Exhibit 10.14
================================================================================
CREDIT AGREEMENT
among
GREEN REALTY LLC
as Borrower,
and
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
as Lender
Dated as of March 24, 1997
================================================================================
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS................................................... 1
1.1 Defined Terms................................................. 1
1.2 Accounting Terms and Determinations........................... 10
1.3 Other Definitional Provisions................................. 11
SECTION 2. CREDIT FACILITY............................................... 11
2.1 Tranche A Term Loans.......................................... 11
2.2 Tranche B Term Loans.......................................... 13
2.3 Prepayments................................................... 14
2.4 Additional Financing.......................................... 15
SECTION 3. FEES AND PAYMENTS; YIELD PROTECTION........................... 16
3.1 Tranche A Term Loan Fees...................................... 16
3.2 Tranche B Term Loan Fees...................................... 16
3.3 Computation of Interest....................................... 17
3.4 Payments...................................................... 17
3.5 Taxes......................................................... 17
3.6 Funding Losses................................................ 18
3.7 Inability to Determine Interest Rate.......................... 18
3.8 Illegality.................................................... 18
SECTION 4. REPRESENTATIONS AND WARRANTIES................................ 19
4.1 Organization and Good Standing................................ 19
4.2 Authorization and Power....................................... 19
4.3 No Conflicts or Consents...................................... 19
4.4 Enforceable Obligations....................................... 19
4.5 Title to Assets............................................... 20
4.6 Financial Condition........................................... 20
4.8 No Default.................................................... 20
4.9 Agreements.................................................... 20
4.10 No Litigation................................................. 20
4.11 Burdensome Contracts.......................................... 20
4.12 Security Interests............................................ 21
4.13 Use of Proceeds; Margin Stock................................. 21
4.14 Taxes......................................................... 21
4.15 Principal Office, Etc......................................... 21
4.16 ERISA......................................................... 21
4.17 Compliance with Law........................................... 22
4.18 Government Regulation......................................... 22
4.19 Solvency...................................................... 22
PAGE
4.20 Insurance..................................................... 22
SECTION 5. CONDITIONS PRECEDENT.......................................... 22
5.1 Conditions to Loans made on the Closing Date.................. 22
5.2 Conditions to the Tranche A Term Loan and Tranche B
Term Loans to be made after the Closing Date.................. 24
5.3 Additional Conditions to Tranche B Term Loans for
Acquisitions.................................................. 25
SECTION 6. AFFIRMATIVE COVENANTS......................................... 26
6.1 Financial Statements, Reports and Documents................... 26
6.2 Payment of Taxes and Other Indebtedness....................... 27
6.3 Maintenance of Existence and Rights; Conduct of Business...... 27
6.4 Notice of Default............................................. 27
6.5 Other Notices................................................. 27
6.6 Compliance with Material Agreements........................... 28
6.7 Books and Records; Access..................................... 28
6.8 Compliance with Law........................................... 28
6.9 Insurance..................................................... 28
6.10 Authorizations and Approvals.................................. 28
6.11 ERISA Compliance.............................................. 28
6.12 Reimbursement from Issuer..................................... 29
6.13 Further Assurances............................................ 29
SECTION 7. NEGATIVE COVENANTS............................................ 29
7.1 Limitation on Indebtedness.................................... 29
7.2 Negative Pledge............................................... 29
7.3 No Restrictions............................................... 29
7.4 Limitation on Investments..................................... 30
7.5 Prohibition on Dividends...................................... 30
7.6 Material Agreements........................................... 30
7.7 Certain Transactions.......................................... 30
7.8 Issuance of Interests......................................... 30
7.9 Name, Fiscal Year and Accounting Method....................... 31
7.10 Mergers and Sales of Assets................................... 31
7.11 Lines of Business............................................. 31
7.12 No Amendments................................................. 31
7.13 Acquisition Properties........................................ 31
SECTION 8. EVENTS OF DEFAULT............................................. 31
