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EXHIBIT 10.10
TERM CREDIT AGREEMENT
among
PAN PACIFIC RETAIL PROPERTIES, INC.,
as Borrower
CERTAIN SUBSIDIARIES OF PAN PACIFIC RETAIL PROPERTIES, INC.,
as Guarantors
THE LENDERS IDENTIFIED HEREIN
and
BANK OF AMERICA, N.A.,
as Administrative Agent
November 13, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
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SECTION 1 DEFINITIONS AND ACCOUNTING TERMS......................................1
1.1 Definitions......................................................1
1.2 Computation of Time Periods and Other Definition Provisions.....20
1.3 Accounting Terms................................................20
1.4 Joint Venture Investments.......................................20
1.5 Time............................................................20
SECTION 2 CREDIT FACILITY......................................................21
2.1 Term Loans......................................................21
2.2 Continuations and Conversions...................................22
2.3 Notes...........................................................23
SECTION 3 GENERAL PROVISIONS APPLICABLE TO TERM LOANS..........................23
3.1 Interest........................................................23
3.2 Place and Manner of Payments....................................23
3.3 Prepayments.....................................................24
3.4 Fees............................................................24
3.5 Payment in full at Maturity; Extension of Maturity..............24
3.6 Computations of Interest and Fees...............................25
3.7 Pro Rata Treatment..............................................26
3.8 Sharing of Payments.............................................26
3.9 Capital Adequacy................................................27
3.10 Inability To Determine Interest Rate............................27
3.11 Illegality......................................................28
3.12 Requirements of Law.............................................28
3.13 Taxes...........................................................28
3.14 Compensation....................................................30
3.15 Determination and Survival of Provisions........................31
SECTION 4 GUARANTY.............................................................31
4.1 Guaranty of Payment.............................................31
4.2 Obligations Unconditional.......................................31
4.3 Modifications...................................................32
4.4 Waiver of Rights................................................33
4.5 Reinstatement...................................................33
4.6 Remedies........................................................33
4.7 Limitation of Guaranty..........................................33
4.8 Rights of Contribution..........................................34
SECTION 5 CONDITIONS PRECEDENT.................................................34
5.1 Closing Conditions..............................................34
5.2 Conditions to Funding of Term Loans.............................39
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SECTION 6 REPRESENTATIONS AND WARRANTIES.......................................40
6.1 Organization and Good Standing..................................40
6.2 Due Authorization...............................................40
6.3 Enforceable Obligations.........................................40
6.4 No Conflicts....................................................40
6.5 Consents........................................................41
6.6 Financial Condition.............................................41
6.7 No Material Change..............................................41
6.8 Disclosure......................................................41
6.9 No Default......................................................41
6.10 Litigation......................................................42
6.11 Taxes...........................................................42
6.12 Compliance with Law.............................................42
6.13 Licenses, etc...................................................42
6.14 Ownership of Properties.........................................42
6.15 Insurance.......................................................42
6.16 Use of Proceeds.................................................43
6.17 Government Regulation...........................................43
6.18 No Burdensome Restrictions......................................43
6.19 Compliance with ERISA...........................................44
6.20 Environmental Matters...........................................45
6.21 Organization Structure/Subsidiaries.............................46
6.22 Properties......................................................47
6.23 Solvency........................................................47
SECTION 7 AFFIRMATIVE COVENANTS................................................47
7.1 Information Covenants...........................................47
7.2 Financial Covenants.............................................50
7.3 Preservation of Existence.......................................51
7.4 Maintenance of Assets...........................................51
7.5 Insurance.......................................................51
7.6 Performance of Obligations......................................52
7.7 Compliance with Law.............................................52
7.8 Payment of Taxes and Other Indebtedness.........................52
7.9 Books and Records...............................................52
7.10 Audits/Inspections..............................................52
7.11 Use of Proceeds.................................................53
7.12 Additional Credit Parties.......................................53
7.14 Consents; Cure of Defaults......................................53
SECTION 8 NEGATIVE COVENANTS...................................................54
8.1 Indebtedness....................................................54
8.2 Liens...........................................................54
8.3 Nature of Business..............................................54
8.4 Consolidation and Merger........................................55
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8.5 Sale or Lease of Assets.........................................55
8.6 Investments.....................................................55
8.7 Restricted Payments.............................................55
8.8 Transactions with Affiliates....................................56
8.9 Fiscal Year; Organizational Documents...........................56
8.10 No Limitations..................................................56
8.11 Other Negative Pledges..........................................56
8.12 Construction and Development....................................56
SECTION 9 EVENTS OF DEFAULT....................................................57
9.1 Events of Default...............................................57
9.2 Acceleration; Remedies..........................................60
9.3 Allocation of Payments After Event of Default...................61
SECTION 10 AGENCY PROVISIONS...................................................62
10.1 Appointment.....................................................62
10.2 Delegation of Duties............................................62
10.3 Exculpatory Provisions..........................................62
10.4 Reliance on Communications......................................63
10.5 Notice of Default...............................................63
10.6 Non-Reliance on Administrative Agent and Other Lenders..........64
10.7 Indemnification.................................................64
10.8 Administrative Agent in Its Individual Capacity.................65
10.9 Successor Agent.................................................65
SECTION 11 MISCELLANEOUS.......................................................66
11.1 Notices.........................................................66
11.2 Right of Set-Off, Automatic Debits..............................66
11.3 Benefit of Agreement............................................67
11.4 No Waiver; Remedies Cumulative..................................70
11.5 Payment of Expenses; Indemnification............................70
11.6 Amendments, Waivers and Consents................................71
11.7 Counterparts/Telecopy...........................................72
11.8 Headings........................................................72
11.9 Defaulting Lender...............................................72
11.10 Survival of Indemnification and Representations and Warranties..72
11.11 Governing Law...................................................72
11.12 Waiver of Jury Trial; Waiver of Consequential Damages...........72
11.13 Severability....................................................73
11.14 Entirety........................................................73
11.15 Binding Effect..................................................73
11.16 Confidentiality.................................................73
11.17 Further Assurances..............................................74
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SCHEDULES
Schedule 1.1(a) Commitment Percentages
Schedule 6.5 Consents
Schedule 6.21 Organization Structure/Subsidiaries
Schedule 6.22 Properties
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Request for Funding of Term Loans
Exhibit 2.2 Form of Notice of Continuation/Conversion
Exhibit 2.3 Form of Note
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3 Form of Assignment Agreement
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OBLIGOR # 00224394
TERM CREDIT AGREEMENT
THIS TERM CREDIT AGREEMENT (this "Credit Agreement") is entered into as of
November 13, 2000 among PAN PACIFIC RETAIL PROPERTIES, INC., a Maryland
corporation (the "Borrower"), certain Subsidiaries of the Borrower as
Guarantors, the Lenders (as defined herein), and BANK OF AMERICA, N.A., as
Administrative Agent for the Lenders (the "Administrative Agent"), and Banc of
America Securities LLC, as Sole Lead Arranger and Sole Book Manager.
RECITALS
WHEREAS, the Borrower has requested that the Lenders provide it with a term
credit facility for the purposes set forth herein;
WHEREAS, the Guarantors will benefit, directly or indirectly, from such
revolving credit facility and, therefore are willing to provide credit support
for the obligations incurred thereunder; and
WHEREAS, the Lenders have agreed to make the requested term credit facility
available to the Borrower on the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Actual Debt Service" means for any period, without duplication, the
sum of (a) Consolidated Interest Expense, plus (b) subject to Section 1.4,
the aggregate amount of all principal and other payments due during such
period with respect to Indebtedness of the Combined Parties (excluding,
however, any principal "balloon payments" paid or payable by any member of
the Consolidated Group during such period), plus (c) cash dividends paid on
any preferred stock of the Borrower.
"Adjusted Current Value" means, for any Property, as of any date, the
quotient of
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(a) Net Operating Income for such Property as of such date divided by (b)
the Applicable Cap Rate; provided, however, that if the Administrative
Agent has not received quarterly operating statements for such Property for
each of the immediately preceding four calendar quarters (due to the fact
that the applicable Combined Party has owned such Property for less than
four calendar quarters), then the "Adjusted Current Value" for such
Property shall be the lesser of (i) the Adjusted Current Value as
calculated above, or (ii) the purchase price paid by the applicable
Combined Party (or by any predecessor thereto) upon acquiring such
Property, net of all brokerage commissions, finder's fees and other closing
costs or expenses incurred by such Combined Party in connection with the
acquisition of such Property.
"Adjusted EBITDA" means, for any period, with respect to the Combined
Parties, an amount equal to:
(a) Consolidated Net Income for such period excluding the effect
of any extraordinary or other non-recurring gains (including, without
limitation, any gain from the sale of property not in the ordinary
course of business) and any extraordinary or other non-recurring
losses; plus
(b) amounts which in the determination of Consolidated Net Income
for such period have been deducted for:
(i) Consolidated Interest Expense for such period,
(ii) total federal, state, foreign or other income or
franchise taxes for such period,
(iii) depreciation,
(iv) amortization, and
(v) other non-cash charges and expenses; plus
(c) an amount equal to the sum of (i) without duplication, net
income for such period (as determined in accordance with GAAP) from
all Combined Parties other than members of the Consolidated Group but
only to the extent of the aggregate ownership interests of the members
of the Consolidated Group in such Combined Parties and (ii)
Investments by members of the Consolidated Group in such Combined
Parties made during such period; minus
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(d) an amount equal to the greater of (i) $0.25 times the monthly
weighted average aggregate net rentable square footage of all
Properties of the Consolidated Group for such period and (ii) all
actual Capital Expenditures made by the Consolidated Group for all
Properties of the Consolidated Group during such period; minus
(e) the sum of (i) without duplication, net losses (as determined
in accordance with GAAP) of the Combined Parties other than members of
the Consolidated Group but only to the extent of the aggregate
ownership interests of the members of the Consolidated Group in such
Combined Parties and (ii) dividends, distributions, loan payments and
other cash returns on Investments made by members of the Consolidated
Group in such Combined Parties.
"Adjusted LIBOR Rate" means the LIBOR Rate plus one and one-fifth
percent (1.2%) per annum.
"Administrative Agent" means Bank of America, N.A. (or any successor
thereto) or any successor administrative agent appointed pursuant to
Section 10.9.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all
directors and officers of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to
control a corporation, partnership, limited liability company or real
estate investment trust if such Person possesses, directly or indirectly,
the power (i) to vote 10% or more of the Voting Stock of such corporation
or to vote 10% or more of the ownership interests of such partnership,
limited liability company, or real estate investment trust or (ii) to
direct or cause direction of the management and policies of such
corporation, partnership, limited liability company or real estate
investment trust, whether through the ownership of Voting Stock, as
managing or general partner, by contract or otherwise.
"Agency Services Address" means Bank of America, N.A./Loan
Administration, ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, or such other address as may be identified by
written notice from the Administrative Agent to the Borrower and the
Lenders.
"Agent-Related Person" means the Administrative Agent, together with
its Affiliates, including the Arranger, and their respective officers,
directors, employees, agents, counsel and attorneys-in-fact.
"Aggregate Adjusted Current Value" means, as of any date of
determination, the sum of the Adjusted Current Values as of such date for
all Properties owned by the Consolidated Group.
"Applicable Cap Rate" means 9.50% for all Properties; provided,
however, that the Required Lenders shall have the right, at the end of any
calendar year, to review and adjust,
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in their reasonable discretion, the Applicable Cap Rate, which change shall
become effective immediately upon written notice by the Administrative
Agent to the Borrower.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment Agreement" means any assignment agreement between an
assigning Lender and an Eligible Assignee substantially in the form of
Exhibit 11.3.
"Attorney Costs" means all reasonable fees and disbursements of any
law firm or other external counsel and the reasonable allocated cost of
internal legal services and all disbursements of internal counsel.
"Bank of America" means Bank of America, N.A., a national banking
association.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BAS" means Banc of America Securities LLC or any successor thereto.
"Base Rate" means, for any day, the rate per annum equal to the
greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%
or (b) the Prime Rate in effect on such day. Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or the
Federal Funds Rate, respectively.
"Base Rate Loan" means a Term Loan bearing interest based at a rate
determined by reference to the Base Rate.
"Borrower" means Pan Pacific Retail Properties, Inc., a Maryland
corporation.
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required
by law or other governmental action to close in Los Angeles, California;
provided that in the case of LIBOR Loans, such day is also a day on which
dealings between banks are carried on in U.S. dollar deposits in the London
interbank market.
"Capital Expenditures" means all actual expenditures of any Person for
replacements and substitutions of improvements to any Property that, in
accordance with GAAP, would be classified on the balance sheet of such
Person as Capital Expenditures, including, without limitation, Capital
Leases.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of such Person.
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"Capital Stock" means (a) in the case of a corporation, all classes of
capital stock of such corporation, (b) in the case of a partnership,
partnership interests (whether general, limited or operating partnership
units), (c) in the case of a limited liability company, membership
interests and (d) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distribution of assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities
of not more than twelve months from the date of acquisition, (b) U.S.
dollar denominated time and demand deposits and certificates of deposit of
(i) any Lender or any of its Affiliates, (ii) any domestic commercial bank
having capital and surplus in excess of $500,000,000 or (iii) any bank
whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued
by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better by
Moody's and maturing within six months of the date of acquisition, (d)
repurchase agreements with a bank or trust company (including any of the
Lenders) or securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America in which a Credit Party shall have a perfected
first priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations and (e) Investments, classified in
accordance with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which are
administered by financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d).
"Change of Control" means either of the following events:
(a) other than Revenue Properties (U.S.), Inc., a Delaware
corporation any "person" or "group" (within the meaning of Section
13(d) or 14(d) of the Exchange Act) has become, directly or
indirectly, the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), by way of merger, consolidation or
otherwise of 20% or more of the Voting Stock of the Borrower on a
fully-diluted basis, after giving effect to the conversion and
exercise of all outstanding warrants, options and other securities of
the Borrower convertible into or exercisable for Voting Stock of the
Borrower (whether or not such securities are then currently
convertible or exercisable); or
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(b) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the board
of directors of the Borrower together with any new members of such
board of directors whose elections by such board or board of directors
or whose nomination for election by the stockholders of the Borrower
was approved by a vote of a majority of the members of such board of
directors then still in office who either were 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 directors of the Borrower then in office.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections.
"Combined Parties" means the Credit Parties and their Subsidiaries and
all joint ventures or general or limited partnerships to which a Credit
Party or one of its Subsidiaries is a party.
"Commitment" means, with respect to each Lender, such Lender's
Commitment Percentage of the Term Loan Amount and "Commitments" means,
collectively, the sum of each Lender's Commitment.
"Commitment Percentage" means, for each Lender, the percentage
identified as its Commitment Percentage on Schedule 1.1(a), as such
percentage may be increased or decreased as a result of any assignment made
in accordance with the provisions of Section 11.3.
"Consolidated Group" means the Credit Parties and all Subsidiaries of
the Credit Parties, the financial statements of whom are consolidated with
those of the Borrower in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, subject to
Section 1.4, the interest expense of the Combined Parties (including,
without limitation, imputed interest on Capital Leases, all commissions,
discounts and other fees and charges owed with respect to letters of credit
and bankers' acceptance financing, the net costs associated with Hedging
Obligations, amortization of other financing fees and expenses, the
interest portion of any deferred payment obligation, amortization of
discounts or premiums, if any, and all non-cash interest expense).
"Consolidated Net Income" means, for any period, subject to Section
1.4, the net income (or loss) of the Combined Parties.
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"Consolidated Tangible Net Worth" means, as of any date of
calculation, an amount equal to (a) total assets of the Consolidated Group
as determined in accordance with GAAP minus (b) the amount of intangible
assets of the Consolidated Group as determined in accordance with GAAP,
including, without limitation, deferred costs associated with goodwill,
intellectual property, franchises, organizational expenses, deferred
financing charges, debt acquisition costs, start-up costs, pre-opening
costs, prepaid pension costs or any other deferred charges minus (c) the
total liabilities of the Consolidated Group as determined in accordance
with GAAP.
"Credit Documents" means this Credit Agreement, the Notes, any Request
for Funding of Term Loans, any Notice of Continuation/Conversion and all
other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"Credit Exposure" has the meaning set forth in the definition of
Required Lenders in this Section 1.1.
"Credit Parties" means the Borrower and the Guarantors and "Credit
Party" means any one of them.
"Debt Rating" means, as to any Person, the long-term, senior,
unsecured, non-credit enhanced debt rating of such Person from S&P or
Moody's.
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, (a) has
failed to make its Term Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement (but only for so long as
such Term Loan is not made or such Participation Interest is not
purchased), (b) has failed to pay to the Administrative Agent or any Lender
an amount owed by such Lender pursuant to the terms of this Credit
Agreement (but only for so long as such amount has not been repaid) or (c)
has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Effective Date" means the date on which the conditions set forth in
Section 5.1 shall have been fulfilled (or waived in the sole discretion of
the Lenders).
