Adverse Effect.
(b) As of the date hereof, Schedule 4.5 sets forth all actions,
suits and proceedings at law or in equity or by or before any Governmental
Authority (whether or not purportedly on behalf of the Borrower or any
Subsidiary of the Borrower) pending or, to the knowledge of the Borrower,
threatened against the Borrower, any Subsidiary of the Borrower or any of their
respective Properties or rights which, if adversely determined, could have a
Material Adverse Effect.
4.6. Required Consents.
No consent, authorization or approval of, filing with, notice to, or
exemption by, stockholders, any Governmental Authority or any other Person not
obtained is required to be obtained by the Borrower to authorize, or is required
in connection with the execution, delivery and performance of the Loan Documents
or is required to be obtained by the Borrower as a condition to the validity or
enforceability of the Loan Documents.
4.7. No Conflicting Agreements.
Neither the Borrower nor any Subsidiary of the Borrower is in
default beyond any applicable grace or cure period under any mortgage,
indenture, contract or agreement to which it is a party or by which it or any of
its Property is bound, the effect of which default could reasonably be expected
to have a Material Adverse Effect. The execution, delivery or carrying out of
the terms of the Loan Documents will not constitute a default under, or result
in the creation or imposition of, or obligation to create, any Lien upon any
Property of the Borrower or any Subsidiary of the Borrower pursuant to the terms
of any such mortgage, indenture, contract or agreement.
4.8. Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary of the Borrower is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect. The Borrower and each Subsidiary of the Borrower is in
compliance in all material respects with all statutes, regulations, rules and
orders applicable to Borrower or such Subsidiary of all Governmental
Authorities, including, without limitation, (i) Environmental Laws and ERISA, a
violation of which could reasonably be expected to have a Material Adverse
Effect and (ii) Sections 856-860 of the Code, compliance with which is required
to preserve the Borrower's status as a REIT.
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4.9. Taxes.
Each of the Borrower and its Subsidiaries has filed or caused to be
filed all tax returns required to be filed and has paid, or has filed
appropriate extensions and has made adequate provision for the payment of, all
taxes shown to be due and payable on said returns or in any assessments made
against it (other than those being contested as permitted under Section 7.4) in
which the failure to pay could reasonably be expected to have a Material Adverse
Effect, and no tax Liens have been filed with respect thereto. The charges,
accruals and reserves on the books of the Borrower and each Subsidiary of the
Borrower with respect to all federal, state, local and other taxes are, to the
best knowledge of the Borrower, adequate for the payment of all such taxes, and
the Borrower knows of no unpaid assessment which is due and payable against it
or any of its Subsidiaries or any claims being asserted which could reasonably
be expected to have a Material Adverse Effect.
4.10. Governmental Regulations.
Neither the Borrower nor any Subsidiary of the Borrower is subject
to regulation under the Public Utility Holding Company Act of 1935, as amended,
the Federal Power Act, as amended, or the Investment Company Act of 1940, as
amended, and neither the Borrower nor any Subsidiary of the Borrower is subject
to any statute or regulation which prohibits or restricts the incurrence of
Indebtedness under the Loan Documents, including, without limitation, statutes
or regulations relative to common or contract carriers or to the sale of
electricity, gas, steam, water, telephone, telegraph or other public utility
services.
4.11. Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Subsidiary of the Borrower is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, directly or indirectly, for a purpose
which violates any law, rule or regulation of any Governmental Authority,
including, without limitation, the provisions of Regulations T, U or X of the
Board of Governors of the Federal Reserve System, as amended. No part of the
proceeds of the Loans will be used, directly or indirectly, to purchase or carry
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying Margin Stock.
4.12. Plans; Multiemployer Plans.
As of the Effective Date, each of the Borrower and its ERISA
Affiliates maintains or makes contributions only to the Plans and Multiemployer
Plans listed on Schedule 4.12. Each Plan, and, to the best knowledge of the
Borrower, each Multiemployer Plan, is in compliance in all material respects
with, and has been
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administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other applicable Federal or state law, and
no event or condition is occurring or exists concerning which the Borrower would
be under an obligation to furnish a report to the Administrative Agent and each
Lender as required by Section 7.2(d). As of December 31, 2000, each Plan was
"fully funded", which for purposes of this Section means that the fair market
value of the assets of such Plan is not less than the present value of the
accrued benefits of all participants in the Plan, computed on a plan termination
basis. To the best knowledge of the Borrower, no Plan has ceased being fully
funded.
4.13. Financial Statements.
The Borrower has heretofore delivered to the Administrative Agent
and the Lenders (i) copies of the audited Consolidated Balance Sheet of the
Borrower and its Consolidated Subsidiaries as of December 31, 2000, and the
related Consolidated Statements of Operations, Stockholders' Equity and Cash
Flows for the Borrower and its Consolidated Subsidiaries for the fiscal year of
the Borrower then ended, and (ii) the Consolidated Statements of Income and Cash
Flows for the Borrower and its Consolidated Subsidiaries for the fiscal quarters
of the Borrower ending March 31, 2001 and June 30, 2001, certified by its Chief
Financial Officer (collectively, with the related notes and schedules, the
"Financial Statements"). The Financial Statements fairly present the
Consolidated financial condition and results of the operations of the Borrower
and its Consolidated Subsidiaries as of the dates and for the periods indicated
therein and have been prepared in conformity with GAAP. Except as reflected in
the Financial Statements or in the notes thereto, neither the Borrower nor any
Subsidiary of the Borrower has any obligation or liability of any kind (whether
fixed, accrued, contingent, unmatured or otherwise) which, in accordance with
GAAP, should have been shown on the Financial Statements and was not. Since June
30, 2001 through the Effective Date there has been no material adverse change in
the financial condition or business of the Borrower and its Subsidiaries taken
as a whole.
4.14. Property.
Each of the Borrower and its Subsidiaries has good and marketable
title to all of its Property, title to which is material to the Borrower or such
Subsidiary, subject to no Liens, except Permitted Liens. There are no unpaid or
outstanding real estate or similar taxes or assessments on or against any Real
Property other than (i) real estate or other taxes or assessments that are not
yet due and payable, and (ii) such taxes as the Borrower or any Subsidiary of
the Borrower is contesting in good faith or which individually or in the
aggregate could not reasonably be expected to have a Materially Adverse Effect.
There are no pending eminent domain proceedings against any Real Property, and,
to the knowledge of the Borrower, no such proceedings are presently threatened
or contemplated by any Governmental Authority against any Real Property,
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which individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect. None of the Real Property is now damaged as a result of
any fire, explosion, accident, flood or other casualty which individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect.
4.15. Franchises, Intellectual Property, Etc.
Each of the Borrower and its Subsidiaries possesses or has the right
to use all franchises, Intellectual Property, licenses and other rights, in each
case that are material and necessary for the conduct of its business, with no
known conflict with the valid rights of others which could reasonably be
expected to have a Material Adverse Effect. No event has occurred which permits
or, to the best knowledge of the Borrower, after notice or the lapse of time or
both, or any other condition, could reasonably be expected to permit, the
revocation or termination of any such franchise, Intellectual Property, license
or other right and which revocation or termination could reasonably be expected
to have a Material Adverse Effect.
4.16. Environmental Matters.
(a) The Borrower and each of its Subsidiaries is in compliance
with the requirements of all applicable Environmental Laws except for such
non-compliance which could not, either individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(b) No Hazardous Substances have been (i) generated or
manufactured on, transported to or from, treated at, stored at or discharged
from any Real Property in violation of any Environmental Laws; (ii) discharged
into subsurface waters under any Real Property in violation of any Environmental
Laws; or (iii) discharged from any Real Property on or into property or waters
(including subsurface waters) adjacent to any Real Property in violation of any
Environmental Laws, which violation, in the case of either (i), (ii) or (iii)
could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries (i) has
received notice (written or oral) or otherwise learned of any claim, demand,
suit, action, proceeding, event, condition, report, directive, lien, violation,
non-compliance or investigation indicating or concerning any potential or actual
liability (including, without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal costs,
remedial costs, natural resources damages, property damages, personal injuries
or penalties) arising in connection with (x) any non-compliance with or
violation of the requirements of any applicable Environmental Laws, or (y) the
presence of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any Subsidiary of the Borrower) or the
release or threatened release of any Hazardous Substance into the environment
which, in
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either case, could, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (ii) has any threatened or actual
liability in connection with the presence of any Hazardous Substance on any Real
Property (or any Real Property previously owned by the Borrower or any
Subsidiary of the Borrower) or the release or threatened release of any
Hazardous Substance into the environment which, in either case, could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (iii) has received notice of any federal or state investigation
evaluating whether any remedial action is needed to respond to the presence of
any Hazardous Substance on any Real Property (or any Real Property previously
owned by the Borrower or any Subsidiary of the Borrower) or a release or
threatened release of any Hazardous Substance into the environment for which the
Borrower or any Subsidiary of the Borrower is or may be liable the results of
which could, in either case, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, or (iv) has received notice that
the Borrower or any Subsidiary of the Borrower is or may be liable to any Person
under any Environmental Law which liability could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(d) To the best of the Borrower's knowledge, no Real Property is
located in an area identified by the Secretary of Housing and Urban Development
as an area having special flood hazards, or if any such Real Property is located
in such a special flood hazard area, then the Borrower has obtained all
insurance that is required to be maintained by law or which is customarily
maintained by Persons engaged in similar businesses and owning similar
Properties in the same general areas in which the Borrower operates.
4.17. Labor Relations.
Neither the Borrower nor any of its Subsidiaries is a party to any
collective bargaining agreement, other than the collective bargaining agreement
covering fewer than 10 employees at the Roosevelt Mall Shopping Center in
Philadelphia, Pennsylvania, and, to the best knowledge of the Borrower, no
petition has been filed or proceedings instituted by any employee or group of
employees with any labor relations board seeking recognition of a bargaining
representative with respect to the Borrower or such Subsidiary. There are no
material controversies pending between the Borrower or any Subsidiary and any of
their respective employees, which could reasonably be expected to have a
Material Adverse Effect.
4.18. Burdensome Obligations.
Neither the Borrower nor any of its Subsidiaries is a party to or
bound by any franchise, agreement, deed, lease or other instrument, or subject
to any corporate restriction which, in the opinion of the management of the
Borrower or such Subsidiary, is so unusual or burdensome, in the context of its
business, as in the foreseeable future
- 49 -
might adversely affect or impair the revenue or cash flow of the Borrower or
such Subsidiary in such a manner as could reasonably be expected to have a
Material Adverse Effect, or materially and adversely affect or impair the
ability of the Borrower or such Subsidiary to perform its obligations under the
Loan Documents. The Borrower does not presently anticipate that future
expenditures by the Borrower or any Subsidiary of the Borrower needed to meet
the provisions of federal or state statutes, orders, rules or regulations will
be so burdensome as to result in a Material Adverse Effect.
