Exhibit 10.2
EXECUTION VERSION
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
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Dated as of June 26, 2003
among
THE ▇▇▇▇▇ LIMITED PARTNERSHIP,
as Borrower
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO,
as Lenders
FLEET NATIONAL BANK,
as Administrative Agent
and
FLEET SECURITIES, INC. and ▇.▇. ▇▇▇▇▇▇ SECURITIES, INC.,
as Co-Arrangers
and
JPMORGAN CHASE BANK and
EUROHYPO AG, NEW YORK BRANCH
as Co-Syndication Agents
and
COMMERZBANK AG, NEW YORK BRANCH and
HVB BANK IRELAND,
as Co-Documentation Agents
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS...............................................................................1
1.1. Certain Defined Terms................................................................1
1.2. Computation of Time Periods..........................................................26
1.3. Accounting Terms.....................................................................26
1.4. Other Terms..........................................................................27
ARTICLE II. AMOUNTS AND TERMS OF LOANS...............................................................27
2.1. Loans................................................................................27
2.2. Use of Proceeds of Loans.............................................................31
2.3. Revolving Credit Termination Date; Extension.........................................31
2.4. Letters of Credit....................................................................32
2.5. Maximum Credit Facility..............................................................35
2.6. Authorized Agents....................................................................35
2.7. [INTENTIONALLY OMITTED]..............................................................35
2.8. Sharing Event........................................................................36
ARTICLE III. PAYMENTS AND PREPAYMENTS................................................................38
3.1. Prepayments; Reductions in Revolving Credit Commitments..............................38
3.2. Payments.............................................................................39
3.3. Promise to Repay; Evidence of Indebtedness...........................................43
3.4. Currency Matters.....................................................................44
ARTICLE IV. INTEREST AND FEES........................................................................44
4.1. Interest on the Loans and other Obligations..........................................44
4.2. Special Provisions Governing Eurocurrency Rate Loans.................................47
4.3. Fees.................................................................................50
ARTICLE V. CONDITIONS TO LOANS AND ISSUANCE OF LETTERS OF CREDIT.....................................51
5.1. Conditions Precedent to the Initial Loans and Letters of Credit......................51
5.2. Conditions Precedent to All Subsequent Loans and Letters of Credit...................53
ARTICLE VI. REPRESENTATIONS AND WARRANTIES...........................................................54
6.1. Representations and Warranties of the Borrower.......................................54
ARTICLE VII. REPORTING COVENANTS.....................................................................61
7.1. Borrower Accounting Practices........................................................61
7.2. Financial Reports....................................................................61
7.3. Events of Default....................................................................64
7.4. Lawsuits.............................................................................64
7.5. Insurance............................................................................64
7.6. ERISA Notices........................................................................65
7.7. Environmental Notices................................................................66
7.8. Labor Matters........................................................................67
7.9. Notices of Asset Sales and/or Acquisitions...........................................67
7.10. Tenant Notifications................................................................67
7.11. Other Reports.......................................................................67
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7.12. Other Information...................................................................67
7.13. Credit Rating.......................................................................67
7.14. Tax Status..........................................................................67
ARTICLE VIII. AFFIRMATIVE COVENANTS..................................................................68
8.1. Existence, Etc.......................................................................68
8.2. Powers; Conduct of Business..........................................................68
8.3. Compliance with Laws, Etc............................................................68
8.4. Payment of Taxes and Claims..........................................................68
8.5. Insurance............................................................................68
8.6. Inspection of Property; Books and Records; Discussion................................69
8.7. ERISA Compliance.....................................................................69
8.8. Maintenance of Property..............................................................69
8.9. Company Status.......................................................................69
8.10. [INTENTIONALLY OMITTED].............................................................69
8.11. Distributions of Income to the Borrower.............................................69
8.12. Variable Rate Debt..................................................................70
8.13. Property Management.................................................................70
ARTICLE IX. NEGATIVE COVENANTS.......................................................................70
9.1. Sales of Assets......................................................................70
9.2. Liens................................................................................70
9.3. Conduct of Business..................................................................71
9.4. Transactions with Partners and Affiliates............................................71
9.5. Restriction on Fundamental Changes...................................................72
9.6. Margin Regulations; Securities Laws..................................................72
9.7. ERISA................................................................................72
9.8. Organizational Documents.............................................................72
9.9. Fiscal Year..........................................................................73
9.10. Indebtedness........................................................................73
9.11. Investments.........................................................................73
9.12. Other Financial Covenants...........................................................74
9.13. Stock Repurchase....................................................................75
9.14. Negative Pledge Clauses.............................................................75
9.15. Restriction on Prepayment of Indebtedness...........................................75
9.16. Other Loans.........................................................................76
ARTICLE X. EVENTS OF DEFAULT; RIGHTS AND REMEDIES....................................................76
10.1. Events of Default...................................................................76
10.2. Rights and Remedies.................................................................79
ARTICLE XI. THE AGENT................................................................................80
11.1. Appointment.........................................................................80
11.2. Nature of Duties....................................................................81
11.3. Right to Request Instructions.......................................................81
11.4. Reliance............................................................................82
11.5. Indemnification.....................................................................82
11.6. Administrative Agent Individually...................................................82
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11.7. Successor Administrative Agent......................................................82
11.8. Relations Among the Lenders.........................................................83
11.9. Notices.............................................................................83
11.10. No Representations.................................................................83
11.11. Co-Agents..........................................................................83
ARTICLE XII. YIELD PROTECTION........................................................................84
12.1. Taxes...............................................................................84
12.2. Increased Capital...................................................................86
12.3. Change in Legal Restrictions........................................................86
ARTICLE XIII. MISCELLANEOUS..........................................................................87
13.1. Assignments.........................................................................87
13.2. Expenses............................................................................89
13.3. Indemnity...........................................................................89
13.4. Change in Accounting Principles.....................................................90
13.5. Setoff..............................................................................90
13.6. Ratable Sharing.....................................................................90
13.7. Amendments and Waivers..............................................................91
13.8. Notices.............................................................................93
13.9. Survival of Warranties and Agreements...............................................93
13.10. Failure or Indulgence Not Waiver; Remedies Cumulative..............................93
13.11. Marshaling; Payments Set Aside.....................................................93
13.12. Severability.......................................................................93
13.13. Headings...........................................................................93
13.14. Governing Law......................................................................94
13.15. Limitation of Liability............................................................94
13.16. Successors and Assigns.............................................................94
13.17. Certain Consents and Waivers.......................................................94
13.18. Counterparts; Effectiveness; Inconsistencies.......................................95
13.19. Limitation on Agreements...........................................................96
13.20. Confidentiality....................................................................96
13.21. Disclaimers........................................................................96
13.22. Entire Agreement...................................................................97
13.23. Replacement Notes..................................................................97
13.24. Transitional Arrangements..........................................................97
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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 -- Form of Letter of Credit Request
Exhibit F -- List of Closing Documents
Exhibit G -- Form of Agreement Concerning Telephone Authorization
Exhibit H -- Form of Sample Calculation of Financial Covenants
Exhibit I -- Form of Amended and Restated Guaranty
Exhibit J -- Revolving Credit Commitments and Pro Rata Shares
Schedule D -- CVS Portfolio
Schedule 6.1-A -- Foreign Entities
Schedule 6.1-C -- Structure
Schedule 6.1-H -- Indebtedness for Borrowed Money
Schedule 6.1-I -- Pending Actions
Schedule 6.1-P -- Environmental Matters
Schedule 6.1-Q -- ERISA Matters
Schedule 6.1-T -- Insurance Policies
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AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT, dated as of June
26, 2003 (as amended, supplemented or modified from time to time, the
"AGREEMENT"), is entered into among THE ▇▇▇▇▇ LIMITED PARTNERSHIP, a Delaware
limited partnership (the "BORROWER"), the institutions from time to time parties
hereto as Lenders, whether by execution of this Agreement or an Assignment and
Acceptance, and FLEET NATIONAL BANK ("FLEET"), as the administrative agent (the
"ADMINISTRATIVE AGENT").
WHEREAS, the Borrower, Fleet and certain other lenders are party to
that certain
Revolving Credit Agreement dated as of May 20, 2002 (the "ORIGINAL
AGREEMENT"), pursuant to which Fleet and the other lenders have extended credit
to the Borrower on the terms set forth therein; and
WHEREAS, the Borrower, Fleet and the Lenders party hereto have agreed
to enter into this Agreement to amend and restate the Original Agreement in its
entirety as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, 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:
"ADJUSTED COMBINED EBITDA" means an amount equal to (i) Combined EBITDA
for any period, MINUS (ii) Recurring Land Sales of the Borrower and its wholly
owned subsidiaries for the same period as Combined EBITDA is measured, MINUS
(iii) the portion of Recurring Land Sales of Minority Holdings allocable to the
Borrower for the same period as Combined EBITDA is measured, MINUS (iv) Service
Revenues of the Borrower and its wholly owned subsidiaries for the same period
as Combined EBITDA is measured, MINUS (v) the portion of Service Revenues of
Minority Holdings allocable to the Borrower for the same period as Combined
EBITDA is measured, PLUS (vi) to the extent any debt is actually outstanding
under a construction loan made to a Minority Holding which is guaranteed by
Borrower, the EBITDA or total revenues or total expenses for the same period as
Combined EBITDA is measured, as applicable, allocable to non-Investment Grade
rated partners or members with Borrower in such Minority Holdings, from such
time as any of such debt shall be outstanding until such time as the guaranty of
payment has been reduced to the percentage of such loan equal to the percentage
ownership of the Borrower in such Minority Holding.
"ADMINISTRATIVE AGENT" means, initially as is defined in the PREAMBLE,
or any successor administrative agent appointed in accordance with SECTION 11.7
hereof.
"ADMINISTRATIVE AGENT'S HEAD OFFICE" means Administrative Agent's head
office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other location as the Administrative Agent may designate from time to time by
notice to the Borrower and the Lenders.
"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
1
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote fifteen percent (15.0%) 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; PROVIDED, HOWEVER, notwithstanding any of the
aforementioned, KanAm shall not be considered an "Affiliate" of the Borrower or
TMC.
"AGREEMENT" is defined in the PREAMBLE.
"ANNUAL EBITDA" means, with respect to any Property, for the
immediately preceding consecutive four fiscal quarters, an amount equal to (i)
total revenues relating to such Property for such period, LESS (ii) total
operating expenses relating to such Property for such period (it being
understood that the foregoing calculation shall exclude interest, income taxes
(but not real estate taxes), depreciation, amortization and other non-cash
charges as determined in accordance with GAAP and shall be adjusted for
non-recurring items such as sales of Properties or sales of Minority Holdings
(but allowing for Recurring Land Sales, subject to the limitations described in
the definition of Combined EBITDA)); PROVIDED, that for each Property which has
been owned by the Borrower, a Consolidated Business or a Minority Holding and
open for business (or acquired) for a period of less than the immediately
preceding consecutive four fiscal quarters, Annual EBITDA shall be calculated on
the basis of total revenues and total operating expenses (subject to the same
exclusions and adjustments, described above), determined for the immediately
preceding consecutive one, two or three fiscal quarters, as applicable with
respect to the length of such ownership and/or time the project has been
operating, for the period of the Borrower's ownership or since opening,
annualized; PROVIDED FURTHER, that for each Property which has been owned by the
Borrower, a Consolidated Business or a Minority Holding and open for business
(or acquired) for a period of less than one quarter, no amount shall be included
in calculating "Annual EBITDA"; PROVIDED, HOWEVER, that Annual EBITDA shall not
include revenues or expenses attributable to the CVS Portfolio.
"APPLICABLE LENDING OFFICE" means, with respect to a particular Lender,
(i) its Eurocurrency Lending Office in respect of provisions relating to
Eurocurrency Rate Loans and (ii) its Domestic Lending office in respect of
provisions relating to Base Rate Loans.
"APPLICABLE MARGIN" means, with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which the
Leverage Ratio, as evidenced by the most recent Compliance Certificate delivered
pursuant to SECTION 7.2, then falls, in accordance with the following table. Any
change in the Applicable Margin shall be effective on the first Business Day
after the receipt by Administrative Agent of the Compliance Certificate required
to be delivered to Administrative Agent pursuant to SECTION 7.2; PROVIDED that
if a Compliance Certificate required in SECTION 7.2 hereof has not been
delivered by the date such certificates are required to be delivered to
Administrative Agent, then from the date the applicable information is required
until the date the applicable information has been duly delivered, the greatest
Applicable Margin set forth below shall be deemed to apply; PROVIDED FURTHER,
that if less than thirty percent (30%) of the Combined EBITDA is derived from
Properties that are not wholly-owned by the Borrower and its wholly-owned
Subsidiaries, the Applicable Margin shall be the respective percentage per annum
determined from the following table minus 0.25%.
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Applicable Margin for Applicable Margin for
Eurocurrency Rate Loans Base Rate Loans
LEVERAGE RATIO (% PER ANNUM) (% PER ANNUM)
-------------- ------------- -------------
less than 45% 1.50% 0.25%
45% to less than 50% 1.75% 0.50%
50% to less than 55% 2.00% 0.75%
55% to less than 60% 2.25% 1.00%
60% to 65% 2.50% 1.25%
"APPROVED FUND" means (a) a CLO and (b) with respect to any Lender that
is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"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 13.1.
"AUTHORIZED FINANCIAL OFFICER" means a chief executive officer, chief
operating officer, chief financial officer, treasurer or other qualified senior
officer acceptable to the Administrative Agent.
"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 designated by the Administrative
Agent at Administrative Agent's Head Office from time to time, as
Administrative Agent'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 (rounded upwards, if necessary, to the next one-eighth of one
percent).
The Base Rate is a reference rate and does not necessarily represent the lowest
or best rate being charged to any customer. Any change in the rate of interest
payable hereunder resulting from a change in the Base Rate shall become
effective as of the opening of business on the day on which such change in the
Base Rate becomes effective, without notice or demand of any kind.
"BASE RATE LOAN" means a Loan which bears interest at a rate determined
by reference to the Base Rate and the Applicable Margin as provided in SECTION
4.1(a).
"BENEFIT PLAN" means a "defined benefit plan" as defined in Section
3(35) of ERISA and any other "pension plan" as defined in Section 3(2) of ERISA
subject to Section 302 of ERISA (other than a Multiemployer Plan) in respect of
which the Borrower or any ERISA Affiliate is, or within the
3
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or in respect of which the Borrower or any ERISA Affiliate has
assumed any liability.
"BORROWER" is defined in the PREAMBLE.
"BORROWING" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"BUSINESS DAY" means (i) 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 in the city and State
of the Administrative Agent's Head Office are located, or in
New York,
New York,
(ii) in the case of LIBOR Rate Loans, a LIBOR Business Day, and (iii) in the
case of Eurocurrency Rate Loans denominated in Optional Currency, a day
qualifying under clause (i) above and which is also a day on which (a) dealings
and exchanges in Dollars and in the relevant Optional Currency are carried on in
the Eurocurrency Interbank Market (and, if the Eurocurrency Rate Loans that are
the subject of a borrowing, payment or rate selection are denominated in Euros,
a day on which such clearing systems as are determined by the Administrative
Agent to be suitable for clearing or settlement of the Euro are open for
business) and (b) such Optional Currency and Dollar settlements of such dealings
may be effected in
New York,
New York or 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 Borrower's or any of
its Subsidiaries' fixed asset accounts as reflected in any of their respective
balance sheets; PROVIDED, HOWEVER, (i) Capital Expenditures shall include,
whether or not such a designation would be in conformity with GAAP, (a) that
portion of payments under Capital Leases which is capitalized on the
Consolidated balance sheet of the Borrower and its Subsidiaries and (b)
expenditures for Equipment which is purchased simultaneously with the trade-in
of existing Equipment owned by the Borrower or any of its Subsidiaries, to the
extent the gross purchase price of the purchased Equipment exceeds the book
value of the Equipment being traded in at such time; and (ii) Capital
Expenditures shall exclude, whether or not such a designation would be in
conformity with GAAP, expenditures made in connection with the restoration of
Property, to the extent reimbursed or financed from insurance or condemnation
proceeds.
"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 VALUE" means, as of any date of determination, the sum
of (i) the Adjusted Combined EBITDA (excluding the Regional Mall Assets) for the
immediately preceding consecutive four fiscal quarters divided by 9.00%, (ii)
Service Revenues for such period divided by 15.00%, (iii) Cash and Cash
Equivalents of the Borrower and its Subsidiaries (including the Borrower's pro
rata share of the Minority Holdings' Cash and Cash Equivalents), (iv) Other
Assets at Cost, and (v) the Adjusted Combined EBITDA of the Regional Mall Assets
for the immediately preceding consecutive four (4) fiscal quarters divided by
8.5%; PROVIDED, HOWEVER, that for purposes of calculating Capitalization Value,
(A) the value of Other Assets at Cost shall be included only to the extent that
the aggregate amount thereof included in the sum of (i), (ii), (iii), (iv) and
(v), (1) with respect to the value of all Other Assets at Cost, does not exceed
twenty-five percent (25%) of such sum, (2) with respect to the value of
Construction
4
Assets at Cost, does not exceed twenty-two and one-half percent (22.5%) of such
sum, and (3) with respect to the value of Other Assets at Cost (not including
Construction Assets at Cost), does not exceed five percent (5%) of such sum; and
(B) the value of any assets owned by the Borrower or other members of the Group
for less than one (1) year shall be included at the book value or historical
cost of such assets.
"CASH AND CASH EQUIVALENTS" means (i) unrestricted cash, (ii)
Securities issued or directly or fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof (PROVIDED, that the
full faith and credit of the United States of America is pledged in support
thereof); and (iii) unrestricted domestic and LIBOR 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 ▇▇▇▇▇'▇ (any
such bank an "APPROVED BANK"), maturing within one year from the date of
acquisition, (iv) commercial paper issued by any Approved Bank or by the parent
company of any Approved Bank and commercial paper issued by, or guaranteed by,
any industrial or financial company with a short-term commercial paper rating of
at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by ▇▇▇▇▇'▇, or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or ▇▇▇▇▇'▇, as the case may be, and in each case maturing within one
year after the date of acquisition, (v) marketable direct obligations issued by
the District of Columbia or any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either S&P
or ▇▇▇▇▇'▇ and (vi) investments in money market funds substantially all the
assets of which are comprised of securities of the any type described in any one
or more of clauses (i) through (vi) above, but without regard to the maturity
date of the underlying assets of any such money market fund.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. ▇▇.▇▇. 9601 ET SEQ., any amendments
thereto, any successor statutes, and any regulations or guidance having the
force of law promulgated thereunder.
"CHANGE IN CONTROL" shall exist upon the occurrence of any of the
following:
(a) TMC shall cease to be the sole general partner of Borrower; or
(b) TMC shall cease to own at least fifty percent (50%) of the
economic interest of the Borrower; PROVIDED, that a Change in Control shall not
be deemed to have occurred under this clause (b) solely as a result of KanAm
holding fifty percent (50%) or more of the economic interest of the Borrower so
long as (i) any nominees of any member of KanAm comprise less than fifty percent
(50%) of the Board of Directors of TMC, (ii) in any event KanAm is the
beneficial owner of securities representing less than forty percent (40%) of the
combined voting power of the outstanding securities of TMC, and (iii) in any
event TMC owns at least thirty-five percent (35%) of the economic interest of
the Borrower; or
(c) any Person (including a Person's Affiliates and associates) or
group (as that term is understood under Section 13(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and the rules and regulations
thereunder), other than TMC or any wholly-owned Subsidiary of TMC, shall have
acquired after the Closing Date beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of a percentage (based on voting power, in the
event different classes of stock shall have different voting powers) of the
voting stock of TMC equal to at least twenty-five percent (25%); PROVIDED, that
a Change in Control shall not be deemed to have occurred under this clause
5
(c) solely as a result of KanAm acquiring at least twenty-percent (25%) of the
voting stock of TMC so long as (i) any nominees of any member of KanAm comprise
less than fifty percent (50%) of the Board of Directors of TMC and (ii) in any
event KanAm is the beneficial owner of securities representing less than forty
percent (40%) of the combined voting power of the outstanding securities of TMC;
or
(d) during any twelve-month period on or after the Closing Date,
individuals who at the beginning of such period constituted the Board of
Directors of TMC (together with any new directors whose election by the Board of
Directors or whose nomination for election by the shareholders of TMC was
approved by a vote of at least a majority of the members of the Board of
Directors then in office who either were members of the Board of Directors at
the beginning of such period or whose election or nomination for election was
previously so approved) ceased for any reason to constitute a majority of the
members of the Board of Directors of TMC then in office.
"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.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of such
Lender.
"CLOSING DATE" means June 26, 2003.
"CO-ARRANGERS" means Fleet Securities, Inc. and ▇.▇. ▇▇▇▇▇▇
Securities, Inc.
"CO-DOCUMENTATION AGENTS" means Commerzbank AG,
New York Branch and HVB
Bank Ireland.
"COMBINED EBITDA" means the sum of (i) 100% of the Annual EBITDA, Other
Operations, Management Fees, Service Revenues and Recurring Land Sales of the
Borrower and its wholly-owned Subsidiaries with respect to the Properties and
entities wholly-owned by the Borrower or any such Subsidiary; and (ii) the
portion of the Annual EBITDA, the Other Operations, Management Fees, the Service
Revenues and Recurring Land Sales of the Minority Holdings allocable to the
Borrower in accordance with GAAP, PROVIDED, HOWEVER, that Combined EBITDA shall
include Annual EBITDA allocable to the Recurring Land Sales (whether of the
Borrower, its wholly-owned Subsidiaries or any Minority Holdings) only to the
extent that Annual EBITDA allocable to the Recurring Land Sales does not exceed
seven percent (7.00%) of Combined EBITDA and also that Combined EBITDA shall
include Combined EBITDA allocable to the Service Revenues (whether of the
Borrower, its wholly-owned Subsidiaries or any Minority Holdings) only to the
extent that Annual EBITDA allocable to the Service Revenues does not exceed ten
percent (10.00%) of Combined EBITDA; and PROVIDED, FURTHER, Combined EBITDA
shall not include Annual EBITDA allocable to the Real Property known as the CVS
Portfolio. The Other Operations, Management Fees, Service Revenues and Recurring
Land Sales shall be measured for the same period as the Annual EBITDA.
"COMBINED EQUITY VALUE" means Capitalization Value minus Total
Adjusted Outstanding Indebtedness.
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"COMBINED INTEREST EXPENSE" means, for any period, the sum of (i)
interest expense of the Consolidated Businesses paid or accrued in accordance
with GAAP during such period and (ii) the portion of the interest expense of
Minority Holdings allocable to the Borrower paid or accrued in accordance with
GAAP during such period, in each case excluding extraordinary interest expense
and prepayment fees, premiums or penalties and net of amortization of deferred
costs associated with new financings or refinancings of existing Indebtedness;
PROVIDED, that with respect to Properties that the Borrower, a Consolidated
Business or a Minority Holding has owned and/or has been opened for less than
one year and which is included in the calculation of Annual EBITDA above, the
interest expense with respect thereto (incurred in connection with any Loans
made in connection with the acquisition and/or construction of such Property or
in connection with any mortgage loans entered into or assumed in connection
therewith) shall be determined by annualizing the actual interest expense paid
or accrued in accordance with GAAP during the time that such Property has been
so owned and/or been so opened; PROVIDED further that Combined Interest Expense
shall not include any dividends payable by Borrower or TMC on the Series A
Preferred Interests prior to the sale, waiver, release, termination or other
cancellation by the holders of the Series A Preferred Interests of their option
to convert the Series A Preferred Interests to common equity of TMC or Borrower.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMPLIANCE CERTIFICATE" is defined in SECTION 7.2(b).
"CONSOLIDATED" means consolidated in accordance with GAAP.
"CONSOLIDATED BUSINESSES" means TMC, the Borrower and their respective
wholly-owned Subsidiaries.
"CONSTRUCTION ASSETS" means any Property which is raw land, vacant
out-parcels, or Property on which construction of material improvements has
commenced and is continuing to be performed (such commencement evidenced by
foundation excavation) but has not yet produced one full quarter of EBITDA (as
such completion shall be evidenced by such Property being opened for business to
the general public) and any other non-income producing real estate investment.
"CONSTRUCTION ASSETS AT COST" means, with respect to all Construction
Assets, the aggregate sums expended on the construction of such improvements
including land acquisition costs; PROVIDED THAT, for purposes of making any
calculation under this Agreement, "Construction Assets at Cost" of Construction
Assets held by Minority Holdings that are not Consolidated in accordance with
GAAP (such as those held in a joint venture format) will be equal to (without
duplication) the sum of (a) the Borrower's contributed equity, (b) the
Borrower's pro-rata share of debt from items that are not Consolidated in
accordance with GAAP, (c) the Borrower's Contingent Obligations related to items
that are not Consolidated in accordance with GAAP, to the extent not redundant
with (b), plus (d) any (non-Borrower) co-venturer's equity in such items that
are not Consolidated in accordance with GAAP to the extent that such
co-venturer's share of debt was included in the calculation of the Borrower's
Total Adjusted Outstanding Indebtedness.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos (in any form or condition),
polychlorinated biphenyls (PCBs), or any constituent of any such substance or
waste, and includes, but is not limited to, these terms as defined in federal,
state or local laws or regulations; PROVIDED, HOWEVER, that "Contaminant" shall
not include the foregoing items to the extent (i)
7
the same exist on the applicable Property in negligible or customary amounts and
are stored and used in accordance with all Environmental, Health or Safety
Requirements of Law or (ii) are used in connection with a tire or battery retail
store provided the same are stored, sold and used in accordance with all
Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATIONS" means as to any Person (the "GUARANTEEING
PERSON"), without duplication, (i) the amount of any contingent obligation of
such Person required to be shown on such Person's balance sheet in accordance
with GAAP, and (ii) the amount of any obligation required to be disclosed in the
footnotes to such Person's financial statements in accordance with GAAP, which
obligation guarantees or in effect guarantees any Indebtedness, leases,
dividends or other obligations (the "PRIMARY OBLIGATIONS") of any other Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, (d) to reimburse, indemnify or otherwise
protect any other person for any advance of funds, issuance of a letter of
credit or undertaking of other obligations by such person for the benefit of the
primary obligor, or (e) otherwise to assure or hold harmless the owner of any
such primary obligation against loss in respect thereof; PROVIDED, HOWEVER, that
the term Contingent Obligation shall not include (x) endorsements of instruments
for deposit or collection in the ordinary course of business, or (y) guarantees
or indemnification given to a lender in connection with any non-recourse
Indebtedness of Borrower, its Subsidiaries or Minority Holdings, with respect to
claims that (A) are based on fraud, intentional misrepresentation,
misapplication of funds, gross negligence or willful misconduct, (B) result from
intentional mismanagement of or waste at such Real Property securing such
non-recourse Indebtedness, (C) arise from the presence of any Contaminant on
such Real Property securing such non-recourse Indebtedness, (D) are the result
of any unpaid real estate taxes and assessments relating to the Real Property
securing such non-recourse Indebtedness, (E) arise as a result of a voluntary
bankruptcy filing, or (F) are based on any usual and customary exclusions for
non-recourse limitations governing any non-recourse Indebtedness of Borrower,
its Subsidiaries and Minority Holdings, in each case, until such claim is made
with respect thereto, and then only to the extent of the amount of such claim.
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 above provisions, in the case of a joint and
several guaranty given by such Person and another Person (but only to the extent
such guaranty is not non-recourse debt, directly or indirectly to the applicable
guarantor), the amount of the guaranty shall be deemed to be 100% thereof unless
and so long as such other Person holds an Investment Grade Credit Rating. The
amount of such Person's guaranty to be included in Contingent Obligations shall
be reduced by an amount equal to the Contingent Obligation Amount, or in the
event such other Person does not hold an Investment Grade Credit Rating, by an
amount based on the creditworthiness of such other Person as such amount is
determined by all of the Lenders.
"CONTINGENT OBLIGATION AMOUNT" means the sum of (i) the total amount of
the obligations guaranteed pursuant to any joint and several guaranty multiplied
by a fraction the numerator of which is the amount of the guaranteed obligations
attributable (pursuant to an agreement among the guarantors) to the guarantors
(other than such GUARANTEEING PERSON) holding an Investment Grade Credit Rating
and the denominator of which is the total amount of the obligations guaranteed
pursuant to such joint and several guaranty and (ii) the total amount of the
obligations guaranteed multiplied by the product of (a) a fraction the numerator
of which is the amount of such guaranteed obligations attributable (pursuant to
an
8
agreement among the guarantors) to the guarantors (other than such GUARANTEEING
PERSON) not holding an Investment Grade Credit Rating and the denominator of
which is the total amount of the obligations guaranteed pursuant to such joint
and several guaranty times (b) a fraction the numerator of which is the amount
of such guaranteed obligations attributable (pursuant to an agreement among the
guarantors) to the guarantors (other than such GUARANTEEING PERSON) holding an
Investment Grade Credit Rating and the denominator of which is the amount of
such guaranteed obligations attributable (pursuant to an agreement among the
guarantors) to the guarantors (including such GUARANTEEING PERSON) holding an
Investment Grade Credit Rating.
"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.
"CO-SYNDICATION AGENTS" means JPMorgan Chase Bank and EuroHypo AG,
New
York Branch.
"CREDIT RATING" means the publicly announced senior unsecured debt
rating of a Person given by ▇▇▇▇▇'▇ or S&P.
"CURE LOANS" is defined in SECTION 3.2(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
utility or governmental charges in all cases which are not yet overdue
or which are being contested in good faith by appropriate proceedings
in accordance with SECTION 8.4 and with respect to which adequate
reserves or other appropriate provisions, if any, are being maintained
in accordance with GAAP;
(ii) statutory Liens of landlords or Equipment lessors against
any Property of the Borrower or any of its Subsidiaries and Liens
against any Property in favor of suppliers, mechanics, carriers,
materialmen, warehousemen or workmen and other Liens against any
Property imposed by law created in the ordinary course of business for
amounts which are being contested in good faith by appropriate
proceedings in accordance with SECTION 8.4 and with respect to which
adequate reserves or other appropriate provisions, if any, are being
maintained in accordance with GAAP;
(iii) 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, indemnity, judgment or award and performance
bonds; PROVIDED THAT (A) all such Liens do not in the aggregate
materially detract from the value of the Group's assets or Property
(taken as a whole) 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 do not secure at any time an aggregate amount
of recourse Indebtedness exceeding $20,000,000;
(iv) Liens against any Property arising with respect to zoning
restrictions, easements, operating agreements, licenses, reservations,
covenants, rights-of-way, utility easements, building restrictions and
other similar charges or encumbrances on the use of Real Property which
do not
9
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries, and do not secure the payment of
borrowed money, or materially affect the value thereof or, taken
together, to the extent they would not be likely to result in a
Material Adverse Effect; and
(v) Restrictions under applicable federal and state
securities laws on the transfer of securities.
"CVS PORTFOLIO" means the single tenant net lease properties owned by
the Subsidiaries of the Borrower that are operated by third parties as CVS
pharmacies as indicated on SCHEDULE D hereto.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR EQUIVALENT" means, on any particular date, with respect to any
amount denominated in Dollars, such amount in Dollars, and with respect to any
amount denominated in any Optional Currency, the amount (as conclusively
ascertained by the Administrative Agent absent manifest error) of Dollars which
could be purchased by the Administrative Agent (in accordance with its normal
banking practices) in the London foreign currency deposit market with such
amount of currency at the spot rate of exchange prevailing at or about 11:00
a.m. (London time) on such date.
