Exhibit 10.1
================================================================================
CREDIT AGREEMENT
Dated as of May 24, 1999
among
METROPOLITAN OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS,
WARBURG DILLON READ,
AS ARRANGER AND BOOK MANAGER,
and
UBS AG, STAMFORD BRANCH,
AS ADMINISTRATIVE AGENT,
================================================================================
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of May 24, 1999 (as amended,
supplemented or modified from time to time, the "Agreement") is entered into
among METROPOLITAN OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("Borrower"), the institutions from time to time a party hereto as Lenders,
whether by execution of this Agreement or an Assignment and Acceptance, WARBURG
DILLON READ, as Arranger and Book Manager, UBS AG, STAMFORD BRANCH, as
Administrative Agent, and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.P., a New York limited
partnership ("Mortgagor").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this Agreement
---------------------
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"Administrative Agent" means UBS.
--------------------
"Affiliate", as applied to any Person, means any other Person that
---------
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to vote ten percent (10.0%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"Agents" means, collectively, UBS in its capacity as Administrative
------
Agent, the Arranger, and each successor agent appointed pursuant to the terms
of Article XII of this Agreement.
"Agreement" has the meaning set forth in the preamble hereto.
---------
"Applicable Lending Office" means, with respect to a particular
-------------------------
Lender, (i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, with respect to the Eurodollar Loans
-----------------
secured by the Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan, 2.00%, with respect to each
other Eurodollar Loan, 2.25%, and with respect to each Base Rate Loan, 1%.
"Arranger" means WDR, appointed pursuant to the terms of Article XII
--------
of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance in
-------------------------
substantially the form of EXHIBIT A attached hereto and made a part hereof
(with blanks appropriately completed) delivered to the Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"Authorized Financial Officer" means a chief executive officer,
----------------------------
president, chief financial officer, treasurer or other qualified senior officer
acceptable to the Administrative Agent.
"Base Eurodollar Rate" means, with respect to any Eurodollar Interest
--------------------
Period applicable to a Borrowing of Eurodollar Rate Loans, an interest rate per
annum determined by the Administrative Agent to be the rate per annum at which
deposits in Dollars are offered by the principal office of the Reference Bank in
London, England to major banks in the London interbank market at approximately
11:00 a.m. (London time) on the Eurodollar Interest Rate Determination Date for
such Eurodollar Interest Period for a period equal to such Eurodollar Interest
Period and in an amount substantially equal to the amount of the Eurodollar Rate
Loan.
"Base Rate" means, for any period, a fluctuating interest rate per
---------
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by UBS in New York, New
York from time to time, as UBS's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum plus (B)
the Federal Funds Rate in effect from time to time during such period.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
--------------
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a) or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"Benefit Plan" means any Plan that is subject to Title IV of ERISA.
------------
"Book Manager" means WDR, appointed pursuant to the terms of Article
------------
XII of this Agreement.
"Borrower" has the meaning set forth in the introductory paragraph
--------
hereof.
"Borrower Partnership Agreement" means the Agreement of Limited
------------------------------
Partnership of the Borrower dated July 2, 1998, as amended by the First
Amendment dated December 8, 1998, as such agreement may be further amended,
restated, modified or supplemented from time to time with the consent of the
Agents or as permitted under Section 10.9.
"Borrowing" means a borrowing consisting of Loans of the same type
---------
made, continued or converted on the same day.
"Business Day" means a day, in the applicable local time, which is not
------------
a Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England.
"Capital Expenditures" means, for any period, the aggregate of all
--------------------
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity
with GAAP, are required to be included in or reflected by the Company's, the
Borrower's or any of its Subsidiaries' fixed asset accounts as reflected in any
of their respective balance sheets; provided, however, Capital Expenditures
shall include the sum of all expenditures by the Consolidated Businesses
allocable to the Consolidated Businesses for tenant improvements, leasing
commissions, property level capital expenditures (e.g., roof replacement,
parking lot repairs, etc., but not capital expenditures in connection with
expansions).
"Capital Lease" means any lease of any property (whether real,
-------------
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" means, with respect to any Person, any capital stock
-------------
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Capitalization Rate" means, with respect to each Project, the
-------------------
capitalization rate for such Project as set forth on SCHEDULE A hereto.
"Capitalization Value" means the sum of (i) the quotient of (x) NOI
--------------------
from each Project multiplied by four (4), and (y) the applicable Capitalization
Rate; (ii) unrestricted Cash and Cash Equivalents; (iii) land and Projects under
development (at book value), which credit will be limited to ten percent (10%)
of Capitalization Value;
"Cash and Cash Equivalents" means unrestricted (i) cash, (ii)
-------------------------
marketable direct obligations issued or unconditionally guaranteed by the United
States government and backed by the full faith and credit of the United States
government; and (iii) domestic and Eurodollar certificates of deposit and time
deposits, bankers' acceptances and floating rate certificates of deposit issued
by any commercial bank organized under the laws of the United States, any state
thereof, the District of Columbia, any foreign bank, or its branches or agencies
(fully protected against currency fluctuations), which, at the time of
acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by ▇▇▇▇▇'▇
provided that the maturities of such Cash and Cash Equivalents shall not
exceed one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation
------
and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidance promulgated
thereunder.
"Claim" means any claim or demand, by any Person, of whatsoever kind
-----
or nature for any alleged Liabilities and Costs, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means May 24, 1999.
------------
"Commission" means the Securities and Exchange Commission and any
----------
Person succeeding to the functions thereof.
"Commitment" means with respect to any Lender, the obligation of such
----------
Lender to make Loans pursuant to the terms and conditions of this Agreement, and
which shall not exceed the principal amount set forth opposite such Lender's
name under the heading "Commitment" on the signature pages hereof or the
signature page of the Assignment and Acceptance by which it became a Lender, as
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance, and "Commitments" means the
aggregate principal amount of the Commitments of all the Lenders, the maximum
amount of which shall be $130,000,000 as reduced from time to time pursuant to
Section 4.1.
"Company" means Metropolitan Partners LLC, a Delaware limited
-------
liability company.
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
----------------------
"Consolidated" means consolidated, in accordance with GAAP.
------------
"Consolidated Businesses" means the Company, the Borrower and their
-----------------------
wholly-owned Subsidiaries.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
-----------
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in any
form or condition), polychlorinated biphenyls (PCBs), or any constituent of any
such sub stance or waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
"Contingent Obligation" as to any Person means, without duplication,
---------------------
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Per son's financial statements in
accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. Notwithstanding the foregoing, any litigation required to be disclosed
in the footnotes to such Person's financial statements in accordance with GAAP
shall not be included as a "Contingent Obligation" unless the same shall have
been reserved for in accordance with GAAP. The amount of any Contingent
Obligation described in clause (ii) shall be deemed to be (a) with respect to a
guaranty of interest or interest and principal, or operating income guaranty,
the sum of all payments required to be made there under (which in the case of an
operating income guaranty shall be deemed to be equal to the debt service for
the note secured thereby), calculated at the interest rate applicable to such
Indebtedness, through (i) in the case of an interest or interest and principal
guaranty, the stated date of maturity of the obligation (and commencing on the
date interest could first be payable thereunder), or (ii) in the case of an
operating income guaranty, the date through which such guaranty will remain in
effect, and (b) with respect to all guarantees not covered by the preceding
clause (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements of
the Borrower required to be delivered pursuant hereto. Notwithstanding anything
contained herein to the contrary, guarantees of completion shall not be deemed
to be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion shall be deemed to be
a Contingent Obligation in an amount equal to any such claim. Subject to the
preceding sentence, (i) in the case of a joint and several guaranty given by
such Person and another Person (but only to the extent such guaranty is
recourse, directly or indirectly to the Borrower), the amount of the guaranty
shall be deemed to be 100% thereof unless and only to the extent that (X) such
other Person has delivered Cash or Cash Equivalents to secure all or any part
of such Person's guaranteed obligations or (Y) such other Person holds a credit
rating from either ▇▇▇▇▇'▇ or S&P of BBB- (or its equivalent) or better, and
(ii) in the case of a guaranty, (whether or not joint and several) of an
obligation otherwise constituting Debt of such Person, the amount of such
guaranty shall be deemed to be only that amount in excess of the amount of the
obligation constituting Indebtedness of such Person. Notwithstanding anything
contained herein to the contrary, "Contingent Obligations" shall not be deemed
to include guarantees of loan commitments or of construction loans to the
extent the same have not been drawn.
"Contractual Obligation", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by which
it or any of its properties is bound, or to which it or any of its properties is
subject.
"Credit Obligations" means, at any particular time, the outstanding
------------------
principal amount of the Loans at such time.
"Cure Loans" has the meaning set forth in Section 4.2(b)(v)(C).
----------
"Customary Permitted Liens" means
-------------------------
(i) Liens (other than Environmental Liens and Liens in favor of the
PBGC) with respect to the payment of taxes, assessments or governmental
charges or levies in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings in accordance with
Section 9.4 and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP;
(ii) statutory and common law Liens of land lords against any Property
of the Borrower or any of its Subsidiaries;
(iii) Liens against any Property of the Borrower or any of its
Subsidiaries in favor of suppliers, mechanics, carriers, materialmen,
warehousemen or workmen and other Liens against any Property of the
Borrower or any of its Subsidiaries imposed by law created in the ordinary
course of business for amounts which could not reasonably be expected to
result in a Material Adverse Effect;
(iv) Liens (other than any Lien in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal
and performance bonds; provided that (A) all such Liens do not in the
aggregate materially detract from the value of the Borrower's or such
Subsidiary's assets or Property or materially impair the use thereof in
the operation of their respective businesses, and (B) all Liens of
attachment or judgment and Liens securing bonds to stay judgments or in
connection with appeals which do not secure at any time an aggregate amount
of recourse Indebtedness exceeding $2,000,000; and
(v) Liens against any Property of the Borrower or any Subsidiary of
the Borrower arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use
of Real Property which do not materially interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of the Borrower and its
Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Borrower or any of its Subsidiaries at the time
of acquisition thereof by the Borrower or any such Subsidiary or within
180 days thereafter to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof, provided that the Lien encumbering the
equipment or machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary;
(viii) customary restrictions imposed by licensors of software or
trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks or
other intellectual property license or sublicense by the Borrower or any
of its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being
contested in good faith by appropriate proceedings.
"Debt Yield" has the meaning set forth in Section 10.11(d).
----------
"Designated Lender" has the meaning set forth in Section 13.4.
-----------------
"DOL" means the United States Department of Labor and any Person
---
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
------- -
"Domestic Lending Office" means, with respect to any Lender, such
-----------------------
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof; (ii)
-----------------
a commercial bank having total assets in excess of $2,500,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development; or (iv) a finance company or other financial
institution reasonably acceptable to the Administrative Agent, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $300,000,000 or is otherwise reasonably acceptable to the
Administrative Agent.
"Environmental, Health or Safety Requirements of Law" means all
---------------------------------------------------
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"Environmental Lien" means a Lien in favor of any Governmental
------------------
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable Requirement
-----------------------------------
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"Equipment" means equipment used in connection with the maintenance of
---------
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
-----
U.S.C. Section 1000 et seq., any amendments thereto, any successor statutes, and
any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
---------------
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower; (ii) a partner ship or other trade
or business (whether or not incorporated) which is under common control (within
the meaning of Section 414(c) of the Internal Revenue Code) with the Borrower;
and (iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA Termination Event" means (i) a Report able Event with respect
-----------------------
to any Benefit Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower
or any ERISA Affiliate from a Benefit Plan during a plan year in which the
Borrower or such ERISA Affiliate was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of 20% of Benefit Plan participants who are employees
of the Borrower or any ERISA Affiliate; (iii) the imposition of an obligation on
the Borrower or any ERISA Affiliate under Section 4041 of ERISA to provide
affected parties written notice of intent to terminate a Benefit Plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the
institution by the PBGC of proceedings to terminate a Benefit Plan; (v) any
event or condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Benefit Plan; or (vi) the partial or complete withdrawal of the Borrower or any
ERISA Affiliate from a Multiemployer Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the
--------------------
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrower and
the Administrative Agent.
"Eurodollar Interest Period" has the meaning set forth in Section
--------------------------
5.2(b).
"Eurodollar Interest Rate Determination Date" has the meaning set
-------------------------------------------
forth in Section 5.2(c).
"Eurodollar Lending Office" means, with respect to any Lender, such
-------------------------
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on the signature pages hereof or on the Assignment and Acceptance by which
it became a Lender or such other office or offices of such Lender as it may from
time to time specify by written notice to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, with respect to any Eurodollar Interest
---------------
Period applicable to a Eurodollar Rate Loan, an interest rate per annum obtained
by dividing (i) the Base Eurodollar Rate applicable to that Eurodollar Interest
Period by (ii) a percentage equal to 100% minus the Eurodollar Reserve
Percentage in effect on the relevant Eurodollar Interest Rate Determination
Date.
"Eurodollar Rate Loan" means (i) a Loan which bears interest at a rate
--------------------
determined by reference to the Eurodollar Rate and the Applicable Margin for
Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue amount
which was a Eurodollar Loan immediately before it became due.
"Eurodollar Reserve Percentage" means, for any day, that percentage
-----------------------------
which is in effect on such day, as prescribed by the Federal Reserve Board 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, New York with deposits exceeding
five billion Dollars in respect of "Eurocurrency Liabilities" (or in respect of
any other category of liabilities which includes deposits by reference to which
the interest rate on Eurodollar Rate Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of any bank to United States residents).
"Event of Default" means any of the occurrences set forth in Section
----------------
11.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in Section 11.1.
"Existing Credit Agreement" means the Amended and Restated Credit
-------------------------
Agreement, dated as of January 12, 1999, among Reckson, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Operating
Partner ship, L.P., the institutions from time to time party thereto as lender,
ING (U.S.) Capital LLC, as documentation agent, and The Chase Manhattan Bank,
as arranger, book manager and administrative agent, as the same may be amended,
modified or restated.
"Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan" the mortgage securing a portion of
--------------------------------
the Loans, not to exceed $60,000,000 in the aggregate, from ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
L.P. to the Administrative Agent, on behalf of the Lenders, effective as of the
date of the consummation of the Mergers.
"Existing Permitted Liens" means each of the Liens other than
------------------------
Customary Permitted Liens set forth on SCHEDULE 1.1.1 hereto.
"Fair Market Value" means, for any Project hereafter acquired, the
-----------------
lesser of (x) purchase price of such Project and (y) the quotient of (i) the NOI
from such Project and (ii) the Weighted Average Capitalization Rate.
"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 in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on transactions by
the Reference Bank, as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System or any Governmental Authority succeeding to its functions.
"Financial Statements" means (i) quarterly and annual consolidated
--------------------
statements of income and retained earnings, statements of cash flow, and balance
sheets, prepared in accordance with GAAP, consistently applied, and (ii) such
other financial statements of the Borrower, the Company and the other
Consolidated Businesses that the Company shall routinely and regularly prepare
and that the Arranger or the Requisite Lenders may from time to time reasonably
request.
"Fiscal Year" means the fiscal year of the Company and the Borrower
-----------
for accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"Fixed Charges" means, with respect to any fiscal period, the sum of
-------------
(a) Total Interest Expense and (b) the aggregate of all scheduled principal
payments on Total Outstanding Indebtedness according to GAAP made or required to
be made during such fiscal period for the Consolidated Businesses (but excluding
balloon payments of principal due upon the stated maturity of an Indebtedness),
(c) the aggregate of all scheduled ground lease rental payments required to be
made during such fiscal period for the Consolidated Business, if any, and (d)
the aggregate of all dividends payable (whether paid or accrued) on all
preferred stock and other preferred securities or preferential arrangements of
the Consolidated Businesses, including preferred stock owned by Reckson
Associates Realty Corp. and Crescent Real Estate Equities Limited Partnership.
"Funding Date" means the date on or after the Closing Date, on which
------------
all of the conditions described in Section 6.1 have been satisfied (or waived)
in a manner satisfactory to the Administrative Agent and the Lenders and on
which the Loans under this Agreement are made by the Lenders to the Borrower.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"General Partner" means the Company and any successor general
---------------
partner(s) of the Borrower.
"Governmental Approval" means all right, title and interest in any
---------------------
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project.
"Governmental Authority" means any nation or government, any federal,
----------------------
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantors" means the Company, and all subsidiaries of the Borrower
----------
and the Company (as more particularly named in the Guaranty Agreement).
"Guaranty" means the Guaranty Agreement, dated as of the date hereof,
--------
made by the Guarantors for the benefit of the Lenders.
"Improvements" means all buildings, fixtures, structures, parking
------------
areas, landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower
and (c) any items of personal property.
"Indebtedness", as applied to any Person, means, at any time, without
------------
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar
instruments, and any accrued interest and fees relating thereto, (ii) under
profit payment agreements or in respect of obligations to redeem, repurchase or
exchange any Securities of such Person or to pay dividends in respect of any
preferred stock (but only to the extent that such Person shall be contractually
obligated to pay the same), (iii) with respect to letters of credit issued for
such Person's account, (iv) to pay the deferred purchase price of property or
services, except accounts payable and accrued expenses arising in the ordinary
course of business, (v) in respect of Capital Leases, (vi) which are Contingent
Obligations or (vii) under indemnities but only at such time as a claim shall
have been made thereunder; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are assumed
by such Person, all as of such time; (c) all indebtedness, obligations or other
liabilities of such Person in respect of interest rate contracts and foreign
exchange contracts, net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock subject (upon the occurrence of any contingency
or otherwise) to mandatory redemption; and (e) all Contractual Obligations with
respect to any of the foregoing.
"Indemnified Matters" has the meaning set forth in Section 14.3.
-------------------
"Indemnitees" has the meaning set forth in Section 14.3.
-----------
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase or
----------
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
(iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business, and (iv) any
purchase or other acquisition by that Person of Real Property, whether directly
or indirectly. The amount of any In vestment shall be the original cost of such
Investment, without any adjustments for increases or decreases in value or
write-ups, write-downs or write-offs with respect to such Investment.
"IRS" means the Internal Revenue Service and any Person succeeding to
---
the functions thereof.
"knowledge" with reference to the Company, the Borrower or any
---------
Subsidiary of either of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Company, the Borrower or
such Subsidiary, as applicable, deems reasonably necessary).
"Lease" means a lease, license, concession agreement or other
-----
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments thereof and
all side letters or side agreements relating thereto.
"Lender" means the Administrative Agent, and each financial
------
institution a signatory hereto as a Lender as of the Closing Date and, at any
other given time, each financial institution which is a party hereto as
Administrative Agent or Lender, whether as a signatory hereto or pursuant to an
Assignment and Acceptance, and regardless of the capacity in which such entity
is acting (i.e. whether as Administrative Agent or Lender).
"Leverage Ratio" has the meaning set forth in Section 10.11(a).
--------------
"Liabilities and Costs" means all liabilities, obligations,
---------------------
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful
or wanton injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without limitation,
attorney, expert and consulting fees and costs of investigation, feasibility or
Remedial Action studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present or
future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to Section 9-408 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Limited Partners" means those Persons who from time to time are
----------------
limited partners of the Borrower; and "Limited Partner" means each of the
Limited Partners, individually.
"Loan Account" has the meaning set forth in Section 4.3(b).
------------
"Loan Documents" means this Agreement, the Notes and the Guaranty.
--------------
"Loans" means the loans made by a Lender pursuant to Section 2.1;
-----
provided, that if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Conversion/Continuation, the term "Loan"
shall refer to the combined principal amount resulting from such combination or
to each of the separate principal amounts resulting from such subdivision, as
the case may be.
"LTV Ratio" means, as of any date, the ratio, expressed as a
---------
percentage, of the aggregate amount of any Indebtedness to the Fair Market Value
of the Real Property encumbered thereby.
"Management Company" means, collectively (i) Reckson Management Group,
------------------
Inc., a Delaware corporation, and its wholly-owned or controlled Subsidiaries
and (ii) such other property management companies controlled (directly or
indirectly) by Reckson, the Company or the Borrower and which property
management companies manage properties owned by the Company, the Borrower and
its Subsidiaries and for which the Borrower has previously provided the
Administrative Agent with: (1) notice of such property management company, (2)
evidence reasonably satisfactory to the Administrative Agent that such property
management company is controlled (directly or indirectly) by Reckson, the
Company or the Borrower, and (3) evidence reasonably satisfactory to the
Administrative Agent that such property management company manages properties
owned, in whole or in part by Reckson, the Company or the Borrower or its
Subsidiaries.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation U.
"Material Adverse Effect" means a material adverse effect upon (i) the
-----------------------
financial condition or assets of the Company, the Borrower and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of each
Guarantor to perform its material obligations under the Guaranty, or (iv) the
ability of the Lenders or the Administrative Agent to enforce any of the Loan
Documents.
"Maximum Credit Amount" means, at any particular time, the
---------------------
Commitments at such time, less the amount of the Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Loan outstanding from time to time under the notes secured thereby.
"Mergers" means the collective reference to the merger of Tower Realty
-------
Trust, Inc. with and into the Company with the Company being the survivor after
the merger and the merger of Tower Realty Operating Partner ship, L.P. with and
into the Borrower with the Borrower being the survivor after the merger and the
merger of certain Affiliates of Tower Realty Operating Partnership, L.P. with
and into certain Affiliates of the Borrower.
"Minimum Unsecured Debt Yield" has the meaning set forth in Section
----------------------------
10.11(g).
"Minority Holdings" means any interests in partnerships, joint
-----------------
ventures, limited liability companies, trusts, associations and corporations
held or owned directly or indirectly by the Borrower and/or the Company which
are not wholly-owned by the Borrower and/or the Company.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, Inc.
