EXHIBIT 10.17
$100,000,000
CREDIT AGREEMENT
Dated as of June __, 2003
Among
▇▇▇▇▇▇▇ PROPERTIES, L.P.,
as Borrower,
▇▇▇▇▇▇▇ PROPERTIES, INC.,
as Parent Guarantor,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Guarantors,
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
WACHOVIA BANK, N.A.,
as Initial Issuing Bank,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as Collateral Agent,
WACHOVIA SECURITIES, INC.,
as Syndication Agent,
BANK ONE NA, COMMERZBANK, AG and FLEET NATIONAL BANK,
as Co-Documentation Agents,
BANK OF THE WEST,
as Senior Managing Agent,
and
CITIGROUP GLOBAL MARKETS INC. and WACHOVIA SECURITIES, INC.,
as Joint Lead Arrangers and Joint Book Running Managers
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms......................................................1
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions................23
SECTION 1.03. Accounting Terms..........................................................23
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit....................................23
SECTION 2.02. Making the Advances.......................................................24
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit........25
SECTION 2.04. Repayment of Advances.....................................................27
SECTION 2.05. Termination or Reduction of the Commitments...............................27
SECTION 2.06. Prepayments...............................................................28
SECTION 2.07. Interest..................................................................28
SECTION 2.08. Fees......................................................................30
SECTION 2.09. Conversion of Advances....................................................30
SECTION 2.10. Increased Costs, Etc......................................................31
SECTION 2.11. Payments and Computations.................................................32
SECTION 2.12. Taxes.....................................................................34
SECTION 2.13. Sharing of Payments, Etc..................................................36
SECTION 2.14. Use of Proceeds...........................................................37
SECTION 2.15. Evidence of Debt..........................................................37
SECTION 2.16. Extension of Termination Date.............................................38
ARTICLE III
CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit.......................38
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance.......................44
SECTION 3.03. Determinations Under Section 3.01.........................................44
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties........................44
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants.....................................................49
SECTION 5.02. Negative Covenants........................................................53
SECTION 5.03. Reporting Requirements....................................................59
SECTION 5.04. Financial Covenants.......................................................61
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.........................................................62
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default..................64
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability.........................................64
SECTION 7.02. Guaranty Absolute.........................................................65
SECTION 7.03. Waivers and Acknowledgments...............................................66
SECTION 7.04. Subrogation...............................................................67
SECTION 7.05. Guaranty Supplements......................................................68
SECTION 7.06. Indemnification by Guarantors.............................................68
SECTION 7.07. Subordination.............................................................68
SECTION 7.08. Continuing Guaranty.......................................................69
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action..................................................69
SECTION 8.02. Agents' Reliance, Etc.....................................................70
SECTION 8.03. CNAI and Affiliates.......................................................70
SECTION 8.04. Lender Party Credit Decision..............................................70
SECTION 8.05. Indemnification by Lender Parties.........................................70
SECTION 8.06. Successor Agents..........................................................71
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc...........................................................72
SECTION 9.02. Notices, Etc..............................................................73
SECTION 9.03. No Waiver; Remedies.......................................................74
SECTION 9.04. Costs and Expenses........................................................74
SECTION 9.05. Right of Set-off..........................................................75
SECTION 9.06. Binding Effect............................................................76
SECTION 9.07. Assignments and Participations............................................76
SECTION 9.08. Execution in Counterparts.................................................78
SECTION 9.09. No Liability of the Issuing Banks.........................................79
SECTION 9.10. Confidentiality...........................................................79
SECTION 9.11. Release of Collateral.....................................................79
SECTION 9.12. Jurisdiction, Etc.........................................................80
SECTION 9.13. Governing Law.............................................................80
SECTION 9.14. Waiver of Jury Trial.......................................................1
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SCHEDULES
---------
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Eligible Real Estate Assets
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(n) - Existing Debt
Schedule 4.01(o) - Surviving Debt
Schedule 4.01(p) - Existing Liens
Schedule 4.01(q) - Owned Real Property
Schedule 4.01(r) - Leased Real Property
Schedule 4.01(s) - Environmental Concerns
Schedule 4.01(w) - Existing Loans to Directors and Executive Officers
Schedule 4.01(x) - Excluded Subsidiaries and Excluded Subsidiary Agreements
EXHIBITS
--------
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Guaranty Supplement
Exhibit D - Form of Assignment and Acceptance
Exhibit E - Form of Opinion of Counsel to the Loan Parties
Exhibit F - Form of Security Agreement
Exhibit G - Form of Mortgage
Exhibit H - Form of Borrowing Base Certificate
Exhibit I - Form of Letter of Credit
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June __, 2003 among ▇▇▇▇▇▇▇ PROPERTIES,
L.P., a Maryland limited partnership (the "BORROWER"), ▇▇▇▇▇▇▇ PROPERTIES, INC.,
a Maryland corporation (the "GENERAL PARTNER" or the "PARENT GUARANTOR"), the
entities listed on the signature pages hereof as the guarantors (together with
any Additional Guarantors (as hereinafter defined) acceding hereto pursuant to
Section 7.05, the "SUBSIDIARY GUARANTORS" and, together with the Parent
Guarantor, the "GUARANTORS") the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the initial
lenders (the "INITIAL LENDERS"), WACHOVIA BANK, N.A., as the initial issuer of
Letters of Credit (as hereinafter defined) (the "INITIAL ISSUING BANK"),
CITICORP NORTH AMERICA, INC. ("CNAI"), as administrative agent (together with
any successor administrative agent appointed pursuant to Article VII, the
"ADMINISTRATIVE AGENT") for the Lender Parties (as hereinafter defined), CNAI,
as collateral agent (together with any successor collateral agent appointed
pursuant to Article VIII, the "COLLATERAL AGENT", and together with the
Administrative Agent, the "AGENTS") for the Lender Parties, WACHOVIA SECURITIES,
INC. ("WSI"), as syndication agent, BANK ONE NA, COMMERZBANK, AG AND FLEET
NATIONAL BANK, as co-documentation agents, BANK OF THE WEST, as senior managing
agent, and CITIGROUP GLOBAL MARKETS INC. ("CITIGROUP") and WSI, as joint lead
arrangers and joint book running managers (the "ARRANGERS").
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADDITIONAL GUARANTOR" has the meaning specified in Section 7.05.
"ADJUSTED EBITDA" means, for the fiscal quarter of the Parent
Guarantor most recently ended for which financial statements are required
to be delivered to the Lender Parties pursuant to Section 5.03(b) or (c),
as the case may be, (a) EBITDA less (b) an amount equal to 25% of the
Capital Expenditure Reserve for all Real Property; provided, however, that
for purposes of this definition, in the case of any acquisition or
disposition of any direct or indirect interest in any Real Property
(including through the acquisition of Equity Interests) by the Parent
Guarantor or any of its Subsidiaries during any fiscal quarter, Adjusted
EBITDA will include with respect to such Real Property an adjustment to
include, in the case of an acquisition, and to exclude, in the case of a
disposition, an amount equal to the product of (y) the actual Adjusted
EBITDA generated by the Real Property so acquired or disposed of during
such fiscal quarter, multiplied by (z) a fraction the numerator of which
is the total number of days in such fiscal quarter and the denominator of
which is the actual number of days in such fiscal quarter that such Real
Property was owned by the Parent Guarantor or such Subsidiary.
"ADJUSTED NET OPERATING INCOME" means, for any Eligible Real Estate
Asset, the Net Operating Income attributable to such Eligible Real Estate
Asset less the sum of (a) the amount, if any, by which (i) 3% of all
rental and other income from the operation of such Eligible Real Estate
Asset for the consecutive four fiscal quarters of the Parent Guarantor
most recently ended for which financial statements are required to be
delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the
case may be, exceeds (ii) all management fees payable in respect of such
Eligible Real Estate Asset during such fiscal period and (b) the total
Capital Expenditure Reserve for such Eligible Real Estate Asset.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank,
N.A., at its office at ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
ABA No. ▇▇▇▇▇▇▇▇▇, Account No. __________, Attention: _______________, or
such other account as the Administrative Agent shall specify in writing to
the Lender Parties.
"ADVANCE" means a Revolving Credit Advance or a Letter of Credit
Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"AGENTS" has the meaning specified in the recital of parties to this
Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to:
(a) in the case of a Hedge Agreement documented pursuant to the Master
Agreement (Multicurrency-Cross Border) published by the International Swap
and Derivatives Association, Inc. (the "MASTER AGREEMENT"), the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries to
its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement
was being terminated early on such date of determination, (ii) such Loan
Party or Subsidiary was the sole "Affected Party", and (iii) the
Administrative Agent was the sole party determining such payment amount
(with the Administrative Agent making such determination pursuant to the
provisions of the form of Master Agreement); or (b) in the case of a Hedge
Agreement traded on an exchange, the ▇▇▇▇-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to
the Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement
determined by the Administrative Agent based on the settlement price of
such Hedge Agreement on such date of determination, or (c) in all other
cases, the ▇▇▇▇-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of
a Loan Party party to such Hedge Agreement determined by the
Administrative Agent as the amount, if any, by which (i) the present value
of the future cash flows to be paid by such Loan Party or Subsidiary
exceeds (ii) the present value of the future cash flows to be received by
such Loan Party or Subsidiary pursuant to such Hedge Agreement;
capitalized terms used and not otherwise defined in this definition shall
have the respective meanings set forth in the above described Master
Agreement.
"ANNUALIZED EBITDA" means, for any period, the product of (a)
Adjusted EBITDA for such period multiplied by (b) four; provided, however,
that for purposes of determining Asset Values for the calculation of the
Leverage Ratio, "ANNUALIZED EBITDA" means (i) for the fiscal quarter of
the Parent Guarantor ending June 30, 2003, the product of (A) Adjusted
EBITDA for such fiscal quarter multiplied by (B) four, (ii) for the fiscal
quarter of the Parent Guarantor ending September 30, 2003, the product of
(A) the sum of (1) Adjusted EBITDA for the fiscal quarter of the Parent
Guarantor ending June 30, 2003 and (2) Adjusted EBITDA for the fiscal
quarter of the Parent Guarantor ending September 30, 2003, multiplied by
(B) two, (iii) for the fiscal quarter of
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the Parent Guarantor ending December 31, 2003, the product of (A) the sum
of (1) Adjusted EBITDA for the fiscal quarter of the Parent Guarantor
ending ▇▇▇▇ ▇▇, ▇▇▇▇, (▇) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ for the fiscal quarter of the
Parent Guarantor ending September 30, 2003 and (3) Adjusted EBITDA for the
fiscal quarter of the Parent Guarantor ending December 31, 2003,
multiplied by (B) 1.333, and (iv) for each fiscal quarter of the Parent
Guarantor ending on or after March 31, 2004, the sum of Adjusted EBITDA
for each of the four consecutive fiscal quarters of the Parent Guarantor
then ended.
"APPLICABLE CAPITALIZATION RATE" means, with respect to any Eligible
Real Estate Asset, a percentage determined with reference to the type of
Real Property comprising such Eligible Real Estate Asset as set forth
below:
APPLICABLE
ASSET TYPE CAPITALIZATION RATE
---------- -------------------
Class A CBD Office Real Property 8.50%
Non-Class A CBD Office Real Property 9.50%
Non-CBD Office Real Property 9.50%
Non-Office Real Property 10.50%
"APPLICABLE LENDING OFFICE" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office in the case
of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, at any date of determination, a
percentage per annum determined by reference to the Borrower's Debt Rating
as set forth below:
APPLICABLE MARGIN APPLICABLE MARGIN FOR
DEBT RATINGS FOR BASE RATE EURODOLLAR RATE
PRICING LEVEL (S&P/▇▇▇▇▇'▇) ADVANCES ADVANCES
------------- ------------- -------- --------
I greater than or equal to BBB-/Baa3 but < BBB/Baa2 0.10% 1.10%
II greater than or equal to BBB/Baa2 0% 0.90%
; provided, however, that if on any date of determination the Borrower
shall not maintain a Debt Rating established by S&P and ▇▇▇▇▇'▇ of at
least BBB - or Baa3, the Applicable Margin at such date shall mean a
percentage per annum determined by reference to the Borrower's Leverage
Ratio as set forth below:
APPLICABLE MARGIN APPLICABLE MARGIN
PRICING FOR BASE RATE FOR EURODOLLAR
LEVEL LEVERAGE RATIO ADVANCES RATE ADVANCES
----- -------------- -------- -------------
III greater than 55% 1.00% 2.00%
IV greater than 45% but less than or equal to 55% 0.75% 1.75%
V greater than 35% but less than or equal to 45% 0.50% 1.50%
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VI < 35% 0.375% 1.375%
-
The Applicable Margin for each Base Rate Advance shall be determined by
reference to the Borrower's Debt Rating or the Borrower's Leverage Ratio, as
applicable, in effect from time to time and the Applicable Margin for any
Interest Period for all Eurodollar Rate Advances comprising part of the same
Borrowing shall be determined by reference to the Borrower's Debt Rating or the
Borrower's Leverage Ratio, as applicable, in effect on the first day of such
Interest Period; provided, however, that (a) (i) no change in the Applicable
Margin resulting from the Borrower's Leverage Ratio shall be effective until
three Business Days after the date on which the Administrative Agent receives
(y) the financial statements required to be delivered pursuant to Section
5.03(b) or (c), as the case may be, and (z) a certificate of the Chief Financial
Officer of the Borrower demonstrating the Borrower's Leverage Ratio, and (b) the
Applicable Margin shall be at Pricing Level III for so long as the Borrower has
not submitted to the Administrative Agent as and when required under Section
5.03(b) or (c), as applicable, the information described in clause (a)(i) of
this proviso.
"APPLICABLE PERCENTAGE" means (a) for any period in which the average
daily Facility Exposure for such period exceeds 50% of the aggregate Revolving
Credit Commitments, 0.15% per annum and (b) in all other cases, 0.25% per annum.
"APPRAISAL" means an appraisal complying with the requirements of the
Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989,
prepared for the account of the Collateral Agent (for the benefit of the
Lenders) by ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Inc. or another MAI appraiser selected by the
Collateral Agent in consultation with the Borrower, and otherwise in scope, form
and substance satisfactory to the Collateral Agent.
"APPRAISED VALUE" means, for any Eligible Real Estate Asset, the market
value of such Eligible Real Estate Asset, determined by the Administrative Agent
based on an Appraisal of such Eligible Real Estate Asset, after discretionary
adjustments of the value shown in such Appraisal following a review by the
Administrative Agent's appraisal review department.
"ARRANGERS" has the meaning specified in the recital of parties to this
Agreement.
"ASSET VALUE" means, at any date of determination, (a) in the case of
any Real Property (other than any Development Property), the Annualized EBITDA
for such Real Property less, to the extent not otherwise deducted in the
calculation of Annualized EBITDA, overhead allocable to such Real Property
divided by the Applicable Capitalization Rate, provided, that in the case of any
Real Property (other than any Development Property) in which the Parent
Guarantor or any of its Subsidiaries has acquired any direct or indirect
interest (including through the acquisition of Equity Interests) during any
fiscal quarter, "Asset Value" shall be the lesser of (i) the Annualized EBITDA
for such Real Property divided by the Applicable Capitalization Rate and (ii)
the purchase price of such Real Property, and (b) in the case of any Development
Property, the book value of such Development Property as determined pursuant to
GAAP.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 9.07 and in substantially the
form of Exhibit D hereto.
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
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"BANKRUPTCY LAW" means any applicable law governing a proceeding of the
type referred to in Section 6.01(f) or Title 11, U.S. Code, or any similar
foreign, federal or state law for the relief of debtors.
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of
(a) the rate of interest announced publicly by Citibank, N.A. in New York, New
York, from time to time, as Citibank, N.A.'s base rate and (b) -1/2 of 1% per
annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as provided in
Section 2.07(a)(i).
"BORROWER" has the meaning specified in the recital of parties to this
Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower maintained by
the Borrower with _______________ at its office at ____________________,
____________________ _____, Account No. __________, or such other account as the
Borrower shall specify in writing to the Administrative Agent.
"BORROWING" means a borrowing consisting of simultaneous Revolving
Credit Advances of the same Type made by the Lenders.
"BORROWING BASE ASSET VALUE" means, at any date of determination, for
any Eligible Real Estate Asset, the lesser of (a) the Appraised Value of such
Eligible Real Estate Asset, and (b) the Adjusted Net Operating Income of such
Eligible Real Estate Asset divided by the Applicable Capitalization Rate.
"BORROWING BASE CERTIFICATE" means a certificate in substantially the
form of Exhibit H hereto, duly certified by the Chief Financial Officer of the
Parent Guarantor.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"CAPITAL EXPENDITURE RESERVE" means, on any date of determination, (a)
in the case of Non-Hotel Real Property, the greater of (i) the product of (A)
U.S.$0.25 times (B) the total number of rentable square feet of such Non-Hotel
Real Property and (ii) capital expenditures actually made for the purpose of
maintenance of such Non-Hotel Real Property and not reimbursable by the lessee
of such Non-Hotel Real Property for the consecutive four fiscal quarters of the
Parent Guarantor most recently ended for which financial statements are required
to be delivered pursuant to Section 5.03(b) or (c), as the case may be, and (b)
in the case of Hotel Real Property, 4.0% of all rental and other income from the
operation of such Hotel Real Property for the consecutive four fiscal quarters
of the Parent Guarantor most recently ended for which financial statements are
required to be delivered pursuant to Section 5.03(b) or (c), as the case may be.
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CASH EQUIVALENTS" means any of the following, to the extent owned by
the Borrower or any of its Subsidiaries free and clear of all Liens other than
Liens created under the Collateral
5
Documents and having a maturity of not greater than 90 days from the date of
issuance thereof: (a) readily marketable direct obligations of the Government of
the United States or any agency or instrumentality thereof or obligations
unconditionally guaranteed by the full faith and credit of the Government of the
United States, (b) insured certificates of deposit of or time deposits with any
commercial bank that is a Lender Party or a member of the Federal Reserve
System, issues (or the parent of which issues) commercial paper rated as
described in clause (c) below, is organized under the laws of the United States
or any State thereof and has combined capital and surplus of at least
$1,000,000,000 or (c) commercial paper in an aggregate amount of not more than
$50,000,000 per issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States and rated at least
"Prime-1" (or the then equivalent grade) by ▇▇▇▇▇'▇ or "A-1" (or the then
equivalent grade) by S&P.
"CBD OFFICE REAL PROPERTY" means Real Property (exclusive of any
Development Property) located in a metropolitan district with a high
concentration of office buildings and other structures from which commercial
businesses operate and that is an office building or a structure from which
commercial businesses operate.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental Protection
Agency.
"CHANGE OF CONTROL" means the occurrence of any of the following: (a)
any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Interests of the General Partner (or other securities
convertible into such Voting Interests) representing 35% or more of the combined
voting power of all Voting Interests of the General Partner; or (b) during any
period of up to 24 consecutive months, commencing after the date of this
Agreement, individuals who at the beginning of such 24-month period were
directors of the General Partner shall cease for any reason to constitute a
majority of the board of directors of the General Partner; or (c) any Person or
two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies
of the General Partner; or (d) the General Partner ceases to be the general
partner of the Borrower; or (e) the General Partner ceases to be the legal and
beneficial owner of all of the general partnership interests in the Borrower and
of Voting Interests of the Borrower representing at least 35% of the combined
voting power of all Voting Interests of the Borrower.
"CITIGROUP" has the meaning specified in the recital of parties to this
Agreement.
"CLOSING DATE" means June __, 2003 or such other date as may be agreed
upon by the Borrower and the Administrative Agent.
"CNAI" has the meaning specified in the recital of parties to this
Agreement.
"COLLATERAL" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Collateral Agent for the benefit of the Secured Parties and
will include, without limitation, all Eligible Real Estate Assets.
6
"COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreements.
"COLLATERAL AGENT" has the meaning specified in the recital of parties
to this Agreement.