4.19. Solvency.
On the Effective Date and immediately following the making of each
Loan, and after giving effect to the application of the proceeds of such Loan:
(a) the fair value of the assets of the Borrower and its Subsidiaries, taken as
a whole, at a fair valuation, will exceed the debts and liabilities, including
Contingent Obligations, of the Borrower and its Subsidiaries, taken as a whole;
(b) the present fair saleable value of the property of the Borrower and its
Subsidiaries, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of the debts and other liabilities,
subordinated, contingent or otherwise of the Borrower and its Subsidiaries, as
such debts and other liabilities become absolute and matured; (c) the Borrower
and its Subsidiaries, taken as a whole, will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries, taken as a whole, will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted hereafter.
4.20. REIT Status.
The Borrower (i) has made an election pursuant to Section 856 of the
Code to qualify as a REIT, (ii) has satisfied and continues to satisfy all of
the requirements under Sections 856-859 of the Code and the regulaTions and
rulings issued thereunder which must be satisfied for the Borrower to maintain
its status as a REIT, and (iii) is in compliance in all material respects with
all Code sections applicable to REITs generally and the regulations and rulings
issued thereunder.
4.21. List of Unencumbered Assets.
A true, correct and complete list of all the Unencumbered Assets is
attached hereto as Schedule 4.21.
4.22. Operation of Business.
The Borrower is a self-advised, and self-managed REIT.
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4.23. No Misrepresentation.
No representation or warranty contained herein and no certificate or
report furnished or to be furnished by the Borrower or any Subsidiary of the
Borrower in connection with the transactions contemplated hereby, contains or
will contain a misstatement of material fact, or, to the best knowledge of the
Borrower, omits or will omit to state a material fact required to be stated in
order to make the statements herein or therein contained not misleading in the
light of the circumstances under which made.
5. CONDITIONS TO FIRST LOANS
In addition to the conditions precedent set forth in Section 6, the
obligation of each Lender to make its first Loan shall be subject to the
fulfillment of the following conditions precedent:
5.1. Evidence of Action.
(a) The Administrative Agent shall have received a certificate,
dated the date hereof, of the Secretary or Assistant Secretary of the Borrower
substantially in the form of Exhibit I (i) attaching a true and complete copy of
the resolutions of its Board of Directors authorizing the execution and delivery
of the Loan Documents by the Borrower and the performance of the Borrower's
obligations thereunder, and of all other documents evidencing other necessary
action (in form and substance reasonably satisfactory to the Administrative
Agent) taken by it to authorize the Loan Documents and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its articles of
incorporation and by-laws, (iii) setting forth the incumbency of its officer or
officers who may sign the Loan Documents, including therein a signature specimen
of such officer or officers, and (iv) certifying that said articles of
incorporation and by-laws are true and complete copies thereof, are in full
force and effect and have not been amended or modified.
(b) The Administrative Agent shall have received a certificate,
dated the date hereof, of the Secretary or Assistant Secretary of each
Subsidiary Guarantor substantially in the form of Exhibit J (i) attaching a true
and complete copy of the resolutions of its Board of Directors or Trustees, as
the case may be, authorizing its execution and delivery of the Guaranty and the
performance of its obligations thereunder, and of all other documents evidencing
other necessary action (in form and substance reasonably satisfactory to the
Administrative Agent) taken by it to authorize the Guaranty and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its articles of
incorporation or corporate charter or declaration of trust and, if applicable,
by-laws, (iii) setting forth the incumbency of its officer or officers who may
sign the Guaranty, including therein a signature specimen of such officer or
officers, and (iv) certifying that said articles of incorporation, corporate
charter or declaration of trust and,
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if applicable, by-laws, are true and complete copies thereof, is in full force
and effect and has not been amended or modified.
(c) The Administrative Agent shall have received certificates of
good standing for the Borrower from the Maryland State Department of Assessments
and Taxation and for each Subsidiary Guarantor from the Secretary of State for
the State in which such Subsidiary Guarantor is incorporated, and for the
Borrower from each jurisdiction other than Maryland in which the Borrower is
qualified to do business, provided that such Secretaries issue such certificates
with respect to the Borrower.
5.2. This Agreement.
The Administrative Agent shall have received counterparts of this
Agreement signed by each of the parties hereto (or receipt by the Administrative
Agent from a party hereto of a facsimile signature page signed by such party
which shall have agreed to promptly provide the Administrative Agent with
originally executed counterparts hereof).
5.3. Notes.
The Administrative Agent shall have received the Notes, duly
executed by an Authorized Signatory of the Borrower.
5.4. Guaranty.
The Administrative Agent shall have received counterparts of the
Guaranty signed by each of the Subsidiary Guarantors (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed by
such party which shall have agreed to promptly provide the Administrative Agent
with originally executed counterparts hereof).
5.5. Other Credit Agreement.
The Borrower shall not be in default under any of the covenants,
terms or other provisions of the Other Credit Agreement.
5.6. Litigation.
There shall be no injunction, writ, preliminary restraining order or
other order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for herein and no action or proceeding by or
before any Governmental Authority shall have been commenced and be pending or,
to the knowledge of the Borrower, threatened, seeking to prevent or delay the
transactions contemplated by the Loan Documents or challenging any other terms
and provisions
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hereof or thereof or seeking any damages in connection therewith and the
Administrative Agent shall have received a certificate of an Authorized
Signatory of the Borrower to the foregoing effects.
5.7. Opinion of Counsel to the Borrower.
The Administrative Agent shall have received an opinion of (i) Xxxxx
& Xxxxxxx, L.L.P., outside counsel to the Borrower, and (ii) Xxxxxx X. Xxxxxx,
Esq., in-house counsel to the Borrower, and (iii) counsel to each Subsidiary
Guarantor, each addressed to the Administrative Agent and the Lenders, and each
dated the date hereof, covering the matters set forth in Exhibit K.
5.8. Evidence of Termination of the Prior Facility I Credit Agreement
The Administrative Agent shall have received a copy of the
Borrower's letter to The Bank of New York, as administrative agent under the
Prior Facility I Credit Agreement, to the effect that upon the Effective Date,
and after any Loans required hereunder are made to pay off any loans outstanding
under the Prior Facility I Credit Agreement pursuant to Section 7.13 hereof, the
commitments under the Prior Facility I Credit Agreement shall be deemed
terminated pursuant to Section 2.5 of the Prior Facility I Credit Agreement.
5.9. Fees.
All fees payable to the Administrative Agent, the Lead Arranger, the
Co-Documentation Agents, the Managing Agent and the Lenders shall have been
paid.
5.10. Fees and Expenses of Special Counsel.
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Revolving Credit Loan is subject
to the satisfaction of the following conditions precedent as of the date of such
Loan:
6.1. Compliance.
On each Borrowing Date and after giving effect to the Loans to be
made or created, (a) the Borrower shall be in compliance with all of the terms,
covenants and conditions hereof, (b) there shall not exist and be continuing any
Default or Event of Default, (c) the representations and warranties contained in
the Loan Documents shall be true and correct with the same effect as though such
representations and warranties had
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been made on such Borrowing Date (except for representations and warranties that
speak as of a specific date, which need only be true and correct as of such
date), and (d) the aggregate outstanding principal balance of the Revolving
Credit Loans shall not exceed the Total Commitment Amount. Each notice
requesting a Revolving Credit Loan or a Competitive Bid Borrowing shall be
deemed to constitute a representation and warranty by the Borrower on the date
thereof that each of the foregoing matters is true and correct in all respects.
6.2. Loan Closings.
All documents required by the provisions of the Loan Documents to be
executed or delivered to the Administrative Agent on or before the applicable
Borrowing Date shall have been executed and shall have been delivered at the
office of the Administrative Agent set forth in Section 11.2 on or before such
Borrowing Date.
6.3. Borrowing Request.
With respect to each borrowing of a Revolving Credit Loan, the
Administrative Agent shall have received a Conventional Borrowing Request or a
Competitive Bid Borrowing Request, as the case may be, duly executed by an
Authorized Signatory of the Borrower.
6.4. Documentation and Proceedings.
All corporate matters and legal proceedings and all documents and
papers in connection with the transactions contemplated by the Loan Documents
shall be reasonably satisfactory in form and substance to the Administrative
Agent and the Administrative Agent shall have received all information and
copies of all documents which the Administrative Agent or the Required Lenders
may reasonably have requested in connection therewith, such documents (where
appropriate) to be certified by an Authorized Signatory of the Borrower or
proper Governmental Authorities.
6.5. Required Acts and Conditions.
All acts, conditions and things (including, without limitation, the
obtaining of any necessary regulatory approvals and the making of any filings,
recordings or registrations) required to be done or performed by the Borrower
and to have happened on or prior to such Borrowing Date and which are necessary
for the continued effectiveness of the Loan Documents, shall have been done or
performed and shall have happened in due compliance with all applicable laws.
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6.6. Approval of Special Counsel.
All legal matters in connection with the making of each Loan shall
be reasonably satisfactory to Special Counsel.
6.7. Supplemental Opinions.
If reasonably requested by the Administrative Agent with respect to
the applicable Borrowing Date, there shall have been delivered to the
Administrative Agent favorable supplementary opinions of counsel to the
Borrower, addressed to the Administrative Agent and the Lenders and dated such
Borrowing Date, covering such matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
6.8. Other Documents.
The Administrative Agent shall have received such other documents
and information with respect to the Borrower and its Subsidiaries or the
transactions contemplated hereby as the Administrative Agent or the Lenders
shall reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, any other amount is owing under any Loan Document to any Lender or the
Administrative Agent, or any Lender shall have any obligation to make or
maintain any Loan, the Borrower shall:
7.1. Financial Statements.
Maintain a standard system of accounting in accordance with GAAP,
and furnish or cause to be furnished to the Administrative Agent and each
Lender:
(a) Annual Statements. As soon as available, but in any event
within 120 days after the end of each fiscal year of the Borrower, a copy of its
Consolidated Balance Sheet as at the end of such fiscal year, together with the
related Consolidated Statements of Income, Stockholders' Equity and Cash Flows
as of and through the end of such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year. The Consolidated
Balance Sheets and Consolidated Statements of Income, Stockholders' Equity and
Cash Flows shall be audited and certified without qualification by the
Accountants, which certification shall (i) state that the examination by such
Accountants in connection with such Consolidated financial statements has been
made in accordance with generally accepted auditing standards and, accordingly,
includes the examination, on a test basis, of evidence supporting the amounts
and disclosures in such Consolidated financial statements, and (ii) include the
opinion of such Accountants
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that such Consolidated financial statements present fairly, in all material
respects, the Consolidated financial position of the Borrower and its
Subsidiaries, as of the date of such Consolidated financial statements, and the
Consolidated results of their operations and their cash flows for each of the
years identified therein in conformity with GAAP (subject to any change in the
requirements of GAAP).