"DOLLARS" and "$" mean the lawful money of the United States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, such
Lender's office 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.
"EBITDA" means, for any period of determination, earnings before
interest, taxes, depreciation and amortization (positive or negative), net of
any gains or losses from any foreign currency contracts.
"ELIGIBLE ASSIGNEE" means (i) a Lender or any Affiliate thereof; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (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 $500,000,000 or is otherwise 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, in
each case as applicable to the Borrower or its Property.
"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.
10
"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 which is personal property used in
connection with the maintenance of Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C.ss.ss.1000 ET SEQ., any amendments thereto, any successor statutes, and
any regulations or guidance having the force of law 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 partnership 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 Reportable Event with respect to
any Benefit 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 TMC or any
ERISA Affiliate; (iii) the imposition of an obligation on the Borrower or TMC 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
constitutes 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 TMC or any ERISA Affiliate from a
Multiemployer Plan.
"EURIBOR RATE" means, as applicable to any Interest Period for any
Eurocurrency Rate Loan denominated in Euros, the rate of interest equal to (a)
the per annum rate as determined by the Administrative Agent on the basis of
offered rates for deposits in Euros for the period of time comparable to such
Interest Period that appears on the Reuters Screen EURIBOR01 as of 11:00 a.m.
(Brussels time) on the date that is two (2) TARGET Settlement Days preceding the
first day of such Interest Period; PROVIDED, HOWEVER, if such rate described
above does not appear on the Reuters Screen EURIBOR01 on any applicable
determination date, the EURIBOR Rate shall be the rate equal to the arithmetic
mean determined by the Administrative Agent (rounded upwards to the nearest
0.01%) of the rates per annum at which deposits in Euros are offered by three
(3) major banks in the Eurocurrency Interbank Market at approximately 11:00 a.m.
(London time) on the day that is two (2) TARGET Settlement Days preceding the
first day of such Interest Period to other leading banks in the Eurocurrency
Interbank Market at which deposits in Euros are offered, adjusted for reserves,
DIVIDED BY (b) a number equal to 1.00 MINUS the Reserve Percentage, if
applicable.
"EURO" or "EURO" The euro referred to in the Council Regulation (EC)
No. 1103/97 dated 17 June 1997 passed by the Council of the European Union, or,
if different, the then lawful currency of the member states of the European
Union that participate in the third stage of the Economic and Monetary Union.
11
"EUROCURRENCY AFFILIATE" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurocurrency 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.
"EUROCURRENCY INTERBANK MARKET" Any lawful recognized market in which
deposits of Dollars and the relevant Optional Currency are offered by
international banking units of United States banking institutions and by foreign
banking institutions to each other and in which foreign currency and exchange
operations or eurocurrency funding operations are customarily conducted.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurocurrency 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.
"EUROCURRENCY RATE" (a) With respect to amounts denominated in Dollars,
the LIBOR Rate, (b) with respect to amounts denominated in Euros, the EURIBOR
Rate, and (c) with respect to amounts denominated in any other Optional Currency
other than the Euro, the International Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan bearing interest calculated by
reference to the Eurocurrency Rate.
"EVENT OF DEFAULT" means any of the occurrences set forth in SECTION
10.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in SECTION 10.1.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of
New York, or, if such
rate is not so published, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected 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.
"FEE LETTER" means the Fee Letter dated as of June 9, 2003 between the
Borrower, Fleet, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank and the Co-Arrangers.
"FFO" means net income, as determined in accordance with GAAP,
excluding gains (or losses) from debt restructuring, sales of property (except
Recurring Land Sales) and any foreign currency contracts, plus depreciation and
amortization, and after adjustments for unconsolidated partnerships and joint
ventures (which will be calculated to reflect funds from operations on the same
basis).
"FINANCIAL STATEMENTS" means (i) quarterly and annual Consolidated
statements of income and retained earnings, statements of cash flow, and balance
sheets, (ii) such other financial statements as the Borrower shall routinely and
regularly prepare and publish on a quarterly or annual basis, and (iii) such
other regularly prepared financial statements of the Consolidated Businesses or
Minority Holdings as the Administrative Agent or the Requisite Lenders may from
time to time reasonably specify; PROVIDED, HOWEVER, that the Financial
Statements referenced in clauses (i) and (ii) above shall be prepared in form
reasonably satisfactory to the Administrative Agent.
12
"FISCAL YEAR" means the fiscal year of 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, for the immediately preceding consecutive four
fiscal quarters, the sum of (a) Combined Interest Expense and (b) the aggregate
of all scheduled principal payments on Total Adjusted Outstanding Indebtedness
according to GAAP made or required to be made during such fiscal period for the
Consolidated Businesses and Minority Holdings (but excluding balloon payments of
principal due upon the stated maturity of an Indebtedness), and (c) the
aggregate of all dividends payable on the preferred stock of the Consolidated
Businesses not owned by the Borrower or any of its Affiliates.
"FLEET" is defined in the PREAMBLE.
"FUNDING DATE" means, with respect to any Loan, the date of funding of
such Loan.
"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).
"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 Property.
"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.
"GROUP" means TMC, the Borrower and/or their Subsidiaries.
"GUARANTY" means that certain Guaranty, dated as of even date herewith,
made by TMC in favor of the Administrative Agent, as agent for the Lenders,
guaranteeing the payment and performance of the Obligations of the Borrower
hereunder, substantially in the form of EXHIBIT I attached hereto and made a
part hereof .
"HOLDER" means any Person entitled to enforce any of the Obligations,
whether or not such Person holds any evidence of Indebtedness, including,
without limitation, the Administrative Agent and each other Lender.
"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 or hereafter located thereon and used in the
operation thereof, excluding (i) any such items owned by utility service
providers, (ii) any such items owned by tenants or other third-parties and (iii)
any items of personal property.
"INDEBTEDNESS" means, as applied to any Person 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, fees and charges relating thereto, (ii) under profit
payment agreements that are not contingent or in respect of obligations to
redeem, repurchase or exchange any Securities of such Person or agreements
13
to pay dividends in respect of any stock (excluding any ordinary declaration of
a dividend), (iii) with respect to letters of credit or bankers' acceptances
issued for such Person's account, (iv) to pay the deferred purchase price of
acquired property or rendered services, except accounts payable and accrued
expenses arising in the ordinary course of business, (v) in respect of Capital
Leases or "synthetic leases", or (vi) which are Contingent Obligations; (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; (c) all indebtedness,
obligations or other liabilities of such Person in respect of interest rate
contracts, foreign exchange contracts and derivatives contracts (but excluding
interest rate and foreign exchange contracts entered into in the ordinary course
of business for the purpose of hedging or locking interest rates or foreign
currency exchange rates with respect to outstanding project-related financings
that are (1) non-recourse to the Borrower, TMC or the Consolidated Businesses,
or (2) recourse to the Borrower, TMC or the Consolidated Businesses, to the
extent that such recourse obligations in the aggregate do not exceed two percent
(2%) of the then outstanding Indebtedness of the Borrower, TMC or the
Consolidated Businesses), 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, excluding any Series A
Preferred Interests prior to the sale, waiver, release, termination or other
cancellation by the holders of the Series A Preferred Interests of their option
to convert the Series A Preferred Interests to common equity of TMC or Borrower;
and (e) all Contingent Obligations with respect to any of the foregoing;
PROVIDED, HOWEVER, that Indebtedness shall not include any indebtedness
attributable to the CVS Portfolio; and PROVIDED further that Indebtedness shall
not include any obligation of TMC or Borrower to redeem any interest of KanAm in
any Minority Holding until such time as such obligation is triggered.
"INDEMNIFIED MATTERS" is defined in SECTION 13.3.
"INDEMNITEES" is defined in SECTION 13.3.
"INITIAL FUNDING DATE" means the date on or after the Closing Date, on
which all of the conditions described in SECTION 5.1 have been satisfied (or
waived) in a manner satisfactory to the Administrative Agent and on which the
initial Loans under this Agreement are made by the Lenders to the Borrower.
"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 having the force of law promulgated
thereunder.
"INTEREST PERIOD" means, with respect to each Eurocurrency Rate Loan,
(a) initially, the period commencing on the Funding Date of such Loan and ending
on the last day of one of the following periods, as selected by the Borrower in
a Notice of Borrowing or as otherwise required by the terms of this Agreement
(i) for any Eurocurrency Rate Loan other than a LIBOR Rate Loan, 1, 2, or 3
months or 6 months if approved by and available from all Lenders with Revolving
Credit Tranche B Commitments; and (ii) for any LIBOR Rate Loan, 1, 2, 3, or 6
months, one week with the approval of all Lenders, or one year if available from
all Lenders; and (b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Loan and ending on the last
day of one of the periods set forth above, as selected by the Borrower in a
Notice of Conversion/Continuation; PROVIDED that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Eurocurrency Rate
Loan would otherwise end on a day that is not a Business Day, that
Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding Business Day;
14
(B) any Interest Period relating to any Eurocurrency Rate Loan
(other than one (1) week LIBOR Rate Loans) that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month; and
(C) the Borrower may not select an Interest Period that
terminates beyond the Revolving Credit Termination Date.
"INTEREST RATE DETERMINATION DATE" is defined in SECTION 4.2(c).
"INTERNATIONAL EUROCURRENCY RATE" means, as applicable to any Interest
Period for a Eurocurrency Rate Loan denominated in any Optional Currency other
than Euros, the rate of interest equal to (a) the rate per annum as determined
by the Administrative Agent on the basis of offered rates for deposits in such
Optional Currency other than Euros for the period of the time comparable to such
Interest Period that appears on Reuters Screen FRBD or the applicable Reuters
Screen for such Optional Currency as of 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period, PROVIDED, HOWEVER, (i) if Reuters Screen
FRBD or the applicable Reuters Screen for such Optional Currency is not
available to the Administrative Agent for any reason, the applicable
International Eurocurrency Rate for the relevant Eurocurrency Interest Period
shall instead be the applicable British Bankers' Association Interest Settlement
Rate for deposits in the applicable Optional Currency as reported by any other
generally recognized financial information service as of 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available, the applicable
International Eurocurrency Rate for the relevant Interest Period shall be the
rate determined by the Administrative Agent, as the rate at which the
Administrative Agent offers to place deposits in the applicable Optional
Currency with other major banks in the London interbank market at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period, in the approximate amount of Fleet's relevant Eurocurrency Rate
Loan and having a maturity equal to such Eurocurrency Interest Period, divided
by (b) a number equal to 1.00 minus the Reserve Percentage, if applicable.
"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,
and (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. The amount of any
Investment shall be the original cost of such Investment, plus the cost of all
additions thereto less the amount of any return of capital or principal to the
extent such return is in cash with respect to such Investment without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment.
"INVESTMENT GRADE" means (i) with respect to ▇▇▇▇▇'▇ a Credit Rating of
Baa3 or higher and (ii) with respect to S&P, a Credit Rating of BBB- or higher.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING LENDER" means, as the context may require, Fleet, in its
capacity as the Lender issuing the Letters of Credit. In the event that the
credit rating of Fleet shall not be sufficient to satisfy the credit
requirements of the beneficiary of a Letter of Credit, Administrative Agent and
Borrower may request
15
that a Co-Syndication Agent or a Co-Documentation Agent having the required
credit rating issue such Letter of Credit, and any such Person, if it elects to
issue such Letter of Credit, shall also be an Issuing Lender.
"KANAM" means KanAm US, Inc. and all of its Subsidiaries and
Affiliates.
"KNOWLEDGE" with reference to any member of the Group, means the actual
knowledge of an executive officer of such Person after reasonable inquiry (which
reasonable inquiry shall include, without limitation, interviewing and
questioning such other Persons as the Borrower or such Subsidiary of the
Borrower, 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 Real Property,
including all amendments, supplements, modifications and assignments, thereof
and all side letters or side agreements relating thereto.
"LENDER" means each of 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 a
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). The Issuing Lender and the Swing
Lender shall each be a Lender, as applicable.
"LETTER OF CREDIT" means any standby letter of credit issued at the
request of the Borrower and for the account of the Borrower in accordance with
SECTION 2.4 hereof.
"LETTER OF CREDIT OBLIGATIONS" means the sum, as of any date of
determination, of the Tranche A Letter of Credit Obligations and the Tranche B
Letter of Credit Obligations.
"LETTER OF CREDIT REQUEST" means a request substantially in the form of
EXHIBIT E attached hereto and made a part hereof.
"LEVERAGE RATIO" means the ratio, expressed as a percentage, of the
Total Adjusted Outstanding Indebtedness to the Capitalization Value.
"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.
"LIBOR BUSINESS DAY" means a day on which commercial banks are open for
international business (including dealings in Dollar deposits) in the London
Interbank Market.
"LIBOR RATE" means, as applicable to any Interest Period for any LIBOR
Rate Loan, the rate per annum as determined on the basis of the offered rates
for deposits in Dollars, for the period of time comparable to such Interest
Period that appears on the Dow ▇▇▇▇▇ Market Service (formerly known as Telerate)
page 3750 as of 11:00 a.m. London time on the day that is two (2) LIBOR Business
Days preceding the first day of such Interest Period; PROVIDED, HOWEVER, if the
rate described above does not appear on the Dow ▇▇▇▇▇ Market Service on any
applicable interest determination date, the LIBOR Rate shall be the rate
(rounded upwards to the nearest one-hundred thousandth of one percent, if
necessary) for deposits in Dollars for a period substantially equal to the
Interest Period on the Reuters Page "LIBO" (or
16
such other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London Time), on the day that is two
(2) LIBOR Business Days prior to the beginning of such Interest Period. If both
the Dow ▇▇▇▇▇ Market Service and Reuters systems are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in Dollars for a period of time comparable to such Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the day that is two (2) LIBOR Business Days preceding
the first day of such Interest Period as selected by Administrative Agent. The
principal London office of each of the four major London banks will be requested
to provide a quotation of its U.S. dollar deposit offered rate. If at least two
such quotations are provided, the rate for that date will be the arithmetic mean
of the quotations. If fewer than two quotations are provided, the rate for that
date will be determined on the basis of the rates quoted for loans in Dollars to
leading European banks for a period of time comparable to such Interest Period
offered by major banks in
New York City at approximately 11:00 a.m. (New York
City time), on the day that is two (2) LIBOR Business Days preceding the first
day of such Interest Period. In the event that Administrative Agent is unable to
obtain any such quotation as provided above, it will be deemed that the LIBOR
Rate pursuant to a LIBOR Rate Loan cannot be determined and the provisions of
SECTION 4.2(d) shall apply. In the event that the Board of Governors of the
Federal Reserve System shall impose a Reserve Percentage with respect to LIBOR
deposits of Administrative Agent, then for any period during which such Reserve
Percentage shall apply, the LIBOR Rate shall be equal to the amount determined
above divided by an amount equal to 1 minus the Reserve Percentage.
"LIBOR RATE LOAN" means a Loan which bears interest at a rate
determined by reference to the LIBOR Rate and the Applicable Margin for
Eurocurrency Rate Loans, as provided in SECTION 4.1(a).
"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 (that has the practical effect of creating a security
interest in respect of such asset), 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.
"LIMITED MINORITY HOLDINGS" means Minority Holdings in which (i) the
Borrower, individually or together with its Affiliates, has less than a 25%
ownership interest or (ii) the Borrower, individually or together with its
Affiliates, has not less than a 25%, nor more than a 50%, ownership interest and
does not control or share with its Affiliates or other Person by contract
control of the management of such Minority Holdings, whether as the general
partner or managing member of such Minority Holding, or otherwise. As used in
this definition only, the term "control" shall mean, in accordance with GAAP,
the authority to make major management decisions or the management of day-to-day
operations of such entity and shall include instances in which the Borrower
manages the day-to-day leasing, management, control or development of the
Properties of such Minority Holding pursuant to the terms of a management
agreement.
"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" means a loan 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.
17
"LOAN ACCOUNT" is defined in SECTION 3.3(b).
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty, the
Letter of Credit Requests, and all other instruments, agreements and written
Contractual Obligations between the Borrower and any of the Lenders pursuant to
or in connection with the transactions contemplated hereby.
"MANAGEMENT FEES" means for a specified period, all amounts recorded by
the Group, or its pro-rata share received through Minority Holdings (which are
not consolidated in accordance with GAAP), as management fees.
"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 TMC, the Borrower and their respective
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
obligations under the Loan Documents, or (iii) the ability of the Lenders or the
Administrative Agent to enforce any of the Loan Documents.
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time, the
aggregate amount of the Revolving Credit Commitments at such time.
"MINORITY HOLDINGS" means partnerships, joint ventures, corporations,
limited liability companies or other business associations held or owned
directly or indirectly by the Borrower which are not directly or indirectly
wholly-owned by the Borrower.
"MOODY'S" means ▇▇▇▇▇'▇ Investor Services, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
3(37) of ERISA which is, or within the immediately preceding six (6) years was,
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.
"NON PRO RATA LOAN" is defined in SECTION 3.2(b)(v).
"NOTE" means a promissory note substantially in the form attached
hereto as EXHIBIT B payable to a Lender, evidencing certain of the Revolving
Credit Obligations of the Borrower and executed by the Borrower as required by
SECTION 3.3(a), as the same may be amended, supplemented, modified or restated
from time to time; "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 4.1(c).
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, reimbursement obligations relating to Letters of Credit, covenants
and duties owing by the Borrower to the Administrative Agent, any other Lender,
any Affiliate of the Administrative Agent, any other Lender, or any Person
entitled to indemnification pursuant to SECTION 13.3 of this Agreement, of any
kind or nature, arising under this Agreement, the Notes or any other Loan
Document. The term includes, without
18
limitation, all interest, charges, 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, its chief operating
officer, or its treasurer and, as to a partnership, a certificate executed on
behalf of such partnership by the chairman of the board of directors (if an
officer of such corporation) or chief executive officer, president, any
vice-president, chief financial officer, chief operating officer, or treasurer
of the general partner of such partnership.
"OP UNITS" means any class or series of partnership interests of the
Borrower now or hereafter authorized, issued or outstanding.
"OPTIONAL CURRENCY" means Euros or Sterling, so long as (a) (i) such
currency is readily available to all Lenders and is freely transferable and
freely convertible to Dollars and (ii) the Dow ▇▇▇▇▇ Markets Service (or any
successor thereto) reports Eurocurrency interbank rates for such currency for
interest periods of 1, 2, 3, or, if approved by and available from all Lenders
with Revolving Credit Tranche B Commitments, 6 months, and (b) such currency is
requested by the Borrower.
"ORIGINAL AGREEMENT" is defined in the recitals.
"ORGANIZATIONAL DOCUMENTS" means, with respect to any corporation,
limited liability company, or partnership (i) the articles/certificate of
incorporation, formation or limited partnership (or the equivalent
organizational documents) of such corporation or limited liability company or
limited partnership, (ii) the operating agreement executed by the members in the
limited liability company or 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 partnership, 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. Sections 651 ET SEQ., any amendments thereto, any successor statutes and
any regulations or guidance having the force of law promulgated thereunder.
"OTHER ASSET" means for any member of the Group, (i) any other asset
(but without duplication of other assets included in Capitalization Value) which
is included in the Consolidated balance sheet of the Group and is not a
Construction Asset and (ii) the Borrower's pro-rata share (determined in
accordance with GAAP) of any other assets that are not on the Consolidated
balance sheet of the Group, such as those owned through Minority Holdings which
are not Consolidated in accordance with GAAP and are not Construction Assets.
"OTHER ASSETS AT COST" means, individually or in the aggregate, the
book value or historical cost of Other Assets plus Construction Assets at Cost.
"OTHER OPERATIONS" means, for a specified period, (i) all amounts
recorded by the Group as EBITDA for such period in accordance with GAAP, or the
Group's pro-rata share of EBITDA for such period received through Minority
Holdings (which are not consolidated in accordance with GAAP), MINUS (without
duplication) (ii) the aggregate amounts of Service Revenues, Annual EBITDA,
Recurring Land Sales, and Management Fees that are included in such amounts of
EBITDA for such period.
19
"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 pursuant to Requirements of
Law, including any Governmental Approvals.
"PERMITTED REIT DISTRIBUTIONS" means the minimum amount necessary for
TMC to maintain its tax status as a REIT.
"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 is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or the Borrower or any ERISA Affiliate has assumed 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" is defined in SECTION 3.1(d).
"PROCESS AGENT" is defined in SECTION 13.17(a).
"PROPERTY" means any Real Property or personal property, plant,
building, facility, structure, underground storage tank or unit, equipment,
general intangible, receivable, or other asset owned, leased or operated by any
Consolidated Business or any Minority Holding (including any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (i) such Lender's Revolving Credit Commitments, Revolving
Credit Tranche A Commitments or Revolving Credit Tranche B Commitments, as
applicable (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 Lenders' Revolving
Credit Commitments, Revolving Credit Tranche A Commitments or Revolving Credit
Tranche B Commitments, as applicable.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Sections 6901 ET SEQ., any amendments thereto, any successor statutes,
and any regulations or guidance having the force of law promulgated thereunder.
"REAL PROPERTY" means all of the Borrower's and its Subsidiaries' and
Minority Holdings' 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, (iv) all hereditaments, gas, oil,
minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in, on or
benefiting the Premises and
20
(v) 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 CLAUSES (III)
and (IV) above.
"RECURRING LAND SALES" means sales of outparcels and/or pad sales.
"REFERENCE BANK" means Fleet.
"REFUNDED SWING LOANS" has the meaning set forth in SECTION
2.1(c)(iii).
"REFUNDING DATE" has the meaning as set forth in SECTION 2.1(c)(iV).
"REGIONAL MALL ASSETS" means Broward Mall, Dover Mall, Galleria at
White Plains, Northpark Mall, The Esplanade, Riverside Square, Gwinnett Place,
Town Center at ▇▇▇▇ and Del Amo and other similar properties with (i) two or
more traditional anchor tenants, each of which has a long term lease or is the
owner of the site upon which the anchor tenant is located and (ii) gross
leaseable space in excess of 500,000 square feet; PROVIDED, that such other
regional mall assets must be approved by the Administrative Agent.
"REGISTER" is defined in SECTION 13.1(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 to 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(b)
of ERISA and the regulations having the force of law 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 Organizational
Documents of such Person, and any law, rule or regulation, or determination of
an arbitrator or a court or other Governmental
21
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 of the
Revolving Credit Commitments, in the aggregate, are equal to or greater than
sixty-six and two thirds percent (66-2/3%); 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 or acquire its Pro Rata Share of any Letter of
Credit Obligations which such Lenders are obligated to fund or acquire under the
terms of this Agreement and any such failure has not been cured as provided in
SECTION 3.2(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 or acquire their respective Pro Rata
Shares of such Letter of Credit Obligations have not been so cured) whose Pro
Rata Shares of the Revolving Credit Commitments represent more than sixty-six
and two thirds percent (66-2/3%) of the aggregate Pro Rata Shares of such
Lenders; PROVIDED, FURTHER, HOWEVER, that, in the event that the Revolving
Credit 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 and Pro Rata Share of Letters of Credit Obligations are greater than
sixty-six and two thirds percent (66-2/3%) .
"RESERVE PERCENTAGE" means for any day with respect to a Eurocurrency
Rate Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves (including, without limitation,
all base, supplemental, marginal and other reserves) under Regulation D of the
Board of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D or any successor or similar
regulation), if such liabilities were outstanding. The Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in the
Reserve Percentage.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Maximum Revolving Credit Amount at such time exceeds the sum
of the Revolving Credit Obligations and the Letter of Credit Obligations at such
time.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Lender, the
sum of such Lender's Revolving Credit Tranche A Commitment and Revolving Credit
Tranche B Commitment and "REVOLVING CREDIT COMMITMENTS" means the aggregate
principal amount of the Revolving Credit Commitments of all the Lenders, the
maximum amount of which shall be $500,000,000, as reduced from time to time
pursuant to SECTION 3.1.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of the Dollar Equivalent of outstanding principal amount of the Revolving Credit
Tranche A Obligations and the Revolving Credit Tranche B Obligations at such
time.
"REVOLVING CREDIT PERIOD" means the period from the Initial Funding
Date to the Business Day next preceding the Revolving Credit Termination Date.
"REVOLVING CREDIT TERMINATION DATE" means the earlier to occur of (i)
June 26, 2006 (or, if extended by the Borrower pursuant to Section 2.3, June 26,
2007); PROVIDED, that if the date set forth in
22
this clause (i) is not a Business Day, then the preceding Business Day); and
(ii) the date of termination of the Revolving Credit Commitments pursuant to the
terms of this Agreement.
"REVOLVING CREDIT TRANCHE A AVAILABILITY" means, at any particular
time, the amount by which the Revolving Credit Tranche A Commitments at such
time exceeds the sum of the Revolving Credit Tranche A Obligations and the
Tranche A Letter of Credit Obligations at such time.
"REVOLVING CREDIT TRANCHE A COMMITMENT" means, with respect to any
Lender, the obligation of such Lender to make Revolving Credit Tranche A Loans
and participate in Tranche A Letters of Credit pursuant to the terms and
conditions of this Agreement, and which shall not exceed the principal amounts
set forth on EXHIBIT J attached hereto and made a part 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 "REVOLVING CREDIT TRANCHE A
COMMITMENTS" means the aggregate principal amount of the Revolving Credit
Tranche A Commitments of all the Lenders, the maximum amount of which shall be
$450,000,000, as reduced from time to time pursuant to SECTION 3.1.
"REVOLVING CREDIT TRANCHE A LOANS" means Loans made by the Lenders
pursuant to SECTIONS 2.1(a) and 2.1(c), to the extent that such loans are
deemed, pursuant to SECTIONS 2.1(a) and 2.1(c)(i), as applicable, to be a use of
the Revolving Credit Tranche A Commitment.
"REVOLVING CREDIT TRANCHE A OBLIGATIONS" means, at any particular time,
the outstanding principal amount of the Revolving Credit Tranche A Loans at such
time.
"REVOLVING CREDIT TRANCHE B AVAILABILITY" means, at any particular
time, the amount by which the Revolving Credit Tranche B Commitments at such
time exceeds the sum of the Revolving Credit Tranche B Obligations and the
Tranche B Letter of Credit Obligations at such time.
"REVOLVING CREDIT TRANCHE B COMMITMENT" means, with respect to any
Lender, the obligation of such Lender to make Revolving Credit Tranche B Loans
and participate in Tranche B Letters of Credit pursuant to the terms and
conditions of this Agreement, and which shall not exceed the principal amounts
set forth on EXHIBIT J attached hereto and made a part 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 "REVOLVING CREDIT TRANCHE B
COMMITMENTS" means the aggregate principal amount of the Revolving Credit
Tranche B Commitments of all the Lenders, the maximum amount of which shall be
$50,000,000, as reduced from time to time pursuant to SECTION 3.1.
"REVOLVING CREDIT TRANCHE B LOANS" means Loans made by the Lenders
pursuant TO SECTIONS 2.1(b) and 2.1(c), to the extent that such loans are
deemed, pursuant to SECTIONS 2.1(a) and 2.1(c)(i), as applicable, to be a use of
the Revolving Credit Tranche B Commitment.
"REVOLVING CREDIT TRANCHE B OBLIGATIONS" means, at any particular time,
the Dollar Equivalent of the outstanding principal amount of the Revolving
Credit Tranche B Loans at such time.
"S&P" means Standard & Poor's Ratings Services, a Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien on
Property of the Borrower and any Subsidiary of the Borrower (other than
Indebtedness secured by a pari passu Lien granted in
23
accordance with SECTION 9.2(b)). Secured Indebtedness shall also include
Borrower's pro rata share of any Indebtedness of Minority Holdings that is
secured by a Lien on Property of Minority Holdings.
"SECURED LEVERAGE RATIO" means the ratio, expressed as a percentage, of
the Total Adjusted Outstanding Indebtedness that consists of Secured
Indebtedness to the Capitalization Value.
"SECURITIES" means any stock, shares, voting trust certificates,
partnership or limited liability company 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.
"SERIES A PREFERRED INTERESTS" means the outstanding Series A
Cumulative Convertible Preferred Stock of TMC and the underlying Series A
Preferred OP Units of Borrower.
"SERVICE REVENUES" means for a specified period all amounts recorded in
accordance with GAAP by the Group, or its pro-rata share received through
Minority Holdings (which are not consolidated in accordance with GAAP) as
leasing commissions and/or development fees.
"SHARING EVENT" shall mean (i) the occurrence of an Event of Default
with respect to the Borrower or TMC pursuant to clauses (f) or (g) of SECTION
10.1, (ii) the termination of the Revolving Credit Commitments pursuant to
SECTION 10.2 or (iii) the acceleration of the Loans pursuant to SECTION 10.2.
"SOLVENT", when used with respect to any Person, means that at the time
of determination:
(i) the fair saleable value of its assets 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.
"STERLING" or "L" means the lawful money of the United Kingdom.
"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
24
directly or indirectly owned or controlled by such Person, one or more of the
other Subsidiaries of such Person or any combination thereof.
"SWING LENDER" means Fleet or, if requested by the Borrower, another
Lender designated by the Borrower from among those institutions identified by
the Administrative Agent as permissible Swing Lenders.
"SWING LOAN" means a Loan made by the Swing Lender pursuant to SECTION
2.1(c).
"SWING LOAN COMMITMENT" means the lesser of (i) $30,000,000 and (ii)
the Revolving Credit Availability.
"SWING LOAN REFUND AMOUNT" has the meaning set forth in SECTION
2.1(c)(iii).
"TARGET SETTLEMENT DAY" Any day on which the Trans-European Automated
Real-Time Gross Settlement Transfer (TARGET) System is open.
"TAXES" as defined in SECTION 12.1(a) hereof.
"TENANT ALLOWANCE" means a cash allowance paid to a tenant by the
landlord pursuant to a Lease.
"TERM LOAN AGREEMENT" means the Credit Agreement, dated as of May 20,
2002, among the Borrower, Bayerische Hypo- Und Vereinsbank, AG, acting by and
through its New York Branch, as agent, co-lead arranger and bookrunner, and
Commerzbank AG, New York Branch, as documentation agent and co-lead arranger,
and the other lenders party thereto, as the same may be amended, modified or
restated.
"TIF GUARANTEE" means collectively that certain guarantee dated
December 19, 2001, given by Colorado ▇▇▇▇▇ Limited Partnership to Denver West
Metropolitan District with respect to property taxes and assessment and that
certain guarantee contained in the Disposition and Development Agreement dated
December 20, 1994, given by TMC to Ontario Redevelopment Agency with respect to
property taxes and assessments, and any similar guarantees now or hereafter
entered into by TMC, Borrower or any of their respective Subsidiaries or
Minority Holdings.
"TI WORK" means any construction or other "buildout" of tenant
leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant's furniture, fixtures and equipment) performed 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.
"TMC" is The ▇▇▇▇▇ Corporation, a Delaware corporation, which is the
General Partner of the Borrower.
"TMLP PARTNERSHIP AGREEMENT" means that certain Limited Partnership
Agreement of the Borrower dated April 21, 1994, as such agreement has been
heretofore amended, restated, modified and supplemented and as such agreement
hereafter may be amended, restated, modified or supplemented from time to time
with the consent of the Administrative Agent or as permitted under SECTION 9.8.