8.1 Events of Default............................................. 31
8.2 Remedies...................................................... 34
8.3 Set-Off....................................................... 34
8.4 Default Interest.............................................. 34
ii
PAGE
SECTION 9. MISCELLANEOUS................................................. 35
9.1 Limitations on Recourse....................................... 35
9.3 Notices....................................................... 37
9.4 No Waiver; Cumulative Remedies................................ 38
9.5 Survival of Representations and Warranties.................... 38
9.6 Payment of Lender's Expenses, Indemnity, etc.................. 38
9.7 Benefit of Agreement; Assignments and Participations.......... 39
9.8 Headings...................................................... 39
9.9 GOVERNING LAW................................................. 39
9.10 Submission to Jurisdiction.................................... 39
9.11 WAIVER OF JURY TRIAL.......................................... 40
9.12 Confidentiality............................................... 40
EXHIBITS
A-1 - Form of Tranche A Term Note
A-2 - Form of Tranche B Term Note
B - Form of Acquisition Pledge Agreement
C - Form of Tranche A Collateral Account Agreement
D - Form of Environmental Indemnity Agreement
E - Form of Principal's Agreement
F - Form of Principal's Pledge Agreement
G - Form of SLGP Guarantee
H - Form of SLGP Pledge Agreement
I - Form of SLGM Guarantee
J - Form of SLGM Collateral Assignment
K - Form of Opinion of Counsel
iii
CREDIT AGREEMENT dated as of March 24, 1997 between GREEN REALTY
LLC (the "BORROWER") and ▇▇▇▇▇▇ BROTHERS HOLDINGS INC. (the "LENDER").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower has requested that the Lender make two term
loans to it, the first in an aggregate principal amount of up to $20,000,000 and
the second in an aggregate principal amount of up to $15,000,000; and
WHEREAS, the Lender is willing to make such loans on, and subject
to, the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings:
"ACQUIROR": shall mean the Borrower or any Affiliate of the
Borrower that uses the proceeds of any Tranche B Term Loan to make an
Acquisition.
"ACQUISITION": shall mean any acquisition of an equity interest
in a Person directly or indirectly owning real property, which equity interest
is to be contributed to the Issuer in connection with the Initial Public
Offering. References herein to an "ACQUISITION PROPERTY" shall mean the real
property directly or indirectly owned by the Person whose equity interest was
acquired.
"ACQUISITION PLEDGE AGREEMENT": shall mean the Acquisition Pledge
Agreement, substantially in the form of Exhibit B hereto, executed by the
Acquiror in favor of the Lender.
"AFFILIATE": shall mean as to any Person, (a) any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with such Person or (b) any Person who is a director or executive
officer (i) of such Person or (ii) of any Person described in clause (a) above.
For purposes of this definition, control of a Person shall mean the power,
direct or indirect, to direct or cause the direction of the management and
policies of such Person whether through ownership of voting securities, by
contract or otherwise, PROVIDED that, in any event, any Person that owns
directly or indirectly securities having 5% or more of the voting power for the
election of directors (or Persons having similar management functions) of any
other Person shall be deemed to control such other Person.
"AGREEMENT": shall mean this Credit Agreement, as amended,
restated, supplemented, modified or extended from time to time.
"APPLICABLE MARGIN": shall mean with respect to any period set
forth below, the amount per annum set forth opposite such period:
Period Rate
------ ----------
Closing Date to but not including
September 24, 1998 2.75%
September 24, 1998 to but not including ▇▇▇▇▇ ▇▇,
▇▇▇▇ (▇▇ applicable) 3.75%
"BANKRUPTCY CODE": shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
"BASE RATE": shall mean, for any Interest Period, a rate per
annum equal to the sum of the per annum rate of interest published in The Wall
Street Journal two (2) Business Days prior to the first day of such Interest
Period for U.S. Treasury bills having a term equal to such Interest Period, PLUS
the Applicable Margin. Any determination of the Base Rate by the Lender shall
be conclusive absent manifest error.
"BORROWING DATE": shall mean the date on which any Loan is made
by the Lender to the Borrower.
"BUSINESS DAY": shall mean a day on which commercial banks are
not authorized or required by law or executive order to close in New York, New
York and on which dealings are carried on in the London interbank market.
"CAPITALIZED LEASE": shall mean (a) any lease of property, real
or personal, if the then present value of the minimum rental commitment
thereunder should, in accordance with GAAP, be capitalized on a balance sheet of
the lessee, and (b) any other such lease the obligations under which are
capitalized on the balance sheet of the Borrower.
"CLOSING DATE": shall mean the date on which each of the
conditions set forth in Section 5.1 hereof have been satisfied or waived by the
Lender.
"CODE": shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"COLLATERAL": shall mean any property or assets in which the
Lender has been granted a security interest in order to secure the Obligations,
and includes the Tranche A Collateral.