-------
"Multiemployer Plan" means a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to (or is or was required to be contributed to) by
either the Borrower or any ERISA Affiliate or in respect of which the Borrower
or any ERISA Affiliate has assumed any liability.
"Net Cash Proceeds" means all cash when and as received in connection
-----------------
with the sale or refinancing of any asset, or any sale of any equity interest
(other than such as would give rise to Net Offering Proceeds) in the Borrower,
the Company or any of their Subsidiaries, less reasonable costs and expenses,
repayment of secured indebtedness with respect to the applicable asset, and net
of an amount equal to taxable capital gains and real estate transfer taxes
payable in connection with any asset sale.
"Net Offering Proceeds" means all cash or other assets received by the
---------------------
Company as a result of the sale of common shares, preferred shares, partnership
interests, limited liability company interests, convertible securities or other
ownership or equity interests in the Company, other than in connection with the
acquisition of an asset or the equity securities of any Person but only to the
extent that no cash is received in connection there with, less customary costs,
expenses and discounts of issuance paid by the Company.
"NOI" means, for any period, (x) net income determined in accordance
---
with GAAP, before gains or losses from extraordinary items relating to any Real
Property, plus (y) (i) any interest expense relating to such Real Property, and
(ii) depreciation and amortization relating to such Real Property, less (z) (i)
free rent and accrued rent with respect to tenants that are more than 60 days in
arrears in the payment of rent, and further adjusted to omit the straight line
treatment of rent, so as to account for rent on an accrual basis, (ii) any
interest income relating to such Real Property, (iii) management fees for each
Real Property calculated as the greater of (x) actual management fees and (y) an
amount equal to 2% of gross revenues with respect to a Real Property, and (iv)
Capital Expenditures calculated as the greater of (x) actual capital
expenditures and (y) an amount per annum equal to $0.25 multiplied by the number
of gross square feet for the Real Property.
"Non Pro Rata Loan" has the meaning set forth in Section 4.2 (b)(v).
-----------------
"Note" has the meaning set forth in Section 4.3(a); "Notes" means,
----
collectively, all of such Notes outstanding at any given time.
"Notice of Borrowing" means a notice substantially in the form of
-------------------
EXHIBIT C attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in
---------------------------------
the form of EXHIBIT D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"Obligations" means all Loans, advances, debts, liabilities and
-----------
monetary obligations owing by the Borrower to the Administrative Agent, any
other Lender, or any Person entitled to indemnification pursuant to Section
14.3 of this Agreement, of any kind or nature, arising under this Agreement, the
Notes or any other Loan Document. The term includes, without limitation, all
interest, charges, reasonable expenses, fees, reasonable attorneys' fees and
disbursements and any other sum chargeable to the Borrower under this Agreement
or any other Loan Document.
"Officer's Certificate" means, as to a corporation, a certificate
---------------------
executed on behalf of such corporation by the chairman of its board of
directors (if an officer of such corporation) or its chief executive officer,
president, any of its vice-presidents, its chief financial officer, or its
treasurer and, as to a partner ship, a certificate executed on behalf of such
partner ship by the chairman of the board of directors (if an officer of such
corporation) or chief executive officer, president, any vice-president, or
treasurer of the general partner of such partnership.
"OP Units" means limited partnership interests in the Borrower.
--------
"Operating Lease" means, as applied to any Person, any lease of any
---------------
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"Organizational Documents" means, with respect to any corporation,
------------------------
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in the partnership, (iii) the by-laws (or the equivalent governing
documents) of the corporation, limited liability company or partner ship, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's Capital
Stock or such limited liability company's or partnership's equity or ownership
interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
----
Section 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
----
succeeding to the functions thereof.
"Permits" means any permit, consent, approval, authorization license,
-------
variance, or permission required from any Person, including any Governmental
Approvals.
"Permitted Securities Options" means the subscriptions, options,
----------------------------
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on SCHEDULE 1.1.2.
"Person" means any natural person, corporation, limited liability
------
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
"Plan" means an employee benefit plan defined in Section 3(3) of ERISA
----
in respect of which the Borrower or any ERISA Affiliate (i) is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or (ii) has assumed or is otherwise subject to any liability.
"Potential Event of Default" means an event which, with the giving of
--------------------------
notice or the lapse of time, or both, would constitute an Event of Default.
"Prepayment Date" has the meaning set forth in Section 4.1(d).
---------------
"Project" means any office properties wholly owned, directly or
-------
indirectly, by any of the Consolidated Businesses, as set forth on SCHEDULE B or
any wholly owned office properties, or mortgage encumbering the office property
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, that may hereafter be acquired,
directly or indirectly, by any of the Consolidated Businesses.
"Property" means any Real Property or personal property, plant,
--------
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or Minority Holding.
The definition "Property" shall specifically exclude items of Real Property or
personal property owned or leased by members of the Reckler family.
"Pro Rata Share" means, with respect to any Lender, the percentage
--------------
obtained by dividing (i) the sum of such Lender's Commitment (in each case, as
adjusted from time to time in accordance with the provisions of this Agreement
or any Assignment and Acceptance to which such Lender is a party) by (ii) the
aggregate amount of all of the Commitments.
"Quarterly Compliance Certificate" has the meaning set forth in
--------------------------------
Section 8.2(a)(iii).
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
----
U.S.C. Section 6901 et seq., any amendments thereto, any successor statutes, and
any regulations or guidance promulgated thereunder.
"Real Property" means all of the Borrower's and the consolidated
-------------
Subsidiaries' present and future right, title and interest (including, without
limitation, any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any Improvements of every nature whatsoever (the rights and interests
described in clauses (i) and (ii) above being the "Premises"), (iii) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining such land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto and (iv) all other rights and
privileges thereunto belonging or appertaining and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of
any of the rights and interests described in clause (iii) above.
"Reckson" means Reckson Operating Partnership, L.P., a Delaware
-------
limited partnership.
"Reference Bank" means UBS.
--------------
"Register" has the meaning set forth in Section 14.1(c).
--------
"Regulation A" means Regulation A of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation T" means Regulation T of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation U" means Regulation U of the Federal Reserve Board as in
------------
effect from time to time.
"Regulation X" means Regulation X of the Federal Reserve Board as in
------------
effect from time to time.
"REIT" means a domestic trust or corporation that qualifies as a real
----
estate investment trust under the provisions of Sections 856, et seq. of the
Internal Revenue Code.
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
"Remedial Action" means actions required to (i) clean up, remove,
---------------
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed and design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"Reportable Event" means any of the events described in Section
----------------
4043(c) of ERISA and the regulations promulgated thereunder as in effect from
time to time but not including any such event as to which the thirty (30) day
notice requirement has been waived by applicable PBGC regulations.
"Requirements of Law" means, as to any Person, the charter and by-laws
-------------------
or other organizational or governing documents of such Person, and any law,
rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit and Environmental, Health or
Safety Requirement of Law.
"Requisite Lenders" means Lenders whose Pro Rata Shares, in the
-----------------
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66.67%); provided, however, that, in the event any of the Lenders shall have
failed to fund its Pro Rata Share of any Loan requested by the Borrower which
such Lenders are obligated to fund under the terms of this Agreement and any
such failure has not been cured as provided in Section 4.2(b)(v)(B), then for so
long as such failure continues, "Requisite Lenders" means Lenders (excluding
all Lenders whose failure to fund their respective Pro Rata Shares of such Loans
have not been so cured) whose Pro Rata Shares represent sixty-six and two-thirds
percent (66.67%) or more of the aggregate Pro Rata Shares of such Lenders;
provided, further, however, that, in the event that the Commitments have been
terminated pursuant to the terms of this Agreement, "Requisite Lenders" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans are sixty six and
two thirds percent (66.67%) or more.
"Revolving Credit Agreement" means the Credit Agreement, dated as of
--------------------------
July 23, 1998, among Reckson, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Operating Partnership, L.P., The
Chase Manhattan Bank, as administrative agent, UBS, as successor to UBS AG, New
York Branch, as syndication agent, and the other lenders party thereto, as the
same may be amended, modified or restated.
"S&P" means Standard & Poor's Ratings Services, a division of The
---
McGraw Hill Companies, Inc.
"Secured Indebtedness" means any Indebtedness secured by a Lien,
--------------------
other than the Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan.
"Securities" means any stock, shares, voting trust certificates,
----------
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, and any successor statute.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
-----------------------
as amended from time to time, and any successor statute.
"Solvent", when used with respect to any Per son, means that at the
-------
time of determination:
(i) the fair saleable value of its as sets is in excess of the total
amount of its liabilities (including, without limitation, contingent
liabilities); and
(ii) the present fair saleable value of its assets is greater than its
probable liability on its existing debts as such debts become absolute and
matured; and
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as
they mature; and
(iv) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"Subsidiary" of a Person means any corporation, limited liability
----------
company, general or limited partnership, or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned or controlled by such Per son, one or more of
the other subsidiaries of such Per son or any combination thereof.
"Taxes" has the meaning set forth in Section 13.1(a).
-----
"Tenant Allowance" means a cash allowance paid to a tenant by the
----------------
landlord pursuant to a Lease.
"Termination Date" means the earlier to occur of (i) November 24, 1999
----------------
(or, if not a Business Day, the next preceding Business Day); and (ii) the date
of termination or acceleration of the Credit Obligations pursuant to the terms
of this Agreement.
"TI Work" means any construction or other "build-out" of tenant
-------
leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant's furniture, fixtures and equipment) per formed pursuant
to the terms of such Leases, whether or not such tenant improvement work is
performed by or on behalf of the landlord or as part of a Tenant Allowance.
"Total Interest Expense" means, for any period, the sum of (i)
----------------------
interest expense of the Consolidated Businesses paid during such period and
(ii) interest expense of the Consolidated Businesses accrued and/or capitalized
for such period and (iii) the portion of the interest expense of Minority
Holdings allocable to the Borrower in accordance with GAAP and paid during such
period with respect to recourse Indebtedness and (iv) the portion of the
interest expense of Minority Holdings allocable to the Borrower in accordance
with GAAP and accrued and/or capitalized for such period with respect to
recourse Indebtedness, in each case including participating interest expense but
excluding extraordinary interest expense, and net of amortization of deferred
costs associated with new financings or refinancings of existing Indebtedness.
"Total NOI" means, as of the first day of each fiscal quarter for the
---------
immediately preceding fiscal quarter, the sum of NOI relating to all Projects
for such period. An example of the foregoing calculation is set forth on EXHIBIT
G hereto.
"Total Outstanding Indebtedness" means, for any period, the sum of (i)
------------------------------
the amount of Indebtedness of the Consolidated Businesses set forth on the then
most recent quarterly financial statements of the Borrower, prepared in
accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, less any Indebtedness
repaid by the Consolidated Businesses since the time of such statements, and
(ii) the outstanding amount of recourse Indebtedness allocable to the Minority
Holdings set forth on the then most recent quarterly financial statements of the
Borrower or the applicable Minority Holding, prepared in accordance with GAAP
and allocable in accordance with GAAP to any of the Consolidated Businesses,
plus any additional Indebtedness allocable to the Minority Holdings in
accordance with GAAP to any of the Consolidated Businesses since the time of
such statements, less any Indebtedness repaid by the Minority Holdings allocable
in accordance with GAAP to any of the Consolidated Businesses since the time of
such statements, and (iii) without duplication, the Contingent Obligations of
the Consolidated Businesses, including trade debt not incurred in the ordinary
course of business.
"Treasury Rate" means, as of any date, a rate equal to the annual
-------------
yield to maturity on the U.S. Treasury Constant Maturity Series with a ten year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
-- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten year maturities.
"UBS" means UBS AG, Stamford Branch.
---
"Unencumbered NOI" means, for any period, Total NOI from the
----------------
Consolidated Businesses from Projects that are not subject to or encumbered by
Secured Indebtedness.
"Unencumbered Value" means, for any period, that portion of
------------------
Capitalization Value attributable to Projects not encumbered by Secured
Indebtedness.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted
-----------------------
in the State of New York, as it may be amended from time to time.
"Unsecured Indebtedness" means that portion of Total Outstanding
----------------------
Indebtedness that is not secured by a Lien.
"Unsecured Interest Expense" means that portion of Total Interest
--------------------------
Expense attributable to Unsecured Indebtedness.
"WDR" means Warburg Dillon Read.
---
"Weighted Average Capitalization Rate" means the greater of (x)9.7%,
------------------------------------
the current Weighted Average Capitalization Rate as attached on SCHEDULE A
hereto, and (y) the percentage that would result from the weighted average of
the Capitalization Rates of the resultant Projects. Notwithstanding the
foregoing, how ever, in determining the Weighted Average Capitalization Rate
with respect to a Project acquired from and after the date hereof and located in
the County of New York, the Capitalization Rates of only the other Projects
located in the County of New York, exclusive of the Capitalization Rate with
respect to the Project commonly known as Tower 45, shall be averaged, but in no
event shall the same be less than 9.5%.
1.2. Computation of Time Periods. In this Agreement, 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". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided that if such period commences on the last day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month during which such period is to end),
such period shall, unless otherwise expressly required by the other provisions
of this Agreement, end on the last day of the calendar month.
1.3. Accounting Terms. Subject to Section 14.4, for purposes of this
----------------
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. Other Terms. All other terms contained in this Agreement shall,
-----------
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
-----
(a) Availability. Subject to the terms and conditions set forth in
------------
this Agreement, each Lender hereby sever ally and not jointly agrees to make
loans, in Dollars (each individually, a "Loan" and, collectively, the "Loans")
to the Borrower on the Funding Date, in an amount not to exceed such Lender's
Pro Rata Share of the Maximum Credit Amount at such time. The aggregate amount
of Loans to be made hereunder with respect to the Borrower shall not exceed One
Hundred Thirty Million Dollars ($130,000,000). All Loans must be borrowed on the
Funding Date and Commitments not so funded shall be deemed cancelled. All Loans
comprising the same Borrowing under this Agreement shall be made by the Lenders
simultaneously and proportionately to their then respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make a Loan hereunder nor shall the
Commitment of any Lender be increased or decreased as a result of any such
failure. Subject to the provisions of this Agreement, the Borrower may repay any
outstanding Loan on any day which is a Business Day and any amounts so repaid
may not be reborrowed.
(b) Notice of Borrowing. When the Borrower desires to borrow under
-------------------
this Section 2.1, the Borrower shall deliver to the Administrative Agent a
Notice of Borrowing, signed by it (x) no later than 12:00 noon (New York time)
on the Business Day immediately preceding the proposed Funding Date, in the
case of a Borrowing of Base Rate Loans and (y) no later than 11:00 a.m. (New
York time) at least three (3) Business Days in advance of the proposed Funding
Date, in the case of a Borrowing of Eurodollar Rate Loans. Such Notice of
Borrowing shall specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount of the proposed Borrowing, (iii) the Maximum Credit Amount
as of the date of such Notice of Borrowing, (iv) whether the proposed Borrowing
will be of Base Rate Loans or Eurodollar Rate Loans, (v) in the case of
Eurodollar Rate Loans, the requested Eurodollar Interest Period, (vi)
instructions for the disbursement of the proceeds of the proposed Borrowing,
(vii) an Officer's Certificate of the Borrower with respect to compliance with
(including calculation thereof) Sections 10.11(a) and 10.11(e), and (viii) that
no Event of Default shall have occurred and be outstanding. Any Notice of
Borrowing (or telephonic notice in lieu thereof) given pursuant to this Section
2.1(b) shall be irrevocable.
(c) Making of Loans. (i) Promptly after receipt of a Notice of
---------------
Borrowing under Section 2.1(b), the Administrative Agent shall notify each
Lender by facsimile trans mission, or other similar form of transmission, of the
pro posed Borrowing (which notice to the Lenders, in the case of a Borrowing of
Eurodollar Rate Loans, shall be at least three (3) Business Days in advance of
the proposed Funding Date for such Loans). Each Lender shall deposit an amount
equal to its Pro Rata Share of the Borrowing requested by the Borrower with the
Administrative Agent at its office in New York, New York, in immediately
available funds, not later than 12:00 noon. (New York time) on the Funding Date.
Subject to the fulfillment of the conditions precedent set forth in Section
6.1, the Administrative Agent shall make the proceeds of such amounts received
by it available to the Borrower at the Administrative Agent's office in New
York, New York on the Funding Date (or on the date received if later than the
Funding Date) and shall disburse such proceeds in accordance with the Borrower's
disbursement instructions set forth in the applicable Notice of Borrowing. The
failure of any Lender to deposit the amount described above with the
Administrative Agent on the Funding Date shall not relieve any other Lender of
its obligations hereunder to make its Loan on the Funding Date. In the event the
conditions precedent set forth in Section 6.1 are not fulfilled as of the
proposed Funding Date for any Borrowing, the Administrative Agent shall promptly
return, by wire transfer of immediately available funds, the amount deposited by
each Lender to such Lender.
(ii) Unless the Administrative Agent shall have been notified by any
Lender on the Business Day immediately preceding the Funding Date in respect of
any Borrowing that such Lender does not intend to fund its Loan requested to be
made on the Funding Date, the Administrative Agent may assume that such Lender
has funded its Loan and is depositing the proceeds thereof with the
Administrative Agent on the Funding Date, and the Administrative Agent in its
sole discretion may, but shall not be obligated to, disburse a corresponding
amount to the Borrower on the Funding Date. If the Loan proceeds corresponding
to that amount are advanced to the Borrower by the Administrative Agent but are
not in fact deposited with the Administrative Agent by such Lender on or prior
to the Funding Date, such Lender agrees to pay, and in addition the Borrower as
the case may be, agrees to repay, to the Administrative Agent forthwith on
demand such corresponding amount, together with interest thereon, for each day
from the date such amount is disbursed to the Borrower until the date such
amount is paid or repaid to the Administrative Agent, at the interest rate
applicable to such Borrowing. If such Lender shall pay to the Administrative
Agent the corresponding amount, the amount so paid shall constitute such
Lender's Loan, and if both such Lender and the Borrower shall pay and repay such
corresponding amount, the Administrative Agent shall promptly pay to the
Borrower such corresponding amount. This Section 2.1(c)(ii) does not relieve any
Lender of its obligation to make its Loan on the Funding Date.
2.2. Intentionally Omitted.
---------------------
2.3. Use of Proceeds of Loans. The proceeds of the Loans hereunder
------------------------
shall be used for the sole purpose of consummating the Mergers.
2.4. Termination Date. The Commitments shall terminate on the earlier
----------------
of (x) May __, 1999 and (y) the Funding Date. All outstanding Credit Obligations
shall be paid in full on the Termination Date.
2.5. Maximum Credit Facility. Notwithstanding any thing in this
-----------------------
Agreement to the contrary, in no event shall the aggregate principal Credit
Obligations exceed the Maximum Credit Amount.
2.6. Authorized Agents. On the Closing Date and from time to time
-----------------
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request Loans and to request a conversion/continuation of any Loans and
containing a specimen signature of each such employee or agent. The employees
and agents so authorized shall also be authorized to act for the Borrower in
respect of all other matters relating to the Loan Documents. The Administrative
Agent, the Arranger, and the Lenders shall be entitled to rely conclusively on
such employee's or agent's authority to request such Loan or such
conversion/continuation until the Administrative Agent and the Arranger receive
written notice to the contrary. None of the Administrative Agent or the Arranger
shall have any duty to verify the authenticity of the signature appearing on any
written Notice of Borrowing or Notice of Conversion/Continuation or any other
document, and, with respect to an oral request for such a Loan or such
conversion/continuation, the Administrative Agent and the Arranger shall have no
duty to verify the identity of any person representing himself or herself as one
of the employees or agents authorized to make such request or otherwise to act
on behalf of the Borrower. None of the Administrative Agent, the Arranger or the
Lenders shall incur any liability to the Borrower or any other Person in acting
upon any telephonic or facsimile notice referred to above which the
Administrative Agent or the Arranger believes to have been given by a person
duly authorized to act on behalf of the Borrower and the Borrower hereby
indemnifies and holds harmless the Administrative Agent, the Arranger and each
other Lender from any loss or expense the Administrative Agent, the Arranger or
the Lenders might incur in acting in good faith as provided in this Section 2.6;
provided, however, that Borrower shall not indemnify the applicable party for
acts resulting from its own gross negligence or willful misconduct.
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments.
--------------------------------------
(a) Voluntary Prepayments. The Borrower may, at any time and from time
---------------------
to time, prepay the Loans, in part or in their entirety, subject to the
following limitations. The Borrower shall give at least five (5) Business Days'
prior written notice to the Administrative Agent (which the Administrative
Agent shall promptly transmit to each Lender) of any prepayment in the entirety
to be made prior to the occurrence of an Event of Default, which notice of
prepayment shall specify the date (which shall be a Business Day) of prepayment.
When notice of prepayment is delivered as provided herein, the outstanding
principal amount of the Loans on the prepayment date specified in the notice
shall become due and payable on such prepayment date. Each voluntary partial
prepayment of the Loans shall be in a minimum amount of $1,000,000 and in
integral multiples of $500,000 in excess of that amount (or such lesser amount
in the event the unpaid principal amount of any Loan is less than such minimum
prepayment amount). Eurodollar Rate Loans may be prepaid in part or in their
entirety only upon payment of the amounts described in Section 5.2(f). Amounts
prepaid pursuant to this Section 4.1(a) may not be reborrowed.