(b) Annual Operating Statements and Rent Roll. As soon as
available, but in any event within 60 days after the end of each fiscal year of
the Borrower, copies of (i) the operating statements (in a form reasonably
satisfactory to the Administrative Agent) for all Real Property of the Borrower,
and (ii) a Rent Roll, each of which shall be certified by the Chief Financial
Officer to be true, correct and complete in all material respects.
(c) Quarterly Statements. As soon as available, but in any event
within 60 days after the end of the first three fiscal quarters of the Borrower,
a copy of the unaudited Consolidated Balance Sheet of the Borrower as at the end
of each such quarterly period, together with the related unaudited Consolidated
Statements of Income and Cash Flows for the elapsed portion of the fiscal year
through the end of such period, setting forth in each case in comparative form
the figures for the corresponding periods of the preceding fiscal year,
certified by the Chief Financial Officer as being true, correct and complete in
all material respects and as presenting fairly the Consolidated financial
condition and the Consolidated results of operations of the Borrower and its
Subsidiaries.
(d) Quarterly Information Regarding Unencumbered Assets. As soon
as available, but in any event 60 days after the end of each of the first three
fiscal quarters of the Borrower (120 days after the end of the last fiscal
quarter of the Borrower), a list of all the Unencumbered Assets owned by the
Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership as of the last day of such fiscal quarter setting forth the
following information with respect to each such Unencumbered Asset as of such
date: (i) asset type (i.e., retail shopping center or residential apartment
building); (ii) location; (iii) percentage of the Unencumbered Asset owned by
the Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership; and (iv) the Net Operating Income for such Unencumbered Asset
during such fiscal quarter.
(e) Compliance Certificate. Within 60 days after the end of each
of the first three fiscal quarters of the Borrower (120 days after the end of
the last fiscal quarter of the Borrower), a Compliance Certificate, certified by
the Chief Financial Officer, setting forth in reasonable detail the computations
demonstrating the Borrower's compliance with the provisions of Sections 8.12,
8.13, 8.14, 8.15, 8.16 and 8.17.
(f) Other Information. Such other information as the
Administrative Agent or any Lender may reasonably request from time to time.
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7.2. Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
(a) Defaults Under Other Indebtedness. Prompt written notice if:
(i) any Indebtedness of the Borrower or any Subsidiary of the Borrower is
declared or shall become due and payable prior to its stated maturity, or called
and not paid when due, or (ii) a default that extends beyond any applicable
notice or grace period shall have occurred under any note (other than the Notes)
or the holder of any such note, or other evidence of Indebtedness, certificate
or security evidencing any such Indebtedness or any obligee with respect to any
other Indebtedness of the Borrower or any Subsidiary of the Borrower has the
right to declare any such Indebtedness due and payable prior to its stated
maturity, and, in the case of either (i) or (ii), the Indebtedness that is the
subject of (i) or (ii) is, in the aggregate, $7,500,000 or more;
(b) Action of Governmental Authorities. Prompt written notice of:
(i) any citation, summons, subpoena, order to show cause or other document
naming the Borrower or any Subsidiary of the Borrower a party to any proceeding
before any Governmental Authority which could reasonably be expected to have a
Material Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include with such notice a copy
of such citation, summons, subpoena, order to show cause or other document; (ii)
any lapse or other termination of any Intellectual Property, license, permit,
franchise or other authorization issued to the Borrower or any Subsidiary of the
Borrower by any Person or Governmental Authority, which lapse or termination
could reasonably be expected to have a Material Adverse Effect; and (iii) any
refusal by any Person or Governmental Authority to renew or extend any such
material Intellectual Property, license, permit, franchise or other
authorization, which refusal could reasonably be expected to have a Material
Adverse Effect;
(c) SEC or other Governmental Reports and Filings. Promptly upon
becoming available, copies of all regular, periodic or special reports which the
Borrower or any Subsidiary of the Borrower may now or hereafter be required to
file with or deliver to any securities exchange or the Securities and Exchange
Commission, or any other Governmental Authority succeeding to the functions
thereof, pursuant to the Securities Exchange Act of 1934, as amended.
(d) ERISA Information. Promptly, and in any event within ten
Business Days, after the Borrower knows or has reason to know that any of the
events or conditions enumerated below with respect to any Plan or Multiemployer
Plan has occurred or exists, a statement signed by the Chief Financial Officer
setting forth details with respect to such event or condition and the action, if
any, which the Borrower or an ERISA Affiliate proposes to take with respect
thereto; provided, however, that if such event or condition is required to be
reported or noticed to the PBGC, such statement,
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together with a copy of the relevant report or notice to the PBGC, shall be
furnished promptly and in any event not later than ten days after it is reported
or noticed to the PBGC:
(i) any reportable event, as defined in Section 4043(b) of
ERISA with respect to a Plan, as to which the PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified
within thirty days of the occurrence of such event (provided that a
failure to meet the minimum funding standard of Section 412 of the Code or
of Section 302 of ERISA, including, without limitation, the failure to
make, on or before its due date, a required installment under Section
412(m) of the Code or Section 302(e) of ERISA or the disqualification of
such Plan for purposes of Section 4043(b)(1) of ERISA, shall be a
reportable event regardless of the issuance of any waivers in accordance
with Section 412(d) of the Code) and any request for a waiver under
Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by the Borrower or any
ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Borrower or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by the Borrower or any ERISA Affiliate that results in liability
under Section 4201 or 4204 of ERISA (including the obligation to satisfy
secondary liability as a result of a purchaser default) or the receipt of
the Borrower or any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within thirty days
from its commencement;
(vi) the adoption of an amendment to any Plan pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA that would result
in the loss of the tax-exempt status of the trust of which such Plan is a
part or the Borrower or any ERISA Affiliate fails to timely provide
security to such Plan in accordance with the provisions of said Sections;
and
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(vii) any event or circumstance exists which may reasonably be
expected to constitute grounds for the incurrence of material liability by
the Borrower or any ERISA Affiliate under Title IV of ERISA or under
Sections 412(c)(11) or 412(n) of the Code with respect to any employee
benefit plan;
(e) ERISA Reports. Promptly after the request of the
Administrative Agent or any Lender therefor, copies of each annual report filed
pursuant to Section 104 of ERISA with respect to each Plan (including, to the
extent required by Section 104 of ERISA, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information referred to in Section 103 of ERISA) and each annual
report filed with respect to each Plan under Section 4065 of ERISA; provided,
however, that in the case of a Multiemployer Plan, such annual reports shall be
furnished only if they are available to the Borrower or any ERISA Affiliate;
(f) Notice of Proposed Sales or Transfers. Quarterly, on each date
that a Compliance Certificate is to be delivered pursuant to Section 7.1(e), a
list of all sales or transfers of any Unencumbered Assets (including any
agreements for the sale or transfer of any Unencumbered Asset entered into
during such fiscal quarter but not yet consummated); provided that, if during
any such fiscal quarter of the Borrower any sale or transfer of an Unencumbered
Asset, which combined with all other such sales or transfers of Unencumbered
Assets during such fiscal quarter, would exceed $100,000,000 in the aggregate,
then the Borrower shall promptly provide such list and a certification of the
Chief Financial Officer as to the Borrower's compliance with Sections 8.12 and
8.16;
(g) Casualties or Condemnations. Prompt written notice of any
casualty or condemnation of any Real Property, if such casualty or condemnation
could reasonably be expected to have a Material Adverse Effect;
(h) Environmental Law Notices. Prompt written notice of any order,
notice, claim or proceeding received by, or brought against, the Borrower or any
Subsidiary of the Borrower, or with respect to any of the Real Property, under
any Environmental Law, which could reasonably be expected to have a Material
Adverse Effect;
(i) Management Letters and Reports. Promptly after the same are
received by the Borrower, copies of all management letters and similar reports
provided to the Borrower by the Accountants;
(j) New Subsidiaries. Notice of any Subsidiary that, as of the end
of any fiscal quarter of the Borrower, satisfies the criteria in Section 7.11
with respect to Required Additional Guarantors, such notice to be delivered to
the Administrative Agent concurrently with the delivery of the Compliance
Certificate with respect to such quarter;
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(k) Changes in Name or Fiscal Year. Prompt written notice of (i)
any change in the Borrower's name, with copies of all filings with respect to
such name change attached thereto, and (ii) any change in its fiscal year from
that in effect on the Effective Date.
(l) Defaults or Events of Default. Prompt written notice if there
shall occur and be continuing a Default or an Event of Default; and
(m) Other Information. Such other information as the
Administrative Agent or any Lender shall reasonably request from time to time.
7.3. Legal Existence.
(a) Borrower's Legal Existence. Maintain its status as a Maryland
corporation in good standing in the State of Maryland and in each other
jurisdiction in which the failure so to do could reasonably be expected to have
a Material Adverse Effect.
(b) Legal Existence of Subsidiaries. Cause each Subsidiary of the
Borrower to maintain its status as a real estate investment trust, business
trust, corporation, limited liability company or partnership, as the case may
be, in good standing in its state of formation and in each other jurisdiction in
which the failure so to do either (i) would result in the occurrence of a
Default, or (ii) could reasonably be expected to have a Material Adverse Effect.
7.4. Taxes.
Pay and discharge when due, and cause each Subsidiary of the
Borrower so to do, all Taxes, assessments and governmental charges, license fees
and levies upon, or with respect to, the Borrower or such Subsidiary and all
Taxes upon the income, profits and Property of the Borrower and its
Subsidiaries, which if unpaid, could reasonably be expected to have a Material
Adverse Effect, unless and to the extent only that such Taxes, assessments,
governmental charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and such contest has the effect of staying the collection of any Lien
from any Property of the Borrower or its Subsidiaries arising from such
non-payment, and provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
7.5. Insurance.
Maintain, and cause each Subsidiary of the Borrower to maintain,
insurance on its Property against such risks and in such amounts as is
customarily
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maintained by Persons engaged in similar businesses and owning similar
Properties in the same general areas in which the Borrower or the relevant
Subsidiary operates, and file with the Administrative Agent within 10 Business
Days after request therefor a detailed list of such insurance then in effect,
stating the names of the carriers thereof, the policy numbers, the insureds
thereunder, the amounts of insurance, dates of expiration thereof, and the
Property and risks covered thereby, together with a certificate of the Chief
Financial Officer certifying that in the opinion of such officer such insurance
complies with the obligations of the Borrower under this Section, and is in full
force and effect.
7.6. Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary of the
Borrower to pay and discharge, all lawful Indebtedness, obligations and claims
for labor, materials and supplies or otherwise which, if unpaid, (i) would
result in a Default, or (ii) could reasonably be expected to have a Material
Adverse Effect, unless (with respect to clause (ii)) such Indebtedness shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Borrower or such Subsidiary and such contest has the effect of staying the
collection of any Lien from any Property of the Borrower or its Subsidiaries
arising from such non-payment, and provided that the Borrower shall give the
Administrative Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required in accordance with GAAP (as
determined by the Accountants) shall have been made therefor.