"COLLATERAL DOCUMENTS" means the Security Agreements, the Mortgages,
and any other agreement that creates or purports to create a Lien in favor of
the Collateral Agent for the benefit of the Secured Parties.
"COMMITMENT" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"COMMUNICATIONS" has the meaning specified in Section 9.02(b).
"CONFIDENTIAL INFORMATION" means information that any Loan Party
furnishes to any Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to such Agent
or such Lender Party from a source other than the Loan Parties.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONTINGENT OBLIGATION" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to guarantee
any Debt, leases, dividends or other payment Obligations ("PRIMARY OBLIGATIONS")
of any other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement or (c) any Obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation or
(B) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (iv) otherwise to assure
or hold harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Contingent Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in respect
of which such Contingent Obligation is made (or, if less, the maximum amount of
such primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder), as determined by such
Person in good faith.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.07(d), 2.09 or 2.10.
"CURRENT ASSETS" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a company
conducting a business the same as or similar to that of such Person, after
deducting adequate reserves in each case in which a reserve is proper in
accordance with GAAP.
7
"CURRENT LIABILITIES" of any Person means (a) all Debt of such Person
that by its terms is payable on demand or matures within one year after the date
of its creation (excluding any Debt renewable or extendible, at the option of
such Person, to a date more than one year from such date or arising under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date) and (b) all
other items (including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person.
"DEBT" of any Person means, without duplication for purposes of
calculating financial ratios, (a) all indebtedness of such Person for borrowed
money, (b) all Obligations of such Person for the deferred purchase price of
property or services other than trade payables incurred in the ordinary course
of business and not overdue by more than 60 days, (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all Obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all Obligations of such Person as lessee under Capitalized
Leases, (f) all Obligations of such Person under acceptance, letter of credit or
similar facilities, (g) all Obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any Equity Interests
in such Person or any other Person or any warrants, rights or options to acquire
such capital stock, valued, in the case of Redeemable Preferred Interests, at
the greater of its voluntary or involuntary liquidation preference plus accrued
and unpaid dividends, (h) all Obligations of such Person in respect of Hedge
Agreements, valued at the Agreement Value thereof, (i) all Contingent
Obligations of such Person and (j) all indebtedness and other payment
Obligations referred to in clauses (a) through (i) above of another Person
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations.
"DEBT FOR BORROWED MONEY" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated
balance sheet of such Person, provided, that in the case of the Parent Guarantor
and its Subsidiaries "Debt for Borrowed Money" shall also include, without
duplication, the JV Pro Rata Share of Debt for Borrowed Money for each Joint
Venture.
"DEBT RATING" means, as of any date, the lowest rating that has been
most recently assigned by S&P and ▇▇▇▇▇'▇, as the case may be, to the long-term
senior unsecured non-credit enhanced indebtedness of the Borrower or, if
applicable, to the "implied rating" of the Borrower's long-term senior unsecured
credit enhanced debt. For purposes of the foregoing, (a) if the ratings
established by S&P and ▇▇▇▇▇'▇ shall fall within different levels, the
Applicable Margin shall be based upon (i) the lower rating, in the event such
ratings are no more than one level apart or (ii) the average of the two ratings,
in the event such ratings are more than one level apart; (b) if any rating
established by S&P or ▇▇▇▇▇'▇ shall be changed, such change shall be effective
as of the date on which such change is first announced publicly by the rating
agency making such change; and (c) if S&P or ▇▇▇▇▇'▇ shall change the basis on
which ratings are established, each reference to the Borrower's Debt Rating
announced by S&P or ▇▇▇▇▇'▇, as the case may be, shall refer to the then
equivalent rating by S&P or ▇▇▇▇▇'▇, as the case may be.
"DEFAULT" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
8
"DEFAULT TERMINATION NOTICE" has the meaning specified in Section
2.01(b).
"DEVELOPMENT PROPERTIES" means all Real Property that, in accordance
with GAAP, would be classified as development properties on a Consolidated
balance sheet of the Parent Guarantor and its Subsidiaries.
"DISCLOSED LITIGATION" has the meaning specified in Section 3.01(f).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of such
Lender Party as such Lender Party may from time to time specify to the Borrower
and the Administrative Agent.
"EBITDA" means, for any period, (a) the sum, determined on a
Consolidated basis, of (i) net income (or net loss), (ii) interest expense,
(iii) income tax expense, (iv) depreciation expense and (v) amortization
expense, in each case of the Parent Guarantor and its Subsidiaries, determined
in accordance with GAAP for such period, plus (b) with respect to each Joint
Venture, the JV Pro Rata Share of the sum, determined on a Consolidated basis,
of (i) net income (or net loss), (ii) interest expense, (iii) income tax
expense, (iv) depreciation expense and (v) amortization expense of such Joint
Venture, determined in accordance with GAAP for such period.
"EFFECTIVE DATE" means the first date on which the conditions set forth
in Article III shall be satisfied.
"ELIGIBLE ASSIGNEE" means (a) with respect to the Revolving Credit
Facility, (i) a Lender; (ii) an Affiliate or Fund Affiliate of a Lender; and
(iii) any other Person approved by the Administrative Agent and, unless a
Default has occurred and is continuing at the time any assignment is effected
pursuant to Section 9.07, the Borrower, such approval not to be unreasonably
withheld or delayed, and (b) with respect to the Letter of Credit Facility, a
Person that is approved by the Administrative Agent (such approval not to be
unreasonably withheld or delayed) and, unless a Default has occurred and is
continuing at the time any assignment is effected pursuant to Section 9.07, the
Borrower, such approval not to be unreasonably withheld or delayed; provided,
however, that neither any Loan Party nor any Affiliate of a Loan Party shall
qualify as an Eligible Assignee under this definition.
"ELIGIBLE REAL ESTATE ASSETS" means only such Real Property (a) for
which the applicable conditions (as determined by the Collateral Agent in its
reasonable discretion) in Section 3.01 or 5.01(j) have been satisfied and as all
of the Lenders, in their reasonable discretion, shall from time to time elect to
consider Eligible Real Estate Assets for purposes of this Agreement and (b) that
is listed on Schedule II hereto.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to health, safety or
the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
9
"ENVIRONMENTAL LAW" means any Federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, writ, judgment, injunction,
decree or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under common
control with any Loan Party, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC or
(ii) the requirements of Section 4043(b) of ERISA apply with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and
an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver with respect
to a Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any
Loan Party or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to Section
4042 of ERISA, or the occurrence of any event or condition described in Section
4042 of ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto
10
or in the Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or such other
office of such Lender Party as such Lender Party may from time to time specify
to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the rate per annum (rounded
upward, 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 U.S. Dollars at 1:00 P.M. (London time) two Business Days before the first
day of such Interest Period for a period equal to such Interest Period or, if
for any reason such rate is not available, the average (rounded upward, if
necessary, to the nearest 1/100 of 1% , if such average is not such a multiple)
of the rate per annum at which deposits in U.S. Dollars are offered by the
principal office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 1:00 P.M. (London time) two Business
Days before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurodollar Rate Advance comprising part of such
Borrowing to be outstanding during such Interest Period (or, if such Reference
Bank shall not have such a Eurodollar Rate Advance, U.S.$1,000,000) and for a
period equal to such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" means, for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing, the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before giving effect to the Recapitalization.
"EXCLUDED SUBSIDIARY" at any time means any direct or indirect
Subsidiary of the Borrower that is unable to guaranty the Obligations of the
Loan Parties under the Loan Documents at such time because it is party to one or
more Excluded Subsidiary Agreements that prohibit such Excluded Subsidiary from
entering into the Guaranty set forth in Article VII or a Guaranty Supplement.
"EXCLUDED SUBSIDIARY AGREEMENT" for each Excluded Subsidiary means any
agreement set forth opposite the name of such Excluded Subsidiary on Schedule
4.01(x) hereto and any agreement pursuant to which such Excluded Subsidiary
incurs Refinancing Debt with regard to the Debt, if any, incurred pursuant to
such Excluded Subsidiary Agreement.
"EXTENSION DATE" has the meaning specified in Section 2.16.
11
"FACILITY" means the Revolving Credit Facility or the Letter of Credit
Facility.
"FACILITY EXPOSURE" means, at any date of determination, the sum of the
aggregate principal amount of all outstanding Advances and the Available Amount
under all outstanding Letters of Credit.
"FACILITY FEE" has the meaning specified in Section 2.08(a).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FEE LETTER" means the fee letter dated as of May 19, 2003 among the
Borrower, CNAI and Citigroup.
"FISCAL YEAR" means a fiscal year of the Parent Guarantor and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"FIXED CHARGE COVERAGE RATIO" means, at any date of determination, the
ratio of (a) Adjusted EBITDA, divided by (b) the sum of (i) interest payable on,
and amortization of debt discount in respect of, all Debt for Borrowed Money
plus (ii) principal amounts of all Debt for Borrowed Money payable plus (iii)
all dividends payable on any Preferred Interests, in each case, of or by the
Parent Guarantor and its Subsidiaries for the consecutive four fiscal quarters
of the Parent Guarantor most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section 5.03(b) or
(c), as the case may be.
"FUND AFFILIATE" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"FUNDS FROM OPERATIONS" means net income (computed in accordance with
GAAP), excluding gains (or losses) from sales of property plus depreciation and
amortization, and after adjustments for unconsolidated Joint Ventures.
Adjustments for unconsolidated Joint Ventures will be calculated to reflect
funds from operations on the same basis.
"GAAP" has the meaning specified in Section 1.03.
"GENERAL PARTNER" has the meaning specified in the recital of parties
to this Agreement.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section 7.01.
"GUARANTORS" means the Parent Guarantor and the Subsidiary Guarantors.
"GUARANTY" means the Guaranty by the Guarantors pursuant to Article
VII, together with any and all Guaranty Supplements required to be delivered
pursuant to Section 5.01(j).
12
"GUARANTY SUPPLEMENT" means a supplement entered into by an Additional
Guarantor in substantially the form of Exhibit C hereto.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other hedging agreements.
"HEDGE BANK" means any Lender Party or an Affiliate of a Lender Party
in its capacity as a party to a Secured Hedge Agreement.
"HOTEL REAL PROPERTY" means Real Property that operates or is intended
to be operated as a hotel, motel or other lodging for transient use of rooms or
is a structure from which a hotel, motel or other lodging for transient use of
rooms is operated or intended to be operated.
"IMPLIED DEBT SERVICE COVERAGE RATIO" means, at any date of
determination, the ratio of (a) the aggregate Adjusted Net Operating Income for
all Eligible Real Estate Assets for the consecutive four fiscal quarters of the
Parent Guarantor most recently ended for which financial statements are required
to be delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the
case may be, to (b) the greater of (i) the actual interest expense for such
fiscal period and (ii) the interest (including capitalized interest) and
principal amortization payments that would be required to be paid for such
fiscal period on an assumed Debt in a aggregate principal amount equal to the
sum of all outstanding Advances plus the Available Amount of all Letters of
Credit that fully amortizes on a level payment 25-year amortization schedule and
assuming an interest rate equal to the yield to maturity of the then current
ten-year U.S. Treasury obligation plus 1.75%.
"INDEMNIFIED COSTS" has the meaning specified in Section 8.05(a).
"INDEMNIFIED PARTY" has the meaning specified in Section 7.06(a).
"INFORMATION MEMORANDUM" means the information memorandum dated May
2003 used by the Arrangers in connection with the syndication of the
Commitments.
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of the initial
Borrowing and the initial issuance of a Letter of Credit hereunder.
"INITIAL ISSUING BANK" has the meaning specified in the recital of
parties to this Agreement.
"INITIAL LENDERS" has the meaning specified in the recital of parties
to this Agreement.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
13
"INTEREST COVERAGE RATIO" means, at any date of determination, the
ratio of (a) Adjusted EBITDA to (b) interest (including capitalized interest)
payable on, and amortization of debt discount in respect of, all Debt for
Borrowed Money, in each case, of or by the Borrower and its Subsidiaries and
Joint Ventures for the consecutive four fiscal quarters of the Parent Guarantor
most recently ended for which financial statements are required to be delivered
to the Lender Parties pursuant to Section 5.03(b) or (c), as the case may be.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance that ends after the Termination
Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall be
of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"INVESTMENT" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the assets
comprising a division or business unit or a substantial part or all of the
business of such Person, any capital contribution to such Person or any other
direct or indirect investment in such Person, including, without limitation, any
acquisition by way of a merger or consolidation and any arrangement pursuant to
which the investor incurs Debt of the types referred to in clause (i) or (j) of
the definition of "DEBT" in respect of such Person.
"IPO" means the initial public offering of common stock in the General
Partner and its registration as a public company with the Securities and
Exchange Commission.
14
"ISSUING BANK" means the Initial Issuing Bank and any other Lender
approved as an Issuing Bank by the Administrative Agent and the Borrower and any
Eligible Assignee to which a Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07 so long as each such Lender or each such
Eligible Assignee expressly agrees to perform in accordance with their terms all
of the obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Administrative Agent of its
Applicable Lending Office and the amount of its Letter of Credit Commitment
(which information shall be recorded by the Administrative Agent in the
Register) for so long as such Initial Issuing Bank, Lender or Eligible Assignee,
as the case may be, shall have a Letter of Credit Commitment.
"JOINT VENTURE" means any joint venture (a) in which the Parent
Guarantor or any of its Subsidiaries holds any Equity Interest, (b) that is not
a Subsidiary of the Parent Guarantor or any of its Subsidiaries and (c) the
accounts of which would not appear on the Consolidated financial statements of
the Parent Guarantor.
"JV PRO RATA SHARE" means, with respect to any Joint Venture at any
time, the fraction, expressed as a percentage, obtained by dividing (a) the
total value of all Equity Interests in such Joint Venture held by the Parent
Guarantor and any of its Subsidiaries by (b) the total value of all outstanding
Equity Interests in such Joint Venture at such time.
"L/C CASH COLLATERAL ACCOUNT" means the account of the Borrower
maintained with the Administrative Agent, in the name of the Administrative
Agent and under the sole control and dominion of the Administrative Agent and
subject to the terms of this Agreement.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(b)(ii)(A).
"LENDER PARTY" means any Lender or any Issuing Bank.
"LENDERS" means the Initial Lenders and each Person that shall become a
Lender hereunder pursuant to Section 9.07 for so long as such Initial Lender or
Person, as the case may be, shall be a party to this Agreement.
"LETTER OF CREDIT ADVANCE" means an advance made by any Issuing Bank or
any Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section
2.03(a).
"LETTER OF CREDIT COMMITMENT" means, with respect to any Issuing Bank
at any time, the amount set forth opposite such Issuing Bank's name on Schedule
I hereto under the caption "Letter of Credit Commitment" or, if such Issuing
Bank has entered into one or more Assignment and Acceptances, set forth for such
Issuing Bank in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time, and (b) $25,000,000, as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"LETTERS OF CREDIT" has the meaning specified in Section 2.01(b).
15
"LEVERAGE RATIO" means, at any date of determination, the ratio,
expressed as a percentage, of (a) the sum of Consolidated Debt of the Parent
Guarantor and its Subsidiaries plus the applicable JV Pro Rata Share of the
Consolidated Debt of each Joint Venture to (b) Total Asset Value, in each case
as at the end of the most recently ended fiscal quarter of the Parent Guarantor
for which financial statements are required to be delivered to the Lender
Parties pursuant to Section 5.03(b) or (c), as the case may be.
"LIEN" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"LOAN DOCUMENTS" means (a) this Agreement, (b) the Notes, (c) the Fee
Letter, (d) each Letter of Credit Agreement, (e) each Guaranty Supplement, (f)
the Collateral Documents and (g) each Secured Hedge Agreement, in each case as
amended.
"LOAN PARTIES" means the Borrower and the Guarantors.
"LOAN VALUE" means the sum of (a) with respect to each Eligible Real
Estate Asset that is Non-Hotel Real Property, the amount determined by the
Administrative Agent equal to 60% of the Borrowing Base Asset Value of such
Eligible Real Estate Asset and (b) with respect to each Eligible Real Estate
Asset that is Hotel Real Property, the amount determined by the Administrative
Agent equal to 55% of the Borrowing Base Asset Value of such Eligible Real
Estate Asset.
"MARKETABLE SECURITIES" means any of the following, to the extent owned
by the Borrower or any of its Subsidiaries free and clear of all Liens and
having a maturity of not greater than 360 days from the date of acquisition
thereof: (a) readily marketable direct obligations of the Government of the
United States or any agency or instrumentality thereof or obligations
unconditionally guaranteed by the full faith and credit of the Government of the
United States, (b) insured certificates of deposit of or time deposits with any
commercial bank that is a Lender or a member of the Federal Reserve System,
issues (or the parent of which issues) commercial paper rated as described in
clause (c), is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1,000,000,000 or (c)
commercial paper in an aggregate amount of no more than $50,000,000 per issuer
outstanding at any time, issued by any corporation organized under the laws of
any State of the United States and rated at least "Prime-1" (or the then
equivalent grade) by ▇▇▇▇▇'▇ or "A-1" (or the then equivalent grade) by S&P.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, condition (financial or otherwise) or results of operations of the
Loan Parties and their Subsidiaries, taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, condition (financial or otherwise) or results of operations of the
Loan Parties and their Subsidiaries, taken as a whole, (b) the rights and
remedies of any Agent or any Lender Party under any Loan Document, (c) the
ability of any Loan Party to perform its Obligations under any Loan Document to
which it is or is to be a party or (d) the value of the Collateral.
16
"MATERIAL CONTRACT" means, with respect to any Loan Party, each
contract to which such Loan Party is a party involving aggregate consideration
payable to or by such Loan Party in an amount of $25,000,000 or more per annum
or otherwise material to the business, condition (financial or otherwise),
operations, performance, properties or prospects of such Loan Party.
"MATERIAL DEBT" has the meaning specified in Section 6.01(e).
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Services, Inc. and any successor
thereto.
"MORTGAGE POLICIES" has the meaning specified in Section
3.01(a)(iii)(B).
"MORTGAGES" has the meaning specified in Section 3.01(a)(iii).
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and at least one Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
"NET OPERATING INCOME" means, with respect to any of the Eligible Real
Estate Assets, the total rental and other income from the operation of the
Eligible Real Estate Assets, after deducting all expenses and other proper
charges incurred by the Borrower in connection with the operation and
maintenance of such Eligible Real Estate Assets during such fiscal period,
including, without limitation, management fees, real estate taxes and bad debt
expenses, but before payment or provision for debt service charges, income taxes
and depreciation, amortization and other non-cash expenses, in each case for the
consecutive four fiscal quarters of the Parent Guarantor most recently ended for
which financial statements are required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be, all as determined in
accordance with GAAP, provided that there shall be no rent leveling adjustments
made when computing Net Operating Income.
"NON-CBD OFFICE REAL PROPERTY" means Real Property located outside of
any metropolitan district with a high concentration of office buildings and
other structures from which commercial businesses operate and that is an office
building or a structure from which commercial businesses operate.
"NON-HOTEL REAL PROPERTY" means Real Property that is not Hotel Real
Property.
"NON-OFFICE REAL PROPERTY" means Real Property wherever located that is
not an office building or a structure from which commercial businesses operate.
"NON-RECOURSE DEBT" means Debt for Borrowed Money with respect to which
recourse for payment is limited to (a) any building(s) or parcel(s) of Real
Property or any related assets encumbered by a Lien securing such Debt for
Borrowed Money and/or (b) the general credit of any Property-Level Subsidiary,
it being understood that the instruments governing such Debt may
17
include customary carve-outs to such limited recourse such as, for example,
personal recourse of the Parent Guarantor or any Subsidiary of the Parent
Guarantor for fraud, misrepresentation, misapplication of cash, waste,
environmental claims and liabilities and other circumstances customarily
excluded by lenders from exculpation provisions and/or included in separate
indemnification agreements in non-recourse financings of real estate.
"NOTE" means a promissory note of the Borrower payable to the order of
any Lender, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Advances and Letter of Credit Advances made by such Lender.
