EXHIBIT 10.27
TERM LOAN AGREEMENT
Dated as of December 22, 1998
by and among
FEDERAL REALTY INVESTMENT TRUST,
as Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 13.5.(d),
as Lenders,
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH
as Syndication Agent,
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent
and
FLEET NATIONAL BANK
as Documentation Agent
TABLE OF CONTENTS
Page
Article I Definitions.............................................................. 1
Section 1.1.................................................................... 1
Article II. Credit Facility......................................................... 19
Section 2.1 Term Loan......................................................... 19
Section 2.2 [Intentionally Omitted]........................................... 20
Section 2.3 [Intentionally Omitted]........................................... 20
Section 2.4 Rates and Payment of Interest on the Loan......................... 20
Section 2.5 Number of Interest Periods........................................ 21
Section 2.6 Repayment of the Loan............................................. 21
Section 2.7 Prepayments....................................................... 21
Section 2.8 Continuation...................................................... 21
Section 2.9 Conversion........................................................ 21
Section 2.10 Notes............................................................. 22
Article III. Payments, Fees and Other General Provisions............................ 22
Section 3.1 Payments.......................................................... 22
Section 3.2 Pro Rata Treatment................................................ 23
Section 3.3 Sharing of Payments, Etc.......................................... 23
Section 3.4 Several Obligations............................................... 24
Section 3.5 Minimum Amounts................................................... 24
Section 3.6 Fees.............................................................. 24
Section 3.7 Computations...................................................... 25
Section 3.8 Usury............................................................. 25
Section 3.9 Agreement Regarding Interest and Charges.......................... 25
Section 3.10 Statements of Account............................................. 25
Section 3.11 Defaulting Lenders................................................ 25
Section 3.12 Taxes............................................................. 26
Article IV. Unencumbered Pool Properties........................................... 28
Section 4.1 Acceptance of Unencumbered Pool Properties........................ 28
Section 4.2 Termination of Designation as Unencumbered Pool Property.......... 29
Section 4.3 Additional Requirements of Unencumbered Pool Properties........... 30
Section 4.4 Acceptance and Termination under Revolving Credit Agreement....... 30
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Article V. Yield Protection, Etc................................................. 30
Section 5.1 Additional Costs; Capital Adequacy................................ 30
Section 5.2 Suspension of the LIBOR Loan...................................... 31
Section 5.3 Illegality........................................................ 32
Section 5.4 Compensation...................................................... 32
Section 5.5 Treatment of Affected Loans....................................... 32
Section 5.6 Change of Lending Office.......................................... 33
Section 5.7 Assumptions Concerning Funding of LIBOR Loan...................... 33
Article VI. Conditions Precedent.................................................. 33
Section 6.1 Initial Conditions Precedent...................................... 33
Section 6.2 Credit Events..................................................... 36
Article VII. Representations and Warranties........................................ 36
Section 7.1 Representations and Warranties.................................... 36
Section 7.2 Survival of Representations and Warranties, Etc................... 42
Article VIII. Affirmative Covenants................................................. 42
Section 8.1 Preservation of Existence and Similar Matters..................... 42
Section 8.2 Compliance with Applicable Law and Material Contracts............. 43
Section 8.3 Maintenance of Property........................................... 43
Section 8.4 Conduct of Business............................................... 43
Section 8.5 Insurance......................................................... 43
Section 8.6 Payment of Taxes and Claims....................................... 44
Section 8.7 Visits and Inspections............................................ 44
Section 8.8 Use of Proceeds................................................... 44
Section 8.9 Environmental Matters............................................. 44
Section 8.10 Books and Records................................................. 45
Section 8.11 REIT Status....................................................... 45
Section 8.12 Further Assurances................................................ 45
Section 8.13 Additional Subsidiaries........................................... 45
Section 8.14 Exchange Listing.................................................. 45
Article IX. Information........................................................... 46
Section 9.1 Quarterly Financial Statements.................................... 46
Section 9.2 Year-End Statements............................................... 46
Section 9.3 Compliance Certificate............................................ 46
Section 9.4 Other Information................................................. 47
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Article X. Negative Covenants.................................................... 49
Section 10.1 Financial Covenants.............................................. 49
Section 10.2 Indebtedness..................................................... 51
Section 10.3 Derivatives Obligations.......................................... 51
Section 10.4 Permitted Investments............................................ 51
Section 10.5 Liens; Agreements Regarding Liens; Other Matters................. 52
Section 10.6 Restricted Payments.............................................. 53
Section 10.7 Merger, Consolidation and Sales of Assets........................ 54
Section 10.8 No Plan Assets................................................... 54
Section 10.9 Fiscal Year...................................................... 55
Section 10.10 Modifications to Material Contracts.............................. 55
Section 10.11 Transactions with Affiliates..................................... 55
Article XI. Default............................................................... 55
Section 11.1 Events of Default................................................ 55
Section 11.2 Remedies Upon Event of Default................................... 59
Section 11.3 [Intentionally Omitted].......................................... 59
Section 11.4 Allocation of Proceeds........................................... 59
Section 11.5 [Intentionally Omitted].......................................... 60
Section 11.6 Performance by Administrative Agent.............................. 60
Section 11.8 Rights Cumulative................................................ 60
Section 11.9 Recision of Acceleration by Requisite Lenders.................... 61
Article XII. The Agents............................................................ 61
Section 12.1 Authorization and Action......................................... 61
Section 12.2 Administrative Agent's Reliance, Etc............................. 62
Section 12.3 Notice of Defaults............................................... 62
Section 12.4 PNC as Lender.................................................... 63
Section 12.5 Approvals of Lenders............................................. 63
Section 12.6 Lender Credit Decision, Etc...................................... 63
Section 12.7 Indemnification of the Administrative Agent...................... 64
Section 12.8 Successor Administrative Agent................................... 65
Section 12.9 Syndication and Documentation Agents............................. 65
Section 12.10 Approvals and Other Actions by Requisite Lenders................. 65
Article XIII. Miscellaneous......................................................... 66
Section 13.1 Notices.......................................................... 66
Section 13.2 Expenses......................................................... 67
Section 13.3 Setoff........................................................... 68
Section 13.4 Arbitration...................................................... 68
Section 13.5 Successors and Assigns........................................... 69
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Section 13.6 Amendments....................................................... 72
Section 13.7 Nonliability of Administrative Agent and Lenders................. 73
Section 13.8 Confidentiality.................................................. 73
Section 13.9 Indemnification.................................................. 73
Section 13.10 Termination; Survival........................................... 75
Section 13.11 Severability of Provisions...................................... 75
Section 13.12 GOVERNING LAW................................................... 75
Section 13.13 Counterparts.................................................... 76
Section 13.14 Obligations with Respect to Loan Parties........................ 76
Section 13.15 Limitation of Liability......................................... 76
Section 13.16 Entire Agreement................................................ 76
Section 13.17 Construction.................................................... 76
Section 13.18 Limitation of Liability of Trustees, Etc........................ 76
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SCHEDULES
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SCHEDULE 1.1.A Loan Parties
SCHEDULE 4.1. Unencumbered Pool Properties
SCHEDULE 7.1.(b) Ownership Structure
SCHEDULE 7.1.(f) Ownership of Properties; Liens
SCHEDULE 7.1.(g) Indebtedness
SCHEDULE 7.1.(h) Material Contracts
SCHEDULE 7.1.(p) Environmental Laws
SCHEDULE 10.3. Derivatives Obligations
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EXHIBITS
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EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Intentionally Omitted
EXHIBIT C Form of Guaranty
EXHIBIT D Intentionally Omitted
EXHIBIT E Form of Notice of Continuation
EXHIBIT F Form of Notice of Conversion
EXHIBIT G Intentionally Omitted
EXHIBIT H Intentionally Omitted
EXHIBIT I Intentionally Omitted
EXHIBIT J Form of Term Note
EXHIBIT K Intentionally Omitted
EXHIBIT L Intentionally Omitted
EXHIBIT M-1 Form of Opinion of Counsel to the Loan Parties
EXHIBIT M-2 Form of Opinion of Pennsylvania Counsel to the Loan Parties
EXHIBIT N Form of Compliance Certificate
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TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT dated as of December 22, 1998 by and among FEDERAL
REALTY INVESTMENT TRUST, an unincorporated business trust organized under the
laws of the District of Columbia (the "Borrower"), each of the financial
institutions initially a signatory hereto together with their assignees pursuant
to Section 13.5.(d), PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent
(the "Administrative Agent"), COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH,
as Syndication Agent (the "Syndication Agent"), and FLEET NATIONAL BANK, as
Documentation Agent.
WHEREAS, the Lenders desire to make available to the Borrower a
$125,000,000 term loan facility, on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE DEFINITIONS
SECTION 1.1 DEFINITIONS.
In addition to terms defined elsewhere herein, the following terms shall
have the following meanings for the purposes of this Agreement:
"ACCESSION AGREEMENT" means an Accession Agreement substantially in the
form of Annex I to the form of Guaranty attached to this Agreement as Exhibit C.
"ADDITIONAL COSTS" has the meaning given that term in Section 5.1.
"ADJUSTED EURODOLLAR RATE" means, with respect to each Interest Period,
when the Loan is a LIBOR Loan, the rate obtained by dividing (a) LIBOR for such
Interest Period by (b) a percentage equal to 1 minus the stated maximum rate
(stated as a decimal) of all reserves, if any, required to be maintained against
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the interest rate on
the LIBOR Loan is determined or any category of extensions of credit or other
assets which includes loans by an office of any Lender outside of the United
States of America to residents of the United States of America). The parties
acknowledge that as of the Agreement Date, the percentage referred to in the
preceding clause (b) is 0.0%.
"ADMINISTRATIVE AGENT" means PNC Bank, National Association, in its
capacity as contractual representative of the Lenders under the terms of this
Agreement, together with its successors.
"AFFILIATE" means any Person (other than the Administrative Agent or any
Lender): (a) directly or indirectly controlling, controlled by, or under common
control with, the Borrower;
(b) directly or indirectly owning or holding ten percent (10.0%) or more of any
equity interest in the Borrower; or (c) ten percent (10.0%) or more of whose
voting stock or other equity interest is directly or indirectly owned or held by
the Borrower. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with") means the possession directly or indirectly of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities or by contract or otherwise.
"AGENT" means any of the Administrative Agent, the Syndication Agent or the
Documentation Agent.
"AGREEMENT DATE" means the date as of which this Agreement is dated.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all Governmental Authority and all
orders and decrees of all courts, tribunals and arbitrators.
"APPLICABLE MARGIN" means the respective percentages per annum determined,
at any time, based on the range into which the Borrower's Credit Rating then
falls, in accordance with the table set forth below. Any change in the
Borrower's Credit Rating which would cause it to move to a different range in
the table shall effect a change in the Applicable Margin on the Business Day
immediately following the date on which such change occurs. Notwithstanding any
other provision contained in this definition, during any period in which the
Borrower has no Credit Rating from either S&P or ▇▇▇▇▇'▇, the Applicable Margin
shall be the percentage corresponding to Level 5 in the table. During any
period in which the Borrower shall only have one Credit Rating, the Applicable
Margin shall be based on such Credit Rating. During any period that the
Borrower receives two Credit Ratings and such Credit Ratings result in
Applicable Margins corresponding to different Levels in the table, the
Applicable Margin shall be determined by the higher of such two Credit Ratings
unless such Credit Ratings result in Applicable Margins corresponding to Levels
which are not adjacent in the table, in which case the Applicable Margin shall
be the average of the Applicable Margins determined by each of such two Credit
Ratings. During any period that the Borrower receives more than two Credit
Ratings and such Credit Ratings are not equivalent, the Applicable Margin shall
be determined by the two of such Credit Ratings which are equivalent and if none
of such Credit Ratings are equivalent, then the lowest of such Credit Ratings
shall be disregarded when determining the Applicable Margin.
LEVEL BORROWER'S CREDIT RATING Applicable Applicable
(S&P/▇▇▇▇▇'▇ or Margin for Margin for
equivalent) the LIBOR the Base Rate
Loan Loan
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1 A-/A3 or equivalent 0.55% 0.00%
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2 BBB+/Baa1 or equivalent 0.75% 0.00%
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3 BBB/Baa2 or equivalent 0.95% 0.00%
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4 BBB-/Baa3 or equivalent 1.075% 0.25%
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2
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5 Lower than BBB-/Baa3 or 1.25% 0.50%
equivalent
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As of the Agreement Date and until redetermined in accordance with the foregoing
definition, the Applicable Margin shall be as provided in Level 2 above.
"ASSIGNEE" has the meaning given that term in Section 13.5.(d).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Administrative Agent,
substantially in the form of Exhibit A.
"BASE RATE" means the per annum rate of interest equal to the greater of
(a) the Prime Rate or (b) the Federal Funds Rate plus one-half of one percent
(0.5%). Any change in the Base Rate resulting from a change in the Prime Rate or
the Federal Funds Rate shall become effective as of 12:01 a.m. on the Business
Day on which each such change occurs. The Base Rate is a reference rate used by
the Administrative Agent in determining interest rates on certain loans and is
not intended to be the lowest rate of interest charged by the Administrative
Agent or any Lender on any extension of credit to any debtor.
"BASE RATE LOAN" means the Loan when it is subject to a rate based on the
Base Rate.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BORROWER" has the meaning set forth in the introductory paragraph hereof
and shall include the Borrower's successors and assigns.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday or other day
on which banks in Washington, D.C., or Pittsburgh, Pennsylvania are authorized
or required to close and (b) with reference to any LIBOR Loan, any such day that
is also a day on which dealings in Dollar deposits are carried out in the London
interbank market.
"CAPITALIZATION RATE" means nine percent (9.00%).
"CAPITALIZED EBITDA" means, with respect to a Person and as of a given
date, (a)(i)(A) such Person's EBITDA for the fiscal quarter most recently ended
times (B) 4 minus (ii) Replacement Reserves determined for a 365 day period
----- -----
divided by (b) the Capitalization Rate.
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"CAPITAL LEASE" means a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATION" means Indebtedness represented by
obligations under a Capital Lease and the amount of such Indebtedness shall be
the capitalized amount of such
3
obligations determined in accordance with GAAP.
"CAPITALIZED LOAN RECEIVABLE INCOME" means (a) consolidated interest income
of the Borrower and its Subsidiaries earned on Loans Receivable for the fiscal
quarter most recently ended times (b) 4 divided by (c) 0.15.
----- ----------
"CAPITALIZED NOI" means, with respect to an Unencumbered Pool Property:
(a)(i)(A) the Net Operating Income of such Unencumbered Pool Property for the
fiscal quarter most recently ended times (B) 4 minus (ii) Replacement Reserves
----- -----
determined for a four-quarter period divided by (b) the Capitalization Rate.
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"CAPITAL STOCK" means any common stock, Preferred Stock, other capital
stock or other equity interest in a Person that is a corporation.
"CASH EQUIVALENTS" means: (a) securities issued, guaranteed or insured by
the United States of America or any of its agencies with maturities of not more
than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, which
has capital and unimpaired surplus in excess of $500,000,000 and which bank or
its holding company has a short-term commercial paper rating of at least A-2 or
the equivalent by S&P or at least P-2 or the equivalent by ▇▇▇▇▇'▇; (c) reverse
repurchase agreements with terms of not more than seven days from the date
acquired, for securities of the type described in clause (a) above and entered
into only with commercial banks having the qualifications described in clause
(b) above; (d) commercial paper issued by any Person incorporated under the laws
of the United States of America or any State thereof and rated at least A-2 or
the equivalent thereof by S&P or at least P-2 or the equivalent thereof by
▇▇▇▇▇'▇, in each case with maturities of not more than one year from the date
acquired; and (e) investments in money market funds registered under the
Investment Company Act of 1940, which have net assets of at least $500,000,000
and at least 85% of whose assets consist of securities and other obligations of
the type described in clauses (a) through (d) above.
"COMMITMENT" means, as to each Lender, such Lender's obligation to make
the Loan pursuant to Section 2.1. in an amount up to, but not exceeding the
amount set forth for such Lender on its signature page hereto as such Lender's
"Commitment Amount" or as set forth in the applicable Assignment and Acceptance
Agreement, or as appropriate to reflect any assignments to or by such Lender
effected in accordance with Section 13.5.
"COMMITMENT PERCENTAGE" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the sum of the
--
aggregate amount of the Commitments of all Lenders hereunder; provided, however,
that if at the time of determination the Commitments have terminated or been
reduced to zero, the "Commitment Percentage" of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.
"COMPLIANCE CERTIFICATE" has the meaning given such term in Section 9.3.
4
"CONSTRUCTION IN PROCESS" means, with respect to a Real Property Asset
which is Under Construction, the aggregate, good faith estimated cost of
construction (including land acquisition costs) for such Real Property Asset.
Construction in Process shall not include costs incurred for redevelopment of
any Real Property Asset which has an Occupancy Rate in excess of 70%.
"CONTINUE", "CONTINUATION" and "CONTINUED" each refers to the continuation
of the LIBOR Loan from one Interest Period to another Interest Period pursuant
to Section 2.8.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to the conversion of
the Loan from one Type into another Type pursuant to Section 2.9.
"CREDIT EVENT" means the Conversion or the Continuation of the Loan.
"CREDIT RATING" means the lowest rating assigned by a Rating Agency to each
series of rated senior unsecured long term indebtedness of the Borrower.
"DEFAULT" means any of the events specified in Section 11.1., whether or
not there has been satisfied any requirement for the giving of notice, the lapse
of time, or both.
"DEFAULTING LENDER" has the meaning set forth in Section 3.11.
"DERIVATIVES OBLIGATION" as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person: (a) under Interest
Rate Agreements or (b) under any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect that
Person against fluctuations in currency values.
"DEVELOPED PROPERTY" means a Real Property Asset that is owned or leased by
the Borrower or any of its Subsidiaries and on which is located a shopping
center, a retail store or a multi-family residential complex.
"DOCUMENTATION AGENT" means Fleet National Bank, in its capacity as
"Documentation Agent" hereunder and shall include the Documentation Agent's
successors and assigns.
"DOLLARS" or "$" means the lawful currency of the United States of America.
"EBITDA" means, with respect to a Person and for a given period, such
Person's net earnings (loss) for such period plus the sum of the following (to
the extent included in the calculation of net earnings (loss) and without
duplication): (a) depreciation and amortization expense for such period plus
----
(b) Interest Expense for such period plus (c) income tax expense paid or accrued
----
during such period plus (d) extraordinary losses, losses from sales of assets
----
and losses resulting from forgiveness by such Person of Indebtedness minus (e)
-----
extraordinary gains and gains from sales of assets for such period plus (f)
----
expenses associated with significant non-recurring events for such period minus
-----
(g) income associated with significant non-recurring events for such period plus
----
(h) to the extent not already included in the immediately preceding clauses (a)
through (g), such Person's pro rata share of EBITDA of each Unconsolidated
Affiliate of such Person (determined in a manner
5
consistent with this definition of EBITDA).
"EFFECTIVE DATE" means the later of: (a) the Agreement Date; and (b) the
date on which all of the conditions precedent set forth in Section 6.1. shall
have been fulfilled or waived in writing by the Administrative Agent.
"ELIGIBLE ASSIGNEE" means any Person who is: (i) currently a Lender; (ii) a
commercial bank, trust company, insurance company, savings and loan association,
investment bank or pension fund organized under the laws of the United States of
America, or any state thereof, and having total assets in excess of
$5,000,000,000; or (iii) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development ("OECD"), or a political subdivision of any such country, and having
total assets in excess of $10,000,000,000, provided that such bank is acting
through a branch or agency located in the United States of America. If such
Person is not currently a Lender, the senior unsecured long term indebtedness of
such Person or its ultimate corporate parent must be rated BBB+ or higher by
S&P, Baa1 or higher by ▇▇▇▇▇'▇, or the equivalent or higher of either such
rating by another Rating Agency acceptable to the Administrative Agent.
"ELIGIBLE PROPERTY" means a Real Property Asset which satisfies all of the
following requirements as reasonably determined by the Administrative Agent:
(a) such Real Property Asset is a Developed Property and is either (i) owned in
fee simple by the Borrower or a Subsidiary or (ii) leased to the Borrower or a
Subsidiary under a Capital Lease with a scheduled termination date later than
the Termination Date; (b) neither such Real Property Asset, nor any interest of
the Borrower or such Subsidiary therein, is subject to any Lien other than
Permitted Liens or to any agreement (other than this Agreement or any other Loan
Document) that prohibits the creation of any Lien thereon as security for
Indebtedness of the Borrower or such Subsidiary, as applicable; (c) neither such
Real Property Asset, nor any interest of the Borrower or such Subsidiary
therein, is subject to any provision of the articles of incorporation, bylaws,
declaration of trust, limited partnership agreement, limited liability company
agreement or other comparable document of the Borrower or such Subsidiary
(including without limitation, any provision requiring the consent of
shareholders, partners or other Persons holding any equity interest in the
Borrower or such Subsidiary, as applicable) which limits in any way the
Borrower's or such Subsidiary's ability (i) to create any Lien on such Real
Property Asset as security for Indebtedness of the Borrower or such Subsidiary,
as applicable or (ii) to sell, transfer or otherwise dispose of such Real
Property Asset; (d) if such Real Property Asset is owned or leased by a
Subsidiary, none of the Borrower's direct or indirect ownership interest in such
Subsidiary is subject to any Lien other than Permitted Liens or to any agreement
(other than this Agreement or any other Loan Document) that prohibits the
creation of any Lien thereon as security for Indebtedness; (e) such Real
Property Asset had an Occupancy Rate of greater than 70%; and (f) such Real
Property Asset is free of all structural defects, title defects, environmental
conditions or other adverse matters except for defects, conditions or matters
individually or collectively which are not material to the profitable operation
of such Real Property Asset.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the meaning
of Section 3(3) of ERISA which (a) is maintained for employees of the Borrower,
any of its
6
Subsidiaries or any of its other ERISA Affiliates or is assumed by the Borrower,
any of its Subsidiaries or any of its other ERISA Affiliates in connection with
any acquisition or other business combination or (b) has at any time been
maintained for the employees of the Borrower, any of its Subsidiaries or any
other current or former ERISA Affiliate.
"ENVIRONMENTAL LAWS" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
(S) 7401 et seq; Federal Water Pollution Control Act, 33 U.S.C. (S) 1251 et
seq.; Solid Waste Disposal Act, 42 U.S.C. (S) 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. (S) 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. (S) 4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"EQUITY ISSUANCE" means any issuance or sale by a Person of its capital
stock or other similar equity interest, or any warrants, options or similar
rights to acquire, or securities convertible into or exchangeable for, such
capital stock or other similar equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA GROUP" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EVENT OF DEFAULT" means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"EXEMPT SUBSIDIARY" has the meaning given that term in Section 10.7(a).
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded upward
to the nearest 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day, provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day, and
(b) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to the
Administrative Agent by federal funds dealers selected by the Administrative
Agent on such day on such transaction as determined by the Administrative Agent.