"TOTAL ADJUSTED OUTSTANDING INDEBTEDNESS" means, for any period, the
sum (without duplication) of (i) the amount of Indebtedness of the Consolidated
Businesses set forth or required to be set forth on the then most recent
quarterly financial statements of TMC, the Borrower and its wholly-owned
Subsidiaries (without duplication), (ii) the outstanding amount of Indebtedness
of Minority Holdings pro
25
rata allocable to the Borrower as of the time of determination, and (iii)
without duplication, the Contingent Obligations (including, subject to clause
(1) of the proviso immediately following, the TIF Guarantee) of the Consolidated
Businesses and, to the extent allocable to the Consolidated Businesses in
accordance with GAAP, of the Minority Holdings; PROVIDED, HOWEVER, that for
purposes of this calculation only, the term "Indebtedness" shall not include (1)
the TIF Guarantee (provided that the exclusion for the TIF Guarantee shall not
exceed 2% of Capitalization Value), (2) (for purposes of avoiding double
counting relating to the same underlying obligations) Indebtedness with respect
to the letters of credit issued to support guaranties of interest or interest
and principal, (3) operating income guaranties or other performance guaranty or
completion guaranty obligations, or (4) Contingent Obligations relating to the
obligations of any Investment Grade rated, or as otherwise approved by the
Lenders, co-venturer.
"TRANCHE A LETTER OF CREDIT" shall mean any standby letter of credit
issued at the request of the Borrower and for the account of the Borrower
against the Revolving Credit Tranche A Commitment in accordance with SECTION
2.4.
"TRANCHE A LETTER OF CREDIT OBLIGATIONS" shall mean the sum, as of any
date of determination, of (i) the maximum amount which the Issuing Lender may be
required to pay on such date or at any future time under Tranche A Letters of
Credit, plus (ii) the aggregate amount of all payments that have been made by
Issuing Lender with respect to the Tranche A Letters of Credit but have not been
reimbursed by the Borrower or converted into Loans pursuant to SECTION 2.4
hereof.
"TRANCHE B LETTER OF CREDIT" shall mean any standby letter of credit
issued at the request of the Borrower and for the account of the Borrower
against the Revolving Credit Tranche B Commitment in accordance with SECTION
2.4.
"TRANCHE B LETTER OF CREDIT OBLIGATIONS" shall mean the sum, as of any
date of determination, of the Dollar Equivalents of (i) the maximum amount which
the Issuing Lender may be required to pay on such date or at any future time
under Tranche B Letters of Credit, plus (ii) the aggregate amount of all
payments that have been made by Issuing Lender with respect to the Tranche B
Letters of Credit but have not been reimbursed by the Borrower or converted into
Loans pursuant to SECTION 2.4 hereof.
"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.
"UNUSED FACILITY FEE" is defined in SECTION 4.3(a).
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 but excluding" and the words "to" and "until" each mean "to
and including." 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, on 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 13.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
26
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) REVOLVING CREDIT TRANCHE A LOANS. Subject to the terms and
conditions set forth in this Agreement (including, without limitation, SECTION
2.5), each Lender with a Revolving Credit Tranche A Commitment hereby severally
and not jointly agrees to make revolving loans, in Dollars (each individually, a
"REVOLVING CREDIT TRANCHE A LOAN" and, collectively, the "REVOLVING CREDIT
TRANCHE A LOANS") to the Borrower from time to time during the Revolving Credit
Period, in an amount not to exceed such Lender's Pro Rata Share of the Revolving
Credit Tranche A Availability at such time. All Revolving Credit Tranche A Loans
comprising the same Borrowing under this Agreement shall be made by the Lenders
with a Revolving Credit Tranche A Commitment 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 Revolving Credit Tranche A Loan hereunder nor shall the
Revolving Credit Tranche A 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 Revolving Credit Tranche A Loan on any day
which is a Business Day and any amounts so repaid may be reborrowed, up to the
amount available under this SECTION 2.1(a) at the time of such Borrowing, until
the Business Day next preceding the Revolving Credit Termination Date. Each
requested Borrowing of Revolving Credit Tranche A Loans funded on any Funding
Date shall be in a principal amount of at least $2,000,000 in the case of a
LIBOR Rate Loan or $1,000,000 in the case of any other Loan and in integral
multiples of $500,000 in excess of such amount; provided, HOWEVER, that if the
aggregate Revolving Credit Tranche A Availability at the time of such requested
Borrowing is less than $2,000,000 in the case of a LIBOR Rate Loan or $1,000,000
in the case of any other Loan, then the requested Borrowing shall be for the
total amount of the Revolving Credit Tranche A Availability. Notwithstanding any
other provision of this Agreement to the contrary, (a) each Borrowing
denominated in Dollars (whether bearing interest at the LIBOR Rate or the Base
Rate) shall be a Revolving Credit Tranche A Loan and shall be deemed to use the
Revolving Credit Tranche A Commitments, unless the Revolving Credit Tranche A
Commitments have been fully used and are not available at such time for such
Borrowing, in which case such Borrowing denominated in Dollars shall be a
Revolving Credit Tranche B Loan and shall be deemed to use the Revolving Credit
Tranche B Commitments, if such Revolving Credit Tranche B Commitments are
available, and (b) each Borrowing denominated in an Optional Currency shall be a
Revolving Credit Tranche B Loan and shall be deemed to use the Revolving Credit
Tranche B Commitments, if such Revolving Credit Tranche B Commitments are
available.
(b) REVOLVING CREDIT TRANCHE B LOANS. Subject to the terms and
conditions set forth in this Agreement (including, without limitation, SECTION
2.5), each Lender with a Revolving Credit Tranche B Commitment hereby severally
and not jointly agrees to make revolving loans, in Dollars and/or, at the
Borrower's option from time to time, subject to SECTION 4.2 hereof, in an
Optional Currency (each individually, a "REVOLVING CREDIT TRANCHE B LOAN" and,
collectively, the "REVOLVING CREDIT TRANCHE B LOANS") to the Borrower from time
to time during the Revolving Credit Period, in an amount the Dollar Equivalent
of which does not exceed such Lender's Pro Rata Share of the Revolving Credit
Tranche B Availability at such time. All Revolving Credit Tranche B Loans
comprising the same Borrowing under this Agreement shall be made by the Lenders
with a Revolving Credit Tranche B Commitment 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
27
Revolving Credit Tranche B Loan hereunder nor shall the Revolving Credit Tranche
B 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 Revolving Credit Tranche B Loan on any day which is a Business Day
and any amounts so repaid may be reborrowed, up to the amount available under
this SECTION 2.1(b) at the time of such Borrowing, until the Business Day next
preceding the Revolving Credit Termination Date. Each requested Borrowing of
Revolving Credit Tranche B Loans funded on any Funding Date shall be in a
principal amount of at least $2,000,000 in the case of a LIBOR Rate Loan
denominated in Dollars or the Dollar Equivalent of $1,000,000 in the case of any
other Loan (including a Loan made in an Optional Currency) and in integral
multiples of the Dollar Equivalent of $500,000 in excess of such amount;
PROVIDED, HOWEVER, that if the aggregate Revolving Credit Tranche B Availability
at the time of such requested Borrowing is less than $2,000,000 in the case of a
LIBOR Rate Loan denominated in Dollars or $1,000,000 in the case of any other
Loan, then the requested Borrowing shall be for the total amount of the
aggregate Revolving Credit Tranche B Availability.
(c) SWING LOANS.
(i) BASIC TERMS. During the term of this Agreement,
the Swing Lender agrees, on the terms and conditions set forth
in this Agreement, to make loans in Dollars to the Borrower
pursuant to this SECTION 2.1(c)(i) from time to time in
amounts such that the aggregate principal amount of Swing
Loans does not at any time exceed the Swing Loan Commitment.
Each Borrowing under this SECTION 2.1(c)(i) shall be in an
aggregate principal amount of at least $2,000,000 and in
integral multiples of $1,000,000 in excess of such amount.
Within the foregoing limits, the Borrower may borrow under
this SECTION 2.1(c)(i), repay or, to the extent permitted by
SECTION 3.1, prepay Swing Loans and reborrow at any time
during the term of this Agreement under this SECTION
2.1(c)(i). Notwithstanding anything to the contrary contained
herein, the Swing Lender shall not make a Swing Loan without
the consent of the Requisite Lenders after the occurrence and
during the continuance of a Potential Event of Default or
without the consent of all of the Lenders after the occurrence
and during the continuance of an Event of Default.
Notwithstanding any other provision of this Agreement to the
contrary, each Swing Loan shall be a Revolving Credit Tranche
A Loan and shall be deemed to use the Revolving Credit Tranche
A Commitments, unless the Revolving Credit Tranche A
Commitments have been fully used and are not available at such
time for such Borrowing, in which case such Swing Loan shall
be a Revolving Credit Tranche B Loan and shall be deemed to
use the Revolving Credit Tranche B Commitments, if such
Revolving Credit Tranche B Commitments are available.
(ii) REPAYMENT AND INTEREST. Each Swing Loan is due
and payable on the earliest to occur of (a) four (4) Business
Days after the date of the making of such Swing Loan, (b) the
date of the next Borrowing under the Revolving Credit
Commitments that is not a Swing Loan, (c) the Revolving Credit
Termination Date, and (d) the last day of any calendar
quarter. Except as otherwise provided in SECTION 4.1(d), Swing
Loans shall bear interest at a rate per annum equal to the
Federal Funds Rate plus the Applicable Margin for Base Rate
Loans.
(iii) CONVERSION OF SWING LOANS TO COMMITTED LOANS.
The Swing Lender (A) may, at any time in its sole discretion
with respect to any outstanding Swing Loans or (B) shall, on
any of the dates set forth in clauses (a) - (d) of SECTION
2.1(c)(ii), on behalf of the Borrower (which hereby
irrevocably directs the Swing Lender to act on its behalf),
request each Lender to make, and each Lender hereby agrees to
make, a Base Rate Loan, in an amount (with respect to each
Lender, its "SWING LOAN REFUND AMOUNT") equal to
28
such Lender's Pro Rata Share of the applicable Revolving
Credit Commitments with respect to the aggregate principal
amount of the Swing Loans (the "REFUNDED SWING LOANS")
outstanding on the date of such notice, to repay the Swing
Lender. Unless any of the events described in clause (f) or
(g) of SECTION 10.1 with respect to the Borrower or TMC shall
have occurred and be continuing (in which case the procedures
of SECTION 2.1(c)(iv) shall apply), each Lender shall make
such Base Rate Loan available to the Administrative Agent at
the Administrative Agent's Head Office, in immediately
available funds, not later than 12:00 noon (Boston time), on
the Business Day immediately following the date of such
request. The Administrative Agent shall pay the proceeds of
such Base Rate Loans to the Swing Lender, which shall
immediately apply such proceeds to repay Refunded Swing Loans.
Effective on the day such Base Rate Loans are made, the
portion of the Swing Loans so paid shall no longer be
outstanding as Swing Loans, shall no longer be due as Swing
Loans under the Note held by the Swing Lender, and shall be
due as Base Rate Loans under the respective Notes issued to
the Lenders (including the Swing Lender) in accordance with
their Pro Rata Share of the applicable Revolving Credit
Commitments. The Borrower authorizes the Swing Lender to
charge the Borrower's accounts with the Administrative Agent
(up to the amount available in each such account) in order to
immediately pay the amount of such Refunded Swing Loans to the
extent amounts received from the Lenders are not sufficient to
repay in full such Refunded Swing Loans.
(iv) PURCHASE OF PARTICIPATIONS IN SWING LOANS. If,
prior to the time Loans would have otherwise been made
pursuant to SECTION 2.1(c)(iii), one of the events described
in clause (f) or (g) of SECTION 10.1 with respect to the
Borrower or TMC shall have occurred and be continuing, each
Lender shall, on the date such Loans were to have been made
pursuant to the request referred to in SECTION 2.1(c)(iii)
(the "REFUNDING DATE"), purchase an undivided participating
interest in the Swing Loans in an amount equal to such
Lender's Swing Loan Refund Amount. On the Refunding Date, each
Lender shall transfer to the Swing Lender, in immediately
available funds, such Lender's Swing Loan Refund Amount, and
upon receipt thereof the Swing Lender shall deliver to such
Lender a Swing Loan participation certificate dated the date
of the Swing Lender's receipt of such funds and in the Swing
Loan Refund Amount of such Lender.
(v) PAYMENTS ON PARTICIPATED SWING LOANS. Whenever,
at any time after the Swing Lender has received from any
Lender such Lender's Swing Loan Refund Amount pursuant to
SECTION 2.1(c)(iii), the Swing Lender receives any payment on
account of the Swing Loans in which the Lenders have purchased
participations pursuant to SECTION 2.1(c)(iv), the Swing
Lender will promptly distribute to each such Lender its
ratable share (determined on the basis of the Swing Loan
Refund Amounts of all of the Lenders) of such payment
(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's
participating interest was outstanding and funded); PROVIDED,
HOWEVER, that in the event that such payment received by the
Swing Lender is required to be returned, such Lender will
return to the Swing Lender any portion thereof previously
distributed to it by the Swing Lender.
(vi) OBLIGATIONS TO REFUND OR PURCHASE PARTICIPATIONS
IN SWING LOANS ABSOLUTE. Each Lender's obligation to transfer
the amount of a Loan to the Swing Lender as provided in
SECTION 2.1(c)(iii) or to purchase a participating interest
pursuant to SECTION 2.1(c)(iv) shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender, the
Borrower or any other Person may have
29
against the Swing Lender or any other Person, other than the
Swing Lender's gross negligence or willful misconduct in
connection with making any such Swing Loan, (B) the occurrence
or continuance of a Potential Event of Default or an Event of
Default or the termination or reduction of the Revolving
Credit Commitments, (C) any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person,
(D) any breach of this Agreement by the Borrower, any other
Lender or any other Person, or (E) any other circumstance,
happening or event whatsoever, whether or not similar to any
of the foregoing.
(d) NOTICE OF BORROWING. When the Borrower desires to borrow under
this SECTION 2.1, it shall deliver to the Administrative Agent a Notice of
Borrowing, signed by it (i) no later than 11:00 a.m. (Boston time) on the
Business Day immediately preceding the proposed Funding Date, in the case of a
Borrowing of Base Rate Loans, (ii) no later than 11:00 a.m. (Boston time) at
least three (3) Business Days in advance of the proposed Funding Date, in the
case of a Borrowing of Eurocurrency Rate Loans denominated in Dollars, (iii) no
later than 11:00 a.m. (Boston time) at least four (4) Business Days in advance
of the proposed Funding Date, in the case of a Borrowing of Eurocurrency Rate
Loans denominated in an Optional Currency and (iv) no later than 10:00 a.m.
(Boston time) on the proposed Funding Date, in the case of a Borrowing of Swing
Loans. Such Notice of Borrowing shall specify (i) the proposed Funding Date
(which shall be a Business Day), (ii) the type and amount of the proposed
Borrowing in the requested currency, (iii) the Revolving Credit Tranche A
Availability, or Revolving Credit Tranche B Availability, as applicable, as of
the date of such Notice of Borrowing, (iv) whether the proposed Borrowing will
be of Base Rate Loans or Eurocurrency Rate Loans, (v) in the case of
Eurocurrency Rate Loans, the currency of the requested Loan and whether it is a
Loan using the LIBOR Rate, the EURIBOR Rate or the International Eurocurrency
Rate, (vi) in the case of LIBOR Rate Loans, the requested Interest Period, and
(vii) instructions for the disbursement of the proceeds of the proposed
Borrowing. In lieu of delivering such a Notice of Borrowing (except with respect
to a Borrowing of Loans on the Initial Funding Date), the Borrower may give the
Administrative Agent telephonic notice of any proposed Borrowing by the time
required under this SECTION 2.1(d), if the Borrower confirms such notice by
delivery of the Notice of Borrowing to the Administrative Agent by facsimile
transmission promptly, but in no event later than 12:00 noon (Boston time) on
the same day. Any Notice of Borrowing (or telephonic notice in lieu thereof,
when properly confirmed in accordance with this SECTION 2.1(d)) given pursuant
to this SECTION 2.1(d) shall be irrevocable.
(e) MAKING OF LOANS. Promptly after receipt of a Notice of
Borrowing under SECTION 2.1(d) (or telephonic notice in lieu thereof), the
Administrative Agent shall notify each Lender (or the Swing Lender in the case
of Notice of Borrowing for a Swing Loan) by facsimile transmission, or other
similar form of transmission, of the proposed Borrowing (which notice to the
Lenders, in the case of a Borrowing of Eurocurrency Rate Loans, shall be at
least three (3) (for such Loans denominated in Dollars) or four (4) (for such
Loans denominated in Optional Currency) Business Days in advance of the proposed
Funding Date for such Loans). Each Lender (or in the case of a Swing Loan
Borrowing, the Swing Lender) shall deposit an amount in the requested currency
equal to its Pro Rata Share of the Borrowing requested by the Borrower with the
Administrative Agent at the Administrative Agent's Head Office, in immediately
available funds, not later than 12:00 noon (Boston time) on the respective
Funding Date therefor. Subject to the fulfillment of the conditions precedent
set forth in SECTION 5.1 or SECTION 5.2, as applicable, the Administrative Agent
shall make the proceeds of such amounts received by it available to the Borrower
at the Administrative Agent's Head Office on such Funding Date (or on the date
received if later than such 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 applicable Funding Date
shall not relieve any other Lender of its obligations hereunder to make its Loan
on such Funding Date. In the event the conditions precedent set forth in SECTION
5.1 or 5.2 are not fulfilled as of the proposed Funding Date for
30
any Borrowing, the Administrative Agent shall promptly return, by wire transfer
of immediately available funds, the amount deposited by each Lender to such
Lender.
(i) Unless the Administrative Agent shall have been notified
by any Lender on the Business Day immediately preceding the applicable
Funding Date in respect of any Borrowing that such Lender does not
intend to fund its Loan requested to be made on such 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 therefor, and the Administrative Agent in its sole
discretion may, but shall not be obligated to, disburse a corresponding
amount to the Borrower on the applicable 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 applicable
Funding Date, such Lender agrees to pay, and if not paid by such Lender
on demand, in addition the Borrower 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 or for the benefit of the Borrower until the date such
amount is paid or repaid to the Administrative Agent if paid by the
Borrower, at the interest rate applicable to such Borrowing and if paid
by such Lender at the Federal Funds Rate. 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
Borrower shall pay and repay such corresponding amount of
Administrative Agent's Loan, the Administrative Agent shall promptly
pay the Borrower such corresponding amount. This SECTION 2.1(e)(i) does
not relieve any Lender of its obligation to make its Loan on any
applicable Funding Date.
2.2. USE OF PROCEEDS OF LOANS. The proceeds of the Loans to the
Borrower hereunder may be used for the purposes of:
(a) acquisition of Real Properties, directly or through a Subsidiary or
Minority Holding, by the Borrower;
(b) development of Real Properties owned and operated, directly or
indirectly, by the Borrower (including Minority Holdings);
(c) investments permitted in accordance with Section 9.11; and
(d) other general and working capital needs of the Borrower, inclusive
of repayment of Indebtedness for borrowed money;
each of which purposes described in clauses (a) through (d) above shall be
lawful working capital purposes of the Borrower. The proceeds of the Loans shall
not be used directly or indirectly to repurchase stock of TMC or OP Units if
such repurchase would cause the Lenders to be in violation of Regulation U or
Regulation X or if a Potential Event of Default or Event of Default has occurred
and is continuing or would occur as a result of such repurchase.
2.3. REVOLVING CREDIT TERMINATION DATE; EXTENSION. (a) The Revolving
Credit Commitments shall terminate, and all outstanding Revolving Credit
Obligations shall be paid in full, on the Revolving Credit Termination Date.
Each Lender's obligation to make Loans shall terminate on the Business Day
immediately preceding the Revolving Credit Termination Date.
(b) The Borrower may on one occasion, by notice to the Administrative
Agent no earlier than 180 days and no later than 90 days prior to June 26, 2006,
extend the Revolving Credit Termination Date
31
for one (1) year PROVIDED, that (i) no Potential Event of Default or Event of
Default exists at the time of such request and at the time of such extension,
(ii) all of the representations and warranties of the Borrower contained in
SECTION 6.1 and in any other Loan Document (other than representations and
warranties which expressly speak as of a different date) shall be true and
correct in all material respects at the time of such request and at the time of
such extension, and (iii) the Borrower pays an extension fee equal to 0.25% of
the Revolving Credit Commitments to the Administrative Agent for the ratable
benefit of the Lenders at the time of such extension.
2.4. LETTERS OF CREDIT.
(a) Subject to the terms and conditions set forth in this
Agreement (including, without limitation, SECTION 2.5), at any time and from
time to time from the Initial Funding Date through the day that is thirty (30)
days prior to the Revolving Credit Termination Date, the Issuing Lender shall
issue such Letters of Credit in any amount, in Dollars or Optional Currency, as
the Borrower may request upon the delivery of a Letter of Credit Request to the
Issuing Lender, provided that (i) no Potential Event of Default or Event of
Default shall have occurred and be continuing, (ii) upon issuance of such Letter
of Credit, the Letter of Credit Obligations shall not exceed Fifty Million
Dollars ($50,000,000.00), (iii) in no event shall the sum of (A) the Revolving
Credit Obligations and (B) the amount of the Letter of Credit Obligations (after
giving effect to all Letters of Credit requested and any Letters of Credit
accepted but unpaid) exceed the Revolving Credit Availability, (iv) the
conditions set forth in SECTIONS 5.1 and 5.2, as applicable, shall have been
satisfied, and (v) in no event shall any amount drawn under a Letter of Credit
be available for reinstatement or a subsequent drawing under such Letter of
Credit. Each Letter of Credit Request shall be executed by an Authorized
Financial Officer of Borrower, or such other persons as are identified pursuant
to SECTION 2.6. The Issuing Lender shall be entitled to conclusively rely on
such Person's authority to request a Letter of Credit on behalf of Borrower. The
Issuing Lender shall have no duty to verify the authenticity of any signature
appearing on a Letter of Credit Request. The Borrower assumes all risks with
respect to the use of the Letters of Credit. Unless the Issuing Lender and the
Requisite Lenders otherwise consent, the term of any Letter of Credit shall not
exceed a period of time commencing on the issuance of the Letter of Credit and
ending on the date which is fifteen (15) days (thirty (30) days in the case of a
Letter of Credit denominated in Optional Currency) prior to the Revolving Credit
Termination Date; PROVIDED, that Letters of Credit denominated in Dollars with a
maximum aggregate amount of up to $10,000,000 may have a later expiration date
so long as (I) such expiration date is not later than 180 days after the
Revolving Credit Termination Date and (II) the Borrower (1) provides cash
collateral for each such Letter of Credit at least 100 days prior to the
Revolving Credit Termination Date or (2) provides a back-to-back letter of
credit or other credit support satisfactory to the Administrative Agent and the
Issuing Lender at least thirty (30) days prior to the Revolving Credit
Termination Date. Any Letter of Credit expiring after the Revolving Credit
Termination Date shall be governed by the terms of this Agreement, which shall
survive the Revolving Credit Termination Date for such purpose. Unless a Letter
of Credit denominated in Optional Currency is requested, each Letter of Credit
issued hereunder shall be a Tranche A Letter of Credit and shall be deemed to
use the Revolving Credit Tranche A Commitments unless the Revolving Credit
Tranche A Commitments have been fully used (or partially used with the remainder
being inadequate to issue such requested Letter of Credit) and are not available
at such time for the issuance of such Letter of Credit, in which case such
Letter of Credit shall be a Tranche B Letter of Credit and shall be deemed to
use the Revolving Credit Tranche B Commitments, if available. Each Letter of
Credit denominated in Optional Currency issued hereunder shall be a Tranche B
Letter of Credit and shall be deemed to use the Revolving Credit Tranche B
Commitments, if available.
(b) Each Letter of Credit Request shall be submitted to the
Administrative Agent and the Issuing Lender at least five (5) Business Days (or
in the case of a Letter of Credit denominated in Optional Currency at least ten
(10) Business Days) (or such shorter period as the Issuing Lender may
32
approve) prior to the date upon which the requested Letter of Credit is to be
issued. Each such Letter of Credit Request shall contain (i) a statement as to
the purpose for which such Letter of Credit shall be used (which purpose shall
be permitted by the terms of this Agreement), and (ii) a certification by an
Authorized Financial Officer of Borrower that the Borrower and TMC are and will
be in compliance with all covenants under the Loan Documents after giving effect
to the issuance of such Letter of Credit. The Borrower shall further deliver to
the Issuing Lender such additional applications and documents as the Issuing
Lender may require, in conformity with the then standard practices of its letter
of credit department, in connection with the issuance of such Letter of Credit;
provided that in the event of any conflict, the terms of this Agreement shall
control.
(c) The Issuing Lender shall, if it approves of the content of the
Letter of Credit Request (which approval shall not be unreasonably withheld),
and subject to the conditions set forth in this Agreement, issue the Letter of
Credit on or before five (5) Business Days in the case of a Letter of Credit
denominated in Dollars (ten (10) Business Days in the case of a Letter of Credit
denominated in Optional Currency) following receipt of such Letter of Credit
Request. Each Letter of Credit shall be in form and substance reasonably
satisfactory to the Issuing Lender. Upon issuance of a Letter of Credit, the
Issuing Lender shall provide notice of the issuance of such Letter of Credit to
the Administrative Agent and the Lenders with Revolving Credit Tranche A
Commitments or Revolving Credit Tranche B Commitments, as applicable, and shall
provide a copy of such Letter of Credit to Administrative Agent and to any
Lender that requests a copy.
(d) Upon the issuance of a Letter of Credit, each Lender shall be
deemed to have purchased a participation therein from the Issuing Lender in an
amount equal to its Pro Rata Share of the amount of such Letter of Credit. No
Lender's obligation to participate in a Letter of Credit shall be affected by
any other Lender's failure to perform as required herein with respect to such
Letter of Credit or any other Letter of Credit.
(e) Upon the issuance of each Letter of Credit, the Borrower shall
pay to the Issuing Lender (i) for its own account, a fronting bank Letter of
Credit fee calculated at the rate of one-eighth of one percent (0.125%) per
annum of the Dollar Equivalent of the amount available to be drawn under such
Letter of Credit (which aggregate fee for any Letter of Credit shall not be less
than $1,000.00 in any event), and (ii) for the accounts of the Lenders in
accordance with their respective percentage shares of participation in such
Letter of Credit, a Letter of Credit fee calculated at the rate per annum equal
to the Applicable Margin then applicable to Eurocurrency Rate Loans (or three
percent (3%) per annum during the continuation of an Event of Default) on the
Dollar Equivalent of the amount available to be drawn under such Letter of
Credit. Such fees shall be payable in quarterly installments in arrears with
respect to each Letter of Credit on the first day of the calendar quarter
following the date of issuance and shall accrue thereafter from the date of
issuance and continuing for each quarter or portion thereof, as applicable,
until the earliest date on which (x) the Revolving Credit Commitments shall
terminate, (y) the Letter of Credit shall expire or (z) the Letter of Credit is
returned marked "cancelled" along with a letter from the Letter of Credit
beneficiary on its letterhead acknowledging such cancellation. In addition, the
Borrower shall pay to Issuing Lender for its own account within five (5) days of
demand of Issuing Lender the standard issuance, documentation and service
charges for Letters of Credit issued from time to time by Issuing Lender.
(f) In the event that any amount is drawn under a Letter of Credit
by the beneficiary thereof, the Issuing Lender shall promptly notify the
Administrative Agent, and, unless the Borrower shall have (i) notified the
Administrative Agent and the Issuing Lender prior to 11:00 a.m. (Boston time)
(A) in the case of a Letter of Credit denominated in Dollars, on the Business
day immediately prior to the date of such drawing, that the Borrower intends to
reimburse such Issuing Lender for the amount of such drawing with funds other
than the proceeds of Revolving Credit Loans, or (B) in the case of a Letter of
Credit
33
denominated in Optional Currency, at least two (2) Business Days prior to the
date of such drawing that the Borrower intends to reimburse such Issuing Lender
for the amount of such drawing in the applicable Optional Currency, and (ii)
repaid the full amount of such drawing on the date of any such draw, the
Borrower shall be deemed to have timely given a Notice of Borrowing pursuant to
SECTION 2.1(D) to the Administrative Agent, requesting a Base Rate Loan on the
date of such drawing in an amount equal to the Dollar Equivalent of such
drawing. The Administrative Agent shall promptly notify the Borrower and each
Lender of such drawing and deemed Notice of Borrowing by telex, telecopy,
telegram, telephone (confirmed in writing) or other similar means of
transmission, PROVIDED that failure to deliver such notice to the Borrower shall
not in any way relieve the Borrower of any of its Obligations hereunder), and
each Lender shall promptly and unconditionally pay to the Administrative Agent,
for the Issuing Lender's own account, an amount equal to such Lender's Pro Rata
Share of such Letter of Credit (to the extent of the amount drawn). If and to
the extent any Lender shall not make such amount available on the Business Day
on which such draw is funded, such Lender agrees to pay such amount to the
Administrative Agent forthwith on demand, together with interest thereon, for
each day from the date on which such draw was funded until the date on which
such amount is paid to the Administrative Agent, at the Federal Funds Rate.
Further, such Lender shall be deemed to have assigned any and all payments made
by the Borrower of principal and interest on its Loans, amounts due with respect
to its participations in Letters of Credit and any other amounts due to it
hereunder to the Administrative Agent to fund the amount of any drawn Letter of
Credit which such Lender was required to fund pursuant to this SECTION 2.4(f)
until such amount has been funded (as a result of such assignment or otherwise).
The failure of any Lender to make funds available to the Administrative Agent in
such amount shall not relieve any other Lender of its obligation hereunder to
make funds available to the Administrative Agent pursuant to this SECTION
2.4(f).
(g) If after the issuance of a Letter of Credit pursuant to
SECTION 2.4(c) by the Issuing Lender, but prior to the funding of any portion
thereof by a Lender in accordance with SECTION 2.4(f), one of the events
described in SECTIONS 10.1(f) or 10.1(g) shall have occurred, each Lender will,
on the date such Loan pursuant to SECTION 2.4 was to have been made, purchase an
undivided participation interest in the Letter of Credit in an amount equal to
its Pro Rata Share of the amount of such Letter of Credit. Each Lender will
immediately transfer to the Issuing Lender in immediately available funds the
amount of its participation and upon receipt thereof the Issuing Lender will
deliver to such Lender a Letter of Credit participation certificate dated the
date of receipt of such funds and in such amount.
(h) Whenever at any time after the Issuing Lender has received
from any Lender any such Lender's payment of funds under a Letter of Credit and
thereafter the Issuing Lender receives any payment on account thereof, then the
Issuing Lender will distribute to such Lender its participation interest in such
amount (appropriately adjusted in the case of interest payments to reflect the
period of time during which such Lender's participation interest was outstanding
and funded); PROVIDED, HOWEVER, that in the event that such payment received by
the Issuing Lender is required to be returned, such Lender will return to the
Issuing Lender any portion thereof previously distributed by the Issuing Lender
to it.
(i) For purposes of this SECTION 2.4, SECTION 5.2, SECTION 6.1,
SECTION 10.2 and SECTION 12.2, the issuance of any supplement, modification,
amendment, renewal or extension to or of any Letter of Credit shall be treated
the same as the issuance of a new Letter of Credit.