"Eligible Assignee" means (a) any Lender or any Affiliate or
Subsidiary of a Lender (without the approval or consent of any Person) and
(b) any other Person approved by the Administrative Agent and the Borrower
(such approval not to be unreasonably withheld or delayed); provided that
(i) the Borrower's consent is not required during the existence and
continuation of an Event of Default and (ii) approval by the Borrower shall
be deemed
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given if no objection is received by the assigning Lender and the
Administrative Agent from the Borrower within five Business Days after
notice of such proposed assignment has been received by the Borrower.
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, proceeding, or
written claim whether administrative, judicial or private in nature arising
(a) pursuant to, or in connection with, an actual or alleged violation of,
any Environmental Law, (b) in connection with any Hazardous Material, (c)
from any assessment, abatement, removal, remedial, corrective, or other
response action in connection with an Environmental Law or other order of a
Governmental Authority or (d) from any actual or alleged damage, injury,
threat, or harm to health, safety, natural resources, or the environment.
"Environmental Laws" means any current or future legal requirement of
any Governmental Authority pertaining to (a) the protection of surface
water and groundwater from contamination with Hazardous Materials, (b) the
management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened release,
abatement, removal, remediation or handling of, or exposure to, any
hazardous or toxic substance or material or (c) pollution (including any
release to land surface water and groundwater) and includes, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act,
as amended by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33
USC 1251 et seq., Clean Air Act of 1966, as amended, 42 USC 7401 et seq.,
Toxic Substances Control Act of 1976, 15 USC 2601 et seq., Hazardous
Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety
and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act
of 1990, 33 USC 2701 et seq., Emergency Planning and Community
Right-to-Know Act of 1986, 42 USC 11001 et seq., National Environmental
Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974,
as amended, 42 USC 300(f) et seq., any analogous implementing or successor
law, and any amendment, rule, regulation, order, or directive issued
thereunder.
"Equity Issuance" means any issuance by a member of the Consolidated
Group to any Person of (a) shares of its Capital Stock or other equity
interests, (b) any shares of its Capital Stock or other equity interests
pursuant to the exercise of options (other than stock issued to employees
and directors pursuant to employees or directors stock option plans) or
warrants or (c) any shares of its Capital Stock or other equity interests
pursuant to the conversion of any debt securities to equity.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of
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ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated, which
is under common control with a member of the Consolidated Group within the
meaning of Section 4001(a)(14) of ERISA, or is a member of a group which
includes a member of the Consolidated Group and which is treated as a
single employer under Sections 414(b), (c), (m) or (o) of the Code.
"ERISA Event" means (a) with respect to any Single Employer or
Multiple Employer Plan, the occurrence of a Reportable Event or the
substantial cessation of operations (within the meaning of Section 4062(e)
of ERISA); (b) the withdrawal of the Borrower, any member of the
Consolidated Group or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (c) the distribution of a notice of intent to terminate or
the actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of
ERISA; (d) the institution of proceedings to terminate or the actual
termination of any Plan by the PBGC under Section 4042 of ERISA; (e) any
event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (f) the complete or partial withdrawal of the
Borrower, any member of the Consolidated Group or any ERISA Affiliate from
a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (g) the conditions for imposition of a lien under Section
302(f) of ERISA exist with respect to any Plan; or (h) the adoption of an
amendment to any Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA.
"Event of Default" means any of the events or circumstances described
in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
modified, succeeded or replaced from time to time, and the rules and
regulations promulgated thereunder.
"Extended Maturity Date" means February 13, 2002.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York on the
preceding Business Day opposite the caption "Federal Funds (Effective)";
or, if for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Administrative Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal
funds transactions in New York City selected by the Administrative Agent.
"Fee Letter" means that certain letter agreement, dated as of November
13, 2000,
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between the Administrative Agent and the Borrower, as amended, modified,
supplemented or replaced from time to time.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (a)
Adjusted EBITDA for the twelve month period ending on such date to (b)
Actual Debt Service for the twelve month period ending on such date.
"Funds From Operations", when used with respect to any Person, shall
have the meaning given to such term in, and shall be calculated in
accordance with, standards promulgated by the National Association of Real
Estate Investment Trusts in effect from time to time.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local or provincial
court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantor" means (a) each Subsidiary of the Borrower that is
identified as a Guarantor on the signature pages hereto and (b) any such
Person who may from time to time execute a Joinder Agreement or otherwise
consent in writing to becoming a Guarantor hereunder, as required by
Section 7.12 or otherwise, in each case together with their successors and
assigns.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person
in any manner, whether direct or indirect, and including without limitation
any obligation, whether or not contingent, (a) to purchase any such
Indebtedness or other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support for the payment
or purchase of such indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements, comfort letters,
take or pay arrangements, put agreements or similar agreements or
arrangements) for the benefit of the holder of Indebtedness of such other
Person, (c) to lease or purchase property, securities or services primarily
for the purpose of assuring the owner of such Indebtedness or (d) to
otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof. The amount of any Guaranty
Obligation shall be deemed equal to the stated or determinable amount of
the primary obligation in respect of which such Guaranty Obligation is made
or, if not stated or if indeterminable, the maximum reasonably anticipated
liability in respect thereof.
"Hazardous Materials" means any substance, material or waste defined
or regulated in or under any Environmental Laws.
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"Hedging Obligations" means, with respect to any Person, the net
obligations of such Person pursuant to any interest rate hedging agreement
or any foreign exchange contract, currency swap arrangement, or other
similar agreement to which such Person is a party or of which such Person
is a beneficiary.
"Indebtedness" of any Person means, without duplication, subject to
Section 1.4 (a) all indebtedness for borrowed money; (b) all obligations
issued, undertaken or assumed as the deferred purchase price of property or
services (other than intercompany items or trade payables entered into in
the ordinary course of business on ordinary terms); (c) all reimbursement
or payment obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses; (e) all indebtedness created
or arising under any conditional sale or other title retention agreement,
or incurred as financing, in either case with respect to property acquired
by such Person (even though the rights and remedies of the seller or bank
under such agreement in the event of default are limited to repossession or
sale of such property); (f) all obligations to purchase any materials,
supplies or other property from, or to obtain the services of, another
Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or
for such services, shall be made regardless of whether delivery of such
materials, supplies or other property is ever made or tendered, or such
services are ever performed or tendered; (g) all Hedging Obligations; (h)
the principal portion of all obligations of such Person under (1) Capital
Leases, (2) any Synthetic Lease and (3) any forward purchase commitment or
forward equity sale, (i) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date, (j) the aggregate amount of
uncollected accounts receivable of such Person subject at such time to a
sale of receivables (or similar transaction) regardless of whether such
transaction is effected without recourse to such Person or in a manner that
would not be reflected on the balance sheet of such Person in accordance
with GAAP, (k) all indebtedness referred to in clauses (a) through (j)
above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or
in property (including accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Indebtedness; and (l) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses
(a) through (j) above. "Indebtedness" does not include, however, security
deposits, accounts payable, accrued liabilities and any prepaid rents (as
such terms are defined in accordance with GAAP). For the purposes of
calculating Indebtedness, the amount of any contingent obligations with
respect to Hedging Obligations, Surety Instruments or other Indebtedness
shall be equal to the maximum reasonably anticipated liability in respect
thereof.
"Indemnified Liabilities" has the meaning set forth in Section 11.5.
"Initial Maturity Date" means November 12, 2001.
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"Interest Payment Date" means (a) as to Base Rate Loans, the first
calendar day of each month and the Maturity Date, (b) as to any LIBOR Loan
having an Interest Period of one month or less, the first calendar day of
the next succeeding month following the last day of such Interest Period
and the Maturity Date and (c) as to any LIBOR Loan having an Interest
Period of more than one month, the first calendar day of each month, the
first calendar day of the next succeeding month following the last day of
such Interest Period, and the Maturity Date.
"Interest Period" means, as to LIBOR Loans, a period of seven days or
a period of one, two, three, four or six months' duration as the Borrower
may elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof); provided, however, (a)
no Interest Period shall end on a day which is not a Business Day, and (b)
no Interest Period shall extend beyond the Maturity Date.
"Investment" in any Person means (a) the acquisition (whether for
cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets, (including, without limitation, raw land, non-retail
properties and minority interests in joint ventures) Capital Stock, bonds,
notes, debentures or other securities of such other Person, (b) any deposit
with, or advance, loan or other extension of credit to, such Person (other
than deposits made in connection with the purchase of equipment or other
assets in the ordinary course of business) or (c) any other capital
contribution to or investment in such Person, including, without
limitation, any Guaranty Obligation (including any support for a letter of
credit issued on behalf of such Person) incurred for the benefit of such
Person; provided that Investment shall not include any retail property that
is a neighborhood retail shopping center.
"IRS" means the Internal Revenue Service of the United States of
America, or any successor agency thereof.
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit 7.12.
"Lender" means any of the Persons identified as a "Lender" on the
signature pages hereto, and any Person which may become a Lender by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"Lending Office" means, as to any Lender, the office or offices of
such Lender described as such on Schedule 11.1, or such other office or
offices as a Lender may from time notify to the Borrower and the
Administrative Agent.
"Leverage Ratio" means the ratio of (a) total Indebtedness of the
Consolidated Group to (b) Total Assets.
"LIBOR Banking Day" means any Business Day on which banks are open for
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business in London, England.
"LIBOR Base Rate" means the offered rate (determined solely by the
Administrative Agent) for a period of time comparable to the number of days
in the applicable Interest Period for deposits in Dollars, as shown on
Telerate Page 3750 as of 11:00 a.m. London time two LIBOR Banking Days
prior to the first day of the applicable Interest Period, or if Telerate
Page 3750 is unavailable, the rate for such deposits determined by the
Administrative Agent at such time based on such other published service of
general application as shall be selected by the Administrative Agent for
such purpose. The determination of the LIBOR Base Rate by the
Administrative Agent shall be conclusive in the absence of manifest error.
"Telerate Page 3750" means the display designated as such on Teleratesystem
Incorporated (or such other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks
for Dollar deposits).
"LIBOR Loan" means a Term Loan bearing interest based at a rate
determined by reference to the Adjusted LIBOR Rate.
"LIBOR Rate" means, for each LIBOR Loan comprising part of the same
borrowing (including conversions, extensions and renewals), a per annum
interest rate determined pursuant to the following formula:
LIBOR Rate = LIBOR Base Rate
----------------------------
1 - LIBOR Reserve Percentage
"LIBOR Reserve Percentage" means the total of the maximum reserve
percentages for determining the reserves to be maintained by member banks
of the Federal Reserve System for Eurocurrency Liabilities, as defined in
Regulation D. The Reserve Percentage shall be expressed as a decimal and
rounded upward, if necessary, to the nearest 1/100th of one percent, and
shall include marginal, emergency, supplemental, special and other reserve
percentages.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation,
any agreement to give any of the foregoing, any conditional sale or other
title retention agreement, and any lease in the nature thereof.
"Margin Increase" means, with respect to any Term Loan, the Adjusted
LIBOR Rate or the Base Rate, as applicable, plus one-quarter of one percent
(.25%).
"Material Adverse Effect" means (a) a material adverse change in or
effect upon the operations, business, properties, condition (financial or
otherwise) or prospects of the Consolidated Group, taken as a whole, (b) a
material impairment of the ability of a Credit Party to perform its
respective obligations under this Credit Agreement or any of the other
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Credit Documents, or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against the Credit Parties of
this Credit Agreement or any of the other Credit Documents.
"Maturity Date" means the Initial Maturity Date or, if the conditions
set forth in Section 3.5 have been satisfied, the Extended Maturity Date.
"Minority Interests" means interests owned by Persons (other than a
member of the Consolidated Group) in a Subsidiary of the Borrower in which
less than 100% of the Capital Stock is owned by the members of the
Consolidated Group.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of ERISA
(other than a Multiemployer Plan) in which a member of the Consolidated
Group or any ERISA Affiliate and at least one employer other than a member
of the Consolidated Group or any ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" means the gross cash proceeds received from a
Public Debt Issuance or Equity Issuance, in each case net of actual
transaction costs paid or payable to third parties.
"Net Operating Income" or "NOI" means, for any Property, subject to
Section 1.4, as of any date and calculated on a cash basis, (a) the gross
rental income of such Property for the immediately preceding four
consecutive calendar quarters, minus (b) the aggregate amount of all actual
operating expenses (excluding Capital Expenditures) for such Property
during such period, minus (c) imputed Capital Expenditures in an amount
equal to the greater of (i) the product of (A) the monthly weighted average
net rentable square footage of such Property for such period times (B)
$0.25 and (ii) the aggregate amount of all Capital Expenditures for such
Property during such period.
In the event the Administrative Agent receives operating statements
covering only a portion of the relevant four calendar quarter period (due
to the fact that the Property has been owned for less than four calendar
quarters), the Administrative Agent shall calculate Net Operating Income
for such Property based on an annualization of the operating statements
which have been provided, subject to such adjustments as the Administrative
Agent deems appropriate in its sole discretion to accurately reflect
anticipated annualized operating results. In the event (a) the Borrower
has, within the two calendar quarters preceding the date of calculation,
completed the build-out of additional in-line shop space or pad space on
any Property, (b) such additional space has been leased to tenants who have
commenced paying rent, are in occupancy and have opened for business in
such
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space, and (c) the Administrative Agent determines that, as a result of the
leasing of such additional space, annual Net Operating Income for such
Property will increase by at least $250,000 for the following year, then
Net Operating Income for such Property shall be calculated based upon the
operating statement for such Property covering the most recently completed
calendar quarter, subject to such adjustments as the Administrative Agent
deems appropriate in its sole discretion to accurately reflect anticipated
annualized operating results. In addition, the Administrative Agent may, in
its sole discretion, reduce the Net Operating Income for any Property by
the amount of rents attributable to any leases (i) which are in default or
which have terminated or are otherwise no longer in effect, or (ii) which
are otherwise unacceptable to the Administrative Agent in its sole
discretion.
For the purposes of calculating Net Operating Income for any Property
acquired by a Combined Party as a result of the Western Acquisition, such
Property shall be deemed to have been owned by such Combined Party for a
period equal to (A) the amount of time Western or one of its Subsidiaries
owned such Property prior to the Western Acquisition plus (B) the amount of
time such Property has been owned by a Combined Party following the Western
Acquisition.
"Note" or "Notes" means the promissory notes of the Borrower in the
form of Exhibit 2.3 in favor of each of the Lenders evidencing the Term
Loans, individually or collectively, as appropriate, as such promissory
notes may be amended, modified, supplemented, extended, renewed or replaced
from time to time.
"Notice of Continuation/Conversion" means a request by the Borrower to
continue an existing LIBOR Loan to a new Interest Period or to convert a
LIBOR Loan to a Base Rate Loan or to convert a Base Rate Loan to a LIBOR
Loan, in the form of Exhibit 2.2.
"Obligations" means, without duplication, all of the obligations of
the Credit Parties to the Lenders and the Administrative Agent, whenever
arising, under this Credit Agreement, the Notes, or any of the other Credit
Documents to which a Credit Party is a party.
"Other Taxes" has the meaning set forth in Section 3.13(b).
"Participation Interest" means the extension of credit by a Lender by
way of a purchase of a participation in any Term Loans as provided in
Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust, REIT or other
enterprise (whether or not incorporated), or any Governmental Authority.
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"Plan" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which a member of the
Consolidated Group or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be)
an "employer" within the meaning of Section 3(5) of ERISA.
"Plaza Escuela Note Receivable" means the account receivable of the
Borrower evidenced by the promissory note of Plaza Escuela, LLC, dated as
of December 31, 1999, in favor of Western and acquired by the Borrower
pursuant to the Western Acquisition.
"Prime Rate" means the per annum rate of interest established from
time to time by the Administrative Agent at its principal office in
Charlotte, North Carolina as its "prime rate". Any change in the interest
rate resulting from a change in the Prime Rate shall become effective as of
12:01 a.m. of the Business Day on which each change in the Prime Rate is
announced by the Administrative Agent. The Prime Rate is a rate set by Bank
of America based upon various factors, including Bank of America's costs
and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in such rate announced by
Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Properties" means all real properties owned by the Combined Parties.
"Public Debt Issuance" means the issuance of any Indebtedness for
borrowed money by a member of the Consolidated Group, pursuant to a public
debt offering.
"Register" has the meaning set forth in Section 11.3(c).
"Regulation A, D, T, U or X" means Regulation A, D, O, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor to all or a portion thereof.
"REIT" means a real estate investment trust as defined in Sections
856-860 of the Code.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation or by the PBGC.
"Request for Funding of Term Loans" means a request by the Borrower
for the funding of the Term Loans, in the form of Exhibit 2.1(b).