7.7. Maintenance of Property; Environmental Investigations
(a) In all material respects, at all times, maintain, protect and
keep in good repair, working order and condition (ordinary wear and tear
excepted), and cause each Subsidiary of the Borrower so to do, all Property
necessary to the operation of the Borrower's or such Subsidiary's business.
(b) In the event that the Administrative Agent shall have a
reasonable basis for believing that Hazardous Substances may be on, at, under or
around any Real Property in violation of any applicable Environmental Law which,
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect, promptly conduct and complete (at the Borrower's expense) all
investigations, studies, samplings and testings relative to such Hazardous
Substances as the Administrative Agent may reasonably request.
7.8. Observance of Legal Requirements.
(a) Observe and comply in all respects, and cause each Subsidiary
of the Borrower so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it,
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except (i) where noncompliance with any of the foregoing (individually or in the
aggregate) could not reasonably be expected to have a Material Adverse Effect,
or (ii) such thereof as shall be contested in good faith and by appropriate
proceedings diligently conducted by it and such contest has the effect of
staying the collection of any Lien from any Property of the Borrower or its
Subsidiaries arising from such noncompliance, and provided that the Borrower
shall give the Administrative Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required in accordance with
GAAP (as determined by the Accountants) shall have been made therefor.
(b) Use and operate all of its facilities and property in
compliance with all Environmental Laws and cause each of its Subsidiaries so to
do, and keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith and cause each of its Subsidiaries so to do, and handle all
Hazardous Materials in compliance with all applicable Environmental Laws and
cause each of its Subsidiaries so to do, except where noncompliance with any of
the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
7.9. Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and activities
and permit representatives of the Administrative Agent and any Lender during
normal business hours and on reasonable prior notice to visit its offices, to
inspect any of its Property and to examine and make copies or abstracts from any
of its books and records as often as may reasonably be desired, and to discuss
the business, operations, prospects, licenses, Property and financial condition
of the Borrower or and its Subsidiaries with the officers thereof and the
Accountants.
7.10. Licenses, Intellectual Property.
Maintain, and cause each Subsidiary of the Borrower to maintain, in
full force and effect, all material licenses, franchises, Intellectual Property,
permits, authorizations and other rights as are necessary for the conduct of its
business.
7.11. Required Additional Guarantors.
(a) At any time after the date hereof, and with respect to any
Subsidiary of the Borrower, whether presently existing or hereafter formed or
acquired (other than Excel Realty Partners, L.P. and E. H. Properties, L.P.)
which is not a Subsidiary Guarantor at such time, cause such Subsidiary to
execute and deliver a Guaranty to the Administrative Agent, for the benefit of
the Lenders, promptly after the
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Administrative Agent's request therefor, duly executed by such Subsidiary
(together with certificates and attachments of a nature similar to those
described in Section 5.1(b) and (c) with respect to such Subsidiary and an
opinion of counsel of a nature similar to those in the form required pursuant to
Section 5.7(iii)) if at such time such Subsidiary owns Property having a book
value of $75,000,000 or more. Notwithstanding the foregoing, the foregoing book
value conditions of this Section shall not be applicable from and after the
occurrence of, and during the continuance of, an Event of Default (it being
understood that at such time, the Administrative Agent can require any
Subsidiary of the Borrower which has not executed a Guaranty to immediately
comply with requirements of this Section).
(b) At any time after the date hereof, and in connection with a
transfer of one or more assets of the Borrower to a wholly owned Subsidiary of
the Borrower (other than a transfer to a Subsidiary Guarantor, or a Subsidiary
which is required to be a Subsidiary Guarantor pursuant to Section 7.11(a))
pursuant to Section 8.2(b)(iii), whether presently existing or hereafter formed
or acquired, cause such Subsidiary to execute and deliver an Other Guaranty to
the Administrative Agent, for the benefit of the Lenders, duly executed by such
Subsidiary (together with certificates and attachments of a nature similar to
those described in Section 5.1(b) and (c) with respect to such Subsidiary and an
opinion of counsel of a nature similar to the form required pursuant to Section
5.7(iii)).
7.12. REIT Status; Operation of Business
(a) Maintain its status under Sections 856 et seq. of the Code as
a REIT.
(b) Carry on all business operations of the Borrower as a
self-advised, self-managed REIT.
(c) Manage, or cause one or more of its Subsidiaries at all times
to manage, at least 90% of all Properties of the Borrower and its Subsidiaries.
7.13. Termination of Prior Facility I Credit Agreement.
On the Effective Date, (i) the Commitments (as such term is defined
in the Prior Facility I Credit Agreement) shall be terminated in accordance with
the provisions of the letter delivered to The Bank of New York as set forth in
the requirements of Section 5.8, and (ii) in the event that any Loans (as such
term is defined in the Prior Facility I Credit Agreement) are outstanding under
the Prior Facility I Credit Agreement, the Borrower shall qualify for, and shall
request, a Loan hereunder for the purpose of paying all such Prior Facility I
Credit Agreement Loans, together with all interest, fees, breakage costs and
other amounts outstanding thereunder.
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8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, any other amount is owing under any Loan Document to any Lender or the
Administrative Agent, or any Lender shall have any obligation to make or
maintain any Loan, the Borrower shall not, directly or indirectly:
8.1. Liens.
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any Subsidiary of
the Borrower so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent or
the existence of which do not otherwise violate the representations in Section
7.4, (ii) Liens in connection with workers' compensation, unemployment insurance
or other social security obligations (but not ERISA), (iii) deposits or pledges
to secure bids, tenders, contracts (other than contracts for the payment of
money), leases, statutory obligations, surety and appeal bonds and other
obligations of like nature arising in the ordinary course of business, (iv)
zoning ordinances, easements, rights of way, use restrictions, exclusive use
limitations in any lease of Real Property, reciprocal easement agreements, minor
defects, irregularities, and other similar restrictions and encumbrances
affecting Real Property, which do not materially adversely affect the value of
such Real Property or the financial condition of the Borrower or such Subsidiary
of the Borrower or materially impair its use for the operation of the business
of the Borrower or such Subsidiary, (v) statutory Liens arising by operation of
law such as mechanics', materialmen's, carriers', warehousemen's liens incurred
in the ordinary course of business which are not delinquent or the existence of
which do not otherwise violate the representations in Section 7.6, (vi) Liens
arising out of judgments or decrees which are being contested in accordance with
Section 7.8 or the existence of which do not otherwise violate the
representations in Section 7.8 or result in a default pursuant to Section
9.1(j), (vii) mortgages on Real Property, provided that the existence of such
mortgages, and the indebtedness secured thereby, does not cause the Borrower to
be in violation of Section 8.12 or 8.16, (viii) Liens in favor of the Borrower
or any Subsidiary Guarantor, provided that the Indebtedness secured by any such
Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interests of
lessees and lessors under leases of real or personal property made in the
ordinary course of business which could not reasonably be expected (individually
or in the aggregate) to have a Material Adverse Effect and (x) Liens not
otherwise permitted by clauses (i) through (ix) of this Section which do not in
the aggregate exceed $5,000,000.
8.2. Merger, Consolidation and Certain Dispositions of Property.
(a) Consolidate with, be acquired by, or merge into or with any
Person, or sell, lease or otherwise dispose of all or substantially all of its
Property (in one
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transaction or a series of transactions), or permit any Subsidiary Guarantor of
the Borrower so to do, or liquidate or dissolve, except (i) the merger or
consolidation of any Subsidiary Guarantor of the Borrower into or with the
Borrower, (ii) the merger or consolidation of any two or more Subsidiary
Guarantors, or (iii) the merger or consolidation of the Borrower or Subsidiary
Guarantor with any other Person, provided that (A) the Borrower or such
Subsidiary Guarantor is the surviving entity in such merger or consolidation,
(B) the total book value of the assets of the entity which is merged into or
consolidated with the Borrower or such Subsidiary Guarantor is less than 20% of
the total book value of the assets of the Borrower immediately following such
merger or consolidation, (C) immediately prior to such merger or consolidation
the Borrower shall have provided to the Administrative Agent and each of the
Lenders a Compliance Certificate prepared on a pro-forma basis (and adjusted in
the best good faith estimate of the Borrower, based on the advice of the
Accountants, to give effect to such merger or consolidation) demonstrating that
after giving effect to such merger or consolidation, no Default shall exist with
respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15,
8.16 and 8.17 and (D) after giving effect to such merger or consolidation, no
Event of Default shall exist.
(b) Sell, transfer, contribute, master lease or dispose of any of its
Property, either directly or indirectly, except that if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred, (i) any
Subsidiary of the Borrower may sell, transfer, contribute, master lease or
otherwise dispose of its assets to the Borrower or to any other Subsidiary, (ii)
the Borrower may sell, transfer, contribute, master lease or otherwise dispose
of its assets to any Subsidiary Guarantor, (iii) the Borrower may sell,
transfer, contribute, master lease or otherwise dispose of assets to an Other
Guarantor if such sale, transfer, contribution master lease or other disposition
is for the purpose of ultimately disposing of such assets through the sale,
transfer, contribution, master lease or other disposition of the ownership
interests of Borrower in such Subsidiary to a third party in a transaction
permitted by clause (v) below, (iv) in connection with any transaction pursuant
to which a Real Property asset of Borrower is or will be encumbered with a
mortgage (as permitted under Section 8.1(vii)), the Borrower may transfer such
asset to any Subsidiary, and (v) the Borrower or any Subsidiary of the Borrower
may sell, transfer, contribute, master lease or otherwise dispose of Property in
an arm's length transaction (or, if the transaction involves an Affiliate of the
Borrower or a Subsidiary of the Borrower, if the transaction complies with
Section 8.8), including, without limitation, a disposition of Property pursuant
to a merger or consolidation involving a Subsidiary (so long as such merger or
consolidation is not prohibited by Section 8.2(a)), for the fair market value
thereof, as reasonably determined by the Borrower, provided that such
transaction could not reasonably be expected to have a Material Adverse Effect
and provided further that for any fiscal year of the Borrower, any sale,
transfer, master lease, contribution or other disposition of Property in
reliance on this clause (v) which when combined with all other sales, transfers,
master leases, contributions or dispositions of Property in reliance on this
clause (v) made in such fiscal
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year shall not exceed 25% of the total book value of all Property of the
Borrower and its Subsidiaries determined as of the first day of such fiscal
year.