(j) Borrower assumes all risks of the acts, omissions, or misuse
of any Letter of Credit by the beneficiary thereof. Neither Administrative
Agent, Issuing Lender nor any Lender will be responsible for (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any Letter of
Credit or any document submitted by any party in connection with the issuance of
any Letter of Credit, even if such document should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
instrument transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits
34
thereunder or proceeds thereof in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) absent gross negligence or willful
misconduct by the Issuing Lender, the failure of any beneficiary of any Letter
of Credit to comply fully with the conditions required in order to demand
payment under a Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise; (v) errors in interpretation of technical terms; (vi) any
loss or delay in the transmission or otherwise of any document or draft required
by or from a beneficiary in order to make a disbursement under a Letter of
Credit or the proceeds thereof; (vii) for the misapplication by the beneficiary
of any Letter of Credit of the proceeds of any drawing under such Letter of
Credit; and (viii) for any consequences arising from causes beyond the control
of Administrative Agent or any Lender. None of the foregoing will affect, impair
or prevent the vesting of any of the rights or powers granted to Administrative
Agent, Issuing Lender or the Lenders hereunder. In furtherance and extension and
not in limitation or derogation of any of the foregoing, any act taken or
omitted to be taken by Administrative Agent, Issuing Lender or the other Lenders
in good faith and absent gross negligence or willful misconduct will be binding
on Borrower and will not put Administrative Agent, Issuing Lender or the other
Lenders under any resulting liability to Borrower.
2.5. MAXIMUM CREDIT FACILITY. Notwithstanding anything in this
Agreement to the contrary, in no event shall (i) the sum of the aggregate
Revolving Credit Tranche A Obligations and the aggregate Tranche A Letter of
Credit Obligations exceed the Revolving Credit Tranche A Commitments (ii) the
sum of the aggregate Revolving Credit Tranche B Obligations and the aggregate
Tranche B Letter of Credit Obligations exceed the Revolving Credit Tranche B
Commitments or (iii) the sum of the aggregate Revolving Credit Obligations and
the aggregate Letter of Credit Obligations exceed the Revolving Credit
Commitments; PROVIDED, HOWEVER, that any excess that exists pursuant to the
foregoing clauses (ii) and (iii) resulting solely from changes in foreign
currency exchange rates shall be deemed to not violate this SECTION 2.5, so long
as the Borrower complies with the applicable requirements of SECTION
4.2(j)(iii).
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 or Letters of Credit and to request a conversion/continuation of
any Loan 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 and the Lenders shall be entitled to rely conclusively on
such employee's or agent's authority to request such Loan or Letter of Credit or
such conversion/continuation until the Administrative Agent receives written
notice to the contrary. The Administrative Agent shall have no duty to verify
the authenticity of the signature appearing on any written Notice of Borrowing,
Letter of Credit Request or Notice of Conversion/Continuation or any other
document, and, with respect to an oral request for such a Loan or a Letter of
Credit or such conversion/continuation, the Administrative Agent 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 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 such Lender reasonably 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 and each other Lender from any loss
or expense the Administrative Agent or the Lenders incur in acting in good faith
as provided in this SECTION 2.6, PROVIDED, HOWEVER, that the Borrower shall not
indemnify or hold harmless the Administrative Agent or any other Lender from any
loss or expense incurred as the result of the Administrative Agent's or such
Lender's gross negligence or willful misconduct.
2.7. [INTENTIONALLY OMITTED]
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2.8. SHARING EVENT. (a) Upon the occurrence of a Sharing Event,
automatically (and without the taking of any action) (x) all then outstanding
Eurocurrency Rate Loans denominated in an Optional Currency shall be
automatically converted into Loans denominated in Dollars (in an amount equal to
the Dollar Equivalent, as determined by the Administrative Agent on the date of
such conversion, of the aggregate principal amount of the such Eurocurrency Rate
Loans on the date such Sharing Event first occurred, which Loans denominated in
Dollars (i) shall thereafter be deemed to be Base Rate Loans and (ii) unless the
Sharing Event resulted solely from a termination of the Revolving Credit
Commitments, shall be immediately due and payable on the date such Sharing Event
has occurred) and (y) unless the Sharing Event resulted solely from a
termination of the Revolving Credit Commitments, all accrued and unpaid interest
and other amounts owing with respect to such Eurocurrency Rate Loans shall be
immediately due and payable in Dollars, in an amount equal to the Dollar
Equivalent of such accrued and unpaid interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving
effect to any automatic conversion pursuant to SECTION 2.8(a), each Lender shall
(and hereby unconditionally and irrevocably agrees to) purchase and sell (in
each case in Dollars) undivided participating interests in all Loans outstanding
to, and any unpaid amounts the Issuing Lender has disbursed under a Letter of
Credit owing by, the Borrower in amounts such that each Lender shall have a
share of the outstanding Loans and unpaid amounts the Issuing Lender has
disbursed under a Letter of Credit then owing by the Borrower equal to its Pro
Rata Share of the Revolving Credit Commitments (although if because of
fluctuations in currency exchange rates any Lender would be required to purchase
such participations after giving effect to which such Lender's Loans and Letter
of Credit participations under SECTION 2.4(d) (including participations therein
purchased pursuant to this SECTION 2.8) would exceed such Lender's Revolving
Credit Commitment, then such participations shall be in an amount after giving
effect to which such Lender's Loans and Letter of Credit participations under
SECTION 2.4(d) (including participations therein purchased pursuant to this
SECTION 2.8) would equal such Lender's Revolving Credit Commitment). Upon any
such occurrence, the Administrative Agent shall notify each Lender and shall
specify the amount of Dollars required from such Lender in order to effect the
purchases and sales by the various Lenders of participating interests in the
amounts required above (together with accrued interest with respect to the
period for the last interest payment date through the date of the Sharing Event
plus any additional amounts payable by the Borrowers pursuant to SECTION 12.1 in
respect of such accrued but unpaid interest); PROVIDED, in the event that a
Sharing Event shall have occurred, each Lender shall be deemed to have
purchased, automatically and without request, such participating interests.
Promptly upon receipt of such request, each Lender shall deliver to the
Administrative Agent (in immediately available funds in Dollars) the net amounts
as specified by the Administrative Agent. The Administrative Agent shall
promptly deliver the amounts so received to the various Lenders in such amounts
as are needed to effect the purchases and sales of participations as provided
above. Promptly following receipt thereof, each Lender which has sold
participations in any of its Loans and Letter of Credit participations under
SECTION 2.4(d) (through the Administrative Agent) will deliver to each Lender
(through the Administrative Agent) which has so purchased a participating
interest a participation certificate dated the date of receipt of such funds and
in such amount. It is understood that the amount of funds delivered by each
Lender shall be calculated on a net basis, giving effect to both the sales and
purchases of participations by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event (i) no further Loans
shall be made, (ii) all amounts from time to time accruing with respect to, and
all amounts from time to time payable on account of, any outstanding
Eurocurrency Rate Loans denominated in Optional Currency (including, without
limitation, any interest and other amounts which were accrued but unpaid on the
date of such purchase) shall be converted to Loans denominated in Dollars in
accordance with SECTION 2.8(a) and be payable immediately in Dollars as if such
Eurocurrency Rate Loans had originally been made in Dollars and shall be
distributed by the relevant Lenders (or their affiliates) to the Administrative
Agent for the
36
account of the Lenders which made such Loans or are participating therein and
(iii) the Revolving Credit Commitments of the Lenders shall be automatically
terminated. Notwithstanding anything to the contrary contained above, the
failure of any Lender to purchase its participating interest in any Loans upon
the occurrence of a Sharing Event shall not relieve any other Lender of its
obligation hereunder to purchase its participating interests in a timely manner,
but no Lender shall be responsible for the failure of any other Lender to
purchase the participating interest to be purchased by such other Lender on any
date.
(d) If any amount required to be paid by any Lender pursuant to
SECTION 2.8(b) is not paid to the Administrative Agent within one (1) Business
Day following the date upon which such Lender receives notice from the
Administrative Agent of the amount of its participations required to be
purchased pursuant to said SECTION 2.8(b), such Lender shall also pay to the
Administrative Agent on demand an amount equal to the product of (i) the amount
so required to be paid by such Lender for the purchase of its participations
TIMES (ii) the daily average Federal Funds Rate during the period from and
including the date of request for payment to the date on which such payment is
immediately available to the Administrative Agent TIMES (iii) a fraction the
numerator of which is the number of days that elapsed during such period and the
denominator of which is 360. If any such amount required to be paid by any
Lender pursuant to SECTION 2.8(b) is not in fact made available to the
Administrative Agent within three (3) Business Days following the date upon
which such Lender receives notice from the Administrative Agent as to the amount
of participations required to be purchased by it, the Administrative Agent shall
be entitled to recover from such Lender on demand, such amount with interest
thereon calculated from such request date at the rate per annum applicable to
Base Rate Loans hereunder. A certificate of the Administrative Agent submitted
to any Lender with respect to any amounts payable by any Lender pursuant to this
SECTION 2.8 shall be deemed conclusive absent manifest error. Amounts payable
under this SECTION 2.8 shall be paid to the Administrative Agent for the account
of the relevant Lenders; PROVIDED that, if the Administrative Agent (in its sole
discretion) has elected to fund on behalf of such Lender the amounts owing to
such Lenders, then the amounts shall be paid to the Administrative Agent for its
own account.
(e) Whenever, at any time after the relevant Lenders have received
from any Lenders purchases of participations in any Loans pursuant to this
SECTION 2.8, the Lenders receive any payment on account thereof, such Lenders
will distribute to the Administrative Agent, for the account of the various
Lenders participating therein, such Lenders' participating interests in such
amounts (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such participations were outstanding) in like
funds as received; PROVIDED, HOWEVER, that in the event that such payment
received by any Lenders are required to be returned, the Lenders who received
previous distributions in respect of their participating interests therein will
return to the respective Lenders any portion thereof previously so distributed
to them in like funds as such payment is required to be returned by the
respective Lenders.
(f) Each Lender's obligation to purchase participating interests
pursuant to this SECTION 2.8 shall be absolute and unconditional and shall not
be affected by any circumstance including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against any other Lender, the Borrower or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of a Potential Event of Default
or an Event of Default, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any other Person, (iv) any breach of this
Agreement by the Borrower, TMC, any of its Subsidiaries or any Lender or any
other Person, or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere
in this Agreement, upon any purchase of participations as required above, each
Lender which has purchased such participations
37
shall be entitled to receive from the Borrower any increased costs and
indemnities directly from the Borrower to the same extent as if it were the
direct Lender as opposed to a participant therein. The Borrower acknowledges and
agrees that, upon the occurrence of a Sharing Event and after giving effect to
the requirements of this SECTION 2.8, increased Taxes may be owing by the
Borrower pursuant to SECTION 12.1, which Taxes shall be paid (to the extent
provided in SECTION 12.1) by the Borrower, without any claim that the increased
Taxes are not payable because same resulted from the participations effected as
otherwise required by this SECTION 2.8.
ARTICLE III.
PAYMENTS AND PREPAYMENTS
3.1. PREPAYMENTS; REDUCTIONS IN REVOLVING CREDIT 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 one (1) Business Day's
prior written notice in the case of Loans denominated in Dollars and four (4)
Business Days' prior written notice in the case of Loans denominated in Optional
Currency to the Administrative Agent (which the Administrative Agent shall
promptly transmit to each Lender) of any prepayment 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 to
be prepaid 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. Eurocurrency Rate Loans may be
prepaid in part or in their entirety only upon payment of the amounts described
in SECTION 4.2(f).
(b) VOLUNTARY REDUCTIONS IN REVOLVING CREDIT COMMITMENTS. The
Borrower may, upon at least five (5) Business 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 Revolving Credit Commitments; PROVIDED that (i)
the Borrower shall first have made whatever payment may be required to reduce
the sum of the Revolving Credit Obligations and the Letter of Credit Obligations
to an amount less than or equal to the aggregate Revolving Credit Commitments as
reduced or terminated, which amount shall become due and payable on the date
specified in such notice, (ii) the Revolving Credit Tranche A Commitments as
reduced or terminated shall not be in an amount less than the sum of (A) the
aggregate Revolving Credit Tranche A Obligations and (B) the aggregate Tranche A
Letter of Credit Obligations, (iii) the Revolving Credit Tranche B Commitments
as reduced or terminated shall not be in an amount less than the sum of (A) the
aggregate Revolving Credit Tranche B Obligations and (B) the aggregate Tranche B
Letter of Credit Obligations and (iv) reductions to the Revolving Credit
Commitments shall be allocated on a pro rata basis between the Revolving Credit
Tranche A Commitments and the Revolving Credit Tranche B Commitments. Any
partial reduction of the Revolving Credit Commitments shall be in an aggregate
minimum amount of $1,000,000, and shall reduce the applicable Revolving Credit
Commitment of each Lender proportionately in accordance with its applicable Pro
Rata Share; PROVIDED, HOWEVER, that without terminating the Revolving Credit
Commitments, the Revolving Credit Commitments in the aggregate shall not be
reduced below $150,000,000. Any notice of termination or reduction given to the
Administrative Agent under this SECTION 3.1(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. No reduction or
termination of the Revolving Credit Commitments may be reinstated.
(c) NO PENALTY. The prepayments and payments in respect of
reductions and terminations described in clauses (a) and (b) of this SECTION 3.1
may be made without premium or penalty (except as provided in SECTION 4.2(f)).
38
(d) MANDATORY PREPAYMENT. If at any time from and after the
Closing Date: (i) the Borrower merges or consolidates with another Person and
the Borrower is not the surviving entity, or (ii) the Borrower or any
Consolidated Subsidiary or any Minority Holding sells, transfers, assigns or
conveys assets, the book value (of the Borrower) of which (computed in
accordance with GAAP but without deduction for depreciation), in the aggregate
of all such sales, transfers, assignments, or conveyances would cause the
Capitalization Value immediately after such sale to be less than 75% of the
Capitalization Value set forth in the Compliance Certificate delivered pursuant
to SECTION 5.1(j); PROVIDED, that for purposes of this clause (ii) only, the
phrase "sells, transfers, assigns or conveys" shall not include (A) sales or
conveyances among the Borrower and any Consolidated Subsidiaries, (B) mortgages
secured by Real Property, or (C) sales or conveyances of Securities in the
Borrower or TMC or in newly-formed Subsidiaries or Minority Holdings in
connection with the acquisition of Real Property; or (iii) the portion of
Capitalization Value attributable to the aggregate Limited Minority Holdings of
the Borrower and its Consolidated Subsidiaries exceeds 20% of the Capitalization
Value (the date any such event in (i), (ii) or (iii) shall occur being the
"PREPAYMENT DATE") the Revolving Credit Commitments shall be terminated and the
Borrower shall be required to prepay the Loans in their entirety and return any
outstanding Letters of Credit as if the Prepayment Date were the Revolving
Credit Termination Date. The Borrower shall make such prepayment on the
Prepayment Date 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 4.2(f). Each such prepayment shall be applied to
prepay ratably the Loans of the Lenders. Amounts prepaid pursuant to this
SECTION 3.1(d) may not be reborrowed.
3.2. 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 setoff, counterclaim, condition or reservation of right,
in the currency in which such Loan was made (with respect to Loans) or in lawful
money of the United States (with respect to other Obligations) in immediately
available funds, transmitted to the Administrative Agent not later than 11:00
a.m. (Boston 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 11:00 a.m. (Boston 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 in immediately available funds
promptly after receipt thereof.
(b) APPORTIONMENT OF PAYMENTS. (i) Subject to the provisions of
SECTION 3.2(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 3.2(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) first, to pay all Obligations then due and payable, and
(B) second, as the Borrower so designates.
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In the event that the Administrative Agent (at its sole discretion, as provided
in SECTION 2.1(e)(i)) shall have advanced any Loan on behalf of any Lender for
which the Administrative Agent has not been reimbursed by the Borrower or
Lender, then any payment to be made to such Lender under this Agreement shall
first be paid to the Administrative Agent until the Administrative Agent has
received all principal of and interest on any portion of the Loans which the
Administrative Agent may have advanced on behalf of such Lender. Unless
otherwise designated by the Borrower, all principal payments in respect of Loans
shall be applied FIRST, to repay outstanding Base Rate Loans, and THEN to repay
outstanding Eurocurrency Rate Loans, with those Eurocurrency Rate Loans which
have earlier expiring Interest Periods being repaid prior to those which have
later expiring Interest Periods.
(ii) After the occurrence of an Event of Default and while the
same is continuing, the Administrative Agent shall apply all payments
in respect of any Obligations in the following order:
(A) first, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the
Administrative Agent in its capacity as Administrative Agent
and not as Lender hereunder;
(B) second, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the
Lenders;
(C) third, to pay interest then due in respect
of Loans;
(D) fourth, to the ratable payment or prepayment
of principal outstanding on Loans; and
(E) fifth, to the ratable payment of all other
Obligations.
In the event that the Administrative Agent (at its sole discretion, as provided
in SECTION 2.1(e)(i)) shall have advanced any Loan on behalf of any Lender for
which the Administrative Agent has not been reimbursed by the Borrower or
Lender, then any payment to be made to such Lender under this Agreement shall
first be paid to the Administrative Agent until the Administrative Agent has
received all principal of and interest on any portion of the Loans which the
Administrative Agent may have advanced on behalf of such Lender. The order of
priority set forth in this SECTION 3.2(b)(ii) and the related provisions of this
Agreement are set forth solely to determine the rights and priorities of the
Administrative Agent, the other Lenders and other Holders as among themselves.
The order of priority set forth in clauses (B) through (E) of this SECTION
3.2(b)(ii) may at any time and from time to time be changed by the Requisite
Lenders without necessity of notice to or consent of or approval by the
Borrower, any Holder which is not a Lender, or any other Person; PROVIDED,
HOWEVER, no such change shall favor one Lender over any other Lender. The order
of priority as to payments due to the Administrative Agent with respect to Loans
made on behalf of another Lender may be changed only with the prior written
consent of the Administrative Agent.
(iii) Upon the occurrence and during the continuation of an
Event of Default, the Administrative Agent, in its sole discretion
subject only to the terms of this SECTION 3.2(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 3.2(b)(iii), all amounts payable by
the Borrower hereunder, including, without limitation, amounts payable
with respect to payments of principal, interest and fees, all
reimbursements for expenses pursuant to SECTION 13.2 and amounts that
may be drawn under Letters of Credit. The Borrower hereby irrevocably
authorizes the Lenders, upon the occurrence and during the
40
continuation of an Event of Default, 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, reimbursing
expenses pursuant to SECTION 13.2, paying amounts that are drawn under
Letters of Credit and paying any and all other amounts due and payable
by the Borrower hereunder or under the Notes, 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. If demanded by
Administrative Agent in its absolute and sole discretion after the
occurrence of an Event of Default, Borrower will deposit with and
pledge to Administrative Agent cash in an amount equal to the amount of
all Letter of Credit Obligations. Such amounts will be pledged to and
held by Administrative Agent for the benefit of the Lenders as security
for any Letter of Credit Obligations and all other Obligations. Upon
any draws under Letters of Credit, at Administrative Agent's sole
discretion, Administrative Agent may apply any such amounts to the
repayment of amounts drawn thereunder and upon the expiration of the
Letters of Credit any remaining amounts will be applied to the payment
of all other Obligations or if there are no outstanding Obligations and
the Lenders have no further obligation to make Loans or issue Letters
of Credit, such proceeds deposited by Borrower will be released to
Borrower. The Administrative Agent shall request Loans on behalf of the
Borrower as described in this section 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 3.2(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 3.2(b)(v), the Administrative Agent
shall promptly distribute to each other 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 or other Holder may request in
writing, such funds as such Person may be entitled to receive, subject
to the provisions of ARTICLE XI; 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
Holder 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 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 the earlier of such Lender's cure of such failure and the
termination of the Revolving Credit Commitments, 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
3.2(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 4.1(c);
41
(B) a Lender shall be deemed to have cured its
failure to fund its Pro Rata Share of any Loan (without waiver
by the Borrower of any claim against such Lender arising as a
consequence of such failure) at such time as an amount equal
to such Lender's original Pro Rata Share of the requested
principal portion of such Loan (as reduced by such Lender's
Pro Rata Share of any principal prepayments occurring after
the date of such Non Pro Rata Loan) is fully funded to the
Borrower, whether made by such Lender itself or by operation
of the terms of this SECTION 3.2(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
same rate as, and for all other purposes of this Agreement
shall be treated as if they were Loans similar to, the
advances that would have been made had such Lender advanced
its Pro Rata Share of the requested Loan; 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 3.2, would be applied to the
outstanding Base Rate Loans shall be applied FIRST, ratably to
all Base Rate Loans constituting Non Pro Rata Loans, SECOND,
ratably to Base Rate Loans other than those constituting Non
Pro Rata Loans or Cure Loans and, THIRD, ratably to Base Rate
Loans constituting Cure Loans.
Notwithstanding anything herein to the contrary, the provisions of this SECTION
3.2(b)(v) shall not apply to Loans to be made pursuant to SECTION 2.4(f) or to a
failure of a Lender to fund its Pro Rata Share of an advance under a Letter of
Credit pursuant to SECTION 2.4(g).
(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, in the case of certain Eurocurrency Rate Loans, on the
preceding Business Day as set forth in the definition of "Interest Period").
(d) OBLIGATIONS ABSOLUTE. The obligations of the Borrower to the
Lenders under this Agreement (and of the Lenders to make payments to the Issuing
Lender with respect to Letters of Credit) shall be absolute, unconditional and
irrevocable, and shall be paid and performed strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever, including, without
limitation, the following circumstances: (i) any lack of validity or
enforceability of this Agreement, any Letter of Credit or any of the other Loan
Documents; (ii) any improper use which may be made of any Letter of Credit or
any improper acts or omissions of any beneficiary or transferee of any Letter of
Credit in connection therewith; (iii) the existence of any claim, set-off,
defense or any right which the Borrower or any of its Subsidiaries or Affiliates
may have at any time against any beneficiary or any transferee of any Letter of
Credit (or persons or entities for whom any such beneficiary or any such
transferee may be acting) or the Lender (other than the defense of payment to
the Lenders in accordance with the terms of this Agreement) or any other person,
whether in connection with any Letter of Credit, this Agreement, any other Loan
Document, or any unrelated transaction; (iv) any draft, demand, certificate,
statement or any other documents presented under any Letter of Credit proving to
be insufficient, forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever; (v) any breach of
any agreement between Borrower or any of its Subsidiaries or Affiliates and any
beneficiary or transferee of any Letter of Credit; (vi) any irregularity in the
transaction with respect to which any Letter of Credit is issued, including any
fraud by the beneficiary or any transferee of such Letter of Credit; (vii)
payment by the Issuing Lender under any Letter of Credit against presentation of
a sight draft, demand,
42
certificate or other document which does not comply with the terms of such
Letter of Credit, provided that such payment shall not have constituted gross
negligence or willful misconduct on the part of the Issuing Lender; (viii) any
non-application or misapplication by the beneficiary of a Letter of Credit of
the proceeds of such Letter of Credit; (ix) the legality, validity, form,
regularity or enforceability of the Letter of Credit; (x) the failure of any
payment by Issuing Lender to conform to the terms of a Letter of Credit (if, in
Issuing Lender's good faith judgment, such payment is determined to be
appropriate); (xi) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents;
(xii) the occurrence of any Event of Default or Potential Event of Default; and
(xiii) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing, provided that such other circumstances or happenings shall
not have been the result of gross negligence or willful misconduct on the part
of the Issuing Lender.
(e) DISTRIBUTION OF PAYMENTS. If in the opinion of the
Administrative Agent the distribution of any amount received by it in such
capacity hereunder, under the Notes or under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution until its
right to make distribution shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall adjudge that any amount
received and distributed by the Administrative Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either repay to
the Administrative Agent its proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and to such Persons as shall be
determined by such court.
3.3. PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS.
(a) PROMISE TO REPAY. The Borrower hereby agrees to pay when due
the principal amount of each Loan, 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 Note, evidencing the Loans and thereafter shall execute and deliver such
other Notes as are necessary to evidence the Loans owing to the Lenders after
giving effect to any assignment thereof pursuant to SECTION 13.1, all in form
and substance acceptable to the Administrative Agent and the parties to such
assignment (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 13.1(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 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.
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3.4. CURRENCY MATTERS. Dollars are the currency of account and payment
for each and every sum at any time due from the Borrower hereunder; PROVIDED
that: (a) except as expressly provided in this Agreement, each repayment of a
Revolving Credit Tranche B Loan, Tranche B Letter of Credit Obligation or a part
thereof shall be made in the currency in which such Revolving Credit Tranche B
Loan or Tranche B Letter of Credit Obligation, as the case may be, is
denominated at the time of that repayment; (b) each payment of interest shall be
made in the currency in which the principal or other sum in respect of which
such interest is payable is denominated; (c) each payment of any fees shall be
in Dollars; (d) each payment in respect of costs, expenses and indemnities shall
be made in the currency in which the same were incurred; and (e) any amount
expressed to be payable in an Optional Currency shall be paid in such Optional
Currency. No payment to the Administrative Agent or any Lender (whether under
any judgment or court order or otherwise) shall discharge the obligation or
liability in respect of which it was made unless and until the Administrative
Agent or such Lender shall have received payment in full in the currency in
which such obligation or liability was incurred, and to the extent that the
amount of any such payment shall, on actual conversion into such currency, fall
short of such obligation or liability, actual or contingent, expressed in that
currency, the Borrower agrees to indemnify and hold harmless the Administrative
Agent or such Lender, as the case may be, with respect to the amount of the
shortfall, with such indemnity surviving the termination of this Agreement and
any legal proceeding, judgment or court order pursuant to which the original
payment was made which resulted in the shortfall. To the extent the
Administrative Agent or any Lender receives payment of any Obligation in a
currency other than the currency required to be paid hereunder, each of the
Administrative Agent and such Lender shall take all reasonable actions to
convert such currency into the currency in which the underlying liability was
incurred, at the Administrative Agent's or such Lender's spot rate of exchange,
within one (1) Business Day after receipt of payment by the Borrower, PROVIDED,
if reasonable methods and/or markets do not exist for making such exchange, then
the Administrative Agent or such Lender, as the case may be, will make such
exchange within one (1) Business Day of the date on which making such exchange
is, in the Administrative Agent's or such Lender's reasonable determination,
commercially possible, and, PROVIDED FURTHER, nothing contained herein shall in
any manner limit the Borrower's obligations to pay all Obligations in the
currency required under this Agreement, nor shall it be construed as the
Administrative Agent's or any Lender's consent to the Borrower paying any
Obligation in any currency other than as set forth in clauses (a) - (e) of this
SECTION 3.4.
ARTICLE IV.
INTEREST AND FEES
4.1. 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
4.1(d), as follows:
(i) If a Base Rate Loan or an Obligation other than a
Eurocurrency Rate Loan, 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 Margin for Base Rate Loans; and
(ii) If a Eurocurrency Rate Loan, at a rate per annum equal to
the sum of (A) the Eurocurrency Rate determined for the applicable
Interest Period, PLUS (B) the then Applicable Margin for Eurocurrency
Rate 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
44
the Administrative Agent; PROVIDED, HOWEVER, that the Borrower may not select
the Eurocurrency 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 or
a Potential Event of Default has occurred and is continuing and FURTHER
PROVIDED, that from and after the occurrence of an Event of Default, each LIBOR
Rate Loan then outstanding may, at the Administrative Agent's option, convert to
a Base Rate Loan. 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 the Borrower shall be deemed to have submitted a
Notice of Conversion/Continuation with respect to the full amount of such LIBOR
Loan requesting a Base Rate Loan. From and after the occurrence of an Event of
Default, the Administrative Agent may, or upon request of the Requisite Lenders
holding Revolving Credit Tranche B Commitments shall, require that each Optional
Currency Loan then outstanding be repaid by means of a Base Rate Borrowing in
the amount of the Dollar Equivalent of such Optional Currency Loan.
(b) INTEREST PAYMENTS. (i) Interest accrued on each Loan, whether
a Base Rate Loan or a Eurocurrency Rate Loan, shall be calculated and payable in
arrears on the first Business Day of each calendar month commencing on the first
such day following the making of such Loan and 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 and payable in arrears on the first
Business Day of each calendar month, commencing on the first such day
following the incurrence of such Obligation and if not theretofore 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 LIBOR Rate Loans; (B) to convert all or any part of outstanding LIBOR Rate
Loans having 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
Eurocurrency Rate Loans having Interest Periods which expire on the same date as
the Eurocurrency Rate Loans, and the succeeding Interest Period of such
continued Loans, shall commence on such expiration date; PROVIDED, HOWEVER, no
such outstanding Loan may be continued as a Eurocurrency Rate Loan, or be
converted into, a LIBOR Rate Loan (i) if the continuation of, or the conversion
into, would violate any of the provisions of SECTION 4.2 or (ii) if an Event of
Default or Potential Event of Default has occurred and is continuing. Any
conversion into a LIBOR Rate Loan or continuation of Eurocurrency Rate Loans
under this SECTION 4.1(c) shall be in a minimum amount of $2,000,000 ($1,000,000
in the case of a Loan denominated in an Optional Currency) and in integral
multiples of $1,000,000 ($500,000 in the case of a Loan denominated in an
Optional Currency) 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 outstanding
at any one time.
(ii) To convert or continue a Loan under SECTION 4.1(c)(i),
the Borrower shall deliver a Notice of Conversion/Continuation to the
Administrative Agent no later than 11:00 a.m. (Boston time) at least
three (3) (for Loans denominated in Dollars) or four (4) (for Loans
denominated in Optional Currency) Business Days in advance of the
proposed conversion/continuation date. A Notice of
Conversion/Continuation shall specify (A) the proposed
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 a LIBOR Rate Loan or continuation of a Eurocurrency Rate
Loan, the requested Interest Period. In lieu of delivering a Notice of
Conversion/Continuation, the Borrower may give the Administrative Agent
telephonic notice of any proposed conversion/continuation by the time
required under this SECTION 4.1(c)(ii), if the
45
Borrower confirms such notice by delivery of the Notice of
Conversion/Continuation to the Administrative Agent by facsimile
transmission promptly, but in no event later than 12:00 p.m. (Boston
time) on the same day. Promptly after receipt of a Notice of
Conversion/Continuation under this SECTION 4.1(c)(ii) (or telephonic
notice in lieu thereof), 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
4.1(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 at least three (3) (for Loans
denominated in Dollars) or four (4) (for Loans denominated in Optional
Currency) Business Days in advance of the proposed
conversion/continuation date with respect to outstanding Eurocurrency
Rate Loans, then (a) as to Eurocurrency Rate Loans denominated in an
Optional Currency, the Borrower shall repay such Eurocurrency Rate
Loans at the end of such Interest Period, and (b) as to Eurocurrency
Rate Loans denominated in Dollars, such Eurocurrency Rate Loan shall be
automatically converted to a Base Rate Loan on the last day of the
first Interest Period relating thereto. 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 the Borrower shall be deemed to have submitted a Notice
of Conversion/Continuation with respect to the full amount of such
Eurocurrency Loan requesting a Base Rate Loan. The Administrative Agent
shall notify the Lenders promptly when any such automatic conversion
contemplated by this SECTION 4.1(c)(i) is scheduled to occur.
(d) DEFAULT INTEREST. Notwithstanding the rates of interest
specified in SECTION 4.1(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 (i) all Base Rate Loans and other Obligations denominated in Dollars shall
bear interest at a rate equal to the sum of (A) the Base Rate, as in effect from
time to time as interest accrues, PLUS (B) three percent (3.0%) per annum and
(ii) all Eurocurrency Rate Loans and other Obligations denominated in Optional
Currency shall bear interest at a rate equal to the sum of (A) the applicable
Eurocurrency Rate with respect thereto, as in effect from time to time as
interest accrues, PLUS (B) three percent (3.0%) per annum. In addition, a late
charge of five percent (5%) of the amount of any installment which is not paid
on or within ten (10) days after the due date thereof shall be due and payable
to the Lenders to cover the extra expense involved in handling delinquent
payments. Said "late charge" shall be due and payable on demand by
Administrative Agent.