"Required Lenders" means the Administrative Agent together with the
Lenders whose aggregate Credit Exposure (as hereinafter defined)
constitutes more than 66-2/3 % of the Credit Exposure of all Lenders at
such time; provided, however, that if any Lender shall
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be a Defaulting Lender at such time then there shall be excluded from the
determination of Required Lenders the aggregate principal amount of Credit
Exposure of such Lender at such time. For purposes of the preceding
sentence, the term "Credit Exposure" as applied to each Lender shall mean
(a) at any time prior to the making of the Term Loans, the Commitment of
such Lender and (b) at any time on and after the making of the Term Loans,
the principal balance of the outstanding Term Loans of such Lender.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation
or final, non-appealable determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or to which any of its material property is subject.
"Revolving Credit Agreement" means that certain Revolving Credit
Agreement, dated as of the Closing Date, among the Borrower, the
Guarantors, the Administrative Agent and the lenders party thereto, as the
same may be amended, restated, replaced, supplemented or extended from time
to time.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"Secured Debt" means all Indebtedness of the Consolidated Group that
is secured by a Lien in favor of the creditor holding such Indebtedness;
provided that any Indebtedness owed to the Lenders hereunder shall be
considered to be Unsecured Debt even if a Lien has been granted in favor of
the Lenders.
"Secured Debt Ratio" means the ratio of (a) Secured Debt to (b)
Aggregate Adjusted Current Value.
"Securities Act" means the Securities Act of 1933, as amended,
modified, succeeded or replaced from time to time, and the rules and
regulations promulgated thereunder.
"Senior Notes" means (a) those certain senior, unsecured 7.78% notes
due 2004, in the aggregate principal amount of $50,000,000, issued by
Western pursuant to that certain Indenture, dated as of February 24, 1994,
between Western and ▇▇▇▇▇▇▇'▇ Trust Company, as trustee and (b) those
certain senior, unsecured 7.1%, 7.2% and 7.3% notes due 2006, 2008 and
2010, respectively, in the aggregate principal amount of $75,000,000,
issued by Western pursuant to that certain Indenture, dated as of September
1, 1997, between Western and The Bank of New York, as trustee.
"Significant Acquisition" means the acquisition by any Credit Party of
(a) all of the assets or Capital Stock of a Person or (b) a Property or
portfolio of Properties, in each case where the purchase price of such
assets, Capital Stock, Property or Properties exceeds 15% of "total assets"
of the Consolidated Group, as determined in accordance with GAAP, as
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calculated immediately prior to such acquisition; provided that the Western
Acquisition shall not be considered a Significant Acquisition.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Solvent" means, with respect to any Person as of a particular date,
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in
the normal course of business, (b) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature in their ordinary
course, (c) such Person is not engaged in a business or a transaction, and
is not about to engage in a business or a transaction, for which such
Person's assets would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in which such
Person is engaged or is to engage, (d) the fair value of the assets of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present fair
saleable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subsidiary" means, as to any Person, any corporation, partnership,
association, joint venture, limited liability company, real estate
investment or other trust or other entity more than 50% of whose Voting
Stock (irrespective of whether or not at the time, any such Voting Stock
shall have or might have voting power or control by reason of the happening
of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries.
"Surety Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in accordance with
GAAP.
"Taxes" has the meaning set forth in Section 3.13(a).
"Term Loan Amount" means ONE HUNDRED MILLION DOLLARS ($100,000,000).
"Term Loans" means the term loans made to the Borrower pursuant to
Section 2.1.
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"Total Assets" means, as of any date of calculation, without
duplication, subject to Section 1.4, the sum of (a) the Aggregate Adjusted
Current Value plus (b) all cash and Cash Equivalents of the Consolidated
Group plus (c) provided that no default has occurred and is continuing
under the Plaza Escuela Note Receivable, the outstanding principal balance
of the Plaza Escuela Note Receivable plus (d) all cash Investments as of
such date by any member of the Consolidated Group in any Properties
currently under development.
"Unencumbered Debt Service Coverage Ratio" means the ratio of (a) the
aggregate amount of NOI with respect to all Unencumbered Properties for the
prior twelve month period to (b) Actual Debt Service with respect to
Unsecured Debt for the prior twelve month period.
"Unencumbered Properties" means all Properties that are not subject to
a Lien other than (a) nonconsensual Liens permitted by the terms of Section
8.2(a)(i) and (ii) of the Revolving Credit Agreement and (b) Liens in favor
of the Lenders.
"Unsecured Debt" means the sum of all Indebtedness of the Consolidated
Group that was incurred, and continues to be outstanding, without granting
a Lien to the creditor holding such Indebtedness; provided that all
Indebtedness of the Consolidated Group owing to the Lenders under this
Credit Agreement shall be considered to be Unsecured Debt even if a Lien
has been granted in favor of the Lenders.
"Unsecured Debt Ratio" means the ratio of (a) Unsecured Debt to (b)
the Adjusted Current Values of all Unencumbered Properties.
"Voting Stock" means (a) with respect to a corporation, all classes of
the Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors and (b) with respect to a
partnership, association, joint venture, limited liability company, real
estate investment or other trust or other entity, all Capital Stock of such
entity entitled to exercise voting power or management control.
"Western" means Western Properties Trust, a California real estate
investment trust.
"Western Acquisition" means the merger of Western with and into the
Borrower pursuant to that certain Agreement and Plan of Merger, dated as of
August 21, 2000, between the Borrower and Western, as such Agreement and
Plan of Merger may be amended or modified.
"Western Mortgage" means that certain Deed of Trust, Assignment of
Rents and Security Agreement, dated as of April 15, 1994, of the Property
known as Lakewood Village Shopping Center, located in Windsor, California,
granted by LVI Partners, as trustor, to North Bay Title Company, as
trustee, for the benefit of Lincoln National Life Insurance Company, as
beneficiary.
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1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITION PROVISIONS.
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All financial statements delivered to the Lenders hereunder shall be
accompanied by a statement from the Borrower that GAAP has not changed since the
most recent financial statements delivered by the Borrower to the Lenders or if
GAAP has changed describing such changes in detail and explaining how such
changes affect the financial statements. All calculations made for the purposes
of determining compliance with this Credit Agreement shall (except as otherwise
expressly provided herein) be made by application of GAAP applied on a basis
consistent with the most recent annual or quarterly financial statements
delivered pursuant to Section 7.1 (or, prior to the delivery of the first
financial statements pursuant to Section 7.1, consistent with the financial
statements described in Section 5.1(d)); provided, however, if (a) the Borrower
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 60 days after delivery of such
financial statements (or after the Lenders have been informed of the change in
GAAP affecting such financial statements, if later), then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Borrower to the Lenders as to which no such objection shall
have been made.
1.4 JOINT VENTURE INVESTMENTS.
With respect to any ownership of a Property by a member of the Consolidated
Group through an entity that is not wholly-owned, directly or indirectly by the
Borrower, (a) Actual Debt Service, Adjusted EBITDA, Consolidated Interest
Expense, Consolidated Net Income, NOI and Total Assets shall be calculated in
accordance with such member of the Consolidated Group's ownership interest in
such Person and (b) Indebtedness shall be calculated as follows: (i) if the
Indebtedness of such Person is recourse to such member of the Consolidated
Group, then the amount of such Indebtedness that is recourse to such member of
the Consolidated Group, and (ii) if the Indebtedness of such Person is not
recourse to such member of the Consolidated Group, then such member of the
Consolidated Group's pro rata interest in such Indebtedness.
1.5 TIME.
All references to time herein shall be references to Pacific Standard Time
or Pacific Daylight Time, as the case may be, unless specified otherwise.
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SECTION 2
CREDIT FACILITY
2.1 TERM LOANS.
(a) Term Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees, on the Effective Date or within fifteen days
thereafter, to make a term loan (each a "Term Loan" and, collectively, the
"Term Loans") to the Borrower, in Dollars, in an amount equal to such
Lender's Commitment Percentage of the Term Loan Amount; provided that (i)
the aggregate amount of Term Loans made shall not exceed the Term Loan
Amount and (ii) the Term Loans shall only be made in a single funding. Once
repaid, Term Loans may not be reborrowed.
(b) Request for Term Loans. At or before 9:00 a.m. on (i) the
Effective Date, (ii) the date within fifteen days of the Effective Date on
which the Borrower requests that the Term Loans be funded solely as Base
Rate Loans, or (iii) three Business Days prior to the date within fifteen
days of the Effective Date on which the Borrower requests that the Term
Loans be funded either (A) solely as LIBOR Loans or (B) as a combination of
Base Rate and LIBOR Loans, the Borrower shall submit a written Request for
Funding of Term Loans in the form of Exhibit 2.1(b) to the Administrative
Agent. The Request for Funding of Term Loans shall set forth (A) the date
on which the Borrower requests that the Term Loans be funded, (B) whether
the Borrower is requesting that the Term Loans be funded as Base Rate Loans
or LIBOR Loans and (C) with respect to Term Loans that shall be LIBOR
Loans, the Interest Period applicable thereto. If the Borrower shall fail
to specify an Interest Period in the case of LIBOR Loans, the such LIBOR
Loans shall be deemed to have an Interest Period of one month.
(c) Funding of Term Loans. Upon receipt of a Request for Funding of
Term Loans, the Administrative Agent shall promptly inform the Lenders as
to the terms thereof. Each Lender will make its Commitment Percentage of
the Term Loan Amount available to the Administrative Agent by 11:00 a.m. on
the date specified in the Request for Funding of Term Loans, by deposit, in
Dollars and in immediately available funds, at the Agency Services Address.
The amount of the Term Loans will then be made available to the Borrower by
the Administrative Agent by crediting the account of the Borrower on the
books of such office of the Administrative Agent, to the extent the amount
of such Term Loans are made available to the Administrative Agent.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make its Term Loan hereunder; provided,
however, that the failure of any Lender to fulfill its obligations
hereunder shall not relieve any other Lender of its obligations hereunder.
If a Lender shall have delivered and released an executed signature page to
this Credit Agreement (whether an original or via telecopy) to the
Administrative Agent, the Administrative Agent may assume that such Lender
has or will make the amount
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of its Term Loans available to the Administrative Agent on the date
specified in the Request for Funding of Term Loans, and the Administrative
Agent in reliance upon such assumption, may (in its sole discretion but
without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative Agent shall be
able to recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent will promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount
to the Administrative Agent. The Administrative Agent shall also be
entitled to recover from the Lender or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to
the Borrower to the date such corresponding amount is recovered by the
Administrative Agent at a per annum rate equal to (i) from the Borrower at
the applicable rate or rates specified in the Request for Funding of Term
Loans and (ii) from a Lender at the Federal Funds Rate.
2.2 CONTINUATIONS AND CONVERSIONS.
(a) Generally. The Borrower shall have the option, on any Business
Day, to continue existing LIBOR Loans for a subsequent Interest Period, to
convert Base Rate Loans into LIBOR Loans, or to convert LIBOR Loans into
Base Rate Loans; provided, however, that (i) each such continuation or
conversion must be requested by the Borrower pursuant to a written Notice
of Continuation/Conversion, in the form of Exhibit 2.2, in compliance with
the terms set forth below, (ii) except as provided in Section 3.11, LIBOR
Loans may only be continued or converted on the last day of the Interest
Period applicable thereto, (iii) LIBOR Loans may not be continued nor may
Base Rate Loans be converted into LIBOR Loans during the existence and
continuation of a Default or Event of Default, (iv) any request to continue
a LIBOR Loan that fails to comply with the terms hereof or any failure to
request a continuation of a LIBOR Loan at the end of an Interest Period
shall result in a conversion of such LIBOR Loan to a Base Rate Loan on the
last day of the applicable Interest Period and (v) any request for
continuation of a LIBOR Loan which shall fail to specify an Interest Period
shall be deemed to be a request for an Interest Period of one month. Each
continuation or conversion must be requested by the Borrower no later than
9:00 a.m. (A) one Business Day prior to the date for a requested conversion
of a LIBOR Loan to a Base Rate Loan or (B) three Business Days prior to the
date for a requested continuation of a LIBOR Loan or conversion of a Base
Rate Loan to a LIBOR Loan, in each case pursuant to a written Notice of
Continuation/Conversion submitted to the Administrative Agent which shall
set forth (x) whether the Borrower wishes to continue or convert such Term
Loans and (y) if the request is to continue a LIBOR Loan or convert a Base
Rate Loan to a LIBOR Loan, the Interest Period applicable thereto.
(b) Minimum Amounts. Each request for a conversion or continuation
shall be subject to the requirements that (i) each LIBOR Loan shall be in a
minimum amount of $3,000,000 and in integral multiples of $100,000 in
excess
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thereof, (ii) each Base Rate Loan shall be in a minimum amount of $250,000
and integral multiples of $100,000 in excess thereof and (iii) no more than
four LIBOR Loans shall be outstanding at any one time. For the purposes of
this Section 2.2(b), all LIBOR Loans with the same Interest Periods
beginning on the same date shall be considered as one LIBOR Loan, but LIBOR
Loans with different Interest Periods, even if they begin on the same date,
shall be considered as separate LIBOR Loans.
2.3 NOTES.
The Term Loans made by each Lender shall be evidenced by a duly executed
promissory note of the Borrower to each Lender in substantially the form of
Exhibit 2.3.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO TERM LOANS
3.1 INTEREST.
(a) Interest Rate. All Base Rate Loans shall accrue interest at the
Base Rate. All LIBOR Loans shall accrue interest at the Adjusted LIBOR
Rate.
(b) Default Rate of Interest. Upon the occurrence, and during the
continuance, of an Event of Default, the principal of and, to the extent
permitted by law, interest on the Term Loans and any other amounts owing
hereunder or under the other Credit Documents (including without limitation
fees and expenses) shall bear interest, payable on demand, at a per annum
rate equal to three percent (3%) plus the rate which would otherwise be
applicable (or if no rate is applicable, then the rate for Base Rate Loans
plus three percent (3%) per annum).
(c) Interest Payments. Interest on Term Loans shall be due and payable
in arrears on each Interest Payment Date.
3.2 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts to be
made by the Borrower under this Credit Agreement shall be received not later
than 11:00 a.m. on the date when due, in Dollars and in immediately available
funds, by the Administrative Agent at the Agency Services Address. Payments
received after such time shall be deemed to have been received on the next
Business Day. The Borrower shall, at the time it makes any payment under this
Credit Agreement, specify to the Administrative Agent the Term Loans, fees or
other amounts payable by the Borrower hereunder to which such payment is to be
applied (and in the event that it fails to specify, or if such application would
be inconsistent with the terms hereof, the Administrative Agent shall, subject
to Section 3.7, distribute such payment to the Lenders in such manner as the
Administrative Agent may deem appropriate). The Administrative Agent will
distribute any such payment to the Lenders on the day received if such payment
is received prior to 11:00 a.m.; otherwise the Administrative Agent will
distribute such payment to the Lenders on the next
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succeeding Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day (provided that accrual of interest and fees
shall only be through the end of a calendar month).
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay
Term Loans in whole or in part from time to time without premium or
penalty; provided, however, that (i) LIBOR Loans may only be prepaid on
three Business Days' prior written notice to the Administrative Agent and
any prepayment of LIBOR Loans will be subject to Section 3.14 and (ii) each
such partial prepayment of Term Loans shall be in the minimum principal
amount of $250,000 and integral multiples of $100,000 in excess thereof.
(b) Mandatory Prepayments.
(i) Equity Issuances. Upon receipt by any member of the
Consolidated Group of the proceeds from an Equity Issuance, the
Borrower shall immediately forward 100% of the Net Cash Proceeds of
such Equity Issuance to the Administrative Agent as a prepayment of
the Term Loans (to be applied as set forth in Section 3.3(c)).
(ii) Public Debt Issuances. Upon receipt by any member of the
Consolidated Group of the Net Cash Proceeds from a Public Debt
Issuance, the Borrower shall immediately forward 100% of the Net Cash
Proceeds of such Public Debt Issuance to the Administrative Agent as a
prepayment of the Term Loans (to be applied as set forth in Section
3.3(c)).
(c) Application of Prepayments. All amounts required to be paid
pursuant to this Section 3.3 shall be applied first to Base Rate Loans and
second to LIBOR Loans in direct order of Interest Period maturities. All
prepayments hereunder shall be subject to Section 3.14. Once repaid, Term
Loans may not be reborrowed.
3.4 FEES.
The Borrower agrees to pay to the Administrative Agent, for its own account
or for the pro rata benefit of the Lenders, as applicable, the fees set forth in
the Fee Letter.
3.5 PAYMENT IN FULL AT MATURITY; EXTENSION OF MATURITY.
Unless accelerated sooner pursuant to Section 9.2, the entire outstanding
principal balance of all Term Loans, together with accrued but unpaid interest
and fees and all other sums owing with respect thereto, shall be due and payable
in full on:
(a) the Initial Maturity Date; or
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(b) subject to satisfaction of all of the following conditions, the
Extended Maturity Date:
(i) the Borrower shall deliver written notice to the
Administrative Agent of such extension request at least 30 days but
not more than 60 days prior to the Initial Maturity Date;
(ii) no Default or Event of Default shall exist and be continuing
on either the date of such notice or on the Initial Maturity Date; and
(iii) on the Initial Maturity Date, the Borrower shall pay to the
Lenders (A) the Extension Fee (as defined in the Fee Letter), to be
shared pro rata among the Lenders in accordance with their respective
Commitment Percentages and (B) all unpaid interest and other fees
accrued to the Initial Maturity Date.