(b) Voluntary Reductions In Commitments. The Borrower may, upon at
-----------------------------------
least five (5) days' prior written notice to the Administrative Agent (which the
Administrative Agent shall promptly transmit to each Lender), at any time and
from time to time, terminate in whole or permanently reduce in part the
Commitments, provided that (i) the Borrower shall have made whatever payment may
be required to reduce the Credit Obligations to an amount less than or equal to
the Commitments as reduced, which amount shall become due and payable on the
date specified in such notice and (ii) in the case of a reduction, the minimum
Commitments that shall remain outstanding shall be $10,000,000. Any partial
reduction of the Commitments shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $1,000,000 in excess of that amount, and
shall reduce the Commitment of each Lender proportionately in accordance with
its Pro Rata Share. Any notice of termination or reduction given to the
Administrative Agent under this Section 4.1(b) shall specify the date (which
shall be a Business Day) of such termination or reduction and, with respect to a
partial reduction, the aggregate principal amount thereof.
(c) No Penalty. The prepayments and payments in respect of reductions
----------
and terminations described in clauses (a) and (b) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(d) Mandatory Prepayment. If at any time during the term of this
--------------------
Agreement, the Borrower or the Company shall receive Net Offering Proceeds or
Net Cash Proceeds then, simultaneously therewith, the Borrower or the Company,
as the case may be, shall repay the Loans in an amount equal to the lesser of
(x) the aggregate Net Offering Proceeds and/or Net Cash Proceeds received by the
Company from and after the date hereof and (y) the outstanding principal balance
of the Loans. If at any time from and after the Closing Date: (i) the Company
or the Borrower merges or consolidates with another Person and the Company or
Borrower, as the case may be, is not the surviving entity (other than a merger
or consolidation of the Company or the Borrower with Reckson or any other Person
so long as, in the case of a merger or consolidation of the Company, Reckson is
the surviving entity and retains not less than a 66 2/3% interest in Borrower;
(ii) any interest in the Borrower or the Company is sold to any Person, other
than to Reckson or the Company or in connection with the grant of OP Units (x)
in partial payment of an acquisition of a Property or (y) the proceeds of which
are used to purchase a Property; (iii) the Management Company ceases to provide
property management and leasing services to all of the Projects located in the
State of New York or to provide asset management services for all of the
Projects located outside of the State of New York; or (iv) the Revolving Credit
Agreement is terminated for any reason (the date any such event shall occur
being the "Prepayment Date"), the Borrower shall be required to prepay the Loans
in their entirety as if the Prepayment Date were the Termination Date and, the
Credit Commitment thereupon shall be terminated. The Borrower shall immediately
make such prepayment together with interest accrued to the date of the
prepayment on the principal amount prepaid. In connection with the prepayment of
any Loan prior to the maturity thereof, the Borrower shall also pay any
applicable expenses pursuant to Section 5.2(f). Each such prepayment shall be
applied to prepay ratably the Loans of the Lenders. Amounts prepaid pursuant to
this Section 4.1(d) may not be reborrowed.
4.2. Payments.
--------
(a) Manner and Time of Payment. All payments of principal of and
--------------------------
interest on the Loans and other Obligations (including, without limitation, fees
and expenses) which are payable to the Administrative Agent or any other Lender
shall be made without condition or reservation of right, in immediately
available funds, delivered to the Administrative Agent not later than 12:00 noon
(New York time) on the date and at the place due, to such account of the
Administrative Agent as it may designate, for the account of the Administrative
Agent or such other Lender, as the case may be; and funds received by the
Administrative Agent, including, without limitation, funds in respect of any
Loans to be made on that date, not later than 12:00 noon (New York time) on any
given Business Day shall be credited against payment to be made that day and
funds received by the Administrative Agent after that time shall be deemed to
have been paid on the next succeeding Business Day. Payments actually received
by the Administrative Agent for the account of the Lenders, or any of them,
shall be paid to them by the Administrative Agent promptly after receipt
thereof.
(b) Apportionment of Payments. (i) Subject to the provisions of
-------------------------
Section 4.2(b)(v), all payments of principal and interest in respect of
outstanding Loans, all payments of fees and all other payments in respect of any
other Obligations, shall be allocated among such of the Lenders as are entitled
thereto, in proportion to their respective Pro Rata Shares or otherwise as
provided herein. Subject to the provisions of Section 4.2(b)(ii), all such
payments and any other amounts received by the Administrative Agent from or for
the benefit of the Borrower shall be applied in the following order:
(A) to pay principal of and interest on any portion of the Loans which
the Administrative Agent may have advanced on behalf of any Lender other
than UBS for which the Administrative Agent has not then been reimbursed by
such Lender or the Borrower, as the case may be,
(B) to pay all other Obligations then due and pay able, and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of its Loans shall be applied first, to repay its outstanding Base Rate Loans
not secured by the Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan, second, to repay its out
standing Eurodollar Rate Loans not secured by the Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Loan, third, to repay any other outstanding Base Rate Loans, and then to repay
any other outstanding Eurodollar Rate Loans with those Eurodollar Rate Loans
which have earlier expiring Eurodollar Interest Periods being repaid prior to
those which have later expiring Eurodollar Interest Periods.
(ii) After the occurrence of an Event of Default and while the same
is continuing which results in an acceleration of the Obligations in accordance
with Section 11.2, the Administrative Agent shall apply all payments in respect
of any Obligations in the following order:
(A) first, to pay principal of and interest on any portion of the
Loans which the Administrative Agent may have advanced on behalf of any
Lender other than UBS for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrower, as the case may be;
(B) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in respect of Loans not secured by the
Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan;
(E) fifth, to the ratable payment or prepayment of principal
outstanding on Loans not secured by the Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan;
(F) sixth, to pay interest due in respect of Loans secured by the
Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan;
(G) seventh, to the ratable payment or prepayment of principal
outstanding on Loans not secured by the Existing ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Loan;
and
(H) eighth, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the other Lenders as among
themselves. The order of priority set forth in clauses (A) and (B) of this
Section 4.2(b)(ii) may be changed only with the prior written consent of the
Administrative Agent.
(iii) The Administrative Agent, in its sole discretion subject only
to the terms of this Section 4.2(b)(iii), may pay from the proceeds of Loans
made to the Borrower hereunder, whether made following a request by the Borrower
pursuant to Section 2.1 or a deemed request as provided in this Section
4.2(b)(iii), all amounts payable by the Borrower hereunder, including, without
limitation, amounts payable with respect to payments of principal, interest, and
fees. The Borrower hereby irrevocably authorize the Lenders to make Loans, which
Loans shall be Base Rate Loans, in each case, upon notice from the
Administrative Agent as described in the following sentence for the purpose of
paying principal, interest, and fees due from the Borrower, and agrees that all
such Loans so made shall be deemed to have been requested by it pursuant to
Section 2.1 as of the date of the aforementioned notice. The Administrative
Agent shall request Loans on behalf of the Borrower as described in the
preceding sentence by notifying the Lenders by facsimile transmission or other
similar form of transmission (which notice the Administrative Agent shall
thereafter promptly transmit to the Borrower), of the amount and Funding Date of
the proposed Borrowing and that such Borrowing is being requested on the
Borrower's behalf pursuant to this Section 4.2(b)(iii). On the proposed Funding
Date, the Lenders shall make the requested Loans in accordance with the
procedures and subject to the conditions specified in Section 2.1.
(iv) Subject to Section 4.2(b)(v), the Administrative Agent shall
promptly distribute to each Lender at its primary address set forth on the
appropriate signature page hereof or the signature page to the Assignment and
Acceptance by which it became a Lender, or at such other address as a Lender may
request in writing, such funds as such Person may be entitled to receive,
subject to the provisions of Article XII; provided that the Administrative Agent
shall under no circumstances be bound to inquire into or determine the validity,
scope or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from the Requisite Lenders or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata Share of
any Loan requested by the Borrower on its behalf which such Lender is obligated
to fund under the terms of this Agreement (the funded portion of such Loan being
hereinafter referred to as a "Non Pro Rata Loan"), until such Lender's cure of
such failure, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower and otherwise required to be applied to
such Lender's share of all other Obligations pursuant to the terms of this
Agreement shall be advanced to the Borrower by the Administrative Agent on
behalf of such Lender to cure, in full or in part, such failure by such Lender,
but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(A) the foregoing provisions of this Section 4.2(b)(v) shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section
5.1(c);
(B) a Lender shall be deemed to have cured its failure to fund its Pro
Rata Share of any Loan at such time as an amount equal to such Lender's
original Pro Rata Share of the requested principal portion of such Loan
is fully funded to the Borrower, whether made by such Lender itself or by
operation of the terms of this Section 4.2(b)(v), and whether or not the
Non Pro Rata Loan with respect thereto has been repaid, converted or
continued;
(C) amounts advanced to the Borrower to cure, in full or in part, any
such Lender's failure to fund its Pro Rata Share of any Loan ("Cure Loans")
shall bear interest at the Base Rate in effect from time to time, and for
all other purposes of this Agreement shall be treated as if they were Base
Rate Loans; and
(D) regardless of whether or not an Event of Default has occurred or
is continuing, and notwithstanding the instructions of the Borrower as to
its desired application, all repayments of principal which, in accordance
with the other terms of this Section 4.2, would be applied to its
outstanding Base Rate Loans shall be applied first, ratably to its Base
Rate Loans constituting Non Pro Rata Loans, second, ratably to its Base
Rate Loans other than those constituting Non Pro Rata Loans or Cure Loans
and, third, ratably to its Base Rate Loans constituting Cure Loans.
(c) Payments on Non-Business Days. Whenever any payment to be made by
-----------------------------
the Borrower hereunder or under the Notes is stated to be due on a day which is
not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in Section 5.2(b)(iv), the next preceding
Business Day).
4.3. Promise to Repay; Evidence of Indebtedness.
------------------------------------------
(a) Promise to Repay. The Borrower hereby agrees to pay when due the
----------------
principal amount of each Loan which is made to it and, to the extent not paid
when due (after giving effect to any grace period as more particularly set forth
in Section 11.1(a)) and further agrees to pay all unpaid interest accrued
thereon, in accordance with the terms of this Agreement and the Notes. The
Borrower shall execute and deliver to each Lender on the Closing Date, a
promissory note, in the form of Exhibit B attached hereto with blanks
appropriately completed, evidencing the Loans and thereafter shall execute and
deliver such other promissory notes as are necessary to evidence the Loans made
to it owing to the Lenders after giving effect to any assignment thereof
pursuant to Section 14.1, all in the form of Exhibit B attached hereto with
blanks appropriately completed (all such promissory notes and all amendments
thereto, replacements thereof and substitutions therefor being collectively
referred to as the "Notes"; and "Note" means any one of the Notes).
(b) Loan Account. Each Lender shall maintain in accordance with its
------------
usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under the Notes.
(c) Control Account. The Register maintained by the Administrative
---------------
Agent pursuant to Section 14.1(c) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the type of
Loan comprising such Borrowing and any Eurodollar Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment and Acceptance
delivered to and accepted by it and the parties thereto, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder or under the Notes and (iv) the amount of any
sum received by the Administrative Agent from the Borrower hereunder and each
Lender's share thereof.
(d) Entries Binding. The entries made in the Register and each Loan
---------------
Account shall be conclusive and binding for all purposes, absent manifest error.
(e) No Recourse. Notwithstanding anything contained in this
-----------
Agreement, any Note, or the Guaranty to the contrary, it is expressly understood
and agreed that nothing herein or therein shall be construed as creating any
liability on any Limited Partner, any member of the Company, or any partner,
officer, shareholder, director or employee of any Limited Partner or any
officer, trustee, member, director or employee of the Borrower or any Guarantor,
to pay any of the Obligations other than liability arising under applicable law
from or in connection with (i) its own fraud or (ii) the misappropriation or
misapplication by it of proceeds of the Loans; but nothing contained in this
Section 4.3(e) shall be construed to prevent the exercise of any remedy allowed
to the Administrative Agent or the Lenders by law or by the terms of this
Agreement or the other Loan Documents which does not relate to or result in such
an obligation by any Limited Partner or member of the Company.
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations.
-------------------------------------------
(a) Rate of Interest. All Loans and the outstanding principal balance
----------------
of all other Obligations shall bear interest on the unpaid principal amount
thereof from the date such Loans are made and such other Obligations are due and
payable until paid in full, except as otherwise provided in Section 5.1(d), as
follows:
(i) If a Base Rate Loan or such other Obligation, at a rate per annum
equal to the sum of (A) the Base Rate, as in effect from time to time as
interest accrues, plus (B) the then Applicable Mar gin for Base Rate Loans;
and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to the sum
of (A) the Eurodollar Rate determined for the applicable Eurodollar
Interest Period, plus (B) the then Applicable Margin for Eurodollar Loans.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, the Borrower may not select the Eurodollar Rate as
the applicable basis for determining the rate of interest on such a Loan if at
the time of such selection an Event of Default has occurred and is continuing.
If on any day any Loan is outstanding with respect to which notice has not been
timely delivered to the Administrative Agent in accordance with the terms of
this Agreement specifying the basis for determining the rate of interest on that
day, then for that day interest on that Loan shall be determined by reference to
the Base Rate.
(b) Interest Payments. (i) Interest accrued on each Loan, whether a
-----------------
Base Rate Loan or a Eurodollar Loan shall be calculated on the last day of each
calendar month and shall be payable in arrears (A) on the first day of each
calendar month, commencing on the first such day following the making of such
Loan, (B) upon the payment or prepayment thereof in full or in part, and (C) if
not theretofore paid in full, at maturity (whether by acceleration or otherwise)
of such Loan.
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and shall
be payable in arrears (A) on the first day of each calendar month, commencing on
the first such day following the incurrence of such Obligation, (B) upon
repayment thereof in full or in part, and (C) if not thereto fore paid in full,
at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(c) Conversion or Continuation. (i) The Borrower shall have the option
--------------------------
(A) to convert at any time all or any part of outstanding Base Rate Loans to
Eurodollar Rate Loans; (B) to convert all or any part of outstanding Eurodollar
Rate Loans having Eurodollar Interest Periods which expire on the same date to
Base Rate Loans on such expiration date; or (C) to continue all or any part of
outstanding Eurodollar Rate Loans having Eurodollar Interest Periods which
expire on the same date as Eurodollar Rate Loans, and the succeeding Eurodollar
Interest Period of such continued Loans shall commence on such expiration date;
provided, however, no such outstanding Loan may be continued as, or be
converted into, a Eurodollar Rate Loan (i) if the continuation of, or the
conversion into, would violate any of the provisions of Section 5.2 or (ii) if
an Event of Default has occurred and is continuing. Any conversion into or
continuation of Eurodollar Rate Loans under this Section 5.1(c) shall be in a
minimum amount of $3,000,000 and in integral multiples of $500,000 in excess of
that amount, except in the case of a conversion into or a continuation of an
entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan under Section 5.1(c)(i), the
Borrower shall deliver a Notice of Conversion/ Continuation to the
Administrative Agent no later than 11:00 a.m. (New York time) at least three (3)
Business Days in advance of the proposed conversion/continuation date. A Notice
of Conversion/Continuation shall specify (A) the pro posed
conversion/continuation date (which shall be a Business Day), (B) the principal
amount of the Loan to be converted/continued, (C) whether such Loan shall be
converted and/or continued and (D) in the case of a conversion to, or
continuation of a Eurodollar Rate Loan, the requested Eurodollar Interest
Period. Promptly after receipt of a Notice of Conversion/Continuation under this
Section 5.1(c)(ii), the Administrative Agent shall notify each Lender by
facsimile transmission, or other similar form of transmission, of the proposed
conversion/continuation. Any Notice of Conversion/Continuation for conversion
to, or continuation of, a Loan (or telephonic notice in lieu thereof) given
pursuant to this Section 5.1(c)(ii) shall be irrevocable, and the Borrower shall
be bound to convert or continue in accordance therewith. In the event no Notice
of Conversion/Continuation is delivered as and when specified in this Section
5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the
expiration of the Eurodollar Interest Period applicable thereto, such Loans
shall automatically be converted to a Base Rate Loan.
(d) Default Interest. Notwithstanding the rates of interest specified
----------------
in Section 5.1(a) or elsewhere in this Agreement, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and other
Obligations shall bear interest at a rate equal to (A) in the case of any
Eurodollar Rate Loans out standing as of the date of occurrence of any Event of
Default, the sum of (x) the applicable Eurodollar Rate, plus (y) six percent
(6.0%) per annum, and (B) in the case of any Base Rate Loan (including any
Eurodollar Loan that is converted to a Base Rate Loan at maturity) the sum of
(x) the Base Rate, as in effect from time to time as interest accrues, plus (y)
five percent (5.0%) per annum.
(e) Computation of Interest. Interest on all Obligations shall be
-----------------------
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; provided, however, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan.
(f) Eurodollar Rate Information. Upon the request of the Borrower, the
---------------------------
Administrative Agent shall promptly provide to the Borrower such information
with respect to the applicable Eurodollar Rate as may be so requested.
5.2. Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall
-------------------------------
be in a minimum principal amount of $3,000,000 and in integral multiples of
$500,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving notice as
-------------------------------------------
set forth in Section 2.1(b) (with respect to a Borrowing of Eurodollar Rate
Loans), or Section 5.1(c) (with respect to a conversion into or continuation of
Eurodollar Rate Loans), the Borrower shall have the option, subject to the other
provisions of this Section 5.2, to select an interest period (each, a
"Eurodollar Interest Period") to apply to the Loans described in such notice,
subject to the following provisions:
(i) The Borrower may only select, as to a particular Borrowing of
Eurodollar Rate Loans, a Eurodollar Interest Period of one month in
duration;
(ii) Intentionally Omitted;
(iii) In the case of immediately successive Eurodollar Interest
Periods applicable to a Borrowing of Eurodollar Rate Loans, each
successive Eurodollar Interest Period shall commence on the day on which
the next preceding Eurodollar Interest Period expires;
(iv) If any Eurodollar Interest Period would otherwise expire on a day
which is not a Business Day, such Eurodollar Interest Period shall be ex
tended to expire on the next succeeding Business Day if the next succeeding
Business Day occurs in the same calendar month, and if there will be no
succeeding Business Day in such calendar month, the Eurodollar Interest
Period shall expire on the immediately preceding Business Day;
(v) The Borrower may not select a Eurodollar Interest Period as to any
Loan if such Eurodollar Interest Period terminates later than the
Termination Date; and
(vi) The Borrower may not select a Eurodollar Interest Period with
respect to any portion of principal of a Loan which extends beyond a date
on which the Borrower is required to make a scheduled payment of such
portion of principal of which the Borrower is aware on the date of such
request, in the case of a payment pursuant to Section 4.1(d) hereof.
(c) Determination of Eurodollar Interest Rate. As soon as practicable
-----------------------------------------
on the second Business Day prior to the first day of each Eurodollar Interest
Period (the "Eurodollar Interest Rate Determination Date"), the Administrative
Agent shall determine (pursuant to the procedures set forth in the definition of
"Eurodollar Rate") the interest rate which shall apply to the Eurodollar Rate
Loans for which an interest rate is then being determined for the applicable
Eurodollar Interest Period and shall promptly give notice thereof (in writing
or by telephone or by facsimile confirmed in writing) to the Borrower and to
each Lender. The Administrative Agent's determination shall be presumed to be
correct, absent manifest error, and shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In the event
---------------------------------------------------
that at least one (1) Business Day before the Eurodollar Interest Rate
Determination Date:
(i) the Administrative Agent is advised by the Reference Bank that
deposits in Dollars (in the applicable amounts) are not being offered by
the Reference Bank in the London interbank market for such Eurodollar
Interest Period; or
(ii) the Administrative Agent determines that adequate and fair means
do not exist for ascertaining the applicable interest rates by reference
to which the Eurodollar Rate then being determined is to be fixed; or
(iii) the Requisite Lenders advise the Administrative Agent that the
Eurodollar Rate for Eurodollar Rate Loans comprising such Borrowing will
not adequately reflect the cost to such Requisite Lenders of obtaining
funds in Dollars in the London interbank market in the amount substantially
equal to such Lenders' Eurodollar Rate Loans in Dollars and for a period
equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon (until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist) the right of
the Borrower to elect to have Loans bear interest based upon the Eurodollar Rate
shall be suspended and each outstanding Eurodollar Rate Loan shall be converted
into a Base Rate Loan on the last day of the then current Eurodollar Interest
Period therefor, notwithstanding any prior election by the Borrower to the
contrary.
(e) Illegality. (i) If at any time any Lender determines (which
----------
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurodollar Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Govern mental Authority (whether
or not having the force of law and whether or not failure to comply therewith
would be unlawful or would result in costs or penalties), then, and in any such
event, such Lender may give notice of that determination, in writing, to the
Borrower and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i), (A) the
Borrower's right to request from such Lender and such Lender's obligation, if
any, to make Eurodollar Rate Loans to the Borrower shall be immediately
suspended, and such Lender shall make a Base Rate Loan as part of any requested
Borrowing of Eurodollar Rate Loans and (B) if the affected Eurodollar Rate Loan
or Loans are then outstanding, the Borrower shall immediately, or if permitted
by applicable law, no later than the date permitted thereby, upon at least one
(1) Business Day's prior written notice to the Administrative Agent and the
affected Lender, convert each such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate
Loans, such Lender shall promptly give notice of that determination, in writing,
to the Borrower and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender. The Borrower's right to
request, and such Lender's obligation, if any, to make Eurodollar Rate Loans to
the Borrower shall thereupon be restored.