(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 365 days (for Loans denominated in
Sterling) or 360 days (for all other Obligations). In computing interest on any
Loan, the date of the making of the Loan or the first day of an Interest Period,
as the case may be, shall be excluded and the date of payment or the expiration
date of an Interest Period, as the case may be, shall be included; 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) EUROCURRENCY RATE INFORMATION. Upon the reasonable request of
the Borrower from time to time, the Administrative Agent shall promptly provide
to the Borrower such information with respect to the applicable Eurocurrency
Rate as may be so requested.
46
4.2. SPECIAL PROVISIONS GOVERNING EUROCURRENCY RATE LOANS.
(a) AMOUNT OF EUROCURRENCY RATE LOANS. Each Eurocurrency Rate Loan
shall be in a minimum principal amount of the Dollar Equivalent of $2,000,000
(or the Dollar Equivalent of $1,000,000 in the case of any Eurocurrency Rate
Loan denominated in an Optional Currency) and in integral multiples of the
Dollar Equivalent of $1,000,000 (or the Dollar Equivalent of $500,000 in the
case of any Eurocurrency Rate Loan denominated in an Optional Currency) in
excess of that amount. There shall be no more than seven (7) Eurocurrency Rate
Loans denominated in Dollars and four (4) Eurocurrency Rate Loans denominated in
Optional Currency outstanding at any one time.
(b) DETERMINATION OF EUROCURRENCY INTEREST PERIOD. By giving
notice as set forth in SECTION 2.1(d) (with respect to a Borrowing of
Eurocurrency Rate Loans) or SECTION 4.1(c) (with respect to a conversion into or
continuation of Eurocurrency Rate Loans), the Borrower shall have the option,
subject to the other provisions of this SECTION 4.2, to select an Interest
Period to apply to the Loans described in such notice.
(c) DETERMINATION OF EUROCURRENCY INTEREST RATE. As soon as
practicable on the second LIBOR Business Day or the second TARGET Settlement
Date, as the case may be, prior to the first day of each Interest Period (the
"INTEREST RATE DETERMINATION DATE"), the Administrative Agent shall determine
(pursuant to the procedures set forth in the definition of "Eurocurrency Rate")
the interest rate which shall apply to the Eurocurrency Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone 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 Interest Rate Determination
Date:
(i) the Administrative Agent is advised by the Reference Bank
that deposits in Dollars or Optional Currency (in the applicable
amounts) are not being offered to the Reference Bank in the
Eurocurrency Interbank Market for such 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 applicable Eurocurrency Rate then being
determined is to be fixed; or
(iii) the Requisite Lenders advise the Administrative Agent
that the applicable Eurocurrency Rate for Eurocurrency Rate Loans
comprising such Borrowing will not adequately reflect the cost to such
Requisite Lenders of obtaining funds in Dollars or Optional Currency in
Eurocurrency Interbank Market in the amount substantially equal to such
Lenders' Eurocurrency Rate Loans in Dollars or Optional Currency and
for a period equal to such 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 applicable
Eurocurrency Rate shall be suspended and each outstanding Loan bearing interest
at a rate based on such Eurocurrency Rate shall be converted into a Base Rate
Loan on the last day of the then current Interest Period therefor, and each such
Loan denominated in Optional Currency shall be repaid on the last day of the
current Interest Period, notwithstanding any prior election by the Borrower to
the contrary.
47
(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 Eurocurrency Rate Loan
has become unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Governmental 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 4.2(e)(i),
(A) the Borrower's right to request from such Lender and such Lender's
obligation, if any, to make applicable Eurocurrency Rate Loans shall be
immediately suspended, and such Lender shall make a Base Rate Loan as
part of any requested Borrowing of applicable Eurocurrency Rate Loans
and (B) if the affected Eurocurrency 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 dominated in Dollars
into a Base Rate Loan and each such Loan denominated in Optional
Currency shall be repaid on the last day of the current Interest
Period.
(iii) If at any time after a Lender gives notice under SECTION
4.2(e)(i) such Lender determines that it may lawfully make Eurocurrency
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 Eurocurrency Rate Loans shall
thereupon be restored.
(iv) Notwithstanding the foregoing, in the event that any
Lender gives such a notice, at the Borrower's sole election, the
Borrower may identify an Eligible Assignee not giving such a notice to
whom the Lender which has given such a notice shall assign its interest
in the Loans at par pursuant to the terms of an Assignment and
Acceptance substantially in the form attached as EXHIBIT A.
(f) COMPENSATION. In addition to all amounts required to be paid
by the Borrower pursuant to SECTION 4.1 and ARTICLE XII, 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 Eurocurrency Rate Loans to the Borrower but
excluding losses or expenses incurred as the result of such Lender's gross
negligence or willful misconduct) which such Lender may sustain (i) if for any
reason a Borrowing, conversion into LIBOR Rate Loans or continuation of
Eurocurrency 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 Interest Period does not commence after notice therefor is given
pursuant to SECTION 4.1(c), including, without limitation, pursuant to SECTION
4.2(d), (ii) if for any reason any Eurocurrency Rate Loan is prepaid (including,
without limitation, mandatorily pursuant to SECTION 3.1(d)) on a date which is
not the last day of the applicable Interest Period, (iii) as a consequence of a
required conversion of a LIBOR Rate Loan to a Base Rate Loan as a result of any
of the events indicated in SECTION 4.2(d), or (iv) as a consequence of any
failure by the Borrower to repay a Eurocurrency Rate Loan when required by the
terms of this Agreement, including, without limitation, an amount equal to daily
interest for the unexpired portion of such Interest Period on the Eurocurrency
Rate Loan or portion thereof so repaid or converted at a per annum rate equal to
the excess, if any, of (A) the interest rate calculated on the basis of the
Eurocurrency Rate applicable to such Eurocurrency Rate Loan minus (B)
48
the Eurocurrency Rate in effect as of such repayment or conversion which has a
maturity date most closely approximating the last day of such existing Interest
Period. Such amount shall be reduced to present value by using the Eurocurrency
Rate for the new interest period and the number of days remaining in the
unexpired portion of the Interest Period in question. The Lender making demand
for such compensation shall deliver to Administrative Agent who shall forward to
the Borrower, concurrently with such demand, a written statement setting forth
in reasonable detail such losses, expenses and liabilities, and such statement
shall be conclusive as to the amount of compensation due to that Lender, absent
manifest error.
(g) BOOKING OF EUROCURRENCY RATE LOANS. Any Lender may make, carry
or transfer Eurocurrency Rate Loans at, to, or for the account of, its
Eurocurrency Lending Office or Eurocurrency Affiliate or its other offices or
Affiliates. No Lender shall be entitled, however, to receive any greater amount
under SECTIONS 3.2 or 4.2(f) or ARTICLE XII as a result of the transfer of any
such Eurocurrency Rate Loan to any office (other than such Eurocurrency Lending
office) or any Affiliate (other than such Eurocurrency 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 Eurocurrency 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 unless such Eurocurrency
Affiliate or other Affiliate, itself, is a Lender.
(i) ADJUSTED EUROCURRENCY RATE. Any failure by Administrative
Agent to take into account the Reserve Percentage when calculating interest due
on Eurocurrency Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by Administrative Agent or the Lenders of their right to
collect such amount for any future period.
(j) OPTIONAL CURRENCIES.
(i) REQUEST FOR OPTIONAL CURRENCIES. In the event
that the Borrower requests any Revolving Credit Tranche B
Loans be made as Eurocurrency Rate Loans in an Optional
Currency pursuant to SECTION 2.1(d), the Revolving Credit
Tranche B Loan proposed to be made under SECTION 2.1(d) shall
be in an amount not less than the applicable Optional
Currency's Dollar Equivalent of the minimum borrowing amounts
set forth in SECTION 2.1(b); PROVIDED, that after giving
effect to the making of such Loan, the sum of (a) the
aggregate Revolving Credit Tranche B Obligations and (b) the
aggregate Tranche B Letter of Credit Obligations shall not
exceed the Revolving Credit Tranche B Commitments at the time
of such Loan. Subject to the foregoing and to the satisfaction
of the terms and conditions of ARTICLE 5, each Revolving
Credit Tranche B Loan requested to be made in an Optional
Currency will be made on the date specified therefor in the
Notice of Borrowing and, upon being so made, will have the
Interest Period requested in the Notice of Borrowing.
(ii) DENOMINATIONS. In the event that any portion of
the funds available under the terms of this Agreement is
denominated in an Optional Currency, the Dollar Equivalent of
such portion of the funds shall be calculated pursuant to the
definition of "DOLLAR EQUIVALENT." The amount so determined
shall then be added to the amount already outstanding in
Dollars for the purpose of determining the remaining
availability of funds under SECTIONS 2.1 and 4.2(j)(i) and any
required repayments under SECTION 4.2(j)(iii).
49
(iii) REPAYMENT. The Administrative Agent shall, on
the fifth Business Day of each calendar month, each date of a
Sharing Event, and each date that is two (2) days prior to any
Funding Date of a Borrowing of Optional Currency, calculate
the Dollar Equivalent of all Borrowings denominated in
Optional Currency. If at any such time the Dollar Equivalent
of the aggregate principal amount outstanding of the sum of
(A) all Revolving Credit Tranche B Obligations and (B) all
Tranche B Letter of Credit Obligations shall exceed the lesser
of $50,000,000 or the Revolving Credit Tranche B Commitments
due to currency fluctuations, the Borrower shall, upon demand
by the Administrative Agent, pay or cause to be paid within
two (2) Business Days of any such demand made by the
Administrative Agent, such amounts as are sufficient to
eliminate such excess and to reduce the Dollar Equivalent of
the aggregate principal amount outstanding of the sum of (I)
the Revolving Credit Tranche B Obligations and (II) the
Tranche B Letters of Credit Obligations to an amount equal to
the lesser of $50,000,000 or the amount of the Revolving
Credit Tranche B Commitments.
(iv) FUNDING. Each Lender may make any Eurocurrency
Rate Loan denominated in an Optional Currency by causing any
of its domestic or foreign branches or foreign affiliates to
make such Eurocurrency Rate Loan (whether or not such branch
or affiliate is named as a lending office on the signature
pages hereof); PROVIDED that in such event the obligation of
the Borrower to repay such Eurocurrency Rate Loan shall
nevertheless be to such Lender and shall, for all purposes of
this Agreement (including without limitation for purposes of
the definition of "REQUISITE LENDERS") be deemed made by such
Lender, to the extent of such Eurocurrency Rate Loan, for the
account of such branch or affiliate.
4.3. FEES.
(a) UNUSED FACILITY FEE. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders based on their respective
Pro Rata Shares, a fee (the "UNUSED FACILITY FEE"), accruing at the following
per annum rate as set forth below on the average daily amount by which the total
Revolving Credit Commitments exceed the Dollar Equivalent of the outstanding
principal amount of Loans and the Letter of Credit Obligations during such month
or portion thereof. The Unused Facility Fee shall be calculated for each day
based on the ratio (expressed as a percentage) of (i) the average daily amount
of the Dollar Equivalent of the outstanding principal amount of the Loans and
the Letter of Credit Obligations during such month to (ii) the total Revolving
Credit Commitments, and if such ratio is less than thirty-three percent (33%),
the Unused Facility Fee shall be payable at the rate of 0.30%, and if such ratio
is equal to or greater than thirty-three percent (33%) but less than sixty-six
percent (66%), the Unused Facility Fee shall be payable at the rate of 0.225%,
and if such ratio is equal to or greater than sixty-six percent (66%), the
Unused Facility Fee shall be payable at the rate of 0.15%. Such fee shall be
payable quarterly, in arrears, commencing on the Closing Date and on the first
Business Day of each calendar quarter thereafter commencing on October 1, 2003;
PROVIDED that the payment made on October 1, 2003 shall also include payment for
the period from the Closing Date to June 30, 2003. The Unused Facility Fee shall
also be payable upon any termination of the Revolving Credit Commitments, which
payment shall be prorated for any partial quarter during which termination of
the Revolving Credit Commitments occurs. Notwithstanding the foregoing, in the
event that any Lender fails to fund its Pro Rata Share of any Loan requested by
the Borrower which such Lender is obligated to fund under the terms of this
Agreement, (x) the portion of the Unused Facility Fee with respect to such
Lender's Revolving Credit Commitment shall ▇▇▇▇▇ until such failure has been
cured in accordance with SECTION 3.2(b)(v)(B) and (y) until such time, the
Unused Facility Fee (as reduced by clause (x) of this SECTION 4.3(a)) shall
accrue in favor of the Lenders which have funded their respective Pro Rata
Shares of such
50
requested Loan, shall be allocated among such performing Lenders ratably based
upon their relative Revolving Credit Commitments.
(b) ADMINISTRATIVE AGENT'S FEE. The Borrower shall pay to the
Administrative Agent, for the Administrative Agent's own account, an annual
Administrative Agent's fee as provided in the Fee Letter. The Administrative
Agent's fee shall be payable monthly in arrears on the first day of each month
for the immediately preceding month or portion thereof. The Administrative
Agent's fee shall also be paid upon the Revolving Credit Termination Date or
earlier termination of the Revolving Credit Commitments. The Administrative
Agent's fee for any partial month shall be prorated.
(c) CALCULATION AND PAYMENT OF FEES. All fees shall be calculated
on the basis of the actual number of days elapsed during the relevant period in
a 360-day year. All fees shall be payable in addition to, and not in lieu of,
interest, compensation, expense reimbursements, indemnification and other
Obligations. Fees shall be payable to the Administrative Agent at Administrative
Agent's Head Office in immediately available funds. All fees shall be fully
earned and nonrefundable when paid. All fees due to any other Lender, including,
without limitation, those referred to in this SECTION 4.3, shall bear interest,
if not paid when due, at the interest rate specified in SECTION 4.1(d) and shall
constitute Obligations.
(d) LIMITATION ON INTEREST. Notwithstanding anything in this
Agreement or the other Loan Documents to the contrary, all agreements between or
among the Borrower and the Lenders and the Administrative Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of acceleration of the maturity of any
of the Obligations or otherwise, shall the interest contracted for, charged or
received by the Lenders exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Lenders in excess of the maximum lawful amount, the interest payable to
the Lenders shall be reduced to the maximum amount permitted under applicable
law; and if from any circumstance the Lenders shall ever receive anything of
value deemed interest by applicable law in excess of the maximum lawful amount,
an amount equal to any excessive interest shall be applied to the reduction of
the principal balance of the Obligations and to the payment of interest or, if
such excessive interest exceeds the unpaid balance of principal of the
Obligations, such excess shall be refunded to the Borrower. All interest paid or
agreed to be paid to the Lenders shall, to the extent permitted by applicable
law, be amortized, prorated, allocated and spread throughout the full period
until payment in full of the principal of the Obligations (including the period
of any renewal or extension thereof) so that the interest thereon for such full
period shall not exceed the maximum amount permitted by applicable law. This
section shall control all agreements between the Borrower and the Lenders and
the Administrative Agent.
ARTICLE V.
CONDITIONS TO LOANS AND ISSUANCE OF LETTERS OF CREDIT
5.1. CONDITIONS PRECEDENT TO THE INITIAL LOANS AND LETTERS OF CREDIT.
The obligation of each Lender on the Initial Funding Date to make any Loan
requested to be made by it or of the Issuing Lender on the Initial Funding Date
to issue any Letter of Credit requested of it shall be subject to the
satisfaction or waiver of all of the following conditions precedent:
(a) DOCUMENTS. The Administrative Agent shall have received on or
before the Initial Funding Date all of the following:
(i) this Agreement, the Notes, the Guaranty and, to the extent
not otherwise specifically referenced in this SECTION 5.1(a), all other
Loan Documents and agreements, documents and instruments described in
the List of Closing Documents attached hereto as EXHIBIT F and made a
part hereof, each duly executed and in form and substance satisfactory
to
51
the Administrative Agent; and a legal opinion from ▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., counsel to TMC and the Borrower, satisfactory in form and
substance to the Administrative Agent and delivered to the
Administrative Agent and the Lenders, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP; and
(ii) such additional documentation as the Administrative
Agent 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 or the
issuance of any Letter of Credit on the Initial 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 TMC, the Borrower or
any of their respective Properties or Subsidiaries shall have occurred since
December 31, 2002 which change, in the judgment of the Administrative Agent,
will have or is reasonably likely to have a Material Adverse Effect.
(d) INTERIM LIABILITIES AND EQUITY. Except as disclosed to the
Administrative Agent and the Lenders, since December 31, 2002, Borrower shall
not have (i) entered into any material (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 which are not in the ordinary course of the Borrower's
business, (iii) established any new compensation or employee benefit plans or
made any change to any existing compensation or employee benefit plan, in each
case, that is material to the Borrower's financial condition or prospects, or
(iv) redeemed any equity Securities in the Borrower or TMC other than any
redemption permitted pursuant to SECTION 9.13.
(e) NO LOSS OF MATERIAL AGREEMENTS AND LICENSES. Since December
31, 2002, no agreement or license relating to the business, operations or
employee relations of the Borrower or any of its 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 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 or the issuance of such Letters of Credit.
(g) REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties contained in SECTION 6.1 and in any of the other Loan Documents
(other than representations and warranties which expressly speak as to a
different specific date) shall be true and correct in all material respects on
and as of the Initial Funding Date.
(h) FEES AND EXPENSES PAID. There shall have been paid to the
Administrative Agent, for the accounts of the Administrative Agent and the other
Lenders, as applicable, all fees due and payable on or before the Initial
Funding Date and all expenses due and payable on or before the Initial Funding
Date, including, without limitation, reasonable attorneys' fees and expenses,
and other costs and expenses incurred in connection with the Loan Documents;
provided that the Borrower shall not be responsible for the fees and expenses of
any law firm representing the Administrative Agent or the Lenders other than
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP.
52
(i) FINANCIAL STATEMENTS. There shall have been delivered to the
Administrative Agent, for each of the Lenders, the financial statements and
certificates with respect to the Fiscal Year ending December 31, 2002 required
pursuant to SECTION 7.2(b), including those required pursuant to SECTION
7.2(b)(ii).
(j) COMPLIANCE CERTIFICATE. A Compliance Certificate dated as of
the Initial Funding Date demonstrating compliance with each of the covenants
calculated therein as of March 31, 2003, together with a description of any
major acquisition, disposition, financings or other major transactions after
such date, and a certification that, to the Borrower's knowledge after giving
effect to such transactions and the initial Loan and the use of proceeds
thereof, the Borrower would continue to be in compliance with the covenants.
(k) BRIDGE LOAN. The Administrative Agent shall have received a
copy of the
Revolving Credit Agreement dated as of April 16, 2003, as amended,
agented by Royal Bank of Canada certified to be true, correct and complete by an
Authorized Financial Officer.
5.2. CONDITIONS PRECEDENT TO ALL SUBSEQUENT LOANS AND LETTERS OF
CREDIT. The obligation of each Lender to make any Loan requested to be made by
it and of the Issuing Lender to issue any Letter of Credit requested to be
issued by it on any date after the Initial Funding Date is subject to the
following conditions precedent as of each such date:
(a) REPRESENTATIONS AND WARRANTIES. As of such date, both before
and after giving effect to the Loans to be made or the Letters of Credit to be
issued on such date, all of the representations and warranties of the Borrower
contained in SECTION 6.1 and in any other Loan Document (other than
representations and warranties which expressly speak as of a different date)
shall be true and correct in all material respects.
(b) NO DEFAULTS. No Event of Default or Potential Event of Default
shall have occurred and be continuing or would result from the making of the
requested Loan.
(c) 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 requested Loan or
the issuance of the requested Letter of Credit or (ii) impose or result in the
imposition of a Material Adverse Effect.
(d) NO MATERIAL ADVERSE EFFECT. No event has occurred since the
date of this Agreement which has had and continues to have, or is reasonably
likely to have, a Material Adverse Effect.
(e) COMPLIANCE CERTIFICATE. Administrative Agent shall have
received a certificate from an Authorized Financial Officer that TMC and the
Borrower are and will be in compliance with all covenants under the Loan
Documents after giving effect to the making of such Loan or the issuance of such
Letter of Credit.
Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing with respect to a Loan, a Letter of Credit Request or a Notice of
Conversion/Continuation with respect to any Loan and each acceptance by the
Borrower of the proceeds of each Loan made, converted or continued hereunder or
the acceptance of a Letter of Credit, shall constitute a representation and
warranty by the Borrower as of the Funding Date in respect of such Loan or the
issuance of such Letter of Credit and the date of conversion or continuation,
that all the conditions contained in this SECTION 5.2 have been satisfied or
waived in accordance with SECTION 13.7.
53
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
6.1. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. In order to induce
the Lenders to enter into this Agreement and to issue the Letters of Credit and
make the Loans and the other financial accommodations to the Borrower described
herein, the Borrower hereby represents and warrants to Administrative Agent and
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 or is reasonably likely to 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
partnership for federal income tax purposes.
(ii) TMC (A) is a corporation 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 or is reasonably likely to have a
Material Adverse Effect, and (C) has all requisite corporate power and
authority to own and operate its interest in the Borrower and to
conduct its business as presently conducted.
(iii) True, correct and complete certified copies of the
Organizational Documents of the Borrower and TMC have been delivered to
the Administrative Agent, each of which is in full force and effect,
has not been modified or amended as of the Closing Date except to the
extent indicated therein 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.
(iv) As of the Closing Date, except as set forth on SCHEDULE
6.1-A, neither the Borrower nor any of its Affiliates, are "foreign
persons" within the meaning of SECTION 1445 of the Internal Revenue
Code.
(v) The principal office, chief executive office and principal
place of business of TMC and the Borrower is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address specified
by the Borrower and TMC to the Administrative Agent in writing.
(b) AUTHORITY. (i) TMC, individually and in its capacity as the
sole general partner of the Borrower, has the requisite power and authority to
execute, deliver and perform this Agreement on behalf of the Borrower and each
of the other Loan Documents which are required to be executed by TMC
individually or on behalf of the Borrower as required by this Agreement. TMC 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 or TMC and to which the Borrower or TMC is a party and
the consummation of the transactions contemplated thereby are within
the Borrower's partnership powers and TMC's corporate powers, have been
duly authorized by all necessary partnership action (and, in the case
of TMC acting individually or on
54
behalf of the Borrower in connection therewith, all necessary corporate
action thereof) and such authorization has not been rescinded. No other
partnership or corporate action or proceedings on the part of the
Borrower or TMC is necessary to consummate such transactions.
(iii) Each of the Loan Documents to which the Borrower or TMC
is a party has been duly executed and delivered on behalf of the
Borrower or TMC and constitutes the Borrower's or TMC's legal, valid
and binding obligation, enforceable against such Person in accordance
with its terms except to the extent that the enforcement thereof or the
availability of equitable remedies may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
transfer, fraudulent conveyance or similar laws now or hereafter in
effect relating to or affecting creditors, rights generally or by
general principles of equity, or by the discretion of any court in
awarding equitable remedies, regardless of whether such enforcement is
considered in a preceding in equity or at law, 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
Borrower and TMC on or before the Initial Funding Date have been
performed or complied with, and no Potential Event of Default, Event of
Default or breach of any covenant by any of the Borrower or TMC exists
thereunder.
(c) SUBSIDIARIES; OWNERSHIP OF CAPITAL STOCK AND PARTNERSHIP
INTERESTS. (i) As of the Closing Date, SCHEDULE 6.1-C (A) contains a diagram
indicating the structure of the Borrower, and any other Person in which the
Borrower holds a direct or indirect partnership, or other equity interest
indicating the nature and amount 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 Securities of the Borrower and TMC. None of such
issued and outstanding Securities is subject to any vesting, redemption, or
repurchase agreement, and there are no warrants or options outstanding with
respect to such Securities, except as noted on SCHEDULE 6.1-C. The outstanding
Capital Stock of TMC is duly authorized, validly issued, fully paid and
nonassessable and the outstanding Securities of TMC and its Subsidiaries are
duly authorized and validly issued. TMC or the Borrower has delivered to the
Administrative Agent a true, accurate and complete copy of the TMLP Partnership
Agreement as amended through and as in effect on the Closing Date and such TMLP
Partnership Agreement has not been amended, supplemented, replaced, restated or
otherwise modified in any respect since the Closing Date. As of the Closing
Date, none of the Series A Preferred Interests held by any Person other than TMC
are comprised of partnership interests in Borrower.
(ii) Except where failure would not have a Material Adverse
Effect on the Borrower or any Subsidiary, each of the Borrower and its
Subsidiaries listed on SCHEDULE 6.1-C: (A) is a corporation, limited
liability company or partnership, as indicated on SCHEDULE 6.1-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 limit its ability to use the courts of such
jurisdiction to enforce Contractual Obligations to which it is a party,
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.
(d) NO CONFLICT. The execution, delivery and performance of each
of the Loan Documents to which the Borrower or TMC is a party do not and will
not (i) conflict with the Organizational Documents of the Borrower or TMC, (ii)
constitute a tortious interference with any Contractual Obligation of any Person
or conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both)
55
a default under any Requirement of Law or any material Contractual Obligation of
the Borrower or TMC, or require termination of any such Contractual Obligation
which may 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, TMC or any
Subsidiary of the Borrower or TMC, or (iv) require any approval of shareholders
of TMC or partners of Borrower.
(e) GOVERNMENTAL CONSENTS. The execution, delivery and performance
of each of the Loan Documents to which the Borrower or TMC 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. Neither Borrower nor TMC 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 their
respective ability to incur indebtedness or their respective ability to
consummate the transactions contemplated by this Agreement.
(g) FINANCIAL POSITION. Complete and accurate copies of the
financial statements and materials as described in SECTION 5.1(i) have been
delivered to the Administrative Agent. All financial statements included in such
materials were prepared in all material respects in conformity with GAAP, except
as otherwise noted therein, and fairly present in all material respects the
respective Consolidated financial positions, and the Consolidated results of
operations and cash flows for each of the periods covered thereby of TMC and the
Borrower and its Consolidated Subsidiaries as at the respective dates thereof.
Neither Borrower nor any of its Consolidated Subsidiaries has any Contingent
Obligation, contingent liability or liability for any taxes, long-term leases or
commitments, not reflected in its audited 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, which will have or is
reasonably likely to have a Material Adverse Effect. As of the Closing Date,
TMC, Borrower and their respective Subsidiaries own all of the assets reflected
in the Consolidated balance sheet of the Borrower as of December 31, 2002 or
acquired since that date except the minority interests reflected therein (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date), subject to no rights of others, including any
mortgages, leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Liens permitted by SECTION 9.2. Without
limiting the foregoing, Borrower and its Subsidiaries have good and marketable
fee simple title to all Real Property reasonably necessary for the operation of
its business in whole, free from all liens or encumbrances of any nature
whatsoever, except for Liens permitted by SECTION 9.2. The Borrower or one of
its Subsidiaries, as the case may be, is the insured under owner's policies of
title insurance covering all Real Property owned by it, in each case in an
amount not less than the purchase price for such Real Property.
(h) INDEBTEDNESS. SCHEDULE 6.1-H sets forth, as of December 31,
2002, all Indebtedness for borrowed money of the Borrower and its respective
Subsidiaries not disclosed in the financial statements delivered pursuant to
SECTION 5.1(i) and, except as set forth on SCHEDULE 6.1-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 as of
the Closing Date there has been no material change in the type or amount of such
Indebtedness (except for the repayment of certain Indebtedness) since December
31, 2002.
(i) LITIGATION; ADVERSE EFFECTS. Except as set forth in SCHEDULE
6.1-I, there is no action, suit, proceeding, Claim, investigation or arbitration
before or by any Governmental Authority or private arbitrator pending or, to the
knowledge of the Borrower, threatened against TMC, the Borrower, or any of its
respective Subsidiaries, or any Property of any of them (i) challenging the
validity or the enforceability
56
of any of the Loan Documents, (ii) as of the Closing Date, which will or is
reasonably likely to result in any Material Adverse Effect, or (iii) as of the
Closing Date, 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
Governmental 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 Borrower. Neither the Borrower nor TMC
or any Subsidiary of the Borrower or TMC 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) subject to or in default with respect to any
final judgment, writ, injunction, restraining order or order of any nature,
decree, rule or regulation of any court or Governmental Authority which will
have or is reasonably likely to have a Material Adverse Effect.
(j) NO MATERIAL ADVERSE EFFECT. Since December 31, 2002, there has
occurred no event which has had or is reasonably likely to have a Material
Adverse Effect.
(k) TAX EXAMINATIONS. All deficiencies which have been asserted
against the Borrower or TMC as a result of any federal, state, local or foreign
tax examination for each taxable year in respect of which an examination has
been conducted have been fully paid or finally settled or are being contested in
good faith, and no issue has been raised in any such examination which, by
application of similar principles, reasonably can be expected to result in
assertion of a material deficiency for any other year not so examined which has
not been reserved for in the financial statements of the Borrower or TMC, as
applicable, to the extent, if any, required by GAAP. Neither Borrower nor TMC
has taken any reporting positions for which it does not have a reasonable basis
nor anticipates any further material tax liability with respect to the years
which have not been closed pursuant to applicable law.
(l) PAYMENT OF TAXES. All tax returns, reports and similar
statements or filings of the Borrower, TMC and their respective Subsidiaries
required to be filed have been timely filed, and, except for Customary Permitted
Liens, all taxes, assessments, fees and other charges of Governmental
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
8.4 or (ii) such taxes, assessments, fees and other charges of Governmental
Authorities pertain to Property of the Borrower, TMC or their respective
Subsidiaries and the non-payment of the amounts thereof would not, individually
or in the aggregate, result in a Material Adverse Effect. All other taxes
(including, without limitation, real estate taxes), assessments, fees and other
governmental charges upon or relating to the respective Properties of the
Borrower, TMC and their respective Subsidiaries which are due and payable have
been paid, except for Customary Permitted Liens and except to the extent
described in clauses (i) or (ii) hereinabove. Neither Borrower nor TMC has any
knowledge of any proposed tax assessment against the Person, any of their
respective Subsidiaries, or any of the Properties that, if not paid, will have
or is reasonably likely to have a Material Adverse Effect. Except as in
accordance with SECTION 7.14, the Borrower does not intend to treat the Loans,
Letters of Credit and/or related transactions hereunder as being a "reportable
transaction" (within the meaning of Treasury Regulation Section 1.6011-4).
(m) PERFORMANCE. Neither the Borrower nor TMC nor any of their
Subsidiaries has received any notice, citation or allegation, 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, (ii) any of its Properties is in
violation of any Requirements of Law or (iii) any condition exists which, with
the giving of notice or the lapse of time or both, would constitute a default
57
with respect to any such Contractual Obligation, in each case, except where such
default or defaults, if any, will not have or is not reasonably likely to have a
Material Adverse Effect.
(n) DISCLOSURE. The representations and warranties of the Borrower
and TMC 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, not
misleading. Neither the Borrower nor TMC has intentionally withheld any fact
from the Administrative Agent or the other Lenders in regard to any matter which
will have or is reasonably likely to have a Material Adverse Effect.
Notwithstanding the foregoing, the Lenders acknowledge that neither the Borrower
nor TMC shall have liability under this clause (n) with respect to its
projections of future events.