"FEES" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"FIXED CHARGES" means, with respect to a Person and for a given period, the
sum of (a) the
7
Interest Expense of such Person for such period, plus (b) the aggregate of all
scheduled principal payments on Indebtedness made by such Person during such
period (excluding balloon, bullet or similar payments of principal due upon the
stated maturity of Indebtedness), plus (c) the aggregate of all dividends paid
or accrued by such Person on any Preferred Stock during such period, plus (d)
the Replacement Reserves for such period.
"FOREIGN LENDER" means any Lender organized under the laws of a
jurisdiction other than the United States of America.
"FUNDS FROM OPERATIONS" means, with respect to any Person income before
depreciation and amortization of real estate assets and before extraordinary
items and significant non-recurring events and excluding gains and losses from
sales of real estate assets and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships
and joint ventures will be calculated to reflect Funds From Operations on the
same basis.
"GAAP" means accounting principles as promulgated from time to time in
statements, opinions and pronouncements by the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board and in such
statements, opinions and pronouncements of such other entities with respect to
financial accounting of for-profit entities as shall be accepted by a
substantial segment of the accounting profession in the United States.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"GROSS ASSET VALUE" means, at a given time, the sum of (a) the Capitalized
EBITDA of the Borrower and its Subsidiaries determined on a consolidated basis,
plus (b) all cash and cash equivalents of the Borrower and its Subsidiaries
----
determined on a consolidated basis at such time (excluding tenant deposits and
other cash and cash equivalents, the disposition of which by the Borrower or a
Subsidiary, as applicable, is restricted in any way (excluding restrictions in
the nature of early withdrawal penalties)), plus (c) with respect to any of Real
----
Property Assets which are under construction, the amount of construction in
process as determined in accordance with GAAP for such Real Property Assets at
such time (including without duplication the Borrower's or any Subsidiary's
proportionate share of all construction in process of Unconsolidated Affiliates
of the Borrower or such Subsidiary) plus (d) with respect to any Real Property
----
Asset acquired during the fiscal quarter most recently ending, the undepreciated
purchase price paid for such Real Property Asset less any amounts paid to the
Borrower or any Subsidiary as a purchase price adjustment, held in escrow,
retained as a contingency reserve, or other similar arrangements (including
without duplication the Borrower's or any Subsidiary's proportionate share of
undepreciated purchase price paid for such
8
Real Property Asset of Unconsolidated Affiliates of the Borrower or such
Subsidiary). In determining Gross Asset Value of the Borrower or any Subsidiary
for the fiscal quarter most recently ending, EBITDA attributable to any Real
Property Asset acquired or disposed of during such fiscal quarter shall be
disregarded when calculating Capitalized EBITDA pursuant to the preceding clause
(a).
"GUARANTEED" or to "GUARANTEE" as applied to any Person, means any direct
or indirect liability, contingent or otherwise, of that Person with respect to
any Indebtedness, lease, dividend or other obligation of another Person if the
primary purpose or intent of the Person incurring such liability, or the primary
effect thereof, is to provide assurance to the obligee of such liability that
such liability will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such liability will be
protected (in whole or in part) against loss with respect thereto. "Guaranteed"
or to "Guarantee" shall include (i) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
comaking, discounting with recourse or sale with recourse by such Person of the
obligation of another, (ii) the obligation to make take-or-pay or similar
payments if required regardless of nonperformance by any other party or parties
to an agreement, and (iii) any liability of such Person for the obligations of
another through any agreement to purchase, repurchase or otherwise acquire such
obligation or any property constituting security therefor, to provide funds for
the payment or discharge of such obligation or to maintain the solvency,
financial condition or any balance sheet item or level of income of another.
The amount of any Guarantee shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if not a fixed and determined amount, the
maximum amount so guaranteed or otherwise supported.
"HAZARDOUS MATERIALS" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; (d)
asbestos in any form; and (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"INDEBTEDNESS" means, with respect to a Person, at the time of computation
thereof, all of the following (without duplication): (a) obligations of such
Person in respect of money borrowed; (b) obligations of such Person (other than
trade debt incurred in the ordinary course of business), whether or not for
money borrowed (i) represented by notes payable, or drafts accepted, in each
case representing extensions of credit, (ii) evidenced by bonds, debentures,
notes or similar instruments, or (iii) constituting purchase money indebtedness,
conditional sales contracts, title retention debt instruments or other similar
instruments, upon which interest charges are customarily paid or that are issued
or assumed as full or partial payment for property; (c) Capitalized Lease
Obligations of such Person; (d) all reimbursement obligations of such Person
under any letters of credit or
9
acceptances (whether or not the same have been presented for payment); and (e)
all Indebtedness of other Persons which (i) such Person has Guaranteed or is
otherwise recourse to such Person or (ii) are secured by a Lien on any property
of such Person.
"INTELLECTUAL PROPERTY" has the meaning given that term in Section 7.1.(t).
"INTEREST EXPENSE" means, with respect to a Person and for any period, (a)
the total consolidated interest expense (including, without limitation,
capitalized interest expense and interest expense attributable to Capitalized
Lease Obligations) of such Person and in any event shall include all interest
expense with respect to any Indebtedness in respect of which such Person is
wholly or partially liable, plus (b) to the extent not included in the preceding
----
clause (a), such Person's proportionate share of all paid or accrued interest
expense for such period of Unconsolidated Affiliates of such Person.
"INTEREST PERIOD" means, at times when the Borrower shall elect that the
Loan shall be a LIBOR Loan, each period commencing on the last day of the next
preceding Interest Period for such Loan and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as the Borrower may select in a Notice of Continuation or Notice of
Conversion, as the case may be, except that each Interest Period that commences
on the last Business Day of a calendar month (or on any day for which there is
no numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period would otherwise end
after the Termination Date, such Interest Period shall end on the Termination
Date; (ii) each Interest Period that would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day; and (iii)
notwithstanding the immediately preceding clause (i), no Interest Period shall
have a duration of less than one month and, if the Interest Period would
otherwise be a shorter period, the Loan shall be a Base Rate Loan. The initial
Interest Period applicable to the Loan shall extend for one month from the
Effective Date.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar contractual
agreement or arrangement entered into with a nationally recognized financial
institution then having an Investment Grade Rating for the purpose of protecting
against fluctuations in interest rates.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended.
"INVESTMENT" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock or other equity interest,
evidence of Indebtedness or other security issued by any other Person; (b) any
loan, advance or extension of credit to, or contribution to the capital of, any
other Person; (c) any Guarantee of the Indebtedness of any other Person; (d) the
subordination of any claim against a Person to other Indebtedness of such
Person; and (e) any other investment in any other Person.
10
"INVESTMENT GRADE RATING" means a Credit Rating of BBB- or higher by S&P,
Baa3 or higher by ▇▇▇▇▇'▇, or the equivalent or higher of either such rating by
another Rating Agency.
"LENDER" means each financial institution from time to time party hereto as
a "Lender" together with its respective successors and assigns.
"LENDER'S SHARE OF LIBOR LOAN" means, for each Lender, the portion of a
LIBOR Loan owned by such Lender.
"LENDING OFFICE" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Administrative Agent in writing from time
to time.
"LIBOR" means, when the Loan is a LIBOR Loan, for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars for a period of comparable
duration to such Interest Period at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period. If for any reason
such rate is not available, the term "LIBOR" shall mean, for any LIBOR Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if more than
one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates.
"LIBOR LOAN" means the Loan when it is subject to a rate based on LIBOR.
"LIEN" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge, ground lease or lease constituting a Capitalized Lease Obligation,
conditional sale or other title retention agreement, or other security title or
encumbrance of any kind in respect of any property of such Person, or upon the
income or profits therefrom; (b) any arrangement, express or implied, under
which any property of such Person is transferred, sequestered or otherwise
identified for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person; (c) the filing of any financing
statement under the Uniform Commercial Code or its equivalent in any
jurisdiction and (d) any agreement by such Person to grant, give, or otherwise
convey any of the foregoing.
"LOAN" means the term loan made by the Lenders to the Borrower pursuant to
Section 2.1 on the Effective Date.
"LOAN DOCUMENT" means this Agreement, each Note, and each other document or
instrument now or hereafter executed and delivered by a Loan Party in connection
with, pursuant
11
to or relating to this Agreement.
"LOAN PARTY" means each of the Borrower, each other Person who Guarantees
all or a portion of the Obligations and/or who pledges any collateral security
to secure all or a portion of the Obligations. Schedule 1.1.(A) sets forth the
Loan Parties in addition to the Borrower as of the Agreement Date.
"LOANS RECEIVABLE" means promissory notes held by the Borrower or any
Subsidiary which promissory notes (i) are secured by a mortgage or other similar
Lien on real property and related improvements and (ii) are not subject to any
Lien.
"MATERIAL ADVERSE EFFECT" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower or any other Loan Party to perform its obligations
under any Loan Document to which it is a party, (c) the validity or
enforceability of any of the Loan Documents, (d) the rights and remedies of the
Lenders and the Administrative Agent under any of such Loan Documents or (e) the
timely payment of the principal of or interest on the Loan or other amounts
payable in connection therewith. All determinations of materiality shall be
made by the Requisite Lenders in their reasonable judgment unless expressly
provided otherwise and shall be subject to the arbitration provisions contained
in Section 13.4.
"MATERIAL CONTRACT" means any contract or other arrangement (other than the
Loan Documents), whether written or oral, to which the Borrower or any other
Loan Party is a party as to which the breach, nonperformance, cancellation or
failure to renew by any party thereto could reasonably be expected to have a
Material Adverse Effect.
"MATERIAL PLAN" means, at any time, a Plan or Plans having aggregate
Unfunded Liabilities in excess of $500,000.
"MATERIAL SUBSIDIARY" means any Subsidiary of the Borrower which (a) owns,
or otherwise has any interest in, any Unencumbered Pool Property or any other
property or asset which is taken into account when calculating Unencumbered
Asset Value; (b) has total assets greater than or equal to 10% of total assets
of the Borrower and its Subsidiaries determined on a consolidated basis
(calculated as of the fiscal quarter most recently ending) or (c) has net
earnings greater than or equal to 10% of the net earnings of the Borrower and
its Subsidiaries determined on a consolidated basis.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc.
"MORTGAGE" means a mortgage, deed of trust, deed to secure debt or similar
security instrument made or to be made by a Person owning an interest in real
property granting a Lien on such interest in real property as security for the
payment of Indebtedness.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making
12
or accruing an obligation to make contributions or has within the preceding five
plan years made contributions, including for these purposes any Person which
ceased to be a member of the ERISA Group during such five year period.
"NET OPERATING INCOME" means, for any Unencumbered Pool Property and for a
given period, the sum of the following (without duplication): (a) rents and
other revenues received in the ordinary course from such Unencumbered Pool
Property (including proceeds of rent loss insurance but excluding pre-paid rents
and revenues and security deposits except to the extent applied in satisfaction
of tenants' obligations for rent) minus (b) all expenses (other than interest)
-----
paid or accrued related to the ownership, operation or maintenance of such
Unencumbered Pool Property, including but not limited to taxes, assessments and
other similar charges, insurance, utilities, payroll costs, maintenance, repair
and landscaping expenses, marketing expenses, and general and administrative
expenses (including an appropriate allocation for legal, accounting,
advertising, marketing and other expenses incurred in connection with such
Unencumbered Pool Property, but specifically excluding general overhead expenses
of the Borrower and any property management fees).
"NET PROCEEDS" means, with respect to an Equity Issuance by a Person, the
aggregate amount of all cash received by such Person in respect of such Equity
Issuance net of investment banking fees, legal fees, accountants' fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred by such Person in connection with such Equity Issuance.
"NON-CONFORMING PROPERTY" has the meaning given that term in Section 4.2.
"NON-GUARANTOR SUBSIDIARY" means (a) Congressional Plaza Associates Joint
Venture, Street Retail Forest Hills I LLC, Street Retail West I L.P., Street
Retail West II L.P., FR Pike 7 Limited Partnership and FRIT San ▇▇▇▇ Town and
Country Village LLC and (b) any Subsidiary of the Borrower which becomes a
Material Subsidiary after the date hereof and which is prohibited from executing
a Guaranty or Accession Agreement, as applicable, pursuant to Sections
6.1.(a)(viii) and 8.13. herein, by (i) the terms of its articles of
incorporation, bylaws, declaration of trust, partnership agreement, operating
agreement or other comparable organizational document (and which terms have not
been waived in accordance with the terms of any such organizational document) or
(i) Applicable Law.
"NOTE" means a Term Note.
"NOTICE OF CONTINUATION" means a notice in the form of Exhibit E to be
delivered to the Administrative Agent pursuant to Section 2.8. evidencing the
Borrower's request for the Continuation of the Loan as a LIBOR Loan.
"NOTICE OF CONVERSION" means a notice in the form of Exhibit F to be
delivered to the Administrative Agent pursuant to Section 2.9. evidencing the
Borrower's request for the Conversion of the Loan from one Type to another Type.
"OBLIGATIONS" means, individually and collectively: (a) the aggregate
principal balance of,
13
and all accrued and unpaid interest on, all Loans; and (b) all other
indebtedness, liabilities, obligations, covenants and duties of the Borrower and
the other Loan Parties owing to the Administrative Agent or any Lender of every
kind, nature and description, under or in respect of this Agreement or any of
the other Loan Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"OCCUPANCY RATE" means, with respect to a Real Property Asset at such time,
the ratio, expressed as a percentage, of (a) the net rentable square footage of
such Real Property Asset actually occupied by tenants paying rent pursuant to
binding leases to (b) the aggregate net rentable square footage of such Real
Property Asset at such time.
"PARTICIPANT" has the meaning given that term in Section 13.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"PERMITTED LIENS" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 8.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workmen's compensation, unemployment insurance or similar Applicable Laws; (c)
Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property,
which do not materially detract from the value of such property or impair the
use thereof in the business of such Person; (d) Liens in existence as of the
Agreement Date and set forth in Schedule 7.1.(f); and (e) Liens in favor of the
Administrative Agent for the benefit of the Lenders.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PNC" means PNC Bank, National Association, and its successors and assigns.
"POST-DEFAULT RATE" means, in respect of the principal of the Loan or any
other Obligation
14
that is not paid when due (whether at stated maturity, by acceleration, by
optional or mandatory prepayment or otherwise), a rate per annum equal to four
percent (4.0%) plus the Base Rate as in effect from time to time.
"PREFERRED STOCK" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"PRIME RATE" means the rate of interest per annum announced publicly by the
Administrative Agent as its prime rate from time to time. The Prime Rate is not
necessarily the best or the lowest rate of interest offered by the
Administrative Agent or any Lender.
"PRINCIPAL OFFICE" means the office of the Administrative Agent located at
One PNC Plaza, 249 Fifth Avenue, Mail Stop, ▇▇-▇▇▇▇-▇▇-▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
2707, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Agency Services, or such other office of the
Administrative Agent as the Administrative Agent may designate from time to
time.
"QUARTERLY DATE" means the last Business Day of March, June, September and
December in each year, the first of which shall be December 31, 1998.
"RATING AGENCY" means S&P, ▇▇▇▇▇'▇ Duff & ▇▇▇▇▇▇/MCM, ▇▇▇▇▇ Investors
Service, Inc. or any other nationally recognized securities rating agency
selected by the Borrower and reasonably acceptable to the Administrative Agent.
"REAL PROPERTY ASSETS" means the real property assets currently owned in
whole or in part by the Borrower or any Subsidiary and listed on Schedule
7.1.(f), as such Schedule may be modified from time to time to reflect sales,
transfers, assignments, conveyances, development, acquisitions and purchases of
real property assets.
"REGISTER" has the meaning given that term in Section 13.5.(e).
"REGULATORY CHANGE" means, with respect to any Lender, any change effective
after the Agreement Date in Applicable Law (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) or the
adoption or making after such date of any interpretation, directive or request
applying to a class of banks, including such Lender, of or under any Applicable
Law (whether or not having the force of law and whether or not failure to comply
therewith would be unlawful) by any Governmental Authority or monetary authority
charged with the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy.
"REIT" means a Person qualifying for treatment as a "real estate investment
trust" under the Internal Revenue Code.
"REPLACEMENT RESERVES" means, for any period and with respect to any Real
Property
15
Asset, an amount equal to (a) $0.60 times, (b) a fraction, the numerator of
-----
which is the number of days of such period, and the denominator of which is 365
times the aggregate gross leasable square feet of such Real Property Asset. If
-----
the term Replacement Reserves is used without reference to any specific Real
Property Asset, then it shall be determined on an aggregate basis with respect
to all Real Property Assets and a proportionate share of all real property of
all Unconsolidated Affiliates.
"REQUISITE LENDERS" means, as of any date, Lenders holding at least 66-2/3%
of the Obligations,provided that, so long as there are at least four (4)
Lenders, the Requisite Lenders must consist of at least three (3) Lenders.
"RESTRICTED PAYMENT" means: (a) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock or other equity
interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class; (b) any redemption, conversion, exchange,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock or other equity
interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding; (c) any payment or prepayment of principal of, premium, if any, or
interest on, redemption, conversion, exchange, purchase, retirement, defeasance,
sinking fund or similar payment with respect to, any Subordinated Debt; and (d)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of stock of the
Borrower or any of its Subsidiaries now or hereafter outstanding.
"REVOLVING CREDIT AGREEMENT" means that certain Credit Agreement dated as
of December 19, 1997, by and among the Borrower, CoreStates Bank, N.A., as
Syndication Agent, First Union National Bank as Administrative Bank and
Arranger, ▇▇▇▇▇ Fargo Bank, National Association as Documentation Agent and Co-
Arranger and the other financial institutions signatory thereto, as such Credit
Agreement may be amended, modified, supplemented or restated from time to time.
"REVOLVING CREDIT COMMITMENTS" means the Commitments as defined in the
Revolving Credit Agreement, as such Commitments may be adjusted from time to
time.
"SECURED INDEBTEDNESS" means, with respect to any Person, any Indebtedness
of such Person that is secured in any manner by any Lien, and shall include
without duplication such Person's pro rata share of the Secured Indebtedness of
any of such Person's Unconsolidated Affiliates.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, together with all rules and regulations issued thereunder.
"SHAREHOLDER'S EQUITY" means, for a Person at any given time, such Person's
shareholder's equity determined on a consolidated basis in accordance with GAAP
plus, in the case of the Borrower, (i) the "minority interest" as reported on
----
the Borrower's most recent quarterly consolidated balance sheet as of the end of
such quarter and (ii) the amount by which
16
the Borrower's accumulated dividends in excess of its net income determined on a
consolidated basis exceeds $208,000,000.
"SOLVENT" means, when used with respect to any Person, that (a) the fair
value and the fair salable value of its assets (excluding any Indebtedness due
from any affiliate of such Person) are each in excess of the fair valuation of
its total liabilities (including all contingent liabilities); and (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature and (c) that the Person has capital not unreasonably small to carry
on its business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Group, a division of ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SUBORDINATED DEBT" means Indebtedness of the Borrower or any of its
Subsidiaries that is subordinated in right of payment and otherwise to the Loans
and the other Obligations in a manner satisfactory to the Administrative Agent
in its sole and absolute discretion.
"SUBSIDIARY" means, for any Person, any corporation, partnership or other
entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. "WHOLLY OWNED SUBSIDIARY" means any such
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are so owned or controlled.
"SYNDICATION AGENT" means Commerzbank Aktiengesellschaft, New York Branch,
in its capacity as "Syndication Agent" hereunder and shall include the
Syndication Agent's successors and assigns.
"TAXES" has the meaning given that term in Section 3.12.
"TERMINATION DATE" means December 19, 2002.
"TERM NOTE" has the meaning given that term in Section 2.10.(a).
"TOTAL LIABILITIES" means, as to any Person and as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on the consolidated balance sheet of such Person as at such date, and
in any event shall include (without duplication): (a) all Indebtedness of such
Person; (b) all accounts payable of such Person; (c) all accrued expenses of
such Person and (d) to the extent not already included in any of the preceding
clauses, such Person's proportionate share of the Total Liabilities of any
Unconsolidated Affiliate of such Person.
"TYPE" with respect to the Loan, refers to whether the Loan is a LIBOR
Loan, or a Base Rate Loan.
17
"UNCONSOLIDATED AFFILIATE" shall mean, with respect to any Person, any
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person.
"UNDER CONSTRUCTION" means, with respect to a Real Property Asset, that
construction of improvements has begun (as evidenced by foundation excavation)
on such Real Property Asset but has not yet been completed (as such completion
shall be evidenced by the issuance of a certificate of occupancy or its
equivalent after completion of all budgeted amenities).
"UNENCUMBERED POOL PROPERTIES" means those Eligible Properties that have
been approved pursuant to Article IV.
"UNENCUMBERED ASSET VALUE" means the sum of (a) the Capitalized NOI for
each Unencumbered Pool Property owned by the Borrower or a Subsidiary during the
fiscal quarter most recently ending, plus (b) the undepreciated purchase price
----
paid for any Unencumbered Pool Property acquired by the Borrower or a Subsidiary
during the fiscal quarter most recently ending (less any amounts paid to the
Borrower or any Subsidiary as a purchase price adjustment, held in escrow,
retained as a contingency reserve, or other similar arrangements), plus (c) the
----
Capitalized NOI for each Unencumbered Pool Property leased under a Capital Lease
by the Borrower or a Subsidiary during the fiscal quarter most recently ending,
plus (d) Capitalized Loan Receivable Income. For purposes of determining the
----
Unencumbered Asset Value, the following limitations shall apply: (i) if the
Capitalized NOI of an Unencumbered Pool Property exceeds 9.99% of the
Unencumbered Asset Value, such excess shall be excluded from Unencumbered Asset
Value; (ii) with respect to any Unencumbered Pool Property owned or leased by a
Subsidiary that is not a Wholly Owned Subsidiary, then (x) only the Borrower's
pro rata share (determined in proportion to the Borrower's ownership interest in
such Subsidiary) of the Capitalized NOI or undepreciated purchase price, as
applicable, of such Unencumbered Pool Property shall be included in Unencumbered
Asset Value, (y) not more than 15% of the total Unencumbered Asset Value shall
be attributable to Unencumbered Pool Properties owned or leased by Subsidiaries
that are not a Wholly Owned Subsidiary and (z) not more than 7.5% of the total
Unencumbered Asset Value shall be attributable to Unencumbered Pool Properties
owned or leased by Non-Guarantor Subsidiaries; (iii) not more than $300,000,000
of the total Unencumbered Asset Value shall be attributable to Unencumbered Pool
Properties of the type described in the immediately preceding clause (c) and
(iv) not more than 5% of the total Unencumbered Asset Value shall be
attributable to Capitalized Loan Receivable Income. For purposes of this
definition only and as long as the Borrower continues to own an equity interest
in each equal to at least the percentage amount set forth for each on Schedule
7.1.(b) as of the Agreement Date, each of the following shall be considered a
Wholly Owned Subsidiary: Governor Plaza Associates, Andorra Associates, Shopping
Center Associates , FR Pike 7 Limited Partnership, FRIT San ▇▇▇▇ Town and
Country Village LLC and ▇▇▇▇▇▇ Enterprises II, Limited Partnership.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis
18
using the assumptions prescribed by the PBGC for purposes of Section 4044 of
ERISA, exceeds (b) the fair market value of all Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"UNSECURED INDEBTEDNESS" means, with respect to a Person, all Indebtedness
of such Person that is not Secured Indebtedness.