2
"COMMITMENTS": shall mean the Tranche A Term Loan Commitment and
the Tranche B Term Loan Commitment.
"DEFAULT": shall mean any Event of Default or any event which has
occurred and which with the giving of notice, the lapse of time, or both, would
become an Event of Default.
"DIVIDENDS": shall mean, with respect to any Person, (i) any
dividends, payments, return of capital or distributions (cash or otherwise) made
or declared on or in respect of any class of equity interests or securities of
such Person, except for distributions made solely in equity interests or
securities of the same class of such Person, and (ii) any and all funds, cash or
other payments made in respect of, or set aside or apart for a sinking or other
analogous fund for, the redemption, repurchase or acquisition of equity
interests or securities of such Person.
"DOLLARS" and "$": shall mean dollars in lawful currency of the
United States of America.
"ENVIRONMENTAL INDEMNITY AGREEMENT": shall mean the Environmental
Indemnity Agreement, substantially in the form of Exhibit D hereto, executed by
the Borrower, SLGP and the Principal in favor of the Lender.
"ERISA": shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA GROUP": shall mean the Borrower and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with each such Borrower, are
treated as a single employer under Section 414 of the Code or Section 4001 of
ERISA.
"EVENT OF DEFAULT": shall mean any of the events specified in
Section 8.1.
"GAAP": shall mean generally accepted accounting principles in
the United States of America in effect from time to time.
"GOVERNMENTAL AUTHORITY": shall mean any nation or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEE": shall mean, with respect to any Person, any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee of
such Indebtedness or other obligation of the payment thereof or to protect such
obligee against
3
loss in respect thereof (in whole or in part), PROVIDED that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as a verb has a corresponding meaning.
"INDEBTEDNESS": shall mean as to any Person, at any date,
without duplication, (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business (provided such accounts are promptly
paid and discharged when due), (iv) all obligations of such Person under
Capitalized Leases, (v) all contingent or non-contingent obligations of such
Person to reimburse any bank or other Person in respect of amounts paid or
payable (currently or in the future, on a contingent or non-contingent basis)
under a letter of credit or similar instrument, (vi) all Indebtedness of others
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person, (vii) all obligations of such Person under interest
rate swaps, caps or collars or under any other financial hedging arrangement net
of any amounts receivable by such Person under such arrangements and (viii) all
Indebtedness of others Guaranteed by such Person.
"INITIAL PUBLIC OFFERING": shall mean the initial public offering
of equity interests by the Issuer to be lead managed by ▇▇▇▇▇▇ Brothers Inc.
"INTEREST PERIOD": shall mean with respect to any Tranche B Term
Loan:
(a) initially, the period commencing on the Borrowing Date of
such Loan and ending (A) in the case of the initial Tranche B Term Loan to be
made pursuant to Section 2.2(a), on the numerically corresponding day in the
month after the Borrowing Date thereof, and (B) in the case of any Tranche B
Term Loan made after the initial Tranche B Term Loan, on the last day of the
Interest Period then in effect with respect to the then outstanding Tranche B
Term Loans or, if no such Interest Period is then in effect, on the numerically
corresponding day in the month after the Borrowing Date of such Tranche B Term
Loan; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period and ending on the numerically
corresponding day in the month thereafter.
Notwithstanding the first sentence of this definition, (i) if any
Interest Period would end after the Tranche B Maturity Date, such Interest
Period shall end on the Tranche B Maturity Date, (ii) each Interest Period which
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day) and (iii) if
any Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such calendar month.
"INVESTMENT": shall mean, when used with reference to any
investment of any Person:
4
(a) any loan, advance or other extension of credit, including
obligations represented by bonds, notes or other securities and any Guarantees,
made by it to, or for the benefit of, any other Person (excluding commission,
travel, salary, relocation expenses, and similar advances to officers and
employees made in the ordinary course of business); and
(b) any capital contribution by such Person to, or purchase of
stock or other securities or partnership interests by such Person in, any other
Person, or any other investment evidencing an ownership or other interest of
such Person in any other Person.
"ISSUER": shall mean the corporation to be formed by Affiliates
of the Borrower which will, through one or more Subsidiaries, hold the equity
interests acquired in Acquisitions, the equity interests in the Persons owning
the properties included in the Portfolio and certain other assets contributed to
it by the Borrower and other Persons.