3.6 COMPUTATIONS OF INTEREST AND FEES.
(a) All computations of interest and fees hereunder shall be made on
the basis of the actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of borrowing (or
continuation or conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to conform
to and contract in strict compliance with applicable usury law from time to
time in effect. All agreements between the Lenders and the Credit Parties
are hereby limited by the provisions of this paragraph which shall override
and control all such agreements, whether now existing or hereafter arising
and whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of
any obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and such interest shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Term Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Term Loans and not to the payment of
interest, or refunded to the Credit Parties or the other payor thereof if
and to the extent such amount which would have been excessive exceeds such
unpaid principal amount of the Term Loans. The right to demand payment of
the Term Loans or any other indebtedness evidenced by any of the Credit
Documents does not include the right to receive any interest which has not
otherwise accrued on the date of such demand, and the Lenders do not intend
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to charge or receive any unearned interest in the event of such demand. All
interest paid or agreed to be paid to the Lenders with respect to the Term
Loans shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term (including
any renewal or extension) of the Term Loans so that the amount of interest
on account of such indebtedness does not exceed the maximum nonusurious
amount permitted by applicable law.
3.7 PRO RATA TREATMENT.
Except to the extent otherwise provided herein, the funding of the Term
Loans, each payment or prepayment of principal of any Term Loan, each payment of
fees, and each conversion or continuation of any Term Loan, shall (except as
otherwise provided in Section 3.11) be allocated pro rata among the Lenders in
accordance with the respective Commitment Percentages of such Lenders (or, if
the Term Loans have been made, in accordance with the respective principal
amounts of the outstanding Term Loans and Participation Interests of such
Lenders); provided that, if any Lender shall have failed to pay its applicable
pro rata share of any Term Loan, then any amount to which such Lender would
otherwise be entitled pursuant to this Section 3.7 shall instead be payable to
the Administrative Agent until the share of such Term Loan not funded by such
Lender has been repaid; provided further, that in the event any amount paid to
any Lender pursuant to this Section 3.7 is rescinded or must otherwise be
returned by the Administrative Agent, each Lender shall, upon the request of the
Administrative Agent, repay to the Administrative Agent the amount so paid to
such Lender, with interest for the period commencing on the date such payment is
returned by the Administrative Agent until the date the Administrative Agent
receives such repayment at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the Federal Funds Rate,
and thereafter, at the Base Rate plus three percent (3%) per annum.
3.8 SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Term Loan or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, in excess of its pro rata
share of such payment as provided for in this Credit Agreement, such Lender
shall promptly pay in cash or purchase from the other Lenders a participation in
such Term Loans and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by payment in cash or a
repurchase of a participation theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to
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each Lender whose payment shall have been rescinded or otherwise restored. The
Credit Parties agree that any Lender so purchasing such a participation may, to
the fullest extent permitted by law, exercise all rights of payment, including
setoff, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Term Loan or other obligation in
the amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender shall fail to remit to the Administrative Agent
or any other Lender an amount payable by such Lender to the Administrative Agent
or such other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest thereon for
each date from the date such amount is due until the date such amount is paid to
the Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
3.9 CAPITAL ADEQUACY.
If, after the date thereof, any Lender determines that the introduction of
any law, rule or regulation or other Requirement of Law regarding capital
adequacy or any change therein or in the interpretation thereof, or compliance
by such Lender (or its Lending Office) therewith, has or would have the effect
of reducing the rate of return on the capital or assets of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
3.10 INABILITY TO DETERMINE INTEREST RATE.
If the Administrative Agent determines (which determination shall be
conclusive and binding upon the Borrower) in connection with any request for a
LIBOR Loan or a conversion to or continuation thereof that (a) Dollar deposits
are not being offered to banks in the applicable offshore Dollar market for the
applicable amount and Interest Period of such LIBOR Loan, (b) adequate and
reasonable means do not exist for determining the LIBOR Rate for such LIBOR
Loan, or (c) the LIBOR Rate for such LIBOR Loan does not adequately and fairly
reflect the cost to the Lenders of funding such LIBOR Loan, the Administrative
Agent will promptly notify the Borrower and all the Lenders. Thereafter, the
obligation of the Lenders to make or maintain LIBOR Loans shall be suspended
until the Administrative Agent revokes such notice. Upon receipt of such notice,
the Borrower may revoke any pending Request for Funding of Term Loans or Notice
of Continuation/Conversion with respect to LIBOR Loans or, failing that, will be
deemed to have converted such request into a request for a borrowing of or
conversion into a Base Rate Loan in the amount specified therein.
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3.11 ILLEGALITY.
If any Lender determines that any Requirement of Law has made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund LIBOR Loans,
or materially restricts the authority of such Lender to purchase or sell, or to
take deposits of, Dollars in the applicable offshore Dollar market, or to
determine or charge interest rates based upon the LIBOR Rate, then, on notice
thereof by such Lender to the Borrower through the Administrative Agent, any
obligation of such Lender to make or continue LIBOR Loans or to convert Base
Rate Loans to LIBOR Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all LIBOR Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such LIBOR Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such LIBOR Loans. Upon any
such prepayment or conversion, the Borrower shall also pay interest on the
amount so prepaid or converted, together with any amounts due with respect
thereto pursuant to Section 3.14. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.12 REQUIREMENTS OF LAW.
If any Lender determines that as a result of the introduction of or any
change in, or in the interpretation of, any Requirement of Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining LIBOR Loans, or a reduction
in the amount received or receivable by such Lender in connection with any of
the foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which Section 3.13 shall govern) and (ii) reserve requirements utilized in the
determination of the LIBOR Rate), then from time to time, within 10 days of
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction in yield.
3.13 TAXES.
(a) Any and all payments by a Credit Party to or for the account of
the Administrative Agent or any Lender under any Credit Document shall be
made free and clear of and without deduction for any and all present or
future income, stamp or other taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities
with respect thereto, but excluding, in the case of the Administrative
Agent and each Lender, taxes imposed on or measured by its net income, and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
the Administrative Agent or such Lender, as the case may be, is organized
or maintains its Lending Office (all such non-
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excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred
to as "Taxes"). If a Credit Party shall be required by any Requirement of
Law to deduct any Taxes from or in respect of any sum payable under any
Credit Document to the Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section 3.13(a)), the Administrative Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Credit Party shall make such deductions,
(iii) such Credit Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
Requirements of Law, and (iv) within 30 days after the date of such
payment, such Credit Party shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, each Credit Party agrees to pay any and all present
or future stamp, court or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any payment
made under any Credit Document or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to,
any Credit Document (hereinafter referred to as "Other Taxes").
(c) If a Credit Party shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Credit Document
to the Administrative Agent or any Lender, such Credit Party shall also pay
to the Administrative Agent (for the account of such Lender) or to such
Lender, at the time interest is paid, such additional amount that such
Lender specifies as necessary to preserve the after-tax yield (after
factoring in all taxes, including taxes imposed on or measured by net
income) such Lender would have received if such Taxes or Other Taxes had
not been imposed.
(d) Each Credit Party agrees to indemnify the Administrative Agent and
each Lender for (i) the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 3.13(d)) paid by the Administrative Agent and
such Lender, (ii) amounts payable under Section 3.13(c) and (iii) any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, in each case whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority.
(e) Each Lender that is a "foreign corporation, partnership or trust"
within the meaning of the Code shall deliver to the Administrative Agent,
prior to receipt of any payment subject to withholding under the Code (or
after accepting an assignment of an interest herein), two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Lender and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to such Lender by
the Credit Parties pursuant to this Agreement) or IRS Form W-8ECI or any
successor thereto (relating to all payments to be made to such Lender by a
Credit Party pursuant to this
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Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Lender is entitled to an exemption from, or
reduction of, U.S. withholding tax. Thereafter and from time to time, each
such Lender shall (i) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect
of all payments to be made to such Lender by the Borrower pursuant to this
Agreement, (ii) promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction,
and (iii) take such steps as shall not be materially disadvantageous to it,
in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
Requirement of Law that the Credit Parties make any deduction or
withholding for taxes from amounts payable to such Lender. If such Lender
fails to deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Lender
an amount equivalent to the applicable withholding tax imposed by Sections
1441 and 1442 of the Code, without reduction. If any Governmental Authority
asserts that the Administrative Agent did not properly withhold any tax or
other amount from payments made in respect of such Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties
and interest, any taxes imposed by any jurisdiction on the amounts payable
to the Administrative Agent under this Section 3.13(e), and costs and
expenses (including Attorney Costs) of the Administrative Agent. The
obligation of the Lenders under this Section 3.13(e) shall survive the
payment of all Obligations and the resignation or replacement of the
Administrative Agent.
3.14 COMPENSATION.
Upon the written demand of any Lender, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any LIBOR
Loan on a day other than the last day of the Interest Period for such LIBOR
Loan (whether voluntary, mandatory, automatic, by reason of acceleration,
or otherwise); or
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a LIBOR Loan) to prepay, borrow, continue or convert
any LIBOR Loan on the date or in the amount previously requested by the
Borrower.
The amount each such Lender shall be compensated pursuant to this Section 3.14
shall include (a) any loss incurred by such Lender in connection with the
re-employment of funds prepaid, repaid, not borrowed or paid, as the case may
be, and the amount of such loss shall be the excess, if any, of (i) interest or
other cost to such Lender of the deposit or other source of funding used to
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make any such LIBOR Loan over (ii) the interest earned (or to be earned) by such
Lender upon the re-lending or other re-employment of the amount of such LIBOR
Loan for the remainder of its respective Interest Period plus (b) any other loss
of anticipated profits and any loss or expense arising from the liquidation or
re-employment of funds obtained by it to maintain such Term Loan or from fees
payable to terminate the deposits from which such funds were obtained plus (c)
$250 plus (d) any reasonable out-of-pocket expenses (including Attorney Costs)
incurred and reasonably attributable thereto.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.14, each Lender may deem that it funded each LIBOR Loan made by
it at the LIBOR Rate for such LIBOR Loan by a matching deposit or other
borrowing in the applicable offshore Dollar interbank market for a comparable
amount and for a comparable period, whether or not such LIBOR Loan was in fact
so funded.
3.15 DETERMINATION AND SURVIVAL OF PROVISIONS.
All determinations by the Administrative Agent or a Lender of amounts owing
under Sections 3.9 through 3.14, inclusive, shall, absent manifest error, be
conclusive and binding on the parties hereto. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and
attribution methods. Section 3.9 through 3.14, inclusive, shall survive the
termination of this Credit Agreement and the payment of all amounts owing
hereunder.
SECTION 4
GUARANTY
4.1 GUARANTY OF PAYMENT.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Lender, the prompt payment of the
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise). This Guaranty is a guaranty of
payment and not of collection and is a continuing guaranty and shall apply to
all Obligations whenever arising.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents or any other agreement or instrument referred to
therein, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor. Each Guarantor agrees
that this Guaranty may be enforced by the Lenders without the necessity at any
time of resorting to or exhausting any other security or collateral and without
the necessity at any time of having recourse to the Notes or any other of the
Credit Documents or any collateral, if any, hereafter securing the Obligations
or
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otherwise and each Guarantor hereby waives the right to require the Lenders to
proceed against the Borrower or any other Person (including a co-guarantor) or
to require the Lenders to pursue any other remedy or enforce any other right.
Each Guarantor further agrees that it shall have no right (a) of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other
Guarantor of the Obligations for amounts paid under this Guaranty or (b) to
payment of Indebtedness owing by any other Credit Party to such Guarantor until
such time as the Obligations have been paid in full, all Commitments under this
Credit Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under the Credit Documents. Each
Guarantor further agrees that nothing contained herein shall prevent the Lenders
from suing on the Notes or any of the other Credit Documents or foreclosing its
security interest in or Lien on any collateral, if any, securing the Obligations
or from exercising any other rights available to it under this Credit Agreement,
the Notes, any other of the Credit Documents, or any other instrument of
security, if any, and the exercise of any of the aforesaid rights and the
completion of any foreclosure proceedings shall not constitute a discharge of
any of any Guarantor's obligations hereunder; it being the purpose and intent of
each Guarantor that its obligations hereunder shall be absolute, independent and
unconditional under any and all circumstances. Neither any Guarantor's
obligations under this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of the
Borrower or by reason of the bankruptcy or insolvency of the Borrower. Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon this Guarantee or acceptance of this
Guarantee. The Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Guarantee. All dealings between the Borrower and
any of the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Guarantee. The Guarantors further agree
to all rights of set-off as set forth in Section 11.2.
4.3 MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the collateral, if any,
now or hereafter held for the Obligations, if any, may be exchanged, compromised
or surrendered from time to time; (b) the Lenders shall not have any obligation
to protect, perfect, secure or insure any such security interests, liens or
encumbrances now or hereafter held, if any, for the Obligations or the
properties subject thereto; (c) the time or place of payment of the Obligations
may be changed or extended, in whole or in part, to a time certain or otherwise,
and may be renewed or accelerated, in whole or in part; (d) the Borrower and any
other party liable for payment under the Credit Documents may be granted
indulgences generally; (e) any of the provisions of the Notes or any of the
other Credit Documents may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Borrower or any other party liable for the payment of the Obligations or liable
upon any security therefor may be released, in whole or in part, at, before or
after the stated, extended or accelerated maturity of the Obligations, all
without notice to or further assent by such
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Guarantor, which shall remain bound thereon, notwithstanding any such exchange,
compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
4.4 WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Obligations; (c) protest and
notice of dishonor or of default (except as specifically required in this Credit
Agreement) with respect to the Obligations or with respect to any security
therefor; (d) notice of the Lenders obtaining, amending, substituting for,
releasing, waiving or modifying any security interest, lien or encumbrance, if
any, hereafter securing the Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such security interests, liens or
encumbrances, if any; and (e) all other notices to which such Guarantor might
otherwise be entitled.
4.5 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
reasonable Attorney Costs) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
4.6 REMEDIES.
The Guarantors agree that, as between the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, the Obligations may
be declared to be forthwith due and payable as provided in Section 9 (and shall
be deemed to have become automatically due and payable in the circumstances
provided in Section 9) notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing such Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or such Obligations being deemed to have become
automatically due and payable), such Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors.
4.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein or in any of
the other Credit Documents:
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(a) to the extent the obligations of any Guarantor shall be
adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating
to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and including,
without limitation, the Bankruptcy Code); and
(b) with respect to any Guarantor that is a partnership, the
obligations of such Guarantor under this Section 4 shall (except as
identified below) only extend to and be binding upon such partnership
Guarantor and its assets, and, other than general partners that are a
member of the Consolidated Group, shall in no manner extend to or be
binding upon the individual general partners of such Guarantor, whether
natural or non-natural Persons.
4.8 RIGHTS OF CONTRIBUTION.
The Credit Parties agree among themselves that, in connection with payments
made hereunder, each Credit Party shall have contribution rights against the
other Credit Parties as permitted under applicable law. Such contribution rights
shall be subordinate and subject in right of payment to the obligations of the
Credit Parties under the Credit Documents and no Credit Party shall exercise
such rights of contribution until all Obligations have been paid in full and the
Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement is
subject to satisfaction of the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative Agent of
duly executed copies of this Credit Agreement, the Notes and all other
Credit Documents required to be delivered on or before the Effective Date,
each in form and substance reasonably acceptable to the Administrative
Agent in its sole discretion.
(b) Authority Documents.
(i) Partnership Documents. With respect to each Credit Party that
is a partnership, receipt by the Administrative Agent of the
following:
(A) Authorization. Authorization of the general partner(s)
of such Credit Party, as of the Closing Date, approving and
adopting the Credit Documents to be executed by such Credit
Party, the transactions contemplated herein and therein and the
execution, delivery and
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performance hereof and thereof, certified by such general
partner(s) or a secretary or assistant secretary of such general
partner(s) to be true, correct and complete as of the Effective
Date.
(B) Partnership Agreements. A copy of the partnership
agreement of such Credit Party, together with all amendments
thereto, certified by a general partner of such Credit Party or a
secretary or assistant secretary of the general partner(s) to be
true, correct and complete as of the Effective Date.
(C) Certificates of Good Standing or Existence. Certificates
of good standing, existence or their equivalent for such Credit
Party issued as of a recent date by the appropriate Governmental
Authorities of its jurisdiction of organization and each other
state where the failure to qualify or be in good standing would
have or would reasonably be expected to have a Material Adverse
Effect.
(D) Incumbency. An incumbency certificate of the general
partner(s) of such Credit Party, certified by a secretary or
assistant secretary of such general partner to be true and
correct as of the Effective Date.
(ii) Corporate Documents. With respect to each Credit Party that
is a corporation, receipt by the Administrative Agent of the
following:
(A) Charter Documents. Copies of the articles or certificate
of incorporation or other charter documents of such Credit Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a secretary or
assistant secretary of such Credit Party to be true and correct
as of the Effective Date.