"NOTICE" has the meaning specified in Section 9.02(c).
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section 2.01(b).
"NOTICE OF TERMINATION" has the meaning specified in Section 2.01(b).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(f). Without limiting the generality of the foregoing, the
Obligations of any Loan Party under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the obligation of
such Loan Party to reimburse any amount in respect of any of the foregoing that
any Lender Party, in its sole discretion, may elect to pay or advance on behalf
of such Loan Party.
"OECD" means the Organization for Economic Cooperation and Development.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PARENT GUARANTOR" has the meaning specified in the recital of parties
to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies not yet delinquent; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar Liens
arising in the ordinary course of business securing obligations that (i) are not
overdue for a period of more than 30 days and (ii) individually or together with
all other Permitted Liens outstanding on any date of determination do not
materially adversely affect the use of the
18
property to which they relate; (c) pledges or deposits to secure obligations
under workers' compensation laws or similar legislation or to secure public or
statutory obligations; (d) easements, rights of way and other encumbrances on
title to real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of such property for
its present purposes; (e) any Permitted Encumbrances (as defined in the
Mortgages); and (f) Tenancy Leases.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PLATFORM" has the meaning specified in Section 9.02(b).
"POST PETITION INTEREST" has the meaning specified in Section 7.07(c).
"PREFERRED INTERESTS" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or priority
over any other Equity Interests issued by such Person upon any distribution of
such Person's property and assets, whether by dividend or upon liquidation.
"PROPERTY-LEVEL SUBSIDIARY" means any Subsidiary of the Borrower that
holds a direct fee or leasehold interest in any single building (or group of
related buildings) or parcel (or group of related parcels) of Real Property and
related assets and not in any other building or parcel of Real Property.
"PROPOSED BORROWING BASE PROPERTY" has the meaning specified in Section
5.01(j)(iii).
"PRO RATA SHARE" of any amount means, with respect to any Lender at any
time, the product of such amount times a fraction the numerator of which is the
amount of such Lender's Revolving Credit Commitment at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such
Lender's Revolving Credit Commitment as in effect immediately prior to such
termination) and the denominator of which is the Revolving Credit Facility at
such time (or, if the Commitments shall have been terminated pursuant to Section
2.05 or 6.01, the Revolving Credit Facility as in effect immediately prior to
such termination).
"REAL PROPERTY" means all right, title and interest of the Borrower and
each of its Subsidiaries in and to any land and any improvements located
thereon, together with all equipment, furniture, materials, supplies and
personal property in which such Person has an interest now or hereafter located
on or used in connection with such land and improvements, and all appurtenances,
additions, improvements, renewals, substitutions and replacements thereof now or
hereafter acquired by such Person.
"RECAPITALIZATION" means the acquisition by the Borrower of full or
partial interests in a portfolio of commercial real estate properties from
Affiliates of ▇▇▇▇▇▇▇ Partners Development, Ltd. and other Persons in exchange
for consideration of cash, common stock of the Parent Guarantor, units and
assumption of debt and other obligations, all as more fully described in the
Parent Guarantor's Form S-11 Registration Statement filed with the Securities
and Exchange Commission in connection with the IPO.
19
"REDEEMABLE" means, with respect to any Equity Interest, any
Debt or any other right or Obligation, any such Equity Interest, Debt,
right or Obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of
the holder.
"REFINANCING DEBT" means, with respect to any Debt, any Debt
extending the maturity of, or refunding or refinancing, in whole or in
part, such Debt, provided that (i) the terms of any Refinancing Debt,
and of any agreement entered into and of any instrument issued in
connection therewith, are otherwise permitted by the Loan Documents,
(ii) the principal amount of such Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and contingent
obligors therefor shall not be changed, as a result of or in connection
with such extension, refunding or refinancing, (iii) the terms relating
to principal amount, amortization, maturity, collateral (if any) and
subordination (if any), and other material terms taken as a whole, of
any such Refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lender Parties than the
terms of any agreement or instrument governing the Debt being extended,
refunded or refinanced and the interest rate applicable to any such
Refinancing Debt does not exceed the then applicable market interest
rate, and (iv) such Refinancing Debt shall be issued pursuant to the
same type of instrument or agreement and the same form of financing as
that evidencing the Debt.
"REFERENCE BANKS" means Citibank, N.A. and Wachovia Bank, N.A.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"REIT" means a Person that is qualified to be treated for tax
purposes as a real estate investment trust under Sections 856-860 of
the Internal Revenue Code.
"REQUIRED LENDERS" means, at any time, Lenders owed or holding
greater than 66 2/3% of the sum of (a) the aggregate principal amount
of the Advances outstanding at such time, (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time and (c) the
aggregate Unused Revolving Credit Commitments at such time. For
purposes of this definition, the aggregate principal amount of Letter
of Credit Advances owing to any Issuing Bank and the Available Amount
of each Letter of Credit shall be considered to be owed to the
Revolving Lenders ratably in accordance with their respective Revolving
Credit Commitments.
"RESPONSIBLE OFFICER" means any officer of, or any officer of
any general partner or managing member of, any Loan Party or any of its
Subsidiaries.
"REVOLVING CREDIT ADVANCE" has the meaning specified in
Section 2.01(a).
"REVOLVING CREDIT COMMITMENT" means, (a) with respect to any
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or
(b) if such Lender has entered into one or more Assignment and
Acceptances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
20
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor thereto.
"▇▇▇▇▇▇▇▇-▇▇▇▇▇" means the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as
amended.
"SECURED HEDGE AGREEMENT" means any Hedge Agreement required
or permitted under Article V that is entered into by and between any
Loan Party and any Hedge Bank and that is secured by the Collateral
Documents.
"SECURED OBLIGATIONS" has the meaning specified in Section 2
of the Security Agreements.
"SECURED PARTIES" means the Agents, the Lender Parties and the
Hedge Banks.
"SECURITY AGREEMENTS" have the meaning specified in Section
3.01(a)(ii).
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"SOLVENT" means, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such
Person, on a going-concern basis, is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person, (b) the present fair salable value of the assets of such
Person, on a going-concern basis, is not less than the amount that will
be required to pay the probable liability of such Person on its debts
as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay such debts and liabilities as they
mature and (d) such Person is not engaged in business or a transaction,
and is not about to engage in business or a transaction, for which such
Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the
amount that, in the light of all the facts and circumstances existing
at such time (including, without limitation, after taking into account
appropriate discount factors for the present value of future contingent
liabilities), represents the amount that can reasonably be expected to
become an actual or matured liability.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"SUBORDINATED OBLIGATIONS" has the meaning specified in
Section 7.07(a).
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited
21
liability company or (c) the beneficial interest in such trust or
estate, in each case, is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"SUBSIDIARY GUARANTOR" has the meaning specified in the
recital of parties to this Agreement.
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to
the Recapitalization.
"TAXES" has the meaning specified in Section 2.12(a).
"TENANCY LEASES" means operating leases, subleases, licenses,
occupancy agreements and rights-of-use entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business that do not
materially and adversely affect the use of the Real Property encumbered
thereby for its intended purpose.
"TERMINATION DATE" means the earlier of (a) the third
anniversary of the Closing Date, subject to the extension thereof
pursuant to Section 2.16, and (b) the date of termination in whole of
the Revolving Credit Commitments and the Letter of Credit Commitments
pursuant to Section 2.05 or 6.01.
"TOTAL ASSET VALUE" means, on any date of determination, the
sum of the Asset Values for all Real Property at such date.
"TOTAL BORROWING BASE ASSET VALUE" means, on any date of
determination, the sum of the Borrowing Base Asset Values for all
Eligible Real Estate Assets.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of inventory to the Borrower or any of its Subsidiaries to
effect payment for such Inventory.
"TRANSFER" has the meaning specified in Section 5.02(e).
"TRS SUBSIDIARIES" means ▇▇▇▇▇▇▇ Properties Services, Inc.,
▇▇▇▇▇▇▇ Properties-Solana Services, L.P., MP-Solana Services GP, LLC
and MP-Solana Services LP, LLC.
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNUSED FEE" has the meaning specified in Section 2.08(b).
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to
any Lender at any time, (a) such Lender's Revolving Credit Commitment
at such time minus (b) the sum of (i) the aggregate principal amount of
all Revolving Credit Advances and Letter of Credit Advances made by
such Lender (in its capacity as a Lender) and outstanding at such time
plus (ii) such Lender's Pro Rata Share of (A) the aggregate Available
Amount of all Letters of Credit outstanding at such time and (B) the
aggregate principal amount of all Letter of Credit Advances made by the
Issuing Banks pursuant to Section 2.03(c) and outstanding at such time.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
22
"WELFARE PLAN" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party or in
respect of which any Loan Party could have liability.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "FROM"
means "from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(g) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The
Revolving Credit Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each a "REVOLVING CREDIT
ADVANCE") to the Borrower from time to time on any Business Day during the
period from the date hereof until the Termination Date in an amount for each
such Advance not to exceed such Lender's Unused Revolving Credit Commitment at
such time. Each Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and shall consist of Revolving
Credit Advances made simultaneously by the Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Lender's Unused
Revolving Credit Commitment in effect from time to time and prior to the
Termination Date, the Borrower may borrow under this Section 2.01(a), prepay
pursuant to Section 2.06(a) and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank severally agrees, on
the terms and conditions hereinafter set forth, to issue (or cause its Affiliate
that is a commercial bank to issue on its behalf) letters of credit in
substantially the form of Exhibit I hereto, or such other form required by the
Issuing Banks in their sole discretion (the "LETTERS OF CREDIT"), for the
account of the Borrower from time to time on any Business Day during the period
from the date hereof until 60 days before the Termination Date in an aggregate
Available Amount (i) for all Letters of Credit not to exceed at any time the
Letter of Credit Facility at such time, (ii) for all Letters of Credit issued by
such Issuing Bank not to exceed such Issuing Bank's Letter of Credit Commitment
at such time, and (iii) for each such Letter of Credit not to exceed the Unused
Revolving Credit Commitments of the Lenders at such time. No Letter of Credit
shall have an expiration date (including all rights of the Borrower or the
beneficiary to require renewal) later than the earlier of 60 days before the
Termination Date and (A) in the case of a Standby Letter of Credit one year
after the date of issuance thereof, but may by its terms be renewable annually
upon notice (a "NOTICE OF RENEWAL") given to the Issuing Bank that issued such
Standby Letter of Credit and the Administrative Agent on or prior to any date
for notice of renewal set forth in such Letter of Credit but in any event at
least three Business Days prior to the date of the proposed renewal of such
Standby Letter of Credit and upon fulfillment of the applicable conditions set
forth in Article III unless such Issuing Bank has notified the Borrower (with a
copy to the Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event at least 30
Business Days prior to the date of automatic renewal of its election not to
renew such Standby Letter of Credit (a "NOTICE OF TERMINATION")
23
and (B) in the case of a Trade Letter of Credit, 60 days after the date of
issuance thereof; provided, however, that the terms of each Standby Letter of
Credit that is automatically renewable annually shall (x) require the Issuing
Bank that issued such Standby Letter of Credit to give the beneficiary named in
such Standby Letter of Credit notice of any Notice of Termination, (y) permit
such beneficiary, upon receipt of such notice, to draw under such Standby Letter
of Credit prior to the date such Standby Letter of Credit otherwise would have
been automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 60 days before the Termination Date. If either a
Notice of Renewal is not given by the Borrower or a Notice of Termination is
given by the relevant Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the relevant Issuing Bank may in
its discretion, unless instructed to the contrary by the Administrative Agent or
the Borrower, deem that a Notice of Renewal had been timely delivered and in
such case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Each Standby Letter of Credit shall contain a
provision authorizing the Issuing Bank that issued such Letter of Credit to
deliver to the beneficiary of such Letter of Credit, upon the occurrence and
during the continuance of an Event of Default, a notice (a "DEFAULT TERMINATION
NOTICE") terminating such Letter of Credit and giving such beneficiary 15 days
to draw such Letter of Credit. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(b), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to Section
2.03(c) and request the issuance of additional Letters of Credit under this
Section 2.01(b).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.03, each Borrowing shall be made on notice, given not
later than 2:00 P.M. (New York City time) on the third Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or not later than 11:00 A.M. (New York City time) on
the Business Day of the proposed Borrowing in the case of a Borrowing consisting
of Base Rate Advances, by the Borrower to the Administrative Agent, which shall
give to each Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "NOTICE OF BORROWING") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing and (iv) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Lender shall,
before 11:00 A.M. (New York City time) on the date of such Borrowing in the case
of a Borrowing consisting of Eurodollar Rate Advances and 1:00 P.M. (New York
City time) on the date of such Borrowing in the case of a Borrowing consisting
of Base Rate Advances, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments of such Lender and the other Lenders.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower by crediting the Borrower's
Account; provided, however, that the Administrative Agent shall first make a
portion of such funds equal to the aggregate principal amount of any Letter of
Credit Advances made by any Issuing Bank and by any other Lender and outstanding
on the date of such Borrowing, plus interest accrued and unpaid thereon to and
as of such date, available to such Issuing Bank and such other Lenders for
repayment of such Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $5,000,000 or if the obligation of the
24
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.07(d)(ii), 2.09 or 2.10 and (ii) there may not be more than 10
separate Borrowings outstanding at any time.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to (x) the date of any Borrowing consisting of Eurodollar
Rate Advances or (y) 12:00 Noon (New York City time) on the date of any
Borrowing consisting of Base Rate Advances that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid or paid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at such time under
Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such corresponding amount, such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for all purposes.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent and each Lender prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit (a "NOTICE OF
ISSUANCE") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of such issuance (which
shall be a Business Day), (ii) Available Amount of such Letter of Credit, (iii)
expiration date of such Letter of Credit, (iv) name and address of the
beneficiary of such Letter of Credit and (v) form of such Letter of Credit, and
shall be accompanied by such application and agreement for letter of credit as
such Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "LETTER OF CREDIT AGREEMENT"). If (y) the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion and (z) it has not received notice of objection to such
issuance from the Required Lenders, such Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower at its office referred to in Section 9.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any Letter of Credit Agreement
shall conflict with this Agreement, the provisions of this Agreement shall
govern.
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(b) Letter of Credit Reports. Each Issuing Bank shall furnish
(i) to each Lender on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the preceding month and drawings during such month under all
Letters of Credit issued by such Issuing Bank and (ii) to the Administrative
Agent and each Lender on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such Issuing
Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by such Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by any Issuing Bank with an outstanding Letter of Credit Advance, with a
copy of such demand to the Administrative Agent, each Lender shall purchase from
such Issuing Bank, and such Issuing Bank shall sell and assign to each such
Lender, such Lender's Pro Rata Share of such outstanding Letter of Credit
Advance as of the date of such purchase, by making available for the account of
its Applicable Lending Office to the Administrative Agent for the account of
such Issuing Bank, by deposit to the Administrative Agent's Account, in same day
funds, an amount equal to the portion of the outstanding principal amount of
such Letter of Credit Advance to be purchased by such Lender. Promptly after
receipt thereof, the Administrative Agent shall transfer such funds to such
Issuing Bank. The Borrower hereby agrees to each such sale and assignment. Each
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of Credit
Advance on (i) the Business Day on which demand therefor is made by the Issuing
Bank which made such Advance, provided that notice of such demand is given not
later than 11:00 A.M. (New York City time) on such Business Day, or (ii) the
first Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by an Issuing Bank to any Lender of a
portion of a Letter of Credit Advance, such Issuing Bank represents and warrants
to such other Lender that such Issuing Bank is the legal and beneficial owner of
such interest being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility with respect to
such Letter of Credit Advance, the Loan Documents or any Loan Party. If and to
the extent that any Lender shall not have so made the amount of such Letter of
Credit Advance available to the Administrative Agent, such Lender agrees to pay
to the Administrative Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by such Issuing Bank
until the date such amount is paid to the Administrative Agent, at the Federal
Funds Rate for its account or the account of such Issuing Bank, as applicable.
If such Lender shall pay to the Administrative Agent such amount for the account
of such Issuing Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Letter of Credit Advance made by such Lender on
such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Letter of Credit Advance made by such Issuing Bank shall be
reduced by such amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Revolving Credit
Advances. The Borrower shall repay to the Administrative Agent for the ratable
account of the Lenders on the Termination Date the aggregate outstanding
principal amount of the Revolving Credit Advances then outstanding.
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(b) Letter of Credit Advances. (i) The Borrower shall repay to
the Administrative Agent for the account of each Issuing Bank and each other
Lender that has made a Letter of Credit Advance on the same day on which such
Advance was made the outstanding principal amount of each Letter of Credit
Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit (and the obligations of each Lender to reimburse the Issuing
Bank with respect thereto) shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement, such Letter of
Credit Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Guaranties or any other guarantee, for
all or any of the Obligations of the Borrower in respect of the L/C
Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Letter of Credit Facility and the Unused Revolving Credit Commitments;
provided, however, that each partial reduction of a Facility (i) shall be in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Lenders in accordance with
their Commitments with respect to such Facility.
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(b) Mandatory. The Letter of Credit Facility shall be
permanently reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which the amount of the
Letter of Credit Facility exceeds the Revolving Credit Facility after giving
effect to such reduction of the Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may,
upon same day notice in the case of Base Rate Advances and two Business Days'
notice in the case of Eurodollar Rate Advances, in each case to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding aggregate principal amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the aggregate principal amount prepaid; provided,
however, that (i) each partial prepayment shall be in an aggregate principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof or,
if less, the amount of the Advances outstanding and (ii) if any prepayment of a
Eurodollar Rate Advance is made on a date other than the last day of an Interest
Period for such Advance, the Borrower shall also pay any amounts owing pursuant
to Section 9.04(c).
(b) Mandatory. (i) The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Revolving Credit Advances comprising
part of the same Borrowings and the Letter of Credit Advances and deposit an
amount in the L/C Cash Collateral Account in an amount equal to the amount by
which (A) the sum of the aggregate principal amount of (1) the Revolving Credit
Advances then outstanding and (2) the Letter of Credit Advances then outstanding
plus the aggregate Available Amount of all Letters of Credit then outstanding
exceeds (B) the lesser of the Revolving Credit Facility and the Loan Value on
such Business Day.
(ii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day.
(iii) Prepayments of the Revolving Credit Facility made
pursuant to clause (i) above shall be first applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full, second applied
to prepay Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full and third deposited in the L/C
Cash Collateral Account to cash collateralize 100% of the Available Amount of
the Letters of Credit then outstanding. Upon the drawing of any Letter of Credit
for which funds are on deposit in the L/C Cash Collateral Account, such funds
shall be applied to reimburse the relevant Issuing Bank or Lenders, as
applicable.
(iv) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time plus (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
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(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect on the first day of such Interest
Period, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default of the type described in Section 6.01(a) or (f) or, at
the election of the Administrative Agent or the Required Lenders, upon the
occurrence and during the continuance of an Event of Default, the Borrower shall
pay interest on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Advance pursuant to clause
(a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable under the Loan Documents
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid, in the case of interest, on
the Type of Advance on which such interest has accrued pursuant to clause (a)(i)
or (a)(ii) above and, in all other cases, on Base Rate Advances pursuant to
clause (a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the Borrower and each Lender of the
applicable Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii) above, and the
applicable rate, if any, furnished by each Reference Bank for the purpose of
determining the applicable interest rate under clause (a)(ii) above.
(d) Interest Rate Determination. (i) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Eurodollar Rate. If either of the Reference Banks shall not
furnish such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the other
Reference Bank.
(ii) If Telerate Page 3750 is unavailable and neither
Reference Bank is able to furnish timely information to the Administrative Agent
for determining the Eurodollar Rate for any Eurodollar Rate Advances,
(A) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined
for such Eurodollar Rate Advances,
(B) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(C) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
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SECTION 2.08. Fees. (a) Facility Fee. The Borrower shall pay
to the Administrative Agent for the account of the Lenders a facility fee (the
"FACILITY FEE"), from the date hereof in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the Termination
Date, payable quarterly in arrears on the last day of each March, June,
September and December, commencing June 30, 2003, and on the Termination Date.