"VARIABLE RATE DEBT" means all Indebtedness of Borrower and its
Subsidiaries which bears interest at fluctuating rates (and in any event shall
include all Loans and other Indebtedness of the Borrower under any of the Loan
Documents) and for which Borrower or such Subsidiary has not obtained Interest
Rate Agreements which effectively cause such variable rates to be equivalent to
fixed rates less than or equal to 9.0% per annum.
"Year 2000 Problem" has the meaning given that term in Section 7.1(y).
SECTION 1.2 GENERAL; REFERENCES TO TIMES.
Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with GAAP applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial statements of
the Borrower and its Subsidiaries delivered to the Lenders pursuant to the terms
of this Agreement. References in this Agreement to "Sections", "Articles",
"Exhibits" and "Schedules" are to sections, articles, exhibits and schedules
herein and hereto unless otherwise indicated. References in this Agreement to
any document, instrument or agreement (a) shall include all exhibits, schedules
and other attachments thereto, (b) shall include all documents, instruments or
agreements issued or executed in replacement thereof, to the extent permitted
hereby and (c) shall mean such document, instrument or agreement, or replacement
or predecessor thereto, as amended, supplemented, restated or otherwise modified
from time to time to the extent permitted hereby and in effect at any given
time. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Borrower or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Borrower. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless
otherwise indicated, all references to time are references to Pittsburgh,
Pennsylvania time.
ARTICLE II. CREDIT FACILITY
SECTION 2.1 TERM LOAN.
(a) Generally. Subject to the terms and conditions hereof, on the
---------
Effective Date, each Lender severally and not jointly agrees to make a portion
of the Loan to the Borrower in an
19
aggregate principal amount equal to the amount of such Lender's Commitment. The
Borrower may not reborrow any portion of the Loan which may have been repaid.
(b) [Intentionally Omitted].
(c) Disbursements of Loan Proceeds. No later than 3:00 p.m. on the
------------------------------
Effective Date, each Lender will make available for the account of its
applicable Lending Office to the Administrative Agent at the Principal Office,
in immediately available funds, the proceeds of the portion of the Loan to be
made by such Lender. Subject to satisfaction of the applicable conditions set
forth in Article VI. for such borrowing, the Administrative Agent will make the
proceeds of such borrowing available to the Borrower no later than 4:00 p.m. on
the Effective Date and at the account specified by the Borrower in a notice
delivered on the Effective Date.
SECTION 2.2 [INTENTIONALLY OMITTED].
SECTION 2.3 [INTENTIONALLY OMITTED].
SECTION 2.4 RATES AND PAYMENT OF INTEREST ON THE LOAN.
(a) Rates. The Borrower promises to pay to the Administrative Agent for
-----
the account of each Lender interest on the unpaid principal amount of the
portion of the Loan made by such Lender for the period from and including the
date of the making of the Loan to but excluding the date that the Loan shall be
paid in full, or, if earlier, at the end of the applicable Interest Period, at
the following per annum rates:
(i) during such periods as the Loan is a Base Rate Loan, , at the
Base Rate (as in effect from time to time) plus the Applicable Margin; and
(ii) during such periods as the Loan is a LIBOR Loan, at the Adjusted
Eurodollar Rate for the Interest Period therefor, plus the Applicable
Margin.
Notwithstanding the foregoing, during the continuance of an Event of Default the
Borrower hereby promises to pay to the Administrative Agent for account of each
Lender interest at the Post-Default Rate on the aggregate outstanding principal
of the portion of the Loan made by such Lender and on any other amount payable
by the Borrower hereunder or under the Note held by such Lender (including
without limitation, accrued but unpaid interest to the extent permitted under
Applicable Law).
(b) Payment of Interest. Accrued interest on the Loan shall be payable (i)
-------------------
when the Loan is a Base Rate Loan, monthly on the first Business Day of each
calendar month, (ii) when the Loan is a LIBOR Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, and (iii) when the Loan is a LIBOR Loan, upon the payment, prepayment or
Continuation thereof or the Conversion of the Loan to another Type. Interest
payable at the Post-Default Rate shall be payable from time to time on demand.
Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall give notice thereof to the
Lenders to
20
which such interest is payable and to the Borrower. All determinations by the
Administrative Agent of an interest rate hereunder shall be conclusive and
binding on the Lenders and the Borrower for all purposes, absent manifest error.
SECTION 2.5 NUMBER OF INTEREST PERIODS.
Except to the extent required to comply with Section 5.5., there may be no
more than one (1) Interest Period outstanding at any one time and the Loan shall
never be subject to more than one interest rate.
SECTION 2.6 REPAYMENT OF THE LOAN.
The Borrower shall repay the entire outstanding principal amount of, and
all accrued but unpaid interest on, the Loan on the Termination Date.
SECTION 2.7 PREPAYMENTS.
Subject to Section 5.4., the Borrower may prepay the Loan in whole or in
part at any time without premium or penalty.
SECTION 2.8 CONTINUATION.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, when the Loan is a LIBOR Loan,
elect to maintain the Loan as a LIBOR Loan by selecting a new Interest Period
for the Loan. Each new Interest Period selected under this Section shall
commence on the last day of the current Interest Period. Each selection of a
new Interest Period shall be made by the Borrower giving to the Administrative
Agent a Notice of Continuation not later than 12:00 noon on the third Business
Day prior to the date of any such Continuation. Such notice by the Borrower of
a Continuation shall be by telephone or telecopy, confirmed immediately in
writing if by telephone, in the form of a Notice of Continuation, specifying (a)
the proposed date of such Continuation, and (b) the duration of the selected
Interest Period, all of which shall be specified in such manner as is necessary
to comply with all limitations on the Loan outstanding hereunder. Each Notice
of Continuation shall be irrevocable by and binding on the Borrower once given.
Promptly after receipt of a Notice of Continuation, the Administrative Agent
shall notify each Lender by telex or telecopy, or other similar form of
transmission of the proposed Continuation. If the Borrower shall fail to select
in a timely manner a new Interest Period in accordance with this Section, the
Loan will automatically, on the last day of the current Interest Period
therefor, become a Base Rate Loan, notwithstanding failure of the Borrower to
comply with Section 2.9.
SECTION 2.9 CONVERSION.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Administrative Agent, Convert the Loan from one
Type into another Type. Any Conversion to a Base Rate Loan shall be made on,
and only on, the last day of an Interest Period. Each such Notice
21
of Conversion shall be given not later than 12:00 noon on the Business Day of
any proposed Conversion into a Base Rate Loan and not later than 12:00 noon on
the third Business Day prior to the date of any proposed Conversion into a LIBOR
Loan. Promptly after receipt of a Notice of Conversion, the Administrative Agent
shall notify each Lender by telecopy or other similar form of transmission of
the proposed Conversion. Subject to the restrictions specified above, each
Notice of Conversion shall be by telephone or telecopy confirmed immediately in
writing if by telephone, in the form of a Notice of Conversion specifying (a)
the requested date of such Conversion, (b) the Type into which the Loan is to be
Converted, (c) the Type of Loan that the Loan is to be Converted into and (e) if
such Conversion is into a LIBOR Loan, the requested duration of the Interest
Period. Each Notice of Conversion shall be irrevocable by and binding on the
Borrower once given.
SECTION 2.10 NOTES.
(a) Term Notes. The portion of the Loan made by each Lender shall, in
----------
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit J (each a "Term Note"), payable to
the order of such Lender in a principal amount equal to the amount of its
Commitment as originally in effect and otherwise duly completed.
(b) Records; Endorsement on Transfer. The date, amount, interest rate,
--------------------------------
Type and duration of Interest Periods (if applicable) of the portion of the Loan
made by each Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by such Lender on its books and such
entries shall be binding on the Borrower absent manifest error. The failure of
such Lender to make any such recordation shall not affect the obligations of the
Borrower to make a payment when due of any amount owing hereunder or under such
Note in respect of the portion of the Loan evidenced by such Note.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
SECTION 3.1 PAYMENTS.
Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement or
any other Loan Document shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Administrative Agent
at its Principal Office, not later than 2:00 p.m. on the date on which such
payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day). Prior
to making any such payment, the Borrower shall give the Administrative Agent
notice of such payment. Subject to Sections 3.2. and 3.3., the Administrative
Agent, or any Lender for whose account any such payment is made, may (but shall
not be obligated to) debit the amount of any such payment which is not made by
such time from any special or general deposit account of the Borrower with the
Administrative Agent or such Lender, as the case may be (with notice to the
Borrower, the other Lenders and the Administrative Agent). The Borrower shall,
at the time of making each payment under this Agreement or any Note, specify to
the Administrative Agent the amounts payable by the Borrower hereunder to which
such payment is to be applied. Each payment received by the Administrative
Agent for the account of a Lender under this Agreement or any Note shall be paid
to such Lender at the applicable Lending
22
Office of such Lender no later than 5:00 p.m. on the date of receipt. If the
Administrative Agent fails to pay such amount to a Lender as provided in the
previous sentence, the Administrative Agent shall pay interest on such amount
until paid at a rate per annum equal to the Federal Funds Rate from time to time
in effect. If the due date of any payment under this Agreement or any other Loan
Document would otherwise fall on a day which is not a Business Day such date
shall be extended to the next succeeding Business Day and interest shall be
payable for the period of such extension.
SECTION 3.2 PRO RATA TREATMENT.
Except to the extent otherwise provided herein: (a) each borrowing from the
Lenders under Section 2.1.(a) shall be made from the Lenders and, each payment
of the Fees under Section 3.6.(a), shall be made for account of the Lenders, and
shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts of their respective Commitments; (b) each payment or
prepayment of principal of the Loan by the Borrower shall be made for account of
the Lenders pro rata in accordance with the respective unpaid principal amounts
of the Loan held by them, provided that if immediately prior to giving effect to
any such payment in respect of the Loan the outstanding principal amount of the
Loan shall not be held by the Lenders pro rata in accordance with their
respective Commitments in effect at the time the Loan was made, then such
payment shall be applied to the Loan in such manner as shall result, as nearly
as is practicable, in the outstanding principal amount of the Loan being held by
the Lenders pro rata in accordance with their respective Commitments; (c) each
payment of interest on the Loan by the Borrower shall be made for account of the
Lenders pro rata in accordance with the amounts of interest on the Loan then due
and payable to the respective Lenders; and (d) the Conversion and Continuation
of the Loan of a particular Type (other than Conversions provided for by Section
5.5.) shall be made pro rata among the Lenders according to the amounts of their
respective portions of the Loan (in the case of Conversions and Continuations of
the Loan) and the then current Interest Period for each Lender's portion of the
Loan of such Type shall be coterminous.
SECTION 3.3 SHARING OF PAYMENTS, ETC.
The Borrower agrees that, in addition to (and without limitation of) any
right of set-off, banker's lien or counterclaim a Lender or the Administrative
Agent may otherwise have, each Lender and the Administrative Agent shall be
entitled, upon the occurrence and during the continuation of a Default or an
Event of Default, at its option but in the case of any Lender only with the
prior written consent of the Administrative Agent, to offset balances held by it
for the account of the Borrower at any of such Lender's (or the Administrative
Agent's) offices, in Dollars or in any other currency, against any principal of,
or interest on, any of such Lender's portion of the Loan hereunder (or other
Obligations owing to such Lender or the Administrative Agent hereunder) which is
not paid when due (regardless of whether such balances are then due to the
Borrower), in which case such Lender shall promptly notify the Borrower, all
other Lenders and the Administrative Agent thereof; provided, however, such
Lender's failure to give such notice shall not affect the validity of such
offset. If a Lender shall obtain payment of any principal of, or interest on,
the portion of the Loan made by it to the Borrower under this Agreement, or
shall obtain payment on any other Obligation owing by the Borrower through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise or through voluntary prepayments directly to a Lender or other
payments
23
made by the Borrower to a Lender not in accordance with the terms of this
Agreement and such payment should be distributed to the Lenders pro rata in
accordance with Section 3.2. or Section 11.4., as applicable, such Lender shall
promptly pay such amounts to the other Lenders and make such other adjustments
from time to time as shall be equitable, to the end that all the Lenders shall
share the benefit of such payment (net of any reasonable expenses which may be
incurred by such Lender in obtaining or preserving such benefit) pro rata in
accordance with Section 3.2. or Section 11.4. To such end, all the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
Nothing contained herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower.
SECTION 3.4 SEVERAL OBLIGATIONS.
No Lender shall be responsible for the failure of any other Lender to make
its portion of the Loan or to perform any other obligation to be made or
performed by such other Lender hereunder, and the failure of any Lender to make
its portion of the Loan or to perform any other obligation to be made or
performed by it hereunder shall not relieve the obligation of any other Lender
to make its portion of the Loan or to perform any other obligation to be made or
performed by such other Lender.
SECTION 3.5 MINIMUM AMOUNTS.
(a) Conversions and Continuations. Each Conversion and Continuation shall
-----------------------------
be applicable to the entire Loan.
(b) Prepayments. Each voluntary prepayment of the Loans shall be in an
-----------
aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof.
SECTION 3.6 FEES.
(a) Closing Fee. In consideration of the extension of the credit facility
-----------
established hereby, on the Agreement Date, the Borrower agrees to pay to the
Administrative Agent for the account of the Lenders a closing fee to each Lender
in an amount equal to (i) such Lender's Commitment times (ii) one-half of one
percent (0.5%).
(b) [Intentionally Omitted].
(c) [Intentionally Omitted].
(d) [Intentionally Omitted].
(e) Administrative and Other Fees. The Borrower agrees to pay the
-----------------------------
administrative fees of the Administrative Agent in the amounts agreed upon by
the Administrative Agent and the Borrower in writing from time to time.
24
SECTION 3.7 COMPUTATIONS.
Unless otherwise expressly set forth herein, any accrued interest on the
Loan, or other Obligations due hereunder shall be computed on the basis of a
year of 360 days and the actual number of days elapsed.
SECTION 3.8 USURY.
In no event shall the amount of interest due or payable on the Loan or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
SECTION 3.9 AGREEMENT REGARDING INTEREST AND CHARGES.
The parties hereto hereby agree and stipulate that the only charge imposed
upon the Borrower for the use of money in connection with this Agreement is and
shall be the interest specifically described in Section 2.4.(a)(i) and (ii).
Notwithstanding the foregoing, the parties hereto further agree and stipulate
that all agency fees, syndication fees, facility fees, letter of credit fees,
underwriting fees, default charges, funding or "breakage" charges, increased
cost charges, attorneys' fees and reimbursement for costs and expenses paid by
the Administrative Agent or any Lender to third parties or for damages incurred
by the Administrative Agent or any Lender, are charges made to compensate the
Administrative Agent or any such Lender for underwriting or administrative
services and costs or losses performed or incurred, and to be performed or
incurred, by the Administrative Agent and the Lenders in connection with this
Agreement and shall under no circumstances be deemed to be charges for the use
of money.
SECTION 3.10 STATEMENTS OF ACCOUNT.
The Administrative Agent will provide to the Borrower a monthly statement
of the Loan, accrued interest and Fees, charges and payments made pursuant to
this Agreement and the other Loan Documents, and such account rendered by the
Administrative Agent shall be deemed conclusive upon Borrower absent manifest
error. The failure of the Administrative Agent to deliver such a statement of
accounts shall not relieve or discharge the Borrower from any of its obligations
hereunder.
SECTION 3.11 DEFAULTING LENDERS.
(a) Generally. If for any reason any Lender (a "Defaulting Lender") shall
---------
fail or refuse to perform any of its obligations under this Agreement or any
other Loan Document to which it is a party within the time period specified for
performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of five Business Days after notice
from the Administrative Agent, then, in addition to the rights and remedies that
may be available to the
25
Administrative Agent or the Borrower under this Agreement or Applicable Law,
such Defaulting Lender's right to participate in the administration of the Loan,
this Agreement and the other Loan Documents, including without limitation, any
right to vote in respect of, to consent to or to direct any action or inaction
of the Administrative Agent or to be taken into account in the calculation of
the Requisite Lenders, shall be suspended during the pendency of such failure or
refusal. If a Lender is a Defaulting Lender because it has failed to make timely
payment to the Administrative Agent of any amount required to be paid to the
Administrative Agent hereunder (without giving effect to any notice or cure
periods), in addition to other rights and remedies which the Administrative
Agent or the Borrower may have under the immediately preceding provisions or
otherwise, the Administrative Agent shall be entitled (i) to collect interest
from such Defaulting Lender on such delinquent payment for the period from the
date on which the payment was due until the date on which the payment is made at
the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction
of the defaulted payment and any related interest, any amounts otherwise payable
to such Defaulting Lender under this Agreement or any other Loan Document until
such defaulted payment and related interest has been paid in full and such
default no longer exists and (iii) to bring an action or suit against such
Defaulting Lender in a court of competent jurisdiction to recover the defaulted
amount and any related interest. Any amounts received by the Administrative
Agent in respect of a Defaulting Lender's portion of the Loan shall not be paid
to such Defaulting Lender and shall be held uninvested by the Administrative
Agent and either applied against the purchase price of such portion of the Loan
under the following subsection (b) or paid to such Defaulting Lender upon the
default of such Defaulting Lender being cured.
(b) Purchase of Defaulting Lender's Commitment. Any Lender who is not a
------------------------------------------
Defaulting Lender shall have the right, but not the obligation, in its sole
discretion, to acquire all of a Defaulting Lender's Commitment. If more than
one Lender exercises such right, each such Lender shall have the right to
acquire such proportion of such Defaulting Lender's Commitment as they may
mutually agree. Upon any such purchase, the Defaulting Lender's interest in the
Loan and its rights hereunder (but not its liability in respect thereof or under
the Loan Documents or this Agreement to the extent the same relate to the period
prior to the effective date of the purchase) shall terminate on the date of
purchase, and the Defaulting Lender shall promptly execute all documents
reasonably requested to surrender and transfer such interest to the purchaser
thereof subject to and in accordance with the requirements set forth in Section
13.5.(d), including an appropriate Assignment and Acceptance Agreement. The
purchase price for the Commitment of a Defaulting Lender shall be equal to the
amount of the portion of the principal balance of the Loan outstanding and owed
by the Borrower to the Defaulting Lender. Prior to payment of such purchase
price to a Defaulting Lender, the Administrative Agent shall apply against such
purchase price any amounts retained by the Administrative Agent pursuant to the
last sentence of the immediately preceding subsection (a). The Defaulting
Lender shall be entitled to receive amounts owed to it by the Borrower under the
Loan Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by the Administrative Agent from or
on behalf of the Borrower. There shall be no recourse against any Lender or the
Administrative Agent for the payment of such sums except to the extent of the
receipt of payments from any other party or in respect of the Loan.
SECTION 3.12 TAXES.
26
(a) Taxes Generally. All payments by the Borrower of principal of, and
---------------
interest on, the Loan and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Administrative Agent or a Lender
and the jurisdiction imposing such taxes (other than a connection arising solely
by virtue of the activities of the Administrative Agent or such Lender pursuant
to or in respect of this Agreement or any other Loan Document), (iii) any
withholding taxes payable with respect to payments hereunder or under any other
Loan Document under Applicable Law in effect on the Agreement Date, (iv) any
taxes imposed on or measured by any Lender's assets, net income, gross receipts
or branch profits and (v) any taxes arising after the Agreement Date solely as a
result of or attributable to a Lender changing its designated Lending Office
after the date such Lender becomes a party hereto (such non-excluded items being
collectively called "Taxes"). If any withholding or deduction from any payment
to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any Applicable Law, then the Borrower will:
(A) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(B) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing
such payment to such Governmental Authority; and
(C) pay to the Administrative Agent for its account or the account of
the applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received by
the Administrative Agent or such Lender will equal the full amount that the
Administrative Agent or such Lender would have received had no such
withholding or deduction been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when due
-------------------
to the appropriate Governmental Authority or fails to remit to the
Administrative Agent, for its account or the account of the respective Lender,
as the case may be, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental Taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. For
purposes of this Section, a distribution hereunder by the Administrative Agent
or any Lender to or for the account of any Lender shall be deemed a payment by
the Borrower.
(c) Tax Forms. Prior to the date that any Lender or participant organized
---------
under the laws of a jurisdiction outside the United States of America becomes a
party hereto, such Person shall deliver to the Borrower and the Administrative
Agent such certificates, documents or other evidence, as required by the
Internal Revenue Code or Treasury Regulations issued pursuant thereto (including
Internal Revenue Service Forms 4224, 1001, W-8 or W-9, as applicable, or
appropriate successor forms), properly completed, currently effective and duly
executed by such Lender or participant
27
establishing that payments to it hereunder and under the Notes are (i) not
subject to United States Federal backup withholding tax or (ii) not subject to
United States Federal withholding tax under the Code because such payment is
either effectively connected with the conduct by such Lender or participant of a
trade or business in the United States or totally exempt from United States
Federal withholding tax by reason of the application of the provisions of a
treaty to which the United States is a party or such Lender is otherwise exempt.
ARTICLE IV. UNENCUMBERED POOL PROPERTIES
SECTION 4.1 ACCEPTANCE OF UNENCUMBERED POOL PROPERTIES.
(a) The Borrower has made available to each Lender such information, if
any, as such Lender has deemed necessary to evaluate the Real Property Assets
set forth on Schedule 4.1. for acceptance as an Unencumbered Pool Property.