(f) Compensation. In addition to all amounts required to be paid by
------------
the Borrower, as the case may be, pursuant to Section 5.1 and Article XIII, the
Borrower shall compensate each Lender, upon demand, for all losses, expenses and
liabilities (including, without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Lender's Eurodollar Rate Loans to the
Borrower but excluding any loss of Applicable Margin on the relevant Loans)
which that Lender may sustain (i) if for any reason a Borrowing, conversion into
or continuation of Eurodollar Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or a Notice of Conversion/Continuation given
by the Borrower or in a telephonic request by it for borrowing or
conversion/continuation or a successive Eurodollar Interest Period does not
commence after notice therefor is given pursuant to Section 5.1(c), other than
pursuant to Sections 5.2(d) or (e), or (ii) if for any reason any Eurodollar
Rate Loan is prepaid (other than pursuant to Section 4.1(d) or Section 5.2(d) or
(e)) on a date which is not the last day of the applicable Eurodollar Interest
Period or (iii) as a consequence of any failure by the Borrower to repay a
Eurodollar Rate Loan when required by the terms of this Agreement. The Lender
making demand for such compensation shall deliver to the Borrower concurrently
with such demand a written statement in reasonable detail as to such losses,
expenses and liabilities, and this statement shall be conclusive as to the
amount of compensation due to that Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
--------------------------------
transfer Eurodollar Rate Loans at, to, or for the account of, its Eurodollar
Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No
Lender shall be entitled, however, to receive any greater amount under Sections
4.2 or 5.2(f) or Article XIII as a result of the transfer of any such Eurodollar
Rate Loan to any office (other than such Eurodollar Lending Office) or any
Affiliate (other than such Eurodollar Affiliate) than such Lender would have
been entitled to receive immediately prior thereto, unless (i) the transfer
occurred at a time when circumstances giving rise to the claim for such greater
amount did not exist and (ii) such claim would have arisen even if such transfer
had not occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other
------------------------
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take into
------------------------
account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by such Lender of its right to collect such amount for
any future period.
(j) Application of Mandatory Prepayments. The principal amount of any
------------------------------------
mandatory prepayment pursuant to Section 4.1(d) hereof, shall be applied, first,
to the out standing Base Rate Loans and then, to the outstanding Eurodollar
Rate Loans. The Administrative Agent shall hold such principal amounts allocated
for prepayment of Eurodollar Rate Loans until the end of the applicable
Eurodollar Interest Period(s) and, during the interim period, shall invest said
sums in Cash Equivalents. Interest earned thereon shall be forwarded to the
Borrower upon the payment of the Eurodollar Rate Loans at the end of said
Eurodollar Interest Period.
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Loans. The obligation of each Lender
---------------------------------
on the Funding Date to make any Loan requested to be made by it, shall be
subject to the satisfaction of all of the following conditions precedent:
(a) Documents. The Administrative Agent shall have received on or
---------
before the Funding Date all of the following:
(i) this Agreement, the Notes, the Guaranty, and, to the extent not
otherwise specifically referenced in this Section 6.1(a), all other Loan
Documents and agreements, documents and instruments described in the List
of Closing Documents attached hereto as EXHIBIT E and made a part hereof,
each duly executed, and in form and substance satisfactory to the Agents;
without limiting the foregoing, the Borrower hereby directs its counsel,
▇▇▇▇▇ & ▇▇▇▇ LLP to prepare and deliver to the Agents, the Lenders, and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP the legal opinions referred to in
such List of Closing Documents; and
(ii) such additional documentation as the Agents may reasonably
request.
(b) No Legal Impediments. No law, regulation, order, judgment or
--------------------
decree of any Governmental Authority shall, and the Administrative Agent shall
not have received any notice that litigation is pending or threatened which is
likely to (i) enjoin, prohibit or restrain the making of the Loans on the
Funding Date or (ii) impose or result in the imposition of a Material Adverse
Effect.
(c) No Change in Condition. No change in the business, assets,
----------------------
management, operations, financial condition or prospects of the Borrower or any
of its Properties shall have occurred since December 31, 1998 which change, in
the judgment of the Administrative Agent, will have a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the
------------------------------
Arranger and the Lenders, since December 31, 1998, neither the Borrower nor the
Company shall have (i) entered into any (as determined in good faith by the
Administrative Agent) commitment or transaction, including, without limitation,
transactions for borrowings and capital expenditures, which are not in the
ordinary course of the Borrower's business, (ii) declared or paid any dividends
or other distributions other than in the ordinary course of business, (iii)
established compensation or employee benefit plans, or (iv) redeemed or issued
any equity Securities, other than those described on SCHEDULE 6.1(D) hereto.
(e) No Loss of Material Agreements and Licenses. Since December 31,
-------------------------------------------
1998, no agreement or license relating to the business, operations or employee
relations of the Borrower or any of its Real Properties shall have been
terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent, would result in a Material
Adverse Effect.
(f) No Market Changes. Since the Closing Date no material adverse
-----------------
change shall have occurred in the conditions in the capital markets.
(g) No Default. No Event of Default or Potential Event of Default
----------
shall have occurred and be continuing or would result from the making of the
Loans.
(h) Representations and Warranties. All of the representations and
------------------------------
warranties contained in Section 7.1 and in any of the other Loan Documents shall
be true and correct in all material respects on and as of the Funding Date.
(i) Acquisition of Tower Realty Trust. All conditions precedent to
---------------------------------
the Mergers shall have been satisfied or will be satisfied simultaneously with
the making of the Loans on the Funding Date.
(j) Take-Out Application. The Borrower shall have delivered to the
--------------------
Administrative Agent a copy of an application, executed by the Borrower, to an
institutional lender for long-term financing, the proceeds of which shall be
used to repay in part the Loans.
(k) Fees and Expenses Paid. There shall have been paid to the
----------------------
Administrative Agent, for the accounts of the Agents and the other Lenders, as
applicable, all fees due and payable on or before the Funding Date and all
expenses due and payable on or before the Funding Date, including, without
limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
(l) Compliance Certificate. Borrower shall have delivered to the
----------------------
Administrative Agent a Quarterly Compliance Certificate demonstrating compliance
with the covenants and financial ratios set forth in Sections 9.9, 9.11, 10.1,
10.3, 10.6, 10.7, 10.11 and 10.12 hereof.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower. In order to
----------------------------------------------
induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower, the Borrower hereby represents
and warrants to each Lender that the following statements are true, correct and
complete:
(a) Organization; Powers. (i) The Borrower (A) is a limited
--------------------
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, (B) is duly qualified to do business and is in good
standing under the laws of each jurisdiction in which failure to be so qualified
and in good standing will have a Material Adverse Effect, (C) has all requisite
partnership power and authority to own, operate and encumber its Property and to
conduct its business as presently conducted and as proposed to be conducted in
connection with and following the consummation of the transactions contemplated
by this Agreement, and (D) is a partner ship for federal income tax purposes.
(ii) The Company (A) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(B) is duly authorized and qualified to do business and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and in
good standing will have a Material Adverse Effect, and (C) has all requisite
corporate, limited liability company or partnership power and authority to own,
operate and encumber its Property and to conduct its business as presently
conducted.
(iii) True, correct and complete copies of the Organizational
Documents of the Borrower and the Company identified on SCHEDULE 7.1-A have been
delivered to the Administrative Agent, each of which is in full force and
effect, has not been modified or amended except to the extent set forth therein
or as otherwise permitted hereby and, to the best of the Borrower's knowledge,
there are no defaults under such Organizational Documents and no events which,
with the passage of time or giving of notice or both, would constitute a default
under such Organizational Documents. Borrower shall update SCHEDULE 7.1-A from
time to time in order to keep said Schedule true and correct.
(iv) Neither the Borrower nor the Company are "foreign persons"
within the meaning of Section 1445 of the Internal Revenue Code.
(b) Authority. (i) The Company has the requisite power and authority
---------
to execute and deliver this Agreement on behalf of the Borrower and each of the
other Loan Documents which are required to be executed on behalf of the Borrower
as required by this Agreement. The Company is the Person who has executed this
Agreement and such other Loan Documents on behalf of the Borrower and is the
sole general partner of the Borrower.
(ii) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership powers,
have been duly authorized by all necessary partnership action (and, in the case
of the Company acting on behalf of the Borrower in connection therewith, all
necessary limited liability company action of the Company) and such
authorization has not been rescinded. No other partnership or limited liability
company action or proceedings on the part of the Borrower or the Company is
necessary to consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower is a party has
been duly executed and delivered on behalf of the Borrower and constitutes the
Borrower's legal, valid and binding obligation, enforceable against the Borrower
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity regardless of
whether enforcement is considered in a proceeding at law or in equity. Each of
the Loan Documents to which Borrower is a party is in full force and effect and
all the terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by the Company and the Borrower on or
before the Funding Date have been performed or complied with, and no Potential
Event of Default or Event of Default exists hereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership
--------------------------------------------------------
Interests. (i) SCHEDULE 7.1-C (A) contains a diagram indicating the corporate
---------
structure of the Company, the Borrower, and, after giving effect to the Mergers,
any other Person in which the Company or the Borrower holds a direct or indirect
partnership, joint venture or other equity interest indicating the nature of
such interest with respect to each Person included in such diagram; and (B)
accurately sets forth (1) the correct legal name of such Person, the
jurisdiction of its incorporation or organization and the jurisdictions in which
it is qualified to transact business as a foreign corporation, or otherwise,
and (2) the authorized, issued and outstanding shares or interests of each class
of equity Securities of the Company, the Borrower and, after giving effect to
the Mergers, the Subsidiaries of the Borrower and (3) the ownership interest of
the Borrower, the Company, and, after giving effect to the Mergers, the
Subsidiaries of the Borrower in all Minority Holdings. None of such issued and
outstanding Securities is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options (other than Permitted Securities
Options) outstanding with respect to such Securities, except as noted on
SCHEDULE 7.1-C. The out standing Securities of the Company is duly authorized,
validly issued, fully paid and nonassessable and the outstanding Securities of
the Borrower and their Subsidiaries are duly authorized and validly issued.
Attached hereto as part of SCHEDULE 7.1-C is a true, accurate and complete copy
of the Borrower Partnership Agreement as in effect on the Closing Date and such
Partnership Agreement has not been amended, supplemented, replaced, restated or
otherwise modified in any respect since the Closing Date, except as otherwise
permitted hereby. Borrower shall update SCHEDULE 7.1-C as of the first day of
each fiscal quarter, and shall deliver the same together with the Quarterly
Compliance Certificates, to the extent required, in order to keep said Schedule
true and correct.
(ii) Except where failure would not have a Material Adverse Effect on
the Borrower, after giving effect to the Mergers, each of its Subsidiaries: (A)
is a corporation, limited liability company or partnership, as indicated on
SCHEDULE 7.1-C, duly organized or formed, validly existing and, if applicable,
in good standing under the laws of the jurisdiction of its organization, (B) is
duly qualified to do business and, if applicable, is in good standing under the
laws of each jurisdiction in which failure to be so qualified and in good
standing would have a Material Adverse Effect, and (C) has all requisite power
and authority to own, operate and encumber its Property and to conduct its
business as presently conducted and as proposed to be conducted hereafter.
(iii) None of the Subsidiaries of the Borrower which are not
Guarantors has entered into any agreement or arrangement of any kind
prohibiting the payment of dividends or other distributions to the Borrower or
the Company.
(d) No Conflict. The execution, delivery and performance of each of
-----------
the Loan Documents to which the Borrower is a party do not and will not (i)
conflict with the Organizational Documents of the Borrower or the Company, as
the case may be, (ii) conflict with, result in a breach of or constitute (with
or without notice or lapse of time or both) a default under any Requirement of
Law or material Contractual Obligation of the Borrower or the Company, as the
case may be, or require termination of any such material Contractual Obligation
which would subject the Administrative Agent or any of the other Lenders to any
liability, (iii) result in or require the creation or imposition of any Lien
whatsoever upon any of the Property or assets of the Borrower or the Company, as
the case may be, or (iv) require any approval of members of the Company (other
than such approvals that have been obtained and are in full force and effect).
(e) Governmental Consents. The execution, delivery and performance of
---------------------
each of the Loan Documents to which the Borrower is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, except filings, consents or
notices which have been made, obtained or given.
(f) Governmental Regulation. None of the Borrower or the Company is
-----------------------
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Interstate Commerce Act, or the Investment Company Act of
1940, or any other federal or state statute or regulation which limits its
ability to incur indebtedness as contemplated by this Agreement.
(g) Financial Position. Complete and accurate copies of the following
------------------
financial statements and materials have been delivered to the Administrative
Agent: unaudited pro forma financial statements of the Company for the fiscal
year ended December 31, 1998. All annual financial statements of the Borrower
shall be accompanied by an Officer's Certificate of the Borrower, and shall be
certified by the Chief Financial Officer of the Borrower as complying as to form
in all respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and properly applying the pro forma adjustments to the historical
amounts, which have been fairly presented, in the compilation of such
statements. All financial statements included in such materials were prepared in
all material respects in conformity with GAAP, except as otherwise noted
therein, and comply with the applicable accounting requirements of Rule 11-02
of Regulation S-X and properly apply the pro forma adjustments to the historical
amounts, which have been fairly presented, in the compilation of such
statements. Neither the Borrower nor the Company has any Contingent Obligation,
contingent liability or liability for any taxes, long-term leases or
commitments, not reflected in its financial statements delivered to the
Administrative Agent on or prior to the Closing Date or otherwise disclosed to
the Administrative Agent and the Lenders in writing on or prior to the Closing
Date, which will have a Material Adverse Effect.
(h) Indebtedness. SCHEDULE 7.1-H sets forth, as of the Closing Date,
------------
after giving effect to the Mergers, all Indebtedness for borrowed money (other
than the Obligations) of each of the Borrower, the Company, and their respective
Subsidiaries, and, except as set forth on SCHEDULE 7.1-H, there are no defaults
in the payment of principal or interest on any such Indebtedness and no payments
thereunder have been deferred or extended beyond their stated maturity and there
has been no material change in the type or amount of such Indebtedness (except
for the repayment of certain Indebtedness) since the Closing Date.
(i) Litigation; Adverse Effects. Except as set forth in SCHEDULE
---------------------------
7.1-I, as of the Closing Date, there is no action, suit, proceeding,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Company, the Borrower, or any of their respective Subsidiaries, or any Property
of any of them (i) challenging the validity or the enforceability of any of the
Loan Documents, (ii) which could reasonably be expected to result in any
Material Adverse Effect, or (iii) under the Racketeering Influenced and Corrupt
Organizations Act or any similar federal or state statute where such Person is a
defendant in a criminal indictment that provides for the forfeiture of assets
to any Govern mental Authority as a potential criminal penalty. There is no
material loss contingency within the meaning of GAAP which has not been
reflected in the consolidated financial statements of the Company and the
Borrower. None of the Company, the Borrower, or, to the best of the Borrower's
knowledge, any Subsidiary of the Borrower is (A) in violation of any applicable
Requirements of Law which violation will have or is reasonably likely to have a
Material Adverse Effect, or (B) in default with respect to any final judgment,
writ, injunction, re straining order or order of any nature, decree, rule or
regulation of any court or Governmental Authority which will have a Material
Adverse Effect.
(j) No Material Adverse Effect. Since December 31, 1998, there has
--------------------------
occurred no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
---------------------
(l) Payment of Taxes. All material tax returns, reports and similar
----------------
statements or, to the best of the Borrower's and the Company's knowledge,
filings of the Company, the Borrower, and their respective Subsidiaries required
to be filed have been timely filed (or extensions to file have been obtained),
and, except for Customary Permitted Liens, all material taxes, assessments, fees
and other charges of Govern mental Authorities thereupon and upon or relating to
their respective Properties, assets, receipts, sales, use, payroll, employment,
income, licenses and franchises which are shown in such returns or reports to be
due and payable have been paid, except to the extent (i) such taxes,
assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued as
permitted by the terms of Section 9.4 and (ii) such taxes, assessments, fees and
other charges of Governmental Authorities pertain to Property of the Borrower
or any of its Subsidiaries and the non-payment of the amounts thereof would
not, individually or in the aggregate, result in a Material Adverse Effect. All
other material taxes (including, without limitation, real estate taxes),
assessments, fees and other governmental charges upon or relating to the
respective Properties of the Borrower and, to the best of the Borrower's
knowledge, its Subsidiaries which are due and payable have been paid, except for
Customary Permitted Liens and except to the extent described in clauses (i) and
(ii) hereinabove. The Borrower has no knowledge of any proposed tax assessment
against the Borrower, any of its Subsidiaries, or any of the Projects that will
have or is reasonably likely to have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower, neither the
-----------
Company, nor any of its Subsidiaries has received any written notice or
citation, nor has actual knowledge, that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any
condition exists which, with the giving of notice or the lapse of time or both,
would constitute a default with respect to any such Contractual Obligation, in
each case, except where such default or defaults, if any, will not have a
Material Adverse Effect.
(n) Disclosure. The representations and warranties of the Borrower
----------
contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained herein or therein, in
light of the circumstances under which they were made, taken as a whole, not
misleading. Notwithstanding the foregoing, the Lenders acknowledge that the
Borrower shall not have liability under this clause (n) with respect to its
projections of future events or for any financial projections.
(o) Requirements of Law. The Borrower, the Company and, to the best of
-------------------
the Borrower's and the Company's knowledge, each of their respective
Subsidiaries is in compliance with all Requirements of Law applicable to it and
its respective businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have a Material Adverse Effect.
(p) Environmental Matters.
---------------------
(i) Except as disclosed on SCHEDULE 7.1-P (the Borrower shall
update SCHEDULE 7.1-P as of the first day of each fiscal quarter, and deliver
the same together with the Quarterly Compliance Certificates, to the extent
required, in order to keep said Schedule true and correct):
(A) the operations of the Borrower, to the best of the
Borrower's knowledge, its Subsidiaries, and its Properties comply with all
applicable Environmental, Health or Safety Requirements of Law, except to the
extent any failure to do so would not have a Material Adverse Effect;
(B) the Borrower and, to the best of the Borrower's
knowledge, its Subsidiaries have obtained all material environmental, health and
safety Permits necessary for their respective operations, and all such Permits
are in good standing and the holder of each such Permit is currently in
compliance with all terms and conditions of such Permits, except to the extent
any failure to do so would not have a Material Adverse Effect;
(C) to the knowledge of the Borrower none of the Borrower,
or any of its Subsidiaries or any of their respective present or past Property
or operations are subject to or are the subject of any investigation of any
Governmental Authority, judicial or administrative proceeding, order, judgment
or decree, negotiations, agreement or settlement respecting (I) any Remedial
Action, (II) any Claims or Liabilities and Costs arising from the Release or
threatened Release of a Contaminant into the environment, or (III) any violation
of or liability under any Environmental, Health or Safety Requirement of Law,
except to the extent none of the foregoing would have a Material Adverse Effect;
(D) none of Borrower or, to the best of the Borrower's
knowledge, any of its Subsidiaries has filed any notice under any applicable
Requirement of Law (I) re porting a Release of a Contaminant; (II) indicating
past or present treatment, storage or disposal of a hazardous waste, as that
term is defined under 40 C.F.R. Part 261 or any state equivalent; or (III)
reporting a violation of any applicable Environmental, Health or Safety
Requirement of Law with respect to any of the foregoing, the substance of which
would have a Material Adverse Effect;
(E) none of the Borrower's or, to the best of the Borrower's
knowledge, any of its Subsidiaries' present or past Property is listed or, to
the knowledge of the Borrower, proposed for listing on the National Priorities
List ("NPL") pursuant to CERCLA or on the Comprehensive Environmental Response
Compensation Liability Information System List ("CERCLIS") or any similar state
list of sites requiring Remedial Action;
(F) to the knowledge of the Borrower none of the Borrower or
any of its Subsidiaries has sent or directly arranged for the transport of any
waste to any site listed or proposed for listing on the NPL, CERCLIS or any
similar state list;
(G) to the best of the Borrower's knowledge, there is not
now, and to the Borrower's knowledge there has never been on or in any Project,
(I) any treatment, recycling, storage away from the site of generation or
disposal of any hazardous waste, as that term is defined under 40 C.F.R. Part
261 or any state equivalent, (II) any solid waste management facility, (III)
any underground storage tanks the presence or use of which is in violation of
applicable Environmental, Health or Safety Requirements of Law, (IV) any
asbestos-containing material which, in its present state, such Person has any
reason to believe could subject such Person or its Property to Liabilities and
Costs arising out of or relating to environmental, health or safety matters
that would result in a Material Adverse Effect; or (V) any polychlorinated
biphenyls (PCB) used in hydraulic oils, electrical transformers or other
Equipment, which, in any such case, would subject the Borrower or its Property
to Liabilities and Costs arising out of or relating to environmental, health or
safety matters that would result in a Material Adverse Effect;
(H) to the knowledge of the Borrower, neither the Borrower
nor any of its Subsidiaries has received any notice or Claim to the effect that
any of such Persons is or may be liable to any Person as a result of the Release
or threatened Release of a Contaminant into the environment which would result
in a Material Adverse Effect;
(I) neither the Borrower nor, to the best of the Borrower's
knowledge, any of its Subsidiaries has any contingent liability in connection
with any Release or threatened Release of any Contaminants into the environment
which will result in a Material Adverse Effect;
(J) no Environmental Lien has attached to any Property of
the Borrower or, to the best of the Borrower's knowledge, any of its
Subsidiaries (other than those otherwise permitted hereunder) or which do not
constitute an Event of Default; and
(K) no Property of the Borrower, or any of its Subsidiaries
is subject to any Environmental Property Transfer Act, or to the extent such
acts are applicable to any such Property, the Borrower and/or such Subsidiary
whose Property is subject thereto has complied in all material respects with the
requirements of such acts.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate maintains or
-----
contributes to any Benefit Plan or Multiemployer Plan other than those listed on
SCHEDULE 7.1-Q hereto. Each Plan which is intended to be qualified under Section
401(a) of the Internal Revenue Code as currently in effect has been determined
by the IRS to be so qualified, and each trust related to any such Plan has been
determined to be exempt from federal income tax under Section 501(a) of the
Internal Revenue Code as currently in effect. Except as disclosed in SCHEDULE
7.1-Q, neither the Borrower nor any of its Subsidiaries maintains or contributes
to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA
that provides benefits to employees after termination of employment other than
as required by Section 601 of ERISA. The Borrower and, to the best of the
Borrower's knowledge, each of its Subsidiaries is in compliance in all material
respects with the responsibilities, obligations and duties imposed on it by
ERISA, the Internal Revenue Code and regulations promulgated thereunder with
respect to all Plans. No Benefit Plan has incurred any accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Internal
Revenue Code) whether or not waived. Neither the Borrower nor any ERISA
Affiliate nor any fiduciary of any Plan which is not a Multiemployer Plan (i)
has engaged in a nonexempt prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code or (ii) has taken or failed to take
any action which would constitute or result in a Termination Event. Neither the
Borrower nor any ERISA Affiliate is subject to any liability under Sections
4063, 4064, or 4204 of ERISA which would have a Material Adverse Effect. Neither
the Borrower nor any ERISA Affiliate is subject to any liability under Sections
4069 or 4212(c) of ERISA or has incurred any liability to the PBGC which remains
outstanding other than the payment of premiums, and there are no premium
payments which have become due which are unpaid. Schedule B to the most recent
annual report filed with the IRS with respect to each Benefit Plan has been
furnished to the Administrative Agent and is complete and accurate in all
material respects. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the
Benefit Plan relating to such Schedule B. Neither the Borrower nor any ERISA
Affiliate has (i) failed to make a required contribution or payment to a
Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan which would have a Material
Adverse Effect. Neither the Borrower, nor any ERISA Affiliate has failed to make
a required installment or any other required payment under Section 412 of the
Internal Revenue Code on or before the due date for such installment or other
payment. Neither the Borrower nor any ERISA Affiliate is required to provide
security to a Benefit Plan under Section 401(a)(29) of the Internal Revenue Code
due to a Benefit Plan amendment that results in an increase in current liability
for the plan year. Except as disclosed on SCHEDULE 7.1-Q, which shall be updated
by Borrower as of the first day of each fiscal quarter, to the extent required,
neither the Borrower nor any of its Subsidiaries has, by reason of the
transactions contemplated hereby, any obligation to make any payment to any
employee pursuant to any Plan or existing contract or arrangement.