"LIBO RATE": shall mean, for any Interest Period, the rate per
annum (rounded upwards, if necessary, to the next higher 1/16th of a percent)
for deposits in U.S. Dollars for a period equal to such Interest Period, which
appears on the Telerate Page 3750 as of 11:00 a.m. (New York time) two Business
Days (2) prior to the first day of such Interest Period. In the event such rate
does not so appear, "LIBO RATE" shall mean the rate per annum determined by the
Lender to be the arithmetic mean (rounded upwards, if necessary, to the nearest
1/16 of a percent) of the rates of interest per annum quoted to the Lender by
each of two or more Reference Banks (as hereinafter defined) as the rate of
interest at which deposits in U.S. Dollars in an amount approximately equal to
the principal amount of the Loans to be outstanding during such Interest Period
and having a maturity equal to such Period are offered by such Reference Bank to
leading banks in the London interbank market at or about 11:00 a.m. (New York
time) on the second Business Day prior to the commencement of such Interest
Period. As used herein, "Reference Bank" means a leading bank engaged in
transactions in the London interbank market as selected by the Lender. Anything
in this definition to the contrary notwithstanding, the LIBO Rate applicable
with respect to the initial Interest Period for any Tranche B Term Loan made
after the initial Tranche B Term Loan shall be equal to the LIBO Rate then in
effect with respect to the then outstanding Tranche B Term Loans; PROVIDED that
if no such LIBO Rate is then in effect, the LIBO Rate shall be determined in
accordance with the other provisions of this definition. Each determination of
the LIBO Rate by Lender pursuant hereto shall be conclusive absent manifest
error.
"LIEN": shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, security interest, lien (statutory
or other) or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any Capitalized Lease
having substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in respect of any of the foregoing).
"LOANS": shall mean the Tranche A Term Loans and the Tranche B
Term Loans.
5
"MATERIAL ADVERSE EFFECT": shall mean any (i) adverse effect
whatsoever upon the validity or enforceability of this Agreement or any of the
Related Documents or any of the transactions contemplated hereby or thereby,
(ii) material adverse effect upon the properties, business, prospects or
condition (financial or otherwise) of the Borrower or (iii) material adverse
effect upon the ability of the Borrower or any other Person to fulfill any of
their obligations under this Agreement or any of the Related Documents.
"MULTIEMPLOYER PLAN": shall mean a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NOTES": shall mean the Tranche A Term Note and the Tranche B
Term Note.
"OBLIGATIONS": shall mean any and all of the debts, obligations
and liabilities of the Borrower to the Lender provided for or arising under this
Agreement or the Related Documents (including, without limitation, the
obligation to repay the Loan and to pay interest thereon), whether now existing
or hereafter arising, voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, and whether or not from time to time
decreased or extinguished and later increased, created or incurred.
"PBGC": shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"PERMITTED INDEBTEDNESS": shall mean (i) the Obligations, and
(ii) any additional Indebtedness incurred by the Borrower with the consent of
the Lender in connection with any Acquisition.
"PERMITTED INVESTMENTS": shall mean (i) marketable securities
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof having maturities of not more
than twelve months from the date of acquisition, (ii) time deposits and
certificates of deposit of any commercial bank of recognized standing having
capital and surplus in excess of U.S. $500,000,000 and a ▇▇▇▇▇ Bank Watch Rating
of B or better, with maturities of not more than six months from the date of
acquisition, (iii) commercial paper rated A-1 or the equivalent thereof by
Standard & Poor's Corporation or P-1 or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc. and in each case maturing within six months from the
date of acquisition and (iv) money market mutual funds with total assets in
excess of $2,000,000,000 which invest solely in assets of a type described in
the foregoing provisions of this definition.
"PERMITTED LIENS": shall mean (i) pledges or deposits made to
secure payment of worker's compensation insurance (or to participate in any fund
in connection with worker's compensation insurance), unemployment insurance,
pensions or social security programs, (ii) Liens imposed by mandatory provisions
of law such as for materialmen's, mechanics', warehousemen's and other like
Liens arising in the ordinary course of business, securing Indebtedness whose
payment is not yet due or which are being contested in good faith and by
appropriate proceedings as to which appropriate reserves in accordance with GAAP
or surety, stay or appeal bonds have been provided, (iii) Liens for taxes,
assessments and governmental charges or levies imposed upon a Person or upon
such Person's income or profits or property,
6
if the same are not yet due and payable or if the same are being contested in
good faith and as to which appropriate reserves in accordance with GAAP have
been provided, (iv) Liens arising from good faith deposits in connection with
tenders, leases, real estate bids or contracts (other than contracts involving
the borrowing of money), pledges or deposits to secure public or statutory
obligations, deposits to secure (or in lieu of) surety, stay, appeal or customs
bonds, and deposits to secure the payment of taxes, assessments, customs duties
or other similar charges, (v) encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, PROVIDED that such
items do not materially impair the use of such property for the purposes
intended, (vi) Liens assumed or otherwise incurred with the consent of the
Lender in connection with or as a result of any Acquisition and (vii) Liens in
favor of the Lender under the Security Documents.