8.3. Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in the
Stock of, or any other interest in, any Person, or make any loan or advance to,
or enter into any arrangement for the purpose of providing funds or credit to,
or make any other investment, whether by way of capital contribution, time
deposit or otherwise, in or with any Person, or permit any Subsidiary of the
Borrower so to do, (all of which are sometimes referred to herein as
"Investments") except the following (to the extent that maintaining any thereof
would not at any time violate the requirements of Section 856(c) of the Code):
(a) demand deposits, certificates of deposit, bankers acceptances
and domestic and eurodollar time deposits with any Lender, or any other
commercial bank, trust company or national banking association incorporated
under the laws of the United States or any State thereof and having undivided
capital, surplus and undivided profits exceeding $500,000,000 and a long term
debt rating of A or A2, as determined, respectively, by S&P and Xxxxx'x;
(b) short-term direct obligations of the United States of America
or agencies thereof whose obligations are guaranteed by the United States of
America;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States or any
State thereof which at the time of purchase are rated by S&P or Xxxxx'x at not
less than "A1" or "P1," respectively;
(d) mortgage-backed securities guaranteed by the Governmental
National Mortgage Association, the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation and other mortgage-backed bonds which at
the time of purchase are rated by S&P or Xxxxx'x at not less than "Aa" or "AA,"
respectively;
(e) repurchase agreements having a term not greater than 90 days
and fully secured by securities described in the foregoing paragraph (b) or (d)
with banks described in the foregoing paragraph (a) or with financial
institutions or other corporations having total assets in excess of $50,000,000;
(f) shares of "money market funds" registered with the SEC under
the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in the investments described in one or more of the foregoing
paragraphs (a) through (e) and have total assets of in excess of $50,000,000;
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(g) Real Property and loans secured by mortgages on Real Property;
(h) equity investments in any Person (other than Subsidiaries) and
notes receivable investments in any Person (other than Subsidiaries), the
aggregate principal amount of which (combined with any other equity investments
and notes receivable investments in any Person permitted pursuant to this
paragraph (h)) do not exceed 25% of the Total Capital of the Borrower;
(i) Investments (debt or equity) in Subsidiaries of the Borrower;
(j) investments in respect of (1) equipment, inventory and other
tangible personal property acquired in the ordinary course of business, (2)
current trade and customer accounts receivable for services rendered in the
ordinary course of business, (3) advances to employees for travel expenses other
company-related expenses, and (4) prepaid expenses made in the ordinary course
of business;
(k) Hedging Agreements made in connection with any Indebtedness;
(l) repurchases of any common or preferred stock or other equity
interests (or securities convertible into such interests) in the Borrower that
have been previously issued by the Borrower which do not exceed, in any calendar
year, (1) 10% of the aggregate outstanding shares of common and preferred stock
and other equity interests in Borrower as of the date hereof, in any
combination, plus (2) 10% of the aggregate of any additional shares of common
and preferred stock and other equity interests in Borrower issued after the date
hereof, in any combination;
(m) redemptions of preferred stock of the Borrower in accordance
with the terms thereof;
(n) redemptions for cash or common Stock of the Borrower of units
of limited partner interests or limited liability company interests in a
DownREIT Partnership;
(o) loans to employees of the Borrower, provided that all such
loans in the aggregate do not at any time exceed $15,000,000 in the aggregate;
and
(p) any other Investments not included in paragraphs (a) through
(o) deemed appropriate by the Borrower, provided that in no event shall
Investments made in reliance upon the exception set forth in this paragraph (p)
exceed $50,000,000 at any one time;
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8.4. Business Changes.
Change in any material respect the nature of the business of the
Borrower or its Subsidiaries as conducted on the Effective Date.
8.5. Amendments to Organizational Documents.
Amend or otherwise modify its corporate charter or by-laws in any
way (other than in connection with the issuance or classification of preferred
stock of the Borrower) which would adversely affect the interests of the
Administrative Agent and the Lenders under any of the Loan Documents, or permit
any Subsidiary of the Borrower to amend its organizational documents in a manner
which could have the same result.
8.6. Bankruptcy Proceedings.
Institute against the Administrative Agent, the Co-Documentation
Agents, the Managing Agent or any Lender, or join any other Person in
instituting against the Administrative Agent, the Co-Documentation Agents, the
Managing Agent or any Lender, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the payment or
prepayment in full of the Indebtedness due hereunder.
8.7. Sale and Leaseback.
Enter into any arrangement with any Person providing for the leasing
by it of Property which has been or is to be sold or transferred by it to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such Property or its rental obligations, or
permit any Subsidiary of the Borrower so to do, except for sale and leasing
transactions described herein for which the combined selling price of all
Property subject to all such transactions does not exceed $50,000,000 in the
aggregate.
8.8. Transactions with Affiliates.
Become a party to any transaction in an amount that exceeds $60,000
with an Affiliate unless the terms and conditions relating thereto (i) have been
approved by a majority of the disinterested directors of the Borrower, (ii) have
been approved by a majority of votes cast by the stockholders of the Borrower,
or (iii) are fair and reasonable to the Borrower, or permit any Subsidiary of
the Borrower so to do.
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8.9. Issuance of Additional Capital Stock by Subsidiary Guarantors.
Permit any Subsidiary Guarantor or Other Guarantor to issue any
additional Stock or other equity interest of such Subsidiary Guarantor or Other
Guarantor, as the case may be, other than the issuance of partnership or limited
liability company units in a DownREIT Partnership which is a Subsidiary
Guarantor or Other Guarantor, provided that such units are issued in
consideration of the contribution to the DownREIT Partnership of assets
qualifying as "real estate assets" under Section 856(c) of the Code.
8.10. Hedging Agreements
Enter into, or permit any of its Subsidiaries so to do, any Hedging
Agreement, other than Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate interest rate risks to which the Borrower or any
Subsidiary of the Borrower is exposed in the conduct of its business or the
management of its liabilities.
8.11. Restricted Payments.
(a) Permit the Borrower to make Restricted Payments, except that:
(i) except as set forth in clause (ii) below, the Borrower
may declare and pay dividends payable with respect to its equity
securities in any fiscal quarter of the Borrower if after giving effect to
such dividend, such dividend, when added to the amount of all other such
dividends paid in the same fiscal quarter and the preceding three (3)
fiscal quarters, would not exceed the greater of (A) ninety-five percent
(95%) of its Funds from Operations for the four fiscal quarters ending
prior to the quarter in which such dividend is paid or (B) the minimum
amount of such dividends required under the Code to enable the Borrower to
continue to maintain its status under the Code as a REIT, as evidenced (in
the case of clause (B)) by a certification of Chief Financial Officer
containing calculations in reasonable detail satisfactory in form and
substance to Administrative Agent;
(ii) if an Event of Default under Section 9.1(a) or (b) has
occurred and is continuing, the Borrower may declare and pay dividends
with respect to its equity securities which shall not exceed the minimum
such dividends required under the Code to enable the Borrower to continue
to maintain its status under the Code as a REIT, as evidenced by a
certification of Chief Financial Officer containing calculations in
reasonable detail satisfactory in form and substance to Administrative
Agent;
(iii) the Borrower may effect Stock repurchases to the extent
permitted by Section 8.3(l);
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(iv) the Borrower may effect "cashless exercises" of options
granted under the Borrower's stock option plans;
(v) the Borrower may distribute rights or equity securities
under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends (or effect
Stock splits or reverse Stock splits) with respect to its equity
securities payable solely in additional shares of its equity securities.
8.12. Unencumbered Assets Coverage Ratio.
Permit the Unencumbered Assets Coverage Ratio to be less than
2.0:1.0 at any time.
8.13. Fixed Charge Coverage Ratio.
Permit the Fixed Charge Coverage Ratio to be less than 1.75:1.0 at
any time.
8.14. Minimum Tangible Net Worth.
Permit the Tangible Net Worth of the Borrower and its Subsidiaries
on a Consolidated basis at any time to be less than the sum of (i)
$1,200,000,000, plus (ii) 80% of the aggregate net proceeds received by the
Borrower from and after November 17, 1999 in connection with the issuance of any
capital stock of the Borrower.
8.15. Maximum Total Indebtedness.
(a) Permit at any time Consolidated Total Indebtedness to be
more than 55% of Total Capital at such time, provided that for any fiscal
quarter in which Restricted Payments made during such quarter and
permitted by Section 8.11(a)(i), when added to the amount of Restricted
Payments made during the preceding three fiscal quarters, exceed 90% of
Funds from Operations for the four consecutive fiscal quarters ending
prior to the quarter in which such Restricted Payment is made, the
Borrower shall not permit Consolidated Total Indebtedness to be more than
52.5% of Total Capital at any time from and after the time such Restricted
Payment is made; or
(b) Permit at any time the Consolidated Total Indebtedness
secured by mortgages on Real Property owned by the Borrower and its
Subsidiaries at such time to exceed 40% of Total Capital at such time.
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8.16. Liabilities to Assets Ratio.
Permit, at any time, the portion of the Consolidated Total
Indebtedness consisting of Consolidated unsecured Indebtedness of the Borrower
and its Subsidiaries at such time to be more than 50% of Unencumbered Asset
Value at such time.
8.17. Maximum Book Value of Ancillary Assets.
Permit the book value of the Ancillary Assets at any time to be more
than 20% of the book value of all assets of the Borrower and its Subsidiaries on
a Consolidated basis at such time. For purposes of this Section 8.17 the book
value of any Ancillary Asset not owned 100%, directly or indirectly, by the
Borrower or any of its Subsidiaries shall be adjusted by multiplying the same by
the Borrower's Interest in such Ancillary Asset during the fiscal quarter of the
Borrower ending as of any date of determination of such book value.