(r) Securities Activities. The Borrower is not engaged in the business
---------------------
of extending credit for the purpose of purchasing or carrying Margin Stock
except as described on SCHEDULE 7.1-R.
(s) Solvency. After giving effect to the Loans to be made on the
--------
Funding Date or such other date as Loans requested hereunder are made, and the
disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, the Borrower is Solvent.
(t) Insurance. SCHEDULE 7.1-T accurately sets forth as of the Closing
---------
Date all insurance policies and pro grams currently in effect with respect to
the respective Property and assets and business of the Borrower and, after
giving effect to the Mergers, its Subsidiaries, specifying for each such policy
and program, (i) the amount thereof, (ii) the risks insured against thereby,
(iii) the name of the insurer and each insured party thereunder, (iv) the policy
or other identification number thereof, and (v) the expiration date thereof. The
Borrower has delivered to the Administrative Agent copies of all insurance
policies set forth on SCHEDULE 7.1-T. Such insurance policies and programs are
currently in full force and effect, in compliance with the requirements of
Section 9.5 hereof and, together with payment by the insured of scheduled
deductible payments, are, to the knowledge of the Borrower, in amounts which
should reasonably be expected to be sufficient to cover the replacement value of
the respective Property and assets of the Borrower and/or its Subsidiaries.
(u) Projects. After giving effect to the Mergers, and except as
--------
otherwise described on SCHEDULE 7.1-U, the Borrower owns 100% fee simple title
to each of the Projects and, with the exception of Tower 45, 810 Seventh Avenue,
One Orlando Center, Deer Valley Phase I and Corporate Center, no such Project is
encumbered by any Indebtedness.
(v) Ownership of Projects and Property. After giving effect to the
----------------------------------
Mergers, ownership of all wholly owned Projects, Minority Holdings and other
Property of the Consolidated Businesses is held by the Borrower and its
Subsidiaries and is not held directly by the Company.
(w) Year 2000 Compliance. The Borrower has commenced a comprehensive
--------------------
review and assessment of the Borrower's computer applications and has commenced
inquiry of the Borrower's key suppliers, vendors and customers with respect to
the "year 2000 problem" (that is, the risk that computer applications may not be
able to properly perform date sensitive functions after December 31, 1999) and,
based on that review and inquiry, the Borrower does not believe the year 2000
problem could reasonably be expected to result in a Material Adverse Effect.
The Borrower will complete such review, assessment and inquiry on or before July
31, 1999.
(x) Representations and Warranties of Mortgagor. Mortgagor, by
-------------------------------------------
execution of this Agreement, hereby represents and warrants to Lenders all
matters set forth herein that have been represented by Borrower with respect to
the Mortgagor as its warranties and representations.
ARTICLE VIII
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 14.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent thereto:
8.1. Borrower Accounting Practices. The Borrower shall maintain, and
-----------------------------
cause each of its consolidated Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in conformity with GAAP.
8.2. Financial Reports. The Borrower shall deliver or cause to be
-----------------
delivered to the Administrative Agent (with copies for each of the Lenders):
(a) Quarterly Reports.
(i) Borrower Quarterly Financial Reports. As soon as practicable, and
------------------------------------
in any event within forty-five (45) days after the end of each fiscal quarter in
each Fiscal Year commencing June 30, 1999 (other than the last fiscal quarter in
each Fiscal Year), a consolidated balance sheet of the Borrower and the related
consolidated statements of income and cash flow of the Borrower (to be prepared
and delivered quarterly in conjunction with the other reports delivered
hereunder at the end of each fiscal quarter) for each such fiscal quarter,
certified by an Authorized Financial Officer of the Borrower as fairly
presenting in all material respects the consolidated financial position of the
Borrower as of the dates indicated and the results of their operations and cash
flow for the months indicated in accordance with GAAP, subject to normal
quarterly adjustments.
(ii) Company Quarterly Financial Reports. As soon as practicable, and
-----------------------------------
in any event within forty-five (45) days after the end of each fiscal quarter
commencing June 30, 1999 in each Fiscal Year (other than the last fiscal quarter
in each Fiscal Year), the Financial Statements of the Company and its
consolidated Subsidiaries at the end of such period, certified by an Authorized
Financial Officer of the Company as fairly presenting in all material respects
the consolidated financial position of the Company and its consolidated
Subsidiaries as at the date indicated and the results of their operations and
cash flow for the period indicated in accordance with GAAP, subject to normal
adjustments.
(iii) Quarterly Compliance Certificates. Together with each delivery
---------------------------------
of any quarterly report pursuant to paragraph (a)(i) of this Section 8.2, the
Borrower, shall deliver Officer's Certificates of the Borrower and the Company
(the "Quarterly Compliance Certificates"), signed by the Borrower's and the
Company's respective Authorized Financial Officers representing and certifying
(1) that the Authorized Financial Officer signatory thereto has reviewed the
terms of the Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its Consolidated Subsidiaries, for the fiscal
quarter covered by such reports, that such review has not disclosed the
existence during or at the end of such fiscal quarter, and that such officer
does not have knowledge of the existence as at the date of such Officer's
Certificate, of an Event of Default or Potential Event of Default or mandatory
prepayment event, or, if any such condition or event existed or exists, the
nature and period of existence thereof and what action the Company and/or the
Borrower or any of their Subsidiaries has taken, is taking and proposes to take
with respect thereto; (2) the calculations in the form of Exhibit G hereto for
the period then ended which demonstrate compliance with the covenants and
financial ratios set forth in Sections 9.9, 9.11, 10.1, 10.3, 10.6, 10.7, 10.11,
and 10.12 hereof and, when applicable, that no Event of Default described in
Section 11.1 exists, (3) a schedule of the Borrower's outstanding Indebtedness,
including the amount, maturity, interest rate and amortization requirements, as
well as such other information regarding such Indebtedness as may be reasonably
requested by the Administrative Agent, (4) a schedule of NOI for each Real
Property and (5) a schedule of Projects in which Borrower owns, directly or
indirectly, 100% fee simple in the form of SCHEDULE B hereto.
(b) Annual Reports.
--------------
(i) Borrower Financial Statements. As soon as practicable, and in any
-----------------------------
event within ninety (90) days after the end of each Fiscal Year, the Financial
Statements of the Borrower and its consolidated Subsidiaries as at the end of
such Fiscal Year, accompanied by an Officer's Certificate of the Borrower,
certified by the Chief Financial Officer of the Borrower that the Financial
Statements fairly present in all material respects the consolidated financial
position of the Borrower and its consolidated Subsidiaries as of the dates
indicated and the results of their operations and cash flow for the periods
indicated in conformity with GAAP consistently applied, and which Officer's
Certificate shall explain any inconsistencies between the Financial Statements
of the Borrower and the Financial Statements of the Company.
(ii) Company Financial Statements. As soon as practicable, and in any
----------------------------
event within ninety (90) days after the end of each Fiscal Year, (i) the
Financial Statements of the Company and its consolidated Subsidiaries as at the
end of such Fiscal Year and a report setting forth in comparative form the
corresponding figures from the consolidated Financial Statements of the Company
and its Subsidiaries for the prior Fiscal Year; (ii) a report with respect
thereto of Ernst & Young LLP or other independent certified public accountants
acceptable to the Administrative Agent (it being understood that any "Big Five"
certified public accountants are accept able to the Administrative Agent), which
report shall be unqualified and shall state that such financial statements
fairly present the consolidated financial position of each of the Company and
its consolidated Subsidiaries as at the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP
(except for changes with which Ernst & Young LLP or any such other independent
certified public accountants, if applicable, shall concur and which shall have
been disclosed in the notes to the financial statements) (which report shall be
subject to the confidentiality limitations set forth herein); and (iii) in the
event that the report referred to in clause (ii) above is qualified, a copy of
the management letter or any similar report delivered to the Company or to any
officer or employee thereof by such independent certified public accountants in
connection with such financial statements. The Administrative Agent and each
Lender (through the Administrative Agent) may, with the consent of the Company
(which consent shall not be unreasonably withheld), communicate directly with
such accountants, with any such communication to occur together with a
representative of the Company, at the expense of the Administrative Agent (or
the Lender requesting such communication), upon reasonable notice and at
reasonable times during normal business hours.
(iii) Annual Compliance Certificates. Together with each delivery of
------------------------------
any annual report pursuant to clauses (i) and (ii) of this Section 8.2(b), the
Borrower shall deliver an Officer's Certificates of the Borrower and the
Company (the "Annual Compliance Certificates" and, collectively with the
Quarterly Compliance Certificates, the "Compliance Certificates"), signed by
the Borrower's and the Company's respective Authorized Financial Officers,
representing and certifying (1) that the officer signatory thereto has reviewed
the terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the consolidated financial
condition of the Company and its consolidated Subsidiaries, for the accounting
period covered by such reports, that such review has not disclosed the existence
at the end of such accounting period, and that such officer does not have
knowledge of the existence as at the date of such Officer's Certificate, of an
Event of Default or Potential Event of Default or mandatory prepayment event,
or, if any such condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower or any of
their Subsidiaries has taken, is taking and proposes to take with respect
thereto; (2) the calculations in the form of Exhibit G hereto for the period
then ended which demonstrate compliance with the covenants and financial ratios
set forth in Sections 9.9, 9.11, 10.1, 10.3, 10.6, 10.7, 10.11, and 10.12 hereof
and, when applicable, that no Event of Default described in Section 11.1 exists,
(3) a schedule of the Borrower's outstanding Indebtedness including the amount,
maturity, interest rate and amortization requirements, as well as such other
information regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, (4) a schedule of NOI for each Real Property and (5) a
schedule of Projects in which Borrower owns, directly or indirectly, 100% fee
simple in the form of SCHEDULE B.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in any
-------------------------
event within ninety (90) days after the end of each Fiscal Year, the Borrower
shall deliver a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against any
tenant of any of the Projects, which tenant occupies three and one half percent
(3.5%) or more of the gross leasable area in the Projects in the aggregate. The
Borrower shall deliver to the Administrative Agent and the Lenders, immediately
upon the Borrower's learning thereof, of any bankruptcy proceedings filed by or
against, or the cessation of business or operations of, any tenant of any of
the Projects which tenant occupies three and one half percent (3.5%) or more of
the gross leasable area in the Projects in the aggregate.
(v) Property Reports. Simultaneously with the delivery of the
----------------
Compliance Certificates, a rent roll.
8.3. Events of Default. Promptly upon the Borrower obtaining knowledge
-----------------
(a) of any condition or event which constitutes an Event of Default or Potential
Event of Default; (b) that any Person has given any notice to the Borrower or
any Subsidiary of the Borrower or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section
11.1(e); or (c) or of any condition or event which has a Material Adverse
Effect, the Borrower shall deliver to the Administrative Agent (with copies for
each of the Lenders) an Officer's Certificate specifying (i) the nature and
period of existence of any such claimed default, Event of Default, Potential
Event of Default, condition or event, (ii) the notice given or action taken by
such Person in connection therewith, and (iii) what action the Borrower has
taken, is taking and proposes to take with respect thereto.
8.4. Lawsuits. (i) Promptly upon the Borrower's obtaining knowledge of
--------
the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries not previously disclosed pursuant to Section 7.1(i),
which action, suit, proceeding, governmental investigation or arbitration
exposes, or in the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general allegations or
circumstances which expose, in the Borrower's reasonable judgment, the Borrower
or any of its Subsidiaries to liability in an amount aggregating $1,000,000 or
more and is not covered by the Borrower's or such Subsidiary's insurance, the
Borrower shall give written notice thereof to the Administrative Agent (with
copies for each of the Lenders) and provide such other information as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; (ii) as soon as practicable and in any event
within forty-five (45) days after the end of each fiscal quarter of the
Borrower, the Borrower shall provide a written quarterly report to the
Administrative Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration in an amount equal to or in excess of $5,000,000 to the extent not
previously reported) against or affecting the Borrower or any of its
Subsidiaries or any Property of the Borrower or any of its Subsidiaries not
previously disclosed by the Borrower to the Administrative Agent and the
Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (iii) in addition to the requirements set
forth in clauses (i) and (ii) of this Section 8.4, the Borrower upon request of
the Administrative Agent or the Requisite Lenders shall promptly give writ ten
notice of the status of any action, suit, proceeding, governmental
investigation or arbitration covered by a report delivered pursuant to clause
(i) or (ii) above and provide such other information as may be reasonably
requested and available to it to enable each Lender and the Administrative Agent
and its counsel to evaluate such matters. Notwithstanding the foregoing, the
Borrower shall not be not required to disclose any information which is subject
to the attorney-client privilege.
8.5. Intentionally Omitted.
---------------------
8.6. ERISA Notices. The Borrower shall deliver or cause to be
-------------
delivered to the Administrative Agent (with copies for each of the Lenders), at
the Borrower's expense, the following information and notices as soon as
reasonably possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that a Termination Event has
occurred, a written statement of an Authorized Financial Officer of the
Borrower describing such Termination Event and the action, if any, which
the Borrower or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or threatened
by the IRS, DOL or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or has
reason to know that a non-exempt prohibited transaction (as defined in
Sections 406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred with respect to the Borrower, any ERISA Affiliate or any Plan, a
statement of an Authorized Financial Officer of the Borrower describing
such transaction with respect to the Borrower, any ERISA Affiliate or any
Plan and the action which the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the same
with the DOL, IRS or PBGC, copies of each annual report (Form 5500 series),
including Schedule B thereto, filed with respect to each Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the Borrower or
any ERISA Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan,
copies of each such report;
(e) within fifteen (15) Business Days after the filing of the same
with the IRS, a copy of each funding waiver request filed with respect to
any Benefit Plan and all written communications received by the Borrower or
any ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of any
material increase in the benefits of any existing Benefit Plan or
Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer Plan to
which the Borrower or any ERISA Affiliate to which the Borrower or any
ERISA Affiliate was not previously contributing, notification of such
increase, establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan, copies
of each such notice;
(h) within fifteen (15) Business Days after the Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Internal Revenue Code, copies of each such letter to the extent any of the
foregoing would have a Material Adverse Effect;
(i) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due
date for such installment or payment which failure has not been cured, a
notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that (i) a Multiemployer Plan has
been terminated, (ii) the administrator or plan sponsor of a Multiemployer
Plan intends to terminate a Multiemployer Plan, or (iii) the PBGC has
instituted or has given written notice that it will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan, notification
of such termination, intention to terminate, or institution of proceedings.
For purposes of this Section 8.6, the Borrower and any ERISA Affiliate shall be
deemed to know all facts known by the "Administrator" of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
8.7. Environmental Notices. The Borrower shall notify the
---------------------
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon any Officer of the Borrower responsible for the environmental matters at
any Property of the Borrower learning thereof, of any of the following (together
with any material documents and correspondence received or sent in connection
therewith):
(a) notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Contaminant into the environment, if such
liability would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is subject to
investigation by any Governmental Authority evaluating whether any Remedial
Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment which would have a Material Adverse
Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which
such Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of violation by the Borrower or any of its Subsidiaries of
any Environmental, Health or Safety Requirement of Law which violation
would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or administrative
proceeding alleging a violation by the Borrower or any of its Subsidiaries
of any Environmental, Health or Safety Requirement of Law, which would
result in a Material Adverse Effect; or
(f) any proposed acquisition of stock, assets, real estate, or leasing
of Property by the Borrower or any of its Subsidiaries that would subject
the Borrower or any of its Subsidiaries to environmental, health or safety
Liabilities and Costs which would result in a Material Adverse Effect.
8.8. Labor Matters. The Borrower shall notify the Administrative Agent
-------------
(with copies for each of the Lenders) in writing, promptly upon the Borrower's
learning thereof, of any labor dispute to which the Borrower or any of its
Subsidiaries is reasonably expected to become a party (including, without
limitation, any strikes, lockouts or other disputes relating to any Property of
such Persons' and other facilities) which would result in a Material Adverse
Effect.
8.9. Notices of Asset Sales and/or Acquisitions. The Borrower shall
------------------------------------------
deliver to the Administrative Agent and the Lenders written notice of each of
the following not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of assets, in a single
transaction or series of related transactions, (b) an acquisition of assets, in
a single transaction or series of related transactions within the two preceding
calendar quarter period, and (c) the grant of a Lien with respect to assets, in
a single transaction or series of related transactions, exclusive of the
granting of Liens on equipment which do not exceed $250,000 in the aggregate. In
addition, simultaneously with delivery of any such notice, the Borrower shall
deliver to the Administrative Agent a certificate of an Authorized Officer
certifying that Borrower is in compliance with this Agreement and the other Loan
Documents both on a historical basis and on a pro forma basis, exclusive of the
property sold, transferred and/or encumbered and inclusive of the property to be
acquired or the indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to
comply with the financial covenants set forth herein, proceeds of such
transaction (together with such additional amounts as may be required), in an
amount, as determined by the Administrative Agent, equal to that which would be
required to reduce the Obligations so that Borrower will be in compliance with
the covenants set forth herein upon the consummation of the contemplated
transaction, shall be applied to prepay the Obligations.
8.10. Notices of Minority Holdings. The Borrower shall deliver to the
----------------------------
Administrative Agent and the Lenders written notice of each of the following not
less than two (2) Business Days prior to the occurrence thereof: (a) the
acquisition of an interest in a Minority Holding in excess of $1,000,000, (b)
the investment of an amount in excess of $1,000,000 in a Minority Holding of
which the Administrative Agent and the Lenders have not previously received
notice, and (c) the sale of an interest in a Subsidiary that results in the same
becoming a Minority Holding. Simultaneously with the delivery of the Compliance
Certificates, the Borrower shall deliver to the Administrative Agent and the
Lenders written notice of the formation of any other Minority Holding.
8.11. Tenant Notifications. The Borrower shall promptly notify the
--------------------
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than three and one half percent (3.5%)
of the Borrower's share of consolidated minimum rent is attributable to such
tenant.
8.12. Other Reports. The Borrower shall deliver or cause to be
-------------
delivered to the Administrative Agent (with copies for each of the other
Lenders) copies of all financial statements and reports, if any, sent or made
available generally by the Company and/or the Borrower to its respective
Securities holders, including, without limitation, supplemental quarterly forms,
or (to the extent not otherwise provided hereunder), all press releases made
available generally by the Company and/or the Borrower or any of their
Subsidiaries to the public concerning material adverse developments in the
business of the Company, the Borrower or any such Subsidiary and all material
notifications received by the Company, the Borrower or their Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
8.13. SEC Filings. The Borrower shall deliver to the Administrative
-----------
Agent copies of any documents filed by Reckson with the SEC in connection with
the Borrower, the Company and/or their Consolidated Subsidiaries, as soon as
practicable after, and in any event within three (3) days of, such filing.
8.14. Capital Expenditure Summaries. As soon as practicable and in any
-----------------------------
event by February 15 of each calendar year, the Borrower shall deliver to the
Administrative Agent (i) an annual summary of any and all capital expenditures
made at each of the Projects during the prior Fiscal Year and (ii) a budget for
all Capital Expenditures proposed for each Project for the current Fiscal Year,
on a property-by-property basis.
8.15. Other Information. Promptly upon receiving a request therefor
-----------------
from the Administrative Agent or any Arranger, the Borrower shall prepare and
deliver to the Administrative Agent (with copies for each of the other Lenders)
such other information with respect to the Company, the Borrower or any of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent or the Arranger.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 14.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent:
9.1. Existence, Etc. The Borrower shall, and shall cause each of its
---------------
Subsidiaries to, at all times maintain its corporate existence or existence as a
limited partnership, limited liability company or joint venture, as applicable,
and preserve and keep, or cause to be preserved and kept, in full force and
effect its rights and franchises material to its businesses, except where the
loss or termination of such rights and franchises will not have a Material
Adverse Effect.