The Facility Fee payable in respect of each Lender shall be calculated for each
quarterly period for which the Facility Fee is payable on the average daily
Revolving Credit Commitment of such Lender during such period at a rate equal to
0.20% per annum. If on the last day of any fiscal quarter the Borrower shall not
maintain a Debt Rating established by S&P and ▇▇▇▇▇'▇ of at least BBB- and Baa3,
respectively, the Facility Fee for such fiscal quarter shall be zero.
(b) Unused Fee. The Borrower shall pay to the Administrative
Agent for the account of the Lenders an unused commitment fee (the "UNUSED
FEE"), from the date hereof in the case of each Initial Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date,
payable in arrears on the date of the initial Borrowing hereunder, and
thereafter quarterly on the last day of each March, June, September and
December, commencing June 30, 2003, and on the Termination Date. The Unused Fee
payable for the account of each Lender shall be calculated for each period for
which the Unused Fee is payable on the average daily Unused Revolving Credit
Commitment of such Lender during such period at a per annum rate equal to the
Applicable Percentage on the first day of such period. If on the last day of any
fiscal quarter the Borrower shall maintain a Debt Rating established by S&P and
▇▇▇▇▇'▇ of at least BBB - and Baa3, respectively, the Unused Fee shall be zero
for such fiscal quarter.
(c) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Administrative Agent for the account of each Lender a commission, payable in
arrears, (a) quarterly on the last day of each March, June, September and
December, commencing June 30, 2003, and (b) on the earliest to occur of the full
drawing, expiration, termination or cancellation of any Letter of Credit, and
(c) on the Termination Date, on such Lender's Pro Rata Share of the average
daily aggregate Available Amount during such quarter of all Letters of Credit
outstanding from time to time at the rate per annum equal to the Applicable
Margin for Eurodollar Rate Advances in effect from time to time.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, (A) a fronting fee for each Letter of Credit issued by such Issuing
Bank in an amount equal to 0.125% of the Available Amount of such Letter of
Credit on the date of issuance of such Letter of Credit, payable on such date
and (B) such other commissions, issuance fees, transfer fees and other fees and
charges in connection with the issuance or administration of each Letter of
Credit as the Borrower and such Issuing Bank shall agree.
(d) Agents' Fees. The Borrower shall pay to each Agent for its
own account such fees as may from time to time be agreed between the Borrower
and such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.10, Convert all or any portion of the Advances of one Type comprising
the same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the Lenders
in accordance with their Commitments under such Facility. Each such notice of
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Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default, (y) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (z) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i)
the introduction after the date hereof of or any change after the date hereof in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request after the date hereof from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender Party of agreeing to make or of making,
funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of
issuing or maintaining or participating in Letters of Credit or of agreeing to
make or of making or maintaining Letter of Credit Advances (excluding, for
purposes of this Section 2.10, any such increased costs resulting from (y) Taxes
or Other Taxes (as to which Section 2.12 shall govern) and (z) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender Party is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent), pay
to the Administrative Agent for the account of such Lender Party additional
amounts sufficient to compensate such Lender Party for such increased cost;
provided, however, that a Lender Party claiming additional amounts under this
Section 2.10(a) agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
otherwise disadvantageous to such Lender Party. A certificate as to the amount
of such increased cost, submitted to the Borrower by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation after the date hereof or any guideline or request after the
date hereof from any central bank or other governmental authority (whether or
not having the force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender Party or any corporation
controlling such Lender Party and that the amount of such capital is increased
by or based upon the existence of such Lender Party's commitment to lend or to
issue or participate in Letters of Credit hereunder and other commitments of
such type or the issuance or maintenance of or participation in the Letters of
Credit (or similar contingent obligations), then, upon demand by such Lender
Party or such corporation (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the
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account of such Lender Party, from time to time as specified by such Lender
Party, additional amounts sufficient to compensate such Lender Party in the
light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder or to the issuance or maintenance of or participation in any
Letters of Credit. A certificate as to such amounts submitted to the Borrower by
such Lender Party shall be conclusive and binding for all purposes, absent
manifest error.
(c) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their Eurodollar Rate Advances
for such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or set-off (except as otherwise provided in Section 2.13), not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make
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all appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and each
of its Affiliates, if and to the extent payment owed to such Lender Party is not
made when due hereunder or, in the case of a Lender, under the Note held by such
Lender, to charge from time to time, to the fullest extent permitted by law,
against any or all of the Borrower's accounts with such Lender Party any amount
so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent
under this Agreement or any of the other Loan Documents is insufficient to pay
in full all amounts due and payable to the Agents and the Lender Parties under
or in respect of this Agreement and the other Loan Documents on any date, such
payment shall be distributed by the Administrative Agent and applied by the
Agents and the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents
(solely in their respective capacities as Agents) under or in respect
of this Agreement and the other Loan Documents on such date, ratably
based upon the respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to the Agents on
such date;
(ii) second, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Issuing Banks (solely in their respective capacities as such)
under or in respect of this Agreement and the other Loan Documents on
such date, ratably
33
based upon the respective aggregate amounts of all such fees,
indemnification payments, costs and expenses owing to the Issuing Banks
on such date;
(iii) third, to the payment of all of the indemnification
payments, costs and expenses that are due and payable to the Lenders
under Section 9.04, Section 22 of the Security Agreements and any
similar section of any of the other Loan Documents on such date,
ratably based upon the respective aggregate amounts of all such
indemnification payments, costs and expenses owing to the Lenders on
such date;
(iv) fourth, to the payment of all of the amounts that are due
and payable to the Administrative Agent and the Lender Parties under
Sections 2.10 and 2.12 on such date, ratably based upon the respective
aggregate amounts thereof owing to the Administrative Agent and the
Lender Parties on such date;
(v) fifth, to the payment of all of the fees that are due and
payable to the Lenders under Section 2.08(a) and (b) on such date,
ratably based upon the respective aggregate Commitments of the Lenders
under the Facilities on such date;
(vi) sixth, to the payment of all of the accrued and unpaid
interest on the Obligations of the Borrower under or in respect of the
Loan Documents that is due and payable to the Administrative Agent and
the Lender Parties under Section 2.07(b) on such date, ratably based
upon the respective aggregate amounts of all such interest owing to the
Administrative Agent and the Lender Parties on such date;
(vii) seventh, to the payment of all of the accrued and unpaid
interest on the Advances that is due and payable to the Administrative
Agent and the Lender Parties under Section 2.07(a) on such date,
ratably based upon the respective aggregate amounts of all such
interest owing to the Administrative Agent and the Lender Parties on
such date;
(viii) eighth, to the payment of the principal amount of all
of the outstanding Advances and any reimbursement obligations that are
due and payable to the Administrative Agent and the Lender Parties on
such date, ratably based upon the respective aggregate amounts of all
such principal and reimbursement obligations owing to the
Administrative Agent and the Lender Parties on such date, and to
deposit into the L/C Cash Collateral Account any contingent
reimbursement obligations in respect of outstanding Letters of Credit
to the extent required by Section 6.02; and
(ix) ninth, to the payment of all other Obligations of the
Loan Parties owing under or in respect of the Loan Documents that are
due and payable to the Administrative Agent and the other Secured
Parties on such date, ratably based upon the respective aggregate
amounts of all such Obligations owing to the Administrative Agent and
the other Secured Parties on such date.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and the
Administrative Agent, taxes that are imposed on its overall net income by the
United States and taxes that are imposed on its overall net income (and
franchise or other similar taxes imposed in lieu thereof) by the state or
foreign jurisdiction under the laws of which such Lender Party or the
Administrative Agent, as the case may be, is organized or any political
subdivision thereof and, in the case of each Lender Party, taxes that are
imposed on its overall net income (and franchise or other similar taxes imposed
in lieu thereof) by the state or foreign
34
jurisdiction of such Lender Party's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder or under
the Notes being hereinafter referred to as "TAXES"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender Party or the Administrative Agent, (i)
the sum payable by the Borrower shall be increased as may be necessary so that
after the Borrower and the Administrative Agent have made all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or the Administrative Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make all such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp, documentary, excise, property, intangible, mortgage recording or similar
taxes, charges or levies that arise from any payment made hereunder or under the
Notes or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement, or any other Loan Document
(hereinafter referred to as "OTHER TAXES"). Each Lender Party represents as of
the date hereof that, to the best of its knowledge without having conducted any
investigation, except for any Other Taxes that may be imposed under the federal,
state or local laws of the United States (or any political subdivision thereof),
it is not aware of the imposition of any Other Taxes with respect to this
Agreement or any other Loan Document.
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold them harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction (taking into account any available credits, as determined in the
sole discretion of the Lender Party or the Administrative Agent (as the case may
be), arising from the imposition of the underlying Taxes or Other Taxes) on
amounts payable under this Section 2.12, imposed on or paid by such Lender Party
or the Administrative Agent (as the case may be) and any liability (including
penalties, additions to tax, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender Party or the Administrative Agent (as the case may be) makes written
demand therefor; provided, however, that the Borrower shall not be obligated to
make payment to any Lender Party or the Administrative Agent (as the case may
be) pursuant to this Section 2.12 in respect of penalties, interest and other
liabilities attributable to any Taxes or Other Taxes, if such penalties,
interest and other liabilities are attributable to the gross negligence or
willful misconduct of such Lender Party or the Administrative Agent.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing such
payment or, if such receipts are not obtainable, other evidence of such payments
by the Borrower reasonably satisfactory to the Administrative Agent.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender
Party, and on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender Party in the case of each other Lender Party, and from time to
time thereafter as requested in writing by the Borrower (but only so long
thereafter as such Lender Party remains lawfully able to do so), provide each of
the Administrative Agent and the Borrower with two original Internal Revenue
Service forms W8-ECI or W8-BEN, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the forms provided by a
Lender Party at the time such Lender Party first becomes a party to this
Agreement indicate a United
35
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Lender Party becomes a
party to this Agreement, the Lender Party assignor was entitled to payments
under subsection (a) of this Section 2.12 in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date. If any form or document referred to in this subsection
(e) requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form W8-ECI or W8-BEN, that the applicable Lender Party
reasonably considers to be confidential, such Lender Party shall give notice
thereof to the Borrower and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in subsection
(e) above (other than if such failure is due to a change in law occurring after
the date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender Party shall
not be entitled to indemnification under subsection (a) or (c) of this Section
2.12 with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender Party shall reasonably request to assist such
Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
(h) If any Lender Party or the Administrative Agent receives a
refund of Taxes or Other Taxes paid by the Borrower or for which the Borrower
has indemnified any Lender Party or the Administrative Agent, as the case may
be, pursuant to this Section 2.12, then such Lender Party or the Administrative
Agent, as applicable, shall pay such amount, net of any expenses incurred by
such Lender Party or the Administrative Agent, to the Borrower within 30 days of
the receipt of such Taxes or Other Taxes. Notwithstanding the foregoing, (i) the
Borrower shall not be entitled to review the tax records or financial
information of any Lender Party or the Administrative Agent and (ii) neither the
Administrative Agent nor any Lender Party shall have any obligation to pursue
(and no Loan Party shall have any right to assert) any refund of Taxes or Other
Taxes that may be paid by the Borrower.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
36
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered. The Borrower agrees that any Lender Party so purchasing an interest
or participating interest from another Lender Party pursuant to this Section
2.13 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such interest or
participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances
and issuances of Letters of Credit shall be available (and the Borrower agrees
that it shall use such proceeds and Letters of Credit) solely for the
acquisition and development of Real Property, to refinance certain Existing
Debt, and the general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.15. Evidence of Debt. (a) Each Lender Party shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender Party resulting from each
Advance owing to such Lender Party from time to time, including the amounts of
principal and interest payable and paid to such Lender Party from time to time
hereunder. The Borrower agrees that upon notice by any Lender Party to the
Borrower (with a copy of such notice to the Administrative Agent) to the effect
that a promissory note or other evidence of indebtedness is required or
appropriate in order for such Lender Party to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender Party, the Borrower shall promptly execute and deliver to such Lender
Party, with a copy to the Administrative Agent, a Note, in substantially the
form of Exhibit A hereto, payable to the order of such Lender Party in a
principal amount equal to the Revolving Credit Commitment of such Lender Party.
All references to Notes in the Loan Documents shall mean Notes, if any, to the
extent issued hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 9.07(d) shall include a control account, and a subsidiary
account for each Lender Party, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of
Advances comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender Party
hereunder, and (iv) the amount of any sum received by the Administrative Agent
from the Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a)
37
above, shall be prima facie evidence of the amount of principal and interest due
and payable or to become due and payable from the Borrower to, in the case of
the Register, each Lender Party and, in the case of such account or accounts,
such Lender Party, under this Agreement, absent manifest error; provided,
however, that the failure of the Administrative Agent or such Lender Party to
make an entry, or any finding that an entry is incorrect, in the Register or
such account or accounts shall not limit or otherwise affect the obligations of
the Borrower under this Agreement.
SECTION 2.16. Extension of Termination Date. (a) At least 30
days but not more than 60 days prior to the Termination Date, the Borrower, by
written notice to the Administrative Agent, may request, with respect to the
Revolving Credit Commitments and the Letter of Credit Commitments then
outstanding, a single one-year extension of the Termination Date. The
Administrative Agent shall promptly notify each Lender of such request and the
Termination Date in effect at such time shall, effective as at the Termination
Date (the "EXTENSION DATE"), be extended for an additional one year period,
provided that (i) the Collateral Agent shall have received no later than 10 days
prior to the Extension Date a recent Appraisal of each Eligible Real Estate
Asset (it being understood and agreed that any Appraisals previously delivered
to the Collateral Agent in satisfaction of a request made pursuant to Section
5.01(k)(iii) shall satisfy the requirements of this subsection (i)) and (ii) on
the Extension Date, the following statements shall be true in all material
respects and the Administrative Agent shall have received for the account of
each Lender Party a certificate signed by a duly authorized officer of the
Borrower, dated the Extension Date, stating that: (x) the representations and
warranties contained in Section 4.01 are true and correct on and as of the
Extension Date, and (y) no Default has occurred and is continuing or would
result from such extension. In the event that an extension is effected pursuant
to this Section 2.16, the aggregate principal amount of all Advances shall be
repaid in full ratably to the Lenders on the Termination Date as so extended. As
of the Extension Date, any and all references in this Agreement, the Notes, if
any, or any of the other Loan Documents to the "Termination Date" shall refer to
the Termination Date as so extended.
(b) The Borrower shall pay to the Administrative Agent for the
account of the Lenders a Facility extension fee in an amount equal to 0.25% of
the total Revolving Credit Commitments then outstanding, payable on the
Extension Date.
ARTICLE III
CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance or of any Issuing Bank
to issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of the following conditions precedent
before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before
the day of the Initial Extension of Credit the following, each dated
such day (unless otherwise specified), in form and substance
satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes) in sufficient copies for each Lender Party:
(i) A Note payable to the order of each Lender that
has requested a Note prior to the Effective Date.
(ii) A security agreement in substantially the form
of Exhibit F hereto (together with each other security
agreement and security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, the "SECURITY
38
AGREEMENTS"), duly executed by each Loan Party that owns
Eligible Real Estate Assets, together with:
(A) acknowledgment copies of proper
financing statements, duly filed on or before the day
of the Initial Extension of Credit under the Uniform
Commercial Code of all jurisdictions that the
Collateral Agent may deem necessary or desirable in
order to perfect and protect the first priority liens
and security interests created under the Security
Agreements, covering the Collateral described in the
Security Agreements,
(B) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing all effective financing statements
filed in the jurisdictions referred to in clause (A)
above and in such other jurisdictions specified by
the Administrative Agent that name any Loan Party as
debtor, together with copies of such other financing
statements,
(C) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreements that the Collateral Agent may
deem necessary or desirable in order to perfect and
protect the Liens created thereby,
(D) copies of the Assigned Agreements
referred to in the Security Agreements, together with
a consent to such assignment, in substantially the
form of Exhibit B to the Security Agreements, duly
executed by each party to such Assigned Agreements
other than the Loan Parties, and
(E) evidence that all other action that the
Collateral Agent may deem necessary or desirable in
order to perfect and protect the first priority liens
and security interests created under the Security
Agreements has been taken (including, without
limitation, receipt of duly executed payoff letters,
UCC termination statements and landlords' and
bailees' waiver and consent agreements).
(iii) Deeds of trust, trust deeds and mortgages, in
substantially the form of Exhibit G hereto (with such changes
as may be required to account for local law matters and
otherwise satisfactory in form and substance to the
Collateral Agent) and covering the properties comprising
Eligible Real Estate Assets (together with the Assignments of
Leases and Rents referred to therein and each other deed of
trust, trust deed and mortgage delivered pursuant to Section
5.01(j), in each case as amended, the "MORTGAGES"), duly
executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the
Mortgages have been duly executed, acknowledged and
delivered on or before the day of the Initial
Extension of Credit and are in form suitable for
filing or recording in all filing or recording
offices that the Collateral Agent may deem necessary
or desirable in order to create a valid first and
subsisting Lien on the property described therein in
favor of the Collateral Agent for the benefit of the
Secured Parties and that all filing and recording
taxes and fees have been paid,
(B) fully paid American Land Title
Association Lender's Extended Coverage title
insurance policies (the "MORTGAGE POLICIES") in form
and substance, with endorsements and in amount
acceptable to the Collateral Agent,
39
issued, coinsured and reinsured by title insurers
acceptable to the Collateral Agent, insuring the
Mortgages to be valid first and subsisting Liens on
the property described therein, free and clear of all
defects (including, but not limited to, mechanics'
and materialmen's Liens) and encumbrances, excepting
only Permitted Encumbrances, and providing for such
other affirmative insurance (including endorsements
for future advances under the Loan Documents and for
mechanics' and materialmen's Liens) and such
coinsurance and direct access reinsurance as the
Collateral Agent may deem necessary or desirable,
(C) American Land Title Association/American
Congress on Surveying and Mapping form surveys for
which all necessary fees have been paid, dated no
more than 30 days before the day of the Initial
Extension of Credit, certified to the Collateral
Agent and the issuer of the Mortgage Policies in a
manner satisfactory to the Collateral Agent by a land
surveyor duly registered and licensed in the States
in which the property described in such surveys is
located and acceptable to the Collateral Agent,
showing all buildings and other improvements, any
off-site improvements, the location of any easements,
parking spaces, rights of way, building set-back
lines and other dimensional regulations and the
absence of encroachments, either by such improvements
or on to such property, and other defects, other than
encroachments and other defects acceptable to the
Collateral Agent,
(D) engineering, soils, environmental and
other reports as to the properties described in the
Mortgages, in form and substance and from
professional firms acceptable to the Collateral
Agent,
(E) the Assignments of Leases and Rents
referred to in the Mortgages, duly executed by the
appropriate Loan Party,
(F) estoppel and consent agreements, in form
and substance satisfactory to the Administrative
Agent, executed by each of the lessors of the leased
Eligible Real Property Assets listed on Schedule
4.01(q) hereto, along with (1) a memorandum of lease
in recordable form with respect to such leasehold
interest, executed and acknowledge by the owner of
the affected Real Property, as lessor, or (2)
evidence that the applicable lease with respect to
such leasehold interest or memorandum thereof has
been recorded in all places necessary or desirable,
in the Administrative Agent's reasonable judgment, to
give constructive notice to third-party purchasers of
such leasehold interest or (3) if such leasehold
interest was acquired or subleased from the holder of
a recorded leasehold interest, the applicable
assignment or sublease document, executed and
acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon
recordation and otherwise in form satisfactory to the
Administrative Agent,
(G) evidence of the insurance required by
the terms of the Mortgages,
(H) estoppel certificates executed by all
tenants of the Eligible Real Estate Assets,
(I) an Appraisal of each of the Real
Property assets described in the Mortgages, and
40
(J) such other consents, agreements and confirmations
of lessors and third parties as the Administrative Agent may
deem necessary or desirable and evidence that all other action
that the Collateral Agent may deem necessary or desirable in
order to create valid first and subsisting Liens on the
property described in the Mortgages has been taken.