Accordingly, the Lenders have accepted the Real Property Assets listed on
Schedule 4.1. as of the Agreement Date as Unencumbered Pool Properties. At any
time when the outstanding principal balance of the Loan shall exceed the
Revolving Credit Commitments, if the Borrower desires that the Lenders accept an
additional Real Property Asset as an Unencumbered Pool Property, the Borrower
shall so notify the Administrative Agent in writing and the Administrative Agent
shall promptly notify each of the Lenders. No Real Property Asset will be
evaluated by the Lenders unless it is an Eligible Property, and unless and until
the Borrower delivers to the Administrative Agent the following, in form and
substance satisfactory to the Administrative Agent:
(i) a description of such Real Property Asset, such description to
include the age, location and Occupancy Rate of such Real Property Asset;
(ii) an operating statement and a rent roll for such Real Property
Asset for the three prior fiscal years, for the current fiscal year through
the fiscal quarter most recently ending and for the current fiscal quarter,
certified by a representative of the Borrower to the best of such
representative's knowledge as being true and correct in all material
respects provided that, with respect to any period such Real Property Asset
was not owned by a Loan Party, such information shall only be required to
be delivered to the extent reasonably available to the Borrower;
(iii) an operating budget for such Real Property Asset with respect
to the current fiscal year;
(iv) copies of all engineering, mechanical, structural and
maintenance studies performed with respect to such Real Property Asset not
more than twelve months old;
(v) a "Phase I" environmental assessment of such Real Property
Asset not more than 12 months old prepared by an environmental engineering
firm acceptable to the Administrative Agent, and any additional
environmental studies or assessments available to the Borrower performed
with respect to such Real Property Asset;
28
(vi) with respect to any Real Property Asset being acquired by a
Loan Party, a copy of the materials relating to such Real Property Asset
submitted by the Borrower to its board of trustees for their approval (but
only to the extent such materials have not already been provided under any
of the preceding subsections);
(vii) a copy of the most recent ALTA Owner's Policy of Title
Insurance (or if such policy has not been issued, a binding commitment to
issue such policy) relating to such Real Property Asset showing fee simple
title (or a leasehold estate) being vested in the Borrower or a Subsidiary
and all matters of record; and
(viii) such other information the Administrative Agent may reasonably
request in order to determine whether such Real Property Asset constitutes
an Eligible Property.
Following receipt of the foregoing documents and information, the
Administrative Agent shall review them as expeditiously as is reasonably
practicable under the circumstances but in any event within 10 Business Days of
receipt of all such documents and information. If, following such review, the
Administrative Agent has determined that such Real Property Asset constitutes an
Eligible Property, the Administrative Agent will promptly (i) so notify the
Borrower and (ii) submit the foregoing documents and information to the Lenders.
Each Lender shall notify the Administrative Agent whether it approves (which
approval shall not be unreasonably withheld) of the designation of such Real
Property Asset as an Unencumbered Pool Property within 15 Business Days of
receipt of all such documents and information. If a Lender shall fail to so
notify the Administrative Agent, then such Lender shall be deemed to have
approved of such Real Property Asset. Upon approval of such Real Property Asset
by the Requisite Lenders, and upon execution and delivery of all of the
following, such Real Property Asset shall become an Unencumbered Pool Property:
(1) If such Real Property Asset is owned or leased by a Loan Party
other than the Borrower, all of the documents required to be provided under
Section 8.13. if not previously delivered to the Administrative Agent; and
(2) Such other items or documents as may be appropriate under the
circumstances as reasonably requested by the Administrative Agent.
SECTION 4.2 TERMINATION OF DESIGNATION AS UNENCUMBERED POOL PROPERTY.
A Real Property Asset shall cease to be an Unencumbered Pool Property if it
shall cease to be an Eligible Property; provided, however, with respect to any
--------
Real Property Asset accepted as an Unencumbered Pool Property even though at the
time of such acceptance such Real Property Asset did not meet all of the
requirements of an Eligible Property (a "Non-Conforming Property"), such Real
Property Asset shall cease to be an Unencumbered Pool Property if it shall cease
to satisfy those requirements of an Eligible Property that it did satisfy at the
time of its acceptance as an Unencumbered Pool Property. Subject to Section
4.4, from time to time the Borrower may request, upon not less than 30 days
prior written notice to the Administrative Agent and the Lenders, that an
Unencumbered Pool Property cease to be an Unencumbered Pool Property. The
Administrative
29
Agent shall grant such request if all of the following conditions are satisfied:
(a) no Default or Event of Default shall have occurred and be continuing
both at the time of such request and immediately after giving effect to such
request; and
(b) the Borrower shall have delivered to the Administrative Agent a
Compliance Certificate demonstrating on a pro forma basis, and the
Administrative Agent shall have determined, that the Borrower will remain in
compliance with Section 10.1 hereof after giving effect to such request and any
prepayment to be made and/or the acceptance of any Real Property Asset as an
additional or replacement Unencumbered Pool Property to be given concurrently
with such request.
SECTION 4.3 ADDITIONAL REQUIREMENTS OF UNENCUMBERED POOL PROPERTIES.
The aggregate Occupancy Rate of all Unencumbered Pool Properties shall at
all times equal or exceed 85%.
SECTION 4.4 ACCEPTANCE AND TERMINATION UNDER REVOLVING CREDIT AGREEMENT.
Any Real Property Asset which is determined to be an Eligible Property and
is accepted as an Unencumbered Pool Property under the Revolving Credit
Agreement shall be deemed to have been determined to be an Eligible Property and
accepted as an Unencumbered Pool Property under this Agreement, provided that at
the time of any such determination or acceptance under the Revolving Credit
Agreement, the then Revolving Credit Commitments shall exceed the then
outstanding principal balance of the Loan. In the event that any Real Property
Asset ceases to be an Unencumbered Pool Property under the Revolving Credit
Agreement, such Real Property Asset shall cease to be an Unencumbered Pool
Property under this Agreement.
ARTICLE V. YIELD PROTECTION, ETC.
SECTION 5.1 ADDITIONAL COSTS; CAPITAL ADEQUACY.
(a) Additional Costs. The Borrower shall promptly pay to the
----------------
Administrative Agent for the account of a Lender from time to time such amounts
as such Lender may reasonably determine to be necessary to compensate such
Lender for any costs incurred by such Lender that it determines are attributable
to its making or maintaining of its Lender's Share of LIBOR Loan or its
obligation to make its Lender's Share of LIBOR Loan hereunder, any reduction in
any amount receivable by such Lender under this Agreement or any of the other
Loan Documents in respect of its Lender's Share of LIBOR Loan or such obligation
or the maintenance by such Lender of capital in respect of its Lender's Share of
LIBOR Loan or its Commitment (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or any of the other Loan Documents
in respect of any of its Lender's Share of LIBOR Loan or its Commitment (other
than taxes imposed on or measured by the overall net income of such Lender or of
its Lending Office for its Lender's Share of LIBOR Loan by the jurisdiction in
which such Lender has its principal office or such Lending Office); or (ii)
imposes or modifies any reserve, special deposit or similar requirements (other
than Regulation D of the Board of Governors of the
30
Federal Reserve System or other reserve requirement utilized in the
determination of the Adjusted Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender, or any commitment of such Lender (including,
without limitation, the Commitment of such Lender hereunder); or (iii) has or
would have the effect of reducing the rate of return on capital of such Lender
to a level below that which such Lender could have achieved but for such
Regulatory Change (taking into consideration such Lender's policies with respect
to capital adequacy).
(b) Lender's Suspension. Without limiting the effect of the provisions of
-------------------
the immediately preceding subsection (a), if by reason of any Regulatory Change,
any Lender either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Lender that includes deposits by reference to which LIBOR is
determined as provided in this Agreement or a category of extensions of credit
or other assets of such Lender that includes its Lender's Share of LIBOR Loan
or (ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets that it may hold, then, if such Lender so elects by notice
to the Borrower (with a copy to the Administrative Agent), the obligation of
such Lender to make or Continue, or to Convert into, a LIBOR Loan hereunder
shall be suspended until such Regulatory Change ceases to be in effect (in which
case the provisions of Section 5.5. shall apply).
(c) [Intentionally Omitted].
(d) Notification and Determination of Additional Costs. Each of the
--------------------------------------------------
Administrative Agent and each Lender agrees to notify the Borrower of any event
occurring after the Agreement Date entitling the Administrative Agent or such
Lender to compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, the failure of the Administrative
Agent or any Lender to give such notice shall not release the Borrower from any
of its obligations hereunder. The Administrative Agent and/or such Lender
agrees to furnish to the Borrower a certificate setting forth the basis and
amount of each request by the Administrative Agent or such Lender for
compensation under this Section. Determinations by the Administrative Agent or
any Lender of the effect of any Regulatory Change shall be conclusive, provided
that such determinations are made on a reasonable basis and in good faith.
SECTION 5.2 SUSPENSION OF THE LIBOR LOAN.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted Eurodollar Rate for any Interest Period:
(a) the Administrative Agent reasonably determines (which determination
shall be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining LIBOR for
such Interest Period; or
(b) the Administrative Agent reasonably determines (which determination
shall be conclusive) that the Adjusted Eurodollar Rate will not adequately and
fairly reflect the cost to the Lenders of maintaining the LIBOR Loan for such
Interest Period.
31
then the Administrative Agent shall give the Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to, and shall not, Continue, or Convert the Loan as
or into a LIBOR Loan and the Borrower shall, on the last day of the current
Interest Period, Convert the Loan into a Base Rate Loan.
SECTION 5.3 ILLEGALITY.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to maintain its Lender's Share
of LIBOR Loan hereunder, then such Lender shall promptly notify the Borrower
thereof (with a copy to the Administrative Agent) and such Lender's obligation
to make or Continue, or to Convert the Loan from any other Type into, a LIBOR
Loan shall be suspended until such time as such Lender may again make and
maintain a LIBOR Loan (in which case the provisions of Section 5.5. shall be
applicable).
SECTION 5.4 COMPENSATION.
The Borrower shall pay to the Administrative Agent for account of each
Lender, upon the request of such Lender through the Administrative Agent, such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost or expense that such Lender
determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional) of the LIBOR
Loan or Conversion of the LIBOR Loan, made by such Lender for any reason
(including, without limitation, acceleration) on a date other than the last day
of the Interest Period for such LIBOR Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent specified
in Article VI. to be satisfied) to Convert a Base Rate Loan into a LIBOR Loan
or to Continue the Loan as a LIBOR Loan on the requested date of such Conversion
or Continuation.
Such payments shall include, but shall not be limited to, in the case of a LIBOR
Loan, an amount equal to the then present value of (A) the amount of interest
that would have accrued on such LIBOR Loan for the remainder of the applicable
Interest Period (or duration of the requested Interest Period in the case of a
failure to convert a LIBOR Loan) at the rate applicable to such LIBOR Loan, less
(B) the amount of interest that would accrue on the same Loan for the same
period if LIBOR were set on the date such payment, prepayment or failure
occurred (the "Adjustment Date"), calculating the present value by using as a
discount rate LIBOR quoted on the Adjustment Date.
SECTION 5.5 TREATMENT OF AFFECTED LOANS.
If the obligation of any Lender to Continue, or to Convert a Base Rate Loan
into, a LIBOR Loan shall be suspended pursuant to Section 5.1.(b), 5.2. or 5.3.,
then its Lender's Share of LIBOR Loan shall be automatically Converted into a
Base Rate Loan on the last day of the then current Interest Period (or, in the
case of a Conversion required by Section 5.1.(b) or 5.3., on such earlier date
as such Lender may specify to the Borrower with a copy to the Administrative
Agent) and,
32
unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.1., 5.2. or 5.3. that gave rise to such
Conversion no longer exist:
(a) to the extent that its Lender's Share of LIBOR Loan have been so
Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's Share of LIBOR Loan shall be applied instead to its
Base Rate Loan; and
(b) such Lender's portion of any Loan that would otherwise be made or
Continued by such Lender as a LIBOR Loan shall be made or Continued instead as a
Base Rate Loan, and any portion of a Base Rate Loan of such Lender that would
otherwise be Converted into a LIBOR Loan shall remain as a Base Rate Loan.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 5.1. or 5.3. that gave rise
to the Conversion of such Lender's Share of LIBOR Loan pursuant to this Section
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist provided that its failure to do so shall not cause it to be a
Defaulting Lender hereunder) at a time when a LIBOR Loan made by other Lenders
is outstanding, then such Lender's Base Rate Loan shall be automatically
Converted, on the first day of the next succeeding Interest Period into the
LIBOR Loan.
SECTION 5.6 CHANGE OF LENDING OFFICE.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to its Lender's Share of LIBOR Loan
affected by the matters or circumstances described in Sections 3.12., 5.1. or
5.3. to reduce the liability of the Borrower or avoid the results provided
thereunder, so long as such designation is not disadvantageous to such Lender as
determined by such Lender in its sole discretion, except that such Lender shall
have no obligation to designate a Lending Office located in the United States of
America.
SECTION 5.7 ASSUMPTIONS CONCERNING FUNDING OF LIBOR LOAN.
Calculation of all amounts payable to a Lender under this Article V. shall
be made as though such Lender had actually funded its Lender's Share of LIBOR
Loan through the purchase of deposits in the relevant market bearing interest at
the rate applicable to such LIBOR Loan in an amount equal to the amount of its
Lender's Share of LIBOR Loan and having a maturity comparable to the relevant
Interest Period; provided, however, that each Lender may fund each of its
Lender's Share of LIBOR Loan in any manner it sees fit and the foregoing
assumption shall be used only for calculation of amounts payable under this
Article V.
ARTICLE VI. CONDITIONS PRECEDENT
SECTION 6.1 INITIAL CONDITIONS PRECEDENT.
The obligation of the Lenders to make the Loan, is subject to the following
conditions precedent:
33
(a) The Administrative Agent shall have received each of the following, in
form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement executed by each of the parties
hereto;
(ii) Notes executed by the Borrower, payable to each Lender and
complying with the terms of Section 2.10.(a);
(iii) (A) An opinion of Shulman, Rogers, Gandal, Pordy & ▇▇▇▇▇, P.A.,
counsel to the Borrower, addressed to the Administrative Agent and the
Lenders, in substantially the form of Exhibit M-1 and (B) an opinion of
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, local Pennsylvania counsel to the Borrower,
addressed to the Administrative Agent and the Lenders, in substantially the
form of Exhibit M-2;
(iv) the declaration of trust of the Borrower certified as of a
recent date by the Department of Consumer and Regulatory Affairs of the
District of Columbia;
(v) a good standing certificate issued as of a recent date by the
Department of Consumer and Regulatory Affairs of the District of Columbia
and certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state department of
taxation, as applicable) of each state in which the Borrower is required to
be so qualified;
(vi) A certificate of incumbency signed by the Secretary or
Assistant Secretary of the Borrower with respect to each of the officers of
the Borrower authorized to execute and deliver the Loan Documents to which
the Borrower is a party and the officers of the Borrower then authorized to
deliver Notices of Continuation and Notices of Conversion;
(vii) certified copies (certified by the Secretary or Assistant
Secretary of the Borrower) of all action taken by the Borrower's Board of
Trustees to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(viii) A Guaranty executed by each Material Subsidiary other than any
Non-Guarantor Subsidiary in substantially the form of Exhibit C;
(ix) The articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of each Material Subsidiary (other than any Non-
Guarantor Subsidiary) certified as of a recent date by the Secretary of
State of the state of formation of such Material Subsidiary (provided that
the Lenders agree to fund the Loan without all such organizational
documents as long as the missing organizational documents are provided to
the Administrative Agent within 30 days following the Closing Date);
(x) A certificate of good standing or certificate of similar
meaning with respect to each Material Subsidiary (other than any Non-
Guarantor Subsidiary) issued as of a recent
34
date by the Secretary of State of the state of formation of each such
Material Subsidiary and certificates of qualification to transact business
or other comparable certificates issued by each Secretary of State (and any
state department of taxation, as applicable) of each state in which such
Material Subsidiary is required to be so qualified;
(xi) A certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
each Material Subsidiary with respect to each of the officers of such
Material Subsidiary authorized to execute and deliver the Loan Documents to
which such Material Subsidiary is a party;
(xii) Copies certified by the Secretary or Assistant Secretary
of each Material Subsidiary (or other individual performing similar
functions) (but not including any Non-Guarantor Subsidiary) of (i) the by-
laws of such Material Subsidiary, if a corporation, the operating
agreement, if a limited liability company, the partnership agreement, if a
limited or general partnership, or other comparable document in the case of
any other form of legal entity and (ii) all corporate, partnership, member
or other necessary action taken by such Material Subsidiary to authorize
the execution, delivery and performance of the Loan Documents to which it
is a party;
(xiii) A copy, if requested by the Administrative Agent, of each
Material Contract, certified as true, correct and complete by the chief
financial officer or chief accounting officer of the Borrower;
(xiv) Evidence that all insurance required to be maintained by
the Borrower and the other Loan Parties under the terms of the Loan
Documents is in effect;
(xv) The Fees, if any, then due under Section 3.6.;
(xvi) A Compliance Certificate calculated as of the fiscal
quarter ending September 30, 1998; and
(xvii) Such other documents, agreements and instruments as the
Administrative Agent may reasonably request on behalf of the Lenders; and
(b) In the good faith judgment of the Administrative Agent and the
Lenders:
(i) There shall not have occurred or become known to the
Administrative Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the financial and
business projections, budgets, pro forma data and forecasts concerning the
Borrower and its Subsidiaries delivered to the Administrative Agent and the
Lenders prior to the Agreement Date that has had or could reasonably be
expected to result in a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (1)
35
result in a Material Adverse Effect or (2) restrain or enjoin, impose
materially burdensome conditions on, or otherwise materially and adversely
affect the ability of the Borrower or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party;
(iii) The Borrower and the other Loan Parties shall have received all
approvals, consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the transactions
contemplated hereby without the occurrence of any default under, conflict
with or violation of (1) any Applicable Law or (2) any agreement, document
or instrument to which the Borrower or any other Loan Party is a party or
by which any of them or their respective properties is bound, except for
such approvals, consents, waivers, filings and notices the receipt, making
or giving of which could not reasonably be expected to have to (A) have a
Material Adverse Effect, or (B) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect the
ability of the Borrower or any other Loan Party to fulfill its obligations
under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions contemplated
by the Loan Documents.
SECTION 6.2 CREDIT EVENTS.
Each Credit Event shall constitute a certification by the Borrower to the
effect that (both as of the date of the giving of notice relating to such Credit
Event and, unless the Borrower otherwise notifies the Administrative Agent prior
to the date of such Credit Event, as of the date of the occurrence of such
Credit Event) (a) no Default or Event of Default shall have occurred and be
continuing; and (b) the representations and warranties made or deemed made by
the Borrower and each other Loan Party in the Loan Documents to which it is a
party, shall be true and correct with the same force and effect as if made on
and as of such date except to the extent that such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances expressly and
specifically permitted hereunder.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1 REPRESENTATIONS AND WARRANTIES.
In order to induce the Administrative Agent and each Lender to enter into
this Agreement and to make Loans, the Borrower represents and warrants to the
Administrative Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Loan Parties is a
----------------------------------
corporation, partnership, trust or other legal entity, duly organized or formed,
validly existing and, to the extent applicable, in good standing under the
jurisdiction of its incorporation or formation, has the power
36
and authority to own or lease its respective properties and to carry on its
respective business as now being and hereafter proposed to be conducted and is
duly qualified and is in good standing as a foreign corporation, partnership or
other legal entity and authorized to do business, in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified or
authorized could reasonably be expected to have, in each instance, a Material
Adverse Effect.
(b) Ownership Structure. As of the Agreement Date, Schedule 7.1.(b)
-------------------
correctly sets forth the corporate structure and ownership interests of the
Borrower's Subsidiaries including the correct legal name of each Subsidiary, its
jurisdiction of formation, the Persons holding equity interests in such
Subsidiary and their percentage equity or voting interest in such Subsidiary.
Except as set forth in such Schedule:
(i) no Subsidiary has issued to any third party any securities
convertible into such Subsidiary's capital stock or other equity interests
or any options, warrants or other rights to acquire any securities
convertible into such capital stock or other equity interests, and
(ii) the outstanding capital stock of, or other equity interests in,
each such Subsidiary are owned by the Borrower and its Subsidiaries
indicated on such Schedule, free and clear of all Liens, warrants, options
and rights of others of any kind whatsoever. All such outstanding capital
stock and other equity interests have been validly issued and, in the case
of capital stock, are fully paid and nonassessable.
(c) Authorization of Agreement, Notes, Loan Documents and Borrowings. The
----------------------------------------------------------------
Borrower has the right and power, and has taken all necessary action to
authorize it, to borrow hereunder. The Borrower and the other Loan Parties each
has the right and power, and has taken all necessary action to authorize it, to
execute, deliver and perform each of the Loan Documents to which it is a party
in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. This Agreement and each of the other Loan
Documents to which the Borrower or any other Loan Party is a party have been
duly executed and delivered by the duly authorized officers of such Person and
each is a legal, valid and binding obligation of such Person enforceable against
such Person in accordance with its respective terms except as the same may be
limited by bankruptcy, insolvency, and other similar laws affecting the rights
of creditors generally and the availability of equitable remedies for the
enforcement of certain obligations (other than the payment of principal)
contained herein or therein may be limited by equitable principles generally.
(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with Laws,
-----------------------------------------------------------------------
etc. The execution, delivery and performance of this Agreement, the Notes and
---
the other Loan Documents to which the Borrower or any other Loan Party is a
party in accordance with their respective terms and the borrowings hereunder do
not and will not, by the passage of time, the giving of notice, or otherwise:
(i) require any Governmental Approval or violate any Applicable Law (including
all Environmental Laws) relating to the Borrower or any other Loan Party; (ii)
conflict with, result in a breach of or constitute a default under the
declaration of trust of the Borrower or the organizational documents of any
other Loan Party, or any indenture, agreement or other instrument to which the
Borrower or any other Loan Party is a party or by which it or any of its
respective
37
properties may be bound; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Borrower or any other Loan Party other than in favor
of the Administrative Agent for the benefit of the Lenders.
(e) Compliance with Law; Governmental Approvals. The Borrower, each
-------------------------------------------
Subsidiary and each other Loan Party is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Law
relating to the Borrower, a Subsidiary or such Loan Party except for
noncompliances which, and Governmental Approvals the failure to possess which
could not, individually or in the aggregate, reasonably be expected to cause a
Default or Event of Default or have a Material Adverse Effect.
(f) Ownership of Properties; Liens. As of the Agreement Date, Schedule
------------------------------
7.1.(f) sets forth all the real property owned or leased by the Borrower, its
Subsidiaries, any other Loan Party and any of their Unconsolidated Affiliates,
and if a Developed Property, the applicable Occupancy Rate thereof. The
Borrower and such other Persons have good and insurable fee simple title (or
leasehold title if so designated on such Schedule) to all of such real property.
As of the Agreement Date, there are no mortgages, deeds of trust, indentures,
debt instruments or other agreements creating a Lien against any of such real
property or any other property or assets of the Borrower or any of its
Subsidiaries except for Permitted Liens and except as set forth on Schedule
7.1.(f).
(g) Indebtedness. Schedule 7.1.(g) is, as of the Agreement Date, a
------------
complete and correct listing of all Indebtedness of the Borrower, its
Subsidiaries and the other Loan Parties, including all Guarantees of the
Borrower, its Subsidiaries and the other Loan Parties and all letters of credit
and acceptance facilities extended to the Borrower, any Subsidiary or any other
Loan Party.
(h) Material Contracts. Schedule 7.1.(h) is, as of the Agreement Date, a
------------------
true, correct and complete listing of all Material Contracts.