9. DEFAULT
9.1. Events of Default.
The following shall each constitute an "Event of Default" hereunder:
(a) The failure of the Borrower to pay any installment of
principal on any Note on the date when due and payable; or
(b) The failure of the Borrower to pay any installment of interest
or any other fees, expenses or other charges payable under any Loan Document
within five Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner inconsistent
with or in violation of Section 2.15; or
(d) The failure of the Borrower to observe or perform any covenant
or agreement contained in Section 7.3, 7.12(a), 7.12(b), or 8 (other than
Section 8.1, as to which the provisions of paragraph (e) below shall apply); or
(e) The failure to observe or perform any other term, covenant, or
agreement contained in any Loan Document and such failure shall have continued
unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the Borrower; or
(f) Any representation or warranty of the Borrower (or of any
officer of the Borrower on its behalf) made in any Loan Document to which it is
a party or in any certificate, report, opinion (other than an opinion of
counsel) or other document delivered
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or to be delivered pursuant thereto, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any material respect
when made; or
(g) Any obligation of the Borrower (other than its obligations
under the Notes) or any Subsidiary of the Borrower, whether as principal,
guarantor, surety or other obligor, for the payment of any Indebtedness shall
(i) become or shall be declared to be due and payable prior to the expressed
maturity thereof, or (ii) shall not be paid when due or within any grace period
for the payment thereof, or (iii) shall be subject, by the holder of the
obligation evidencing such Indebtedness, to acceleration (after the expiration
of any applicable notice and cure periods) prior to the expressed maturity
thereof, and the sum of all such Indebtedness which is the subject of paragraphs
(i) - (iii) inclusive exceeds (A) at any time, in the case of Indebtedness other
than Non-Recourse Indebtedness, $7,500,000, and (B) in any calendar year, in the
case of Non-Recourse Indebtedness, $50,000,000 in the aggregate during such
year; or
(h) The Borrower or any Subsidiary Guarantor or Other Guarantor
shall (i) suspend or discontinue its business, (ii) make an assignment for the
benefit of creditors, (iii) generally not be paying its debts as such debts
become due, (iv) admit in writing its inability to pay its debts as they become
due, (v) file a voluntary petition in bankruptcy, (vi) become insolvent (however
such insolvency shall be evidenced), (vii) file any petition or answer seeking
for itself any reorganization, arrangement, composition, readjustment of debt,
liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, (viii) petition or apply to any
tribunal for any receiver, custodian or any trustee for any substantial part of
its Property, (ix) be the subject of any such proceeding filed against it which
remains undismissed for a period of 60 days, (x) file any answer admitting or
not contesting the material allegations of any such petition filed against it or
any order, judgment or decree approving such petition in any such proceeding,
(xi) seek, approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, custodian, liquidator, or fiscal agent for
it, or any substantial part of its Property, or an order is entered appointing
any such trustee, receiver, custodian, liquidator or fiscal agent and such order
remains in effect for 60 days, or (xii) take any formal action for the purpose
of effecting any of the foregoing; or
(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower, any Subsidiary Guarantor or Other
Guarantor bankrupt or insolvent, (ii) approving as properly filed a petition
seeking reorganization, liquidation, arrangement, adjustment or composition of
or in respect of the Borrower, any Subsidiary Guarantor or Other Guarantor under
the United States bankruptcy laws or any other applicable Federal or state law,
(iii) appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Borrower, any Subsidiary
Guarantor or Other Guarantor or of any substantial part of the Property thereof,
or (iv) ordering the winding
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up or liquidation of the affairs of the Borrower, any Subsidiary Guarantor or
Other Guarantor, and any such decree or order continues unstayed and in effect
for a period of 60 days; or
(j) Judgments or decrees against the Borrower or any Subsidiary of
the Borrower aggregating in excess of $5,000,000 shall not be paid, stayed on
appeal, discharged, bonded or dismissed for a period of 45 days; or
(k) Any Loan Document shall cease, for any reason, to be in full
force and effect, or the Borrower shall so assert in writing or shall disavow
any of its obligations thereunder; or
(l) An event or condition specified in Section 7.2(d) shall occur
or exist with respect to any Plan or Multiemployer Plan and, as a result of such
event or condition, together with all other such events or conditions, the
Borrower shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan, the PBGC, or any combination thereof which would constitute,
in the reasonable opinion of the Required Lenders, a Material Adverse Effect; or
(m) There shall occur a Change of Control; or
(n) If any Loan Document (i) is determined by any court or
Governmental Authority to be illegal, invalid or unenforceable in accordance
with its terms, or (ii) shall be canceled, terminated, revoked or rescinded
other than in accordance with its terms or with the written consent or approval
of the Lenders; or
(o) (i) Any Subsidiary Guarantor or Other Guarantor shall fail to
comply in any material respect with any covenant made by it in any Guaranty or
if at any time any representation or warranty made by any Subsidiary Guarantor
or Other Guarantor in any Guaranty or in any other document, statement or
writing made to the Administrative Agent, the Co-Documentation Agents, the
Managing Agent, the Lead Arranger or the Lenders shall prove to have been
incorrect or misleading in any material respect when made, or (ii) if a default
by any Subsidiary Guarantor or Other Guarantor shall occur under any Guaranty
after the expiration of any applicable notice and grace period; or (iii) if any
Subsidiary Guarantor or Other Guarantor shall revoke or attempt to revoke,
contest, commence any action or raise any defense (other than the defense of
payment) against its obligations under any Guaranty; or
(p) There shall occur an Event of Default under and as defined in
the Other Credit Agreement.
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clause (h) or (i) above, the Commitments shall immediately and
automatically terminate and the
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Loans, all accrued and unpaid interest thereon, and all other amounts owing
under the Loan Documents shall immediately become due and payable, and the
Administrative Agent may, and upon the direction of the Required Lenders shall,
exercise any and all remedies and other rights provided in the Loan Documents,
and (b) if such event is any other Event of Default, any or all of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, and upon the direction of the Required Lenders shall,
by notice to the Borrower, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the consent
of the Required Lenders, the Administrative Agent may, and upon the direction of
the Required Lenders shall, by notice of default to the Borrower, declare the
Loans, all accrued and unpaid interest thereon and all other amounts owing under
the Loan Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable, and the Administrative Agent may, and upon
the direction of the Required Lenders shall, exercise any and all remedies and
other rights provided pursuant to the Loan Documents. Except as otherwise
provided in this Section, presentment, demand, protest and all other notices of
any kind are hereby expressly waived. The Borrower hereby further expressly
waives and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force which might
delay, prevent or otherwise impede the performance or enforcement of any Loan
Document.
In the event that the Commitments shall have been terminated or the
Notes shall have been declared due and payable pursuant to the provisions of
this Section, any funds received by the Administrative Agent and the Lenders
from or on behalf of the Borrower shall be applied by the Administrative Agent
and the Lenders in liquidation of the Loans and the obligations of the Borrower
under the Loan Documents in the following manner and order: (i) first, to the
payment of interest on and then the principal portion of any Loans which the
Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower; (ii) second, to the payment of any fees or expenses due the
Administrative Agent from the Borrower; (iii) third, to reimburse the
Administrative Agent and the Lenders for any expenses (to the extent not paid
pursuant to clause (ii)) due from the Borrower pursuant to the provisions of
Section 11.5; (iv) fourth, to the payment of accrued Facility Fees, and all
other fees, expenses and amounts due under the Loan Documents (other than
principal and interest on the Notes); (v) fifth, to the payment of interest due
on the Notes; (vi) sixth, to the payment of principal outstanding on the Notes;
and (vii) seventh, to the payment of any other amounts owing to the
Administrative Agent, the Co-Documentation Agents, the Managing Agent, the Lead
Arranger and the Lenders under any Loan Document or other document or agreement
entered into in connection with the transactions contemplated thereby.
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10. THE AGENT
10.1. Appointment.
Each Lender hereby irrevocably designates and appoints BNY as the
Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in any Loan Document,
the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents or otherwise
exist against the Administrative Agent.
10.2. Delegation of Duties.
The Administrative Agent may execute any of its duties under the
Loan Documents by or through agents or attorneys-in-fact and shall be entitled
to rely upon the advice of counsel concerning all matters pertaining to such
duties.
10.3. Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except for its own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in the Loan Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, the Loan Documents or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any of the Loan Documents or for any failure of the Borrower or
any other Person to perform its obligations thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, the Loan Documents, or to inspect the properties, books or
records of the Borrower. The Administrative Agent shall not be under any
liability or responsibility whatsoever, as Administrative Agent, to the Borrower
or any other Person as a consequence of any failure or delay in performance, or
any breach, by any Lender of any of its obligations under any of the Loan
Documents.
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10.4. Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation reasonably
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may treat each Lender, or the Person designated in the last
notice filed with it under this Section, as the holder of all of the interests
of such Lender in its Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent. The Administrative Agent shall
not be under any duty to examine or pass upon the validity, effectiveness or
genuineness of the Loan Documents or any instrument, document or communication
furnished pursuant thereto or in connection therewith, and the Administrative
Agent shall be entitled to assume that the same are valid, effective and
genuine, have been signed or sent by the proper parties and are what they
purport to be. The Administrative Agent shall be fully justified in failing or
refusing to take any action under the Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
10.5. Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders.
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10.6. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and made its own decision to
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, evaluations and decisions
in taking or not taking action under any Loan Document, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, Property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
Property, financial and other condition or creditworthiness of the Borrower
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates.
10.7. Indemnification.
Each Lender agrees to indemnify and reimburse the Administrative
Agent in its capacity as such (to the extent not promptly reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), pro rata
according to its Commitment, from and against any and all liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever including, without
limitation, any amounts paid to the Lenders (through the Administrative Agent)
by the Borrower pursuant to the terms of the Loan Documents, that are
subsequently rescinded or avoided, or must otherwise be restored or returned)
which may at any time (including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan Documents
or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
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judgments, suits, costs, expenses or disbursements to the extent resulting
solely from the gross negligence or willful misconduct of the Administrative
Agent. The agreements in this Section shall survive the payment of all amounts
payable under the Loan Documents.
10.8. Administrative Agent in Its Individual Capacity.
BNY and its affiliates may make loans to, accept deposits from,
issue letters of credit for the account of, and generally engage in any kind of
business with, the Borrower as though BNY was not Administrative Agent
hereunder. With respect to the Commitment made or renewed by BNY and the Note
issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it was not the
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include BNY.
10.9. Successor Administrative Agent.
If at any time the Administrative Agent deems it advisable, in its
sole discretion, it may submit to each of the Lenders a written notice of its
resignation as Administrative Agent under this Agreement, such resignation to be
effective upon the earlier of (i) the written acceptance of the duties of the
Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 60th day after the date of such notice. Upon any such
notice of resignation, the Required Lenders shall have the right to appoint from
among the Lenders a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 45 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent shall, in consultation with the Borrower, appoint a
successor Administrative Agent on behalf of the Lenders prior to the end of the
60th day from such notice from among any of the Lenders who shall have at such
time a Commitment of at least $15,000,000 (an "Approved Successor"). If no
Lender has a Commitment of at least $15,000,000 (or no Lender whose Commitment
is at least $15,000,000 shall agree to accept such appointment), then the
retiring Administrative Agent shall, in consultation with the Borrower, appoint
any other Lender or any other commercial bank organized under the laws of the
United States of America or any State thereof and having a combined capital and
surplus of at least $100,000,000 as a successor Administrative Agent. Any
appointment of a successor Administrative Agent shall be subject to the approval
of the Borrower, which approval shall not be unreasonably withheld or delayed,
and shall be given in any event prior to the end of the 60th day from the date
of the retiring Administrative Agent's notice of resignation, provided that
during any period in which either (i) a Competitive Bid Advance is outstanding,
or (ii) there exists and is continuing an Event of Default, no approval from the
Borrower to the appointment of an Approved Successor shall be required. Upon the
acceptance of an appointment as Administrative Agent hereunder by a successor
Administrative Agent and any required approval of such
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successor Administrative Agent by the Borrower in accordance with the terms of
this Section, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of the
Loan Documents shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under the Loan Documents.