(iv) Certified copies of the resolutions of the Board of
Directors, general partner or managing member, as applicable, of
each Loan Party and of each general partner or managing member (if
any) of each Loan Party approving the transactions contemplated by
the Loan Documents and each Loan Document to which it is or is to be
a party, and of all documents evidencing other necessary corporate
action and governmental and other third party approvals and
consents, if any, with respect to the transactions under the Loan
Documents and each Loan Document to which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State (or
equivalent authority) of the jurisdiction of incorporation,
organization or formation of each Loan Party and of each general
partner or managing member (if any) of each Loan Party, dated
reasonably near the date of the Initial Extension of Credit,
certifying (A) as to a true and correct copy of the charter,
certificate of limited partnership, limited liability company
agreement or other organizational document of such Loan Party,
general partner or managing member, as the case may be, and each
amendment thereto on file in such Secretary's office and (B) that
(1) such amendments are the only amendments to the charter,
certificate of limited partnership, limited liability company
agreement or other organizational document, as applicable, of such
Loan Party, general partner or managing member, as the case may be,
on file in such Secretary's office and (2) such Loan Party, general
partner or managing member, as the case may be, has paid all
franchise taxes to the date of such certificate and (C) such Loan
Party, general partner or managing member, as the case may be, is
duly incorporated, organized or formed and in good standing or
presently subsisting under the laws of the jurisdiction of its
incorporation, organization or formation.
(vi) A copy of a certificate of the Secretary of State (or
equivalent authority) of each jurisdiction in which any Loan Party
or any general partner or managing member of a Loan Party owns or
leases property or in which the conduct of its business requires it
to qualify or be licensed as a foreign corporation except where the
failure to so qualify or be licensed would not be reasonably likely
to have a Material Adverse Effect, dated reasonably near (but prior
to) the date of the Initial Extension of Credit, stating, with
respect to each such Loan Party, general partner or managing member,
that such Loan Party, general partner or managing member, as the
case may be, is duly qualified and in good standing as a foreign
corporation, limited partnership or limited liability company in
such State and has filed all annual reports required to be filed to
the date of such certificate.
(vii) A certificate of each Loan Party and of each general
partner or managing member (if any) of each Loan Party, signed on
behalf of such Loan Party, general partner or managing member, as
applicable, by its President or a Vice President and its Secretary
or any Assistant Secretary (or those of its general partner or
managing member, if applicable), dated the date of the Initial
Extension of Credit (the statements made in which certificate shall
be true on and as of the date of the Initial Extension of Credit),
certifying as to (A) the absence of any amendments to the
constitutive documents of such Loan Party, general partner or
managing member, as applicable, since the date of the
41
certificate referred to in Section 3.01(a)(v), (B) a true and
correct copy of the bylaws, operating agreement, partnership
agreement or other governing document of such Loan Party, general
partner or managing member, as applicable, as in effect on the date
on which the resolutions referred to in Section 3.01(a)(iv) were
adopted and on the date of the Initial Extension of Credit, (C) the
due incorporation, organization or formation and good standing or
valid existence of such Loan Party, general partner or managing
member, as applicable, as a corporation, limited liability company
or partnership organized under the laws of the jurisdiction of its
incorporation, organization or formation and the absence of any
proceeding for the dissolution or liquidation of such Loan Party,
general partner or managing member, as applicable, (D) the truth of
the representations and warranties contained in the Loan Documents
as though made on and as of the date of the Initial Extension of
Credit and (E) the absence of any event occurring and continuing, or
resulting from the Initial Extension of Credit, that constitutes a
Default.
(viii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party (or Responsible Officer of the general
partner or managing member of any Loan Party) and of each general
partner or managing member (if any) of each Loan Party certifying
the names and true signatures of the officers of such Loan Party, or
of the general partner or managing member of such Loan Party,
authorized to sign each Loan Document to which it is or is to be a
party and the other documents to be delivered hereunder and
thereunder.
(ix) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall
have requested, including, without limitation, information as to
possible contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements for the year ending
December 31, 2002, interim financial statements dated the end of the
most recent fiscal quarter for which financial statements are
available (or, in the event the Lender Parties' due diligence review
reveals material changes since such financial statements, as of a
later date within 45 days of the day of the Initial Extension of
Credit).
(x) Evidence of insurance naming the Administrative Agent as
loss payee and additional insured with such responsible and
reputable insurance companies or associations, and in such amounts
and covering such risks, as is satisfactory to the Lender Parties.
(xi) An opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP, counsel for the
Loan Parties, in substantially the form of Exhibit E hereto and as
to such other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xii) An opinion of Shearman & Sterling LLP, counsel for the
Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
(xiii) A Notice of Borrowing or Notice of Issuance, as
applicable, and a Borrowing Base Certificate relating to the Initial
Extension of Credit.
(b) The Lender Parties shall be satisfied with the corporate and
legal structure and capitalization of each Loan Party and its
Subsidiaries, including the terms and conditions of the
42
charter and bylaws, operating agreement, partnership agreement or other
governing document of each of them.
(c) The Lender Parties shall be satisfied that all Existing Debt,
other than Surviving Debt, has been prepaid, redeemed or defeased in full
or otherwise satisfied and extinguished and that all Surviving Debt shall
be on terms and conditions satisfactory to the Lender Parties.
(d) (i) The Recapitalization and the IPO shall have been,
substantially concurrently herewith, consummated, (ii) the Parent
Guarantor shall have received net cash proceeds from the IPO in an amount
not less than $600,000,000, and (iii) the common shares of the Parent
Guarantor shall have been listed on the New York Stock Exchange.
(e) Before and after giving effect to the transactions
contemplated by the Loan Documents, there shall have occurred no Material
Adverse Change since December 31, 2002.
(f) There shall exist no action, suit, investigation, litigation
or proceeding affecting any Loan Party or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that (i)
would be reasonably likely to have a Material Adverse Effect other than
the matters described on Schedule 4.01(f) hereto (the "DISCLOSED
LITIGATION") or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of the
transactions contemplated thereby, and there shall have been no adverse
change in the status, or financial effect on any Loan Party or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule
4.01(f) hereto.
(g) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated by the Loan
Documents shall have been obtained (without the imposition of any
conditions that are not acceptable to the Lender Parties) and shall remain
in effect, and no law or regulation shall be applicable in the reasonable
judgment of the Lender Parties that restrains, prevents or imposes
materially adverse conditions upon the transactions contemplated by the
Loan Documents.
(h) The Borrower shall have entered into the Hedge Agreements
required under Section 5.01(p).
(i) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and all reasonable,
out-of-pocket expenses of the Administrative Agent (including the
reasonable fees and expenses of counsel to the Administrative Agent).
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance.
The obligation of each Lender to make an Advance (other than a Letter of Credit
Advance made by an Issuing Bank or a Lender pursuant to Section 2.03(c)) on the
occasion of each Borrowing (including the initial Borrowing), the obligation of
each Issuing Bank to issue a Letter of Credit (including the initial issuance),
the extension of Commitments pursuant to Section 2.16 shall be subject to the
further conditions precedent that on the date of such Borrowing, issuance or
extension (a) the following statements shall be true and the Administrative
Agent shall have received for the account of such Lender or such Issuing Bank a
certificate signed by a duly authorized officer of the Borrower, dated the date
of such Borrowing, issuance or extension, stating that:
(i) the representations and warranties contained in each Loan
Document are true and correct on and as of such date, before and after
giving effect to (A) such Borrowing, issuance or
43
extension and (B) in the case of any Borrowing or issuance, the
application of the proceeds therefrom, as though made on and as of such
date;
(ii) no Default has occurred and is continuing, or would result
from (A) such Borrowing, issuance or extension or (B) in the case of any
Borrowing or issuance, from the application of the proceeds therefrom; and
(iii) for each Revolving Credit Advance or issuance or renewal of
any Letter of Credit, (A) the Loan Value equals or exceeds the aggregate
principal amount of the Revolving Credit Advances plus Letter of Credit
Advances to be outstanding plus the aggregate Available Amount of all
Letters of Credit to be outstanding after giving effect to such Advance or
issuance or renewal, respectively, and (B) before and after giving effect
to such Advance, issuance or renewal, the Parent Guarantor shall be in
compliance with Sections 5.04(b)(i) and (ii);
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender Party through the Administrative Agent may
reasonably request in order to confirm (i) the accuracy of the Loan Parties'
representations and warranties contained in the Loan Documents, (ii) the Loan
Parties' timely compliance with the terms, covenants and agreements set forth in
the Loan Documents, (iii) the absence of any Default and (iv) the rights and
remedies of the Secured Parties or the ability of the Loan Parties to perform
their Obligations, in each case under the Loan Documents following a change in
law occurring after the date hereof that the Administrative Agent, in its
reasonable discretion, believes may negatively affect such rights, remedies or
ability to perform.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties.
Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each general
partner or managing member, if any, of each Loan Party (i) is a
corporation, limited liability company or partnership duly incorporated,
organized or formed, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, organization or formation, (ii)
is duly qualified and in good standing as a foreign corporation, limited
liability company or partnership in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires
it to so qualify or be licensed except where the failure to so qualify or
be licensed would not be reasonably likely to have a Material Adverse
Effect and (iii) has all requisite corporate, limited liability company or
partnership power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease and
operate its properties and to carry on its business as now conducted and
as proposed to be conducted. Commencing with its taxable year ending
December 31, 2003, the Parent Guarantor will be organized in conformity
44
with the requirements for qualification as a REIT, and its proposed method
of operation will enable it to meet the requirements for qualification and
taxation as a REIT under the Internal Revenue Code. All of the outstanding
Equity Interests in the Parent Guarantor have been validly issued, are
fully paid and non-assessable and are owned by the General Partner free
and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list as of the date hereof of all Subsidiaries of each Loan Party, showing
as of the date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, organization or formation, the number of shares (or the
equivalent thereof) of each class of its Equity Interests authorized, and
the number outstanding, on the date hereof and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by such Loan
Party and the number of shares (or the equivalent thereof) covered by all
outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All of the outstanding Equity Interests
in each Loan Party's Subsidiaries has been validly issued, are fully paid
and non-assessable and are owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens.
(c) The execution, delivery and performance by each Loan Party and
of each general partner or managing member (if any) of each Loan Party of
each Loan Document to which it is or is to be a party are within the
corporate, limited liability company or partnership powers of such Loan
Party, general partner or managing member, have been duly authorized by
all necessary corporate, limited liability company or partnership action,
and do not (i) contravene the charter or bylaws, operating agreement,
partnership agreement or other governing document of such Loan Party,
general partner or managing member, (ii) violate any law, rule, regulation
(including, without limitation, Regulation X of the Board of Governors of
the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default or require any payment to be made under, any material
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties, or any general partner or
managing member of any Loan Party or (iv) except for the Liens created
under the Loan Documents, result in or require the creation or imposition
of any Lien upon or with respect to any of the properties of any Loan
Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries
is in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which would be reasonably
likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party or any general
partner or managing member of any Loan Party of any Loan Document to which
it is or is to be a party or for the consummation of the transactions
contemplated thereby, (ii) the grant by any Loan Party of the Liens
granted by it pursuant to the Collateral Documents, (iii) the perfection
or maintenance of the Liens created under the Collateral Documents
(including the first priority nature thereof) or, (iv) the exercise by the
Administrative Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions,
notices and filings listed on Schedule 4.01(d) hereto, all of which have
been duly obtained, taken, given or made and are in full force and effect.
45
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party and general partner or managing member (if any) of each Loan
Party party thereto. This Agreement is, and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party and general partner or managing member (if any) of each
Loan Party party thereto, enforceable against such Loan Party, general
partner or managing member, as the case may be, in accordance with its
terms.
(f) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries or any
general partner or managing member (if any) of any Loan Party, including
any Environmental Action, pending or threatened before any court,
governmental agency or arbitrator that (i) would be reasonably likely to
have a Material Adverse Effect (other than the Disclosed Litigation) or
(ii) purports to affect the legality, validity or enforceability of any
Loan Document or the consummation of the transactions contemplated
thereby, and there has been no adverse change in the status, or financial
effect on any Loan Party or any of its Subsidiaries or any general partner
or managing member (if any) of any Loan Party, of the Disclosed Litigation
from that described on Schedule 4.01(f) hereto.
(g) The Consolidated balance sheets of the Parent Guarantor and its
Subsidiaries as at December 31, 2002 and the related Consolidated
statements of income and Consolidated statement of cash flows of the
Parent Guarantor and its Subsidiaries for the fiscal year then ended,
accompanied by an unqualified opinion of KPMG LLP, independent public
accountants, and the Consolidated balance sheets of the Parent Guarantor
and its Subsidiaries as at March 31, 2003, and the related Consolidated
statements of income and Consolidated statement of cash flows of the
Parent Guarantor and its Subsidiaries for the three months then ended,
duly certified by the Chief Financial Officer of the Parent Guarantor,
copies of which have been furnished to each Lender Party, fairly present,
subject, in the case of said balance sheet as at March 31, 2003, and said
statements of income and cash flows for the three months then ended, to
year-end audit adjustments, the Consolidated financial condition of the
Parent Guarantor and its Subsidiaries as at such dates and the
Consolidated results of operations of the Parent Guarantor and its
Subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles applied on a consistent basis,
and since December 31, 2002, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income
and statements of cash flows of the Parent Guarantor and its Subsidiaries
delivered to the Lender Parties pursuant to Section 3.01(a)(ix) or 5.03
were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in light of the conditions existing
at the time of delivery of such forecasts, and represented, at the time of
delivery, the Parent Guarantor's best estimate of its future financial
performance.
(i) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender Party in connection with the
negotiation and syndication of the Loan Documents or pursuant to the terms
of the Loan Documents contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made
therein not misleading.
(j) No Loan Party is engaged in the business of extending credit for
the purpose of purchasing or carrying Margin Stock, and no proceeds of any
Advance or drawings under any Letter of Credit will be used to purchase or
carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
46
(k) Neither any Loan Party nor any of its Subsidiaries nor any
general partner or managing member of any Loan Party, as applicable, is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any
Loan Party nor any of its Subsidiaries nor any general partner or managing
member of any Loan Party or Subsidiary of a Loan Party that is a
partnership or a limited liability company, as applicable, is 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", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended. Neither the making of any Advances, nor
the issuance of any Letters of Credit, nor the application of the proceeds
or repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated by the Loan Documents, will violate any
provision of any such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(l) Neither any Loan Party nor any of its Subsidiaries is a party to
any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter, corporate, partnership, membership
or other governing restriction that would be reasonably likely to have a
Material Adverse Effect.
(m) All filings and other actions necessary to perfect and protect
the security interest in the Collateral created under the Collateral
Documents have been duly made or taken and are in full force and effect,
and the Collateral Documents create in favor of the Administrative Agent
for the benefit of the Secured Parties a valid and, together with such
filings and other actions, perfected first priority security interest in
the Collateral, securing the payment of the Secured Obligations, and all
filings and other actions necessary or desirable to perfect and protect
such security interest have been duly taken. The Loan Parties are the
legal and beneficial owners of the Collateral free and clear of any Lien,
except for the liens and security interests created or permitted under the
Loan Documents.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate
list of all Existing Debt (other than Surviving Debt), showing as of the
date hereof the obligor and the principal amount outstanding thereunder.
(o) Set forth on Schedule 4.01(o) hereto is a complete and accurate
list of all Surviving Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(p) Set forth on Schedule 4.01(p) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any of
its Subsidiaries, showing as of the date hereof the lienholder thereof,
the principal amount of the obligations secured thereby and the property
or assets of such Loan Party or such Subsidiary subject thereto.
(q) Set forth on Schedule 4.01(q) hereto is a complete and accurate
list of all Real Property owned by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, record owner and book value thereof.
Each Loan Party or such Subsidiary has good, marketable and insurable fee
simple title to such Real Property, free and clear of all Liens, other
than Liens created or permitted by the Loan Documents.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate
list of all leases of real property under which any Loan Party or any of
its Subsidiaries is the lessee, showing as of
47
the date hereof the street address, county or other relevant jurisdiction,
state, lessor, lessee, expiration date and annual rental cost thereof.
Each such lease is the legal, valid and binding obligation of the lessor
thereof, enforceable in accordance with its terms.
(s) Except as otherwise set forth in the environmental reports
listed on Schedule 4.01(s) hereto (correct copies of which have been made
available to the Administrative Agent), the operations and properties of
each Loan Party and each of its Subsidiaries comply in all material
respects with all applicable Environmental Laws and Environmental Permits,
all past non-compliance with such Environmental Laws and Environmental
Permits has been resolved without ongoing obligations or costs, and no
circumstances exist that could be reasonably likely to (i) form the basis
of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could have a Material Adverse
Effect or (ii) cause any such property to be subject to any restrictions
on ownership, occupancy, use or transferability under any Environmental
Law.
(t) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or other casualty (whether or not
covered by insurance) that could be reasonably likely to have a Material
Adverse Effect.
(u) Each Loan Party has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on such documents
and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement (and in the case of the
Guarantors, to give the guaranty under this Agreement) and each other Loan
Document to which it is or is to be a party, and each Loan Party has
established adequate means of obtaining from each other Loan Party on a
continuing basis information pertaining to, and is now and on a continuing
basis will be completely familiar with, the business, condition (financial
or otherwise), operations, performance, properties and prospects of such
other Loan Party.
(v) Each Loan Party is individually and together with its
Subsidiaries, Solvent.
(w) Except as set forth on Schedule 4.01(w), no Loan Party has made
any extension of credit to any of its directors or executive officers in
contravention of the restrictions set forth in Section 402(a) of
▇▇▇▇▇▇▇▇-▇▇▇▇▇.
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list of all Excluded Subsidiaries and their respective Excluded Subsidiary
Agreements existing on the date hereof.
(y) ▇▇▇▇▇▇▇ Partners - Glendale, LLC owns no property or assets and
does not conduct any business or engage in any activity material to the
business of any Loan Party.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, each Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to
48
include, without limitation, compliance with ERISA and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and other material governmental
charges or levies imposed upon it or upon its property and (ii) all lawful
claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Loan Parties nor any of their
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or occupying
its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each
of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, however, that neither the Loan Parties nor any of their
Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance (including, with respect to the
Eligible Real Estate Assets, the insurance required by the terms of the
Mortgages) with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually carried
by companies engaged in similar businesses and owning similar properties
in the same general areas in which such Loan Party or such Subsidiaries
operate.
(e) Preservation of Partnership or Corporate Existence, Etc.
Preserve and maintain, and cause each of its Subsidiaries (other than
▇▇▇▇▇▇▇ Partners - Glendale, LLC, which the Borrower shall dissolve no
later than 60 days following the Closing Date) to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that the Loan Parties and their Subsidiaries may
consummate any merger, consolidation or other transaction permitted under
Section 5.02(d) or any Transfer not prohibited under Section 5.02(e), and
provided further that no Excluded Subsidiary shall be required to preserve
its existence or be prevented from winding-up or dissolving, if, in either
case, (i) the non-preservation, winding-up or dissolution of such Excluded
Subsidiary, as applicable, is (A) as a result of a transaction permitted
under Section 5.02(d) or (B) upon or following any Transfer not prohibited
under Section 5.02(e) in which substantially all of the assets of such
Excluded Subsidiary were sold or otherwise disposed of and (ii) the
failure to preserve such Excluded Subsidiary's existence is not otherwise
disadvantageous in any material respect to the Loan Parties and their
Subsidiaries taken as a whole.
(f) Visitation Rights. At any reasonable time and from time to
time, permit any of the Agents or Lender Parties, or any Agent or
representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, any Loan
Party and any of its Subsidiaries, and to discuss the affairs, finances
and accounts of any Loan Party
49
and any of its Subsidiaries with any of their general partners, managing
members, officers or directors and with their independent certified public
accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Loan Party and each such Subsidiary in accordance with
GAAP.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted and will from
time to time make or cause to be made all appropriate repairs, renewals
and replacement thereof except where failure to do so would not have a
Material Adverse Effect.