(B) Bylaws. A copy of the bylaws of such Credit Party
certified by a secretary or assistant secretary of such Credit
Party to be true and correct as of the Effective Date.
(C) Resolutions. Copies of resolutions of the board of
directors of such Credit Party, approving and adopting the Credit
Documents to which it is a party, the transactions contemplated
herein and therein and authorizing the execution, delivery and
performance hereof and thereof, certified by a secretary or
assistant secretary of such Credit Party to be true and correct
and in full force and effect as of the Effective Date.
(D) Good Standing. (x) Certificates of good standing,
existence or their equivalent with respect to such Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of the state or other
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jurisdiction of incorporation and each other jurisdiction in
which the failure to so qualify and be in good standing could
have a Material Adverse Effect and (y) to the extent available, a
certificate indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate governmental
taxing authorities.
(E) Incumbency. An incumbency certificate of such Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Effective Date.
(iii) Limited Liability Company Documents. With respect to each
Credit Party that is a limited liability company, receipt by the
Administrative Agent of the following:
(A) Certificate of Formation. A copy of the certificate of
formation of such Credit Party certified to be true and complete
by the appropriate Governmental Authority of the jurisdiction of
its formation and certified by the sole or managing member of
such Credit Party to be true and correct as of the Effective
Date.
(B) LLC Agreement. A copy of the LLC Agreement of such
Credit Party certified by the sole or managing member of such
Credit Party to be true and correct as of the Effective Date.
(C) Resolutions. Copies of resolutions of the members or
managing members of such Credit Party, as the case may be,
approving and adopting the Credit Documents to which it is a
party, the transactions contemplated herein and therein and
authorizing the execution, delivery and performance hereof and
thereof, certified by the sole or managing member of such Credit
Party to be true and correct as of the Effective Date.
(D) Good Standing. Certificates of good standing, existence
or their equivalent with respect to such Credit Party certified
as of a recent date by the appropriate Governmental Authorities
of the state or other jurisdiction of formation and each other
jurisdiction in which the failure to so qualify and be in good
standing could have a Material Adverse Effect.
(iv) Trust Documents. With respect to each Credit Party that is a
REIT, receipt by the Administrative Agent of the following:
(A) Declaration of Trust. A copy of the Declaration of Trust
of such Credit Party certified to be true and complete by the
appropriate Governmental Authority of the jurisdiction of its
formation and certified by the trustee of such Credit Party to be
true and correct as of the Effective Date.
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(B) Bylaws. A copy of the Bylaws of such Credit Party
certified by the trustee of such Credit Party to be true and
complete as of the Effective Date.
(C) Resolutions. Copies of the resolutions of the trustee or
Board of Trustees of such Credit Party, as the case may be,
approving and adopting the Credit Documents to which it is a
party, the transactions contemplated herein and therein and
authorizing the execution, delivery and performance hereof and
thereof, certified by the trustee of such Credit Party to be
true, correct and complete as of the Effective Date.
(D) Good Standing. Certificates of good standing, existence
or their equivalent with respect to such Credit Party certified
as of a recent date by the appropriate Governmental Authorities
of the state or other jurisdiction of formation and each other
jurisdiction in which the failure to so qualify and be in good
standing could have a Material Adverse Effect.
(c) Opinion of Counsel. Receipt by the Administrative Agent of an
opinion or opinions of counsel to the Credit Parties (which shall cover,
among other things, authority, legality, validity, binding effect and
enforceability), in form and substance satisfactory to the Administrative
Agent, addressed to the Administrative Agent on behalf of the Lenders and
dated as of the Effective Date.
(d) Financial Statements and Projections. Receipt and approval by the
Lenders of: (i) the consolidated financial statements of the Consolidated
Group for each of the three years ended December 31, 1997, 1998 and 1999,
including balance sheets and income and cash flow statements, audited by
nationally recognized independent public accountants and containing an
unqualified opinion of such firm that such statements present fairly, in
all material respects, the consolidated financial position and results of
operations of such Person, and are prepared in conformity with GAAP, (ii)
interim consolidated financial statements of the Consolidated Group for the
six months ended June 30, 2000, including balance sheets and income and
cash flow statements, accompanied by a certificate of the chief financial
officer of the Borrower to the effect that such interim financial
statements fairly present in all material respects the financial condition
of the Consolidated Group and have been prepared in accordance with GAAP
and (iii) financial projections for the Combined Parties and pro forma
financial statements and pro forma compliance with the financial covenants
set forth in Section 7.2 of the Consolidated Group (on an annual basis
through the year ended December 31, 2002), including a balance sheet and
income and cash flow statements, giving effect to the Western Acquisition.
(e) Material Adverse Effect. There shall not have occurred any event
or condition since December 31, 1999 that has had or would reasonably be
expected to have a Material Adverse Effect.
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(f) Litigation. There shall not exist any pending or threatened
action, suit, investigation or proceeding against any member of the
Consolidated Group that would have or would reasonably be expected to have
a Material Adverse Effect.
(g) Officer's Certificates. The Administrative Agent shall have
received a certificate of the chief financial officer of the Borrower on
behalf of the Credit Parties as of the Effective Date stating that (i) each
member of the Consolidated Group is in compliance with all existing
material financial obligations and all terms and conditions set forth
herein, (ii) no action, suit, investigation or proceeding is pending or
threatened in any court or before any arbitrator or Governmental Authority
that purports to affect a member of the Consolidated Group or any
transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding would have or would reasonably be expected to
have a Material Adverse Effect, (iii) the financial statements and
information delivered pursuant to Section 5.1(d) were prepared in good
faith and using reasonable assumptions and (iv) immediately after giving
effect to this Credit Agreement, the other Credit Documents and all the
transactions contemplated herein and therein to occur on such date, (A)
each of the Credit Parties is Solvent, (B) no Default or Event of Default
exists, (C) all representations and warranties contained herein and in the
other Credit Documents are true and correct in all material respects, and
(D) the Credit Parties are in compliance on a pro forma basis with each of
the financial covenants set forth in Section 7.2 (after giving effect to
the Western Acquisition), together with evidence thereof.
(h) Fees and Expenses. Payment by the Credit Parties of all fees and
expenses owed by them to the Lenders and the Administrative Agent,
including, without limitation, payment to the Administrative Agent of the
fees set forth in the Fee Letter.
(i) Consents and Approvals. Except for consents from the mortgagees of
the Properties set forth on Schedule 6.5, all governmental, shareholder,
partner, member and third-party consents and approvals necessary or, in the
opinion of the Administrative Agent, desirable in connection with the Term
Loans and the transactions contemplated under the Credit Documents shall
have been duly obtained and shall be in full force and effect, including,
without limitation, consent to the assumption by a member of the
Consolidated Group of the Senior Notes and the Western Mortgage, and a copy
of each such consent or approval shall have been delivered to the
Administrative Agent upon request of the Administrative Agent.
(j) Due Diligence. Completion by the Lenders of all due diligence with
respect to (i) the Combined Parties, including, but not limited to, a
review of all existing Indebtedness of the Combined Parties, (ii) all
Properties and (iii) the Western Acquisition, in each case in scope and
content reasonably satisfactory to the Lenders.
(k) Existing Indebtedness. Receipt by the Administrative Agent of
satisfactory evidence of the repayment of all Indebtedness owing by Western
and its Subsidiaries prior to the Western Acquisition, other than the
Senior Notes and the Western Mortgage.
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SECTION 6
(l) Western Acquisition. The Borrower shall have certified and
delivered to the Administrative Agent a true, correct and complete copy of
all documentation evidencing the Western Acquisition (the "Merger
Agreement"). The Merger Agreement shall not have been altered, amended or
otherwise changed or supplemented in any material respect or any material
condition precedent therein waived, without the prior written consent of
the Administrative Agent. The Western Acquisition shall have been
consummated in all material respects in accordance with the terms of the
Merger Agreement and in compliance with applicable laws and regulatory
approvals, and all conditions precedent to the obligations of the Combined
Parties under the Merger Agreement shall have been satisfied or, with the
prior approval of the Administrative Agent, waived. All filings required by
the Merger Agreement shall have been made in accordance with applicable
law.
(m) Revolving Credit Agreement. The Revolving Credit Agreement shall
have been executed and delivered and shall have become effective, and the
revolving credit facility thereunder shall be available to the Borrower.
(n) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably and timely requested
by any Lender, including, but not limited to, information regarding
litigation, tax, accounting, labor, insurance, pension liabilities (actual
or contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Combined Parties.
5.2 CONDITIONS TO FUNDING OF TERM LOANS.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make the Term Loans unless:
(a) Delivery of Notice. The Borrower shall have delivered a Request
for Funding of Term Loans duly executed and completed, by the time
specified in Section 2.1.
(b) Representations and Warranties. The representations and warranties
made by any Credit Party in any Credit Document are true and correct in all
material respects at and as if made as of such date, except to the extent
they expressly relate to an earlier date.
(c) No Default. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto.
The delivery of a Request for Funding of Term Loans shall constitute a
representation and warranty by the Borrower of the correctness of the matters
specified in subsections (b) and (c) above.
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SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and each
Lender that:
6.1 ORGANIZATION AND GOOD STANDING.
Each Credit Party (a) is either a partnership, a corporation or a limited
liability company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) is duly qualified and in
good standing as a foreign organization and authorized to do business in every
other jurisdiction unless the failure to be so qualified, in good standing or
authorized would not have or would not reasonably be expected to have a Material
Adverse Effect and (c) has the power and authority to own its properties and to
carry on its business as now conducted and as currently proposed to be
conducted.
6.2 DUE AUTHORIZATION.
Each Credit Party (a) has the power and authority to execute, deliver and
perform this Credit Agreement and the other Credit Documents to which it is a
party and to incur the obligations herein and therein provided for and (b) has
duly taken all necessary action to authorize, and is duly authorized, to
execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party.
6.3 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered by each Credit Party and constitute legal, valid and
binding obligations of such Credit Party enforceable against such Credit Party
in accordance with their respective terms, except as may be limited by
bankruptcy or insolvency laws or similar laws affecting creditors' rights
generally or by general equitable principles.
6.4 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated herein and therein, nor the
performance of or compliance with the terms and provisions hereof and thereof by
a Credit Party will (a) violate, contravene or conflict with any provision of
its organizational documents, (b) violate, contravene or conflict with any
Requirement of Law (including, without limitation, Regulation U or Regulation
X), order, writ, judgment, injunction, decree, license or permit applicable to
it, (c) violate, contravene or conflict with contractual provisions of, or cause
an event of default under, any indenture, loan agreement, mortgage, deed of
trust, contract or other agreement or instrument to which it is a party or by
which it or its properties may be bound, or (d) result in or require the
creation of any Lien upon or with respect to its properties.
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6.5 CONSENTS.
Except for (a) consents, approvals and authorizations which have been
obtained and (b) consents from the mortgagees of the Properties set forth on
Schedule 6.5, no consent, approval, authorization or order of, or filing,
registration or qualification with, any Governmental Authority, equity owner or
third party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents, or the consummation of any transaction contemplated herein or
therein, including, without limitation, the Western Acquisition, by such Credit
Party.
6.6 FINANCIAL CONDITION.
The financial statements delivered to the Administrative Agent and the
Lenders pursuant to Section 5.1(d) and Sections 7.1(a) and (b): (a) have been
prepared in accordance with GAAP, (b) present fairly the consolidated financial
condition, results of operations and cash flows of the Consolidated Group as of
such date and for such periods and (c) show all material indebtedness and other
liabilities, direct or contingent, of the Consolidated Group. Since December 31,
1999, there has been no sale, transfer or other disposition by any member of the
Consolidated Group of any material part of the business or property of the
Consolidated Group, taken as a whole, and no purchase or other acquisition by
any of them of any business or property (including any Capital Stock of any
other Person) material in relation to the consolidated financial condition of
the Consolidated Group, taken as a whole, (other than the Western Acquisition)
in each case, which, is not (i) reflected in the most recent financial
statements delivered to the Lenders pursuant to Section 5.1(d) and Section 7.1
or in the notes thereto or (ii) otherwise permitted by the terms of this Credit
Agreement and communicated to the Administrative Agent and the Lenders.
6.7 NO MATERIAL CHANGE.
Since December 31, 1999, there has been no development or event relating to
or affecting a Combined Party which has had or would be reasonably expected to
have a Material Adverse Effect.
6.8 DISCLOSURE.
Neither this Credit Agreement, nor any financial statements delivered to
the Administrative Agent or the Lenders nor any other document, certificate or
statement furnished to the Administrative Agent or the Lenders by or on behalf
of any Credit Party in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein or herein not
misleading in light of the circumstances in which made.
6.9 NO DEFAULT.
No Combined Party is in default in any material respect under any material
contract, lease, loan agreement, indenture, mortgage, security agreement or
other agreement or obligation to which it is a party or by which any of its
properties is bound, other than any default occurring solely as a
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result of the consummation of the Western Acquisition under the mortgages, loan
documents or other agreements with each of the mortgagees of the Properties set
forth on Schedule 6.5. No Default or Event of Default has occurred and is
continuing or would result from the consummation of the transactions
contemplated by this Credit Agreement and the other Credit Documents.
6.10 LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against, a Combined Party or with respect to its properties or
revenues which (a) purport to affect or pertain to this Credit Agreement or the
other Credit Documents or the transactions contemplated herein and therein or
(b) would have or would reasonably be expected to have a Material Adverse
Effect.
6.11 TAXES.
Each member of the Consolidated Group has filed, or caused to be filed, all
tax returns (federal, state, local and foreign) required to be filed and has
paid (a) all amounts of taxes shown thereon to be due (including interest and
penalties) and (b) all other taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing by it, except for such taxes (i) which are not yet
delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. No Credit Party is aware of any proposed tax assessments
against it or any other member of the Consolidated Group.
6.12 COMPLIANCE WITH LAW.
Each Combined Party is in compliance with all Requirements of Law
(including, without limitation, but subject to Section 6.20, Environmental Laws)
and all material orders, writs, injunctions and decrees applicable to it, or to
its properties.
6.13 LICENSES, ETC.
The Combined Parties have obtained, and hold in full force and effect, all
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way, intellectual property rights and other
rights, consents and approvals which are necessary for the operation of their
respective businesses as presently conducted.
6.14 OWNERSHIP OF PROPERTIES.
The Combined Parties have good title in fee simple to all Properties.
6.15 INSURANCE.
The properties of the Consolidated Group are insured with financially sound
and reputable insurance companies that are not Affiliates of the Borrower, in
such amounts, with
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such deductibles and covering such risks, as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where the members of the Consolidated Group operate.
6.16 USE OF PROCEEDS.
The proceeds of the Term Loans hereunder will be used solely for the
purposes specified in Section 7.11. No proceeds of the Term Loans hereunder will
be used for the acquisition of another Person unless the board of directors (or
other comparable governing body) or stockholders (or other equity owners), as
appropriate, of such Person has approved such acquisition.
6.17 GOVERNMENT REGULATION.
(a) No proceeds of the Term Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock"
within the meaning of Regulation U, or for the purpose of purchasing or
carrying or trading in any securities. No Indebtedness being reduced or
retired out of the proceeds of the Term Loans was or will be incurred for
the purpose of purchasing or carrying any margin stock within the meaning
of Regulation U or any "margin security" within the meaning of Regulation
T. "Margin stock" within the meaning of Regulation U does not constitute
more than 25% of the value of the consolidated assets of the Consolidated
Group. None of the transactions contemplated by the Credit Documents
(including, without limitation, the direct or indirect use of the proceeds
of the Term Loans) will violate or result in a violation of (i) the
Securities Act, (ii) the Exchange Act or (iii) Regulations T, U or X.
(b) No member of the Consolidated Group is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act or
the Investment Company Act of 1940, each as amended. In addition, no member
of the Consolidated Group is (i) an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as
amended, and is not controlled by an "investment company", or (ii) a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary" of a "holding
company", within the meaning of the Public Utility Holding Company Act of
1935, as amended.
(c) No director, executive officer or principal shareholder of a
member of the Consolidated Group is a director, executive officer or
principal shareholder of any Lender. For the purposes hereof the terms
"director," "executive officer" and "principal shareholder" (when used with
reference to any Lender) have the respective meanings assigned thereto in
Regulation O issued by the Board of Governors of the Federal Reserve
System.
6.18 NO BURDENSOME RESTRICTIONS.
No Combined Party is a party to any agreement or instrument or subject to
any other
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obligation or any charter or corporate restriction or any provision of
any applicable law, rule or regulation which, individually or in the aggregate,
would have or would reasonably be expected to have a Material Adverse Effect.