10.10. Exculpation of Co-Documentation Agents and Managing Agent.
Neither of the Co-Documentation Agents nor the Managing Agent has
any rights, obligations, liabilities, responsibilities or duties under this
Agreement or any other Loan Documents other than those applicable to all Lenders
as such.
11. OTHER PROVISIONS.
11.1. Amendments and Waivers.
With the written consent of the Required Lenders, the Administrative
Agent and the Borrower may, from time to time, enter into written amendments,
supplements or modifications of the Loan Documents and, with the consent of the
Required Lenders, the Administrative Agent on behalf of the Lenders may execute
and deliver to any such parties a written instrument waiving or a consent to a
departure from, on such terms and conditions as the Administrative Agent may
specify in such instrument, any of the requirements of the Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no
such amendment, supplement, modification, waiver or consent shall, without the
consent of all of the Lenders: (i) change the Commitments of any Lender or the
Total Commitment Amount; (ii) extend the Revolving Credit Termination Date;
(iii) decrease the rate, or extend the time of payment, of interest of, or
change or forgive the principal amount of, or change the requirement that
payments and prepayments of principal of, and payments of interest on, the Notes
be made pro rata to the Lenders on the basis of the outstanding principal amount
of the Loans, (iv) amend the definition of "Required Lender", (v) amend the
definitions of "Applicable Facility Fee Percentage" or "Applicable Margin", (vi)
release any Subsidiary Guarantor from its obligations under a Guaranty, or (vii)
change the provisions of Section 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16,
3.1 or 11.1; and provided further that no such amendment, supplement,
modification, waiver or consent shall amend, modify, waive or consent to a
departure from any provision of Section 10 or otherwise change any of the rights
or obligations of the Administrative Agent under the Loan Documents without the
written consent of the Administrative Agent; and provided
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further that no such amendment, supplement, modification, waiver or consent
shall, unless in writing and signed by the Designating Lender on behalf of each
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 Competitive Bid Borrowings made payable to such
Designated Lender, (c) postpone any date fixed for any payment of principal of,
or interest on, or other amounts due with respect to, Competitive Bid Borrowings
made payable to such Designated Lender, or (d) amend the definition of Required
Lenders hereunder in a manner which adversely affects the rights of such
Designated Lender. The Administrative Agent shall cause a copy of each written
request for such an amendment, supplement or modification delivered by the
Borrower to it to be delivered to each Lender. Any such amendment, supplement,
modification, waiver or consent shall apply equally to each of the Lenders and
shall be binding upon the parties to the applicable agreement, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the parties to the applicable agreement, the Lenders and the
Administrative Agent shall be restored to their former position and rights under
the Loan Documents, and any Default or Event of Default waived shall not extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
11.2. Notices.
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or if sent by certified mail (return receipt requested), when the
return receipt is signed on behalf of the party to whom such notice is given, or
in the case of telecopier notice, when sent, or if sent by overnight nationwide
commercial courier, the Business Day following the date such notice is deposited
with said courier, and in any case addressed as follows in the case of the
Borrower or the Administrative Agent, and at the Domestic Lending Office in the
case of each Lender, or to such other addresses as to which the Administrative
Agent may be hereafter notified by the respective parties hereto or any future
holders of the Notes:
The Borrower:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx,
Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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with a copy to:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.,
General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Administrative Agent:
The Bank of Xxx Xxxx
Xxx Xxxx Xxxxxx
Agency Function Administration
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Agency Function Administrator
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or 6366 or 6367
with a copy to:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000,
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Section 2.3, 2.4 or 2.8 shall
not be effective until received. Any party to a Loan Document may rely on
signatures of the parties thereto which are transmitted by telecopier or other
electronic means as fully as if originally signed.
11.3. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising any right, remedy,
power or privilege under any Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right,
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remedy, power or privilege. The rights, remedies, powers and privileges under
the Loan Documents are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
11.4. Survival of Representations and Warranties.
All representations and warranties made under the Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents. After the termination of this Agreement in accordance with its terms,
without any extension thereof, the payment in full of all obligations of the
Borrower under the Loan Documents and the expiration of any obligations of the
Borrower hereunder which survive the termination of this Agreement, the Borrower
shall have no liability to the Lenders under such representations and
warranties, except that the foregoing shall not apply with respect to any claim,
action or proceeding made or brought under any such representations or
warranties prior to such termination or payment.
11.5. Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement or
invoice therefor, and whether any Loan is made (i) to pay or reimburse each
Credit Party for all of its out-of-pocket costs and expenses reasonably incurred
in connection with the development, preparation, negotiation and execution of,
the Loan Documents, the syndication of the loan transaction evidenced by this
Agreement (whether or not such syndication is completed) and any amendment,
supplement or modification hereto (whether or not executed), any documents
prepared in connection therewith and the consummation of the transactions
contemplated thereby, including, without limitation, the reasonable fees and
disbursements of Special Counsel, (ii) to pay or reimburse each Credit Party for
all of its respective costs and expenses, including, without limitation,
reasonable fees and disbursements of counsel, incurred in connection with (x)
any Default or Event of Default and any enforcement or collection proceedings
resulting therefrom (including, without limitation, any costs incurred after the
entry of judgment in an attempt to collect money due in the judgment) or in
connection with the negotiation of any restructuring or "work-out" (whether
consummated or not) of the obligations of the Borrower under any of the Loan
Documents and (y) the enforcement of this Section, (iii) to pay, indemnify, and
hold each Credit Party harmless from and against, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, the Loan Documents and any such other documents, and (iv) to pay,
indemnify and hold each Credit Party and each of their respective officers,
directors, employees, affiliates, agents,
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controlling persons and attorneys (as used in this Section, each an "indemnified
person") harmless from and against any and all other liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever (including, without
limitation, reasonable counsel fees and disbursements) with respect to any
claim, investigation or proceeding from any third party relating to this
Agreement or the Loan Documents, including the enforcement and performance of
the Loan Documents and the use of the proceeds of the Loans (all the foregoing,
collectively, the "indemnified liabilities"), whether or not any such
indemnified person is a party to this Agreement or the Loan Documents, and to
reimburse each indemnified person for all legal and other expenses incurred in
connection with investigating or defending any indemnified liabilities, and, if
and to the extent that the foregoing indemnity may be unenforceable for any
reason, the Borrower agrees to make the maximum payment permitted or not
prohibited under applicable law; provided, however, that the Borrower shall have
no obligation hereunder to pay indemnified liabilities to any Credit Party
arising from (A) the gross negligence or willful misconduct of such Credit Party
or (B) disputes solely between the Credit Parties and which are not related to
any act or failure to act on the part of the Borrower or the failure of the
Borrower to perform any of its obligations under this Agreement or the Loan
Documents.
Notwithstanding the foregoing, the fees and expenses referred to in
clause (iv) of the preceding paragraph shall not be payable by the Borrower if
(x) any such enforcement action brought by such Credit Party is dismissed, with
prejudice, on the pleadings or pursuant to a motion made by the Borrower for
summary judgment, and (y) if such Credit Party appeals such dismissal, such
dismissal is affirmed and the time for any further appeals has expired. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.
11.6. Lending Offices.
Each Lender shall have the right at any time and from time to time
to transfer its Loans to a different office, provided that such Lender shall
promptly notify the Administrative Agent and the Borrower of any such change of
office. Such office shall thereupon become such Lender's Domestic Lending Office
or Eurodollar Lending Office, as the case may be; provided, however, that no
such Lender shall be entitled to receive any greater amount under Section 2.13,
2.14 or 2.16 as a result of a transfer of any such Loans to a different office
of such Lender than it would be entitled to immediately prior thereto unless
such claim would have arisen even if such transfer had not occurred.
11.7. Successors and Assigns.
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all future
holders of the
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Notes and their respective successors and assigns, except that the Borrower may
not assign, delegate or transfer any of its rights or obligations under the Loan
Documents without the prior written consent of the Administrative Agent and all
of the Lenders.
(b) Each Lender (other than a Designated Lender) shall have the
right at any time, upon written notice to the Administrative Agent of its intent
to do so, to sell, assign, transfer or negotiate all or any part of such
Lender's rights and/or obligations under the Loan Documents (subject to
paragraph (c) below) to one or more of its Affiliates, to one or more of the
other Lenders (or to Affiliates of such other Lenders) or, with the prior
written consent of the Borrower, and the Administrative Agent (which consent,
from each of them, shall not be unreasonably withheld or delayed and shall not
be required from the Borrower upon the occurrence and during the continuance of
an Event of Default), to sell, assign, transfer or negotiate all or any part of
such Lender's rights and obligations under the Loan Documents to any other bank,
insurance company, pension fund, mutual fund or other financial institution,
provided that there shall be paid to the Administrative Agent by the assigning
Lender a fee (the "Assignment Fee") of $3,500. A Designated Lender shall not
assign any of its Loans to any Person at any time, other than an assignment of
all or part of such Loans to its Designating Lender. For each assignment, the
parties to such assignment shall execute and deliver to the Administrative Agent
for its acceptance and recording an Assignment and Assumption Agreement. Upon
such execution, delivery, acceptance and recording by the Administrative Agent,
from and after the effective date specified in such Assignment and Assumption
Agreement, the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Assumption Agreement, the assignor Lender
thereunder shall be released from its obligations under the Loan Documents. The
Borrower agrees upon written request of the Administrative Agent and at the
Borrower's expense to execute and deliver (1) to such assignee, a Note, dated
the effective date of such Assignment and Assumption Agreement, in an aggregate
principal amount equal to the Loans assigned to, and Commitments assumed by,
such assignee and (2) to such assignor Lender, a Note, dated the effective date
of such Assignment and Assumption Agreement, in an aggregate principal amount
equal to the balance of such assignor Lender's Loans and Commitment, if any, and
each assignor Lender shall cancel and return to the Borrower its existing Note.
Upon any such sale, assignment or other transfer, the Commitment Amounts set
forth in Exhibit B shall be adjusted accordingly by the Administrative Agent and
a new Exhibit B shall be distributed by the Administrative Agent to the Borrower
and each Lender.
(c) Each Lender may grant participations in all or any part of its
Loans, its Note and its Commitment to one or more banks, insurance companies,
financial institutions, pension funds or mutual funds, provided that (i) such
Lender's obligations under the Loan Documents shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties to the Loan
Documents for the performance of such obligations, (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's
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rights and obligations under the Loan Documents, (iv) no sub-participations
shall be permitted and (v) the voting rights of any holder of any participation
shall be limited to decisions that only do any of the following: (A) subject the
participant to any additional obligation, (B) reduce the principal of, or
interest on the Notes or any fees or other amounts payable hereunder, and (C)
postpone any date fixed for the payment of principal of, or interest on the
Notes or any fees or other amounts payable hereunder. The Borrower acknowledges
and agrees that any such participant shall for purposes of Sections 2.10, 2.11,
2.12, 2.13, 2.14, 2.15 and 2.16 be deemed to be a "Lender"; provided, however,
the Borrower shall not, at any time, be obligated to pay any participant in any
interest of any Lender hereunder any sum in excess of the sum which the Borrower
would have been obligated to pay to such Lender in respect of such interest had
such Lender not sold such participation.