9.2. Powers; Conduct of Business. The Borrower shall remain qualified,
---------------------------
and shall cause each of its Subsidiaries to qualify and remain qualified, to do
business and maintain its good standing in each jurisdiction in which the nature
of its business and the ownership of its Property requires it to be so qualified
and in good standing if the failure to do so will have a Material Adverse
Effect.
9.3. Compliance with Laws, Etc. The Borrower shall, and shall cause
--------------------------
each of its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, Property or
operations of such Person, and (b) obtain and maintain as needed all Permits
necessary for its operations (including, without limitation, the operation of
the Projects) and maintain such Permits in good standing, except where
noncompliance with either clause (a) or (b) above will not have a Material Ad
verse Effect.
9.4. Payment of Taxes and Claims. (a) The Borrower shall pay, and
---------------------------
cause each of its Subsidiaries to pay, (i) all material taxes, assessments and
other governmental charges imposed upon it or on any of its Property or assets
or in respect of any of its franchises, licenses, receipts, sales, use, payroll,
employment, business, income or Property before any penalty or interest accrues
thereon, and (ii) all material Claims (including, without limitation, claims for
labor, services, materials and supplies) for sums which have become due and
payable and which by law have or may become a Lien (other than Customary
Permitted Lien for property taxes and assessments not yet due upon any of the
Borrower's or any of its Subsidiaries' Property, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided, however, that
no such taxes, assessments, fees and governmental charges referred to in clause
(i) above or Claims referred to in clause (ii) above need be paid if being
contested in good faith by appropriate proceedings diligently instituted and
conducted and if such reserve or other appropriate provision, if any, as shall
be required in conformity with GAAP shall have been made therefor.
9.5. Insurance. The Borrower shall maintain for itself and its
---------
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on SCHEDULE 7.1-T or
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Administrative Agent. All such policies and
programs shall be maintained with insurers having an ▇▇▇▇▇▇ ▇. Best Company,
Inc. rating of "A" or better and a financial size category of not less than IX.
9.6. Inspection of Property; Books and Records; Discussions. The
------------------------------------------------------
Borrower shall permit, and cause each of its Subsidiaries and the Company to
permit, any authorized representative(s) designated by the Administrative
Agent, the Arranger or any other Lender to visit and inspect any of the
Projects, to examine, audit, and check their respective financial and
accounting records, books, journals, orders, receipts and any correspondence and
other data relating to their respective businesses or the transactions
contemplated hereby (including, without limitation, in connection with
environmental compliance, hazard or liability), and to discuss their affairs,
finances and accounts with their officers and independent certified public
accountants, upon reasonable notice and at such reasonable times during normal
business hours, as often as may be reasonably requested. Each such visitation
and inspection shall be at such visitor's expense. The Borrower shall keep and
maintain, and cause its Subsidiaries to keep and maintain, in all material
respects proper books of record and account in which entries will be made in
conformity with GAAP.
9.7. ERISA Compliance. The Borrower shall, and shall cause each of its
----------------
Subsidiaries and ERISA Affiliates to, establish, maintain and operate all Plans
to comply in all material respects with the provisions of ERISA, the Internal
Revenue Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for such
Plans.
9.8. Maintenance of Property. The Borrower shall, and shall cause each
-----------------------
of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair (ordinary wear and tear excepted), and not permit, commit or suffer any
waste or abandonment of any such Property and from time to time shall make or
cause to be made all material repairs, renewal and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same; provided, however, that such Property may be altered or
renovated in the ordinary course of business of the Borrower or such applicable
Subsidiary. Without any limitation on the foregoing, the Borrower shall maintain
the Projects in a manner such that each Project can be used in the manner and
substantially for the purposes such Project is used on the Closing Date,
including, without limitation, maintaining all utilities, access rights, zoning
and necessary Permits for such Project.
9.9. Company Status. Reckson, as the owner of the Company, shall at
--------------
all times retain direct or indirect, through the Company, management and control
of the Borrower.
9.10. Ownership of Projects, Minority Holdings and Property. The
-----------------------------------------------------
ownership of substantially all wholly owned Projects, Minority Holdings and
other Property of the Consolidated Businesses shall be held by the Borrower and
its Subsidiaries and shall not be held directly by the Company.
9.11. Ownership of Projects. Except as otherwise described on SCHEDULE
---------------------
7.1-U, the Borrower shall own, directly or indirectly, 100% fee simple title to
each of the Projects owned as of the date hereof.
9.12. Negative Pledge. At such time as the Revolving Credit Agreement
---------------
and the Existing Credit Agreement shall be terminated or otherwise modified to
exclude prohibitions on negative pledges, Borrower shall grant a negative
pledge to Lenders under this Agreement such that neither Borrower nor any of its
Subsidiaries shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to any Property other than Liens permitted
under Section 10.2 of the Revolving Credit Agreement. Nothing contained in this
Section 9.12 shall be construed as an agreement prohibiting the creation or
assumption of any Lien upon the properties, revenues or assets of Borrower or
any of its Subsidiaries in contravention of the Revolving Credit Agreement or
the Existing Credit Agreement.
9.13. Affirmative Covenants of Mortgagor. Mortgagor, by execution of
----------------------------------
this Agreement, hereby agrees to keep and perform the covenants and agreements
set forth in this Article IX applicable to the Mortgagor.
ARTICLE X
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Commitments are outstanding and thereafter until
payment in full of all of the Obligations (other than indemnities pursuant to
Section 14.3 not yet due), unless the Requisite Lenders shall otherwise give
prior written consent:
10.1. Sale of Projects. Neither the Borrower nor any of its
----------------
Subsidiaries shall sell, transfer or convey the Projects listed on SCHEDULE B
hereto, whether now owned or hereafter acquired, or sell, transfer or convey any
other Project; provided, however, that the Borrower and its Subsidiaries may
sell, assign or convey any of such Projects, provided that the Borrower shall
comply with the provisions of Section 4.1(d) hereof.
10.2. Intentionally Omitted.
---------------------
10.3. Indebtedness. None of the Borrower, the Company or any of their
------------
respective Subsidiaries shall create, incur, assume or otherwise become or
remain directly or indirectly liable for any Indebtedness, except nonrecourse
Indebtedness incurred in a single occurrence in connection with Borrower's
acquisition or refinancing of a Project and having an LTV Ratio of less than or
equal to 75%.
10.4. Conduct of Business. Neither the Borrower nor any of its
-------------------
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, re-developing and managing
predominantly office and industrial Projects and portfolios of like Projects,
and (b) any business or activities which are substantially similar, related or
incidental thereto.
10.5. Transactions with Partners and Affiliates. Neither the Borrower
-----------------------------------------
nor any of its Subsidiaries shall directly or indirectly enter into or permit
to exist any trans action (including, without limitation, the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder or holders of more than five percent (5%) of any class of equity
Securities of the Borrower, or with any Affiliate of the Borrower which is not
its Subsidiary, unless such transaction is determined by the respective Boards
of Directors (or managers or trustees) of the Company to be no less favorable to
the Borrower or any of its Subsidiaries than those that might be obtained in an
arm's length transaction at the time from Persons who are not such a holder or
Affiliate (other than transactions permitted by Section 2.3). Nothing contained
in this Section 10.5 shall prohibit (a) increases in compensation and benefits
for officers and employees of the Borrower or any of its Subsidiaries; (b)
payment of officers', managers', trustees', directors', partners' and other
similar indemnities; (c) performance of any obligations arising under the Loan
Documents; or (d) loans to Persons in connection with such Person's contribution
of Real Property to the Consolidated Businesses.
10.6. Restriction on Fundamental Changes. The Borrower shall not enter
----------------------------------
into any merger or consolidation, or liquidate, wind-up or dissolve (or suffer
any liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of transactions, all or substantially
all of the Borrower's business or Property, whether now or hereafter acquired,
except in connection with issuance, transfer, conversion or repurchase of
limited partnership interests in the Borrower or as otherwise permitted hereby.
Notwithstanding the foregoing, the Borrower shall be permitted to merge or
consolidate with another Person so long as the Borrower is the surviving Person
following such merger or consolidation, and the Borrower shall be permitted to
merge or consolidate with Reckson or another Person so long as Reckson is the
surviving Person following any such merger or consolidation.
10.7. Margin Regulations; Securities Laws. None of the Borrower nor
-----------------------------------
any of its Subsidiaries, shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock, except
as other wise contemplated by the Mergers.
10.8. ERISA. The Borrower shall not and shall not permit any of its
-----
Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the DOL, except to the extent engaging in such transaction
would not have a Material Adverse Effect;
(b) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Internal Revenue Code), with respect
to any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual installments
due with respect to any waived funding deficiency to any Benefit Plan;
(d) terminate any Benefit Plan which would result in any liability of
Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer Plan
which Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining
thereto, except to the extent such failure would not have a Material
Adverse Effect;
(f) fail to pay any required installment or any other payment required
under Section 412 of the Internal Revenue Code on or before the due date
for such installment or other payment; or
(g) amend a Benefit Plan resulting in an in crease in current
liability for the plan year such that the Borrower or any ERISA Affiliate
is required to provide security to such Plan under Section 401(a)(29) of
the Internal Revenue Code.
10.9. Organizational Documents. Neither the Company nor the Borrower
------------------------
shall amend, modify or otherwise change any of the terms or provisions in any of
their respective Organizational Documents as in effect on the Closing Date,
except amendments to effect (a) a change of name of the Borrower, provided that
the Borrower shall have provided the Administrative Agent with thirty (30) days
prior written notice of any such name change, or (b) changes that would not
affect such Organizational Documents in any material manner not otherwise
permitted under this Agreement.
10.10. Fiscal Year. Neither the Company, the Borrower, nor any of
-----------
their respective Subsidiaries shall change its Fiscal Year for accounting or tax
purposes from a period consisting of the 12-month period ending on December 31
of each calendar year.
10.11. Financial Covenants.
-------------------
(a) Maximum Leverage Ratio. As of the first day of each calendar
----------------------
quarter, for the immediately preceding calendar quarter, the ratio (the
"Leverage Ratio"), expressed as a percentage, of (i) Total Outstanding
Indebtedness to (ii) Capitalization Value shall at no time exceed fifty-five per
cent (55%).
(b) Minimum Total Interest Expense Ratio. As of the first day of each
------------------------------------
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Total NOI to (ii) Total Interest Expense shall not be less than 2.1 to 1.0.
(c) Minimum Fixed Charge Coverage Ratio. As of the first day of each
-----------------------------------
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Total NOI to (ii) Fixed Charges shall not be less than 1.6 to 1.0.
(d) Minimum Debt Yield. As of the first day of each calendar quarter
------------------
for the immediately preceding calendar quarter, the ratio (the "Debt Yield"),
expressed as a percent age, of (i) Total NOI multiplied by four (4), to (ii)
Total Outstanding Indebtedness shall not be less than 16%.
(e) Maximum Unencumbered Value Ratio. As of the first day of each
--------------------------------
calendar quarter for the immediately preceding calendar quarter, the ratio,
expressed as a percentage, of (i) Unsecured Indebtedness to (ii) Unencumbered
Value shall not exceed fifty percent (50%).
(f) Minimum Unsecured Interest Expense Coverage Ratio. As of the first
-------------------------------------------------
day of each calendar quarter, for the immediately preceding calendar quarter,
the ratio of (i) Unencumbered NOI to (ii) Unsecured Interest Expense shall not
be less than 2.5 to 1.0.
(g) Minimum Unsecured Debt Yield. As of the first day of each calendar
----------------------------
quarter for the immediately preceding calendar quarter, the ratio (the "Minimum
Unsecured Debt Yield"), expressed as a percentage, of (i) Unencumbered NOI
multiplied by four (4) to (ii) Unsecured Indebtedness shall not be less than
nineteen percent (19%).
(h) Negative Pledge. From and after the date here of, neither the
---------------
Borrower nor the Company will, and will not permit any Subsidiary, to enter into
any agreement containing any provision prohibiting the creation or assumption of
any Lien upon its properties (other than with respect to prohibitions on
subordinate liens set forth in a mortgage on a particular property), revenues
or assets, whether now owned or hereafter acquired, or restricting the ability
of the Borrower to amend or modify this Agreement or any other Loan Document.
10.12. Pro Forma Calculations. In connection with an acquisition or
----------------------
disposition of a Project owned by the Consolidated Businesses or a Property
owned by a Minority Holding, certain financial ratios shall be calculated as
follows on a pro forma basis (with respect to the pro rata share of the Borrower
or the Company in the case of an acquisition or disposition by a Minority
Holding, as applicable), which pro forma calculation shall be effective until
the first day of the second calendar quarter following an acquisition (or such
earlier test period, as applicable), at which time actual performance will be
utilized for such calculations.
(a) NOI. NOI for the acquired Project, as of the first day of a fiscal
---
quarter for the immediately preceding fiscal quarter, shall be deemed to be the
"In-Place NOI" from such acquired Project during such preceding fiscal quarter
following Borrower's acquisition of such Project. For the purposes of this
Section 10.12(a), In-Place NOI for any period shall mean the NOI for such period
adjusted to include the portion of NOI from leases expiring during such period
and leases commencing during such period, but, in either case, only to the
extent allocable to such period.
(b) Total NOI. The pro forma calculation of NOI for the acquired
---------
Project shall be added to the calculation of Total NOI.
(c) Unencumbered NOI. If, after giving effect to an acquisition of a
----------------
Project wholly-owned by the Consolidated Businesses, the acquired Project will
not be encumbered by Secured Indebtedness, the pro forma NOI for the acquired
Project shall be added to the calculation of Unencumbered NOI.
(d) Capitalization Value. Capitalization Value for the acquired
--------------------
Project shall be deemed to be the lesser of (x) the purchase price of the
Project and (y) the quotient of the pro forma calculation of NOI and the Weighed
Average Capitalization Rate.
(e) Total Outstanding Indebtedness. Any Indebtedness incurred and/or
------------------------------
assumed in connection with such acquisition, including the pro rata share of
recourse Indebtedness allocable to the Consolidated Businesses in connection
with an acquisition by a Minority Holding, shall be added to the calculation of
Total Outstanding Indebtedness.
10.13. Negative Covenants with respect to the Company.
----------------------------------------------
(a) From and after the date hereof, the Company will not acquire any
assets of any nature whatsoever other than additional units in the Borrower.
(b) From and after the date hereof, the Company will not incur any
Indebtedness or any other obligations or liabilities except as the general
partner of the Borrower in connection with trade payables incurred in the
ordinary course of business.
(c) From and after the date hereof, the Company will not retain any
Net Offering Proceeds, and the same will be contributed by the Company to the
Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, any of its business or assets, including its interests
in the Borrower. Notwithstanding the foregoing, the Company shall be permitted
to merge or consolidate with an other Person so long as the Company is the
surviving Person following such merger and Reckson maintains a 100% ownership
interest in the Company, and the Company may merge or consolidate with Reckson
or another Person so long as Reckson is the surviving Person following any such
merger or consolidation and Reckson retains not less than a 66 2/3% interest in
the Borrower.
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default. Each of the following occurrences shall
-----------------
constitute an Event of Default under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall fail to pay
---------------------------------
(i) when due any principal payment on the Obligations which is due on the
Termination Date or pursuant to the terms of Section 2.1(a), Section 2.4,
Section 4.1(a), or Section 4.1(d) or (ii) when due, any interest payment on the
Obligations, or (iii) when due, any principal payment on the Obligations not
referenced in clauses (i) or (ii) hereinabove or (iv) when due, any fees due.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
---------------------------
punctually to perform or observe any agreement, covenant or obligation binding
on such Person under Sections 9.1, 9.4, 9.5, 9.10, 9.11 or Article X.
(c) Breach of Representation or Warranty. Any representation or
------------------------------------
warranty made by the Borrower, or any Guarantor to the Administrative Agent,
the Arranger or any other Lender herein or by the Borrower or any Guarantor or
any of their Subsidiaries in any of the other Loan Documents or in any statement
or certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made.
(d) Other Defaults. The Borrower shall default in the performance of
--------------
or compliance with any term contained in this Agreement (other than as
identified in paragraphs (a), (b) or (c) of this Section 11.1), or any default
or event of default shall occur under any of the other Loan Documents, and such
default or event of default shall continue for thirty (30) days after receipt of
written notice from the Administrative Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or event
----------------------------------
of default shall occur and be continuing, or any other condition shall exist
under any instrument, agreement or indenture pertaining to any recourse
Indebtedness (other than the Obligations) of the Company, the Borrower or their
Subsidiaries, in excess of $1,000,000 in aggregate, and the effect thereof is to
cause an acceleration, mandatory redemption or other required repurchase of
such Indebtedness, or permit the holder(s) of such Indebtedness to accelerate
the maturity of any such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be otherwise
declared to be due and payable (by acceleration or otherwise) or required to be
prepaid, redeemed or otherwise repurchased by the Borrower or any of its
Subsidiaries (other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
-----------------------------------------------------
(i) An involuntary case shall be commenced against the Company, the
Borrower or any of their Subsidiaries, and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement of the
case; or a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company, the Borrower or any such
Subsidiaries of the Borrower in an involuntary case, under any applicable
bankruptcy, insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal, state, local
or foreign law; or the respective board of directors of the Company, or Limited
Partners of the Borrower, or the board of directors or partners of any such
Subsidiaries of the Borrower (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the fore going.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over the Company, the Borrower or any of
their Subsidiaries, or over all or a substantial part of the Property of the
Company, the Borrower or any of such Subsidiaries shall be entered; or an
interim receiver, trustee or other custodian of the Company, the Borrower or any
of such Subsidiaries or of all or a substantial part of the Property of the
Company, the Borrower or any of such Subsidiaries shall be appointed or a
warrant of attachment, execution or similar process against any substantial part
of the Property of any of the Company, the Borrower or any of such Subsidiaries
shall be issued and any such event shall not be stayed, dismissed, bonded or
discharged within sixty (60) days after entry, appointment or issuance; or the
respective board of directors of any of the Company or Limited Partners of the
Borrower or the board of directors or partners of any of Borrower's Subsidiaries
(or any committee thereof) adopts any resolution or otherwise authorizes any
action to approve any of the foregoing.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company,
---------------------------------------------------
the Borrower or any of their Subsidiaries, shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or the Company, the Borrower or any of such Subsidiaries shall make
any assignment for the benefit of creditors or shall be unable or fail, or admit
in writing its inability, to pay its debts as such debts become due.
(h) Judgments and Unpermitted Liens.
-------------------------------
(i) Any money judgment (other than a money judgment covered by
insurance as to which the insurance company has acknowledged coverage), writ or
warrant of attachment, or similar process against the Borrower or any of its
Subsidiaries or any of their respective assets involving in any case an amount
in excess of $2,000,000 (other than with respect to Claims arising out of
non-recourse Indebtedness) is entered and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days or in any event later than
five (5) days prior to the date of any proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien is filed against the
Borrower which is not discharged of record, bonded over or otherwise secured to
the satisfaction of the Administrative Agent within sixty (60) days after the
filing thereof or the date upon which the Administrative Agent receives actual
knowledge of the filing thereof for an amount which, either separately or when
aggregated with the amount of any judgments described in clause (i) above,
equals or exceeds $2,000,000.
(iii) An Environmental Lien is filed against any Project with respect
to Claims in an amount which, either separately or when aggregated with the
amount of all other such Environmental Liens, equals or exceeds $2,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered
against the Borrower decreeing its involuntary dissolution or split up; or the
Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document
--------------
ceases to be in full force and effect or the Borrower seeks to repudiate its
obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs which
-----------------------
the Administrative Agent believes could subject any of the Borrower or any ERISA
Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit Plan
------------------
applies under Section 412(d) of the Code for a waiver of the minimum funding
standards of Section 412(a) of the Internal Revenue Code and the Administrative
Agent believes that the substantial business hardship upon which the
application for the waiver is based could subject either the Borrower or any
ERISA Affiliate to liability in excess of $500,000.
(m) Material Adverse Effect. An event shall occur which has a Material
-----------------------
Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company shall fail
------------------------------------------
to comply with Sections 9.9, or 7.1(a)(ii), (b), (d), (l), or (o).
(o) Merger or Liquidation of the Company or the Borrower. The Company
----------------------------------------------------
shall merge or liquidate with or into any other Person and, as a result thereof
and after giving effect thereto, the Company or Reckson is not the surviving
Person. The Borrower shall merge or liquidate with or into any other Person and,
as a result thereof and after giving effect thereto the Borrower or Reckson is
not the surviving Person.
An Event of Default shall be deemed "continuing" until cured or waived
in writing in accordance with Section 14.7.
11.2. Rights and Remedies.
-------------------
(a) Acceleration and Termination. Upon the occurrence of any Event of
----------------------------
Default described in Sections 11.1(f) or 11.1(g), the Commitments shall
automatically and immediately terminate and the unpaid principal amount of, and
any and all accrued interest on, the Obligations and all accrued fees shall
automatically become immediately due and payable, with out presentment, demand,
or protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower, and, upon the occurrence and during the continuance of any other
Event of Default, the Administrative Agent shall at the request, or may with the
consent, of the Lenders whose Pro Rata Shares, in the aggregate, are greater
than fifty-one percent (51%), by written notice to the Borrower, (i) declare
that the Commitments are terminated, whereupon the Commitments and the
obligation of each Lender to make any Loan hereunder shall immediately
terminate, and/or (ii) declare the unpaid principal amount of and any and all
accrued and unpaid interest on the Obligations to be, and the same shall
thereupon be, immediately due and payable, without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower.