"PERSON": shall mean an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"PLAN": shall mean any employee benefit plan which is covered by
Title IV of ERISA and in respect of which the Borrower or any member of the
ERISA Group is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"PORTFOLIO": shall mean the following properties located in New
York, New York: (i) the Bar Building located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇-▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, (iv)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (v) 1414 Avenue of the Americas and (vi) ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
References herein to a "PORTFOLIO PROPERTY" shall mean any of the foregoing
properties.
"PRINCIPAL": shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual residing
at ▇▇▇ ▇.▇. ▇▇▇▇▇, ▇▇▇. ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"PRINCIPAL'S AGREEMENT": shall mean the Principal's Agreement,
substantially in the form of Exhibit E hereto, executed by the Principal in
favor of the Lender.
"PRINCIPAL'S PLEDGE AGREEMENT": shall mean the Pledge Agreement,
substantially in the form of Exhibit F hereto, executed by the Principal in
favor of the Lender.
"RELATED DOCUMENTS": shall mean the Notes, the Principal's
Agreement, the SLGM Guarantee, the SLGP Guarantee, the Environmental Indemnity
Agreement and the Security Documents.
"REPORTABLE EVENT": shall mean any of the events set forth in
Section 4043(b) of ERISA.
"SECURITY DOCUMENTS": shall mean the Principal's Pledge
Agreement, the SLGP Pledge Agreement, the SLGM Collateral Assignment, each
Acquisition Pledge Agreement
7
and any other documents which the Lender requires to be executed on or after the
Closing Date in order to evidence, perfect, record or maintain the Lender's
security interest in any Collateral.
"SLGM": shall mean ▇.▇. ▇▇▇▇▇ Management Corp., a New York
corporation.
"SLGM COLLATERAL ASSIGNMENT": shall mean the Collateral
Assignment, substantially in the form of Exhibit J hereto, executed by SLGM in
favor of the Lender.
"SLGM GUARANTEE": shall mean the Limited Guarantee, substantially
in the form of Exhibit I hereto, executed by SLGM in favor of the Lender.
"SLGP": shall mean ▇.▇. ▇▇▇▇▇ Properties, Inc., a New York
corporation.
"SLGP GUARANTEE": shall mean the Limited Guarantee, substantially
in the form of Exhibit G hereto, executed by SLGP in favor of the Lender.
"SLGP PLEDGE AGREEMENT": shall mean the Pledge Agreement,
substantially in the form of Exhibit H hereto, executed by SLGP in favor of the
Lender.
"SOLVENT": shall mean with respect to any Person on a particular
date, that on such date (i) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (ii) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (iii) such Person is able to realize upon its assets and pay its
debts and other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (iv) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (v) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"SUBSIDIARY": shall mean as to any Person, a corporation or
other business entity of which shares of stock or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other managers of such corporation or business entity are at the time owned,
directly or indirectly through one or more intermediaries, by such Person.
"TRANCHE A COLLATERAL ACCOUNT": shall have the meaning set forth
in the Tranche A Collateral Account Agreement.
8
"TRANCHE A COLLATERAL ACCOUNT AGREEMENT": shall mean the Tranche
A Collateral Account Agreement, substantially in the form of Exhibit C hereto,
executed by the Borrower in favor of the Lender.
"TRANCHE A COLLATERAL": shall mean the Tranche A Collateral
Account and all funds, securities, monies and credit balances from time to time
held in the Tranche A Collateral Account and any other property or assets of the
Borrower or any other Person given as security for the Tranche A Term Loans.
"TRANCHE A EXTENSION DATE": shall mean each of September 24,
1997, December 24, 1997, March 24, 1998 and June 24, 1998, PROVIDED that the
Tranche A Maturity Date is extended in accordance with the terms of Section
2.1(d).