(i) Litigation. There are no actions, suits or proceedings pending (nor,
----------
to the knowledge of the Borrower, are there any actions, suits or proceedings
threatened, nor is there any reasonable basis therefor) against or in any other
way relating adversely to or affecting the Borrower, any Subsidiary or any other
Loan Party or any of its respective property in any court or before any
arbitrator of any kind or before or by any other Governmental Authority which,
if adversely determined, could reasonably be expected to have a Material Adverse
Effect, and there are no strikes, slow downs, work stoppages or walkouts or
other labor disputes in progress or threatened relating to the Borrower, any
Subsidiary or any other Loan Party which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the Borrower, any
-----
Subsidiary or Loan Party required by Applicable Law to be filed have been duly
filed, and all federal, state and other taxes, assessments and other
governmental charges or levies upon the Borrower, any Subsidiary and each Loan
Party and its respective properties, income, profits and assets which are due
and payable have been paid, except any such nonpayment which is at the time
permitted under Section 8.6. None of the United States income tax returns of
the Borrower, its Subsidiaries or any Loan Party is under audit as of the
Agreement Date. All charges, accruals and reserves on the books
38
of the Borrower, each of its Subsidiaries and each other Loan Party in respect
of any taxes or other governmental charges are in accordance with GAAP.
(k) Financial Statements. The Borrower has furnished to each Lender copies
--------------------
of (i) the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries for the fiscal year ending December 31, 1997, and the
related consolidated statements of income, retained earnings and cash flow for
the fiscal year ending on such date, with the opinion thereon of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, and (ii) the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries for the fiscal quarter ending September 30, 1998, and
the related consolidated statements of income, retained earnings and cash flow
of the Borrower and its consolidated Subsidiaries for the three fiscal quarter
period ending on such date. Such balance sheets and statements (including in
each case related schedules and notes) are complete and correct and present
fairly, in accordance with GAAP consistently applied throughout the periods
involved, the consolidated financial position of the Borrower and its
consolidated Subsidiaries as at their respective dates and the results of
operations and the cash flow for such periods (subject, as to interim
statements, to changes resulting from normal year-end adjustments). None of the
Borrower, any of its consolidated Subsidiaries nor any other Loan Party has on
the Agreement Date any material contingent liabilities, liabilities, liabilities
for taxes, unusual or long-term commitments or unrealized or forward anticipated
losses from any unfavorable commitments, except as referred to or reflected or
provided for in said financial statements. Each of the Borrower, its
Subsidiaries and the other Loan Parties is Solvent.
(l) Unencumbered Pool Properties. Except for Non-Conforming Properties,
----------------------------
each of the Unencumbered Pool Properties qualifies as an Eligible Property.
Each Non-Conforming Property continues to satisfy those requirements of an
Eligible Property that it satisfied at the time of its acceptance as an
Unencumbered Pool Property.
(m) No Material Adverse Change. Since December 31, 1997, there has been no
--------------------------
material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Borrower and its consolidated
Subsidiaries taken as a whole.
(n) ERISA. Each member of the ERISA Group has fulfilled its obligations
-----
under the minimum funding standards of ERISA and the Internal Revenue Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Internal Revenue Code with
respect to each Plan. No member of the ERISA Group has (i) sought a waiver of
the minimum funding standard under Section 412 of the Internal Revenue Code in
respect of any Plan, (ii) failed to make any contribution or payment to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
(o) Absence of Defaults. Neither the Borrower, any Subsidiary nor any
-------------------
other Loan Party is in default under its declaration of trust, articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents, and no event has occurred, which has not been remedied,
39
cured or waived: (i) which constitutes a Default or an Event of Default; or (ii)
which constitutes, or which with the passage of time, the giving of notice, or
both would constitute, a default or event of default by the Borrower, any
Subsidiary or any Loan Party under any agreement (other than this Agreement) or
judgment, decree or order to which the Borrower, any Subsidiary or other Loan
Party is a party or by which the Borrower, any Subsidiary or Loan Party or any
of their respective properties may be bound where such default or event of
default could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(p) Environmental Laws. In the ordinary course of business, each of the
------------------
Borrower and its Subsidiaries conducts an ongoing review of the effect of
Environmental Laws on its respective business, operations and properties,
including without limitation, its respective Real Property Assets, in the course
of which the Borrower or such Subsidiary identifies and evaluates associated
liabilities and costs (including, without limitation, determining whether any
capital or operating expenditures are required for clean-up or closure of
properties presently or previously owned, determining whether any capital or
operating expenditures are required to achieve or maintain compliance with
Environmental Laws or required as a condition of any Governmental Approval, any
contract, or any related constraints on operating activities, determining
whether any costs or liabilities exist in connection with off-site disposal of
wastes or Hazardous Materials, and determining whether any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses exist). The Borrower, its Subsidiaries and the other Loan Parties have
obtained all Governmental Approvals which are required under Environmental Laws,
and are in compliance with all terms and conditions of such Governmental
Approvals, which the failure to obtain or to comply with could reasonably be
expected to have a Material Adverse Effect. Each of the Borrower, its
Subsidiaries and the other Loan Parties is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables contained in the Environmental Laws the
failure with which to comply could reasonably be expected to have a Material
Adverse Effect. Except as set forth in Schedule 7.1.(p) and except as could not
be reasonably expected to have a Material Adverse Effect, neither the Borrower,
any Subsidiary nor any other Loan Party is aware of, or has received notice of,
any past, present, or future events, conditions, circumstances, activities,
practices, incidents, actions, or plans which, with respect to the Borrower, any
of its Subsidiaries or any other Loan Party may interfere with or prevent
compliance or continued compliance with Environmental Laws, or may give rise to
any common-law or legal liability, or otherwise form the basis of any claim,
action, demand, suit, proceeding, hearing, study, or investigation, based on or
related to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling or the emission, discharge, release or
threatened release into the environment, of any pollutant, contaminant,
chemical, or industrial, toxic, or other Hazardous Material; and there is no
civil, criminal, or administrative action, suit, demand, claim, hearing, notice,
or demand letter, notice of violation, investigation, or proceeding pending or,
to the knowledge of the Borrower, any Subsidiary or any other Loan Party, after
due inquiry, threatened, against the Borrower, any Subsidiary or any other Loan
Party relating in any way to Environmental Laws.
(q) Investment Company; Public Utility Holding Company. Neither the
--------------------------------------------------
Borrower, any Subsidiary nor any other Loan Party is (i) an "investment company"
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended,
40
(ii) a "holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (iii) subject to any other Applicable Law which purports to
regulate or restrict its ability to borrow money or to consummate the
transactions contemplated by this Agreement or to perform its obligations under
any Loan Document to which it is a party.
(r) Margin Stock. Neither the Borrower, any Subsidiary nor any other Loan
------------
Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within the meaning of Regulations
G or U of the Board of Governors of the Federal Reserve System.
(s) Affiliate Transactions. Except for transactions permitted under
----------------------
Section 10.11., neither the Borrower, any Subsidiary nor any other Loan Party is
a party to or bound by any agreement or arrangement (whether oral or written) to
which any Affiliate of the Borrower, any Subsidiary or other Loan Party is a
party.
(t) Intellectual Property. The Borrower and each Subsidiary owns or has
---------------------
the right to use, under valid license agreements or otherwise, all patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights (collectively, "Intellectual Property")
necessary to, or used in, the conduct of its businesses as now conducted and as
contemplated by the Loan Documents, without known conflict with any patent,
license, franchise, trademark, trade secret, trade name, copyright, or other
proprietary right of any other Person.
(u) Accuracy and Completeness of Information. All written information,
----------------------------------------
reports and other papers and data furnished to the Administrative Agent or any
Lender by, on behalf of, or at the direction of, the Borrower, any Subsidiary or
any other Loan Party were, at the time the same were so furnished, complete and
correct in all material respects, to the extent necessary to give the recipient
a true and accurate knowledge of the subject matter, or, in the case of
financial statements, present fairly, in accordance with GAAP consistently
applied throughout the periods involved, the financial position of the Persons
involved as at the date thereof and the results of operations for such periods.
No fact is known to the Borrower which has had, or may in the future have (so
far as the Borrower can reasonably foresee), a Material Adverse Effect which has
not been set forth in the financial statements referred to in Section 7.1.(k) or
in such information, reports or other papers or data or otherwise disclosed in
writing to the Administrative Agent and the Lenders prior to the Effective Date.
No document furnished or written statement made to the Administrative Agent or
any Lender in connection with the negotiation, preparation of execution of this
Agreement or any of the other Loan Documents contains or will contain any untrue
statement of a fact material to the creditworthiness of the Borrower, any
Subsidiary or any other Loan Party or omits or will omit to state a material
fact necessary in order to make the statements contained therein not misleading.
(v) REIT Status. The Borrower qualifies as a REIT.
-----------
(w) Not Plan Assets. The assets of the Borrower, its Subsidiaries and the
---------------
other Loan Party do not and will not constitute "plan assets", within the
meaning of ERISA, the Internal
41
Revenue Code and the respective regulations promulgated thereunder. The
execution, delivery and performance of this Agreement, and the borrowing and
repayment of amounts hereunder, do not and will not constitute "prohibited
transactions" under ERISA or the Internal Revenue Code.
(x) Business. As of the Agreement Date, the Borrower, its Subsidiaries and
--------
the other Loan Parties are primarily engaged in the business of acquiring,
owning, managing and developing directly or indirectly shopping centers,
residential and multi-family residential apartment complexes, together with
providing services related thereto.
(y) Year 2000. The Borrower has reviewed the areas within its businesses
---------
and operations which could be adversely affected by, and has developed or is
developing a program to address on a timely basis, the risk that certain
computer applications used by the Borrower may be unable to recognize and
perform properly date sensitive functions involving dates prior to and after
December 31, 1999 (the "Year 2000 Problem"). The Year 2000 Problem is not
expected to materially and adversely affect the Borrower.
SECTION 7.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All statements contained in any certificate, financial statement or other
instrument delivered by or on behalf of the Borrower, any Subsidiary or any
other Loan Party to the Administrative Agent or any Lender pursuant to or in
connection with this Agreement or any of the other Loan Documents (including,
but not limited to, any such statement made in or in connection with any
amendment thereto or any statement contained in any certificate, financial
statement or other instrument delivered by or on behalf of the Borrower or any
other Loan Party prior to the Agreement Date and delivered to the Administrative
Agent or any Lender in connection with closing the transactions contemplated
hereby) shall constitute representations and warranties made by the Borrower
under this Agreement. All representations and warranties made under this
Agreement and the other Loan Documents shall be deemed to be made at and as of
the Agreement Date, the Effective Date and at and as of the date of the
occurrence of any Credit Event, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
permitted hereunder. All such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the Loan
Documents and the making of the Loan.
ARTICLE VIII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.6., all of the Lenders) shall otherwise
consent in the manner provided for in Section 13.6., the Borrower shall:
SECTION 8.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS.
Except as otherwise permitted under Section 10.7., preserve and maintain,
and cause each Subsidiary and each other Loan Party to preserve and maintain,
its respective existence, rights, franchises, licenses and privileges in the
jurisdiction of its incorporation or formation and qualify
42
and remain qualified and authorized to do business in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
SECTION 8.2 COMPLIANCE WITH APPLICABLE LAW AND MATERIAL CONTRACTS.
Comply, and cause each Subsidiary and each other Loan Party to comply, with
(a) all Applicable Law, including the obtaining of all Governmental Approvals,
the failure to comply with which could reasonably be expected to have a Material
Adverse Effect, and (b) all terms and conditions of all Material Contracts to
which it is a party.
SECTION 8.3 MAINTENANCE OF PROPERTY.
In addition to the requirements of any of the other Loan Documents, (a)
protect and preserve, and cause each Subsidiary and other Loan Party to protect
and preserve, all of its material properties, including, but not limited to, all
Real Property Assets and all Intellectual Property, and maintain in good repair,
working order and condition all tangible properties, ordinary wear and tear
excepted and (b) from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties, so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
SECTION 8.4 CONDUCT OF BUSINESS.
At all times carry on, and cause its Subsidiaries and the other Loan
Parties to carry on, the businesses as described in Section 7.1.(x).
SECTION 8.5 INSURANCE.
In addition to the requirements of any of the other Loan Documents,
maintain, and cause each Subsidiary and Loan Party to maintain, insurance with
financially sound and reputable insurance companies against such risks and in
such amounts as is customarily maintained by Persons engaged in similar
businesses or as may be required by Applicable Law. Not in limitation of the
foregoing, the Borrower shall, and shall cause its Subsidiaries and the other
Loan Parties to, maintain builder's risk insurance during any period of
construction and, upon completion, "all risk" insurance in an amount at least
equal to the greater of (i) 80% of the replacement cost of the improvements, if
any, on each of its Real Property Assets, and (ii) an amount sufficient to avoid
the application of any coinsurance clause contained in the related insurance
policy, with insurers having an A.M. Best policyholder's rating of not less than
A- and financial size category of not less than X, which insurance shall in any
event not provide for materially less coverage than the insurance in effect on
the Agreement Date. The Borrower will deliver to the Lenders (i) upon request
of any Lender through the Administrative Agent from time to time full
information as to the insurance carried, (ii) within 5 days of receipt of notice
from any insurer a copy of any notice of cancellation or material change in
coverage from that existing on the Agreement Date and (iii) promptly upon
receipt, notice of any cancellation or nonrenewal of coverage by the Borrower,
any Subsidiary or any other Loan Party.
43
SECTION 8.6 PAYMENT OF TAXES AND CLAIMS.
Pay or discharge, and cause each Subsidiary and other Loan Party to pay and
discharge, when due (a) all taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits or upon any properties
belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers,
warehousemen and landlords for labor, materials, supplies and rentals which, if
unpaid, might become a Lien on any properties of such Person; provided, however,
that this Section shall not require the payment or discharge of any such tax,
assessment, charge, levy or claim which is being contested in good faith by
appropriate proceedings which operate to suspend the collection thereof and for
which adequate reserves have been established on the books of the Borrower, such
Subsidiary or such other Loan Party, as applicable, in accordance with GAAP.
SECTION 8.7 VISITS AND INSPECTIONS.
Permit, and cause each Subsidiary and other Loan Party to permit,
representatives or agents of the Administrative Agent or any Lender, from time
to time, as often as may be reasonably requested and at the expense of the
Administrative Agent (unless an Event of Default shall be continuing in which
case the exercise by the Administrative Agent of its rights under this Section
shall be at the expense of the Borrower) or such Lender, but only during normal
business hours, to: (a) visit and inspect all properties of the Borrower, such
Subsidiary or such other Loan Party; (b) inspect and make extracts from their
respective relevant books and records, including but not limited to management
letters prepared by independent accountants; and (c) discuss with its principal
officers, and its independent accountants, its business, assets, liabilities,
financial conditions, results of operations and business prospects. If
requested by the Administrative Agent, the Borrower shall execute an
authorization letter addressed to its accountants authorizing the Administrative
Agent or any Lender to discuss the financial affairs of the Borrower and any
Subsidiary with its accountants.
SECTION 8.8 USE OF PROCEEDS.
Use the proceeds of the Loan for general corporate purposes including, but
not limited to, (a) the acquisition, renovation and development of Real Property
Assets, (b) the repayment of existing Indebtedness and (c) general working
capital needs. The Borrower shall not, and shall not permit any Subsidiary or
any other Loan Party to, use any part of such proceeds to purchase or carry, or
to reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of Regulations U and X of the Board of
Governors of the Federal Reserve System) or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
SECTION 8.9 ENVIRONMENTAL MATTERS.
Comply, and cause all of its Subsidiaries to comply, in all material
respects with all Environmental Laws. If the Borrower, any Subsidiary or any
other Loan Party shall (a) receive notice that any violation of any
Environmental Law may have been committed or is about to be committed by such
Person, (b) receive notice that any administrative or judicial complaint or
order has been filed or is about to be filed against the Borrower, any
Subsidiary or any other Loan Party alleging violations of any Environmental Law
or requiring the Borrower, or Subsidiary or any other Loan Party to take any
action in connection with the release of Hazardous Materials or (c) receive
44
any notice from a Governmental Authority or private party alleging that the
Borrower, or Subsidiary or any other Loan Party may be liable or responsible for
costs associated with a response to or cleanup of a release of a Hazardous
Materials or any damages caused thereby, and such notices, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
the Borrower shall provide the Administrative Agent with a copy of such notice
within 10 days after the receipt thereof by the Borrower or any of the
Subsidiaries. The Borrower and the Subsidiaries shall promptly take all actions
necessary to prevent the imposition of any Liens on any of their respective
properties arising out of or related to any Environmental Laws.
SECTION 8.10 BOOKS AND RECORDS.
Maintain, and cause each of the Subsidiaries to maintain, books and records
pertaining to its business operations in such detail, form and scope as is
consistent with good business practice in accordance with GAAP.
SECTION 8.11 REIT STATUS.
At all times maintain its status as a REIT.
SECTION 8.12 FURTHER ASSURANCES.
At the Borrower's cost and expense, upon request of the Administrative
Agent, duly execute and deliver or cause to be duly executed and delivered, to
such Arranging Agent such further instruments, documents and certificates, and
do and cause to be done such further acts that may be necessary or advisable in
the opinion of the Administrative Agent to carry out more effectively the
provisions and purposes of this Agreement and the other Loan Documents.
SECTION 8.13 ADDITIONAL SUBSIDIARIES.
Within 5 Business Days of any Person becoming a Material Subsidiary after
the Agreement Date, deliver to the Administrative Agent each of the following in
form and substance satisfactory to the Administrative Agent: (a) a Guaranty
executed by such Material Subsidiary and (b) the items that would have been
delivered under Sections 6.1.(a)(iii), (ix) through (xiii) and (xvii) if such
Material Subsidiary had been one on the Agreement Date; provided, however, a
-------- -------
Non-Guarantor Subsidiary shall not be required to provide an Accession Agreement
nor any of the items referred to in Sections 6.1.(a)(iii) or (xi); provided,
--------
further, however, promptly (and in any event within 5 Business Days) of a Non-
------- -------
Guarantor Subsidiary ceasing to be subject to the restriction which prevented it
from delivering a Accession Agreement pursuant to this Section, such Non-
Guarantor Subsidiary shall deliver such Accession Agreement and the items
referred to in Sections 6.1.(a)(iii) and (xi).
SECTION 8.14 EXCHANGE LISTING.
Maintain at least one class of common shares of the Borrower having trading
privileges on the New York Stock Exchange or the American Stock Exchange or
which is the subject of price quotations in the over-the-counter market as
reported by the National Association of Securities
45
Dealers Automated Quotation System.
ARTICLE IX. INFORMATION
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.6., the Borrower shall furnish to
each Lender (or to the Administrative Agent if so provided below) at its Lending
Office (but without duplication with respect to any Lenders which shall also
receive such materials pursuant to the Revolving Credit Agreement):
SECTION 9.1 QUARTERLY FINANCIAL STATEMENTS.
As soon as available and in any event within 60 days after the close of
each of the first, second and third fiscal quarters of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such period and the related consolidated statements of income, retained earnings
and cash flows of the Borrower and its Subsidiaries for such period, setting
forth in each case in comparative form the figures for the corresponding periods
of the previous fiscal year, all of which shall be certified by the chief
financial officer or chief accounting officer of the Borrower, in his or her
opinion, to present fairly, in accordance with GAAP, the consolidated financial
position of the Borrower and its Subsidiaries as at the date thereof and the
results of operations for such period (subject to normal year-end adjustments).
SECTION 9.2 YEAR-END STATEMENTS.
As soon as available and in any event within 120 days after the end of each
fiscal year of the Borrower, the consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for such fiscal year, setting forth in comparative form the figures
as at the end of and for the previous fiscal year, all of which shall be
certified by (i) the chief financial officer or chief accounting officer of the
Borrower, in his or her opinion, to present fairly, in accordance with GAAP, the
financial position of the Borrower and its Subsidiaries as at the date thereof
and the result of operations for such period and (ii) independent certified
public accountants of recognized national standing acceptable to the Requisite
Lenders, whose opinion shall be unqualified.
SECTION 9.3 COMPLIANCE CERTIFICATE.
At the time the financial statements and reports are furnished pursuant to
Sections 9.1. and 9.2., a certificate in the form of Exhibit N (a "Compliance
Certificate") executed by the chief financial officer or chief accounting
officer of the Borrower: (a) setting forth in reasonable detail as at the end
of such quarterly accounting period or fiscal year, as the case may be, the
calculations required to establish whether or not the Borrower, and when
appropriate its consolidated Subsidiaries, were in compliance with the covenants
contained in Sections 10.1., 10.4., and 10.6.; and (b) stating that, to the best
of his or her knowledge, information and belief, no Default or Event of Default
exists, or, if such is not the case, specifying such Default or Event of Default
and its nature, when it occurred and whether it is continuing and the steps
being taken by the Borrower with
46
respect to such event, condition or failure.
SECTION 9.4 OTHER INFORMATION.