(d) If any (i) assignment made pursuant to paragraph (b) above or
(ii) any participation granted pursuant to paragraph (d) above shall be made to
any Person that is organized under the laws of any jurisdiction other than the
United States of America or any State thereof, such Person shall furnish such
certificates, documents or other evidence to the Borrower and the Administrative
Agent, in the case of clause (i) and to the Borrower and the Lender which sold
such participation in the case of clause (ii), as shall be required by Section
2.11(b) to evidence such Person's exemption from U.S. withholding taxes with
respect to any payments under or pursuant to the Loan Documents because such
Person is eligible for the benefits of a tax treaty which provides for a zero %
rate of tax on any payments under the Loan Documents or because any such
payments to such Person are effectively connected with the conduct by such
Person of a trade or business in the United States.
(e) No Lender shall, as between and among the Borrower, the
Administrative Agent and such Lender, be relieved of any of its obligations
under the Loan Documents as a result of any sale, assignment, transfer or
negotiation of, or granting of participations in, all or any part of its Loans,
its Commitment or its Note, except that a Lender shall be relieved of its
obligations to the extent of any such sale, assignment, transfer, or negotiation
of all or any part of its Loans, its Commitment or its Note pursuant to
paragraph (b) above.
(f) Notwithstanding anything to the contrary contained in this
Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
11.8. Designated Lender.
(a) Each Lender (each a "Designating Lender") may at any time
designate one or more Designated Lenders to fund Competitive Bid Advances which
the
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Designating Lender is required to fund subject to the terms of Section 2.4. No
Lender shall be entitled to make more than one such designation. The parties to
each such designation shall execute and deliver to the Administrative Agent, for
its acceptance, a Designation Agreement. Upon its receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Lender, the Administrative Agent will
accept such Designation Agreement and give prompt notice thereof to the
Borrower, whereupon, from and after the effective date specified in the
Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Competitive Bid Advances on behalf of its
Designating Lender pursuant to Section 2.4 after the Borrower has accepted an
offer to make the Competitive Bid Advance (or a portion thereof) from the
Designating Lender. Each Designating Lender shall serve as the agent of the
Designated Lender and shall on behalf of the Designated Lender 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 or the other Loan Documents. Any such notice, communication,
vote approval, waiver, consent or amendment shall be signed by the Designating
Lender as agent for its Designated Lender. The Borrower, the Administrative
Agent and the Lenders may rely thereon without any requirement that the
Designated Lender sign or acknowledge the same.
(b) A Designated Lender shall not make or participate in Revolving
Credit Loans made as Conventional Advances of any Designating Lender, nor shall
any Designated Lender have a Commitment or share in or be obligated under the
Commitment of any Lender, it being understood that each Designated Lender shall
be entitled to make only Competitive Bid Advances offered by the Designating
Lender of such Designated Lender pursuant to Section 2.4(c), to the extent the
offer of such Competitive Bid Advances has been accepted by the Borrower
pursuant to Section 2.4(d).
11.9. Counterparts.
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. A telecopied counterpart of any Loan Document or to any document
evidencing, and of any an amendment, modification, consent or waiver to or of
any Loan Document shall be deemed to be an originally executed counterpart. A
set of the copies of the Loan Documents signed by all the parties thereto shall
be deposited with each of the Borrower and the Administrative Agent. Any party
to a Loan Document may rely upon the signatures of any other party thereto which
are transmitted by telecopier or other electronic means to the same extent as if
originally signed.
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11.10. Adjustments; Set-off.
(a) If any Lender (a "Benefited Lender") shall at any time receive
any payment of all or any part of its Loans or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9.1(h) or
(i), or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender in respect of such other Lender's Loans
or interest thereon, such Benefited Lender shall purchase for cash from each of
the other Lenders such portion of each such other Lender's Loans and shall
provide each of such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders, provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest. The Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans may exercise all
rights of payment (including, without limitation, rights of set-off, to the
extent not prohibited by law) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law, upon the occurrence of an Event of Default and the acceleration of the
obligations owing in connection with the Loan Documents, or at any time upon the
occurrence and during the continuance of an Event of Default under Section
9.1(a) or (b), each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
not prohibited by applicable law, to set-off and apply against any indebtedness,
whether matured or unmatured, of the Borrower to such Lender, any amount owing
from such Lender to the Borrower, at, or at any time after, the happening of any
of the above-mentioned events. To the extent not prohibited by applicable law,
the aforesaid right of set-off may be exercised by such Lender against the
Borrower or against any trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor of the Borrower, or against anyone else claiming through or
against the Borrower or such trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receivers, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
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11.11. Lenders' Representations.
Each Lender represents to the Administrative Agent that, in
acquiring its Note, it is acquiring the same for its own account for the purpose
of investment and not with a view to selling the same in connection with any
distribution thereof, provided that the disposition of each Lender's own
Property shall at all times be and remain within its control.
11.12. Indemnity.
The Borrower agrees to indemnify and hold harmless each Credit Party
and its affiliates, directors, officers, employees, affiliates, agents,
controlling persons and attorneys (each an "Indemnified Person") from and
against any loss, cost, liability, damage or expense (including the reasonable
fees and disbursements of counsel of such Indemnified Person, including all
local counsel hired by any such counsel) incurred by such Indemnified Person in
investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of, any commenced or
threatened litigation, administrative proceeding or investigation under any
federal securities or tax laws or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of or
is based upon: (i) any untrue statement of any material fact by the Borrower in
any document or schedule executed or filed with any Governmental Authority by or
on behalf of the Borrower; (ii) any omission to state any material fact required
to be stated in such document or schedule, or necessary to make the statements
made therein, in light of the circumstances under which made, not misleading; or
(iii) any acts, practices or omissions of the Borrower or its agents relating to
the use of the proceeds of any or all borrowings made by the Borrower which are
alleged to be in violation of Section 2.15, or in violation of any federal
securities or tax laws or of any other statute, regulation or other law of any
jurisdiction applicable thereto, whether or not such Indemnified Person is a
party thereto. The indemnity set forth herein shall be in addition to any other
obligations, liabilities or other indemnifications of the Borrower to each
Indemnified Person under the Loan Documents or at common law or otherwise, and
shall survive any termination of the Loan Documents, the expiration of the
Commitments and the payment of all indebtedness of the Borrower under the Loan
Documents, provided that the Borrower shall have no obligation under this
Section to an Indemnified Person with respect to any of the foregoing to the
extent found in a final judgment of a court having jurisdiction to have resulted
primarily out of the gross negligence or willful misconduct of such Indemnified
Person or arising solely from claims between one such Indemnified Person and
another such Indemnified Person.
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11.13. Governing Law.
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York, without regard to principles
of conflict of laws.
11.14. Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.15. Severability.
Every provision of the Loan Documents is intended to be severable,
and if any term or provision thereof shall be invalid, illegal or unenforceable
for any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.16. Integration.
All exhibits to a Loan Document shall be deemed to be a part
thereof. The Loan Documents embody the entire agreement and understanding among
the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter thereof and supersede all prior agreements and understandings
among the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter thereof.
11.17. Consent to Jurisdiction.
The Borrower and each of the Credit Parties hereby irrevocably
submit to the jurisdiction of any New York State or Federal court sitting in the
City of New York over any suit, action or proceeding arising out of or relating
to the Loan Documents. The Borrower and each of the Credit Parties hereby
irrevocably waive, to the fullest extent permitted or not prohibited by law, any
objection which any of them may now or hereafter have to the laying of the venue
of any such suit, action or proceeding brought in such a court and any claim
that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum.
11.18. Service of Process.
The Borrower hereby agrees that process may be served against it in
any suit, action or proceeding referred to in Section 11.17 by sending the same
by first class mail, return receipt requested or by overnight courier service,
to the address of the
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Borrower set forth in Section 11.2 or in the applicable Loan Document executed
by the Borrower. The Borrower hereby agrees that any such service (i) shall be
deemed in every respect effective service of process upon it in any such suit,
action, or proceeding, and (ii) shall to the fullest extent enforceable by law,
be taken and held to be valid personal service upon and personal delivery to it.
11.19. No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver, consent
or amendment thereto shall affect the right of the Administrative Agent or any
Lender to serve process in any manner permitted by law or limit the right of the
Administrative Agent or any Lender to bring proceedings against the Borrower in
the courts of any jurisdiction or jurisdictions in which the Borrower may be
served.
11.20. WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS, THE MANAGING
AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR AGENT OF THE ADMINISTRATIVE AGENT, THE
CO-DOCUMENTATION AGENTS, THE MANAGING AGENT, THE LENDERS, OR COUNSEL TO THE
ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS, THE MANAGING AGENT OR THE
LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT,
THE CO-DOCUMENTATION AGENTS, THE MANAGING AGENT OR THE LENDERS WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THE BORROWER ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT, THE
CO-DOCUMENTATION AGENTS, THE MANAGING AGENT AND THE LENDERS HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.21. Termination
After the termination of this Agreement in accordance with its
terms, without any extension thereof, and the payment in full of all obligations
of the Borrower under the Loan Documents (including without limitation, all
principal, interest, Facility Fees and other amounts payable hereunder and under
the Notes), the obligations of the Borrower hereunder (other than those which
are stated herein to survive any termination of this Agreement) shall terminate,
except that the foregoing shall not apply with respect
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to any claim, action or proceeding made or brought under any other provision of
the Loan Documents prior to such termination or payment. At the request of the
Borrower, each Lender whose obligations under the Notes have been fully paid
shall promptly return to the Borrower its Note marked "paid" or shall deliver
other evidence that such Lender has received full payment of such obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
NEW PLAN EXCEL REALTY
TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
THE BANK OF NEW YORK,
as Administrative Agent and a Lender
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Xxxxxxxxx Xxxxxxx
Vice President
BANK ONE, NA
as Co-Documentation Agent
and a Lender
By: /s/ Xxxxx X. Krcharik
----------------------------------
Name: Xxxxx X. Krcharik
Title: Associate Director
FLEET NATIONAL BANK
as Co-Documentation Agent
and a Lender
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
Title: Vice President
BANK OF AMERICA, N. A.
as Managing Agent
and a Lender
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
BANCO BILBAO VIZCAYA
ARGENTARIA
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Corporate Banking
By: /s/ Xxxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: Vice President
Global Corporate Banking
XXXXX XXX COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By: /s/ Ming-Xxxxx Xxx
----------------------------------
Name: Ming-Xxxxx Xxx
Title: VP and General Manager
ERSTE BANK
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
ISRAEL DISCOUNT BANK OF
NEW YORK
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
PNC BANK, N. A.
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
KEY BANK
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