(b) Rescission. If at any time after termination of the Commitments
----------
and/or acceleration of the maturity of the Loans, the Borrower shall pay all
arrears of interest and all payments on account of principal of the Loans which
shall have become due otherwise than by acceleration (with interest on principal
and, to the extent permitted by law, on overdue interest, at the rates specified
in this Agreement) and all Events of Default and Potential Events of Default
(other than nonpayment of principal of and accrued interest on the Loans due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to Section 14.7, then upon the written consent of the Requisite Lenders and
written notice to the Borrower, the termination of the Commitments and/or the
acceleration and their consequences may be rescinded and annulled; but such
action shall not affect any subsequent Event of Default or Potential Event of
Default or impair any right or remedy consequent thereon. The provisions of the
preceding sentence are intended merely to bind the Lenders to a decision which
may be made at the election of the Requisite Lenders; they are not intended to
benefit the Borrower and do not give the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are met.
(c) Enforcement. The Borrower acknowledges that in the event the
-----------
Borrower or any of its Subsidiaries fails to perform, observe or discharge any
of their respective obligations or liabilities under this Agreement or any
other Loan Document, any remedy of law may prove to be inadequate relief to the
Administrative Agent and the other Lenders; therefore, the Borrower agrees that
the Administrative Agent and the other Lenders shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages.
ARTICLE XII
THE AGENTS
12.1. Appointment. (a) Each Lender hereby designates and appoints UBS
-----------
as the Administrative Agent and WDR as the Arranger and the Book Manager under
this Agreement, and each Lender hereby irrevocably authorizes the Administrative
Agent, the Arranger and the Book Manager to take such actions on its behalf
under the provisions of this Agreement and the Loan Documents and to exercise
such powers as are set forth herein or therein together with such other powers
as are reasonably incidental thereto. The Administrative Agent, the Arranger and
the Book Manager each agrees to act as such on the express conditions contained
in this Article XII.
(b) The provisions of this Article XII are solely for the benefit of
the Administrative Agent, the Arranger, the Book Manager and the other Lenders,
and neither the Borrower, the Company nor any Subsidiary of the Borrower shall
have any rights to rely on or enforce any of the provisions hereof (other than
as expressly set forth in Section 12.7). In per forming its respective functions
and duties under this Agreement, the Administrative Agent, the Arranger and the
Book Manager shall act solely as agents of the Lenders and do not assume and
shall not be deemed to have assumed any obligation or relationship of agency,
trustee or fiduciary with or for the Company, the Borrower or any Subsidiary of
the Borrower. The Administrative Agent, the Arranger and the Book Manager may
perform any of their respective duties hereunder, or under the Loan Documents,
by or through their respective agents or employees.
12.2. Nature of Duties. The Administrative Agent, the Arranger and the
----------------
Book Manager shall not have any duties or responsibilities except those
expressly set forth in this Agreement or in the Loan Documents. The duties of
the Administrative Agent, the Arranger and the Book Manager shall be mechanical
and administrative in nature. None of the Administrative Agent, the Arranger or
the Book Manager shall have by reason of this Agreement a fiduciary relationship
in respect of any Lender. Nothing in this Agreement or any of the Loan
Documents, expressed or implied, is intended to or shall be construed to impose
upon the Administrative Agent, the Arranger or the Book Manager any obligations
in respect of this Agreement or any of the Loan Documents except as expressly
set forth herein or therein. The Administrative Agent, the Arranger and the Book
Manager each hereby agrees that its duties shall include providing copies of
documents received by such Agent from the Borrower which are reasonably
requested by any Lender, furnishing copies of documents to each Lender, upon
request, of documents sent by the Agent to the Borrower and promptly notifying
each Lender upon its obtaining actual knowledge of the occurrence of the Event
of Default hereunder. In addition, the Administrative Agent shall deliver to
each Lender, promptly after receipt thereof, copies of those documents and
reports received by it pursuant to Sections 8.2 (other than clause (b)(iv)) and
8.3.
12.3. Right to Request Instructions. The Administrative Agent, the
-----------------------------
Arranger and the Book Manager may at any time request instructions from the
Lenders with respect to any actions or approvals which by the terms of any of
the Loan Documents the Agent is permitted or required to take or to grant, and
the Agent shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Loan Documents until it shall have received such instructions from those
Lenders from whom the Agent is required to obtain such instructions for the
pertinent matter in accordance with the Loan Documents. Without limiting the
generality of the foregoing, the Agent shall take any action, or refrain from
taking any action, which is permitted by the terms of the Loan Documents upon
receipt of instructions from those Lenders from whom such Agent is required to
obtain such instructions for the pertinent matter in accordance with the Loan
Documents, provided, that no Lender shall have any right of action whatsoever
against the Administrative Agent, the Arranger or the Book Manager as a result
of such Agent acting or refraining from acting under the Loan Documents in
accordance with the instructions of the Requisite Lenders or, where required by
the express terms of this Agreement, a greater proportion of the Lenders.
12.4. Reliance. The Administrative Agent, the Arranger and the Book
--------
Manager shall each be entitled to rely upon any written notices, statements,
certificates, orders or other documents believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the proper Person,
and with respect to all matters pertaining to this Agreement or any of the Loan
Documents and its duties hereunder or thereunder, upon advice of legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it.
12.5. Indemnification. To the extent that the Administrative Agent,
---------------
the Arranger or the Book Manager is not reimbursed and indemnified by the
Borrower the Lenders will reimburse and indemnify such Agent for and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, and reasonable costs, expenses or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by, or asserted against
it 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, in proportion to each
Lender's Pro Rata Share. Notwithstanding anything to the contrary contained
herein, none of the Administrative Agent, the Arranger or the Book Manager shall
be indemnified to the extent such liabilities, obligations, losses, damages,
penalties, actions, judgments, suite, costs and expenses result from such
Person's gross negligence, willful misconduct or breach of this Article XII.
Such Agent agrees to refund to the Lenders any of the foregoing amounts paid to
it by the Lenders which amounts are subsequently recovered by such Agent from
the Borrower or any other Person on behalf of the Borrower. The obligations of
the Lenders under this Section 12.5 shall survive the payment in full of the
Loans and all other Obligations and the termination of this Agreement.
12.6. Agent Individually. With respect to their respective Pro Rata
------------------
Share of the Commitments hereunder, if any, and the Loans made by them, if any,
the Administrative Agent, the Arranger or the Book Manager shall have and may
exercise the same rights and powers hereunder and are subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender. The terms "Lenders" or "Requisite Lenders" or any similar terms shall,
unless the context clearly otherwise indicates, include UBS in its respective
individual capacity as a Lender or as one of the Requisite Lenders. UBS and each
of its respective Affiliates may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with the
Borrower or any of its Subsidiaries as if UBS was not acting as the
Administrative Agent.
12.7. Successor Agents.
----------------
(a) Resignation. The Agent may resign from the performance of all its
-----------
functions and duties hereunder at any time by giving at least thirty (30)
Business Days' prior written notice to the Borrower and the other Lenders,
unless applicable law requires a shorter notice period or that there be no
notice period, in which instance such applicable law shall control. Such
resignation shall take effect upon the acceptance by a successor Agent of
appointment pursuant to this Section 12.7.
(b) Appointment by Requisite Lenders. Upon any such resignation
--------------------------------
becoming effective, (i) if the Arranger shall then be acting with respect to
this Agreement, the Arranger shall become the Administrative Agent or (ii) if no
Arranger shall then be acting with respect to this Agreement, the Requisite
Lenders shall have the right to appoint a successor Administrative Agent
selected from among the Lenders with the prior written consent of the Borrower
which shall not be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor Administrative Agent
-----------------------------
shall not have been appointed within the thirty (30) Business Day or shorter
period provided in paragraph (a) of this Section 12.7, the retiring Agent shall
then appoint a successor Agent who shall serve as Administrative Agent until
such time, if any, as the Requisite Lenders appoint a successor Agent as
provided above with the prior written consent of the Borrower which shall not be
unreasonably withheld.
(d) Rights of the Successor and Retiring Agents. Upon the acceptance
-------------------------------------------
of any appointment as Administrative Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article XII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Agent under this Agreement.
12.8. Relations Among the Lenders. Each Lender agrees that it will not
---------------------------
take any legal action, nor institute any actions or proceedings, against the
Borrower or any other obligor hereunder with respect to any of the Obligations,
without the prior written consent of the Lenders. Without limiting the
generality of the foregoing, no Lender may accelerate or otherwise enforce its
portion of the Obligations, or unilaterally terminate its Commitment except in
accordance with Section 11.2(a).
12.9. Standard of Care. The Administrative Agent and the Arranger
----------------
shall administer the Loans in the same manner that the Agent administers loans
made for its own account.
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes.
-----
(a) Payment of Taxes. Any and all payments by the Borrower hereunder
----------------
or under the Notes or other document evidencing any Obligations of such Person
shall be made, in accordance with Section 4.2, free and clear of and without
reduction for any and all present or future taxes, levies, imposts, deductions,
charges, withholdings, and all stamp or documentary taxes, excise taxes, ad
valorem taxes and other taxes which arise from the execution, delivery or
registration, or from payment or performance under, or otherwise with respect
to, any of the Loan Documents or the Commitments and all other liabilities with
respect thereto excluding, in the case of each Lender, taxes imposed on or
measured by net income or overall gross receipts and capital and franchise taxes
imposed on it by (i) the United States, (ii) the Govern mental Authority of the
jurisdiction in which such Lender's Applicable Lending Office is located or any
political subdivision thereof or (iii) the Governmental Authority in which such
Person is organized, managed and controlled or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges and
withholdings being hereinafter referred to as "Taxes"). Except as otherwise
provided herein, if the Borrower shall be required by law to withhold or deduct
any Taxes from or in respect of any sum payable hereunder or under any such Note
or document to any Lender, (x) the sum payable to such Lender shall be increased
as may be necessary so that after making all required withholding or deductions
(including withholding or deductions applicable to additional sums payable under
this Section 13.1) such Lender receives an amount equal to the sum it would have
received had no such withholding or deductions been made, (y) the Borrower shall
make such withholding or deductions, and (z) the Borrower shall pay the full
amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) Indemnification. Except as otherwise provided herein, the Borrower
---------------
will indemnify each Lender against, and reimburse each within ten (10) Business
Days after written demand for, the full amount of all Taxes (including, without
limitation, any Taxes imposed by any Governmental Authority on amounts payable
under this Section 13.1 and any additional income or franchise taxes resulting
therefrom) incurred or paid by such Lender and any liability (including
penalties, interest, and out-of-pocket expenses paid to third parties) arising
therefrom or with respect thereto, whether or not such Taxes were lawfully
payable, to the extent not paid by the Borrower pursuant to Section 13.1 hereof.
A certificate as to any additional amount payable to any Person under this
Section 13.1 submitted by it to the Borrower shall, absent manifest error, be
final, conclusive and binding upon all parties here to. Each Lender agrees,
within a reasonable time after receiving a written request from the Borrower to
provide the Borrower and the Administrative Agent with such certificates and
other documents as are reasonably required, and take such other actions as are
reasonably necessary to claim such exemptions as such Lender may be entitled to
claim in respect of all or a portion of any Taxes which are otherwise required
to be paid or deducted or withheld pursuant to this Section 13.1 in respect of
any payments under this Agreement or under the other Loan Documents. If any
Lender receives any refund with respect to any Taxes, such Lender shall promptly
remit such refund to the Borrower.
(c) Receipts. Within thirty (30) days after the date of any payment of
--------
Taxes by the Borrower will furnish to the Administrative Agent, at its address
referred to in Section 14.8, the original or a certified copy of a receipt
evidencing payment thereof.
(d) Foreign Bank Certifications. (i) Each Lender that is not created
---------------------------
or organized under the laws of the United States or a political subdivision
thereof shall deliver to each of the Borrower and the Administrative Agent on
the Closing Date or the date on which such Lender becomes a Lender pursuant to
Section 14.1 hereof a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender to the effect that such Lender is
eligible to receive payments hereunder and under the Notes without deduction or
withholding of United States federal income tax (I) under the provisions of an
applicable tax treaty concluded by the United States (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 1001
(or any successor or substitute form or forms)) or (II) under Sections
1442(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to each of the Borrower and
the Administrative Agent from time to time, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender before or
promptly upon the occurrence of any event requiring a change in the most recent
certificate previously delivered by it to the Borrower and the Administrative
Agent pursuant to this Section 13.1(d). Each certificate required to be
delivered pursuant to this Section 13.1(d)(ii) shall certify as to one of the
following:
(A) that such Lender can continue to receive payments hereunder and
under the Notes without deduction or withholding of United States federal
income tax;
(B) that such Lender cannot continue to receive payments hereunder
and under the Notes without deduction or withholding of United States
federal income tax as specified therein but does not require additional
payments pursuant to Section 13.1(a) because it is entitled to recover the
full amount of any such deduction or withholding from a source other than
the Borrower; or
(C) that such Lender is no longer capable of receiving payments
hereunder and under the Notes without deduction or withholding of United
States federal income tax as specified therein and that it is not capable
of recovering the full amount of the same from a source other than the
Borrower.
Each Lender agrees to deliver to each of the Borrower and the Administrative
Agent further duly completed copies of the above-mentioned IRS forms on or
before the earlier of (x) the date that any such form expires or becomes
obsolete or other wise is required to be resubmitted as a condition to obtaining
an exemption from withholding from United States federal income tax and (y)
fifteen (15) days after the occurrence of any event requiring a change in the
most recent form previously delivered by such Lender to the Borrower and the
Administrative Agent, unless any change in treaty, law, regulation, or official
interpretation thereof which would render such form inapplicable or which would
prevent the Lender from duly completing and delivering such form has occurred
prior to the date on which any such delivery would otherwise be required and the
Lender promptly advises the Borrower that it is not capable of receiving
payments hereunder and under the Notes without any deduction or withholding of
United States federal income tax.
(iii) Notwithstanding anything to the contrary contained in this
Section 13.1, the Borrower will not be required to make any additional payment
to or for the account of any Lender under Section 13.1(a) or (b) by reason of
(x) a breach by such Lender of any certification or representation set forth in
any form furnished to the Borrower under Section 13.1(d), or (y) such Lender's
failure or inability to furnish under Section 13.1(d) an original of an
extension or renewal of a Form 1001 or Form 4224 (or successor form), as
applicable, unless such failure or inability results from a change (after the
date such Lender became a Lender party hereto) in any applicable law or
regulation or in the interpretation thereof by any regulatory authority
(including without limitation any change in any applicable tax treaty).
13.2. Increased Capital. If after the date hereof any Lender
-----------------
determines that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or quasi-
governmental authority exercising jurisdiction, power or control over any Lender
or banks or financial institutions generally (whether or not having the force of
law), compliance with which affects the amount of capital required or expected
to be maintained by such Lender or any corporation controlling such Lender and
(ii) the amount of such capital is increased by or based upon the making or
maintenance by any Lender of its Loans, any Lender's participation in or
obligation to participate in the Loans or other advances made hereunder or the
existence of any Lender's obligation to make Loans, then, in any such case,
within ten (10) Business Days after written demand by such Lender (with a copy
of such demand to the Administrative Agent), the Borrower shall immediately pay
to the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation therefor. Such demand shall be accompanied by a
statement as to the amount of such compensation and include a brief summary of
the basis for such demand. Such statement shall be conclusive and binding for
all purposes, absent manifest error.
13.3. Changes; Legal Restrictions. If after the date hereof any Lender
---------------------------
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not
having the force of law), compliance with which:
(a) subjects a Lender (or its Applicable Lending Office or Eurodollar
Affiliate) to charges (other than taxes) of any kind which such Lender
reasonably determines to be applicable to the Commitments of the Lenders to
make Eurodollar Rate Loans or change the basis of taxation of payments to
that Lender of principal, fees, interest, or any other amount payable
hereunder with respect to Eurodollar Rate Loans (other than taxes excluded
in Section 13.1(a) hereof); or
(b) imposes, modifies, or holds applicable, in the determination of a
Lender, any reserve, special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, commitments
made, or other credit ex tended by, or any other acquisition of funds by, a
Lender or any Applicable Lending Office or Eurodollar Affiliate of that
Lender in respect of Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Commitment or to reduce any
amount receivable thereunder; then, in any such case, within ten (10) Business
Days after written demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall immediately pay to the Administrative
Agent for the account of such Lender, from time to time as specified by such
Lender, such amount or amounts as may be necessary to compensate such Lender or
its Eurodollar Affiliate for any such additional cost incurred or reduced amount
received. Such demand shall be accompanied by a statement as to the amount of
such compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
13.4. Replacement of Certain Lenders. In the event a Lender (a
------------------------------
"Designated Lender") shall have (i) requested additional compensation from the
Borrower under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of any Loan requested to be made hereby or
(iii) failed to make any Loan at the Eurodollar Rate, the Borrower may, at its
sole election, make written demand on such Designated Lender (with a copy to the
Administrative Agent) for the Designated Lender to assign, and such Designated
Lender shall assign pursuant to one or more duly executed Assignment and
Acceptances to one or more Eligible Assignees which the Borrower or the
Administrative Agent shall have identified for such purpose, all of such
Designated Lender's right and obligations under this Agreement, the Notes and
the other Loan Documents (including, without limitation, its Commitment and all
Loans owing to it) in accordance with Section 14.1. All out-of-pocket expenses
incurred by the Administrative Agent in connection with the foregoing shall be
for the sole account of the Borrower and shall constitute Obligations hereunder.
In no event shall Borrower's election under the provisions of this Section 13.4
affect its obligation to pay the additional compensation required under either
Section 13.1, Section 13.2 or Section 13.3.
13.5. Mitigation. Each Lender shall notify the Borrower of any event
----------
occurring after the date of this Agreement entitling such Lender to
compensation under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but
in any event, within 45 days, after such Lender obtains actual knowledge
thereof; provided that (i) if any Lender fails to give such notice within 45
days after it obtains actual knowledge of such an event, such Lender shall, with
respect to compensation payable pursuant to Sections 13.1, 13.2 or 13.3 in
respect of any costs resulting from such event, only be entitled to payment
under Sections 13.1, 13.2 or 13.3 for costs incurred from and after the date 45
days prior to the date that such Lender does give such notice and (ii) each
Lender will designate a different Applicable Lending Office for the Loans of
such Lender affected by such event if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the reasonable
judgment of such Lender, be disadvantageous to such Lender.
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations.
------------------------------
(a) Assignments. No assignments or participations of any Lender's
-----------
rights or obligations under this Agreement shall be made except in accordance
with this Section 14.1. Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all of its rights and obligations with respect to the Loans) in accordance with
the provisions of this Section 14.1.
(b) Limitations on Assignments. For so long as no Event of Default has
--------------------------
occurred and is continuing, each assignment shall be subject to the following
conditions: (i) each assignment shall be of a constant, and not a varying,
ratable percentage of all of the assigning Lender's rights and obligations
under this Agreement and, in the case of a partial assignment, shall be in a
minimum principal amount of $5,000,000 (and the assignor shall maintain a
minimum amount of $5,000,000 for its own account unless the assignor shall
assign or participate its entire interest), (ii) each such assignment shall be
to an Eligible Assignee, (iii) each assignment shall be subject to the
reasonable approval of the Agent and the Borrower, (iv) 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, and (v)
each Agent shall maintain a minimum Commitment in an amount greater than the
Commitment of any other Lender. Upon the occurrence and continuance of an Event
of Default, none of the foregoing restrictions on assignments shall apply,
provided, however, that while an Event of Default (other than an Event of
Default that shall have required that the Administrative Agent shall have
delivered a notice of the underlying default) shall be continuing but prior to
acceleration of the Loans, the applicable Lender shall give the Borrower five
(5) days' written notice by telecopy of its intention to assign any or all of
its interest in this Agreement. Upon such execution, delivery, acceptance and
recording in the Register, from and after the effective date specified in each
Assignment and Acceptance and agreed to by the Administrative Agent, (A) the
assignee thereunder shall, in addition to any rights and obligations hereunder
held by it immediately prior to such effective date, if any, have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and shall, to the fullest extent permitted by law, have the same
rights and benefits hereunder as if it were an original Lender hereunder, (B)
the assigning Lender shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of such assigning Lender's rights and obligations under this Agreement, the
assigning Lender shall cease to be a party hereto) and (C) the Borrower shall
execute and deliver to the assignee thereunder a Note evidencing its obligations
to such assignee with respect to the Loans.
(c) The Register. The Administrative Agent shall maintain at its
------------
address referred to in Section 14.8 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, the Commitment of, and
the principal amount of the Loans under the Commitments owing to, each Lender
from time to time and whether such Lender is an original Lender or the assignee
of another Lender pursuant to an Assignment and Acceptance. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower the Administrative Agent and the other Lenders and each
other party to a Loan Document may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Fee. Upon its receipt of an Assignment and Acceptance executed by
---
the assigning Lender and an Assignee and a processing and recordation fee of
$3,500 (payable by the assignee to the Administrative Agent), the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
compliance with this Agreement and in substantially the form of EXHIBIT A
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 the other Lenders.
(e) Participations. Each Lender may sell participations to one or
--------------
more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its
Commitment hereunder and the Loans owing to it); provided, however, that (i)
such Lender's obligations under this Agreement (including, without limitation,
its Commitment hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, (iv) each
participation shall be in a minimum amount of $5,000,000, and (v) such
participant's rights to agree or to restrict such Lender's ability to agree to
the modification, waiver or release of any of the terms of the Loan Documents,
to consent to any action or failure to act by any party to any of the Loan
Documents or any of their respective Affiliates, or to exercise or refrain from
exercising any powers or rights which any Lender may have under or in respect of
the Loan Documents, shall be limited to the right to consent to (A) increase in
the Commitment of the Lender from whom such participant purchased a
participation, (B) reduction of the principal of, or rate or amount of interest
on the Loans subject to such participation (other than by the payment or
prepayment thereof), (C) postponement of any date fixed for any payment of
principal of, or interest on, the Loan(s) subject to such participation and (D)
release of any guarantor of the Obligations.