6.19 COMPLIANCE WITH ERISA.
Except as would not result in or be reasonably expected to result in a
liability in excess of $500,000:
(a) (i) No ERISA Event has occurred, and, to the best knowledge of
each member of the Consolidated Group and each ERISA Affiliate, no event or
condition has occurred or exists as a result of which any ERISA Event could
reasonably be expected to occur, with respect to any Plan; (ii) no
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, has occurred with
respect to any Plan and no application for a funding waiver or an extension
of any amortization period pursuant to Section 412 of the Code has been
made with respect to any Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in material
compliance with the provisions of ERISA, the Code, and any other applicable
federal or state laws; (iv) each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently being
processed by the IRS with respect thereto and, to the best knowledge of the
Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification; and (v) no Lien in favor or the PBGC or a Plan has
arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the
date on which this representation is made or deemed made (determined, in
each case, in accordance with Financial Accounting Standards Board
Statement 87, utilizing the actuarial assumptions used in such Plan's most
recent actuarial valuation report), did not exceed as of such valuation
date the fair market value of the assets of such Plan allocated to such
accrued liabilities.
(c) No member of the Consolidated Group nor any ERISA Affiliate has
incurred, or, to the best of each such party's knowledge, is reasonably
expected to incur, any liability under Title IV of ERISA with respect to
any Single Employer Plan, or any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. No member of the Consolidated
Group nor any ERISA Affiliate would become subject to any withdrawal
liability under ERISA if any such party were to withdraw completely from
all Multiemployer Plans and Multiple Employer Plans as of the valuation
date most closely preceding the date on which this representation is made
or deemed made. No member of the Consolidated Group nor any ERISA Affiliate
has received any notification that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is insolvent
(within the meaning of Section 4245 of ERISA), or has been terminated
(within the meaning of Title IV of ERISA), and no Multiemployer Plan is, to
the best of each such
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Person's knowledge, reasonably expected to be in reorganization, insolvent,
or terminated. No member of the Consolidated Group nor any ERISA Affiliate
has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.
(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
has occurred with respect to a Plan which has subjected or may subject any
member of the Consolidated Group or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to which any
member of the Consolidated Group or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability. There are no
pending or, to the best knowledge of the Borrower, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect
to any Plan that could be reasonably expected to have a Material Adverse
Effect.
(e) No member of the Consolidated Group nor any ERISA Affiliate has
any material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan that is a welfare plan (as defined in Section 3(1)
of ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code
apply has been administered in compliance in all material respects with
such sections.
6.20 ENVIRONMENTAL MATTERS.
(a) Except as would not or would not reasonably be expected to result
in a liability in excess of $200,000:
(i) Each of the Properties and all operations at the Properties
are in material compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the
Properties or the businesses operated thereon by a Combined Party (the
"Businesses"), and there are no conditions relating to the Businesses
or Properties that would be reasonably expected to give rise to
liability under any applicable Environmental Laws.
(ii) No member of the Consolidated Group has received any written
notice of, or written inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability
or potential liability regarding Hazardous Materials or compliance
with Environmental Laws with regard to any of the Properties or the
Businesses, nor does any member of the Consolidated Group have
knowledge that any such notice is being threatened.
(iii) To the knowledge of the Consolidated Group, Hazardous
Materials have not been transported or disposed of from the
Properties, or generated, treated, stored or disposed of at, on or
under any of the Properties or any other location, in each case by, or
on behalf or with the permission of, any Combined
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Party in a manner that would reasonably be expected to give rise to
liability under any applicable Environmental Law.
(iv) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of any member of the
Consolidated Group, threatened, under any Environmental Law to which
any Combined Party is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to
any Combined Party, the Properties or the Businesses, in any amount
reportable under the federal Comprehensive Environmental Response,
Compensation and Liability Act or any analogous state law, except
releases in compliance with any Environmental Laws.
(v) To the knowledge of the Consolidated Group, there has been no
release or threat of release of Hazardous Materials at or from the
Properties, or arising from or related to the operations (including,
without limitation, disposal) of a Combined Party in connection with
the Properties or otherwise in connection with the Businesses except
in compliance with Environmental Laws.
(vi) None of the Properties contains, or to the best knowledge of
the Consolidated Group, has previously contained, any Hazardous
Materials at, on or under the Properties in amounts or concentrations
that, if released, constitute or constituted a violation of, or could
give rise to liability under, Environmental Laws.
(vii) No Combined Party has assumed any liability of any Person
under any Environmental Law.
(b) Each Combined Party has adopted procedures that are designed to
(i) ensure that each such Person, any of its operations and each of the
Properties owned by such Person remains in compliance with applicable
Environmental Laws and (ii) minimize any liabilities or potential
liabilities that each such Person, any of its operations and each of the
Properties owned by each such Person may have under applicable
Environmental Laws.
6.21 ORGANIZATION STRUCTURE/SUBSIDIARIES.
Set forth on Schedule 6.21 is a complete and accurate list of all
Subsidiaries of the Credit Parties and an accurate organization chart of the
Combined Parties. No Credit Party has any Subsidiaries or owns an interest,
directly or indirectly, in any Person or joint venture, except as set forth on
Schedule 6.21. Schedule 6.21 shall be updated from time to time by the Borrower
by giving written notice thereof to the Administrative Agent.
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6.22 PROPERTIES.
Set forth on Schedule 6.22 is (a) the name, location and ownership of each
Property, (b) the year such Property was built, (c) the total square footage and
net rentable square footage of such Property, (d) a complete rent roll for such
Property, including name, address and lease expiration date for each lessee and
percentage occupancy, (e) operating statements for such property for the fiscal
year ended December 31, 1999 and the six months ended June 30, 2000, (f)
projected NOI for the next two fiscal year ends for such Properties, (g) a list
of Liens on such Property, if any, including the mortgage balance and maturity
date and (h) an identification of all Unencumbered Properties. Schedule 6.22
shall be updated from time to time by the Borrower by giving written notice
thereof to the Administrative Agent.
6.23 SOLVENCY.
Each Credit Party, is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Term Loans, together with interest and fees
and other obligations then due and payable hereunder, have been paid in full and
the Commitments hereunder shall have terminated:
7.1 INFORMATION COVENANTS.
The Borrower will furnish, or cause to be furnished, to the Administrative
Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in any
event within 90 days after the close of each fiscal year of the
Consolidated Group, a consolidated balance sheet and income statement of
the Consolidated Group as of the end of such fiscal year, together with
related consolidated statements of operations and retained earnings and of
cash flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and audited
by independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent and whose opinion shall
be to the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants
concur) and shall not be limited as to the scope of the audit or qualified
in any manner.
(b) Quarterly Financial Statements. As soon as available, and in any
event within 45 days after the close of the first three fiscal quarters of
the Consolidated Group, (i) a consolidated balance sheet and income
statement of the Consolidated Group, as of the end
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of such fiscal quarter, together with related consolidated statements of
operations and retained earnings and of cash flows for such fiscal quarter
in each case setting forth in comparative form consolidated figures for the
corresponding period of the preceding fiscal year all such financial
information described above to be in reasonable form and detail and
reasonably acceptable to the Administrative Agent, and accompanied by a
certificate of the chief financial officer of the Borrower to the effect
that such quarterly financial statements fairly present in all material
respects the financial condition of the Consolidated Group and have been
prepared in accordance with GAAP, subject to changes resulting from audit
and normal year-end audit adjustments and (ii) a quarterly operating
statement for each Property.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above and within 45
days after the end of the fourth fiscal quarter of the Borrower, a
certificate of the chief financial officer of the Borrower, substantially
in the form of Exhibit 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.2 by calculation thereof as of
the end of each such fiscal period and demonstrating compliance with
Sections 8.6, 8.7 and 8.12, (ii) stating that no Default or Event of
Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Borrower
proposes to take with respect thereto and (iii) attaching an operating
statement for each Property for the most recent fiscal quarter.
(d) Annual Information and Projections. Within 60 days after the end
of each fiscal year of the Consolidated Group, projected financial
statements (including projected consolidated balance sheets and income and
cash flow projections) for the Consolidated Group on a GAAP basis for the
next succeeding two fiscal year periods.
(e) Auditor's Reports. Promptly upon receipt thereof, a copy of any
"management letter" submitted by independent accountants to any member of
the Consolidated Group in connection with any annual, interim or special
audit of the books of such member of the Consolidated Group.
(f) Reports. Promptly upon transmission or receipt thereof, (i) copies
of any filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies of
all financial statements, proxy statements, notices and reports as any
member of the Consolidated Group shall send to its equityholders generally,
(ii) copies of all income tax returns filed by a member of the Consolidated
Group as may be requested by the Administrative Agent and (iii) upon the
written request of the Administrative Agent, all reports and written
information to and from the United States Environmental Protection Agency,
or any state or local agency responsible for environmental matters, the
United States Occupational Health and Safety Administration, or any state
or local agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety matters.
(g) Notices. Upon a Credit Party obtaining knowledge thereof, such
Credit
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Party will give written notice to the Administrative Agent immediately of:
(i) the occurrence of an event or condition constituting a Default or Event
of Default, stating that such notice is a "notice of default" and
specifying the nature and existence thereof and what action the Credit
Parties propose to take with respect thereto, (ii) the adoption by any
member of the Consolidated Group of any material change in accounting or
financial reporting policies, (iii) any change in either Debt Rating of the
Borrower, and (iv) the occurrence of any of the following with respect to
any member of the Consolidated Group (A) the pendency or commencement of
any litigation, arbitral or governmental proceeding against any member of
the Consolidated Group which if adversely determined would have or would
reasonably be expected to have (1) damages in the amount of $200,000 or
more or (2) a Material Adverse Effect or (B) the institution of any
proceedings against any member of the Consolidated Group with respect to,
or the receipt of notice by such Person of potential liability or
responsibility for, violation or alleged violation of any federal, state or
local law, rule or regulation, including, but not limited to, Environmental
Laws.
(h) ERISA. Upon a member of the Consolidated Group or any ERISA
Affiliate obtaining knowledge thereof, such member of the Consolidated
Group or ERISA Affiliate will give written notice to the Administrative
Agent and each of the Lenders promptly (and in any event within five
Business Days) of: (i) any event or condition, including, but not limited
to, any Reportable Event, that constitutes, or might reasonably lead to, an
ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt of
notice as prescribed in ERISA or otherwise of any withdrawal liability
assessed against a member of the Consolidated Group or any ERISA Affiliate,
or of a determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA); (iii) the failure
to make full payment on or before the due date (including extensions)
thereof of all amounts which a member of the Consolidated Group or any
ERISA Affiliate is required to contribute to each Plan pursuant to its
terms and as required to meet the minimum funding standard set forth in
ERISA and the Code with respect thereto; or (iv) any change in the funding
status of any Plan that could have a Material Adverse Effect; in each case,
together with a description of any such event or condition or a copy of any
such notice and a statement by the chief financial officer of the Borrower
briefly setting forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being taken or is
proposed to be taken by such member of the Consolidated Group or such ERISA
Affiliate with respect thereto. Promptly upon request, the Credit Parties
shall furnish the Administrative Agent and the Lenders with such additional
information concerning any Plan as may be reasonably requested, including,
but not limited to, copies of each annual report/return (Form 5500 series),
as well as all schedules and attachments thereto required to be filed with
the Department of Labor and/or the Internal Revenue Service pursuant to
ERISA and the Code, respectively, for each "plan year" (within the meaning
of Section 3(39) of ERISA).
(i) Environmental.
(i) Subsequent to a notice from any Governmental Authority that
would reasonably cause concern or during the existence of an Event of
Default,
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and upon the written request of the Administrative Agent, the Credit
Parties will furnish or cause to be furnished to the Administrative
Agent, at the Credit Parties' expense, an updated report of an
environmental assessment of reasonable scope, form and depth,
including, where appropriate, invasive soil or groundwater sampling,
by a consultant reasonably acceptable to the Administrative Agent as
to the nature and extent of the presence of any Hazardous Materials on
any Property and as to the compliance by the Combined Parties with
Environmental Laws. If the Credit Parties fail to deliver such an
environmental report within seventy-five (75) days after receipt of
such written request then the Administrative Agent may arrange for
same, and the Credit Parties hereby grant, shall cause their
Subsidiaries to grant and shall use their best efforts to cause any
other Combined Parties to grant to the Administrative Agent and its
representatives access to the Properties and a license of a scope
reasonably necessary to undertake such an assessment (including, where
appropriate, invasive soil or groundwater sampling). The reasonable
cost of any assessment arranged for by the Administrative Agent
pursuant to this provision will be payable by the Credit Parties on
demand and added to the Obligations hereunder.
(ii) Each member of the Consolidated Group will conduct and
complete all investigations, studies, sampling, and testing and all
remedial, removal, and other actions necessary to address all
Hazardous Materials on, from, or affecting any Property to the extent
necessary to be in compliance with all Environmental Laws and all
other applicable federal, state, and local laws, regulations, rules
and policies and with the orders and directives of all Governmental
Authorities exercising jurisdiction over such Property to the extent
any failure to so comply would have or would reasonably be expected to
have a Material Adverse Effect.
(j) Other Information. With reasonable promptness upon any such
request, such other information regarding the Properties or regarding the
business, assets or financial condition of the Combined Parties as the
Administrative Agent or any Lender may reasonably request.
7.2 FINANCIAL COVENANTS.
(a) Consolidated Tangible Net Worth. Consolidated Tangible Net Worth
shall at all times be greater than or equal to the sum of (i) 85% of the
amount of consolidated owners' equity of the Consolidated Group, as
determined in accordance with GAAP, as of the date of consummation of the
Western Acquisition and after giving effect thereto plus (ii) 85% of the
Minority Interests of the Consolidated Group as of the date of consummation
of the Western Acquisition and after giving effect thereto plus (iii) 85%
of the Net Cash Proceeds from all Equity Issuances occurring on and after
the Closing Date.
(b) Fixed Charge Coverage Ratio. As of the last day of each fiscal
quarter of the Consolidated Group, the Fixed Charge Coverage Ratio shall be
greater than or equal to 2.0 to 1.0.
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(c) Leverage Ratio. Except as set forth below, the Leverage Ratio
shall at all times be less than or equal to 0.50 to 1.0.
Notwithstanding the above, if, as a direct result of the consummation by
any Credit Party of a Significant Acquisition, the Leverage Ratio exceeds
.50 to 1.0 but is less than or equal to .55 to 1.0, the Borrower may
request in writing to the Administrative Agent that the maximum Leverage
Ratio increase to .55 to 1.0 for a period not to exceed six months from
such request (the "Temporary Leverage Ratio Period"); provided that (a) the
Administrative Agent must consent to such increase in its sole discretion
(such consent not to be unreasonably withheld) and (b) if the Borrower does
request the increase in the maximum Leverage Ratio as set forth above, and
the Administrative Agent does so consent, (i) the Borrower must pay the
Margin Increase on all outstanding Term Loans during the Temporary Leverage
Ratio Period and (ii) during the Temporary Leverage Ratio Period, the
Leverage Ratio must at all times be less than or equal to .55 to 1.0.
(d) Unencumbered Debt Service Coverage Ratio. As of the last day of
each fiscal quarter of the Consolidated Group, the Unencumbered Debt
Service Coverage Ratio shall be greater than or equal to 2.0 to 1.0.
(e) Secured Debt Ratio. The Secured Debt Ratio shall at all times be
less than or equal to .35 to 1.0.
(f) Unsecured Debt Ratio. The Unsecured Debt Ratio shall at all times
be less than or equal to .50 to 1.0.
7.3 PRESERVATION OF EXISTENCE.
Each of the Credit Parties will, and will cause each member of the
Consolidated Group to, do all things necessary to preserve and keep in full
force and effect its existence, rights, franchises, intellectual property and
authority except as permitted by Section 8.4. Without limiting the generality of
the foregoing, the Borrower will do all things necessary to maintain its status
as a REIT.
7.4 MAINTENANCE OF ASSETS.
Each of the Credit Parties will, and will cause each member of the
Consolidated Group to, maintain and preserve its Properties and all other assets
in good repair, working order and condition, normal wear and tear excepted, and
will make, or cause to be made, in the Properties and other assets, from time to
time, all repairs, renewals, replacements, extensions, additions, betterments
and improvements thereto as may be needed or proper, in accordance with normal
industry practice.
7.5 INSURANCE.
Each of the Credit Parties will, and will cause each member of the
Consolidated Group to,
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at all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) with reputable national companies that are not
Affiliates of the Borrower, in such amounts, covering such risks and liabilities
and with such deductibles as are in accordance with normal industry practice.
7.6 PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will, and will cause each member of the
Consolidated Group to, perform in all material respects all of its obligations
under the terms of all material agreements, indentures, mortgages, security
agreements or other debt instruments to which it is a party or by which it or
its properties may be bound.
7.7 COMPLIANCE WITH LAW.
Each of the Credit Parties will, and will cause each member of the
Consolidated Group to, comply in all material respects with all Requirements of
Law, and all applicable material restrictions imposed by all Governmental
Authorities, applicable to it or its property (including, without limitation,
Environmental Laws and ERISA).