(o) REQUIREMENTS OF LAW. The Borrower, TMC and each of their
respective Subsidiaries are in compliance in all material respects 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 or is reasonably likely to have a Material Adverse Effect.
(p) ENVIRONMENTAL MATTERS.
(i) Except as disclosed on SCHEDULE 6.1-P and except where
failure is not reasonably likely to have a Material Adverse Effect:
(A) the operations of the Borrower, TMC, each of
their respective Subsidiaries, and their respective Properties
comply in all material respects with all applicable
Environmental, Health or Safety Requirements of Law;
(B) TMC, the Borrower and each of their respective
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 in all material
respects with all material terms and conditions of such
Permits;
(C) none of the Borrower, TMC or any of their
Subsidiaries or any of their respective present or, to the
Borrower's knowledge, past Property or operations is subject
to or is the subject of any investigation, judicial or
administrative proceeding, order, judgment, decree, dispute,
negotiations, agreement or settlement by any Governmental
Authority respecting (I) any Environmental, Health or Safety
Requirements of Law, (II) any Remedial Action, (III) any
Claims or Liabilities and Costs arising from the Release or
threatened Release of a Contaminant into the environment, or
(IV) any violation of or liability under any Environmental,
Health or Safety Requirement of Law;
(D) none of the Borrower, TMC or any of their
respective Subsidiaries has filed any notice under any
applicable Requirement of Law (I) reporting 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;
(E) none of the Borrower, TMC or any of their
respective Subsidiaries present or, to the Borrower's
knowledge, past Property presently is listed or proposed for
58
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) TMC, the Borrower nor any of their Subsidiaries
has sent or directly arranged for the transport of any
Contaminant 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 Real Property (I) any treatment, recycling,
storage or disposal of any hazardous waste, as that term is
defined under 40 C.F.R. Part 261 or any state equivalent; (II)
any landfill, waste pile, or surface impoundment; (III) any
underground storage tanks the presence or use of which is or,
to the Borrower's knowledge, has been in violation of
applicable Environmental, Health or Safety Requirements of
Law, (IV) any asbestos-containing material which 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 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;
(H) neither the Borrower nor TMC nor any of their
respective 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, except for Claims that have
been resolved;
(I) to the Borrower's knowledge, neither the Borrower
nor TMC nor any of their respective Subsidiaries has any
contingent liability in connection with any Release or
threatened Release of any Contaminants into the environment;
(J) no Environmental Lien is presently recorded
with respect to any Property of the Borrower or any
Subsidiary of the Borrower;
(K) no Property of the Borrower or any Subsidiary of
the Borrower 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 fully complied with the requirements of
such acts; and
(L) neither the Borrower nor any of its Subsidiaries
owns or operates any underground storage tank, the presence or
use of which is in violation of applicable Environmental,
Health or Safety Requirements of Law, at any Real Property.
(ii) the Borrower and each of its Subsidiaries are conducting
and will continue to conduct their respective businesses and operations
and maintain each Real Property in compliance in all material respects
with applicable Environmental, Health or Safety Requirements of Law and
no such Person has been, and no such Person has any reason to believe
that it or any Property will be, subject to Liabilities and Costs
arising out of or relating to environmental, health or safety matters
that would result in a Material Adverse Effect.
59
(q) ERISA. As of the Closing Date, neither the Borrower nor TMC
nor any ERISA Affiliate maintains or contributes to any Benefit Plan or
Multiemployer Plan other than those listed on SCHEDULE 6.1-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. As of the Closing Date, except as disclosed in SCHEDULE
6.1-Q, neither the Borrower nor TMC nor any of their respective Subsidiaries
maintains or contributes to any "employee welfare benefit plan" within the
meaning of Section 3(l) of ERISA which provides benefits to employees after
termination of employment other than as required by Section 601 of ERISA or a
similar state law. Each of the Borrower, TMC and their respective 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 TMC 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 with
respect to which such Persons can be subject to any liability individually or in
the aggregate in excess of $5,000,000 or (ii) has taken or failed to take any
action which would constitute or result in an ERISA Termination Event. Neither
the Borrower nor TMC nor any ERISA Affiliate is subject to any liability under
Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA. Neither the Borrower nor
TMC nor any ERISA Affiliate 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 (i.e. IRS Form 5500) with respect to each
Benefit Plan and furnished to the Administrative Agent 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 TMC 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. Neither the Borrower nor TMC
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 TMC 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. As of the
Closing Date, except as disclosed on SCHEDULE 6.1-Q, neither the Borrower nor
TMC nor any of their respective 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. No member of the Group is engaged in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock. No portion of any Loan is to be used for the purpose of purchasing
or carrying any Margin Stock except to the extent permitted by SECTION 2.2.
(s) SOLVENCY. After giving effect to the Loans to be made or
Letters of Credit to be issued on the Initial Funding Date or such other date as
Loans or Letters of Credit requested hereunder are made or issued, and the
disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, each of the Borrower and TMC is Solvent.
(t) INSURANCE. SCHEDULE 6.1-T accurately sets forth as of the
Closing Date all material insurance policies and programs currently in effect
with respect to the respective Property and assets and business of the Borrower
and 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.
60
Such insurance policies and programs are currently in full force and effect, in
compliance with the requirements of SECTION 8.5 hereof and, together with
payment by the insured of scheduled deductible payments, are in amounts
sufficient to cover the replacement value of the respective Property and assets
of the Borrower and/or its Subsidiaries.
(u) REIT STATUS. TMC qualifies as a REIT under the Internal Revenue
Code.
(v) [INTENTIONALLY OMITTED.]
(w) FRANCHISES, PATENTS, COPYRIGHTS, ETC. TMC and Borrower and its
Subsidiaries possess all franchises, patents, copyrights, trademarks, trade
names, service marks, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of their business substantially as now
conducted without known conflict with any rights of others.
(x) LABOR MATTERS. As of the Closing Date, there are no collective
bargaining agreements covering the employees of TMC, the Borrower or any of
their Subsidiaries or Affiliates and none of such businesses have suffered any
strikes, walkouts, work stoppages or other material labor difficulty within the
last five (5) years.
ARTICLE VII.
REPORTING COVENANTS
Each of the Borrower and TMC covenants and agrees that so long as any
Revolving Credit Commitments or Letters of Credit are outstanding and thereafter
until payment in full of all of the Obligations (other than indemnities pursuant
to SECTION 13.3 not yet due) and the return to Issuing Lender of any outstanding
Letters of Credit (other than any Letters of Credit collateralized pursuant to
SECTION 2.4(A)) unless the Requisite Lenders shall otherwise give prior written
consent thereto:
7.1. BORROWER ACCOUNTING PRACTICES. The Borrower shall maintain, and
cause TMC and each of their respective Subsidiaries to maintain, a system of
accounting established and administered in accordance with sound business
practices to permit preparation of Consolidated and Consolidating financial
statements in conformity with GAAP, and each of the financial statements and
reports described below shall be prepared from such system and records and in
form reasonably satisfactory to the Administrative Agent.
7.2. FINANCIAL REPORTS. TMC shall deliver or cause to be delivered to
the Administrative Agent (in electronic format or hard copy, PROVIDED, that all
signatures are to be delivered in the original hard copy format), the following
financial reports, each prepared by a certified public accountant reasonably
acceptable to the Administrative Agent in accordance with generally accepted
accounting principles consistently applied except that the financial statement
for the Borrower may be in the form of an internally prepared adjustment
statement showing the necessary adjustment to derive the Borrower statement from
the audited TMC statement if accompanied by a certificate showing such
adjustment certified by an officer of the Borrower and TMC as fairly presenting
such information to the knowledge of such officer after due inquiry. Each annual
report shall be certified, to the knowledge of such officer after due inquiry,
as true, complete and correct in all material respects by an officer of the
Borrower and TMC. The Borrower and TMC shall provide such additional financial
information the Administrative Agent reasonably requires with respect to such
entity, including without limitation, copies of any Form 10Q's, 10K's, annual
reports and other publicly available documentation filed with the Commission
within ten (10) days of filing or delivered to its shareholders or partners:
61
(a) QUARTERLY REPORTS.
(i) QUARTERLY FINANCIAL REPORTS. As soon as practicable, and
in any event within sixty (60) days after the end of each fiscal
quarter in each Fiscal Year (other than the last fiscal quarter in each
Fiscal Year), an unaudited 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, in each case in form and
substance satisfactory to the Administrative Agent and, in comparative
form, the corresponding figures for the corresponding periods of the
previous Fiscal Year, certified by an Authorized Financial Officer of
TMC as fairly presenting the Consolidated and Consolidating financial
position of TMC and the Borrower as of the dates indicated and the
results of its operations and cash flow for the months indicated in
accordance with GAAP, subject to normal quarterly adjustments.
(ii) QUARTERLY FINANCIAL REPORTS. As soon as practicable, and
in any event within sixty (60) days after the end of each fiscal
quarter in each Fiscal Year (other than the last fiscal quarter in each
Fiscal Year), the Financial Statements of TMC and its Subsidiaries on
Form l0-Q as at the end of such period and a report setting forth in
comparative form the corresponding figures for the corresponding period
of the previous Fiscal Year, certified by an Authorized Financial
Officer of TMC as fairly presenting the consolidated and consolidating
financial position of TMC and the Borrower and their Subsidiaries as at
the date indicated and the results of its 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 7.2, the Borrower shall deliver appropriate an Officer's
Certificate (the "QUARTERLY COMPLIANCE CERTIFICATES"), signed by the
Borrower'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 transactions and Consolidated and Consolidating financial condition
of the Borrower, TMC and their respective Subsidiaries, during 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 of
the date of such Officer's Certificate, of any condition or event which
constitutes an Event of Default or Potential Event of Default or
mandatory prepayment event as described in SECTION 3.1(d) of this
Agreement, or, if any such condition or event existed or exists, and
specifying the nature and period of existence thereof and what action
the Borrower, TMC or any of their Subsidiaries has taken, is taking and
proposes to take with respect thereto; (2) the calculations (in the
form of EXHIBIT H hereto or otherwise with such specificity as the
Administrative Agent may reasonably request) for the period then ended
which demonstrate compliance with the covenants and financial ratios
set forth in ARTICLES VIII and IX and, when applicable, that no Event
of Default described in SECTION 10.1 exists, (3) a schedule of changes,
if any, in the Borrower's outstanding Indebtedness, including the
amount, maturity, and interest rate, as well as such other information
regarding such Indebtedness as may be reasonably requested by the
Administrative Agent, since the last date on which such a schedule was
submitted, and (4) a schedule of Combined EBITDA.
(iv) ASSET SALES, ACQUISITIONS AND LIENS. Together with each
delivery of any quarterly report pursuant to paragraph (a)(i) of this
SECTION 7.2, the information required pursuant to SECTION 7.9.
62
(b) ANNUAL REPORTS.
(i) BORROWER AND TMC FINANCIAL STATEMENTS. As soon as
practicable, and in any event within one hundred twenty (120) days
after the end of each Fiscal Year, (x) the Financial Statements of
Borrower and its Consolidated Subsidiaries as at the end of such Fiscal
Year and certified by an Authorized Financial Officer of Borrower as
fairly presenting the Consolidated financial position of Borrower and
its Subsidiaries as of the dates indicated, (y) the Financial
Statements of TMC and its Consolidated Subsidiaries on Form 10-K as at
the end of such Fiscal Year, and (z) a report with respect thereto of
Ernst & Young LLP or other independent certified public accountants
reasonably acceptable to the Administrative Agent, which report shall
be unqualified and shall state that such financial statements fairly
present the Consolidated and Consolidating financial position of TMC
and its Consolidating Subsidiaries as at the dates indicated and the
results of their operations and cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years
(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). The Administrative Agent and each Lender (through the
Administrative Agent) may, with the consent of the Borrower (which
consent shall not be unreasonably withheld), communicate directly with
such accountants, with any such communication to occur together with a
representative of the Borrower, at the expense of the Administrative
Agent (or the Lender requesting such communication), upon reasonable
notice and at reasonable times during normal business hours.
(ii) ANNUAL COMPLIANCE CERTIFICATES. Together with each
delivery of any annual report pursuant to clauses (i) and (ii) of this
SECTION 7.2(b), the Borrower shall deliver an Officer's Certificate of
the Borrower (the "ANNUAL COMPLIANCE CERTIFICATES" and, collectively
with the Quarterly Compliance Certificates, the "COMPLIANCE
CERTIFICATES"), signed by the Borrower'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 transactions and Consolidated and
Consolidating financial condition of the Borrower, TMC and their
respective Subsidiaries, during the accounting period covered by such
reports, that such review has not disclosed the existence during or 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 any condition or event which constitutes an Event of
Default or Potential Event of Default or mandatory prepayment event as
described in SECTION 3.1(d) of this Agreement, or, if any such
condition or event existed or exists, and specifying the nature and
period of existence thereof and what action the Borrower, TMC or any of
their Subsidiaries has taken, is taking and proposes to take with
respect thereto; (2) the calculations (in the form of EXHIBIT H, which
sets forth the financial covenant calculation methodology used by the
Borrower as of December 31, 2002 and which covenant calculation
methodology will be used by the Borrower with respect to future
compliance with the financial covenants set forth herein) and otherwise
with such specificity as the Administrative Agent may reasonably
request) for the period then ended which demonstrate compliance with
the covenants and financial ratios set forth in ARTICLES VIII and IX
and, when applicable, that no Event of Default described in SECTION
10.1 exists, (3) a schedule of the Borrower's outstanding Indebtedness
including the amount, maturity and interest rate, as well as such other
information regarding such Indebtedness as may be reasonably requested
by the Administrative Agent, (4) a schedule of Combined EBITDA, and (5)
a schedule of property sales and occupancy with respect to each Real
Property.
(iii) TENANT BANKRUPTCY REPORTS. As soon as practicable after
the end of each Fiscal Year, and in any event within ninety (90) days
after the end of each Fiscal Year, the Borrower
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shall deliver a written report, in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or
against, or (to Borrower's knowledge) the cessation of business or
operations of, any tenant of any of the Real Properties, the base rent
payments of which tenant account for more than 5% of the Borrower's
share of consolidated minimum rent in the Real Properties in the
aggregate.
(iv) ASSET SALES, ACQUISITIONS AND LIENS. Together with each
delivery of any quarterly report pursuant to paragraph (b)(i) of this
SECTION 7.2, the information required pursuant to SECTION 7.9.
7.3. 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, or becoming aware that any Lender or the Administrative Agent
has given any notice with respect to a claimed Event of Default or Potential
Event of Default under this Agreement; (b) that any Person has given any notice
to the Borrower, TMC or any Subsidiary of the Borrower or TMC or taken any other
action with respect to a claimed default or event or condition of the type
referred to in SECTION 10.1(e); or (c) or of any condition or event which has or
is reasonably likely to have a Material Adverse Effect, the Borrower shall
deliver to the Administrative Agent 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.
7.4. 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, TMC
or any of their respective Subsidiaries of the type described in SECTION 6.1(i)
of this Agreement not previously disclosed pursuant to SECTION 6.1(i), the
Borrower shall give written notice thereof to the Administrative Agent 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 covering the institution
of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration of the type described in SECTION 6.1(i) of this
Agreement (not previously reported) and involving a Claim which is uninsured
against the Borrower, TMC or any of their respective Subsidiaries or any
Property of the Borrower, TMC or any of their respective 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 requested by Administrative Agent 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
7.4, the Borrower upon request of the Administrative Agent or the Requisite
Lenders shall promptly give written 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 by Administrative Agent to enable
each Lender and the Administrative Agent and its counsel to evaluate such
matters.
7.5. INSURANCE. As soon as practicable following the end of the
calendar year and in any event by February 15th of the following calendar year,
the Borrower shall deliver to the Administrative Agent (i) a report in form and
substance reasonably satisfactory to the Administrative Agent outlining all
material insurance coverage maintained as of the date of such report by the
Borrower, TMC and their respective Subsidiaries and the duration of such
coverage and (ii) the certificate of an Authorized Financial Officer that all
premiums with respect to such coverage have been paid when due.
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7.6. ERISA NOTICES. The Borrower shall deliver or cause to be delivered
to the Administrative Agent, 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, TMC or
any ERISA Affiliate knows or has reason to know that an ERISA Termination Event
has occurred, a written statement of the chief financial officer of the Borrower
describing such ERISA Termination Event and the action, if any, which the
Borrower or TMC 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 prohibited transaction (defined in Sections 406 of
ERISA and 4975 of the Internal Revenue Code) has occurred, a statement of the
chief financial officer of the Borrower describing such transaction and the
action which the Borrower or TMC 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 (IRS 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 TMC or any ERISA Affiliate of each actuarial report for any Benefit
Plan or Multiemployer Plan and each annual report for any Multiemployer Plan
(IRS Form 5500), 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 TMC 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
TMC 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 TMC 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 TMC 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;
(i) within fifteen (15) Business Days after the Borrower or TMC 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 TMC 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, a notification of such failure; and
65
(k) within fifteen (15) Business Days after the Borrower or TMC or
any ERISA Affiliate knows or has reason to know (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
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 7.6, the Borrower, TMC and any ERISA Affiliate
shall be deemed to know all facts known by the "Administrator" of any Plan of
which the Borrower or TMC or any ERISA Affiliate is the plan sponsor.
7.7. ENVIRONMENTAL NOTICES. The Borrower shall notify the
Administrative Agent in writing, promptly upon any senior employee of the
Borrower or TMC 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 is reasonably likely to result in 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 a material violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law which is
reasonably likely to result in a Material Adverse Effect;
(e) any condition which might reasonably result in a violation by
the Borrower or any Subsidiary of the Borrower of any Environmental, Health or
Safety Requirement of Law, which violation would result in a Material Adverse
Effect;
(f) commencement or written notice of intent to commence 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;
(g) new or proposed changes to any existing Environmental, Health
or Safety Requirement of Law that is reasonably likely to result in a Material
Adverse Effect; or
(h) any proposed acquisition of stock, assets, real estate, or
leasing of Property, or any other action by the Borrower or any of its
Subsidiaries that is reasonably likely to subject the Borrower or any of its
Subsidiaries to environmental, health or safety Liabilities and Costs which is
reasonably likely to result in a Material Adverse Effect.
66
7.8. LABOR MATTERS. The Borrower shall notify the Administrative Agent
in writing, promptly upon the Borrower's learning thereof, of any labor dispute
to which the Borrower or TMC or any of their respective Subsidiaries may become
a party (including, without limitation, any strikes, lockouts or other disputes
relating to any Property of such Persons and other facilities) which is
reasonably likely to result in a Material Adverse Effect.
7.9. NOTICES OF ASSET SALES AND/OR ACQUISITIONS. The Borrower shall
deliver to the Administrative Agent written notice of each of the following on a
quarterly basis for the quarter then ended, together with the quarterly or
annual reports delivered under SECTIONS 7.2(a) or 7.2(b), as applicable: (a) a
sale, transfer or other disposition of assets, in a single transaction or series
of related transactions, for consideration in excess of $100,000,000, (b) an
acquisition of assets, in a single transaction or series of related
transactions, for consideration in excess of $100,000,000, and (c) the grant of
a Lien with respect to assets, in a single transaction or series of related
transactions, in connection with Indebtedness aggregating an amount in excess of
$100,000,000.
7.10. 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 5% of the Borrower's and its
Subsidiaries' share of consolidated minimum rent is attributable.
7.11. OTHER REPORTS. The Borrower shall deliver or cause to be
delivered to the Administrative Agent copies of all financial statements, proxy
statements, reports, notices and other materials, if any, sent or made available
generally by the Borrower or TMC to its respective Securities holders or filed
with the Commission, all press releases made available generally by the Borrower
or TMC or any of its Subsidiaries to the public concerning material developments
in the business of the Borrower or TMC or any such Subsidiary and all
notifications received by the Borrower or TMC or their Subsidiaries pursuant to
the Securities Exchange Act and the rules promulgated thereunder.
7.12. OTHER INFORMATION. Promptly upon receiving a request therefor
from the Administrative Agent, the Borrower shall prepare and deliver to the
Administrative Agent such other information with respect to the Borrower, TMC
and their respective Subsidiaries, on a Consolidated basis (including without
limitation, property operating statements, cash flow statements and balance
sheets), as from time to time may be reasonably requested by the Administrative
Agent.
7.13. CREDIT RATING. If at any time the Borrower or TMC shall receive a
credit rating by S&P or ▇▇▇▇▇'▇, the Borrower shall notify the Administrative
Agent promptly thereof, and thereafter shall notify the Administrative Agent
upon receiving notice of any actual or proposed downward change in such credit
rating.
7.14. TAX STATUS. In the event that the Borrower determines to take any
action inconsistent with its intention to not treat the Loans, Letters of Credit
and/or related transactions as a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4), it will promptly provide the
Administrative Agent with a duly completed copy of IRS Form 8886 or any
successor form. The Borrower acknowledges that one or more of the Lenders may
treat its Loans and Letter of Credit participations as part of a transaction
that is subject to Treasury Regulation Section 1.6011-4 or 301.6112-1, and the
Administrative Agent and such Lender or Lenders, as applicable, will file such
IRS forms and maintain such lists and other records as they may determine is
required by such Treasury Regulations and will notify the Administrative Agent
(if applicable) and the Borrower of any such filing.
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ARTICLE VIII.
AFFIRMATIVE COVENANTS
The Borrower and TMC each covenants and agrees that so long as any
Revolving Credit Commitments are outstanding and thereafter until payment in
full of all of the Obligations (other than indemnities pursuant to SECTION 13.3
not yet due) and the return of any outstanding Letters of Credit, (other than
any Letters of Credit collateralized pursuant to SECTION 2.4(a)) unless the
Requisite Lenders shall otherwise give prior written consent:
8.1. EXISTENCE, ETC. The Borrower shall, and shall cause each of TMC
and their respective Subsidiaries to, at all times maintain its corporate
existence or existence as a limited liability company, limited partnership 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
or the termination of existence of a Subsidiary is not likely to have a Material
Adverse Effect.
8.2. POWERS; CONDUCT OF BUSINESS. The Borrower shall remain qualified,
and shall cause TMC and each of their respective 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, except where the
failure to remain so qualified or in good standing is not likely to have a
Material Adverse Effect.
8.3. COMPLIANCE WITH LAWS, ETC. The Borrower shall, and shall cause TMC
and each of their respective Subsidiaries to, (a) comply in all material
respects with all Requirements of Law and all restrictive covenants or
Contractual Obligations affecting such Person or the business, Property, assets
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 Real Properties) and maintain such Permits in good standing, except where
noncompliance with either CLAUSE (a) or (b) above is not reasonably likely to
have a Material Adverse Effect.
8.4. PAYMENT OF TAXES AND CLAIMS. The Borrower shall pay, and cause TMC
and each of their respective Subsidiaries to pay, (i) all 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 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 a Lien permitted by SECTION
9.2 or a Customary Permitted Lien for property taxes and assessments not yet
due) upon any of the Borrower's or any of the Borrower's Subsidiaries, Property
or assets, 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.
8.5. INSURANCE. The Borrower shall maintain for itself, TMC 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 6.1-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 reasonably acceptable to the
Administrative Agent. Without limiting the foregoing, the Borrower shall
maintain for itself, TMC and its Subsidiaries, or cause each of its Subsidiaries
to maintain,
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terrorism insurance, comparable to the coverage that is described on SCHEDULE
6.1-T, to the extent such insurance is available at commercially reasonable
rates.
8.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSION. The
Borrower shall permit, and cause TMC and each of their respective Subsidiaries
to permit, upon no less than three (3) days prior notice, any authorized
representative(s) designated by either the Administrative Agent or any other
Lender, to visit and inspect any of the Real Properties, to examine, audit,
check and make copies of 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 Authorized Financial Officers and independent certified public
accountants, all with a representative of the Borrower present, and at such
reasonable times during normal business hours, as often as may be reasonably
requested, so long as such inspections do not unreasonably interfere with the
daily operations of the Borrower. Each such visitation and inspection shall be
at such visitor's expense. The Borrower shall keep and maintain, and cause TMC
and their respective Subsidiaries to keep and maintain, in all material respects
proper books of record and account in which entries in conformity with GAAP
shall be made of all dealings and transactions in relation to their respective
businesses and activities.
8.7. ERISA COMPLIANCE. The Borrower shall, and shall cause TMC and each
of their respective 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 having the force of law thereunder and the respective
requirements of the governing documents for such Plans.
8.8. MAINTENANCE OF PROPERTY. The Borrower shall, and shall cause each
of its Subsidiaries to, maintain in all material respects the condition of all
of their respective owned and leased Property in good, safe and insurable
condition and repair, subject to damage and destruction due to fires or other
casualties, 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 in good
condition and repair; PROVIDED, HOWEVER, that such Property may be altered,
renovated or otherwise improved in the ordinary course of business of the
Borrower or such applicable Subsidiary. Without limiting the foregoing or
limiting the ability to make improvements to any Real Property, the Borrower
shall maintain the condition of the Real Property in a manner such that each
Real Property can be used in the manner and substantially for the purposes such
Real Property is used on the Closing Date, including, without limitation,
maintaining all utilities, access rights, zoning and necessary Permits for such
Real Property.
8.9. COMPANY STATUS. TMC shall at all times (1) remain a publicly
traded company listed on the New York Stock Exchange or other national stock
exchange; (2) maintain its status as a REIT under the Internal Revenue Code; (3)
retain direct or indirect management and control of the Borrower; and (4)
cooperate in all cases where the Borrower is required hereunder to cause TMC to
take or refrain from taking any action required under this Agreement.
8.10. [INTENTIONALLY OMITTED]
8.11. DISTRIBUTIONS OF INCOME TO THE BORROWER. The Borrower shall cause
all of its Subsidiaries to promptly distribute to the Borrower (but not less
frequently than once each fiscal quarter of the Borrower, unless otherwise
approved by the Administrative Agent), whether in the form of dividends,
distributions or otherwise, all profits, proceeds or other income relating to or
arising from its
69
Subsidiaries' use, operation, financing, refinancing, sale or other disposition
of their respective Properties after (a) the payment by each Subsidiary of its
debt service and operating expenses for such quarter and (b) the establishment
of reasonable reserves for the payment of operating expenses not paid on at
least a quarterly basis and capital improvements to be made to such Subsidiary's
assets and properties approved by such Subsidiary in the ordinary course of
business consistent with its past practices.
8.12. VARIABLE RATE DEBT. Borrower shall cause fifty percent (50%) or
more of Total Adjusted Outstanding Indebtedness to bear interest (i) by
reference to a rate of interest that is fixed until the earlier of the final
maturity of such Indebtedness or the Revolving Credit Termination Date, or (ii)
by reference to a floating or variable rate of interest which is hedged or
otherwise capped pursuant to an interest rate swap, cap or other agreement
reasonably acceptable to the Administrative Agent.
8.13. PROPERTY MANAGEMENT. The Borrower and its Affiliates shall at all
times provide property management services to Real Properties to which at least
75% of the Capitalization Value is attributable.
ARTICLE IX.
NEGATIVE COVENANTS
Each of the Borrower and TMC covenants and agrees that it shall comply
with the following covenants so long as any Revolving Credit Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to SECTION 13.3 not yet due) and the return of
any outstanding Letters of Credit (other than any Letters of Credit
collateralized pursuant to SECTION 2.4(a)), unless the Requisite Lenders shall
otherwise give prior written consent:
9.1. SALES OF ASSETS. Except as otherwise provided in this Agreement,
neither Borrower nor TMC nor any of their respective Subsidiaries shall sell,
assign, transfer, lease, convey or otherwise dispose of any Property, whether
now owned or hereafter acquired, or any income or profits therefrom, or enter
into any agreement to do so which would result in a Material Adverse Effect or
would cause an Event of Default or Potential Event of Default. For purposes of
this SECTION 9.1, the sale of any direct or indirect beneficial interest in a
Subsidiary or Minority Holding shall be deemed not to result in a Material
Adverse Effect, so long as (i) no Event of Default shall have occurred and be
continuing, (ii) such transfer (or series of transfers) of partnership or
membership interests in any Subsidiary or Minority Holding shall not result in
Borrower owning less than 25% of the interest held by Borrower in such Person as
of the Closing Date, (iii) such transfer (or series of transfers) shall not
result in Borrower transferring more than 49% of its general partner or managing
member interest in any Subsidiary or Minority Holding, and (iv) Borrower shall
maintain control over all material decisions with respect to such Subsidiary or
Minority Holding. As used in this SECTION 9.1, Borrower shall be deemed to
control a Subsidiary or Minority Holding if Borrower has the ability to exercise
a buy-sell right in the event of a disagreement regarding the sale, financing of
or other material decision with respect to, the Property owned by such
Subsidiary or Minority Holding.
9.2. LIENS. Neither the Borrower nor TMC nor any of their respective
Subsidiaries shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to (i) any Property, or (ii) any Securities
held by TMC, the Borrower or any of their respective Subsidiaries (to the extent
the same constitutes a pledge or other encumbrance of equity interests in the
Borrower, the Consolidated Businesses, any Minority Holding or any Subsidiary),
or (iii) any direct or indirect interest in any Consolidated Businesses or
Subsidiaries, except:
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(a) Liens consisting of pledges of the Borrower's or TMC's direct or
indirect equity interest in any Consolidated Business, Minority Holding or
Subsidiary (other than equity interests in TMC or the Borrower), PROVIDED the
Indebtedness secured by such Liens shall not at any time (excluding Liens under
clause (b) of this SECTION 9.2) exceed an amount equal to ten percent (10%) of
Total Adjusted Outstanding Indebtedness in the aggregate;
(b) Liens consisting of pledges of the Borrower's or TMC's direct
or indirect equity interest in any Consolidated Business, Minority Holding or
Subsidiary (including equity interests in the Borrower) to secure Indebtedness
permitted by this Agreement; PROVIDED that (i) the Borrower gives the
Administrative Agent at least thirty (30) days prior notice of any such pledge
and (ii) the Obligations are secured by such pledge on a pari passu basis with
such other Indebtedness (so long as such Indebtedness is outstanding) pursuant
to a pledge agreement, an intercreditor agreement or other arrangements to be
entered into by the Administrative Agent and in form and substance satisfactory
to the Administrative Agent;
(c) Customary Permitted Liens; and
(d) Liens encumbering the CVS Portfolio;
PROVIDED, HOWEVER, that none of the foregoing shall limit or prohibit the
Borrower, TMC or their respective Subsidiaries from granting Liens on any of its
respective Real Property or personal property (other than Liens subject to the
requirements of clauses (a), (b) and (c) of this SECTION 9.2) for the purpose of
securing Secured Indebtedness otherwise permitted hereunder (before and after
giving effect to such Lien).
9.3. CONDUCT OF BUSINESS. Neither Borrower nor TMC nor any of their
respective Subsidiaries shall engage in any business, enterprise or activity
other than (a) the business of acquiring developing, re-developing and managing
predominantly retail Real Properties with entertainment and mixed-use components
and portfolios of like Real Properties, and (b) any business or activities which
are substantially similar, related or incidental thereto. In any event neither
the Borrower nor TMC shall engage in any activity that shall cause TMC to be
disqualified as a REIT under the Internal Revenue Code. Notwithstanding the
foregoing, neither Borrower nor TMC nor any of their respective Subsidiaries
shall engage in any business, enterprise or activity unrelated to its business
of acquiring, developing, re-developing, leasing and managing predominantly
retail Real Properties with entertainment and mixed-use components and
portfolios of like Real Properties and providing complementary ancillary
services to retail Real Properties, including the acquisition or disposition of
significant non-real estate assets or portfolio assets, except as permitted in
SECTION 9.11(a)(vii).