(i) Transactions with Affiliates and Excluded Subsidiaries.
Conduct, and cause each of its Subsidiaries to conduct, all transactions
otherwise permitted under the Loan Documents with any of their Affiliates
or with any Excluded Subsidiary on terms that are fair and reasonable and
no less favorable to such Loan Party or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. (i) Upon
the occurrence and during the continuance of any Default of the type
described in Section 6.01(a) or in Section 6.01(c) relating to Section
5.04, within 10 days after the request of the Collateral Agent, furnish to
the Collateral Agent account control agreements duly executed by each bank
or other financial institution at which the Borrower or any of its
Subsidiaries maintains an account.
(ii) Within 10 days after any Excluded Subsidiary Agreement
terminates or otherwise becomes ineffective as to the Excluded
Subsidiary party to such agreement, cause such Excluded Subsidiary
to duly execute and deliver to the Administrative Agent a Guaranty
Supplement in substantially the form of Exhibit C hereto, or such
other guaranty supplement in form and substance satisfactory to the
Administrative Agent, guaranteeing the Obligations of the other Loan
Parties under the Loan Documents.
(iii) Within 10 days after the formation or acquisition of any
new direct or indirect Subsidiary by any Loan Party, cause each such
Subsidiary (other than a Subsidiary that is prohibited by the terms
of any loan agreement or indenture or other material agreement to
which it is a party from providing guarantees of the Obligations of
the Loan Parties under the Loan Documents), and cause each direct
and indirect parent of such Subsidiary (if it has not already done
so), to duly execute and deliver to the Administrative Agent a
Guaranty Supplement in substantially the form of Exhibit C hereto,
or such other guaranty supplement in form and substance satisfactory
to the Administrative Agent, guaranteeing the other Loan Parties'
Obligations under the Loan Documents.
(iv) Upon the request by the Borrower that any additional
Real Property and related assets (a "PROPOSED BORROWING BASE
PROPERTY") be included as an Eligible Real Estate Asset, and such
Proposed Borrowing Base Property shall not already be subject to a
perfected first priority Lien in favor of the Collateral Agent for
the benefit of the Secured Parties, in each case at the Borrower's
expense:
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(A) within 10 days after such request, furnish to the
Collateral Agent (I) a description, in detail satisfactory to
the Collateral Agent, of the Proposed Borrowing Base Property
and (II) a revised Schedule II hereto reflecting the addition
of such Proposed Borrowing Base Property, which schedule shall
become effective only upon satisfaction of each of the
conditions set forth in this Section 5.01(j).
(B) within 15 days after such request, duly execute
and deliver, or cause the applicable Subsidiary to duly
execute and deliver, to the Collateral Agent mortgages,
pledges, assignments, security agreement supplements and other
security agreements, as specified by and in form and substance
reasonably satisfactory to the Collateral Agent (including,
without limitation, a Mortgage, together with the Assignment
of Leases and Rents referred to therein, and a Security
Agreement with respect to such Proposed Borrowing Base
Property), securing payment of all the Obligations of the
applicable Loan Party under the Loan Documents and sufficient
in the judgment of the Collateral Agent to create Liens on
such Proposed Borrowing Base Property.
(C) within 30 days after such request, take, and cause
such Subsidiary or such parent to take, whatever action
(including, without limitation, the recording of mortgages,
the filing of Uniform Commercial Code financing statements and
the giving of notices) may be necessary or advisable in the
reasonable opinion of the Collateral Agent to vest in and
perfect for the benefit of the Collateral Agent (or in any
representative of the Collateral Agent designated by it) valid
and subsisting Liens on such Proposed Borrowing Base Property
such that the same shall be enforceable against all third
parties in accordance with their terms.
(D) as promptly as practicable after such request (and
in any event within 60 days after such request), deliver, to
the Administrative Agent with respect to each parcel of such
Proposed Borrowing Base Property (I) a signed copy of a
favorable opinion, addressed to the Collateral Agent and the
other Secured Parties, of counsel for the Loan Parties
acceptable to the Collateral Agent as to the mortgages,
pledges, assignments, security agreement supplements and
security agreements (as applicable) described in clause (B)
above being legal, valid and binding obligations of the
applicable Subsidiary party thereto enforceable in accordance
with their terms, as to the recordings, filings, notices and
other actions described in clause (C) above being sufficient
to create valid perfected Liens on such Proposed Borrowing
Base Property and as to such other matters as the Collateral
Agent may reasonably request, (II) title insurance policies,
surveys and engineering, soils and other reports,
environmental assessment reports and such other documents and
deliveries as more fully described in Section 3.01 as
determined by the Collateral Agent in its reasonable
discretion, each in scope, form and substance satisfactory to
the Collateral Agent, and (III) an Appraisal of such Proposed
Borrowing Base Property.
(v) At any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as any Agent may deem necessary or desirable in
obtaining the full benefits of, or in perfecting and preserving the
Liens of, such guaranties, mortgages, pledges, assignments, security
agreement supplements and security agreements.
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(vi) In the event that the Borrower has not delivered to the
Collateral Agent satisfactory evidence that ▇▇▇▇▇▇▇ Partners -
Glendale, LLC has been dissolved by the 61st day following the
Closing Date, duly execute and deliver to the Administrative Agent
no later than the 65th day following the Closing Date a Guaranty
Supplement in substantially the form of Exhibit C hereto, or such
other guaranty supplement in form and substance satisfactory to the
Administrative Agent, guaranteeing the Obligations of the other Loan
Parties under the Loan Documents.
(k) Further Assurances. (i) Promptly upon request by any Agent, or
any Lender Party through the Administrative Agent, correct, and cause each
of its Subsidiaries promptly to correct, any material defect or error that
may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof.
(ii) Promptly upon request by any Agent, or any Lender Party
through the Administrative Agent, do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and
all such further acts, deeds, conveyances, pledge agreements,
mortgages, deeds of trust, trust deeds, assignments, financing
statements and continuations thereof, termination statements,
notices of assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time in
order to (A) carry out more effectively the purposes of the Loan
Documents, (B) to the fullest extent permitted by applicable law,
subject any Loan Party's or any of its Subsidiaries' properties,
assets, rights or interests to the Liens now or hereafter intended
to be covered by any of the Collateral Documents, (C) perfect and
maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Liens intended to be created
thereunder and (D) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Secured
Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any
other instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be a
party, and cause each of its Subsidiaries to do so.
(iii) Promptly upon the request of the Required Lenders
through the Administrative Agent, deliver to the Collateral Agent a
recent Appraisal of each Eligible Real Estate Asset, provided, that
the Loan Parties shall be required to comply with only one such
request by the Required Lenders, provided further that the Loan
Parties shall not be required to comply with any such request if the
Collateral Agent shall have previously received the Appraisals
contemplated by Section 2.16(a).
(l) Cash Concentration Accounts. Upon the occurrence and during
the continuance of any Default of the type described in Section 6.01(a) or
in Section 6.01(c) relating to Section 5.04, maintain, and cause each of
its Subsidiaries to maintain, cash concentration accounts with Citibank,
N.A. and lockbox accounts into which all proceeds of Collateral are paid
with Citibank, N.A. or one or more banks acceptable to the Administrative
Agent that have accepted the assignment of such accounts to the
Administrative Agent for the benefit of the Secured Parties pursuant to
the Security Agreements.
(m) Performance of Material Contracts. Perform and observe all the
terms and provisions of each Material Contract to be performed or observed
by it, maintain each such Material Contract in full force and effect,
enforce each such Material Contract in accordance with its terms, take all
such action to such end as may be from time to time requested by the
52
Administrative Agent and, upon request of the Administrative Agent, make
to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or
any of its Subsidiaries is entitled to make under such Material Contract,
and cause each of its Subsidiaries to do so.
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party as a
lessee, keep such leases in full force and effect and not allow such
leases or lapse or be terminated or any rights to renew such leases to be
forfeited or cancelled, notify the Administrative Agent of any default by
any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause
each of its Subsidiaries to do so.
(o) Interest Rate Hedging. Enter into prior to the Closing Date,
and maintain at all times thereafter, interest rate Hedge Agreements (i)
with Persons acceptable to the Administrative Agent, (ii) providing an
interest-rate swap for a fixed rate of interest acceptable to the
Administrative Agent, (iii) covering a notional amount of not less than an
amount equal to 66-2/3% of Consolidated Debt for Borrowed Money of the
Parent Guarantor and (iv) otherwise on terms and conditions acceptable to
the Administrative Agent.
(p) Maintenance of REIT Status. In the case of the General
Partner, at all times, conduct its affairs and the affairs of its
Subsidiaries in a manner so as to continue to qualify as a REIT and elect
to be treated as a REIT.
(q) NYSE Listing. In the case of the General Partner, at all times
(i) cause its common shares to be duly listed on the New York Stock
Exchange and (ii) timely file all reports required to be filed by it in
connection therewith.
(r) ▇▇▇▇▇▇▇▇-▇▇▇▇▇. Comply at all times with Section 402(a) of
▇▇▇▇▇▇▇▇-▇▇▇▇▇.
SECTION 5.02. Negative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, no Loan Party will, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned or
hereafter acquired, or sign or file or suffer to exist, or permit any of
its Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names such
Loan Party or any of its Subsidiaries as debtor, or sign or suffer to
exist, or permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, except, in the case
of the Loan Parties (other than the Parent Guarantor) and their respective
Subsidiaries:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 4.01(o) hereto;
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(iv) purchase money Liens upon or in equipment acquired or
held by such Loan Party or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such equipment or
to secure Debt incurred solely for the purpose of financing the
acquisition of any such equipment to be subject to such Liens, or
Liens existing on any such equipment at the time of acquisition
(other than any such Liens created in contemplation of such
acquisition that do not secure the purchase price), or extensions,
renewals or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such Lien shall extend to
or cover any property other than the equipment being acquired, and
no such extension, renewal or replacement shall extend to or cover
any property not theretofore subject to the Lien being extended,
renewed or replaced; and provided further that the aggregate
principal amount of the Debt secured by Liens permitted by this
clause (iv) shall not exceed the amount permitted under Section
5.02(b)(iii)(B) at any time outstanding;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii)(C), provided that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(vi) Liens on property of a Person existing at the time such
Person is merged into or consolidated with any Loan Party or any
Subsidiary of any Loan Party or becomes a Subsidiary of any Loan
Party, provided that such Liens were not created in contemplation of
such merger, consolidation or acquisition and do not extend to any
assets other than those of the Person so merged into or consolidated
with such Loan Party or such Subsidiary or acquired by such Loan
Party or such Subsidiary;
(vii) other Liens securing Non-Recourse Debt permitted under
Section 5.02(b)(iii)(G), provided that no such Lien shall extend to
or cover any Collateral; and
(viii) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit any
of its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of each Loan Party (other than the Parent
Guarantor), Debt owed to any other Loan Party (other than the Parent
Guarantor) or any wholly-owned Subsidiary of any Loan Party,
provided that, in each case, such Debt (y) shall be on terms
acceptable to the Administrative Agent and (z) shall be evidenced by
promissory notes in form and substance satisfactory to the
Administrative Agent, which promissory notes shall (unless payable
to the Borrower) by their terms be subordinated to the Obligations
of the Loan Parties under the Loan Documents;
(ii) in the case of any Subsidiary of a Loan Party, Debt owed
to any Loan Party (other than the Parent Guarantor) or to any
wholly-owned Subsidiary of any Loan Party, provided that, in each
case, such Debt (y) shall be on terms acceptable to the
Administrative Agent and (z) shall be evidenced by promissory notes
in form and substance satisfactory to the Administrative Agent,
which promissory notes shall (unless payable to the Borrower) by
their terms be subordinate to the Obligations of the Loan Parties
under the Loan Documents;
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(iii) in the case of each Loan Party (other than the Parent
Guarantor) and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section
5.02(a)(iv) not to exceed in the aggregate $25,000,000 at any
time outstanding,
(C) (1) Capitalized Leases not to exceed in the
aggregate $50,000,000 at any time outstanding, and (2) in the
case of Capitalized Leases to which any Subsidiary of a Loan
Party is a party, Debt of such Loan Party of the type
described in clause (i) of the definition of "Debt"
guaranteeing the Obligations of such Subsidiary under such
Capitalized Leases,
(D) the Surviving Debt described on Schedule 4.01(o)
hereto and any Refinancing Debt extending, refunding or
refinancing such Surviving Debt,
(E) Debt in respect of Hedge Agreements entered into
by the Borrower and designed to hedge against fluctuations in
interest rates or foreign exchange rates incurred in the
ordinary course of business and consistent with prudent
business practice with the aggregate Agreement Value thereof
not to exceed $25,000,000 at any time outstanding,
(F) unsecured Debt incurred in the ordinary course of
business for borrowed money, maturing within one year from the
date created, and aggregating, on a Consolidated basis, not
more than $50,000,000 at any one time outstanding, and
(G) Non-Recourse Debt the incurrence of which would
not result in a Default under Section 5.04 or any other
provision of this Agreement, provided that neither the
Borrower nor any of its Subsidiaries is obligated for the
payment of such Debt other than to the extent of (i) any
security therefor and (ii) customary carve-outs, including,
without limitation, fraud, criminal activity, misapplication
of funds, ad valorem taxes and environmental matters;
(iv) in the case of the Parent Guarantor, Debt under the Loan
Documents; and
(v) in the case of the TRS Subsidiaries, Contingent
Obligations incurred in the ordinary course of business of the TRS
Subsidiaries arising under management, leasing and development
agreements entered into by the TRS Subsidiaries relating to the
provision of administrative and operational, management, leasing
and/or development services, so long as the aggregate amount of such
Contingent Obligations does not at any time exceed 5% of Total Asset
Value at such time.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof; or engage in, or permit any of its
Subsidiaries to engage in, any business other than ownership, development
and management of commercial real estate properties in the United States
consistent in quality with the Real Property, and other business
activities incidental thereto.
55
(d) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so; provided, however, that (i) any Subsidiary of a
Loan Party may merge or consolidate with or into, or dispose of assets to,
any other Subsidiary of such Loan Party (provided that if one or more
Subsidiaries is also a Loan Party, any such Loan Party shall be the
surviving entity) or any other Loan Party (provided that such Loan Party
or, in the case of any Loan Party other than the Borrower, another Loan
Party shall be the surviving entity), and (ii) any Loan Party may merge
with any other Person so long as such Loan Party or another Loan Party is
the surviving entity, provided, in each case, that no Default shall have
occurred and be continuing at the time of such proposed transaction or
would result therefrom.
(e) Sales, Etc. of Real Property. (i) In the case of the Parent
Guarantor, sell, lease (other than Tenancy Leases), transfer or otherwise
dispose of, or grant any option or other right to purchase, lease (other
than any option or other right to enter into Tenancy Leases) or otherwise
acquire any assets and (ii) in the case of the Loan Parties (other than
the Parent Guarantor), sell, lease (other than Tenancy Leases), transfer
or otherwise dispose of, or grant any option or other right to purchase,
lease (other than any option or other right to enter into Tenancy Leases)
or otherwise acquire, or permit any of its Subsidiaries to sell, lease,
transfer or otherwise dispose of, or grant any option or other right to
purchase, lease or otherwise acquire (each action described in clauses (i)
and (ii) of this subsection (e) being a "TRANSFER"), any Real Property or
Real Properties (or any Equity Interests in connection therewith) in any
six month period for an amount greater than $50,000,000, unless the Loan
Parties are in compliance with the covenants contained in Section 5.04,
calculated based on the financial statements most recently delivered to
the Lender Parties pursuant to Section 5.03 (A) as though such transaction
had occurred at the beginning of the four-quarter period covered thereby
and (B) on a pro forma basis (excluding in each instance from such
calculation the Real Property or Real Properties that are the subject of
the transaction), as evidenced by a certificate of the Chief Financial
Officer (or such person performing similar functions) of the Borrower
delivered to the Administrative Agent prior to such transaction
demonstrating such compliance, provided, that there shall be no Transfer
of any Eligible Real Estate Asset without the prior written consent of all
of the Lenders.
(f) Investments in Other Persons. Make or hold, or permit any of
its Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments by the Loan Parties and their Subsidiaries
in their Subsidiaries outstanding on the date hereof and additional
investments in wholly-owned Subsidiaries and, in the case of the
Loan Parties (other than the Parent Guarantor) and their respective
Subsidiaries, Investments in Real Property (including by asset or
Equity Interest acquisitions) of which an amount not to exceed 10%
of Total Asset Value at any time shall be invested in Non-Office
Real Property, in each case subject, where applicable, to the
limitations set forth in Section 5.02(f)(iv);
(ii) Investments in Cash Equivalents;
(iii) Investments consisting of intercompany Debt permitted
under Section 5.02(b)(i) or (ii);
(iv) Investments consisting of the following items so long as
(y) the aggregate amount outstanding, without duplication, of all
Investments described in this
56
subsection does not exceed, at any time, 25% of Total Asset Value at
such time, and (z) the aggregate amount of each of the following
items of Investments does not exceed the specified percentage of
Total Asset Value set forth below:
(A) Loans, advances and extensions of credit to any
Person (other than an officer or director of the Parent
Guarantor and its Subsidiaries) so long as the aggregate
amount of such Investments does not at any time exceed 10% of
Total Asset Value at such time, in each case after giving
effect to such Investments,
(B) unimproved real estate, so long as the aggregate
amount of such Investment, calculated on the basis of cost,
does not at any time exceed 5.0% of Total Asset Value at such
time,
(C) Development Property that is being constructed or
developed as CBD Office Real Property, but is not yet
completed (including such assets that such Person has
contracted to purchase for development with or without options
to terminate the purchase agreement), so long as the aggregate
amount of such Investment, calculated on the basis of the
greater of actual cost or budgeted cost, does not at any time
exceed 15% of Total Asset Value at such time,
(D) Investments in Subsidiaries that are not
wholly-owned Subsidiaries of any Loan Party so long as the
aggregate amount of such Investments outstanding does not at
any time exceeds 15% of Total Asset Value at such time; and
(v) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(iii)(E).
(g) Restricted Payments. In the case of the Parent Guarantor,
declare or pay any dividends, purchase, redeem, retire, defease or
otherwise acquire for value any of its Equity Interests now or hereafter
outstanding, return any capital to its stockholders, partners or members
(or the equivalent Persons thereof) as such, make any distribution of
assets, Equity Interests, obligations or securities to its stockholders,
partners or members (or the equivalent Persons thereof) as such or issue
or sell any Equity Interests; provided, however, so long as (i) no Default
of the type described in Section 6.01(a) or (e) shall have occurred and be
continuing and (ii) the Notes and all interest and other amounts payable
under Loan Documents shall not have been declared due and payable pursuant
to Section 6.01, then the Parent Guarantor may declare and pay dividends
(y) to the extent the aggregate amount of such payments over the preceding
twelve months is less than 95% of Funds From Operations or (z) as may
otherwise be required in order to comply with Section 5.01(p) and to avoid
the imposition of income or excise taxes on the Parent Guarantor.
(h) Amendments of Constitutive Documents. Amend, or permit any of
its Subsidiaries to amend, its limited partnership agreement, certificate
of incorporation or bylaws or other constitutive documents.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by generally accepted accounting
principles, or (ii) Fiscal Year.
57
(j) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions.
(k) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its Equity Interests or
repay or prepay any Debt owed to, make loans or advances to, or otherwise
transfer assets to or invest in, the Borrower or any Subsidiary of the
Borrower (whether through a covenant restricting dividends, loans, asset
transfers or investments, a financial covenant or otherwise), except (i)
the Loan Documents, (ii) any agreement or instrument evidencing Surviving
Debt, and (iii) any agreement in effect at the time such Subsidiary
becomes a Subsidiary of the Borrower, so long as such agreement was not
entered into solely in contemplation of such Person becoming a Subsidiary
of the Borrower.