"TRANCHE A MATURITY DATE": shall mean September 24, 1997 or, if
extended in accordance with the terms of Section 2.1(d), then the date as so
extended.
"TRANCHE A TERM LOAN COMMITMENT": shall mean the obligation of
the Lender to make the Tranche A Term Loans pursuant to Section 2.1(a).
"TRANCHE A TERM LOANS": shall mean the term loans to be made by
the Lender pursuant to Section 2.1(a).
"TRANCHE A TERM NOTE": shall have the meaning set forth in
Section 2.1(f).
"TRANCHE B MATURITY DATE": shall mean September 24, 1998 or, if
extended in accordance with the terms of Section 2.2(e), March 24, 1999.
"TRANCHE B TERM LOAN COMMITMENT": shall mean the obligation of
the Lender to make Tranche B Term Loans pursuant to Section 2.2(a).
"TRANCHE B TERM LOANS": shall mean the term loans to be made by
the Lender pursuant to Section 2.2(a).
"TRANCHE B TERM NOTE": shall have the meaning set forth in
Section 2.2(g).
1.2 ACCOUNTING TERMS AND DETERMINATIONS. Except as otherwise
expressly provided herein, (a) all accounting terms used herein and (b) all
financial statements and all certificates and reports as to financial matters
required to be delivered to the Lender hereunder shall (unless otherwise
disclosed to the Lender in writing at the time of delivery thereof) shall be
interpreted or prepared in accordance with GAAP applied on a basis consistent
with those used in the preparation of the latest corresponding financial
statements furnished to the Lender hereunder (or, prior to the delivery of the
first financial statements under Section 6.1(a) or (b), the financial statements
referred to in Section 4.6), unless the Borrower notifies the Lender of any
change therein required to be made by the Borrower, in which event the Borrower
shall deliver to the Lender at or prior to the time such change is required to
take effect a description in reasonable detail of (i) the change and (ii) the
effect of such change on the Borrower's
9
financial statements and the calculations required to be made for purposes of
determining compliance with this Agreement.
10
1.3 OTHER DEFINITIONAL PROVISIONS.
(a)Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in the Related Documents or
any certificate or other document made or delivered pursuant hereto.
(b)The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(c) Defined terms in the Agreement shall include in the
singular number the plural and in the plural number the singular.
(d) References in this Agreement to any other agreement,
document or instrument shall, unless the context otherwise requires, include
such other agreement, document or instrument as the same may be from time to
time amended, modified or supplemented.
SECTION 2. CREDIT FACILITY
2.1 TRANCHE A TERM LOANS.
(a) On the terms and subject to the conditions of this Agreement,
the Lender agrees to make Tranche A Term Loans to the Borrower as follows:
(i) On or prior to the Tranche A Maturity Date, the Lender
agrees to make a Tranche A Term Loan to the Borrower on its request therefor in
the principal amount of $15,000,000 or, if the agreement by the Principal to
sell or pledge or otherwise hypothecate up to 12.5% of the stock of SLGP owned
by the Principal to Blackacre Capital Group or an Affiliate of Blackacre Capital
Group has been terminated, $20,000,000. Any request for a Tranche A Term Loan
pursuant to this Section 2.1(a)(i) must be delivered to the Lender not later
than 10:00 a.m., New York City time, five (5) Business Days before the date on
which such Loan is requested to be made and must specify (A) the principal
amount of the Loan requested (which must be either $15,000,000 or $20,000,000),
(B) the Borrowing Date (which must be a Business Day on or prior to the Tranche
A Maturity Date), and (C) if the requested principal amount of such Loan is
$20,000,000, that the agreement by the Principal to sell or pledge or otherwise
hypothecate up to 12.5% of the stock of SLGP owned by the Principal to Blackacre
Capital Group or an Affiliate of Blackacre Capital Group has been terminated.
Such request must be accompanied by payment of the fee required pursuant to
Section 3.1(a).