9.4. TRANSACTIONS WITH PARTNERS AND AFFILIATES. Neither Borrower nor
any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any Property or the rendering of any service) with any Affiliate
of the Borrower which is not its Subsidiary, on terms that are determined by the
Board of Directors (or its equivalent) of TMC (except in the case of
non-material transactions, in which case the determination shall be made by
officer's of such entities engaging in such transaction) to be less favorable to
the Borrower or any of its Subsidiaries, as applicable, than those that might be
obtained in an arm's-length transaction at the time from Persons who are not
such an Affiliate. Nothing contained in this SECTION 9.4 shall prohibit (a)
increases in compensation and benefits for officers and employees of the
Borrower or any of its Subsidiaries which are customary in the industry or
consistent with the past business practice of the Borrower or such Subsidiary;
PROVIDED, that no Event of Default or Potential Event of Default has occurred
and is continuing; (b) payment of customary partners' indemnities; or (c)
performance of any obligations arising under the Loan Documents.
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9.5. RESTRICTION ON FUNDAMENTAL CHANGES. Neither Borrower, TMC nor any
of their respective Subsidiaries shall 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 such Person's business or
Property, whether now or hereafter acquired (other than a transfer by Borrower
or a Subsidiary of Borrower to another Subsidiary of Borrower) except in
connection with issuance, transfer, conversion or repurchase of limited
partnership interests in the Borrower or in connection with a sale of assets
otherwise permitted under SECTION 9.1. Notwithstanding the foregoing, the
Borrower or any Subsidiary of Borrower shall be permitted to merge with another
Person so long as, in the case of a merger involving the Borrower, the Borrower
is the surviving Person following such merger or in the case of a merger
involving a Subsidiary, the Subsidiary is the surviving Person following such
merger, and in any event Borrower shall be in compliance with all other
provisions of the Loan Documents after giving effect thereto (including without
limitation SECTION 9.11).
9.6. MARGIN REGULATIONS; SECURITIES LAWS. Neither 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 to the
extent permitted by SECTION 2.2.
9.7. ERISA. The Borrower and TMC shall not and shall not permit any of
their respective 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;
(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
the Borrower, TMC or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer Plan
which the Borrower, TMC or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining thereto;
(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 increase 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.
9.8. ORGANIZATIONAL DOCUMENTS. Neither Borrower, TMC nor any of their
respective Subsidiaries 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, TMC or a Subsidiary; PROVIDED, that the Borrower shall have provided
the Administrative Agent with, in the case of the Borrower or TMC, prior written
notice of any such name change, (b) changes to the TMLP Partnership Agreement
relating to the acquisition of Real Property or
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interests in an owner of Real Property with respect to which the consideration
paid to the seller thereof includes limited partnership interests in the
Borrower, or (c) changes that would not affect such Organizational Documents in
any material manner which is prohibited under or would violate this Agreement or
any other Loan Document.
9.9. FISCAL YEAR. Neither Borrower, TMC nor any of their Consolidated
Subsidiaries shall change their respective Fiscal Year for accounting or tax
purposes from a period consisting of the 12-month period ending on December 31
of each calendar year.
9.10. INDEBTEDNESS. Neither Borrower, TMC nor any of their respective
Subsidiaries shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except Indebtedness which, when aggregated with Indebtedness of TMC, the
Borrower or any of their respective Subsidiaries and Minority Holdings
Indebtedness allocable in accordance with GAAP to the Borrower or any Subsidiary
of the Borrower as of the time of determination, would not cause the Leverage
Ratio to exceed sixty-two and one half percent (62.5%) as of the date of
incurrence of such Indebtedness, or from and after the receipt by the
Administrative Agent of an Officer's Certificate certifying that all other
agreements relating to any Indebtedness of Borrower, TMC and their respective
Subsidiaries and the Organizational Documents of Borrower and TMC would permit
the incurrence of such Indebtedness through the Revolving Credit Termination
Date so long as the Leverage Ratio does not exceed sixty-five percent (65%),
sixty-five percent (65%). The Administrative Agent shall give written notice to
the Lenders upon the receipt of such Officer's Certificate.
9.11. INVESTMENTS.
(a) PERMITTED INVESTMENTS. Neither Borrower, TMC nor any of their
respective Subsidiaries shall directly or indirectly make or own any Investment
except:
(i) Investments in Cash and Cash Equivalents;
(ii) Investments by TMC in the Borrower and by Borrower in
the Borrower's Subsidiaries and the Borrower's Affiliates;
(iii) Investments received in connection with the bankruptcy
or reorganization of suppliers and lessees and in settlement of
delinquent obligations of, and other disputes with, lessees and
suppliers arising in the ordinary course of business;
(iv) Investments by Borrower and its Subsidiaries (A) in any
individual Real Property which do not exceed seventeen and one-half
percent (17.5%) of the Capitalization Value after giving effect to such
Investments of the Borrower or (B) in a single Person owning a
Property, or a portfolio of Properties, which do not exceed thirty
percent (30%) of the Capitalization Value after giving effect to such
Investments of the Borrower, it being understood that no Investment in
any individual Person will be permitted if the Borrower's allocable
share of the Investment of such Person in any individual Real Property
would exceed the limitation described in clause (A) hereinabove;
(v) Investments held as of the Closing Date;
(vi) any Investment permitted under CLAUSE (b) of this
SECTION 9.11;
(vii) Investments (whether owned as of the Closing Date or
thereafter) in the form of acquisitions, advances, loans or other
contribution of cash or Property either directly or in any
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Person primarily engaged in any business unrelated to Borrower's
business of acquiring, developing, re-developing, leasing and managing
predominantly retail Real Properties with entertainment and mixed-use
components and portfolios of like Real Properties and providing
complementary ancillary services to retail Real Properties, including
the acquisition of significant non-real estate assets or portfolio
assets, which individually or in the aggregate do not exceed two and
one-half percent (2.5%) of Capitalization Value (but not including any
increase in the value of such Investments or a decline in the
Capitalization Value following such Investments); and
(viii) Investments in bonds, notes, debentures, and other debt
instruments which are not convertible into equity Securities and have
ratings of AAA by S&P or Aaa by ▇▇▇▇▇'▇.
(b) UNLEASED CONSTRUCTION ASSETS. At no time shall the aggregate amount
expended on unleased Construction Assets for improvements and land acquisition
costs exceed twenty-five percent (25%) of the Capitalization Value; PROVIDED,
that for purposes of this SECTION 9.11(b) only, the term "Construction Asset"
shall mean a Construction Asset (as otherwise defined in SECTION 1.1 of this
Agreement) which is less than eighty percent (80%) leased and occupied by
tenants in compliance with their respective leases, and PROVIDED FURTHER that
for purposes of this SECTION 9.11(b), any portion of a Construction Asset which
is under a binding contract of sale to an anchor "tenant", shall be deemed to be
leased.
9.12. OTHER FINANCIAL COVENANTS.
(a) MINIMUM COMBINED EQUITY VALUE. The Combined Equity Value shall at
no time be less than $1,350,000,000 plus 75% of the net cash proceeds and other
assets (after payment of customary costs, fees, expenses, commissions and
discounts of issuance) received by the Consolidated Businesses as a result of
the sale of equity interests in any of the Consolidated Businesses (other than
such net proceeds of any equity which is issued and used to redeem outstanding
equity).
(b) LEVERAGE RATIO. For the immediately preceding consecutive four
fiscal quarters, the Leverage Ratio shall not be greater than 65%.
(c) SECURED LEVERAGE RATIO. For the immediately preceding consecutive
four fiscal quarters, the Secured Leverage Ratio shall not be greater than 60%.
(d) CONSOLIDATED INTEREST COVERAGE RATIO. For the immediately preceding
consecutive four fiscal quarters, the ratio of (i) Combined EBITDA to (ii)
Combined Interest Expense, shall not be less than 2.0 to 1.0.
(e) MINIMUM DEBT YIELD. For the immediately preceding consecutive four
fiscal quarters, the ratio (the "MINIMUM DEBT YIELD") (expressed as a
percentage) of (i) Combined EBITDA to (ii) Total Adjusted Outstanding
Indebtedness shall not be less than 13%; PROVIDED, that for purposes of
calculation, (x) this ratio will exclude Indebtedness from construction
financing until the sooner of (A) the first full 18 calendar months commencing
on the initial loan draw of such construction financing, or (B) the point at
which the project becomes an operating property and has one full calendar
quarter of EBITDA) and (y) with respect to acquisitions of operating properties,
any operating property acquired during the immediately preceding four (4) fiscal
quarters, this ratio shall be calculated on the basis of (I) actual financial
results for each full fiscal quarter following the acquisition during such
period plus (II) estimated pro-forma performance of the property approved by the
Administrative Agent for such additional fiscal quarters as is necessary so that
the number of fiscal quarters covered by clauses (I) and (II) equals four (4).
74
(f) DISTRIBUTIONS. Borrower will not pay any dividends or distributions
except that:
(i) Borrower may pay special capital gain distributions, if
any;
(ii) So long as TMC qualifies, or has taken all actions
necessary to qualify as a REIT, during any fiscal year of TMC, the
Borrower may pay cash dividends to TMC and other holders of OP Units
with respect to any one (1) year period ending on the last day of a
fiscal quarter to the extent necessary for TMC to distribute, and TMC
may so distribute, cash dividends to its shareholders in an aggregate
amount not to exceed the greater of (A) Permitted REIT Distributions or
(B) 75% of FFO.
(iii) Notwithstanding the foregoing, in the event that (A) an
Event of Default shall have occurred under SECTION 10.1(a), (f) (as to
Borrower or TMC) or (g) (as to Borrower or TMC) or would exist
immediately after giving effect thereto, (B) an Event of Default shall
have occurred with respect to this SECTION 9.12 or would exist
immediately after giving effect thereto, or (C) any other Event of
Default shall have occurred and the Obligations have been accelerated,
Borrower will not pay any dividends or distributions except (X) so long
as TMC qualifies, or has taken all actions necessary to qualify as a
REIT, during any fiscal year of TMC, the Borrower may pay cash
dividends to TMC and other holders of the OP Units with respect to any
period ending on a date set forth above to the extent necessary for TMC
to distribute, and TMC may so distribute, cash dividends to its
shareholders in an aggregate amount not to exceed the Permitted REIT
Distributions, and (Y) Borrower and TMC may pay cash dividends
sufficient only to pay the minimum dividends payable to the holders of
the Series A Preferred Interests.
(g) MINIMUM FIXED CHARGE COVERAGE RATIO. For the immediately preceding
calendar quarter, the ratio of (i) Combined EBITDA to (ii) Fixed Charges shall
not be less than 1.7 to 1.0.
9.13. STOCK REPURCHASE. None of Borrower, TMC or any of their
Subsidiaries shall effect an immediate, incidental or ultimate, repurchase of
shares of TMC or OP Units if the Leverage Ratio exceeds 55% unless such
repurchase relates to Series A Preferred Interests or any redemption of limited
partnership interests in Borrower in exchange for shares of common stock of TMC.
9.14. NEGATIVE PLEDGE CLAUSES. From and after the date hereof, except
as set forth herein, neither the Borrower nor TMC 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, revenues or assets,
whether now owned or hereafter acquired, (other than with respect to (i)
prohibitions on subordinate liens set forth (x) in a mortgage on a particular
property, or (y) in any document or instrument relating to a particular
Permitted Lien to the extent such prohibition relates only to the assets
securing such Permitted Lien, (ii) customary restrictions on the assignment of
or granting a lien on a particular lease, sublease, license or contract set
forth in such lease, sublease, license or contract entered into in the ordinary
course of business, or (iii) restrictions on the pledge of interests in joint
ventures contained in the applicable joint venture agreement), or restricting
the ability of the Borrower or TMC to amend or modify this Agreement or any of
the other Loan Documents.
9.15. RESTRICTION ON PREPAYMENT OF INDEBTEDNESS. After the occurrence
of any Event of Default, neither TMC, Borrower nor any of their respective
Subsidiaries shall, without the prior written consent of the Administrative
Agent, prepay, redeem or purchase the principal amount, in whole or in part, of
any Indebtedness other than the Obligations; PROVIDED, HOWEVER, that this
SECTION 9.15 shall not prohibit the prepayment of Indebtedness which is financed
solely from the proceeds of a new loan which would otherwise be permitted by the
terms of SECTION 9.10.
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9.16. OTHER LOANS. The Borrower shall not make any borrowings under its
Revolving Credit Agreement dated April 16, 2003, as amended, with Royal Bank of
Canada, as agent, unless the Revolving Credit Availability under this Agreement
has been reduced to zero.
ARTICLE X.
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
10.1. 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
when due (i) any principal payment of the Obligations or reimbursement
obligations with respect to any Letter of Credit, (ii) any interest payment on
the Obligations or (iii) any fees payable hereunder, and in the case of clauses
(ii) and (iii) only, such failure shall continue for a period of five days.
(b) BREACH OF CERTAIN COVENANTS. The Borrower shall fail duly and
punctually to perform or observe or cause the performance or observance of any
agreement, covenant or obligation binding on such Person under SECTIONS 7.3,
8.1, 8.2, 8.3, 8.6, 8.9, 8.13, 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, 9.9, 9.10, 9.13,
9.14, 9.15, or 9.16.
(c) BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made by the Borrower to the Administrative Agent or any other Lender
herein or by the Borrower, TMC or any of their respective Subsidiaries in any of
the other Loan Documents, in any Letter of Credit Request, 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 or repeated.
(d) OTHER DEFAULTS. The Borrower shall default in the performance of or
compliance with any term, covenant or agreement contained in this Agreement
(other than as identified in paragraphs (a), (b) or (c) of this SECTION 10.1),
or any default or event of default (other than as identified in paragraphs (a),
(b) or (c) of this SECTION 10.1) 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;
PROVIDED, HOWEVER, that if such default is susceptible of cure but cannot
reasonably be cured within such thirty (30) day period and Borrower shall
promptly commence to cure such default within such thirty (30) day period and
thereafter diligently and expeditiously proceed to cure the same, such thirty
(30) day period shall be extended for such time as is reasonably necessary for
Borrower in the exercise of due diligence to cure such default, such additional
period not to exceed thirty (30) days; PROVIDED further that so long as Borrower
has complied with the foregoing cure provisions, an Event of Default shall not
be deemed to have occurred with respect to SECTION 9.12 if Borrower shall cure
such default within an additional period not to exceed thirty (30) days (such
that for such provision only Borrower shall have a maximum aggregate potential
cure period of ninety (90) days).
(e) DEFAULTS AND ACCELERATION OF OTHER INDEBTEDNESS. (i) The Borrower
or TMC or their Subsidiaries shall fail to pay any principal or interest due
when and as the same shall become due and payable, or shall default in any other
monetary obligation or cause any other monetary default in respect of (x) any
recourse Indebtedness (other than the Obligations) of the Borrower or TMC or
their Subsidiaries aggregating $20,000,000 or more (subject to any applicable
grace period for such Indebtedness), or (y) any non-recourse Indebtedness of the
Borrower or TMC or their Subsidiaries aggregating $200,000,000 or more (subject
to any applicable grace period for such Indebtedness); or (ii) any non-monetary
breach, default or event of default shall occur, or any other condition shall
exist, under any instrument, agreement or indenture pertaining to (1) any
recourse Indebtedness (other than the Obligations) of the Borrower or TMC or
their Subsidiaries aggregating $20,000,000 or more, or (2) any
76
non-recourse Indebtedness of the Borrower or TMC or their Subsidiaries
aggregating $200,000,000 or more, and in the case of either (1) or (2), such
Indebtedness shall be declared to be due and payable (by acceleration or
otherwise) or required to be prepaid, redeemed or otherwise repurchased by the
Borrower or TMC or any of their Subsidiaries (other than by a regularly
scheduled required prepayment or a voluntary prepayment made at Borrower's
option) prior to the stated maturity thereof.
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case shall be commenced against the
Borrower or TMC or any of their Subsidiaries or Affiliates to which
individually or in the aggregate as to such Subsidiaries and Affiliates
more than $100,000,000 of the Capitalization Value is attributable, and
the petition shall not be dismissed, stayed 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 Borrower or TMC or any of their respective
Subsidiaries or Affiliates 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 board of
directors of TMC or the partners of the Borrower or the board of
directors, partners or similar manager of any of TMC's or the
Borrower's Subsidiaries or Affiliates to which individually or in the
aggregate as to such Subsidiaries and Affiliates more than $100,000,000
of the Capitalization Value is attributable (or any committee thereof)
adopts any resolution or otherwise authorizes any action to approve any
of the foregoing.
(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
Borrower or TMC or any of their respective Subsidiaries or Affiliates
to which individually or in the aggregate as to such Subsidiaries and
Affiliates more than $100,000,000 of the Capitalization Value is
attributable, or over all or a substantial part of the Property of any
of TMC, the Borrower or any of such Subsidiaries or Affiliates shall be
entered; or an interim receiver, trustee or other custodian of any of
TMC, the Borrower or any of such Subsidiaries or Affiliates or of all
or a substantial part of the Property of any of TMC, the Borrower or
any of such Subsidiaries or Affiliates shall be appointed or a warrant
of attachment, execution or similar process against any substantial
part of the Property of any of TMC, the Borrower or any of such
Subsidiaries or Affiliates 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 TMC, the Borrower or partners of the Borrower or the board of
directors, partners or similar manager of TMC or any of the Borrowers'
or TMC's Subsidiaries or Affiliates to which individually or in the
aggregate as to such Subsidiaries and Affiliates more than $100,000,000
of the Capitalization Value is attributable (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. Any of TMC, the
Borrower, or any of their respective Subsidiaries or Affiliates to which
individually or in the aggregate as to such Subsidiaries and Affiliates more
than $100,000,000 of the Capitalization Value is attributable, 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 any of TMC, the Borrower or any of such
Subsidiaries or Affiliates to which individually or in the aggregate as to such
Subsidiaries and Affiliates more than $100,000,000 of the Capitalization
77
Value is attributable 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 TMC or any of their respective Subsidiaries or any of their
respective assets involving in any event an amount individually or in
the aggregate in excess of $20,000,000 (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 (other than a
Lien permitted by SECTION 9.2 of this Agreement or a Lien relating to
taxes being contested pursuant to SECTION 8.4 of this Agreement) is
filed against the Borrower or TMC which is not discharged of record,
bonded over or otherwise secured to the satisfaction of the
Administrative Agent within thirty (30) days after the later of the
filing thereof or the date upon which the Borrower 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 and/or the amount of the Environmental Lien Claims described
in clause (iii) below, equals or exceeds $20,000,000.
(iii) An Environmental Lien is filed against any Real Property
with respect to Claims in an amount which, either separately or when
aggregated with the amount of any judgments described in clause (i)
above and/or the amount of the tax Liens described in clause (ii)
above, equals or exceeds $15,000,000.
(i) DISSOLUTION. Any order, judgment or decree shall be entered against
the Borrower or TMC decreeing its involuntary dissolution or split up; or the
Borrower or TMC 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 or TMC seeks to repudiate
its obligations thereunder.
(k) ERISA TERMINATION EVENT. Any ERISA Termination Event occurs which
the Administrative Agent reasonably believes could subject either the Borrower
or TMC or any ERISA Affiliate to liability in excess of $1,000,000.
(l) WAIVER APPLICATION. The plan administrator of any Benefit Plan
applies under Section 412(d) of the Internal Revenue Code for a waiver of the
minimum funding standards of Section 412(a) of the Internal Revenue Code and the
Administrative Agent reasonably believes that the substantial business hardship
upon which the application for the waiver is based could subject either the
Borrower or TMC or any ERISA Affiliate to liability in excess of $1,000,000.
(m) CERTAIN DEFAULTS PERTAINING TO TMC. TMC shall fail to (i) maintain
its status as a REIT for federal income tax purposes, (ii) continue as the sole
general partner of the Borrower and control the management and direction of the
Borrower, (iii) comply in all material respects with all Requirements of Law
applicable to it and its businesses and Properties, in each case where the
failure to so comply individually or in the aggregate will have or is reasonably
likely to have a Material Adverse Effect, (iv) remain listed on the New York
Stock Exchange or other national stock exchange, or (v) file all tax returns and
reports required to be filed by it with any Governmental Authority as and when
required to be filed or
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to pay any taxes, assessments, fees or other governmental charges upon it or its
Property, assets, receipts, sales, use, payroll, employment, licenses, income,
or franchises which are shown in such returns, reports or similar statements to
be due and payable as and when due and payable, except for taxes, assessments,
fees and other governmental charges (A) that are being contested by TMC in good
faith by an appropriate proceeding diligently pursued, (B) for which adequate
reserves have been made on its books and records, and (C) the amounts the
non-payment of which would not, individually or in the aggregate, result in a
Material Adverse Effect.
(n) MERGER OR LIQUIDATION OF THE BORROWER. Either the Borrower or TMC
shall merge or liquidate with or into any other Person other than an Affiliate
and, as a result thereof and after giving effect thereto, (i) the Borrower or
TMC, as the case may be, is not the surviving Person or (ii) such merger or
liquidation would effect an acquisition of or Investment in any Person not
otherwise permitted under the terms of this Agreement.
(o) TERM LOAN AGREEMENT. The occurrence of an "Event of Default" as
defined in the Term Loan Agreement.
(p) CHANGE IN CONTROL. The occurrence of a Change in Control.
(q) PUT OPTION. Any default or event of default shall occur with
respect to the Series A Preferred Interests if there shall exist outstanding
Series A Preferred Interests with a value equal to or exceeding $20 million in
the aggregate.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with SECTION 13.7.
10.2. RIGHTS AND REMEDIES.
(a) ACCELERATION AND TERMINATION. Upon the occurrence of any Event of
Default described in SECTIONS 10.1(f) or 10.1(g), the Revolving Credit
Commitments and the obligation to issue Letters of Credit shall automatically
and immediately terminate and the unpaid principal amount of, and any and all
accrued interest on, the Obligations shall automatically become 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; and upon the occurrence
and during the continuance of any other Event of Default, the Administrative
Agent may, in the Administrative Agent's reasonable discretion, and shall, at
the request of the Requisite Lenders, by written notice to the Borrower, (i)
declare that the Revolving Credit Commitments are terminated, whereupon the
Revolving Credit Commitments and the obligation of each Lender to make any Loan
or issue any Letter of Credit hereunder shall immediately terminate, and/or (ii)
require the Borrower to provide cash collateral in an amount equal to all Letter
of Credit Obligations and/or (iii) 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 any other 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. The Administrative Agent may also exercise its rights
and remedies pursuant to SECTION 3.2(b)(iii). In case any one or more of the
Events of Default shall have occurred and be continuing, and whether or not the
Administrative Agent or the Requisite Lenders shall have accelerated the
maturity of the Loans pursuant to this SECTION 10.2(a), the Administrative Agent
on behalf of the Lenders may, and upon direction from the Requisite Lenders
shall, proceed to protect and enforce their rights and remedies under this
Agreement, the Notes or any of the other Loan Documents by suit in
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equity, action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations are
evidenced, including to the full extent permitted by applicable law the
obtaining of the EX PARTE appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right.
(b) RESCISSION. If at any time after termination of the Revolving
Credit 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 or with respect to Letters of Credit 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 13.7, then upon the written consent of the Requisite Lenders and written
notice to the Borrower, the termination of the Revolving Credit Commitments
and/or the acceleration and the consequences thereof 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 TMC or any of their respective 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 XI.
THE AGENT
11.1. APPOINTMENT. (a) Each Lender hereby designates and appoints Fleet
as the Administrative Agent of such Lender under this Agreement, and each Lender
hereby irrevocably authorizes Administrative Agent 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 hereby
agrees that it shall administer this Agreement and the other Loan Documents and
service the Loans with the same degree of care as Administrative Agent would use
in servicing a loan of similar size and type for its own account. The
Administrative Agent agrees to act as such on the express conditions contained
in this ARTICLE XI. The Administrative Agent may exercise its powers and execute
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its rights
and duties under this Agreement and the other Loan Documents. The Administrative
Agent may utilize the services of such Persons as the Administrative Agent may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower. Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent, or employee thereof, shall be liable to any
of the Lenders for any waiver, consent or approval given or any action taken, or
omitted to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be responsible
for the consequences of any oversight or error of judgment whatsoever, except
that the Administrative Agent or such other Person, as the case may be, may be
liable for losses due to its willful misconduct or gross negligence. For the
purposes of carrying out the provisions and exercising the rights,
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remedies, powers and privileges granted by or referred to in this Agreement and
the Loan Documents, each of the Lenders, subject to the other terms of this
Agreement and the Loan Documents, hereby irrevocably constitutes and appoints
the Administrative Agent to enforce the Loan Documents and to exercise such
powers, rights and remedies under this Agreement and the Loan Documents as are
delegated to Administrative Agent by the terms hereof or thereof, together with
all such powers, rights and remedies as are reasonably incidental thereto, on
behalf of and for the benefit of the Lenders.
(b) The provisions of this ARTICLE XI are solely for the benefit of the
Administrative Agent and the other Lenders, and neither Borrower nor TMC nor any
of their respective Subsidiaries shall have any rights to rely on or enforce any
of the provisions hereof (provided that the Borrower may rely on the authority
granted to the Administrative Agent by each Lender pursuant to SECTION 11.1 and
shall be entitled to enforce SECTIONS 11.7 and 11.8 of this Agreement). In
performing its respective functions and duties under this Agreement, the
Administrative Agent shall act solely as agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency, trustee or fiduciary with or for the Borrower or TMC or any of their
respective Subsidiaries. The Administrative Agent may perform any of its duties
hereunder, or under the Loan Documents, by or through agents or employees.
11.2. NATURE OF DUTIES. The Administrative Agent 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 shall be
mechanical and administrative in nature. The Administrative Agent shall not have
by reason of this Agreement a fiduciary, trustee or agency relationship in
respect of any Holder. 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 any obligations in respect of this Agreement or any of the
Loan Documents except as expressly set forth herein or therein. The
Administrative Agent hereby agrees that its duties shall include (i) providing
copies of documents received by the Administrative Agent from the Borrower
pursuant to this Agreement (a) which reference or discuss a Potential Event of
Default or an Event of Default and (b) any other documents which are reasonably
requested by any Lender and (ii) promptly notifying each Lender upon its
obtaining actual knowledge of the occurrence of any Event of Default hereunder.
11.3. RIGHT TO REQUEST INSTRUCTIONS. The Administrative Agent 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 Administrative
Agent is permitted or required to take or to grant, and, except where an action
or approval is expressly required under this ARTICLE XI or SECTION 10.2 hereof,
such Administrative 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 (or,
pursuant to SECTION 13.7(d), be deemed to have received) such instructions from
those Lenders from whom Administrative 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 Administrative Agent shall
take any action, or refrain from taking any action, which is permitted by the
terms of the Loan Documents upon receipt (or, pursuant to SECTION 13.7(d),
deemed receipt) of instructions from those Lenders from whom the Administrative
Agent is required to obtain such instructions for the pertinent matter in
accordance with the Loan Documents; PROVIDED, that no Holder shall have any
right of action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting under the Loan Documents
in accordance with the instructions (or deemed instructions) of the Requisite
Lenders or, where required by the express terms of this Agreement, a greater
proportion of the Lenders.
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11.4. RELIANCE. The Administrative Agent shall be entitled to rely upon
any written notices, statements, certificates, orders or other documents or any
telephone message 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.
11.5. INDEMNIFICATION. To the extent that the Administrative Agent is
not reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Administrative Agent in its capacity as Administrative Agent and
not in its capacity as Lender hereunder, 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
Administrative Agent under and in accordance with the Loan Documents, in
proportion to each Lender's Pro Rata Share; PROVIDED, HOWEVER, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
resulting from Administrative Agent's gross negligence or willful misconduct.
The Administrative Agent agrees to refund to the Lenders any of the foregoing
amounts paid to it by the Lenders which amounts are subsequently recovered by
the Administrative Agent from the Borrower or any other Person on behalf of the
Borrower. The obligations of the Lenders under this SECTION 11.5 shall survive
the payment in full of the Loans and all other Obligations and the termination
of this Agreement.
11.6. ADMINISTRATIVE AGENT INDIVIDUALLY. With respect to its Pro Rata
Share of the Revolving Credit Commitments hereunder, if any, and the Loans made
by it or Letters of Credit issued by it, if any, the Administrative Agent shall
have and may exercise the same rights and powers hereunder and is 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 Fleet in its
individual capacity as a Lender or as one of the Requisite Lenders. Fleet and
each of its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with the Borrower, TMC or
any of their respective Subsidiaries as if Fleet were not acting as the
Administrative Agent pursuant hereto.
11.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) RESIGNATION AND REMOVAL. The Administrative 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.
Any Administrative Agent may be removed at the direction of the Requisite
Lenders, in the event of the gross negligence or willful misconduct of
Administrative Agent. Such resignation or removal shall take effect upon the
acceptance by a successor Administrative Agent of appointment pursuant to this
SECTION 11.7.
(b) APPOINTMENT BY REQUISITE LENDERS. Upon any such resignation or
removal becoming effective, the Lenders shall have the right to appoint a
successor Administrative Agent selected from among the Lenders, which successor
Administrative Agent, so long as no Event of Default has occurred and is
continuing, shall be subject to approval by the Borrower (which approval shall
not be unreasonably withheld).
(c) APPOINTMENT BY RETIRING ADMINISTRATIVE AGENT. If a successor
Administrative Agent shall not have been appointed within the thirty (30)
Business Day or shorter period provided in paragraph
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(a) of this SECTION 11.7, the retiring Administrative Agent shall then appoint a
successor Administrative Agent selected from among the Lenders who shall serve
as Administrative Agent until such time, if any, as the Lenders appoint, subject
to the Borrower's approval, a successor Administrative Agent as provided in
paragraph (b) of this SECTION 11.7.
(d) RIGHTS OF THE SUCCESSOR AND RETIRING ADMINISTRATIVE AGENTS. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations as Administrative
Agent under this Agreement. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this ARTICLE XI
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Administrative Agent under this Agreement.
11.8. RELATIONS AMONG THE LENDERS. No Lender may (i) accelerate its
portion of the Obligations, (ii) enforce its portion of the Obligations prior to
the maturity thereof, or (iii) terminate its Revolving Credit Commitment,
except, in each case, in accordance with SECTION 10.2(a).
11.9. NOTICES. Promptly upon receipt, Administrative Agent shall
forward to each Lender (i) a copy of all notices of default or other formal
notices sent or received by Administrative Agent in accordance with SECTION 13.8
hereof, (ii) copies of all financial statements, certificates, notices, reports
and other information sent by Borrower pursuant to ARTICLE VII, and (iii) any
other document or notice received by Administrative Agent from Borrower or TMC
pursuant to this Agreement and requested in writing by any Lender.