(l) Amendment, Etc., of Material Contracts. Cancel or terminate
any Material Contract or consent to or accept any cancellation or
termination thereof, amend or otherwise modify any Material Contract or
give any consent, waiver or approval thereunder, waive any default under
or breach of any Material Contract, agree in any manner to any other
amendment, modification or change of any term or condition of any Material
Contract or take any other action in connection with any Material Contract
that would impair the value of the interest or rights of any Loan Party
thereunder or that would impair the interest or rights of the
Administrative Agent or any Lender Party, or permit any of its
Subsidiaries to do any of the foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or permit any
Subsidiary Guarantor to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets except (i) in favor of the Secured Parties
or (ii) in connection with (A) any Surviving Debt and any Refinancing Debt
extending, refunding or refinancing such Surviving Debt, (B) any purchase
money Debt permitted by Section 5.02(b)(iii)(B) solely to the extent that
the agreement or instrument governing such Debt prohibits a Lien on the
property acquired with the proceeds of such Debt, (C) any Capitalized
Lease permitted by Section 5.02(b)(iii)(C) solely to the extent that such
Capitalized Lease prohibits a Lien on the property subject thereto, or (D)
any Debt outstanding on the date any Subsidiary of the Borrower becomes
such a Subsidiary (so long as such agreement was not entered into solely
in contemplation of such Subsidiary becoming a Subsidiary of the
Borrower).
(n) Parent Guarantor as Holding Company. In the case of the Parent
Guarantor, not enter into or conduct any business, or engage in any
activity (including, without limitation, any action or transaction that is
required or restricted with respect to the Borrower and its Subsidiaries
under Sections 5.01 and 5.02 without regard to any of the enumerated
exceptions to such covenants), other than (i) the holding of the Equity
Interests of the Borrower; (ii) the performance of its duties as general
partner of the Borrower; (iii) the performance of its Obligations (subject
to the limitations set forth in the Loan Documents) under each Loan
Document to which it is a party; (iv) the making of equity Investments in
the Borrower and its Subsidiaries, provided each such Investment (A) shall
be on terms acceptable to the Agent and (B) shall be evidenced by stock
certificates, promissory notes or instruments in form and substance
satisfactory to the Agent; (v) the maintenance of any deposit accounts
required in connection with the conduct by the Parent Guarantor of
business or activities otherwise permitted under the Loan Documents; and
(vi) activities incidental to each of the foregoing.
58
(o) Excluded Subsidiaries. Enter into or suffer to exist, or
permit any Excluded Subsidiary to enter into or suffer to exist, any
agreement prohibiting or conditioning (i) the guaranty by such Excluded
Subsidiary of the Obligations of the Loan Parties under the Loan Documents
or (ii) the creation or assumption of any Lien upon any of such Excluded
Subsidiary's property or assets except (x) as would be permitted under
Section 5.02(m) hereof or (y) pursuant to an Excluded Subsidiary Agreement
in effect on the later of the Effective Date and the date on which such
Excluded Subsidiary becomes a Subsidiary of such Loan Party.
SECTION 5.03. Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Administrative Agent and
the Lender Parties:
(a) Default Notice. As soon as possible and in any event within
two days after the Borrower has or should have had knowledge of the
occurrence of each Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect continuing on the date
of such statement, a statement of the Chief Financial Officer (or person
performing similar functions) of the Parent Guarantor setting forth
details of such Default or such event, development or occurrence and the
action that the Parent Guarantor has taken and proposes to take with
respect thereto.
(b) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Parent Guarantor and its Subsidiaries,
including therein Consolidated balance sheets of the Parent Guarantor and
its Subsidiaries as of the end of such Fiscal Year and Consolidated
statements of income and a Consolidated statement of cash flows of the
Parent Guarantor and its Subsidiaries for such Fiscal Year, in each case
accompanied by an opinion acceptable to the Required Lenders of KPMG LLP
or other independent public accountants of recognized standing acceptable
to the Required Lenders, together with (i) a certificate of such
accounting firm to the Lender Parties stating that in the course of the
regular audit of the business of the Parent Guarantor and its
Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting
firm has obtained no knowledge that a Default has occurred and is
continuing, or if, in the opinion of such accounting firm, a Default has
occurred and is continuing, a statement as to the nature thereof, (ii) a
schedule in form satisfactory to the Administrative Agent of the
computations used by such accountants in determining, as of the end of
such Fiscal Year, compliance with the covenants contained in Section 5.04,
provided that in the event of any change in GAAP used in the preparation
of such financial statements, the Parent Guarantor shall also provide, if
necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to GAAP
and (iii) a certificate of the Chief Financial Officer (or person
performing similar functions) of the Parent Guarantor stating that no
Default has occurred and is continuing or, if a default has occurred and
is continuing, a statement as to the nature thereof and the action that
the Parent Guarantor has taken and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event
within 45 days after the end of each of the first three quarters of each
Fiscal Year, Consolidated balance sheets of the Parent Guarantor and its
Subsidiaries as of the end of such quarter and Consolidated statements of
income and a Consolidated statement of cash flows of the Parent Guarantor
and its Subsidiaries for the period commencing at the end of the
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previous fiscal quarter and ending with the end of such fiscal quarter and
Consolidated statements of income and a Consolidated statement of cash
flows of the Parent Guarantor and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the
preceding Fiscal Year, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by the Chief Financial
Officer (or person performing similar functions) of the Parent Guarantor
as having been prepared in accordance with GAAP, together with (i) a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that the Parent Guarantor has taken
and proposes to take with respect thereto and (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by the
Parent Guarantor in determining compliance with the covenants contained in
Section 5.04, provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Parent Guarantor shall also
provide, if necessary for the determination of compliance with Section
5.04, a statement of reconciliation conforming such financial statements
to GAAP.
(d) Borrowing Base Certificate. As soon as available and in any
event within 10 days after the end of each month, a Borrowing Base
Certificate, as at the end of the previous month, certified by the Chief
Financial Officer (or person performing similar functions) of the Parent
Guarantor.
(e) Annual Budgets. As soon as available and in any event no later
than 30 days after the end of each Fiscal Year, forecasts prepared by
management of the Parent Guarantor, in form satisfactory to the
Administrative Agent, of balance sheets, income statements and cash flow
statements on a monthly basis for the then current Fiscal Year and on an
annual basis for each Fiscal Year thereafter until the Termination Date.
(f) Material Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and proceedings
before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, affecting any Loan Party
or any of its Subsidiaries of the type described in Section 4.01(f), and
promptly after the occurrence thereof, notice of any adverse change in the
status or the financial effect on any Loan Party or any of its
Subsidiaries of the Disclosed Litigation from that described on Schedule
4.01(f) hereto.
(g) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
that any Loan Party or any of its Subsidiaries sends to its stockholders,
and copies of all regular, periodic and special reports, and all
registration statements, that any Loan Party or any of its Subsidiaries
files with the Securities and Exchange Commission or any governmental
authority that may be substituted therefor, or with any national
securities exchange.
(h) Real Property. As soon as available and in any event within 30
days after the end of each Fiscal Year, a report supplementing Schedules
4.01(p) and 4.01(q) hereto, including an identification of all owned and
leased real property disposed of by any Loan Party or any of its
Subsidiaries during such Fiscal Year, a list and description (including
the street address, county or other relevant jurisdiction, state, record
owner, book value thereof and, in the case of leases of property, lessor,
lessee, expiration date and annual rental cost thereof) of all Real
Property acquired or leased during such Fiscal Year and a description of
such other changes in the information included in such Schedules as may be
necessary for such Schedules to be accurate and complete.
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(i) Environmental Conditions. Promptly after the assertion or
occurrence of any Environmental Action against any Loan Party or any of
its Subsidiaries or of any noncompliance in any material respect by any
Loan Party or any of its Subsidiaries with any Environmental Law or
Environmental Permit, provide the Administrative Agent with notice
thereof.
(j) Other Information. Promptly, such other information respecting
the business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
the Administrative Agent, or any Lender Party through the Administrative
Agent, may from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Parent Guarantor will:
(a) Parent Guarantor Financial Covenants.
(i) Maximum Total Leverage Ratio: Maintain at all times a
Leverage Ratio of not more than 60%.
(ii) Minimum Tangible Net Worth: Maintain at all times an
excess of Consolidated total tangible assets over Consolidated total
liabilities, in each case, of the Parent Guarantor and its
Subsidiaries of not less than the sum of $250,000,000 plus an amount
equal to 75% of the proceeds of all issuances or sales of Equity
Interests of the Parent Guarantor or any of its Subsidiaries
consummated following the Closing Date.
(iii) Minimum Interest Coverage Ratio: Maintain at the end of
each fiscal quarter of the Parent Guarantor an Interest Coverage
Ratio of not less than 2.0:1.0.
(iv) Minimum Fixed Charge Coverage Ratio. Maintain at the end
of each fiscal quarter of the Parent Guarantor a Fixed Charge
Coverage Ratio of not less than 1.75:1.00.
(b) Borrowing Base Financial Covenants.
(i) Maximum Facility Exposure to Borrowing Base Asset Value:
Not permit at any time the Facility Exposure at such time to exceed
the Loan Value at such time.
(ii) Minimum Implied Debt Service Coverage Ratio: Maintain at
the end of each fiscal quarter of the Parent Guarantor an Implied
Debt Service Coverage Ratio of not less than 1.5:1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any
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Loan Party shall fail to make any other payment under any Loan Document,
in each case under this clause (ii) within three Business Days after the
same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers or the officers of its general partner or managing member, as
applicable) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in ▇▇▇▇▇▇▇ ▇.▇▇, ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇),
(▇), (▇) or (r), 5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 15 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by the Administrative Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in
respect of any Debt of such Loan Party or such Subsidiary (as the case may
be) that is outstanding in a principal amount (or, in the case of any
Hedge Agreement, an Agreement Value) of at least $10,000,000 either
individually or in the aggregate (such Debt, whether the obligation of one
or more of the Loan Parties or their respective Subsidiaries, and whether
the subject of one or more separate debt instruments or agreements,
exclusive of Debt outstanding hereunder is referred to herein as "MATERIAL
DEBT") but excluding Debt outstanding hereunder), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise); or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Material Debt, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Material Debt or otherwise to cause, or to permit the holders thereof to
cause, such Material Debt to mature; or any such Material Debt shall be
declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease
such Material Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Loan Party or any of its Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period
of 30 days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property) shall occur; or any Loan
Party or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
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(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $10,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could have a Material Adverse
Effect, and there shall be any period of 10 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be valid
and binding on or enforceable against any Loan Party party to it, or any
such Loan Party shall so state in writing; or
(j) any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in the Collateral purported
to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) exceeds $10,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $10,000,000 or requires
payments exceeding $2,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $2,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Lender pursuant to Section 2.03(c)) and of each Issuing Bank to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the Notes, all interest
thereon
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and all other amounts payable under this Agreement and the other Loan Documents
to be forthwith due and payable, whereupon the Notes, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower, (B) by notice to each party required under the terms of
any agreement in support of which a Letter of Credit is issued, request that all
Obligations under such agreement be declared to be due and payable and (C) by
notice to each Issuing Bank, direct such Issuing Bank to deliver a Default
Termination Notice to the beneficiary of each Letter of Credit issued by it, and
each Issuing Bank shall deliver such Default Termination Notices; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under any Bankruptcy Law, (y) the Commitments of
each Lender Party and the obligation of each Lender Party to make Advances
(other than Letter of Credit Advances by an Issuing Bank or a Lender pursuant to
Section 2.03(c)) and of each Issuing Bank to issue Letters of Credit shall
automatically be terminated and (z) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding. If
at any time the Administrative Agent or the Issuing Bank determines that any
funds held in the L/C Cash Collateral Account are subject to any right or claim
of any Person other than the Administrative Agent and the Lender Parties with
respect to the Obligations of the Loan Parties under the Loan Documents, or that
the total amount of such funds is less than the aggregate Available Amount of
all Letters of Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent, as the case may be, determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Cash Collateral Account, such funds shall be applied
to reimburse the relevant Issuing Bank or Lenders, as applicable, to the extent
permitted by applicable law.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a required
prepayment or by acceleration, demand or otherwise, of all Obligations of the
Borrower and each other Loan Party now or hereafter existing under or in respect
of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "GUARANTEED
OBLIGATIONS"), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by the Administrative Agent
or any other Secured Party in enforcing any rights under this Agreement or any
other Loan Document. Without limiting the generality of the foregoing, each
Guarantor's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party to any Secured
Party under or in respect of the Loan Documents but for the fact that they are
64
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
(b) Each Guarantor, the Administrative Agent and each other Lender
Party and, by its acceptance of the benefits of this Guaranty, each other
Secured Party, hereby confirms that it is the intention of all such Persons that
this Guaranty and the Obligations of each Guarantor hereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
foreign, federal or state law to the extent applicable to this Guaranty and the
Obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Guarantors, the Administrative Agent, the other Lenders Parties and, by
their acceptance of the benefits of this Guaranty, the other Secured Parties
hereby irrevocably agree that the Obligations of each Guarantor under this
Guaranty at any time shall be limited to the maximum amount as will result in
the Obligations of such Guarantor under this Guaranty not constituting a
fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees
that in the event any payment shall be required to be made to any Secured Party
under this Guaranty or any other guaranty, such Guarantor will contribute, to
the maximum extent permitted by law, such amounts to each other Guarantor and
each other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the other Loan Documents, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Administrative Agent or any other Secured Party with
respect thereto. The Obligations of each Guarantor under or in respect of this
Guaranty are independent of the Guaranteed Obligations or any other Obligations
of any other Loan Party under or in respect of this Agreement or the other the
Loan Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit
to the Borrower, any other Loan Party or any of their Subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of, or consent
to departure from, any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any
65
of the Guaranteed Obligations or any other Obligations of any Loan Party
under the Loan Documents or any other assets of any Loan Party or any of
its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of the Administrative Agent or any other Secured
Party to disclose to any Loan Party any information relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party now or hereafter known to
the Administrative Agent or such other Secured Party (each Guarantor
waiving any duty on the part of the Administrative Agent and each other
Secured Party to disclose such information);
(g) the failure of any other Person to execute or deliver this
Agreement, any other Loan Document, any Guaranty Supplement (as
hereinafter defined) or any other guaranty or agreement or the release or
reduction of liability of any Guarantor or other guarantor or surety with
respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Administrative Agent or any other Secured Party that
might otherwise constitute a defense available to, or a discharge of, any
Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any other Secured Party protect, secure, perfect or
insure any Lien or any property subject thereto or exhaust any right or take any
action against any Loan Party or any other Person or any collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by the Administrative Agent or any other Secured Party that in any
manner impairs, reduces, releases or otherwise adversely affects the
subrogation, reimbursement, exoneration, contribution or indemnification rights
of such Guarantor or other rights of such Guarantor to proceed against any of
the other Loan Parties, any other guarantor or any other Person or any
collateral and (ii) any defense based on any right of set-off or counterclaim
against or in respect of the Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Administrative Agent may,
without notice to or demand upon such Guarantor and without affecting the
liability of such Guarantor under this Guaranty, foreclose under any mortgage by
nonjudicial sale, and each Guarantor hereby waives any defense to the recovery
by the Administrative Agent and the other Secured Parties against such Guarantor
66
of any deficiency after such nonjudicial sale and any defense or benefits that
may be afforded by Sections 580a and 580d of the California Code of Civil
Procedure or any statute or law in any other jurisdiction having similar effect.
Each Guarantor irrevocably waives any right (including without limitation any
such right arising under California Civil Code Section 2815) to revoke this
Guaranty as to future transactions giving rise to any Guaranteed Obligations.
(e) Each Guarantor hereby unconditionally and irrevocably waives any
duty on the part of the Administrative Agent or any other Secured Party to
disclose to such Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of the Borrower, any other Loan Party or any of their Subsidiaries now
or hereafter known by the Administrative Agent or such other Secured Party.
(f) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by
this Agreement and the other Loan Documents and that the waivers set forth in
Section 7.02 and this Section 7.03 are knowingly made in contemplation of such
benefits.
SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under or in respect of this Guaranty, this
Agreement or any other Loan Document, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification and
any right to participate in any claim or remedy of any Secured Party against the
Borrower, any other Loan Party or any other insider guarantor or any collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Borrower, any other Loan Party or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall have been paid in full in cash, all Letters of Credit shall
have expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to any Guarantor in violation of the
immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the latest date of
expiration or termination of all Letters of Credit, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith
be paid or delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents. If (i) any Guarantor shall make payment to any Secured Party of all
or any part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, (iii) the Termination Date shall have occurred and (iv)
all Letters of Credit shall have expired or been terminated, the Administrative
Agent and the other Secured Parties will, at such Guarantor's request and
expense, execute and deliver to such Guarantor appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment made by such Guarantor pursuant to this
Guaranty.
SECTION 7.05. Guaranty Supplements. Upon the execution and delivery
by any Person of a Guaranty Supplement, (i) such Person shall be referred to as
an "ADDITIONAL GUARANTOR" and shall become and be a Guarantor hereunder, and
each reference in this Agreement to a "Guarantor" or a "Loan Party" shall also
mean and be a reference to such Additional Guarantor, and each reference in any
other
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Loan Document to a "Guarantor" shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to "this Agreement", "this
Guaranty", "hereunder", "hereof" or words of like import referring to this
Agreement and this Guaranty, and each reference in any other Loan Document to
the "Loan Agreement", "Guaranty", "thereunder", "thereof" or words of like
import referring to this Agreement and this Guaranty, shall mean and be a
reference to this Agreement and this Guaranty as supplemented by such Guaranty
Supplement.
SECTION 7.06. Indemnification by Guarantors. (a) Without limitation
on any other Obligations of any Guarantor or remedies of the Administrative
Agent or the Secured Parties under this Agreement, this Guaranty or the other
Loan Documents, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless the Administrative Agent, each
Secured Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "INDEMNIFIED PARTY") from
and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party in connection with or as a result of any failure of any
Guaranteed Obligations to be the legal, valid and binding obligations of any
Loan Party enforceable against such Loan Party in accordance with their terms.
(b) Each Guarantor hereby also agrees that none of the Indemnified
Parties shall have any liability (whether direct or indirect, in contract, tort
or otherwise) to any of the Guarantors or any of their respective Affiliates or
any of their respective officers, directors, employees, agents and advisors, and
each Guarantor hereby agrees not to assert any claim against any Indemnified
Party on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Facilities, the
actual or proposed use of the proceeds of the Advances or the Letters of Credit,
the Loan Documents or any of the transactions contemplated by the Loan
Documents.
SECTION 7.07. Subordination. (a) Each Guarantor hereby subordinates
any and all debts, liabilities and other Obligations owed to such Guarantor by
each other Loan Party (the "SUBORDINATED OBLIGATIONS") to the Guaranteed
Obligations to the extent and in the manner hereinafter set forth in this
Section 7.07.
(b) Prohibited Payments, Etc. Except during the continuance of a
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), each Guarantor may receive
regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), however, unless the
Administrative Agent otherwise agrees, no Guarantor shall demand, accept or take
any action to collect any payment on account of the Subordinated Obligations.
(c) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees that
the Secured Parties shall be entitled to receive payment in full in cash of all
Guaranteed Obligations (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding ("POST PETITION INTEREST"))
before such Guarantor receives payment of any Subordinated Obligations.
(d) Turn-Over. After the occurrence and during the continuance of
any Default (including the commencement and continuation of any proceeding under
any Bankruptcy Law relating to any other Loan Party), each Guarantor shall, if
the Administrative Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Secured Parties and
deliver such payments to the Administrative Agent on account of the Guaranteed
Obligations (including
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all Post Petition Interest), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any manner the
liability of such Guarantor under the other provisions of this Guaranty.