(a) not later than 30 days after the last day of each fiscal year of the
Borrower, pro forma projected consolidated income statements for the Borrower
and its Subsidiaries reflecting the forecasted results of operations of the
Borrower and its Subsidiaries on an annual basis for the three succeeding fiscal
years thereafter;
(b) at the time the financial statements and reports are furnished pursuant
to Sections 9.1. and 9.2., operating statements for each Unencumbered Pool
Property for the immediately preceding fiscal quarter or fiscal year of the
Borrower, as applicable, in each case certified by a representative of the
Borrower as being true and correct in all material respects;
(c) at the time the financial statements and reports are furnished pursuant
to Section 9.2., a property budget for each Unencumbered Pool Property for the
coming fiscal year of the Borrower;
(d) as soon as available and in any event within 60 days after the end of
each fiscal quarter of the Borrower, a statement demonstrating a comparison
between the cost budget of each Real Property Asset in development to the actual
disbursements made, together with a description of each such Real Property Asset
setting forth the ownership, scope, status of completion and occupancy, if
applicable, of each such Real Property Asset, certified by the chief financial
officer or chief accounting officer of the Borrower to the best of his or her
knowledge as being complete and correct;
(e) promptly upon receipt thereof, copies of all reports, if any, submitted
to the Borrower or its Board of Trustees by its independent public accountants
including, without limitation, any management report;
(f) within 10 days of the filing thereof, copies of all registration
statements (excluding the exhibits thereto and any registration statements on
Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) and all other periodic reports which the Borrower, any Subsidiary
or any other Loan Party shall file with the Securities and Exchange Commission
(or any Governmental Authority substituted therefor) or any national securities
exchange;
(g) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed and promptly upon the issuance thereof copies of all press releases
issued by the Borrower, any Subsidiary or any other Loan Party;
(h) within 60 days after the end of each fiscal quarter of the Borrower, an
updated Schedule 7.1.(f), certified by the chief financial officer or chief
accounting officer of the Borrower as true, correct and complete as of the date
such updated schedules are delivered;
(i) if and when any member of the ERISA Group (i) gives or is required to
give notice
47
to the PBGC of any "reportable event" (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan administrator of any Plan
has given or is required to give notice of any such reportable event, a copy of
the notice of such reportable event given or required to be given to the PBGC;
(ii) receives notice of complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer or chief accounting officer of the Borrower setting forth details as to
such occurrence and action, if any, which the Borrower or applicable member of
the ERISA Group is required or proposes to take;
(j) to the extent the Borrower, any Subsidiary or any other Loan Party is
aware of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in
any other way relating adversely to, or adversely affecting, the Borrower, such
Subsidiary or such Loan Party or any of their respective properties, assets or
businesses which, if determined or resolved adversely to such Person, could
reasonably be expected to have a Material Adverse Effect, and prompt notice of
the receipt of notice that any United States income tax returns of the Borrower,
any of its Subsidiaries or any other Loan Party are being audited;
(k) a copy of any amendment to the declaration of trust, articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents of the Borrower, any Subsidiary or any other Loan Party within 60 days
of the effectiveness thereof;
(l) prompt notice of any change in the senior management of the Borrower
and any change in the business, assets, liabilities, financial condition,
results of operations or business prospects of the Borrower, any Subsidiary or
any other Loan Party which has had or could reasonably be expected to have a
Material Adverse Effect;
(m) prompt notice of the occurrence of any Default or Event of Default or
any event which constitutes or which with the passage of time, the giving of
notice, or otherwise, would constitute a default or event of default by the
Borrower, any Subsidiary or any other Loan Party under any Material Contract to
which any such Person is a party or by which any such Person or any of its
respective properties may be bound or under any document, instrument or
agreement evidencing or securing any Indebtedness of such Person;
48
(n) prompt notice of the entry of any order, judgment or decree (not
adequately covered by insurance as to which the insurance company has
acknowledged coverage in writing) in excess of $2,500,000 against the Borrower,
any Subsidiary or any other Loan Party or any of their respective properties or
assets;
(o) any notification of a violation of any material Applicable Law or any
inquiry shall have been received by the Borrower, any Subsidiary or any other
Loan Party from any Governmental Authority;
(p) prompt notice of the acquisition, incorporation or other creation of
any Subsidiary, the purpose for such Subsidiary, the nature of the assets and
liabilities thereof;
(q) prompt notice of the proposed sale, transfer or other disposition of
any Unencumbered Pool Property and notice within 30 days of the consummation of
any sale, transfer or other disposition by the Borrower or any Subsidiary of any
other material asset owned directly or indirectly by the Borrower and its
Subsidiaries taken as a whole to any Subsidiary, Affiliate or other Person;
(r) prompt notice of any strikes, slow downs, work stoppages or walkouts or
other labor disputes in progress or threatened relating to the Borrower, any
Subsidiary or any other Loan Party if such action could reasonably be expected
to have a Material Adverse Effect;
(s) within 30 days of entering into any Material Contract after the
Agreement Date, a copy to the Administrative Agent of such Material Contract;
(t) prompt notice of any change in any rating assigned by a Rating Agency
to any series of rated senior unsecured long term indebtedness of the Borrower;
and
(u) from time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding the business, assets, liabilities, financial condition,
results of operations or business prospects of the Borrower, any of its
Subsidiaries or any other Loan Party as the Administrative Agent or any Lender
may reasonably request.
ARTICLE X. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite Lenders
(or, if required pursuant to Section 13.6., all of the Lenders) shall otherwise
consent in the manner set forth in Section 13.6., the Borrower shall not,
directly or indirectly:
SECTION 10.1 FINANCIAL COVENANTS.
Permit:
(a) Leverage. The ratio of (i) the Total Liabilities of the Borrower and
--------
its Subsidiaries
49
determined on a consolidated basis to (ii) Gross Asset Value, to be greater than
--
0.60 to 1.00 at any time.
(b) Interest Coverage. The ratio of (i) the EBITDA of the Borrower and its
-----------------
Subsidiaries determined on a consolidated basis for the four consecutive fiscal
quarter period most recently ended to (ii) the Interest Expense of the Borrower
--
and its Subsidiaries determined on a consolidated basis for such four-fiscal
quarter period, to be less than 1.75 to 1.00 at the end of such four-fiscal
quarter period.
(c) Fixed Charge Coverage. The ratio of (i) EBITDA of the Borrower and its
---------------------
Subsidiaries determined on a consolidated basis for the four consecutive fiscal
quarter period most recently ended to (ii) Fixed Charges of the Borrower and its
--
Subsidiaries determined on a consolidated basis for such four-fiscal quarter
period, to be less than 1.60 to 1.00 at the end of such four-fiscal quarter
period.
(d) Unencumbered Asset Test. The ratio of (i) the Unencumbered Asset Value
-----------------------
to (ii) the sum of (A) the Unsecured Indebtedness of the Borrower and its
--
Subsidiaries determined on a consolidated basis plus (B) to the extent not
----
already included in clause (A), the Capitalized Lease Obligations of the
Borrower and its Subsidiaries determined on a consolidated basis, to be less
than 1.67 to 1.00 at any time.
(e) Unencumbered Asset Cash Flow Coverage. The ratio of (i) the Net
-------------------------------------
Operating Income for all Unencumbered Pool Properties for the four consecutive
fiscal quarter period most recently ended minus Replacement Reserves for such
-----
four-quarter period to (ii) the sum of Interest Expense on Unsecured
--
Indebtedness of the Borrower and its Subsidiaries for such four-quarter period
determined on a consolidated basis plus to the extent not already included in
----
this clause (ii), all interest expense attributable to payments made in respect
of Capitalized Lease Obligations by the Borrower and its Subsidiaries during
such four-quarter period determined on a consolidated basis, to be less than
1.75 to 1.00 at the end of such four-fiscal quarter period.
(f) Minimum Shareholder's Equity. The aggregate amount of the
----------------------------
Shareholder's Equity of the Borrower determined on a consolidated basis at the
end of any fiscal quarter to be less than (i) $445,000,000 plus (ii) 75% of the
----
Net Proceeds of all Equity Issuances (other than issuances of operating
partnership units) effected by the Borrower or any of its Subsidiaries at any
time after June 30, 1997 plus (iii) 100% of the value generated by the issuance
----
of operating partnership units after June 30, 1997.
(g) Secured Debt Ratio. The ratio of (i) the Secured Indebtedness of the
------------------
Borrower and its Subsidiaries determined on a consolidated basis to (ii) Gross
--
Asset Value, to be greater than 0.35 to 1.00 at any time.
(h) Variable Rate Debt. The ratio of (i) the aggregate outstanding
------------------
principal amount of Variable Rate Debt of the Borrower and its Subsidiaries
determined on a consolidated basis to (ii) the Gross Asset Value of the Borrower
--
and its Subsidiaries determined on a consolidated basis, to be greater than 0.35
to 1.00 at any time.
50
SECTION 10.2 INDEBTEDNESS.
Create, incur, assume, or permit or suffer to exist, or permit any
Subsidiary or other Loan Party to create, incur, assume, or permit or suffer to
exist, any Indebtedness other than the following:
(a) the Obligations;
(b) Indebtedness set forth on Schedule 7.1.(g);
(c) Subordinated Debt;
(d) intercompany Indebtedness among the Borrower and its Wholly Owned
Subsidiaries; provided, however, that the obligations of each obligor of such
Indebtedness shall be subordinate to the Obligations on terms acceptable to the
Requisite Lenders in their sole discretion; and
(e) other Indebtedness created, incurred or assumed after the Agreement
Date so long as immediately prior to the creation, incurring or assumption
thereof, and immediately thereafter and after giving effect thereto, no Default
or Event of Default is or would be in existence, including without limitation, a
Default or Event of Default resulting from a violation of any of the covenants
contained in Section 10.1.
Notwithstanding anything set forth in this Section 10.2. to the contrary so long
as each Non-Guarantor Subsidiary owns an Unencumbered Pool Property, such Non-
Guarantor Subsidiary shall not create, incur, assume, or permit or suffer to
exist any Indebtedness other than (x) Indebtedness of the types described in
clauses (a) and (b) of the definition of Indebtedness owing to the Borrower and
(y) Indebtedness of the types described in clauses (a), (b) and (d) of the
definition of Indebtedness in an aggregate amount not to exceed at any time
outstanding the lesser of (i) 5% of the Unencumbered Asset Value attributable to
Unencumbered Pool Properties owned or leased by such Non-Guarantor Subsidiaries
or (ii) $2,500,000.
SECTION 10.3 DERIVATIVES OBLIGATIONS.
Become or remain liable, or permit any Subsidiary to become or remain
liable, on or under any Derivatives Obligation other than the following:
(a) Derivatives Obligations in existence as of the Agreement Date and set
forth in Schedule 10.3.; and
(b) Derivatives Obligations under Interest Rate Agreements (i) with
respect to the Loan and (ii) indexed to interest rates or yields on United
States Treasury Bills or Notes with respect to other Indebtedness incurred or
anticipated to be incurred by the Borrower or any of its Subsidiaries to finance
the acquisition of Real Property Assets.
SECTION 10.4 PERMITTED INVESTMENTS.
(a) Make any Investment in or otherwise own, and shall not permit any
Subsidiary to
51
make any Investment in or otherwise own, any of the following items which would
cause the value of such holdings of the Borrower and its Subsidiaries determined
on a consolidated basis to exceed the following percentages of Gross Asset
Value:
(i) Capital Stock of any Unconsolidated Affiliate, such that the
aggregate value of such Capital Stock calculated on the basis of the lower
of cost or market, exceeds 5% of Gross Asset Value;
(ii) Investments in partnerships, joint ventures and other non-
corporate Persons accounted for on an equity basis (determined in
accordance with GAAP), such that the aggregate book value of such
Investments exceeds 10% of Gross Asset Value;
(iii) Mortgages in favor of the Borrower or any Subsidiary, such that
the aggregate book value of Indebtedness secured by such Mortgages exceeds
10% of Gross Asset Value;
(iv) unimproved real estate (excluding unimproved real estate on
which development of a property has commenced), such that the aggregate
book value of all such unimproved real estate exceeds 5% of Gross Asset
Value; and
(v) Real Property Assets Under Construction, such that the
aggregate amount of related Construction in Process exceeds 15% of Gross
Asset Value.
(b) In addition to the foregoing limitations, the aggregate value of the
Investments subject to the limitations in the preceding clauses (i) through (iv)
shall not exceed 30% of Gross Asset Value.
SECTION 10.5 LIENS; AGREEMENTS REGARDING LIENS; OTHER MATTERS.
(a) Create, assume, incur or permit or suffer to exist, or permit any
Subsidiary or any other Loan Party to create, assume, incur or permit or suffer
to exist, any Lien (other than Permitted Liens) upon any of its properties,
assets, income or profits of any character whether now owned or hereafter
acquired if immediately prior to the creation, assumption or incurring of such
Lien, or immediately thereafter, a Default or Event of Default is or would be in
existence, including without limitation, a Default or Event of Default resulting
from a violation of any of the covenants contained in Section 10.1; provided
that for so long as the Revolving Credit Agreement remains in effect and
continues to include the prohibition on restrictions on Liens currently set
forth in Section 10.5(b) of the Revolving Credit Agreement, this Section 10.5(a)
shall have no force or effect, but upon the complete termination of the
Revolving Credit Agreement and the irrevocable payment in full of all
indebtedness and other amounts due thereunder, without further act or deed on
the part of the Administrative Agent, the Lenders, the Borrower or any
Guarantor, this Section 10.5(a) shall be in full force and effect.
(b) Enter into, assume or otherwise be bound by, or permit any Material
Subsidiary or any Wholly Owned Subsidiary to enter into assume or otherwise be
bound by any agreement (other than the Loan Documents), prohibiting the creation
or assumption of any Lien upon its properties
52
or assets, whether now owned or hereafter acquired except for (A) any agreement
(i) evidencing Indebtedness which the Borrower or such Subsidiary may create,
incur, assume, or permit or suffer to exist under Section 10.2.; (ii) which
Indebtedness is secured by a Lien permitted to exist under the immediately
preceding subsection (a) and (iii) which prohibits the creation of any other
Lien in only the property securing such Indebtedness as of the date such
agreement was entered into, (B) provisions contained as of the date hereof in
the articles of incorporation, bylaws, declaration of trust, partnership
agreement, operating agreement or other comparable organizational document of a
Non-Guarantor Subsidiary which prohibit the creation of a Lien upon any equity
interest of such Non-Guarantor Subsidiary, and (C) the provisions of the
Revolving Credit Agreement; or
(c) Create or otherwise cause or suffer to exist or become effective, or
permit any Subsidiary or to create or otherwise cause or suffer to exist or
become effective, any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary to: (i) pay dividends or make any other distribution
on any of the capital stock or other equity interests owned by the Borrower, any
Subsidiary or any other Loan Party; (ii) pay any Indebtedness owed to the
Borrower, any other Subsidiary or any other Loan Party in accordance with its
terms; (iii) make loans or advances to the Borrower, any Subsidiary or any other
Loan Party; or (iv) transfer any of its property or assets to the Borrower, any
Subsidiary or any other Loan Party, other than (x) any such consensual
encumbrances or restrictions in existence as of the date hereof and (y) in the
case of any Subsidiary that is not a Wholly Owned Subsidiary, limitations
arising after the date hereof that any such dividends, distributions, loans,
advances or transfers of property must be on fair and reasonable terms and on an
arm's length basis; provided that for so long as the Revolving Credit Agreement
remains in effect and continues to include the prohibition on restrictions on
Liens currently set forth in Section 10.5(b) of the Revolving Credit Agreement,
this Section 10.5(c) shall not prohibit the creation or assumption of any Lien
in violation of Section 10.5(b) of the Revolving Credit Agreement, but upon the
complete termination of the Revolving Credit Agreement and the irrevocable
payment in full of all indebtedness and all other amounts due thereunder,
without further act or deed on the part of the Administrative Agent, the
Lenders, the Borrower or any Guarantor, this proviso shall be null and void and
of no effect.
SECTION 10.6 RESTRICTED PAYMENTS.
Declare or make, or permit any Subsidiary or other Loan Party to declare or
make, any Restricted Payment; provided, however, that (a) so long as no Event of
Default shall have occurred and be continuing or would occur as a result
thereof, the Borrower may make distributions to its shareholders during any
four-quarter period in an aggregate amount not to exceed 95% of the Borrower's
Funds From Operations for such four-quarter period determined on a consolidated
basis; (b) Subsidiaries and other Loan Parties may make Restricted Payments to
the Borrower; (c) so long as no Event of Default shall have occurred and be
continuing or would occur as a result thereof, Subsidiaries may make cash
distributions to Persons owning equity interest in them or Borrower may purchase
or acquire such equity interests from such Persons and (d) the Borrower may make
payments with respect to any Subordinated Debt permitted by the terms of Section
10.2. in accordance with the terms thereof but only, in each case, to the extent
required by, and subject to the subordination provisions contained in, the
agreements evidencing such Indebtedness was issued. Notwithstanding anything
contained in this Section to the contrary, the Borrower may make distributions
to its shareholders in the minimum amount necessary to maintain compliance with
53
Section 8.11. so long as (a) no Event of Default specified in Section 11.1.(a)
shall have occurred and be continuing; (b) the Borrower shall not have failed to
make two consecutive scheduled payments of interest on any of the Obligations
when due which failure shall remain uncured and (c) none of the Obligations have
been accelerated as a result of any Event of Default.
SECTION 10.7 MERGER, CONSOLIDATION AND SALES OF ASSETS.
(a) Enter into, or permit any Subsidiary or other Loan Party to enter
into, any transaction of merger or consolidation; (b) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution) or permit any
Subsidiary or other Loan Party to do any of the foregoing; or (c) convey, sell,
lease, sublease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any substantial part of its business or assets,
or the capital stock of or other equity interests in any of its Subsidiaries,
whether now owned or hereafter acquired or permit any Subsidiary or other Loan
Party to do any of the foregoing; provided, however, that:
(i) any Subsidiary of the Borrower may merge or consolidate with
the Borrower or a Wholly Owned Subsidiary of the Borrower;
(ii) any Subsidiary or other Loan Party may sell, transfer or
dispose of its assets to the Borrower or a Wholly Owned Subsidiary of the
Borrower;
(iii) a Wholly Owned Subsidiary may liquidate provided that
immediately prior to such liquidation and immediately thereafter and after
giving effect thereto, no Default or Event of Default is or would be in
existence;
(iv) a Subsidiary that is not a Material Subsidiary, does not own an
Unencumbered Pool Property and is not a party to a Guaranty or Accession
Agreement delivered pursuant to Sections 6.1.(a)(viii) and 8.13., as
applicable (an "Exempt Subsidiary"), may merge or consolidate with another
Person, so long as immediately prior to such merger or consolidation, and
immediately thereafter and after giving effect thereto, no Default or Event
of Default is or would be in existence; and
(v) an Exempt Subsidiary may sell all or substantially all of its
business or assets, and the Borrower or any Exempt Subsidiary may sell all
or substantially all of the capital stock of or other equity interests in
any Subsidiary that is itself an Exempt Subsidiary, so long as immediately
prior to any such sale, and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would be in existence.
Further, neither the Borrower, any Subsidiary nor any other Loan Party shall
enter into any sale-leaseback transactions or other transaction by which the
Borrower, a Subsidiary or a Loan Party shall remain liable as lessee (or the
economic equivalent thereof) of any real or personal property that it has sold
or leased to another Person.
SECTION 10.8 NO PLAN ASSETS.
54
Permit, or permit any Subsidiary or any other Loan Party to permit, any of
its respective assets to become or be deemed to be "plan assets" within the
meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder other than the contributions to an Employee Benefit Plan.
SECTION 10.9 FISCAL YEAR.
Change its fiscal year from that in effect as of the Agreement Date.
SECTION 10.10 MODIFICATIONS TO MATERIAL CONTRACTS.
Enter into, or permit any Subsidiary or other Loan Party to enter into, any
amendment or modification to any Material Contract which could reasonably be
expected to have a Material Adverse Effect or default in the performance of any
obligations of any Material Contract or permit any Material Contract to be
canceled or terminated more than one month prior to its stated maturity.
SECTION 10.11 TRANSACTIONS WITH AFFILIATES.
Permit to exist or enter into, and will not permit any of its Subsidiaries
or any of the other Loan Parties to permit to exist or enter into, any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Borrower or with any
director, officer or employee of the Borrower or any other Loan Party, except
transactions in the ordinary course of and pursuant to the reasonable
requirements of the business of the Borrower or any of its Subsidiaries and upon
fair and reasonable terms which are no less favorable to the Borrower or such
Subsidiary than would be obtained in a comparable arm's length transaction with
a Person that is not an Affiliate.
ARTICLE XI. DEFAULT
SECTION 11.1 EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment of Principal. The Borrower shall fail to pay when
-------------------------------
due (whether upon demand, at maturity, by reason of acceleration or otherwise)
the principal of the Loan.
(b) Default in Payment of Other Amounts. The Borrower shall fail to pay
-----------------------------------
when due any interest on the Loan or any of the other payment Obligations (other
than the principal of any Loan) owing by the Borrower under this Agreement or
any other Loan Document and such failure shall continue for a period of 3
Business Days after the date upon which the Borrower or any Subsidiary obtains
knowledge of such failure.
(c) Default in Performance. (i) The Borrower shall fail to perform or
----------------------
observe any term, covenant, condition or agreement on its part to be performed
or observed contained in Section 8.11.,
55
Section 9.4.(l) or Article X. or (ii) the Borrower, any Subsidiary or any other
Loan Party shall fail to perform or observe any term, covenant, condition or
agreement contained in this Agreement or any other Loan Document to which it is
a party and not otherwise mentioned in this Section and in the case of this
clause (ii) such failure shall continue for a period of 60 days after the
earlier of (x) the date upon which the Borrower, such Subsidiary or such Loan
Party obtains knowledge of such failure or (y) the date upon which the Borrower
has received written notice of such failure from the Administrative Agent.
(d) Misrepresentations. Any written statement, representation or warranty
------------------
made or deemed made by or on behalf of the Borrower, any Subsidiary or any other
Loan Party under this Agreement or under any other Loan Document, or any
amendment hereto or thereto, or in any other writing or statement at any time
furnished or made or deemed made by or on behalf of the Borrower, any Subsidiary
or any other Loan Party to the Administrative Agent or any Lender, shall at any
time prove to have been incorrect or misleading in any material respect when
furnished or made.
(e) Indebtedness Cross-Default.
--------------------------
(i) The Borrower, any Subsidiary or any other Loan Party shall fail
to pay when due and payable the principal of, or interest on (after giving
effect to the expiration of any applicable grace period for the payment of
such interest), any Indebtedness (other than the Loan) having an aggregate
outstanding principal amount of $15,000,000 or more; or
(ii) the maturity of any such Indebtedness shall have (x) been
accelerated in accordance with the provisions of any indenture, contract or
instrument evidencing, providing for the creation of or otherwise
concerning such Indebtedness or (y) been required to be prepaid prior to
the stated maturity thereof; or
(iii) any other event shall have occurred and be continuing (and any
related grace period shall have expired) which would permit any holder or
holders of such Indebtedness, any trustee or agent acting on behalf of such
holder or holders or any other Person, to accelerate the maturity of any
such Indebtedness or require any such Indebtedness to be prepaid prior to
its stated maturity.
(f) Voluntary Bankruptcy Proceeding. The Borrower, any Material Subsidiary
-------------------------------
or any other Loan Party shall: (i) commence a voluntary case under the
Bankruptcy Code of 1978, as amended or other federal bankruptcy laws (as now or
hereafter in effect); (ii) file a petition seeking to take advantage of any
other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; (iii) consent
to, or fail to contest in a timely and appropriate manner, any petition filed
against it in an involuntary case under such bankruptcy laws or other Applicable
Laws or consent to any proceeding or action described in the immediately
following subsection; (iv) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking of possession
by, a receiver, custodian, trustee, or liquidator of itself or of a substantial
part of its property, domestic or foreign; (v) admit in writing its inability to
pay its debts as they become due; (vi) make a general assignment for the benefit
of creditors; (vii) make a conveyance fraudulent as to creditors under any
Applicable
56
Law; or (viii) take any corporate or similar action for the purpose of effecting
any of the foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
---------------------------------
commenced against the Borrower, any Material Subsidiary or any other Loan Party,
in any court of competent jurisdiction seeking: (i) relief under the Bankruptcy
Code of 1978, as amended or other federal bankruptcy laws (as now or hereafter
in effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator
or the like of such Person, or of all or any substantial part of the assets,
domestic or foreign, of such Person, and such case or proceeding shall continue
undismissed or unstayed for a period of sixty consecutive calendar days, or an
order granting the relief requested in such case or proceeding against such
Person (including, but not limited to, an order for relief under such Bankruptcy
Code of 1978 or such other federal bankruptcy laws) shall be entered.