11.10. NO REPRESENTATIONS. The Administrative Agent shall not be
responsible for the execution, validity or enforceability of this Agreement, the
Notes, any of the other Loan Documents or any instrument at any time
constituting, or intended to constitute, collateral security for the Notes, or
for the value of any such collateral security or for the validity,
enforceability or collectability of any such amounts owing with respect to the
Notes, or for any recitals or statements, warranties or representations made
herein or in any of the other Loan Documents or in any certificate or instrument
hereafter furnished to it by or on behalf of the Borrower or TMC or any of their
respective Subsidiaries, or be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or
agreements herein or in any other of the Loan Documents. The Administrative
Agent shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Borrower or TMC or any holder of any of the Notes
shall have been duly authorized or is true, accurate and complete. The
Administrative Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Lenders,
with respect to the creditworthiness or financial condition of the Borrower, TMC
or any of their respective Subsidiaries, or the value of any assets of such
Persons. Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender, based upon such information and
documents as it deems appropriate at the time, continue to make its own credit
analysis and decisions in taking or not taking action under this Agreement and
the other Loan Documents.
11.11. CO-AGENTS. The Co-Documentation Agents, the Co-Syndication
Agents and the Co-Arrangers shall not have any additional rights or obligations
under the Loan Documents, except for those rights, if any, as a Lender.
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ARTICLE XII.
YIELD PROTECTION
12.1. TAXES.
(a) PAYMENT OF TAXES. Any and all payments by the Borrower hereunder or
under any Note or other document evidencing any Obligations shall be made, in
accordance with SECTION 3.2, 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 imposed on the value of the Property, charges or levies 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 Revolving Credit
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 Governmental 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"). 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 12.1) 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. Notwithstanding the foregoing, in
the event that any Lender is or becomes so subject to such Taxes, at the
Borrower's sole election, the Borrower may identify an Eligible Assignee not so
subject to such Taxes to whom the Lender which is so subject shall assign its
interest in the Loans at par pursuant to the terms of an Assignment and
Acceptance substantially in the form attached as EXHIBIT A.
(b) INDEMNIFICATION. The Borrower will indemnify each Lender against,
and reimburse each on demand for, the full amount of all Taxes (including,
without limitation, any Taxes imposed by any Governmental Authority on amounts
payable under this SECTION 12.1 resulting therefrom) incurred or paid by such
Lender or any of their respective Affiliates 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. A certificate as to any additional amount payable to any Person under
this SECTION 12.1 submitted by it to the Borrower shall, absent manifest error,
be final, conclusive and binding upon all parties hereto. Each Lender agrees to
the extent it is able, within a reasonable time after receiving a written
request from the Borrower, to provide the Borrower and the Administrative Agent
with such certificates 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
12.1 in respect of any payments under this Agreement or under the Notes.
(c) RECEIPTS. Within thirty (30) days after the date of any payment of
Taxes by the Borrower, it will furnish to the Administrative Agent, at its
address referred to in SECTION 13.8, 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 the Borrower and the Administrative Agent on the Closing Date
or the date on which such Lender becomes a Lender pursuant
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to SECTION 13.1 hereof, to the extent it is legally able to do so, 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 W-8BEN (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 W-8ECI (or any successor or substitute form or forms)).
(ii) Upon written request of Administrative Agent or as
otherwise required hereunder, each Lender further agrees to deliver to
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 12.1(d). Each certificate required to be delivered pursuant to
this SECTION 12.1(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 12.1(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 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
otherwise 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 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. Notwithstanding anything to the contrary contained in this SECTION 12.1,
(x) the Borrower shall be entitled, to the extent it is required to do so by
law, to deduct or withhold income or similar taxes imposed by the United States
(or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any Lender
which is not a United States person for United States federal income tax
purposes to the extent that such Lender has not provided to the Borrower IRS
forms that establish a complete exemption from such deduction or withholding and
(y) the Borrowers shall not be obligated pursuant to SECTIONS 12.1(a) or 12.1(b)
hereof to gross-up payments to be made to a Lender or otherwise indemnify a
Lender in respect of income or similar taxes imposed by the United States to the
extent that (1) the obligation to withhold such amounts existed on the date that
such Lender became a party to this Agreement or (2) the obligation to pay such
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additional amounts would not have arisen but for the failure by such Lender to
comply with this SECTION 12.1(d). In the event that any Lender notifies the
Borrower of withholding obligations pursuant to clause (C) of this SECTION
12.1(d), at the Borrower's sole election, the Borrower may identify an Eligible
Assignee with the consent of the Administrative Agent, which is not subject to
such withholding obligations to whom the notifying Lender shall assign its
interest in the Loans at par pursuant to the terms of an Assignment and
Acceptance substantially in the form attached as EXHIBIT A and otherwise in
accordance with the terms and conditions of SECTION 13.1.
12.2. 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 or would affect 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, the issuance of
Letters of Credit, any Lender's participation in or obligation to participate in
the Loans, Letters of Credit or other advances made hereunder or the existence
of any Lender's obligation to make Loans or to issue Letters of Credit, then, in
any such case, within thirty (30) days after written demand by such Lender (with
a copy of such demand to the Administrative Agent), the Borrower shall 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 therefore. 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. Notwithstanding the foregoing, in the event
of any such demand, at the Borrower's sole election, the Borrower may identify
an Eligible Assignee not making such a demand to whom the demanding Lender shall
assign its interest in the Loans at par pursuant to the terms of an Assignment
and Acceptance substantially in the form attached as EXHIBIT A.
12.3. CHANGE IN 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) does or will subject a Lender (or its Applicable Lending Office or
Eurocurrency Affiliate) to charges (other than taxes) of any kind which such
Lender reasonably determines to be applicable to the Revolving Credit
Commitments of the Lenders to make Eurocurrency Rate Loans or issue or
participate in Letters of Credit or change the basis of taxation of payments to
that Lender of principal, fees, interest, or any other amount payable hereunder
with respect to Eurocurrency Rate Loans or Letters of Credit; or
(b) does or will impose, modify, or hold applicable, in the reasonable
determination of a Lender, any reserve (other than reserves taken into account
in calculating the Eurocurrency Rate), 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 extended by, or any other acquisition of funds by, a Lender or any
Applicable Lending Office or Eurocurrency Affiliate of that Lender;
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 Revolving Credit Commitment or
issuing or participating in Letters of Credit or to reduce any amount receivable
thereunder; then, in any such case, within thirty (30) days after written demand
by such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall
86
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 Eurocurrency 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. Notwithstanding the foregoing, in the event
of any such demand, at the Borrower's sole election, the Borrower may identify
an Eligible Assignee not making such a demand to whom the demanding Lender shall
assign its interest in the Loans at par pursuant to the terms of an Assignment
and Acceptance substantially in the form attached as EXHIBIT A.
ARTICLE XIII.
MISCELLANEOUS
13.1. ASSIGNMENTS.
(a) ASSIGNMENTS. No assignments of any Lender's rights or obligations
under this Agreement shall be made except in accordance with this SECTION 13.1.
Each Lender may assign to one or more Eligible Assignees all of its rights and
obligations under this Agreement in accordance with the provisions of this
SECTION 13.1. Each Lender, or on its behalf and at its request, the
Administrative Agent, shall promptly provide written notice to the Borrower of
any assignment of such Lender's rights or obligations under this SECTION 13.1.
(b) LIMITATIONS ON ASSIGNMENTS. Each assignment shall be subject to the
following conditions: (i) each assignment shall be of a constant, and not a
varying ratable percentage of the assigning Lender's rights and obligations
under this Agreement and shall be in a minimum principal amount of $5,000,000,
(ii) each such assignment shall be to an Eligible Assignee with the consent of
the Administrative Agent (such consent not to be unreasonably withheld or
delayed), and, so long as no Event of Default has occurred and is continuing,
the Borrower, (such consent not to be unreasonably withheld or delayed by the
Borrower) (provided that the consent of the Administrative Agent and the
Borrower shall not be required with respect to an assignment to an Eligible
Assignee described in clause (i) of the definition thereof), and (iii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance. 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
such rights and be released from such obligations under this Agreement and the
assigning Lender shall (if all of its Revolving Credit Commitment is being
assigned) cease to be a party hereto and (C) if requested by the assignee or
assignor thereunder, the Borrower shall execute and deliver to the assignee and
the assignor (to the extent the assignor retains a Revolving Credit Commitment)
a Note evidencing its obligations to such assignee with respect to the Loans
upon the cancellation or amendment of the original thereby being replaced. If
after the occurrence and continuance of an Event of Default the Administrative
Agent does not hold any portion of the Loan, such Administrative Agent shall
offer to resign as Administrative Agent hereunder. Notwithstanding anything
herein to the contrary, in the event that the Administrative Agent shall at any
time hold a Revolving Credit Commitment less than $25,000,000 (other than as a
result of pro-rata reductions in the Revolving Credit Commitments pursuant to
SECTION 3.1), then such Administrative Agent shall promptly provide
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written notice thereof to the Lenders and the Requisite Lenders shall have the
right, to be exercised within fifteen (15) days of delivery of such notice by
such Administrative Agent, to elect to remove such Administrative Agent as
Administrative Agent and replace such Administrative Agent, subject to the terms
of SECTION 11.7.
(c) THE REGISTER. The Administrative Agent shall maintain at its
address referred to in SECTION 13.8 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 Revolving Credit
Commitment of, and the principal amount of the Loans under the Revolving Credit
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, TMC and each of their
respective Subsidiaries, the Administrative Agent and the other Lenders 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 Eligible Assignee and a processing and recordation
fee of $2,500 (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. Notwithstanding the foregoing,
there shall be no processing or recordation fee due in connection with an
assignment by a Lender to an Affiliate of such Lender.
(e) INFORMATION REGARDING THE BORROWER. Any Lender may, in connection
with any assignment or participation or proposed assignment or participation
pursuant to this SECTION 13.1, disclose to the assignee, participant, proposed
assignee or proposed participant any information relating to the Borrower, TMC
or their respective Subsidiaries furnished to such Lender by the Administrative
Agent or by or on behalf of the Borrower or TMC; PROVIDED that prior to any such
disclosure, such assignee, participant, proposed assignee or proposed
participant shall agree, in writing, to preserve in accordance with SECTION
13.20 the confidentiality of any confidential information described therein.
(f) 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 of its rights under this Agreement (including, without
limitation, Obligations owing to it and any Note held by it) including any
pledge or assignment in favor of any Federal Reserve Bank in accordance with
Regulation A of the Federal Reserve Board or U.S. Treasury Regulation 31CFR
SECTION 203.14.
(g) PARTICIPATIONS. Each Lender may sell participations to one or more
Eligible Assignees or Approved Funds in all or a portion of such Lender's rights
and obligations under this Agreement and the other Loan Documents; provided that
(a) any such sale or participation shall not affect the rights and duties of the
selling Lender hereunder to the Borrower, the Administrative Agent and the other
Lenders, (b) such sale and participation shall not entitle such participant to
any rights or privileges under this Agreement or the Loan Documents (including,
without limitation, the right to approve waivers, amendments or modifications,
provided that such participation may provide that such Lender will not agree to
any modification, amendment or waiver of this Agreement described in Section
13.7 (b)(i), (ii) or (iii) or Section 13.7(c)(i) without the consent of such
participant), (c) such participant shall have no direct rights against the
Borrower or TMC except the rights granted to the Lenders pursuant to SECTION
13.5, (d) such sale is effected in accordance with all applicable laws.
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13.2. EXPENSES.
(a) GENERALLY. The Borrower agrees upon demand to pay, or reimburse the
Administrative Agent for all of its respective reasonable external audit and
investigation expenses and for the reasonable fees, expenses and disbursements
of counsel to the Administrative Agent (but not of other legal counsel) and for
all other reasonable out-of pocket costs and expenses of every type and nature
incurred by the Administrative Agent in connection with (i) the audit and
investigation of the Consolidated Businesses, the Real Properties and other
Properties of the Consolidated Businesses in connection with the preparation,
negotiation, and execution of the Loan Documents; (ii) the preparation,
negotiation, execution, syndication and interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any of the conditions set forth in ARTICLE V), the Loan Documents, and the
making of the Loans hereunder or the issuance of Letters of Credit; (iii) the
ongoing administration of this Agreement and the Loans, including consultation
with attorneys in connection therewith and with respect to the Administrative
Agent's rights and responsibilities under this Agreement and the other Loan
Documents; (iv) the protection, collection or enforcement of any of the
Obligations or the enforcement of any of the Loan Documents; (v) the
commencement, defense or intervention in any court proceeding relating in any
way to the Obligations, the Borrower, TMC, this Agreement or any of the other
Loan Documents; (vi) the response to, and preparation for, any subpoena or
request for document production with which the Administrative Agent or any other
Lender is served or deposition or other proceeding in which any Lender is called
to testify, in each case, relating in any way to the Obligations, a Real
Property, the Borrower, TMC, any of the Consolidated Businesses, this Agreement
or any of the other Loan Documents; and (vii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same.
(b) AFTER DEFAULT. The Borrower further agrees to pay or reimburse the
Administrative Agent and each of the Lenders upon demand for all 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 of an Event of Default (i) in enforcing any
Loan Document or obligation or any security therefor or exercising or enforcing
any other right or remedy available by reason of such Event of Default; (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 Real Property, 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.
13.3. INDEMNITY. The Borrower further agrees (a) to defend, protect,
indemnify, and hold harmless the Administrative Agent and each and all of the
other Lenders and each of their respective officers, directors, employees,
attorneys, Affiliates and agents (including, without limitation, those retained
in connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in ARTICLE V) (collectively, the "INDEMNITEES") from and
against any and all liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, claims, costs,
reasonable expenses and disbursements of any kind or nature whatsoever
(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
this Agreement or the other Loan Documents, or any act, event or transaction
related or attendant thereto, the making of the Loans or the issuance of Letters
of Credit hereunder, the management of such Loans, the use or intended use of
the proceeds of the Loans or Letters of Credit hereunder, or any
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of the other transactions contemplated by the Loan Documents (collectively, the
"INDEMNIFIED MATTERS"); PROVIDED, HOWEVER, the Borrower shall have no obligation
to an Indemnitee thereunder 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 Revolving Credit Commitments, the Revolving
Credit Obligations, or the other matters governed by this Agreement and the
other Loan Documents except with respect to the willful and intentional
misconduct of such Indemnitee. 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.
13.4. CHANGE IN ACCOUNTING PRINCIPLES. If any change in the accounting
principles used in the preparation of the most recent financial statements
referred to in SECTION 7.1 or 7.2 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
Borrower or TMC 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 IX, 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
and TMC shall be the same after such changes as if such changes had not been
made; PROVIDED, HOWEVER, that 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.
13.5. SETOFF. In addition to any rights now or hereafter granted under
applicable law, upon the occurrence and during the continuance of any Event of
Default, each Lender is hereby authorized by the Borrower at any time or from
time to time, without notice to any Person (any such notice being hereby
expressly waived) to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured (but not
including trust accounts)) and any other Indebtedness at any time held or owing
by such Lender to or for the credit or the account of the Borrower against and
on account of the Obligations of the Borrower then due to such Lender,
including, but not limited to, all Loans and all claims of any nature or
description arising out of or in connection with this Agreement, irrespective of
whether or not (i) such Lender shall have made any demand hereunder or (ii) the
Administrative Agent, at the request or with the consent of the Requisite
Lenders, shall have declared the principal of and interest on the Loans and
other amounts due hereunder to be due and payable as permitted by ARTICLE X and
even though such obligations may be contingent or unmatured. Each Lender agrees
that it shall not, unless the Loans have been accelerated pursuant to SECTION
10.2(a), without the express consent of the Requisite Lenders, and that it
shall, to the extent it is lawfully entitled to do so, upon the request of the
Requisite Lenders, exercise its setoff rights hereunder against any accounts of
the Borrower or TMC now or hereafter maintained with such Lender.
13.6. 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 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, (ii) if
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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 13.6 may, to the
fullest extent permitted by law, exercise all its rights of payment (including,
subject to SECTION 13.5, the right of setoff) with respect to such participation
as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
13.7. 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; PROVIDED,
HOWEVER, that Borrower's agreement shall not be required for any amendment or
modification of SECTIONS 11.1 through 11.8 (other than such Sections thereof on
which the Borrower is entitled to rely or which the Borrower is entitled to
enforce). Unless otherwise provided for in this Agreement, 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 or TMC therefrom, other than those
specifically reserved to the Administrative Agent or the other Lenders, 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 or the other Lenders in SECTIONS 13.7(b), 13.7(c) AND
13.7(d) 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. In
the event that any Lender fails to fund its Pro Rata Share of any Loan requested
by the Borrower which such Lender is obligated to fund under the terms of this
Agreement, to perform its obligations under SECTION 2.4 of this Agreement, or to
pay any other amount payable by such Lender, then in addition to the other
rights and remedies that may be available to Administrative Agent or the
Borrower, such Lender's right to participate in the administration of the Loan
Documents, including, without limitation, any rights to consent to or direct any
action or inaction of Administrative Agent pursuant to this Agreement or the
other Loan Documents, or to be taken into account in the calculation of
Requisite Lenders, or to exercise rights under SECTIONS 13.7(b) OR 13.7(c),
shall be suspended during the pendency of such failure. 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. Any such action by the
Requisite Lenders shall be binding upon all of the Lenders and the
Administrative Agent.
(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:
(i) increase in the amount of such Lender's Revolving Credit
Commitments;
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(ii) 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);
(iii) postponement or extension of any date fixed for any
payment of principal of, or interest on, the Loans or Letters of Credit
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 3.2(b)); and
(iv) addition of new currencies to be available as "Optional
Currency" under the definition thereof.
(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 Revolving Credit Termination Date
(except for the one-year extension of the Revolving Credit Termination
Date as permitted pursuant to SECTION 2.3), or increase in the Maximum
Revolving Credit Amount to any amount in excess of $500,000,000.
(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 13.6 or clauses (a), (b) and (c) of
this SECTION 13.7,
(iv) permitting the assignment of any right or interest in or
under this Agreement or any of the other Loan Documents by the
Borrower, and
(v) release of the Guaranty.
(d) ADMINISTRATIVE AGENT AUTHORITY. 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 13.7, (i) no
amendment, modification, waiver or consent shall affect the rights or duties of
the Administrative Agent as 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, (ii) no
amendment, modification, waiver or consent shall affect Section 11.11 of this
Agreement unless made in writing and signed by the Co-Syndication Agents, the
Co-Documentation Agents and the Co-Arrangers in addition to the Lenders required
above to take such action and (iii) no amendment, modification, waiver or
consent shall affect the rights or duties of the Issuing Lender or the Swing
Lender under this Agreement and the other Loan Documents, unless made in
writing, and signed by the Issuing Lender or the Swing Lender, as applicable, 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 reasonable conditions it may specify)
within fifteen (15) Business 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 Lender's attorney-in-fact and to execute and
deliver any writing approved by the Administrative Agent which
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evidences such agreement as such Lender's duly authorized agent for such
purposes; PROVIDED, HOWEVER, that such request shall state, in capital letters
that "FAILURE TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) BUSINESS DAYS AFTER
RECEIPT, SHALL BE DEEMED CONSENT TO THE ENCLOSED REQUEST."
13.8. 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 three (3) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to ARTICLES II, III or XI 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 13.8) 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.
13.9. 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 the termination of this Agreement and shall not be
limited in any way by the passage of time or occurrence of any event.
Notwithstanding the foregoing, however, such representations, warranties and
obligations shall terminate and be of no further force and effect two years
after payment in full of the Loans.
13.10. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. Subject
to the terms of SECTION 13.7(d) of this Agreement, 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.
13.11. MARSHALING; PAYMENTS SET ASIDE. None of the Administrative Agent
or any other Lender shall be under any obligation to marshal any assets in favor
of the Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent that the Borrower makes a payment or payments to the
Administrative Agent 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.
13.12. 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.
13.13. 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.
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13.14. GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH AND
BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
CONFLICT OF LAWS PRINCIPLES.
13.15. LIMITATION OF LIABILITY. No claim may be made by any Lender, 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 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. In addition, no claim may be made by any
Lender, the Administrative Agent, or any other Person against any directors,
officers or trustees of the Borrower or TMC or their respective Subsidiaries.
13.16. 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
their successors and permitted assigns. Notwithstanding the foregoing, Borrower
may not assign or transfer any of its rights or obligations under any of the
Loan Documents without the prior written consent of each of the Lenders (and any
such assignment or transfer without such consent shall be null and void).
13.17. CERTAIN CONSENTS AND WAIVERS.
(a) PERSONAL JURISDICTION. (i) EACH OF THE LENDERS AND BORROWER
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR COMMONWEALTH OF MASSACHUSETTS
COURT OR FEDERAL COURT SITTING IN NEW YORK, NEW YORK OR BOSTON, MASSACHUSETTS,
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. THE BORROWER (IN SUCH CAPACITY,
THE "PROCESS AGENT") AGREES TO ACCEPT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. EACH OF 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 LENDERS (AS TO COURTS IN NEW
YORK STATE AND COMMONWEALTH OF MASSACHUSETTS ONLY) AND THE BORROWER, WITH
RESPECT TO COURTS IN NEW YORK, NEW YORK AND BOSTON, Massachusetts, WAIVES IN ALL
DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE DISPUTE.
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(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 AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE
ADMINISTRATIVE AGENT OR ANY LENDER TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF THE ADMINISTRATIVE AGENT OR ANY 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. EACH OF THE LENDERS (WITH RESPECT TO NEW YORK
STATE AND COMMONWEALTH OF MASSACHUSETTS ONLY) AND 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 (FOR BORROWER) OR THE
BORROWER'S NOTICE ADDRESS SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON
RECEIPT. EACH OF THE LENDERS (WITH RESPECT TO NEW YORK STATE AND COMMONWEALTH OF
MASSACHUSETTS ONLY) AND THE BORROWER, WITH RESPECT TO COURTS IN NEW YORK AND
COMMONWEALTH OF MASSACHUSETTS, 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, THE OTHER LENDERS OR THE BORROWER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE 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.
13.18. 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 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. In the event the Lenders enter into any co-lender
agreement with the Administrative Agent pertaining to the Lenders' respective
rights with respect to voting on any matter referenced in this Agreement or the
other Loan Documents on which the Lenders have a right to vote under the terms
of this Agreement or the other Loan Documents, such co-lender agreement shall be
construed to the extent reasonable to be consistent with this Agreement and the
other Loan Documents, but to the extent that the terms and conditions of such
co-lender agreement are actually inconsistent with
95
the terms and conditions of this Agreement and/or the other Loan Documents, such
co-lender agreement shall govern. Notwithstanding the foregoing, any rights
reserved to the Administrative Agent under this Agreement and the other Loan
Documents shall not be varied or in any way affected by such co-lender agreement
and the rights and obligations of the Borrower under the Loan Documents shall
not be varied in any way by such co-lender agreement.
13.19. LIMITATION ON AGREEMENTS. All agreements between the Borrower,
the Administrative Agent 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.
13.20. CONFIDENTIALITY. Subject to SECTION 13.1(q), the Lenders shall
hold all nonpublic information obtained pursuant to the requirements of this
Agreement, and identified as such by the Borrower, in accordance with such
Lender's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices (provided that
such Lender may share such information with its Affiliates, officers, directors,
employees, accountants, attorneys and other advisors in accordance with such
Lender's customary procedures for handling confidential information of this
nature and provided further that such Person shall hold such information
confidential) and in any event the Lenders may make disclosure reasonably
required by a bona fide offeree, transferee or participant in connection with
the contemplated transfer or by any actual or prospective counterparty (or its
advisors) to any swap transaction relating to the Borrower or as required or
requested by any Governmental Authority or representative thereof or pursuant to
legal process and shall require any such offeree, transferee or counterparty to
agree (and require any of its offerees, transferees or participants to agree) to
comply with this SECTION 13.20. In no event shall any Lender be obligated or
required to return any materials furnished by the Borrower; PROVIDED, HOWEVER,
each offeree shall be required to agree that if it does not become a transferee
it shall return all materials furnished to it by the Borrower or any Lender in
connection with this Agreement. This SECTION 13.20 and any and all
confidentiality agreements entered into between any Lender and the Borrower
shall survive the execution of this Agreement. Nonpublic information shall not
include any information which is or subsequently becomes publicly available
other than as a result of a disclosure of such information by such Lender, or
prior to the delivery to such Lender is within the possession of such Lender if
such information is not known by such Lender to be subject to another
confidentiality agreement with or other obligations of secrecy to Borrower, or
is disclosed with the prior approval of Borrower. Nothing herein shall prohibit
the disclosure of nonpublic information to the extent necessary to enforce the
Loan Documents. Notwithstanding anything to the contrary set forth herein or in
any other written or oral understanding or agreement to which the parties hereto
are parties or by which they are bound, the parties hereto acknowledge and agree
that (i) any obligations of confidentiality contained herein and therein do not
apply and have not applied from the commencement of discussions between the
parties to the tax treatment and tax structure of the transactions contemplated
by the Loan Documents (and any related transactions or arrangements), and (ii)
each party (and each of its employees, representatives, or other agents) may
disclose to any and all parties as required, without limitation of any kind, the
tax treatment and tax structure of the transactions contemplated by the Loan
Documents and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax treatment and tax
structure, all within the meaning of Treasury Regulation Section 1.6011-4;
PROVIDED, HOWEVER, that each party recognizes that the privilege each has to
maintain, in its sole discretion, the confidentiality of a communication
relating to the transactions contemplated by the Loan Documents, including a
confidential communication with its attorney or a confidential communication
with a federally authorized tax practitioner under Section 7525 of the Internal
Revenue Code, is not intended to be affected by the foregoing.
13.21. DISCLAIMERS. The Administrative Agent and the other Lenders
shall not be liable to any contractor, subcontractor, supplier, laborer,
architect, engineer, tenant or other party for services
96
performed or materials supplied in connection with any work performed on the
Real Properties, including any TI Work. The Administrative Agent 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 Real
Properties. Borrower is not nor shall be an agent of any of the Administrative
Agent or the other Lenders for any purposes and none of the Lenders nor the
Administrative Agent shall be deemed partners or joint venturers with the
Borrower or any of its Affiliates as a result of the consummation of the
transaction contemplated by this Agreement. None of the Administrative Agent or
the other Lenders shall be deemed to be in privity of contract with any
contractor or provider of services to any Real Property, 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 or the other Lenders, and the Borrower agrees to
hold the Administrative Agent 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 solely to the extent, if any, that the
Borrower has requested that the Administrative Agent or any other Lender deal
directly with or make any payments directly to such a contractor or provider of
services.
13.22. 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, written
and oral, relating to the subject matter hereof.
13.23. REPLACEMENT NOTES. Upon receipt of evidence reasonably
satisfactory to Borrower of the loss, theft, destruction or mutilation of any
Note, and in the case of any such loss, theft or destruction, upon delivery of
an indemnity agreement reasonably satisfactory to Borrower or, in the case of
any such mutilation, upon surrender and cancellation of the applicable Note,
Borrower will execute and deliver, in lieu thereof, a replacement Note,
identical in form and substance to the applicable Note and dated as of the date
of the applicable Note and upon such execution and delivery all references in
the Loan Documents to such Note shall be deemed to refer to such replacement
Note.
13.24. TRANSITIONAL ARRANGEMENTS.
(a) ORIGINAL AGREEMENT SUPERSEDED. This Agreement shall supersede the
Original Agreement in its entirety, except as provided in this SECTION 13.24. On
the Closing Date, the rights and obligations of the parties under the Original
Agreement and the "Notes" defined therein shall be subsumed within and be
governed by this Agreement and the Notes; PROVIDED HOWEVER, that any of the
"Obligations" (as defined in the Original Agreement) outstanding under the
Original Agreement shall, for purposes of this Agreement, be Obligations
hereunder. The Lenders' interests in such Obligations, and participations in
such Letters of Credit shall be reallocated on the Closing Date in accordance
with each Lender's applicable Pro Rata Share.
(b) RETURN AND CANCELLATION OF NOTES. Upon its receipt of the Notes to
be delivered hereunder on the Closing Date, each Lender will promptly return to
the Borrower, marked "Cancelled" or "Replaced", the notes of the Borrower held
by such Lender pursuant to the Original Agreement. In the event that any Lender
does not return its note pursuant to the Original Agreement within twenty (20)
days after the Closing Date, the Borrower shall be entitled to receive an
affidavit from the Lender, including an indemnity agreement reasonably
satisfactory to the Borrower, with respect to the unreturned note.
(c) INTEREST AND FEES UNDER ORIGINAL AGREEMENT. All interest and all
commitment, facility and other fees and expenses owing or accruing under or in
respect of the Original Agreement shall be calculated as of the Closing Date
(with the unused facility fee and Letter of Credit fees prorated for any
fractional periods), and shall be paid on the Closing Date in accordance with
the method specified in the Original Agreement as if such agreement were still
in effect.
97
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
THE BORROWER: THE ▇▇▇▇▇ LIMITED PARTNERSHIP, a Delaware limited
partnership
By: THE ▇▇▇▇▇ CORPORATION, a Delaware corporation,
its General Partner
BY: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Capital Markets
Notice Address:
The ▇▇▇▇▇ Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: 703/526-5198
Signature Page to
Amended and Restated
Revolving Credit Agreement
TMC (for purposes of its THE ▇▇▇▇▇ CORPORATION, a Delaware corporation
agreements contained
herein):
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Capital Markets
Notice Address:
The ▇▇▇▇▇ Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: 703/526-5198
ADMINISTRATIVE AGENT FLEET NATIONAL BANK
AND LENDER:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Mail Stop MA DE 10008A
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: 617/434-6384
CO-SYNDICATION AGENT JPMORGAN CHASE BANK
AND LENDER:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: 212/270-0213
CO-SYNDICATION AGENT EUROHYPO AG, NEW YORK BRANCH
AND LENDER:
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
Notice Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: 312/267-8875
Domestic Lending Office and
Eurocurrency Lending Office:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇
Facsimile: 212/202-4765
CO-DOCUMENTATION AGENT HVB BANK IRELAND
AND LENDER:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Authorized Signatory
Notice Address:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 212/672-5527
Domestic Lending Office and
Eurocurrency Lending Office:
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇
Republic of Ireland
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 00 353 1 605 4105
CO-DOCUMENTATION AGENT COMMERZBANK AG, NEW YORK AND
AND LENDER: GRAND CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
2 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 212/266-7565
LENDER: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ Jaap L. Tonckens
---------------------------------
Name: Jaap L. Tonckens
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 212/537-1867
LENDER: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By: /s/ Jaap L. Tonckens
---------------------------------
Name: Vice President
Title: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 212/537-1867
LENDER: CITICORP NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 212/723-8547
LENDER: US BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile: 612/303-2270
LENDER: DEUTSCHE BANK AG
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 214/740-7910
LENDER: BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Notice Address for fundings, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: 214/290-9673
All other Notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 312/974-4970
LENDER: ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ Vallille
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ Vallille
Title: Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
4 World Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇
Facsimile: 212/738-1719
LENDER: ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Manager
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
One Liberty Plaza, 3rd Floor
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Manager, Loans Administration
Facsimile: 212/428-2372
A copy of notices should also be faxed to:
▇▇▇▇▇▇ Tyszewicz
CTM Group
Facsimile: 416/842-4020
LENDER: BANK ONE, NA
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director, Capital Markets
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 312/732-5939
LENDER: BRANCH BANKING AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 202/835-9285
LENDER: FIRST AMERICAN BANK, SSB
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: 972/419-3308
LENDER: KBC BANK NV
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: Vice President
Title: Real Estate
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 212/541-0740
LENDER: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: 202/429-2984
LENDER: LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 312/904-6691
LENDER: KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: 202/452-4925
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 202/452-4925
LENDER: PB CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Portfolio Managment
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇
Facsimile: 212/756-5536
LENDER: SOVEREIGN BANK
By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
Notice Address, Domestic
Lending Office and Eurocurrency
Lending Office:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇ ▇▇▇ ▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: 617/757-5653