(f) Information Regarding the Borrower. Any Lender may, subject to the
----------------------------------
provisions of Section 14.22, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 14.1, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower or its Subsidiaries furnished to such
Lender by the Administrative Agent or by or on behalf of the Borrower.
(g) Payment to Participants. Anything in this Agreement to the
-----------------------
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties required hereby as if no such participation had been
sold.
(h) Lenders' Creation of Security Interests. Notwithstanding any other
---------------------------------------
provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by
it) in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
14.2. Expenses.
--------
(a) Generally. The Borrower agrees promptly upon demand to pay, or
---------
reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP (but not of other
legal counsel) and for all other reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent or the Arranger in connection with (i) the
preparation, negotiation, and execution of the Loan Documents; (ii) the
preparation, negotiation, execution and interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any of the conditions set forth in Article VI), the Loan Documents, and the
making of the Loans hereunder; (iii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same; and (iv) any other
amendments, modifications, agreements, assignments, restatements or supplements
to any of the Loan Documents requested by Borrower and the preparation,
negotiation, and execution of the same.
(b) After Default. The Borrower further agrees to pay or reimburse the
-------------
Administrative Agent, the Arranger and each of the Lenders upon demand for all
reasonable out-of-pocket costs and expenses, including, without limitation,
reasonable attorneys' fees (including allocated costs of internal counsel and
costs of settlement) incurred by such entity after the occurrence and during the
continuance of an Event of Default (i) in enforcing any Loan Document or
Obligation, the collection of any Obligation or exercising or enforcing any
other right or remedy available by reason of such Event of Default; or (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or in any insolvency
or bankruptcy proceeding; (iii) in commencing, defending or intervening in any
litigation or in filing a petition, complaint, answer, motion or other pleadings
in any legal proceeding relating to the Obligations, a Project, any of the
Consolidated Businesses and related to or arising out of the transactions
contemplated hereby or by any of the other Loan Documents; and (iv) in taking
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) described in clauses (i) through (iii) above.
14.3. Indemnity. The Borrower further agrees (a) to defend, protect,
---------
indemnify, and hold harmless the Administrative Agent, the Arranger and each
and all of the other Lenders and each of their respective officers, directors,
employees, attorneys and agents (collectively, the "Indemnitees") from and
against any and all liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, claims, reasonable
costs, reasonable expenses and reasonable disbursements (excluding any taxes and
including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents, the making of the Loans hereunder, the use or intended use of the
proceeds of the Loans hereunder, or any of the other transactions contemplated
by the Loan Documents, or (ii) any Liabilities and Costs relating to violation
of any Environmental, Health or Safety Requirements of Law, the past, present
or future operations of the Borrower, any of its Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective Property of the
Borrower or any of its Subsidiaries, the presence of asbestos-containing
materials at any respective Property of the Borrower or any of its Subsidiaries,
or the Release or threatened Release of any Contaminant into the environment
(collectively, the "Indemnified Matters"); provided, however, the Borrower
shall have no obligation to an Indemnitee hereunder with respect to Indemnified
Matters caused by or resulting from the willful misconduct or gross negligence
of such Indemnitee, as determined by a court of competent jurisdiction in a
non-appealable final judgment; and (b) not to assert any claim against any of
the Indemnitees, on any theory of liability, for consequential or punitive
damages arising out of, or in any way in connection with, the Commitments, the
Credit Obligations, or the other matters governed by this Agreement and the
other Loan Documents. To the extent that the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
14.4. Change in Accounting Principles. If any change in the accounting
-------------------------------
principles used in the preparation of the most recent financial statements
referred to in Sections 8.1 or 8.2 are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Company or the Borrower as applicable, with the agreement of its independent
certified public accountants and such changes result in a change in the method
of calculation of any of the covenants, standards or terms found in Article X,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the Borrower shall be the same after such changes as if such changes had not
been made; provided, however, no change in GAAP that would affect the method of
calculation of any of the covenants, standards or terms shall be given effect in
such calculations until such provisions are amended, in a manner satisfactory to
the Administrative Agent and the Borrower, to so reflect such change in
accounting principles.
14.5. Intentionally Omitted.
---------------------
14.6. Ratable Sharing. The Lenders agree among themselves that (i)
---------------
with respect to all amounts received by them which are applicable to the payment
of the Obligations (excluding the costs and fees described in Section 5.2(f) and
Article XIII) equitable adjustment will be made so that, in effect, all such
amounts will be shared among them ratably in accordance with their Pro Rata
Shares, whether received by voluntary payment, by the exercise of the right of
setoff or banker's lien, by counterclaim or cross-action or by the enforcement
of any or all of the Obligations (excluding the costs and fees described in
Section 5.2(f) and Article XIII), (ii) if any of them shall by voluntary payment
or by the exercise of any right of counterclaim, setoff, banker's lien or
otherwise, receive payment of a proportion of the aggregate amount of the
Obligations held by it, which is greater than the amount which such Lender is
entitled to receive hereunder, the Lender receiving such excess payment shall
purchase, without recourse or warranty, an undivided interest and participation
(which it shall be deemed to have done simultaneously upon the receipt of such
payment) in such Obligations owed to the others so that all such recoveries with
respect to such Obligations shall be applied ratably in accordance with their
Pro Rata Shares; provided, however, that if all or part of such excess payment
received by the purchasing party is thereafter recovered from it, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such party to the extent necessary to adjust
for such recovery, but without interest except to the extent the purchasing
party is required to pay interest in connection with such recovery. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 14.6 may, to the fullest extent permitted by law,
exercise all its rights of payment with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of such
participation.
14.7. Amendments and Waivers.
----------------------
(a) General Provisions. Unless otherwise provided for or required in
------------------
this Agreement, no amendment or modification of any provision of this Agreement
or any of the other Loan Documents shall be effective without the written
agreement of the Requisite Lenders (which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion) and the Borrower. In the
event that the Administrative Agent shall request the agreement of the Lenders
to any amendment, modification or waiver, if any Lender shall fail to respond to
any such request within fifteen (15) days after receipt of such request, such
Lender's approval thereto shall be deemed to have been given; provided, however,
that such request shall state, in capital letters that "FAILURE TO RESPOND TO
THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT, SHALL BE DEEMED CONSENT TO
THE ENCLOSED REQUEST". No termination or waiver of any provision of this
Agreement or any of the other Loan Documents, or consent to any departure by the
Borrower therefrom, shall be effective without the written concurrence of the
Requisite Lenders, which the Requisite Lenders shall have the right to grant or
withhold in their sole discretion. All amendments, waivers and consents not
specifically reserved to the Administrative Agent, the Arranger or the other
Lenders in Section 14.7(b), 14.7(c), and in other provisions of this Agreement
shall require only the approval of the Requisite Lenders. Any waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which it was given. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances.
(b) Amendments, Consents and Waivers by Affected Lenders. Any
----------------------------------------------------
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Section 6.1 (except
with respect to a condition based upon an other provision of this
Agreement, the waiver of which requires only the concurrence of the
Requisite Lenders),
(ii) increase in the amount of such Lender's Commitment,
(iii) reduction of the principal of, rate or amount of interest on the
Loans, or any fees or other amounts payable to such Lender (other than
by the payment or prepayment thereof), and
(iv) postponement or extension of any date (other than the Termination
Date postponement or extension of which is governed by Section
14.7(c)(i)) fixed for any payment of principal of, or interest on, the
Loans or any fees or other amounts payable to such Lender (except with
respect to any modifications of the application provisions relating to
prepayments of Loans and other Obligations which are governed by
Section 4.2(b)).
(c) Amendments, Consents and Waivers by All Lenders. Any amendment,
-----------------------------------------------
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement of the Termination Date, or increase in the Maximum
Credit Amount to any amount in excess of $130,000,000,
(ii) change in the definition of Requisite Lenders or in the aggregate
Pro Rata Share of the Lenders which shall be required for the Lenders
or any of them to take action hereunder or under the other Loan
Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this Agreement or
any of the other Loan Documents by the Borrower,
(v) waiver of any Event of Default under Section 11.1(a), Section
11.1(f) or Section 11.1(g), and
(vi) amendment or release of the Guaranty other than a release of any
Guarantor in connection with the sale, transfer or other disposition
thereof or the refinancing of any Project thereof otherwise permitted
hereunder.
(d) Administrative Agent Authority. Subject to the second succeeding
------------------------------
sentence of this subsection (d), the Administrative Agent may, but shall have no
obligation to, with the written concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Notwithstanding
anything to the contrary contained in this Section 14.7, no amendment,
modification, waiver or consent shall affect the rights or duties of the
Administrative Agent under this Agreement and the other Loan Documents, unless
made in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action. Notwithstanding anything herein to
the contrary, in the event that the Borrower shall have requested, in writing,
that any Lender agree to an amendment, modification, waiver or consent with
respect to any particular provision or provisions of this Agreement or the other
Loan Documents, and such Lender shall have failed to state, in writing, that it
either agrees or disagrees (in full or in part) with all such requests (in the
case of its statement of agreement, subject to satisfactory documentation and
such other conditions it may specify) within fifteen (15) days after such
request, then such Lender hereby irrevocably authorizes the Administrative Agent
to agree or disagree, in full or in part, and in the Administrative Agent's sole
discretion, to such requests on behalf of such Lender as such Lenders'
attorney-in-fact and to execute and deliver any writing approved by the
Administrative Agent which evidences such agreement as such Lender's duly
authorized agent for such purposes.
14.8. Notices. Unless otherwise specifically provided herein, any
-------
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent by facsimile transmission or by
courier service or United States certified mail and shall be deemed to have
been given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to Articles II, IV or XII shall not be effective
until received by the Administrative Agent.
For the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this Section 14.8) shall be as set
forth below each party's name on the signature pages hereof or the signature
page of any applicable Assignment and Acceptance, or, as to each party, at such
other address as may be designated by such party in a written notice to all of
the other parties to this Agreement.
14.9. Survival of Warranties and Agreements. All representations and
-------------------------------------
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and, in the case of any Lender that may assign any
interest in its Commitment or Loans hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder, and, except for the representations and warranties, the
termination of this Agreement other than any of the foregoing set forth in
Section 13.1 or Section 13.2 or Section 13.3 or Section 5.2(f) shall survive for
thirty (30) days after termination of this Agreement.
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative. No
-----------------------------------------------------
failure or delay on the part of the Administrative Agent or any other Lender in
the exercise of any power, right or privilege under any of the Loan Documents
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other right, power or privilege. All rights and remedies existing under
the Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
14.11. Payments Set Aside. To the extent that the Borrower makes a
------------------
payment or payments to the Administrative Agent, any Arranger or any other
Lender or any such Person exercises its rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all right and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
14.12. Severability. In case any provision in or obligation under this
------------
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
14.13. Headings. Section headings in this Agreement are included
--------
herein for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
14.14. Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
-------------
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
14.15. Limitation of Liability. No claim may be made by any Lender,
-----------------------
the Arranger, the Administrative Agent, or any other Person against any Lender
(acting in any capacity hereunder) or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith; and
each Lender, the Arranger and the Administrative Agent hereby waives, releases
and agrees not to ▇▇▇ upon any such claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
14.16. Successors and Assigns. This Agreement and the other Loan
----------------------
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. Except as otherwise
provided in Section 10.6, the rights hereunder of the Borrower, or any interest
therein, may not be assigned without the written consent of all Lenders.
14.17. Certain Consents and Waivers of the Borrower.
--------------------------------------------
(a) PERSONAL JURISDICTION. (i) EACH OF THE AGENT, THE LENDERS AND THE
---------------------
BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT
SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS
OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF
THE AGENTS, THE LENDERS AND THE BORROWER 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.
EACH OF THE AGENTS, THE LENDERS AND THE BORROWER WAIVES IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION
NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT AND THE OTHER
LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY OTHER LENDER. THE BORROWER WAIVES ANY OBJECTION THAT
IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE AGENT OR
ANY LENDER MAY COMMENCE A PROCEEDING DESCRIBED IN THIS SECTION.
(b) SERVICE OF PROCESS. THE BORROWER IRREVOCABLY CONSENTS TO THE
------------------
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE BORROWER'S NOTICE ADDRESS SPECIFIED
BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET
FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR
THE OTHER LENDERS TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY
OTHER JURISDICTION.
(C) WAIVER OF JURY TRIAL. EACH OF THE AGENT AND THE OTHER LENDERS AND
--------------------
THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. Counterparts; Effectiveness; Inconsistencies. This Agreement
--------------------------------------------
and any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
each Agent and Lender on the Closing Date. This Agreement and each of the other
Loan Documents shall be construed to the extent reasonable to be consistent one
with the other, but to the extent that the terms and conditions of this
Agreement are actually inconsistent with the terms and conditions of any other
Loan Document, this Agreement shall govern.
14.19. Limitation on Agreements. All agreements between the Borrower,
------------------------
the Administrative Agent, the Arranger and each Lender in the Loan Documents are
hereby expressly limited so that in no event shall any of the Loans or other
amounts payable by the Borrower under any of the Loan Documents be directly or
indirectly secured (within the meaning of Regulation U) by Margin Stock.
14.20. Disclaimers. The Administrative Agent, the Arranger and the
-----------
other Lenders shall not be liable to any contractor, subcontractor, supplier,
laborer, architect, engineer, tenant or other party for services performed or
materials supplied in connection with any work performed on the Projects,
including any TI Work. The Administrative Agent, the Arranger and the other
Lenders shall not be liable for any debts or claims accruing in favor of any
such parties against the Borrower or others or against any of the Projects. The
Borrower is not and shall not be an agent of the Agent, the Arranger or the
other Lenders for any purposes and none of the Lenders, the Arranger, or the
Agents shall be deemed partners or joint venturers with Borrower. None of the
Administrative Agent, the Arranger or the other Lenders shall be deemed to be in
privity of contract with any contractor or provider of services to any Project,
nor shall any payment of funds directly to a contractor or subcontractor or
provider of services be deemed to create any third party beneficiary status or
recognition of same by any of the Administrative Agent, the Arranger or the
other Lenders and the Borrower agrees to hold the Administrative Agent, the
Arranger and the other Lenders harmless from any of the damages and expenses
resulting from such a construction of the relationship of the parties or any
assertion thereof.
14.21. Entire Agreement. This Agreement, taken together with all of
----------------
the other Loan Documents, embodies the entire agreement and understanding among
the parties hereto and supersedes all prior agreements and understandings, writ
ten and oral, relating to the subject matter hereof.
14.22. Confidentiality. Each of the Agent, the Arranger and the
---------------
Lenders agrees to keep confidential all non-public information provided to it by
the Borrower pursuant to this Agreement that is designated by the Borrower as
confidential; provided that nothing herein shall prevent the Agents or the
Lenders from disclosing any such information (a) to the Agents, any other Lender
or any Affiliate of any Lender (provided such Affiliate is made aware of the
confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant (provided such Person is made aware of the confidentiality of such
information and agrees to keep such information confidential), (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of any Lender, Assignee, Participant, prospective Assignee or
Participant who are advised of the provisions of this Section, (d) upon the
request or demand of any Governmental Authority having or asserting
jurisdiction over either Agent or any Lender, (e) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with the exercise of any remedy hereunder or under any other Loan
Document or (i) upon the advice of counsel that such disclosure is required by
law.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWER:
METROPOLITAN OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: Metropolitan Partners LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name:
Title: Executive Vice President and
Chief Financial Officer
Notice Address:
--------------
Reckson Associates Realty Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Financial Officer
MORTGAGOR: (for the purposes set forth in Section 7.1(x) and Section 9.13 hereto
---------
only)
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, L.P.,
a Delaware limited partnership
By: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ LLC,
its general partner
By: Metropolitan Operating
Partnership, L.P.,
its managing member
By: Metropolitan Partners LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name:
Title: Executive Vice President
and Chief Financial
Officer
ADMINISTRATIVE AGENT
--------------------
AND LENDER: UBS AG, STAMFORD BRANCH
----------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
Name:
Title: Executive Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Name:
Title: Executive Director
Notice Address, Domestic and
Eurodollar Lending Office:
UBS AG, Stamford Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Pro Rata Share: 100%
Commitment: $130,000,000
ARRANGER AND
------------
BOOK MANAGER: WARBURG DILLON READ
------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name:
Title: Executive Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name:
Title: Executive Director
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
LIST OF EXHIBITS AND SCHEDULES
------------------------------
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Note
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Notice of Conversion/Continuation
Exhibit E List of Closing Documents
Exhibit F Form of Quarterly/Annual Compliance Certificate to Accompany
Reports
Exhibit G Sample Calculations of Financial Covenants
Schedule A Capitalization Rates
Schedule B Projects
Schedule 1.1.1 Existing Permitted Liens
Schedule 1.1.2 Permitted Securities Options
Schedule 6.1(d) Equity Changes
Schedule 7.1-A Organizational Documents
Schedule 7.1-C Corporate Structure; Outstanding Capital
Stock and Partnership Interests; Partnership Agreement
Schedule 7.1-H Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I Pending Actions
Schedule 7.1-P Environmental Matters
Schedule 7.1-Q ERISA Matters
Schedule 7.1-R Securities Activities
Schedule 7.1-T Insurance Policies
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms...........................................1
1.2. Computation of Time Periods....................................30
1.3. Accounting Terms...............................................31
1.4. Other Terms....................................................31
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans..........................................................31
2.2. Intentionally Omitted..........................................33
2.3. Use of Proceeds of Loans.......................................33
2.4. Termination Date...............................................33
2.5. Maximum Credit Facility........................................34
2.6. Authorized Agents..............................................34
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments.........................35
4.2. Payments.......................................................37
4.3. Promise to Repay; Evidence of Indebtedness.....................41
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations....................43
5.2. Special Provisions Governing Eurodollar Rate Loans.............45
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Loans..............................50
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower.................52
ARTICLE VIII
REPORTING COVENANTS
8.1. Borrower Accounting Practices..................................64
8.2. Financial Reports..............................................64
8.3. Events of Default..............................................68
8.4. Lawsuits.......................................................68
8.5. Intentionally Omitted..........................................69
8.6. ERISA Notices..................................................69
8.7. Environmental Notices..........................................71
8.8. Labor Matters..................................................72
Page
----
8.9. Notices of Asset Sales and/or Acquisitions.....................73
8.10. Notices of.....................................................73
8.11. Tenant Notifications...........................................73
8.12. Other Reports..................................................74
8.13. SEC Filings....................................................74
8.14. Capital Expenditure Summaries..................................74
8.15. Other Information..............................................74
ARTICLE IX
AFFIRMATIVE COVENANTS
9.1. Existence, Etc.................................................75
9.2. Powers; Conduct of Business....................................75
9.3. Compliance with Laws, Etc......................................75
9.4. Payment of Taxes and Claims....................................75
9.5. Insurance......................................................76
9.6. Inspection of Property; Books and Records; Discussions.........76
9.7. ERISA Compliance...............................................76
9.8. Maintenance of Property........................................77
9.9. Company Status.................................................77
9.10. Ownership of Projects, Minority Holdings and Property..........77
9.11. Ownership of Projects..........................................77
9.12. Negative Pledge................................................77
9.13. Affirmative Covenants of Mortgagor.............................78
ARTICLE X
NEGATIVE COVENANTS
10.1. Sale of Projects...............................................78
10.2. Intentionally Omitted..........................................78
10.3. Indebtedness...................................................78
10.4. Conduct of Business............................................78
10.5. Transactions with Partners and Affiliates......................79
10.6. Restriction on Fundamental Changes.............................79
10.7. Margin Regulations; Securities Laws............................79
10.8. ERISA..........................................................79
10.9. Organizational Documents.......................................80
10.10. Fiscal Year...................................................81
10.11. Financial Covenants...........................................81
10.12. Pro Forma Calculations........................................82
10.13. Negative Covenants with respect to the Company................83
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default.............................................84
11.2. Rights and Remedies...........................................87
ARTICLE XII
THE AGENTS
12.1. Appointment...................................................89
12.2. Nature of Duties..............................................89
Page
----
12.3. Right to Request Instructions.................................90
12.4. Reliance......................................................90
12.5. Indemnification...............................................91
12.6. Agent Individually............................................91
12.7. Successor Agents..............................................92
12.8. Relations Among the Lenders...................................92
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes.........................................................93
13.2. Increased Capital.............................................96
13.3. Changes; Legal Restrictions...................................97
13.4. Replacement of Certain Lenders................................98
13.5. Mitigation....................................................98
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations................................99
14.2. Expenses.....................................................102
14.3. Indemnity....................................................103
14.4. Change in Accounting Principles..............................104
14.5. Intentionally Omitted........................................104
14.6. Ratable Sharing..............................................104
14.7. Amendments and Waivers.......................................105
14.8. Notices......................................................107
14.9. Survival of Warranties and Agreements........................108
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative........108
14.11. Payments Set Aside...........................................108
14.12. Severability.................................................109
14.13. Headings.....................................................109
14.14. Governing Law................................................109
14.15. Limitation of Liability......................................109
14.16. Successors and Assigns.......................................109
14.17. Certain Consents and Waivers of the Borrower.................110
14.18. Counterparts; Effectiveness; Inconsistencies.................111
14.19. Limitation on Agreements.....................................111
14.20. Disclaimers..................................................111
14.21. Entire Agreement.............................................112
14.22. Confidentiality..............................................112