(h) Contest of Loan Documents. The Borrower or any other Loan Party shall
-------------------------
disavow, revoke or terminate any Loan Document to which it is a party or shall
otherwise challenge or contest in any action, suit or proceeding in any court or
before any Governmental Authority the validity or enforceability of this
Agreement, any Note or any other Loan Document.
(i) Judgment. A judgment or order for the payment of money (not adequately
--------
covered by insurance as to which the insurance company has acknowledged coverage
in writing) shall be entered against the Borrower, any Material Subsidiary or
any other Loan Party by any court or other tribunal which exceeds, individually
or together with all other such judgments or orders entered against the
Borrower, the Subsidiaries and the other Loan Parties, $5,000,000 in amount (or
which shall otherwise have a Material Adverse Effect) and such judgment or order
shall continue for a period of 30 days without being stayed or dismissed through
appropriate appellate proceedings.
(j) Attachment. A warrant, writ of attachment, execution or similar
----------
process shall be issued against any property of the Borrower or any other Loan
Party which exceeds, individually or together with all other such warrants,
writs, executions and processes, $5,000,000 in amount and such warrant, writ,
execution or process shall not be discharged, vacated, stayed or bonded for a
period of 30 days; provided, however, that if a bond has been issued in favor of
the claimant or other Person obtaining such warrant, writ, execution or process,
the issuer of such bond shall execute a waiver or subordination agreement in
form and substance satisfactory to the Administrative Agent pursuant to which
the issuer of such bond subordinates its right of reimbursement, contribution or
subrogation to the Obligations and waives or subordinates any Lien it may have
on the assets of any Loan Party.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
-----
amount or amounts aggregating in excess of $5,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be
57
entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one
or more Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $5,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall occur
--------------
under any of the other Loan Documents.
(m) Change of Control/Change in Management.
--------------------------------------
(i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a Person will be deemed
to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 20% of the
total voting power of the then outstanding voting stock of the Borrower; or
(ii) during any twelve-month period (commencing both before and
after the Agreement Date), a majority of the Board of Trustees of the
Borrower shall no longer be composed of individuals (i) who were members of
such Board of Trustees on the first date of such period, (ii) whose
election or nomination to such Board of Trustees was approved by
individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of such Board of Trustees
or (iii) whose election or nomination to such Board of Trustees was
approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a majority
of such Board of Trustees; or
(iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and any two of ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇ shall cease for any reason (including death or
disability) to be principally involved in the senior management of the
Borrower on a full-time basis (such event a "Change in Management") and the
Borrower shall fail to replace such individuals with individuals reasonably
acceptable to the Requisite Lenders within 120 days of the last day the
occurrence of such Change in Management.
(n) Dissolution. Any order, judgment or decree is entered against the
-----------
Borrower, any Material Subsidiary or any other Loan Party decreeing the
dissolution or split up of the Borrower, such Subsidiary or such other Loan
Party and such order remains undischarged or unstayed for a period in excess of
30 days.
(o) Subordination of Obligations. (i) Any Loan Document shall cease to be
----------------------------
in full force and effect, or (ii) any Obligation shall be subordinated in right
of payment to any other liability of the Borrower, and, in either case, such
condition or event shall continue for 15 days after the Borrower or any other
Loan Party obtains knowledge of such condition or event.
58
SECTION 11.2 REMEDIES UPON EVENT OF DEFAULT.
Upon the occurrence of an Event of Default the following provisions shall
apply:
(a) Acceleration; Termination of Facilities.
---------------------------------------
(i) Automatic. Upon the occurrence of an Event of Default specified
---------
in Sections 11.1.(f) or 11.1.(g), (A) the principal of, and all accrued
interest on, the Loan and the Notes at the time outstanding, and (B) all
of the other Obligations of the Borrower, including, but not limited to,
the other amounts owed to the Lenders and the Administrative Agent under
this Agreement, the Notes or any of the other Loan Documents shall become
immediately and automatically due and payable by the Borrower without
presentment, demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower.
(ii) Optional. If any other Event of Default shall have occurred and
--------
be continuing, the Administrative Agent may, and at the direction of the
Requisite Lenders shall: declare (1) the principal of, and accrued
interest on, the Loan and the Notes at the time outstanding, and (2) all of
the other Obligations, including, but not limited to, the other amounts
owed to the Lenders and the Administrative Agent under this Agreement, the
Notes or any of the other Loan Documents to be forthwith due and payable,
whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrower.
(b) Loan Documents. The Requisite Lenders may direct the Administrative
--------------
Agent to, and the Administrative Agent if so directed shall, exercise any and
all of its rights under any and all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Administrative
--------------
Agent to, and the Administrative Agent if so directed shall, exercise all other
rights and remedies it may have under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law,
-----------------------
the Administrative Agent and the Lenders shall be entitled to the appointment of
a receiver for the assets and properties of the Borrower and its Subsidiaries,
without notice of any kind whatsoever and without regard to the adequacy of any
security for the Obligations or the solvency of any party bound for its payment,
to take possession of all or any portion of the business operations of the
Borrower and its Subsidiaries and to exercise such power as the court shall
confer upon such receiver.
SECTION 11.3 [INTENTIONALLY OMITTED].
SECTION 11.4 ALLOCATION OF PROCEEDS.
If an Event of Default shall have occurred and be continuing and the
Obligations have been accelerated, all payments received by the Administrative
Agent under any of the Loan Documents, in respect of any principal of or
interest on the Obligations or any other amounts payable by the
59
Borrower hereunder or thereunder, shall be applied by the Administrative Agent
in the following order and priority:
(a) amounts due to the Administrative Agent and the Lenders in
respect of Fees and expenses due under Section 13.2.;
(b) payments of interest on the Loan to be applied for the ratable
benefit of the Lenders;
(c) payments of principal of the Loan to be applied for the ratable
benefit of the Lenders;
(d) [Intentionally Omitted]
(e) amounts due to the Administrative Agent and the Lenders pursuant
to Sections 12.7. and 13.9.;
(f) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the Lenders;
and
(g) any amount remaining after application as provided above, shall
be paid to the Borrower or whomever else may be legally entitled thereto.
SECTION 11.5 [INTENTIONALLY OMITTED].
SECTION 11.6 PERFORMANCE BY ADMINISTRATIVE AGENT.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Administrative Agent may perform or
attempt to perform such covenant, duty or agreement on behalf of the Borrower
after the expiration of any cure or grace periods set forth herein. In such
event, the Borrower shall, at the request of the Administrative Agent, promptly
pay any amount reasonably expended by the Administrative Agent in such
performance or attempted performance to the Administrative Agent, together with
interest thereon at the applicable Post-Default Rate from the date of such
expenditure until paid. Notwithstanding the foregoing, neither the
Administrative Agent nor any Lender shall have any liability or responsibility
whatsoever for the performance of any obligation of the Borrower under this
Agreement or any other Loan Document.
SECTION 11.8 RIGHTS CUMULATIVE.
The rights and remedies of the Administrative Agent and the Lenders under
this Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the
Administrative Agent and the Lenders may be selective and no failure or delay by
the Administrative Agent or any of the Lenders in exercising any right shall
operate as a waiver of it, nor shall any single or partial exercise of any power
or right preclude its
60
other or further exercise or the exercise of any other power or right.
SECTION 11.9 RECISION OF ACCELERATION BY REQUISITE LENDERS.
If at any time after acceleration of the maturity of the Obligations, the
Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by
Applicable Law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Defaults (other than nonpayment of principal of
and accrued interest on the Obligations due and payable solely by virtue of
acceleration) shall be remedied or waived to the satisfaction of the Requisite
Lenders, then by written notice to the Borrower, the Requisite Lenders may
elect, in the sole discretion of such Requisite Lenders, to rescind and annul
the acceleration and its consequences; but such action shall not affect any
subsequent Default or Event of Default or impair any right or remedy consequent
thereon. The provisions of the preceding sentence are intended merely to bind
the Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower and do not give the
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are satisfied.
ARTICLE XII. THE AGENTS
SECTION 12.1 AUTHORIZATION AND ACTION.
Each Lender hereby appoints and authorizes the Administrative Agent to take
such action as agent on such Lender's behalf and to exercise such powers under
this Agreement and the other Loan Documents as are specifically delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto. The relationship between the
Administrative Agent and the Lenders shall be that of principal and agent only
and nothing herein shall be construed to deem the Administrative Agent a trustee
or fiduciary for any Lender nor to impose on the Administrative Agent duties or
obligations other than those expressly provided for herein. At the request of a
Lender, the Administrative Agent will forward to such Lender copies or, where
appropriate, originals of the documents delivered to the Administrative Agent
pursuant to this Agreement or the other Loan Documents. The Administrative Agent
will also furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to the Administrative Agent by the Borrower, any
Subsidiary or any other Loan Party, pursuant to this Agreement or any other Loan
Document not already delivered to such Lender pursuant to the terms of this
Agreement or any such other Loan Document. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of any of the Obligations), the Administrative Agent shall not be
required to exercise any discretion or take any action, and the Administrative
Agent shall only be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders (or all of the Lenders if explicitly required under any
other provisions of this Agreement), and such instructions shall be binding upon
all Lenders and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Administrative
Agent shall not be required to take any action which exposes the Administrative
Agent to personal liability or which is contrary to this Agreement or any other
Loan Document or Applicable Law. Not in
61
limitation of the foregoing, the Administrative Agent shall not exercise any
right or remedy it or the Lenders may have under any Loan Document upon the
occurrence of a Default or an Event of Default unless the Requisite Lenders have
so directed the Administrative Agent to exercise such right or remedy.
SECTION 12.2 ADMINISTRATIVE AGENT'S RELIANCE, ETC.
Notwithstanding any other provision of any Loan Document, neither the
Administrative Agent nor any of the Administrative Agent's directors, officers,
agents, employees or counsel shall be liable for any action taken or omitted to
be taken by it or them under or in connection with this Agreement, except for
its or their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Administrative Agent: (a) may treat the payee
of any Note as the holder thereof until the Administrative Agent receives
written notice of the assignment or transfer thereof signed by such payee and in
form satisfactory to the Administrative Agent; (b) may consult with legal
counsel (including its own counsel or counsel for the Borrower or any Loan
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (c)
makes no warranty or representation to any Lender or any other Person and shall
not be responsible to any Lender or any other Person for any statements,
warranties or representations made by any Person in or in connection with this
Agreement or any other Loan Document; (d) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of any of this Agreement or any other Loan Document or the
satisfaction of any conditions precedent under this Agreement or any Loan
Document on the part of the Borrower or other Persons or inspect the property,
books or records of the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, any other instrument or document furnished pursuant thereto or
any collateral covered thereby or the perfection or priority of any Lien in
favor of the Administrative Agent on behalf of the Lenders in any such
collateral; and (f) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone or
telecopy) believed by it to be genuine and signed, sent or given by the proper
party or parties.
SECTION 12.3 NOTICE OF DEFAULTS.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default, other than a Default or Event
of Default under Section 11.1.(a) or (b), unless the Administrative Agent has
received notice from a Lender or the Borrower referring to this Agreement,
describing with reasonable specificity such Default or Event of Default and
stating that such notice is a "notice of default." If any Lender becomes aware
of any Default or Event of Default, it shall promptly send to the Administrative
Agent such a "notice of default." Further, if the Administrative Agent receives
such a "notice of default", the Administrative Agent shall give prompt notice
thereof to the Lenders.
62
SECTION 12.4 PNC AS LENDER.
PNC, as a Lender, shall have the same rights and powers under this
Agreement and any other Loan Document as any other Lender and may exercise the
same as though it were not an Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include PNC in its individual capacity.
PNC and and its affiliates may accept deposits from, maintain deposits or credit
balances for, invest in, lend money to, act as trustee under indentures of,
serve as financial advisor to, and generally engage in any kind of business with
the Borrower, any Subsidiary, any other Loan Party or any other affiliate
thereof as if it were any other bank and without any duty to account therefor to
the other Lenders. Further, the Administrative Agent and any affiliate may
accept fees and other consideration from the Borrower for services in connection
with this Agreement and otherwise without having to account for the same to the
other Lenders.
SECTION 12.5 APPROVALS OF LENDERS.
All communications from the Administrative Agent to any Lender requesting
such Lender's determination, consent, approval or disapproval (a) shall be given
in the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
the Administrative Agent by the Borrower in respect of the matter or issue to be
resolved, and (d) shall include the Administrative Agent's recommended course of
action or determination in respect thereof. Each Lender shall reply promptly,
but in any event within 10 Business Days (or such lesser or greater period as
may be specifically required or permitted under the Loan Documents for the
Administrative Agent to respond). Unless a Lender shall give written notice to
the Administrative Agent that it objects to the recommendation or determination
of the Administrative Agent (together with a written explanation of the reasons
behind such objection) within the applicable time period for reply, such Lender
shall be deemed to have conclusively approved of or consented to such
recommendation or determination.
SECTION 12.6 LENDER CREDIT DECISION, ETC.
Each Lender expressly acknowledges and agrees that neither the
Administrative Agent nor any of the Administrative Agent's respective officers,
directors, employees, agents, counsel, attorneys-in-fact or other affiliates has
made any representations or warranties as to the financial condition,
operations, creditworthiness, solvency or other information concerning the
business or affairs of the Borrower, any Subsidiary, any other Loan Party or
other Person to such Lender and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any such representation or warranty by the Administrative
Agent to any Lender. Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, any other Lender or counsel to
the Administrative Agent, or any of their respective officers, directors,
employees and agents, and based on the financial statements of the Borrower, the
Subsidiaries or any other Affiliate thereof, and inquiries of such Persons, its
independent due diligence of the business and affairs of the Borrower, the
Subsidiaries, the other
63
Loan Parties and other Persons, its review of the Loan Documents, the legal
opinions required to be delivered to it hereunder, the advice of its own counsel
and such other documents and information as it has deemed appropriate, made its
own credit and legal analysis and decision to enter into this Agreement and the
transaction contemplated hereby. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent, any other
Lender or counsel to the Administrative Agent or any of their respective
officers, directors, employees and agents, and based on such review, advice,
documents and information as it shall deem appropriate at the time, continue to
make its own decisions in taking or not taking action under the Loan Documents.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent under this
Agreement or any of the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial and other
condition or creditworthiness of the Borrower, any other Loan Party or any other
Affiliate thereof which may come into possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or other
affiliates.
SECTION 12.7 INDEMNIFICATION OF THE ADMINISTRATIVE AGENT.
Each Lender agrees to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so) pro rata in accordance with such Lender's respective Commitment
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against the Administrative Agent in any way relating to or
arising out of the Loan Documents (collectively "Indemnifiable Amounts"), any
transaction contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under the Loan Documents; provided, however, that no Lender
shall be liable for any portion of such Indemnifiable Amounts to the extent
resulting from the Administrative Agent's gross negligence or willful misconduct
or, if the Administrative Agent fails to follow the written direction of the
Requisite Lenders unless such failure is pursuant to the advice of counsel of
which the Lenders have received notice. Without limiting the generality of the
foregoing, each Lender agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees of the counsel(s) of the Administrative Agent's own choosing)
incurred by the Administrative Agent in connection with the preparation,
execution, administration, or enforcement of, or legal advice with respect to
the rights or responsibilities of the parties under, the Loan Documents, any
suit or action brought by the Administrative Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any "lender liability" suit or
claim brought against the Administrative Agent and/or the Lenders, and any claim
or suit brought against the Administrative Agent and/or the Lenders arising
under any Environmental Laws, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrower. Such out-of-pocket expenses
(including counsel fees) shall be advanced by the Lenders on the request of the
Administrative Agent notwithstanding any claim or assertion that the
Administrative Agent is not entitled to indemnification hereunder upon receipt
of an undertaking by the Administrative Agent that the Administrative Agent will
reimburse the Lenders if it is actually and finally determined by a court of
competent jurisdiction that the Administrative Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the
Loan
64
and all other amounts payable hereunder or under the other Loan Documents and
the termination of this Agreement. If the Borrower shall reimburse the
Administrative Agent for any Indemnifiable Amount following payment by any
Lender to the Administrative Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Administrative Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.
SECTION 12.8 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time as Administrative Agent
under the Loan Documents by giving written notice thereof to the Lenders and the
Borrower. In the event of a material breach of its duties hereunder, the
Administrative Agent may be removed as Administrative Agent under the Loan
Documents at any time by the Requisite Lenders upon 30-day's prior notice. The
Requisite Lenders shall have the right to appoint a successor Administrative
Agent and, provided no Default or Event of Default shall have occurred and be
continuing, be subject to the Borrower's approval, which approval shall not be
unreasonably withheld or delayed (except that Borrower shall, in all events, be
deemed to have approved each Lender as a successor Administrative Agent). If no
successor Administrative Agent shall have been so appointed by the Requisite
Lenders, and shall have accepted such appointment, within 30 days after the
resigning Administrative Agent's giving of notice of resignation or the
Requisite Lenders' removal of the resigning Administrative Agent, then the
resigning or removed Administrative Agent may, on behalf of the Lenders, appoint
a successor Administrative Agent, which shall be a Lender, if any Lender shall
be willing to serve, and otherwise shall be a commercial bank having total
combined assets of at least $50,000,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent, as applicable, shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations as "Administrative Agent"
under the Loan Documents. After any resigning Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Article
XII. shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under the Loan Documents.
SECTION 12.9 SYNDICATION AND DOCUMENTATION AGENTS.
The Syndication Agent and Documentation Agent in their respective
capacities as such, do not assume any responsibility or obligation hereunder,
including, without limitation, for servicing, enforcement or collection of the
Loan, nor any duties as agents hereunder for the Lenders. The titles of
"Syndication Agent" and "Documentation Agent" are solely honorific and imply no
fiduciary responsibility on the part and of the Syndication Agent or the
Documentation Agent, in their respective capacities as such, to the
Administrative Agent, the Borrower or any Lender and the use of such titles do
not impose on the Syndication Agent or the Documentation Agent any duties or
obligations greater than those of any other Lender or entitle the Syndication
Agent or the Documentation Agent to any rights other than those to which any
other Lender is entitled.
SECTION 12.10 APPROVALS AND OTHER ACTIONS BY REQUISITE LENDERS.
Each of the following shall require the approval of, or may be taken at the
request of, the
65
Requisite Lenders:
(a) Consent to an increase in the aggregate amount of the Commitments from
$125,000,000 to $150,000,000, provided that no such consent shall obligate any
Lender to increase its Commitment;
(b) Subject to Section 4.4, approval of Eligible Properties as
Unencumbered Pool Properties as provided in Section 4.1.;
(c) Termination of the Commitments and acceleration of the Obligations
upon the occurrence of an Event of Default as provided in Section 11.2.;
(d) Rescission of acceleration of any of the Obligations as provided in
Section 11.8.;
(e) Removing the Administrative Agent for good cause and approving of its
replacement as provided in Section 12.8.; and
(f) Except as specifically provided otherwise in Section 13.6., any
consent or approval regarding, any waiver of the performance or observance by
the Borrower of and the waiver of the continuance of any Default or Event of
Default in respect of, any term of this Agreement or any other Loan Document.
ARTICLE XIII. MISCELLANEOUS
SECTION 13.1 NOTICES.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
Federal Realty Investment Trust
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Legal Department
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative Agent:
PNC Bank, National Association
One PNC Plaza, 249 Fifth Avenue
Mail Stop P1-▇▇▇▇-22-1
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Agency Services
66
(▇▇▇) ▇▇▇.▇▇▇▇
(▇▇▇) ▇▇▇.▇▇▇▇
With a copy to:
PNC Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇.▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇.▇▇▇▇
If to a Lender:
To such Lender's address or telecopy number, as applicable, set forth
on its signature page hereto or in the applicable Assignment and
Acceptance Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Administrative Agent or any Lender under
Article II. shall be effective only when actually received. Neither the
Administrative Agent nor any Lender shall incur any liability to the Borrower
(nor shall the Administrative Agent incur any liability to the Lenders) for
acting upon any telephonic notice referred to in this Agreement which the
Administrative Agent or such Lender, as the case may be, believes in good faith
to have been given by a Person authorized to deliver such notice or for
otherwise acting in good faith under hereunder.
SECTION 13.2 EXPENSES.
The Borrower agrees (a) to pay or reimburse the Administrative Agent for
all of its reasonable out-of-pocket costs and expenses incurred in connection
with the preparation, negotiation and execution of, and any amendment,
supplement or modification to, any of the Loan Documents (including due
diligence expenses and travel expenses relating to closing), and the
consummation of the transactions contemplated thereby, including the reasonable
fees and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse the Administrative Agent and the Lenders for all their costs and
expenses incurred in connection with the enforcement or preservation of any
rights under the Loan Documents, including the reasonable fees and disbursements
of their respective counsel (including the allocated fees and expenses of in-
house counsel) and any payments in indemnification or otherwise payable by the
Lenders to the Administrative Agent pursuant to the Loan Documents, (c) to pay,
indemnify and hold the Administrative Agent and the Lenders harmless from any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of any of the Loan
Documents, or consummation of any amendment, supplement or modification
67
of, or any waiver or consent under or in respect of, any Loan Document and (d)
to the extent not already covered by any of the preceding subsections, to pay or
reimburse the Administrative Agent and the Lenders for all their costs and
expenses incurred in connection with any bankruptcy or other proceeding of the
type described in Sections 11.1.(f) or 11.1.(g), including the reasonable fees
and disbursements of counsel to the Administrative Agent and any Lender, whether
such fees and expenses are incurred prior to, during or after the commencement
of such proceeding or the confirmation or conclusion of any such proceeding.
SECTION 13.3 SETOFF.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence and during the continuation of a Default or an Event of
Default, the Administrative Agent and each Lender is hereby authorized by the
Borrower, at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, but in the case
of any Lender only with the prior written consent of the Administrative Agent,
to set-off and to appropriate and to apply any and all deposits (general or
special, including, but not limited to, indebtedness evidenced by certificates
of deposit, whether matured or unmatured) and any other indebtedness at any time
held or owing by the Administrative Agent, such Lender or any affiliate of the
Administrative Agent or such Lender, to or for the credit or the account of the
Borrower against and on account of any of the Obligations, irrespective of
whether or not the Loan and all other Obligations have declared to be due and
payable as permitted by Section 11.2., and although such obligations shall be
contingent or unmatured.
SECTION 13.4 ARBITRATION.