7.8 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will, and will cause each member of the
Consolidated Group to, pay, settle or discharge (a) all taxes, assessments and
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its properties, before they shall become delinquent, (b) all
lawful claims (including claims for labor, materials and supplies) which, if
unpaid, might give rise to a Lien upon any of its properties, and (c) except as
prohibited hereunder, all of its other Indebtedness as it shall become due;
provided, however, that such Credit Party or any member of the Consolidated
Group shall not be required to pay any such tax, assessment, charge, levy, claim
or Indebtedness which is being contested in good faith by appropriate
proceedings and as to which adequate reserves therefor have been established in
accordance with GAAP, unless the failure to make any such payment (i) would give
rise to an immediate right to foreclose on a Lien securing such amounts or (ii)
would have a Material Adverse Effect.
7.9 BOOKS AND RECORDS.
Each of the Credit Parties will, and will cause each member of the
Consolidated Group to, keep complete and accurate books and records of its
transactions in accordance with good accounting practices on the basis of GAAP
(including the establishment and maintenance of appropriate reserves).
7.10 AUDITS/INSPECTIONS.
(a)(i) At all times prior to an Event of Default, upon reasonable (and in
any case, no less than 48 hours') notice and during normal business hours and
(ii) at any time and without notice upon the occurrence and during the
continuation of an Event of Default, (b) subject to the rights of
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tenants upon such Property, and (c) at the expense of the Credit Parties, each
Credit Party will, will cause its Subsidiaries to, and will use its best efforts
to cause any other Combined Party to, permit representatives appointed by the
Administrative Agent, including, without limitation, independent accountants,
agents, attorneys and appraisers to visit and inspect such Credit Party's,
Subsidiary's or other Combined Party's property, including, without limitation,
the Properties, including its books and records, its accounts receivable and
equipment, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to it or to the Lenders, and to discuss all such matters with the officers,
employees and representatives of the Credit Parties, the members of the
Consolidated Group and any other Combined Party.
7.11 USE OF PROCEEDS.
The Borrower will use the proceeds of the Term Loans solely for (a) general
working capital in the ordinary course, (b) to fund acquisitions, development
and construction of, and improvements to, Properties, (c) refinancing existing
and future Indebtedness, including the repayment of Indebtedness in connection
with the Western Acquisition, and (d) for other lawful corporate purposes.
7.12 ADDITIONAL CREDIT PARTIES.
Prior to the joinder of a new guarantor under the Revolving Credit
Agreement, the Borrower shall notify the Administrative Agent and, if such
Person is not already a Credit Party, shall cause such Person to: (a) execute a
Joinder Agreement in substantially the form of Exhibit 7.12 and (b) deliver such
other documentation as the Administrative Agent may reasonably request in
connection with the foregoing, including, without limitation, certified
resolutions and other organizational and authorizing documents of such Person
and favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to above) in each case in form and substance acceptable
to the Administrative Agent.
7.13 CONSENTS; CURE OF DEFAULTS.
On or before 90 days after the Closing Date, the Borrower shall obtain the
consent of each of the mortgagees of the Properties set forth on Schedule 6.5
and take such other action as may be necessary to ensure that any default under
any mortgage, loan document or other agreement with such mortgagee as a result
of the consummation of the Western Acquisition and/or the failure to obtain such
consents prior to such consummation is cured and ceases to exist.
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SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Term Loans, together with interest, fees
and other obligations hereunder, have been paid in full and the Commitments
hereunder shall have terminated:
8.1 INDEBTEDNESS.
No Credit Party will, nor will it permit any member of the Consolidated
Group to, contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness arising under the Revolving Credit Agreement;
(c) Indebtedness owing from one Credit Party to another Credit Party;
(d) Indebtedness in respect of current accounts payable and accrued
expenses incurred in the ordinary course of business;
(e) Indebtedness that is secured by Properties but that is
non-recourse to any member of the Consolidated Group;
(f) the Senior Notes or other senior unsecured notes of the Borrower
issued as a Public Debt Issuance, as long as the proceeds thereof are
forwarded to the Administrative Agent as a mandatory prepayment in
accordance with Section 3.3(b)(ii); and
(g) that certain letter of credit, dated as of November 10, 2000, in
the stated amount of $3,476,800, issued to ▇▇▇▇ ▇▇▇▇, Inc. as beneficiary
by Sanwa Bank California for the account of the Borrower.
8.2 LIENS.
No Credit Party will, nor will it permit any Subsidiary to, contract,
create, incur, assume or permit to exist any Liens on any Properties or other
property or assets of such Person other than Liens permitted by the terms of the
Revolving Credit Agreement.
8.3 NATURE OF BUSINESS.
No Credit Party will, nor will it permit any member of the Consolidated
Group to, alter the character of its business from that of the investment in,
and leasing and operation of, retail commercial real estate.
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8.4 CONSOLIDATION AND MERGER.
Except as set forth below, no Credit Party will, nor will it permit any
member of the Consolidated Group to, enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution). Notwithstanding the foregoing, (a) any Credit Party
may be merged or consolidated with or into another Credit Party, (b) a Person
may be merged with or into a Credit Party or (c) any member of the Consolidated
Group that is not a Credit Party may merge with or into another Person that is
not a Credit Party; provided that (i) if the transaction is between the Borrower
and another Person, the Borrower shall be the continuing or surviving entity;
(ii) if that transaction is between a Credit Party and a Person that is not a
Credit Party, the Credit Party shall be the surviving entity; (iii) the
Administrative Agent shall be given 30 days prior written notice of any such
action; (iv) the Credit Parties shall execute and deliver such documents,
instruments, certificates and opinions in connection therewith as the
Administrative Agent may reasonably request; and (v) after giving effect
thereto, no Default or Event of Default shall exist.
8.5 SALE OR LEASE OF ASSETS.
No Property may be conveyed, sold, leased, transferred or otherwise
disposed of except if, after giving effect thereto, (i) the Credit Parties are
in compliance on a pro forma basis with the financial covenants set forth in
Section 7.2 and (ii) no Default or Event of Default exists. The Consolidated
Group will not sell, or agree to sell, all or substantially all of their assets.
8.6 INVESTMENTS.
During the term of this Credit Agreement, no Credit Party will, nor will it
permit any member of the Consolidated Group to, make Investments that exceed, in
the aggregate, 15% of Total Assets as calculated as of the end of the most
recent fiscal quarter.
8.7 RESTRICTED PAYMENTS.
(a) No Credit Party will, nor will it permit any member of the
Consolidated Group to, directly or indirectly, declare or pay any dividends
or make any other distribution upon any of its Capital Stock in any fiscal
quarter that exceed, in the aggregate, the lesser of (i) 100% of Funds From
Operations for such quarter and (ii) 95% of the average quarterly Funds
From Operations for the immediately preceding four fiscal quarters;
provided that (i) any Subsidiary of a Credit Party may pay dividends or
make distributions to its parent and (ii) the Borrower may pay such
dividends as is necessary to maintain its status as a REIT.
(b) Other than as may be necessary in connection with the conversion
of operating partnership units or operating limited liability company
units, as the case may be, of: (i) Pan Pacific (Portland), LLC, (ii) Pan
Pacific (Rancho Las Palmas), LLC, (iii) Pan Pacific (▇▇▇▇▇▇), L.P. or (iv)
Pan Pacific (Pinecreek), L.P., no Credit Party will, nor will it permit any
member of the Consolidated Group to, at any time purchase, redeem or
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otherwise acquire or retire or make any provisions for the redemption,
acquisition or retirement of any of its Capital Stock of any type or class
or any warrants or options to purchase any such Capital Stock.
8.8 TRANSACTIONS WITH AFFILIATES.
No Credit Party will, nor will it permit any member of the Consolidated
Group to, enter into any transaction or series of transactions, whether or not
in the ordinary course of business, with any officer, director, shareholder,
Subsidiary, Combined Party or Affiliate other than on terms and conditions
substantially as favorable as would be obtainable in a comparable arm's-length
transaction with a Person other than an officer, director, shareholder,
Subsidiary, Combined Party or Affiliate.
8.9 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will, nor will it permit any member of the Consolidated
Group to, (a) change its fiscal year or (b) change its organizational or
formation documents in any manner that would have an adverse effect on the
rights of the Lenders under the Credit Documents; provided that (i) the Borrower
may take such action, with prior written notice to the Administrative Agent, as
is necessary to maintain its status as a REIT and (ii) the Credit Parties will
provide prompt written notice of any change made in compliance with the terms of
this Section 8.9.
8.10 NO LIMITATIONS.
No Credit Party will, nor will it permit any member of the Consolidated
Group to, directly or indirectly, create or otherwise cause, incur, assume,
suffer or permit to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Person to (a)(i) pay
dividends or make any other distribution of any of such Person's Capital Stock,
(ii) pay any Indebtedness owed to the Borrower or any other Credit Party, (iii)
make loans or advances to any Credit Party or (iv) transfer any of its property
to any Credit Party, or (b) repay or prepay the Term Loans and other Obligations
or to perform its obligations hereunder and under the other Credit Documents.
8.11 OTHER NEGATIVE PLEDGES.
No Credit Party will, nor will it permit any member of the Consolidated
Group to, enter into, assume or become subject to any agreement prohibiting or
otherwise restricting the creation or assumption of any Lien upon its Properties
or assets, whether now owned or hereafter acquired, or requiring the grant of
any security for such obligation if security is given for some other obligation
except as provided under the Credit Documents.
8.12 CONSTRUCTION AND DEVELOPMENT.
No Credit Party will, nor will it permit any member of the Consolidated
Group to, at any time (a) commit to, commence or continue or (b) make an
Investment in any Combined Party
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that is committed to, commencing or continuing, construction of any improvements
on any undeveloped or partially developed Property or Properties, if the sum,
without duplication, of (i) with respect to clause (a) above, the aggregate cost
to date of all such construction, together with the aggregate estimated cost to
complete such construction, plus (ii) with respect to clause (b) above, the
aggregate Investments to date, together with the required or estimated future
Investments of members of the Consolidated Group in all such Combined Parties,
would exceed 10% of the Aggregate Adjusted Current Value. Furthermore, if the
limitation set forth in this Section 8.12 shall cause a Combined Party to cease
construction of or development on a Borrowing Base Development Property, such
Development Property shall be excluded from the Borrowing Base and the Borrower
shall provide the Administrative Agent with a Borrowing Base Certificate
reflecting such exclusion.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
(a) Payment. The Credit Parties shall default in the payment (i) when
due of any principal amount of any Term Loans or (ii) within five days of
when due of any interest, fees or other amounts owing hereunder, under any
of the other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was made or deemed to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.3, 7.7, 7.10, 7.11
or 8.1 through 8.12 inclusive; provided that if the Credit Parties
fail to comply with Section 7.2(c) solely as a result of a change in
the Applicable Cap Rate by the Lenders, a Default or an Event of
Default shall not exist unless the Credit Parties also fail to comply
with Section 7.2(c) as of the last day of any subsequent fiscal
quarter of the Consolidated Group;
(ii) default in the due performance or observance by it of any
term, covenant or agreement contained in Section 7.1 and such default
shall continue unremedied for a period of five Business Days after the
earlier of a Credit
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Party becoming aware of such default or notice thereof given by the
Administrative Agent; or
(iii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) or (ii) of this Section 9.1) contained
in this Credit Agreement and such default shall continue unremedied
for a period of at least 30 days after the earlier of a Credit Party
becoming aware of such default or notice thereof given by the
Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default in the
due performance or observance of any term, covenant or agreement in any of
the other Credit Documents and such default shall continue unremedied for a
period of at least 30 days after the earlier of a Credit Party becoming
aware of such default or notice thereof given by the Administrative Agent,
or (ii) any Credit Document (or any provision of any Credit Document,
including Section 4 of this Credit Agreement) shall fail to be in full
force and effect or any Credit Party shall so assert or any Credit Document
shall fail to give the Administrative Agent and/or the Lenders the security
interests, liens, rights, powers and privileges purported to be created
thereby.
(e) Bankruptcy, etc. The occurrence of any of the following with
respect to any member of the Consolidated Group (i) a court or governmental
agency having jurisdiction in the premises shall enter a decree or order
for relief in respect of any member of the Consolidated Group in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of any
member of the Consolidated Group or for any substantial part of its
property or ordering the winding up or liquidation of its affairs; or (ii)
an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect is commenced against any member of
the Consolidated Group and such petition remains unstayed and in effect for
a period of 60 consecutive days; or (iii) any member of the Consolidated
Group shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to
the entry of an order for relief in an involuntary case under any such law,
or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of such Person or any substantial part of its property or make any general
assignment for the benefit of creditors; (iv) any member of the
Consolidated Group shall admit in writing its inability to pay its debts
generally as they become due; or (v) any writ or warrant of attachment or
execution or similar process shall be issued or levied against all or any
material part of the property of any member of the Consolidated Group and
is not released, vacated or fully bonded within 30 days after its issue or
levy.
(f) Defaults under Other Agreements. With respect to any Indebtedness
(other than Indebtedness outstanding under this Credit Agreement) of any
member of the Consolidated Group: (i) such member of the Consolidated Group
shall (A) default in any
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payment (beyond the applicable grace period with respect thereto, if any)
with respect to any such Indebtedness, or (B) default (after giving effect
to any applicable grace period) in the observance or performance of any
term, covenant or agreement relating to such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or permit, the
holder or holders of such Indebtedness (or trustee or agent on behalf of
such holders) to cause (determined without regard to whether any notice or
lapse of time is required) any such Indebtedness to become due prior to its
stated maturity; or (ii) any such Indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment prior to the stated maturity thereof; or (iii) any such
Indebtedness shall mature and remain unpaid; provided that, notwithstanding
anything to the contrary in this subsection 9.1(f), a default under the
Indebtedness owed to each of the mortgagees of the Properties set forth on
Schedule 6.5 shall not be deemed an Event of Default hereunder if such
default (x) occurs solely as a result of the consummation of the Western
Acquisition and (y) ceases to exist on or before 90 days following the
Closing Date.
(g) Judgments. One or more judgments, orders, or decrees shall be
entered against any one or more members of the Consolidated Group (i)
involving a liability of $500,000 or more, in the aggregate (to the extent
not paid or covered by insurance provided by a carrier who has acknowledged
coverage) or (ii) that would have or would reasonably be expected to have a
Material Adverse Effect, and such judgments, orders or decrees (A) are the
subject of any enforcement proceeding commenced by any creditor or (B)
shall continue unsatisfied, undischarged and unstayed for a period ending
on the first to occur of (x) the last day on which such judgment, order or
decree becomes final and unappealable or (y) 45 days.
(h) ERISA Events. The occurrence of any of the following events or
conditions if such event or occurrence would, or would reasonably be likely
to, result in liability in excess of $500,000: (i) any "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA and Section
412 of the Code, whether or not waived, shall exist with respect to any
Plan, or any lien shall arise on the assets of a member of the Consolidated
Group or any ERISA Affiliate in favor of the PBGC or a Plan; (ii) an ERISA
Event shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (iii) an ERISA
Event shall occur with respect to a Multiemployer Plan or Multiple Employer
Plan, which is, in the reasonable opinion of the Administrative Agent,
likely to result in (A) the termination of such Plan for purposes of Title
IV of ERISA, or (B) a member of the Consolidated Group or any ERISA
Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such Plan; (iv)
any prohibited transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility shall occur
which may subject a member of the Consolidated Group or any ERISA Affiliate
to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other
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instrument pursuant to which a member of the Consolidated Group or any
ERISA Affiliate has agreed or is required to indemnify any Person against
any such liability; or (v) a member of the Consolidated Group or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of $500,000.
(i) Ownership. There shall occur a Change of Control.
(j) Management. ▇▇▇▇▇▇ ▇▇▇▇ is no longer President and Chief Executive
Officer of, or is no longer active in the business of, the Borrower.
(k) REIT Status. The Borrower does not maintain its REIT status or is
no longer deemed to be a REIT.
(l) Revolving Credit Agreement. (i) All Indebtedness of the Credit
Parties under the Revolving Credit Agreement is paid in full and the
commitments of the lenders thereunder terminated, (ii) either Facility
Availability or the Revolving Committed Amount (each as defined in the
Revolving Credit Agreement) is less than $100,000,000, (iii) the Borrowing
Base (as defined in the Revolving Credit Agreement) is less than the amount
of Unsecured Debt or (iv) an Event of Default (as defined in the Revolving
Credit Facility) shall occur.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required hereunder), the
Administrative Agent may, or, upon the request and direction of the Required
Lenders, shall, by written notice to the Borrower, take any of the following
actions without prejudice to the rights of the Administrative Agent or any
Lender to enforce its claims against the Borrower, except as otherwise
specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Term Loans. Declare the unpaid principal of and
any accrued interest in respect of all Term Loans and any and all other
Indebtedness or obligations of any and every kind owing by a Credit Party
to any of the Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Credit Parties.
(c) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents, including, without
limitation, all rights and remedies existing against a Guarantor, and all
rights of set-off.