(ii) If (A) the principal amount of the Tranche A Term Loan
made by the Lender to the Borrower pursuant to clause (i) above is $15,000,000
and (B) after the date of such Tranche A Term Loan, the agreement by the
Principal to sell or pledge or otherwise hypothecate up to 12.5% of the stock of
SLGP owned by the Principal to Blackacre Capital Group or an Affiliate of
Blackacre Capital Group is terminated, then the Lender agrees to make, on or
prior to the Tranche A Maturity Date, an additional Tranche A Term Loan to the
11
Borrower on its request therefor in the principal amount of $5,000,000. Any
request for an additional Tranche A Term Loan pursuant to this clause (ii) must
be delivered to the Lender not later than 10:00 a.m., New York City time, five
(5) Business Days before the date on which such Loan is requested to be made and
must be accompanied by payment of the fee required pursuant to Section 3.1(b).
Such request must state (A) that the agreement by the Principal to sell or
pledge or otherwise hypothecate up to 12.5% of the stock of SLGP owned by the
Principal to Blackacre Capital Group or an Affiliate of Blackacre Capital Group
has been terminated, and (B) the Borrowing Date (which must be a Business Day on
or prior to the Tranche A Maturity Date).
Amounts borrowed under this Section 2.1(a) and prepaid or repaid may not be
reborrowed.
(b) The Lender shall make each Tranche A Term Loan available
to the Borrower by crediting the amount thereof to the Tranche A Collateral
Account. The proceeds of each Tranche A Term Loan shall be invested exclusively
in United States Treasury securities in accordance with the terms of the Tranche
A Collateral Account Agreement.
(c) The Borrower agrees to repay to the Lender the outstanding
principal amount of the Tranche A Term Loans on or prior to the Tranche A
Maturity Date.
(d) Not less than five (5) nor more than thirty (30) days
prior to each Tranche A Extension Date, the Borrower may request that the Lender
extend the then current Tranche A Maturity Date for a period of three months.
Any such request shall be made to the Lender in writing and shall be accompanied
by payment of the fee required pursuant to Section 3.1(c). Upon receipt of such
request and the accompanying fee payment, and provided that no Default has
occurred and is continuing, the Tranche A Maturity Date shall be extended for
three months from the then current Tranche A Maturity Date.
(e) The Borrower agrees to pay interest on the unpaid
principal amount of the Tranche A Term Loans from time to time outstanding from
and including the Closing Date to but not including the date on which such Loans
are paid in full at a rate per annum equal to the per annum rate of interest
payable on the United States Treasury securities held from time to time in the
Tranche A Collateral Account. Interest on the Tranche A Term Loans shall be
payable, in arrears, on the Tranche A Maturity Date.
(f) The Tranche A Term Loans made by the Lender shall be
evidenced by a single promissory note of the Borrower substantially in the form
of Exhibit A-1 (the "TRANCHE A TERM NOTE") payable to the order of Lender. The
Lender will note on its internal records the date and amount of each Tranche A
Term Loan, the date and amount of each repayment of principal thereof and will,
prior to any transfer of the Tranche A Term Note, endorse on the schedule
attached thereto the outstanding principal amount of the Loans evidenced
thereby. Failure to record such information shall not alter the obligations of
the Borrower under this Agreement or the Tranche A Term Note.
2.2 TRANCHE B TERM LOANS.
12
(a) On the terms and subject to the conditions of this Credit
Agreement, the Lender agrees to make one or more Tranche B Term Loans to the
Borrower from time to time on or prior to September 24, 1998 on the Borrower's
request therefor; PROVIDED that the aggregate principal amount of the Tranche B
Term Loans extended to the Borrower pursuant to this Section 2.2(a) shall not
exceed $15,000,000. Any request for a Tranche B Term Loan pursuant to this
Section 2.2(a) must be delivered to the Lender by not later than 10:00 a.m., New
York City time, three (3) Business Days before the date on which such Loan is
requested to be made and must specify (A) the requested Loan amount (which must
be at least $100,000 or a multiple of $100,000 in excess thereof), (B) the
Borrowing Date (which must be a Business Day on or prior to September 24, 1998),
(C) the intended use of proceeds of such Loan and (D) the account into which
such Loan proceeds are to be disbursed. Amounts borrowed under this Section
2.2(a) and prepaid or repaid may not be reborrowed.
(b) Subject to the conditions of this Agreement, the Lender
shall make the Tranche B Term Loans available to the Borrower by transferring
the amount thereof to such account as the Borrower shall designate in writing to
the Lender.
(c) Up to $2,500,000 of the Tranche B Term Loans may be used
to pay costs and expenses incurred in connection with the Initial Public
Offering. All other proceeds of any Tranche B Term Loans shall be used solely
for the purpose of funding Acquisitions.