UPON DEMAND OF ANY PARTY HERETO, WHETHER MADE BEFORE OR AFTER INSTITUTION
OF ANY JUDICIAL PROCEEDING, ANY CLAIM OR CONTROVERSY ARISING OUT OF, OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS ("DISPUTES") BETWEEN OR AMONG ANY
SUCH PARTIES SHALL BE RESOLVED BY BINDING ARBITRATION CONDUCTED UNDER AND
GOVERNED BY THE COMMERCIAL FINANCIAL DISPUTES ARBITRATION RULES (THE
"ARBITRATION RULES") OF THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA") AND THE
FEDERAL ARBITRATION ACT. DISPUTES MAY INCLUDE, WITHOUT LIMITATION, TORT CLAIMS,
COUNTERCLAIMS, DISPUTES AS TO WHETHER A MATTER IS SUBJECT TO ARBITRATION, CLAIMS
BROUGHT AS CLASS ACTIONS, AND CLAIMS ARISING FROM LOAN DOCUMENTS EXECUTED IN THE
FUTURE. A JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION PROVISION DOES NOT
APPLY TO DISPUTES UNDER OR RELATED TO INTEREST RATE AGREEMENTS TO WHICH ANY
LENDER IS A PARTY. ALL ARBITRATION HEARINGS SHALL BE CONDUCTED IN WASHINGTON,
D.C. A HEARING SHALL BEGIN WITHIN 90 DAYS OF DEMAND FOR ARBITRATION AND ALL
HEARINGS SHALL CONCLUDED WITHIN 120 DAYS OF DEMAND FOR ARBITRATION. THESE TIME
LIMITATIONS MAY NOT BE EXTENDED UNLESS A PARTY SHOWS CAUSE FOR EXTENSION AND
THEN NO MORE THAN A TOTAL EXTENSION OF 60 DAYS. THE
68
EXPEDITED PROCEDURES SET FORTH IN RULE 51 ET. SEQ. OF THE ARBITRATION RULES
SHALL BE APPLICABLE TO CLAIMS OF LESS THAN $1,000,000. ARBITRATORS SHALL BE
LICENSED ATTORNEYS SELECTED FROM THE COMMERCIAL FINANCIAL DISPUTE ARBITRATION
PANEL OF THE AAA. THE PARTIES DO NOT WAIVE ANY APPLICABLE LAWS EXCEPT AS
PROVIDED HEREIN. NOTWITHSTANDING THE PRECEDING BINDING ARBITRATION PROVISIONS,
THE PARTIES AGREE TO PRESERVE, WITHOUT DIMINUTION, THE FOLLOWING REMEDIES THAT
THE ADMINISTRATIVE AGENT OR THE LENDERS MAY EXERCISE BEFORE OR AFTER AN
ARBITRATION PROCEEDING IS BROUGHT. SUBJECT TO THE OTHER TERMS HEREOF, THE
ADMINISTRATIVE AGENT AND THE LENDERS SHALL HAVE THE RIGHT TO PROCEED IN ANY
COURT OF PROPER JURISDICTION OR BY SELF-HELP TO EXERCISE OR PROSECUTE THE
FOLLOWING REMEDIES, AS APPLICABLE: (I) ALL RIGHTS TO FORECLOSE AGAINST ANY REAL
OR PERSONAL PROPERTY OR OTHER SECURITY BY EXERCISING A POWER OF SALE OR UNDER
APPLICABLE LAW BY JUDICIAL FORECLOSURE INCLUDING A PROCEEDING TO CONFIRM THE
SALE; (II) ALL RIGHTS OF SELF-HELP INCLUDING PEACEFUL OCCUPATION OF REAL
PROPERTY AND COLLECTION OF RENTS, SET-OFF, AND PEACEFUL POSSESSION OF PERSONAL
PROPERTY; (III) OBTAINING PROVISIONAL OR ANCILLARY REMEDIES INCLUDING INJUNCTIVE
RELIEF, SEQUESTRATION, GARNISHMENT, ATTACHMENT, APPOINTMENT OF RECEIVER AND
FILING AN INVOLUNTARY BANKRUPTCY PROCEEDING; AND (IV) WHEN APPLICABLE, A
JUDGMENT BY CONFESSION OF JUDGMENT. ANY CLAIM OR CONTROVERSY WITH REGARD TO
PARTIES' ENTITLEMENT TO SUCH REMEDIES IS A DISPUTE. THE PARTIES HERETO
ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED
ANY RIGHT THEY MAY HAVE TO A JURY TRIAL WITH REGARD TO A DISPUTE. FURTHER, THE
PARTIES AGREE THAT IF (X) THE ADMINISTRATIVE AGENT OR THE LENDERS SHALL BE
ENTITLED TO EXERCISE ANY RIGHT OR REMEDY UNDER ARTICLE XI. SOLELY BECAUSE ANY
EVENT OR CONDITION HAS OCCURRED OR EXISTS (OR HAS FAILED TO OCCUR OR EXIST)
WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT (AS DEFINED
HEREIN) AND (Y) THE BORROWER IN GOOD FAITH SHALL DISPUTE THE REQUISITE LENDERS'
DETERMINATION OF MATERIALITY AS PERMITTED BY THE LAST SENTENCE OF THE DEFINITION
OF THE TERM MATERIAL ADVERSE EFFECT, THEN THE EXERCISE OF SUCH RIGHTS AND
REMEDIES SHALL BE SUBJECT TO RESOLUTION OF SUCH DISPUTE PURSUANT TO ARBITRATION
IN ACCORDANCE WITH THIS SECTION.
SECTION 13.5 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all Lenders.
(b) Any Lender may make, carry or transfer its portion of the Loan at, to
or for the
69
account of, any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, (i) any
such participating interest must be for a constant and not a varying percentage
interest, (ii) no Lender may grant a participating interest in its Commitment,
or if the Commitments have been terminated, the aggregate outstanding principal
balance of Notes held by it, in an amount less than $5,000,000 and integral
multiples of $5,000,000 in excess thereof and (iii) after giving effect to any
such participation a Lender, the amount of its Commitment, or if the Commitments
have been terminated, the aggregate outstanding principal balance of Notes held
by it, in which it has not granted any participating interests must be at least
$5,000,000. Except as otherwise provided in Section 13.3., no Participant shall
have any rights or benefits under this Agreement or any other Loan Document. In
the event of any such grant by a Lender of a participating interest to a
Participant, such Lender shall remain responsible for the performance of its
obligations hereunder, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided, however, such Lender may agree with the Participant that it will not,
without the consent of the Participant, agree to (i) increase, or extend the
term or extend the time or waive any requirement for the reduction or
termination of, such Lender's Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the Loans or portions thereof owing to
such Lender, (iii) reduce the amount of any such payment of principal, or (iv)
reduce the rate at which interest is payable thereon. An assignment or other
transfer which is not permitted by subsection (d) or (e) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (c). The selling Lender
shall notify the Administrative Agent and the Borrower of the sale of any
participation hereunder and the terms thereof.
(d) Any Lender may with the prior written consent of the Administrative
Agent and the Borrower (which consent in the case of the Administrative Agent
and the Borrower shall not be unreasonably withheld) assign to one or more
Eligible Assignees (each an "Assignee") all or a portion of its Commitment and
its other rights and obligations under this Agreement and the Notes; provided,
however, (i) no such consent by the Borrower shall be required (x) in the case
of any assignment to another Lender or any affiliate of such Lender or another
Lender or (y) if a Default or Event of Default shall have occurred and be
continuing; (ii) any partial assignment shall be in an amount at least equal to
$5,000,000 and integral multiples in of $5,000,000 in excess thereof and after
giving effect to such assignment the assigning Lender retains a Commitment, or
if the Commitments have been terminated, holds Notes having an aggregate
outstanding principal balance, of at least $5,000,000 and integral multiples of
$5,000,000 in excess thereof; (iii) each such assignment shall be effected by
means of an Assignment and Acceptance Agreement; (iv) the Administrative Agent,
in the Administrative Agent's capacity as a Lender, shall not effect any
assignment of its Commitment, if after giving effect thereto, the amount of such
Commitment would
70
be less than $5,000,000 more than the Commitment of any other Lender in its
capacity as a Lender, provided that, to the extent that an Event of Default
shall occur and be continuing hereunder, the Administrative Agent shall not be
required to maintain a Commitment in excess of the commitment of any other
Lender hereunder, subject to the right of the Requisite Lenders to remove the
Administrative Agent within thirty (30) days following the reduction in the
Administrative Agent's Commitment to less than $5,000,000 more than the
Commitment of any other Lender. Upon execution and delivery of such instrument
and payment by such Assignee to such transferor Lender of an amount equal to the
purchase price agreed between such transferor Lender and such Assignee, such
Assignee shall be deemed to be a Lender party to this Agreement as of the
effective date of the Assignment and Acceptance Agreement and shall have all the
rights and obligations of a Lender with a Commitment as set forth in such
Assignment and Acceptance Agreement, and the transferor Lender shall be released
from its obligations hereunder to a corresponding extent, and no further consent
or action by any party shall be required. Upon the consummation of any
assignment pursuant to this subsection (d), the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that new Notes are issued to the Assignee and such transferor Lender, as
appropriate. In connection with any such assignment, the transferor Lender shall
pay to the Administrative Agent an administrative fee for processing such
assignment in the amount of $3,500.
(e) The Administrative Agent shall maintain at the Principal Office a copy
of each Assignment and Acceptance Agreement delivered to and accepted by it and
a register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register"). The
Administrative Agent shall give each Lender and the Borrower notice of the
assignment by any Lender of its rights as contemplated by this Section. 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
Agreement. The Register and copies of each Assignment and Acceptance Agreement
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice to the
Administrative Agent. Upon its receipt of an Assignment and Acceptance
Agreement executed by an assigning Lender, together with each Note subject to
such assignment (the "Surrendered Note"), the Administrative Agent shall, if
such Assignment and Acceptance Agreement has been completed and if the
Administrative Agent receives the processing and recording fee described in
subsection (d) above, (i) accept such Assignment and Acceptance Agreement, (ii)
record the information contained therein in the Register, and (iii) give prompt
notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted under the
foregoing provisions of this Section, any Lender may assign and pledge all or
any of its portion of the Loan and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such portion of the Loan and Notes shall be
fully transferable as provided therein. No such assignment shall release the
assigning Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower, any other
Loan Party or any of their respective Subsidiaries in the possession of such
Lender from time to time to Assignees and Participants (including prospective
Assignees and Participants) subject to compliance
71
with Section 13.8.
(h) Anything in this Section to the contrary notwithstanding, no Lender may
assign or participate any interest in its portion of the Loan held by it
hereunder to the Borrower, any other Loan Party or any of their respective
Affiliates or Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of the
Borrower, or the Administrative Agent, it will not make any assignment hereunder
in any manner or under any circumstances that would require registration or
qualification of, or filings in respect of, the Loan or its Note under the
Securities Act or any other securities laws United States of America or of any
other jurisdiction.
SECTION 13.6 AMENDMENTS.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement or in any Loan Document to be
given by the Lenders may be given, and any term of this Agreement or of any
other Loan Document may be amended, and the performance or observance by the
Borrower or any Loan Party or Subsidiary of any terms of this Agreement or such
other Loan Document or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders
(and, in the case of an amendment to any Loan Document, the written consent of
the Borrower). Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing, and signed by all of the Lenders (or the
Administrative Agent at the written direction of all of the Lenders), do any of
the following: (i) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations, except as provided in Section 12.10(a),
(ii) reduce the principal of, or interest rates that have accrued or that will
be charged on the outstanding principal amount of, the Loan or other
Obligations; (iii) reduce the amount of any Fees payable hereunder; (iv)
postpone any date fixed for any payment of any principal of, interest on, or
Fees with respect to, the Loan or any other Obligations; (v) change the
Commitment Percentages, except to the extent that an increase in the Commitments
is approved in accordance with Section 12.10(a), (vi) amend this Section or
amend the definitions of the terms used in this Agreement or the other Loan
Documents insofar as such definitions affect the substance of this Section;
(vii) release any Guarantor from its obligations under its Guaranty or (viii)
modify the definition of the term "Requisite Lenders" or modify in any other
manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof.
Further, no amendment, waiver or consent unless in writing and signed by the
Administrative Agent, in addition to the Lenders required hereinabove to take
such action, shall affect the rights or duties of the Administrative Agent under
this Agreement or any of the other Loan Documents. No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Administrative Agent or any
Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Borrower shall
72
entitle the Borrower to other or further notice or demand in similar or other
circumstances.
SECTION 13.7 NONLIABILITY OF ADMINISTRATIVE AGENT AND LENDERS.
The relationship between the Borrower, on the one hand, and the Lenders and
the Administrative Agent, on the other, shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrower and no provision in this Agreement or
in any of the other Loan Documents, and no course of dealing between or among
any of the parties hereto, shall be deemed to create any fiduciary duty owing by
the Administrative Agent or any Lender to any Lender, the Borrower or any
Subsidiary. Neither the Administrative Agent nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or operations.
SECTION 13.8 CONFIDENTIALITY.
Except as otherwise provided by Applicable Law, the Administrative Agent
and each Lender shall utilize all non-public information obtained pursuant to
the requirements of this Agreement in accordance with its customary procedure
for handling confidential information of this nature and in accordance with safe
and sound banking practices but in any event may make disclosure: (a) to any of
their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
required by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required by any Governmental Authority or representative thereof or pursuant to
legal process; (d) to the Administrative Agent's or such Lender's independent
auditors and other professional advisors (provided they shall be notified of the
confidential nature of the information); and (e) after the happening and during
the continuance of an Event of Default, to any other Person, in connection with
the exercise by the Administrative Agent or the Lenders of rights hereunder or
under any of the other Loan Documents.
SECTION 13.9 INDEMNIFICATION.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Administrative Agent, any affiliate of the Administrative Agent and
each of the Lenders and their respective directors, officers, shareholders,
agents, employees and counsel (each referred to herein as an "Indemnified
Party") from and against any and all losses, costs, claims, damages,
liabilities, deficiencies, judgments or expenses of every kind and nature
(including, without limitation, amounts paid in settlement, court costs and the
fees and disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection
therewith, but excluding lost profits) (the foregoing items referred to herein
as "Claims and Expenses") incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the foregoing
referred to herein as an "Indemnity Proceeding") which is in any way related
directly or indirectly to: (i) this Agreement or any other Loan Document or the
transactions contemplated thereby; (ii) the
73
making of the Loan; (iii) any actual or proposed use by the Borrower of the
proceeds of the Loan; (iv) the Administrative Agent's or any Lender's entering
into this Agreement; (v) the fact that the Administrative Agent and the Lenders
have established the credit facility evidenced hereby in favor of the Borrower;
(vi) the fact that the Administrative Agent and the Lenders are creditors of the
Borrower and have or are alleged to have information regarding the financial
condition, strategic plans or business operations of the Borrower and the
Subsidiaries; (vii) the fact that the Administrative Agent and the Lenders are
material creditors of the Borrower and are alleged to influence directly or
indirectly the business decisions or affairs of the Borrower and the
Subsidiaries or their financial condition; (viii) the exercise of any right or
remedy the Administrative Agent or the Lenders may have under this Agreement or
the other Loan Documents; and (ix) any violation or non-compliance by the
Borrower or any Subsidiary of any Applicable Law (including any Environmental
Law) including, but not limited to, any Indemnity Proceeding commenced by (A)
the Internal Revenue Service or state taxing authority or (B) any Governmental
Authority or other Person under any Environmental Law, including any Indemnity
Proceeding commenced by a Governmental Authority or other Person seeking
remedial or other action to cause the Borrower or its Subsidiaries (or its
respective properties) (or the Administrative Agent and/or the Lenders as
successors to the Borrower) to be in compliance with such Environmental Laws;
provided, however, that the Borrower shall not be obligated to indemnify any
Indemnified Party (x) for any acts or omissions of such Indemnified Party in
connection with matters described in the preceding clause (viii) that constitute
gross negligence or willful misconduct or (y) for Claims and Expenses of a
Defaulting Lender to the extent such Claims and Expenses result from the gross
negligence or willful misconduct of such Defaulting Lender.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all costs and
expenses of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among
other things, apply to any Indemnity Proceeding commenced by other creditors of
the Borrower or any Subsidiary, any shareholder of the Borrower or any
Subsidiary (whether such shareholder(s) are prosecuting such Indemnity
Proceeding in their individual capacity or derivatively on behalf of the
Borrower), any account debtor of the Borrower or any Subsidiary or by any
Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding arising
during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to third-
persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense of,
and may
74
formulate its own strategy with respect to, any Indemnified Proceeding covered
by this Section and, as provided above, all costs and expenses incurred by the
Indemnified Party shall be reimbursed by the Borrower. No action taken by legal
counsel chosen by an Indemnified Party in investigating or defending against any
such Indemnified Proceeding shall vitiate or in any way impair the obligations
and duties of the Borrower hereunder to indemnify and hold harmless each such
Indemnified Party; provided, however, that (i) if the Borrower is required to
indemnify an Indemnified Party pursuant hereto and (ii) the Borrower has
provided evidence reasonably satisfactory to such Indemnified Party that the
Borrower has the financial wherewithal to reimburse such Indemnified Party for
any amount paid by such Indemnified Party with respect to such Indemnified
Proceeding, such Indemnified Party shall not settle or compromise any such
Indemnified Proceeding without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed).
(f) If and to the extent that the obligations of the Borrower hereunder are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination of
this Agreement and the other Loan Documents and the payment in full of the
Obligations, and are in addition to, and not in substitution of, any other of
their obligations set forth in this Agreement or any other Loan Document to
which it is a party.
SECTION 13.10 TERMINATION; SURVIVAL.
At such time as (a) all of the Commitments have been terminated, (b) none
of the Lenders is obligated any longer under this Agreement to make the Loan,
and (c) all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. Notwithstanding any termination of this Agreement, or of the other
Loan Documents, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of Sections 12.7., 13.2. and 13.9. and
any other provision of this Agreement and the other Loan Documents, and the
waivers of jury trial and submission to jurisdictions contained in Section
13.4., shall continue in full force and effect and shall protect the
Administrative Agent and the Lenders against events arising after such
termination as well as before.
SECTION 13.11 SEVERABILITY OF PROVISIONS.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 13.12 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA APPLICABLE TO CONTRACTS EXECUTED, AND
TO BE FULLY PERFORMED, IN SUCH STATE.
75
SECTION 13.13 COUNTERPARTS.
This Agreement and any amendments, waivers, consents or supplements may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
SECTION 13.14 OBLIGATIONS WITH RESPECT TO LOAN PARTIES.
The obligations of the Borrower to direct or prohibit the taking of certain
actions by the other Loan Parties as specified herein shall be absolute and not
subject to any defense the Borrower may have that the Borrower does not control
such Loan Parties.
SECTION 13.15 LIMITATION OF LIABILITY.
Neither the Administrative Agent nor any Lender, nor any affiliate,
officer, director, employee, attorney, or agent of either Administrative Agent
or any Lender shall have any liability with respect to, and the Borrower hereby
waives, releases, and agrees not to ▇▇▇ any of them upon, any claim for any
special, indirect, incidental, or consequential damages suffered or incurred by
the Borrower in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or any of the other Loan Documents. The Borrower
hereby waives, releases, and agrees not to ▇▇▇ the Administrative Agent or any
Lender or any of Administrative Agent's or any Lender's affiliates, officers,
directors, employees, attorneys, or agents for punitive damages in respect of
any claim in connection with, arising out of, or in any way related to, this
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or financed hereby.
SECTION 13.16 ENTIRE AGREEMENT.
This Agreement, the Notes, and the other Loan Documents referred to herein
embody the final, entire agreement among the parties hereto and supersede any
and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto.
SECTION 13.17 CONSTRUCTION.
The Administrative Agent, the Borrower and each Lender acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Administrative Agent, the
Borrower and each Lender.
SECTION 13.18 LIMITATION OF LIABILITY OF TRUSTEES, ETC.
THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL LOOK SOLELY TO
76
THE PROPERTY OF THE BORROWER AND THE OTHER LOAN PARTIES FOR THE ENFORCEMENT OF
ANY CLAIM AGAINST THE BORROWER AND SUCH LOAN PARTY UNDER OR IN RESPECT OF ANY OF
THE LOAN DOCUMENTS AND ACCORDINGLY NEITHER THE TRUSTEES, OFFICERS, EMPLOYEES,
AGENTS NOR SHAREHOLDERS OF THE BORROWER SHALL HAVE ANY PERSONAL LIABILITY FOR
OBLIGATIONS ENTERED INTO BY OR ON BEHALF OF THE BORROWER OR ANY OTHER LOAN
PARTY.
[Signatures on Following Pages]
77
IN WITNESS WHEREOF, the parties hereto have caused this Term Loan Agreement
to be executed by their authorized officers all as of the day and year first
above written.
BORROWER:
FEDERAL REALTY INVESTMENT TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Trustee
------------------------------
By: /s/ ▇▇▇ ▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇ ▇▇▇▇▇▇
-----------------------------------
Title: Chief Investment Officer
----------------------------------
[Signatures Continued on Next Page]
78
[SIGNATURE PAGE TO TERM LOAN AGREEMENT DATED AS OF
DECEMBER 22, 1998 WITH FEDERAL REALTY INVESTMENT TRUST]
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent, and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Assistant Vice President
--------------------------------
COMMITMENT AMOUNT:
$40,000,000
LENDING OFFICE (EACH TYPE OF LOAN):
PNC BANK, National Association
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop P1-▇▇▇▇-22-1
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇, Agency Services
Telecopier: (▇▇▇) ▇▇▇.▇▇▇▇
Telephone: (▇▇▇) ▇▇▇.▇▇▇▇
[Signatures Continued on Next Page]
79
[SIGNATURE PAGE TO TERM LOAN AGREEMENT DATED AS OF
DECEMBER 22, 1998 WITH FEDERAL REALTY INVESTMENT TRUST]
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH, as Syndication Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: Vice Presdent
-----------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Assistant Treasurer
-----------------------------
COMMITMENT AMOUNT:
$35,000,000
LENDING OFFICE (EACH TYPE OF LOAN):
Commerzbank AG, New York Branch
2 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Assistant
Vice President
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
80
[SIGNATURE PAGE TO TERM LOAN AGREEMENT DATED AS OF
DECEMBER 22, 1998 WITH FEDERAL REALTY INVESTMENT TRUST]
FLEET NATIONAL BANK, as Documentation
Agent and as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
COMMITMENT AMOUNT:
$25,000,000
LENDING OFFICE (EACH TYPE OF LOAN):
Fleet National Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code: MA BO F11A
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇, Loan Administrator
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
81
[SIGNATURE PAGE TO TERM LOAN AGREEMENT DATED AS OF
DECEMBER 22, 1998 WITH FEDERAL REALTY INVESTMENT TRUST]
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Title: MANAGING DIRECTOR
-------------------------
COMMITMENT AMOUNT:
$15,000,000
LENDING OFFICE (EACH TYPE OF LOAN):
Bank of Montreal, Chicago Branch
Real Estate Department
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Client Services Supervisor
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
82
[SIGNATURE PAGE TO TERM LOAN AGREEMENT DATED AS OF
DECEMBER 22, 1998 WITH FEDERAL REALTY INVESTMENT TRUST]
FIRST UNION, NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Title: Director
-----------------------
COMMITMENT AMOUNT:
$10,000,000
LENDING OFFICE (EACH TYPE OF LOAN):
83