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Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Term Loans, all accrued interest in respect thereof, all accrued and unpaid fees
and all other indebtedness or obligations owing to the Lenders hereunder shall
immediately become due and payable without the giving of any notice or other
action by the Administrative Agent or the Lenders, which notice or other action
is expressly waived by the Credit Parties.
Notwithstanding the delegation by the Lenders of certain enforcement powers to
the Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, upon the
occurrence and during the continuation of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including, without limitation, reasonable Attorney Costs) of the
Administrative Agent in connection with enforcing the rights of the Lenders
under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses, (including, without limitation, reasonable Attorney Costs) of
each of the Lenders in connection with enforcing its rights under the
Credit Documents;
FOURTH, to the payment of all accrued fees and interest payable to the
Lenders hereunder;
FIFTH, to the payment of the outstanding principal amount of the Term
Loans, pro rata as set forth below;
SIXTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding
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Term Loans owed to such Lender bears to the aggregate then outstanding Term
Loans) of amounts available to be applied pursuant to clauses "THIRD", "FOURTH,"
"FIFTH," and "SIXTH" above.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Credit Agreement and each other Credit Document and to exercise such powers
and perform such duties as are expressly delegated to it by the terms of this
Credit Agreement or any other Credit Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Credit Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary or trustee relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Credit Agreement or any other Credit Document or otherwise
exist against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other Credit
Documents with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
10.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this Credit
Agreement or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
10.3 EXCULPATORY PROVISIONS.
No Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Credit Agreement or
any other Credit Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Credit Party or any officer thereof, contained herein or in any other Credit
Document, 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, this Credit Agreement or any other Credit Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Credit Agreement or any other Credit
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Document, or for any failure of any Credit Party or any other party to any
Credit Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Credit Agreement or any other
Credit Document, or to inspect the properties, books or records of any Credit
Party or any Affiliate thereof.
10.4 RELIANCE ON COMMUNICATIONS.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, statement or other
document or conversation 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 counsel to any Credit
Party), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat each
Lender as the owner of its interests hereunder for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have
been delivered to the Administrative Agent in accordance with Section
11.3(b). The Administrative Agent shall be fully justified in failing or
refusing to take any action under any Credit Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Credit Agreement or any
other Credit Document in accordance with a request or consent of the
Required Lenders or all the Lenders, if required hereunder, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and participants, and their respective
successors and assigns. Where this Credit Agreement expressly permits or
prohibits an action unless the Required Lenders otherwise determine, the
Administrative Agent shall, and in all other instances, the Administrative
Agent may, but shall not be required to, initiate any solicitation for the
consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has signed this Credit Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the
Administrative Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender.
10.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or notice of
the
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occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower referring
to this Credit Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative Agent
shall take such action with respect to such Default or Event of Default as may
be reasonably directed by the Required Lenders in accordance with Section 9.2;
provided, however, that unless and until the Administrative Agent has received
any such direction, 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 advisable or in the best interest
of the Lenders.
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person or any other Lender and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Credit Parties and their respective
Affiliates, and all applicable bank or other regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Credit Agreement and to extend credit to the Borrower hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Agent-Related Person 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, appraisals and decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, 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 herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
10.7 INDEMNIFICATION.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent not
reimbursed by or on behalf of any Credit Party and without limiting the
obligation of any Credit Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
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incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Agent-Related Person's gross negligence or
willful misconduct; it being understood that no action taken in accordance with
the directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 10.7. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Credit Agreement, any other Credit Document, or any document contemplated
by or referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Credit Parties. The
undertaking in this Section 10.7 shall survive the termination of the
Commitments, the payment of all Obligations hereunder and the resignation or
replacement of the Administrative Agent.
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Credit Parties and their respective
Affiliates as though Bank of America were not the Administrative Agent hereunder
and without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Credit Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Credit Party
or such Affiliate) and that the Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Term Loans,
Bank of America shall have the same rights and powers under this Credit
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
10.9 SUCCESSOR AGENT.
The Administrative Agent may, and, at the request of the Required Lenders,
with good cause, shall, resign as Administrative Agent upon 30 days' notice to
the Lenders. If the Administrative Agent resigns under this Credit Agreement,
the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders which successor administrative agent (such
appointment, absent the existence of an Event of Default, to be subject to the
consent of the Borrower, which consent of the Borrower shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the
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retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 10 and Sections 11.5 and
11.10 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Credit Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. For the
purpose of removing the Administrative Agent pursuant to this Section 10.9, the
definition of Required Lenders shall mean solely those Lenders whose Credit
Exposure constitutes more than 66 2/3% of the Credit Exposure of all Lenders at
such time.
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall be deemed to have been duly given and shall be effective
(a) when delivered, (b) when electronic confirmation of a transmission via
telecopy (or other facsimile device) is received from such device by the sender
thereof, (c) the Business Day following the day on which the same has been
delivered prepaid (or on an invoice basis) to a reputable national overnight air
courier service, or (d) the third Business Day following the day on which the
same is sent by certified or registered mail, postage prepaid, in each case to
the respective parties at the address or telecopy numbers set forth on Schedule
11.1, or at such other address as such party may specify by written notice to
the other parties hereto.
11.2 RIGHT OF SET-OFF, AUTOMATIC DEBITS.
(a) In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default and the commencement of
remedies described in Section 9.2, each Lender is authorized at any time
and from time to time, without presentment, demand, protest or other notice
of any kind (all of which rights being hereby expressly waived), to set-off
and to appropriate and apply any and all deposits (general or special) and
any other indebtedness at any time held or owing by such Lender (including,
without limitation, branches, agencies or Affiliates of such Lender
wherever located) to or for the credit or the account of any Credit Party
against obligations and liabilities of such Credit Party to the Lenders
hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the
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Administrative Agent or the Lenders shall have made any demand hereunder
and although such obligations, liabilities or claims, or any of them, may
be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even
though such charge is made or entered on the books of such Lender
subsequent thereto. The Credit Parties hereby agree that any Person
purchasing a participation in the Term Loans and Commitments hereunder
pursuant to Sections 11.3(e) or 3.8 may exercise all rights of set-off with
respect to its participation interest as fully as if such Person were a
Lender hereunder.
(b) In addition to clause (a) above, with respect to any principal or
interest payment, fee, or any other cost or expense (including Attorney
Costs), due and payable to the Administrative Agent or the Lenders under
the Credit Documents, the Credit Parties hereby irrevocably authorize and
direct the Administrative Agent to debit any deposit account of the Credit
Parties with the Administrative Agent (as one of the Lenders) in an amount
such that the aggregate amount debited from all such deposit accounts does
not exceed such payment, fee, or other cost or expense. If there are
insufficient funds in such deposit accounts to cover the amount of the
payment, fee, other cost or expense then due, such debits will be reversed
(in whole or in part, in the Administrative Agent's sole discretion) and
such amount not debited shall be deemed to be unpaid. No such debit under
this Section 11.2(b) shall be deemed a set-off.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Credit Parties may
assign and transfer any of its interests (except as permitted by Section
8.4) without the prior written consent of the Lenders; and provided further
that the rights of each Lender to transfer, assign or grant participations
in its rights and/or obligations hereunder shall be limited as set forth
below in this Section 11.3.
(b) Assignments. Each Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of its Term
Loans, its Note and its Commitment); provided, however, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except (A) in the case of an assignment to another Lender,
(B) in the case of an assignment of all of a Lender's rights and
obligations under this Credit Agreement, or (C) with the consent of
the Administrative Agent and the Borrower, any such partial assignment
shall be in an amount at least equal to $10,000,000 (or, if less, the
remaining amount of the Commitment being assigned by such Lender) or
an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not
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varying, percentage of all of its rights and obligations under this
Credit Agreement and the Notes; and
(iv) the parties to such assignment shall execute and deliver to
the Administrative Agent for its acceptance an Assignment Agreement in
substantially the form of Exhibit 11.3, together with a processing fee
from the assignor of $3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations under this
Credit Agreement. Upon the consummation of any assignment pursuant to this
Section 11.3(b), the assignor, the Administrative Agent and the Borrower
shall make appropriate arrangements so that, if required, new Notes are
issued to the assignor and the assignee and cancelled Notes are returned to
the Borrower. If the assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to the
Borrower and the Administrative Agent certification as to exemption from
deduction or withholding of taxes in accordance with Section 3.13.
By executing and delivering an assignment agreement in accordance with this
Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the
other parties hereto as follows: (A) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby
free and clear of any adverse claim and the assignee warrants that it is an
Eligible Assignee; (B) except as set forth in clause (A) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement, any of
the other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit Agreement,
any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto or the financial condition of any
Credit Party or the performance or observance by any Credit Party of any of
its obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto; (C) such assigning Lender and such assignee each represents and
warrants that it is legally authorized to enter into such assignment
agreement; (D) such assignee confirms that it has received a copy of this
Credit Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such assignment agreement; (E) such assignee
will independently and without reliance upon the Administrative Agent, such
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Credit
Agreement and the other Credit Documents; (F) such assignee appoints and
authorizes the Administrative Agent to take such action on its behalf and
to exercise such powers under this Credit
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Agreement or any other Credit Document as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto; and (G) such assignee agrees
that it will perform in accordance with their terms all the obligations
which by the terms of this Credit Agreement and the other Credit Documents
are required to be performed by it as a Lender.
(c) Register. The Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Term Loans owing to each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Credit Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement executed
by the parties thereto, together with any Note subject to such assignment
and payment of the processing fee, the Administrative Agent shall, if such
Assignment Agreement has been completed and is in substantially the form of
Exhibit 11.3, (i) accept such Assignment Agreement, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(e) Participations. Each Lender may sell participations to one or more
Persons in all or a portion of its rights, obligations or rights and
obligations under this Credit Agreement (including all or a portion of its
Commitment and its Term Loans); provided, however, that (i) such Lender's
obligations under this Credit Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participant shall be entitled to
the benefit of the right of set-off contained in Section 11.2, (iv) the
Borrower shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement, and (v) such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Term Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Term Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Term Loans
or Notes, or releasing the Borrower or all or substantially all of the
Guarantors from their respective obligations under the Credit Documents).
(f) Nonrestricted Assignments. Notwithstanding any other provision set
forth in this Credit Agreement, any Lender may at any time assign and
pledge all or any portion of its Term Loans and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank. No such assignment
shall release the assigning Lender from its obligations
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hereunder.
(g) Information. Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender from
time to time to assignees and participants (including prospective assignees
and participants), subject, however, to the provisions of Section 11.16.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Credit Parties and the
Administrative Agent or any Lender shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket costs and
expenses of (i) the Agent Related Persons in connection with (A) the
negotiation, preparation, execution and delivery, syndication and administration
of this Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, special counsel to the Administrative
Agent) and (B) any amendment, waiver or consent relating hereto and thereto
including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure relating
to the performance by the Credit Parties under this Credit Agreement, and (ii)
the Agent Related Persons and the Lenders in connection with (A) enforcement of
the Credit Documents and the documents and instruments referred to therein,
including, without limitation, in connection with any such enforcement, the
reasonable Attorneys' Costs of the Administrative Agent and each of the Lenders
and (B) any bankruptcy or insolvency proceeding of any member of the
Consolidated Group, and (b) indemnify the Agent Related Persons and each Lender,
its officers, directors, employees, representatives, counsel and agents from and
hold each of them harmless against any and all losses, liabilities, claims,
damages or expenses incurred by any of them as a result of, or arising out of,
or in any way related to, or by reason of, any investigation, litigation or
other proceeding (whether or not such Agent Related Person or any Lender is a
party thereto) related to (x) the entering into and/or performance of any Credit
Document or the use of proceeds of any Term Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated in
any Credit Document, including, without limitation, reasonable Attorneys' Costs
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by
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reason of gross negligence or willful misconduct on the part of the Person to be
indemnified), (y) any Environmental Claim and (z) any claims for Taxes (all of
the foregoing, collectively, "Indemnified Liabilities").
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders; provided that no such amendment,
change, waiver, discharge or termination shall, without the consent of each
Lender affected thereby:
(a) extend the final maturity of any Term Loan or any portion thereof
or postpone any other date fixed for any payment of principal, other than
pursuant to Section 3.5;
(b) reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default increase
in interest rates) or fees hereunder;
(c) reduce or waive the principal amount of any Term Loan;
(d) increase the Commitment of a Lender over the amount thereof in
effect (it being understood and agreed that a waiver of any Default or
Event of Default shall not constitute a change in the terms of any
Commitment of any Lender);
(e) consent to the transfer by the Borrower of or release the Borrower
from its obligations, or consent to the transfer by any Guarantor of or
release all or substantially all of the Guarantors from its or their
obligations, under the Credit Documents;
(f) amend, modify or waive any provision of this Section 11.6 or
Section 3.4, 3.7, 3.8, 5.2, 9.1(a), 11.2, 11.3 or 11.5; or
(g) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders.
No provision of Section 10 may be amended or modified without the consent of the
Administrative Agent. It is understood and agreed that each Lender shall be
given no less than five Business Days written notice of any request for an
amendment, waiver or consent under this Credit Agreement or any of the other
Credit Documents.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Term Loans, and
each Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersede the unanimous consent provisions set forth herein and
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(y) the Required Lenders may consent to allow a Credit Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Delivery of executed counterparts
by telecopy shall be as effective as an original and shall constitute a
representation that an original will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making and the repayment of the Term Loans and other Obligations and the
termination of the Commitments hereunder.
11.11 GOVERNING LAW.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA.
11.12 WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. Each Credit Party agrees not to
assert any claim against the Administrative Agent, any Lender, any of their
Affiliates, or any of their respective
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directors, officers, employees, attorneys or agents, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of or
otherwise relating to any of the transactions contemplated herein.
11.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 ENTIRETY.
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.15 BINDING EFFECT.
(a) This Credit Agreement shall become effective at such time as all
of the conditions set forth in Section 5.1 have been satisfied or waived by
the Lenders and it shall have been executed by the Credit Parties and the
Administrative Agent, and the Administrative Agent shall have received
copies hereof (by telecopy or otherwise) which, when taken together, bear
the signatures of each Lender, and thereafter this Credit Agreement shall
be binding upon and inure to the benefit of the Credit Parties, the
Administrative Agent and each Lender and their respective successors and
assigns.
(b) This Credit Agreement shall be a continuing agreement and shall
remain in full force and effect until all Term Loans, interest, fees and
other Obligations have been paid in full and all Commitments have been
terminated. Upon termination, the Credit Parties shall have no further
obligations (other than the indemnification provisions that survive) under
the Credit Documents; provided that should any payment, in whole or in
part, of the Obligations be rescinded or otherwise required to be restored
or returned by the Administrative Agent or any Lender, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, then the
Credit Documents shall automatically be reinstated and all amounts required
to be restored or returned and all costs and expenses incurred by the
Administrative Agent or Lender in connection therewith shall be deemed
included as part of the Obligations.
11.16 CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and
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other advisors (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
or required by any Governmental Authority; (c) to the extent required by
Requirements of Law or by any subpoena or similar legal process; (d) to any
other party to this Credit Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section 11.16, to (i) any
Eligible Assignee of or participant in, or any prospective Eligible Assignee of
or participant in, any of its rights or obligations under this Credit Agreement
or (ii) any direct or indirect contractual counterparty or prospective
counterparty (or such contractual counterparty's or prospective counterparty's
professional advisor) to any credit derivative transaction relating to
obligations of any Credit Party; (g) with the consent of the applicable Person;
(h) to the extent such Information (i) becomes publicly available other than as
a result of a breach of this Section 11.16 or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the applicable Person; or (i) to the National Association of
Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender's or
its Affiliates' investment portfolio in connection with ratings issued with
respect to such Lender or its Affiliates. For the purposes of this Section
11.16, "Information" means all information received from a Credit Party or any
Affiliate of a Credit Party relating to such Person or its business, other than
any such information that is available to the Administrative Agent or any Lender
on a nonconfidential basis prior to disclosure by such Person; provided that, in
the case of information received from such Person after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section 11.16 shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
11.17 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Administrative Agent, to
promptly take such actions as are necessary to carry out the intent of this
Credit Agreement and the other Credit Documents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER: PAN PACIFIC RETAIL PROPERTIES, INC.,
a Maryland corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
81
GUARANTOR: PAN PACIFIC DEVELOPMENT (TENNESSEE), L.P.,
a Delaware limited partnership
By: Pan Pacific Development
(Tennessee) Acquisition, Inc.,
its general partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
82
GUARANTOR: PAN PACIFIC (MARINA VILLAGE), LLC,
a Nevada limited liability company
By: Pan Pacific Retail Properties, Inc.,
its sole member
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
83
GUARANTOR: PAN PACIFIC (CABLE PARK), LLC,
a Nevada limited liability company
By: Pan Pacific Retail Properties, Inc.,
its sole member
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
84
GUARANTOR: GW NO. 100, a California general
partnership
By: Pan Pacific Retail Properties, Inc.,
its general partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
85
Signature Page to Term Credit Agreement
for Pan Pacific Retail Properties, Inc.
LENDERS:
BANK OF AMERICA, N.A.,
acting in its capacity as Administrative
Agent and individually as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