(e) Administrative Agent Authorization. After the occurrence and
during the continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to any other
Loan Party), the Administrative Agent is authorized and empowered (but without
any obligation to so do), in its discretion, (i) in the name of each Guarantor,
to collect and enforce, and to submit claims in respect of, Subordinated
Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post Petition Interest), and (ii) to require
each Guarantor (A) to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on such obligations
to the Administrative Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
SECTION 7.08. Continuing Guaranty. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until the latest of (i)
the payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (ii) the Termination Date and (iii) the latest date
of expiration or termination of all Letters of Credit, (b) be binding upon the
Guarantors, their successors and assigns and (c) inure to the benefit of and be
enforceable by the Administrative Agent and the other Secured Parties and their
successors, transferees and assigns.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender and as an Issuing Bank (if applicable) and on behalf of
itself and its Affiliates as potential Hedge Banks) hereby appoints and
authorizes each Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), no Agent shall be required to exercise
any discretion or take any action, but shall 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 Required Lenders, and such instructions
shall be binding upon all Lender Parties and all holders of Notes; provided,
however, that no Agent shall be required to take any action that exposes such
Agent to personal liability or that is contrary to this Agreement or applicable
law. Each Agent agrees to give to each Lender Party prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.
Notwithstanding anything to the contrary in any Loan Document, no Person
identified as a syndication agent, documentation agent, senior manager, lead
arranger or book running manager, in such Person's capacity as such, shall have
any obligations or duties to any Loan Party, the Administrative Agent or any
other Secured Party under any of such Loan Documents.
SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Agent: (a) in the
case of the Administrative Agent, may treat the payee of any Note as the holder
thereof until the Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, or, in the case of any other
Agent, such Agent has received notice from the Administrative Agent that it has
received and accepted such Assignment and Acceptance, in each case as provided
in Section 9.07; (b) may consult with legal counsel
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(including counsel for 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
Party and shall not be responsible to any Lender Party for any statements,
warranties or representations (whether written or oral) made in or in connection
with the Loan Documents; (d) shall not have any duty to ascertain or to inquire
as to the performance, observance or satisfaction of any of the terms, covenants
or conditions of any Loan Document on the part of any Loan Party or the
existence at any time of any Default under the Loan Documents or to inspect the
property (including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. CNAI and Affiliates. With respect to its Commitments,
the Advances made by it and the Notes issued to it, CNAI shall have the same
rights and powers under the Loan Documents as any other Lender Party and may
exercise the same as though it were not the Administrative Agent or the
Collateral Agent; and the term "Lender Party" or "Lender Parties" shall, unless
otherwise expressly indicated, include CNAI in its individual capacity. CNAI and
its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any Subsidiary of any Loan Party
and any Person that may do business with or own securities of any Loan Party or
any such Subsidiary, all as if CNAI were not the Administrative Agent or the
Collateral Agent and without any duty to account therefor to the Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 8.05. Indemnification by Lender Parties. (a) Each Lender
Party severally agrees to indemnify each Agent (to the extent not promptly
reimbursed by the Borrower) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against such Agent in any way relating to or arising out of the Loan
Documents or any action taken or omitted by such Agent under the Loan Documents
(collectively, the "INDEMNIFIED COSTS"); provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from any Agent's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse each Agent
promptly upon demand for its ratable share of any costs and expenses (including,
without limitation, fees and expenses of counsel) payable by the Borrower under
Section 9.04, to the extent that such Agent is not promptly reimbursed for such
costs and expenses by the Borrower. In the case of any investigation, litigation
or proceeding giving rise to any Indemnified Costs, this Section 8.05 applies
whether any such investigation, litigation or proceeding is brought by any
Lender Party or any other Person.
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(b) Each Lender Party severally agrees to indemnify each Issuing
Bank (to the extent not promptly reimbursed by the Borrower) from and against
such Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against such Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by such Issuing Bank under the Loan Documents; provided, however, that no Lender
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Issuing Bank's gross negligence or willful misconduct as
found in a final, non-appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Lender Party agrees to reimburse such
Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 9.04, to the extent that such Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 8.05, the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to their respective Revolving Credit Commitments at such time. The
failure of any Lender Party to reimburse any Agent or any Issuing Bank, as the
case may be, promptly upon demand for its ratable share of any amount required
to be paid by the Lender Parties to such Agent or such Issuing Bank, as the case
may be, as provided herein shall not relieve any other Lender Party of its
obligation hereunder to reimburse such Agent or such Issuing Bank, as the case
may be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent or
such Issuing Bank, as the case may be, for such other Lender Party's ratable
share of such amount. Without prejudice to the survival of any other agreement
of any Lender Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 8.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign at any time by
giving written notice thereof to the Lender Parties and the Borrower and may be
removed at any time with or without cause by the Required Lenders; provided,
however, that any removal of the Administrative Agent will not be effective
until it has been replaced as Collateral Agent and released from all obligations
in respect thereof. Anything herein to the contrary notwithstanding, the
Administrative Agent shall resign if at any time the Administrative Agent is not
a Lender having a Revolving Credit Commitment equal to the lesser of $10,000,000
or the Revolving Credit Commitment of the next highest Lender (or such ratably
lesser amount if the Revolving Credit Commitments have been reduced in
accordance with this Agreement). Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent, which
appointment shall, provided that no Default has occurred and is continuing, be
subject to the consent of the Borrower, such consent not to be unreasonably
withheld or delayed. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $250,000,000, which appointment
shall, provided that no Default has occurred and is continuing, be subject to
the consent of the Borrower, such consent not to be unreasonably withheld or
delayed. Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent, and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to
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and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under the Loan Documents. If within 45 days after written
notice is given of the retiring Agent's resignation or removal under this
Section 8.06 no successor Agent shall have been appointed and shall have
accepted such appointment, then on such 45th day (i) the retiring Agent's
resignation or removal shall become effective, (ii) the retiring Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Agent under the Loan Documents until such time, if any, as the Required
Lenders appoint a successor Agent as provided above. After any retiring Agent's
resignation or removal hereunder as an Agent shall have become effective, the
provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Lenders (other than
any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section 3.01
or, in the case of the Initial Extension of Credit, Section 3.02, (ii) change
the number of Lenders or the percentage of (x) the Commitments, (y) the
aggregate unpaid principal amount of the Advances or (z) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall be required
for the Lenders or any of them to take any action hereunder, (iii) release the
Borrower with respect to the Obligations or reduce or limit the obligations of
any Guarantor under Article VII or release such Guarantor or otherwise limit
such Guarantor's liability with respect to the Guaranteed Obligations, (iv)
release any individual Eligible Real Estate Asset or all or substantially all of
the Collateral, in each case in any transaction or series of related
transactions, or permit the creation, incurrence, assumption or existence of any
Lien on any individual Eligible Real Estate Asset or all or substantially all of
the Collateral, in each case in any transaction or series of related
transactions, to secure any Obligations other than Obligations owing to the
Secured Parties under the Loan Documents, (v) amend this Section 9.01, (vi)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (vii) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, (vii) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder or amend Section 2.06, or (ix) limit the liability of any Loan
Party under any of the Loan Documents; provided further that no amendment,
waiver or consent shall, unless in writing and signed by each Issuing Bank, as
the case may be, in addition to the Lenders required above to take such action,
affect the rights or obligations of the Issuing Banks, as the case may be, under
this Agreement; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or the other Loan Documents.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 9.02(b) and in the proviso to this
Section 9.02(a), in an electronic medium and delivered as set forth in Section
9.02(b), if to the Borrower, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Chief Financial
Officer; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender Party, at its
Domestic Lending Office
72
specified in the Assignment and Acceptance pursuant to which it became a Lender
Party; if to the Initial Issuing Bank, at its address at One Wachovia Center,
6th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: [______________]; and if to the Administrative Agent or the
Collateral Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Bank Loan Syndications Department; or, as to the Borrower or any
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or e-mailed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by e-mail,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VIII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof. The Collateral Agent shall
notify each of the Ground Lessors (as defined in the Mortgages) of the
occurrence of any Event of Default hereunder of which the Collateral Agent has
actual knowledge by registered or certified mail to such Ground Lessor's address
set forth in the Participation Agreement or Subject Lease to which it is a
party; on the Closing Date the addresses of such Ground Lessors are: The
Pasadena Community Development Commission, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇. ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and The Cerritos Redevelopment Agency, Civic Center,
Bloomfield Avenue at 183rd Street, Cerritos, California 90703, Attention:
Executive Director. Notwithstanding anything herein to the contrary, the failure
of the Collateral Agent to provide such notice to such Ground Lessors shall not
impair or otherwise affect any of the rights and remedies of the Secured Parties
under the Loan Documents or applicable law.
(b) So long as CNAI is the Administrative Agent, materials required
to be delivered pursuant to Section 5.03(a), (b), (c) and (f) shall be delivered
to the Administrative Agent in an electronic medium in a format acceptable to
the Administrative Agent and the Lender Parties by e-mail at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. The Borrower agrees that the Administrative Agent
may make such materials, as well as any other written information, documents,
instruments and other material relating to the Borrower, any Loan Party, any of
their Subsidiaries or any other materials or matters relating to this Agreement,
the Notes or any of the transactions contemplated hereby (collectively, the
"COMMUNICATIONS") available to the Lender Parties by posting such notices on
"e-Disclosure" (the "PLATFORM"), the Administrative Agent's internet delivery
system that is part of Fixed Income Direct, Global Fixed Income's primary web
portal. Although the primary web portal is secured with a dual firewall and a
User ID/Password Authorization System and the Platform is secured through a
single user per deal authorization method whereby each user may access the
Platform only on a deal-by-deal basis, the Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Administrative Agent nor any of its Affiliates warrants the
accuracy, adequacy or completeness of the Communications or the Platform and
each expressly disclaims liability for errors or omissions in the Communications
or the Platform. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by the Administrative Agent or any of its
Affiliates in connection with the Platform.
(c) Each Lender Party agrees that notice to it (as provided in the
next sentence) (a "NOTICE") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender Party for purposes of this
Agreement, provided that, if requested by any Lender Party, the Administrative
Agent shall deliver a copy
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of the Communications to such Lender Party by e-mail or telecopier. Each Lender
Party agrees (i) to notify the Administrative Agent in writing of such Lender
Party's e-mail address to which a Notice may be sent by electronic transmission
(including by electronic communication) on or before the date such Lender Party
becomes a party to this Agreement (and from time to time thereafter to ensure
that the Administrative Agent has on record an effective e-mail address for such
Lender Party) and (ii) that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (a) Each Loan Party agrees jointly
and severally to pay on demand (i) all reasonable out-of-pocket costs and
expenses of each Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents (including,
without limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for such Agent with respect thereto, with respect to
advising such Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all reasonable out-of-pocket costs and
expenses of each Agent and each Lender Party in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of the Loan
Documents, whether in any action, suit or litigation, or any bankruptcy,
insolvency or other similar proceeding affecting creditors' rights generally
(including, without limitation, the reasonable fees and expenses of counsel for
such Agent and each Lender Party with respect thereto).
(b) Each Loan Party agrees to indemnify, defend and save and hold
harmless each Indemnified Party from and against, and shall pay on demand, any
and all claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Facilities, the actual or proposed use
of the proceeds of the Advances or the Letters of Credit, the Loan Documents or
any of the transactions contemplated thereby or (ii) the actual or alleged
presence of Hazardous Materials on any property of any Loan Party or any of its
Subsidiaries or any Environmental Action relating in any way to any Loan Party
or any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party, whether or not any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated by
the Loan Documents are consummated. Each Loan Party also agrees not to assert
any claim against any Agent, any Lender Party or any of their Affiliates, or any
of their respective officers, directors, employees, agents and advisors, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise
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relating to the Facilities, the actual or proposed use of the proceeds of the
Advances or the Letters of Credit, the Loan Documents or any of the transactions
contemplated by the Loan Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or if the Borrower fails to make any payment or prepayment of an
Advance for which a notice of prepayment has been given or that is otherwise
required to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion or such failure to pay or prepay, as
the case may be, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by any Agent or any Lender Party, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower and the other Loan Parties contained in Sections
2.10 and 2.12, Section 7.06 and this Section 9.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower or any
other Loan Party against any and all of the Obligations of the Borrower or such
Loan Party now or hereafter existing under the Loan Documents, irrespective of
whether such Agent or such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such obligations may be unmatured.
Each Agent and each Lender Party agrees promptly to notify the Borrower or such
Loan Party after any such set-off and application; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Agent and each Lender Party and their respective
Affiliates under this Section 9.05 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Agent, such
Lender Party and their respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, each Guarantor named on the
signature pages hereto and each Agent and the Administrative Agent shall have
been notified by each Initial Lender, each Initial Issuing Bank and each
Arranger that such Initial Lender, such Initial Issuing Bank or such Arranger,
as the case may be, has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Guarantors named on the signature
pages hereto and each Agent and each Lender Party and their respective
successors and assigns, except that neither the Borrower nor any other Loan
Party shall have
75
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of one or more of the Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or a Fund Affiliate of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 under each
Facility or an integral multiple of $1,000,000 in excess thereof (or such lesser
amount as shall be approved by the Administrative Agent and, so long as no
Default shall have occurred and be continuing at the time of effectiveness of
such assignment, the Borrower), (iii) each such assignment shall be to an
Eligible Assignee, (iv) no such assignments shall be permitted without the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) until the Administrative Agent shall have notified the
Lender Parties that syndication of the Commitments hereunder has been completed
and (v) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and, except if such assignment is being made by a Lender to an
Affiliate or Fund Affiliate of such Lender, a processing and recordation fee of
$3,500.
(b) Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (i)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as
the case may be, hereunder and (ii) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.10, 2.12, 7.06, 8.05 and 9.04 to the
extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent,
76
such assigning Lender Party or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or the
Administrative Agent or any Lender Party at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit D
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall, if requested by the applicable Lender, execute and deliver to
the Administrative Agent in exchange for the surrendered Note or Notes a new
Note to the order of such Eligible Assignee in an amount equal to the Commitment
assumed by it under each Facility pursuant to such Assignment and Acceptance
and, if any assigning Lender has retained a Commitment hereunder under such
Facility, a new Note to the order of such assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes, if any, shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto.
(f) Each Issuing Bank may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under the undrawn portion of its
Letter of Credit Commitment at any time; provided, however, that (i) except in
the case of an assignment to a Person that immediately prior to such assignment
was an Issuing Bank or an assignment of all of an Issuing Bank's rights and
obligations under this Agreement, the amount of the Letter of Credit Commitment
of the assigning Issuing Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 and shall be in an
integral multiple of $1,000,000 in excess thereof, (ii) each such assignment
shall be to an Eligible Assignee and (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, provided, that such fee shall not be
payable if the assigning Issuing Bank is making such assignment simultaneously
with the assignment in its capacity as a Lender of all or a portion of its
Revolving Credit Commitment to the same Eligible Assignee.
77
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the
other Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement, (v) no participant under any such participation shall have any right
to approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral and (vi) if, at the time of such
sale, such Lender Party was entitled to payments under Section 2.12(a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to such participant on such date, provided, that such participant
complies with the requirements of Section 2.12(e).
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 9.09. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a
78
claim against such Issuing Bank, and such Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) such Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful payment under
a Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
SECTION 9.10. Confidentiality. Neither the Administrative Agent nor
any Lender Party shall disclose any Confidential Information to any Person
without the consent of the Borrower, other than (a) to such Administrative
Agent's or such Lender Party's Affiliates and their officers, directors,
employees, agents and advisors and to actual or prospective Eligible Assignees
and participants, and then only on a confidential basis, (b) as required by any
law, rule or regulation or judicial process, (c) as requested or required by any
state, Federal or foreign authority or examiner regulating such Lender Party and
(d) to any rating agency when required by it, provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it from
such Lender Party. Notwithstanding anything herein or in any other written or
oral understanding or agreement to which the Loan Parties, the Administrative
Agent and the Lender Parties are parties or by which they are bound, the Loan
Parties, the Administrative Agent and the Lender Parties acknowledge and agree
that (i) any obligations of confidentiality contained herein and therein do not
apply and have not applied from the commencement of discussions between the
parties to the tax treatment and tax structure of the transactions contemplated
by this Agreement (and any related transactions or arrangements), and (ii) the
Loan Parties, the Administrative Agent and the Lender Parties may disclose to
any and all Persons, without limitation of any kind, the U.S. tax treatment of
and tax structure of the transactions contemplated hereby and all materials of
any kind (including opinions or other tax analyses) that are provided to the
Loan Parties, the Administrative Agent or the Lender Parties, as the case may
be, relating to such U.S. tax treatment and tax structure, all within the
meaning of Treasury regulations Section 1.6011-4; provided, however, that each
of the Loan Parties, the Administrative Agent and the Lender Parties recognizes
that the privilege each has to maintain, in its sole discretion, the
confidentiality of a communication relating to the transactions contemplated by
this Agreement, including a confidential communication with its attorney or a
confidential communication with a federally authorized tax practitioner under
Section 7525 of the Internal Revenue Code, is not intended to be affected by the
foregoing.
SECTION 9.11. Release of Collateral. Upon the sale, lease, transfer
or other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Document
in accordance with the terms of the Loan Documents.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
79
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 9.13. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
[Balance of page intentionally left blank]
80
SECTION 9.14. Waiver of Jury Trial. Each of the Borrower, each other
Loan Party, the Administrative Agent and the Lender Parties irrevocably waives
all right to trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating to any of the
Loan Documents, the Advances or the actions of the Administrative Agent or any
Lender Party in the negotiation, administration, performance or enforcement
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWER:
▇▇▇▇▇▇▇ PROPERTIES, L.P.
BY ▇▇▇▇▇▇▇ PROPERTIES, INC., ITS GENERAL
PARTNER
By
---------------------------------
Name:
Title:
GUARANTOR(S): [PLEASE CONFIRM SIGNATURE BLOCKS
ARE CORRECT.]
▇▇▇▇▇▇▇ PROPERTIES, INC.
By
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇/CERRITOS I, LLC
BY [________________], ITS [MANAGING
MEMBER]
By
--------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ PARTNERS - PLAZA LAS ▇▇▇▇▇▇▇, LLC
BY [________________], ITS [MANAGING
MEMBER]
By
--------------------------------------
Name:
Title:
S-1
[-----------------------------------]
By
--------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT, COLLATERAL AGENT AND
INITIAL LENDER:
CITICORP NORTH AMERICA, INC.
By
--------------------------------------
Name:
Title:
INITIAL ISSUING BANK AND INITIAL LENDER:
WACHOVIA BANK, N.A.
By
---------------------------------------
Name:
Title:
INITIAL LENDERS:
FLEET NATIONAL BANK
By
---------------------------------------
Name:
Title:
BANK ONE NA
By
---------------------------------------
Name:
Title:
S-2
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
By
--------------------------------------
Name:
Title:
COMMERZBANK, AG, NEW YORK BRANCH
By
--------------------------------------
Name:
Title:
BANK OF AMERICA
By
--------------------------------------
Name:
Title:
UBS, AG, CAYMAN ISLANDS BRANCH
By
--------------------------------------
Name:
Title:
BANK OF THE WEST
By
--------------------------------------
Name:
Title:
S-3
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER/ REVOLVING CREDIT LETTER OF CREDIT DOMESTIC EURODOLLAR
INITIAL ISSUING BANK COMMITMENT COMMITMENT LENDING OFFICE LENDING OFFICE
------------------------------------------------------------------------------------------------------------------
Citicorp North America, Inc.
Wachovia Bank, N.A.
Fleet National Bank
Bank One NA
Credit Suisse First Boston,
acting through its Cayman Island
Branch
Bank of America
UBS, AG, Cayman Islands Branch
Bank of the West
TOTAL $100,000,000 $25,000,000
Sch.I
Sch. II
SCHEDULE II
ELIGIBLE REAL ESTATE ASSETS
(a) AT&T Wireless Western Regional Headquarters, located at
[______________], Cerritos, California;
(b) Plaza Las ▇▇▇▇▇▇▇ Office located at [______________], Pasadena,
California; and
(c) Plaza Las ▇▇▇▇▇▇▇ Westin Hotel, located at [______________],
Pasadena, California.
Sch.II