(d) The Borrower agrees to repay to the Lender the outstanding
principal amount of the Tranche B Term Loans on or prior to September 24, 1998;
PROVIDED that if the Tranche B Maturity Date is extended from September 24, 1998
to March 24, 1999 in accordance with subsection (e) below, then (i) the Borrower
shall repay to the Lender on September 24, 1998 the outstanding principal amount
of the Tranche B Term Loans in excess of $10,000,000, together with accrued
interest thereon and any amounts payable pursuant to Section 3.5, and (ii) the
Borrower shall repay to the Lender on March 24, 1999, the outstanding principal
balance of the Tranche B Term Loans.
(e) Not less than thirty (30) nor more than ninety (90) days
prior to September 24, 1998, the Borrower may request that the Lender extend the
Tranche B Maturity Date for a period of six months. Any such request shall be
made to the Lender in writing. Upon receipt of such request and PROVIDED that
no Default has occurred and is continuing, the Tranche B Maturity Date shall be
extended to March 24, 1999.
(f) The Borrower agrees to pay interest on the unpaid
principal amount of the Tranche B Term Loans from time to time outstanding from
and including the Closing Date to but not including the date on which such Loans
are paid in full at a rate per annum equal to the sum of the LIBO Rate plus the
Applicable Margin in effect from time to time. Interest on the Tranche B Term
Loans shall be payable, in arrears, on the last day of each Interest Period and
on the Tranche B Maturity Date.
(g) The Tranche B Term Loans made by the Lender shall be
evidenced by a single promissory note of the Borrower, substantially in the form
of Exhibit A-2 (the "TRANCHE B TERM NOTE"), payable to the order of the Lender.
The Lender will note on its internal records
13
the date and amount of each Tranche B Term Loan, the date and amount of each
repayment of principal thereof and will, prior to any transfer of the Tranche B
Term Note, endorse on the schedule attached thereto the outstanding principal
amount of the Loans evidenced thereby. Failure to so record any such
information shall not alter the obligations of the Borrower under this Agreement
or the Tranche B Term Note.
2.3 PREPAYMENTS. (a) The Borrower may, at any time and
from time to time, prepay, in whole or in part, the then outstanding principal
amount of the Loans. Except as otherwise provided in Section 2.3(f), any such
prepayment shall be without penalty or premium. The Borrower shall give the
Lender not less than thirty (30) days' notice of its intent to prepay the Loans,
which notice shall specify the date and amount of the prepayment and the Loans
to which such prepayment is to be applied. Any notice of prepayment given by
the Borrower shall be irrevocable and obligate the Borrower to make the
prepayment specified in such notice on the date specified therein. Any partial
prepayment of the Loans shall be in an aggregate principal amount of at least
$100,000.
(b) The Borrower shall prepay the outstanding principal amount
of the Tranche A Term Loans upon the Lender's receipt of notice from the
Borrower, any Affiliate of the Borrower or the lead manager of the Initial
Public Offering of any determination not to proceed with the Initial Public
Offering.
(c) The Borrower shall prepay the outstanding principal amount
of the Tranche B Term Loans in an amount equal to 100% of (i) the net cash
proceeds paid or payable to SLGP or any of its Affiliates in connection with the
sale, transfer or other disposition of, or any financing or refinancing of any
Portfolio Property or any interest owned by SLGP or any such Affiliate in any
Person directly or indirectly owning any Portfolio Property or interest therein
and (ii) the net cash proceeds paid or payable to any Acquiror or Affiliate of
any Acquiror in connection with the sale, transfer or other disposition of, or
any financing or refinancing, of any Acquisition Property or any interest owned
by such Acquiror or Affiliate in any Person directly or indirectly owning any
Acquisition Property or interest therein. For purposes of this subsection
2.3(c), "net cash proceeds" shall mean the cash proceeds of such sale net of (A)
attorney's fees, accountant's fees, brokerage and other similar fees actually
incurred in connection with such sale and (B) taxes payable as a result of such
sale.
(d) The Borrower shall prepay the outstanding principal amount
of the Tranche B Term Loans in an amount equal to 100% of the cash proceeds
received by the Borrower from the Issuer in reimbursement of any expenses of the
Initial Public Offering advanced by the Borrower on behalf of the Issuer.
(e) Upon (i) the contribution, directly or indirectly, by the
Borrower or any other Acquiror to the Issuer or any Subsidiary of the Issuer of
any Acquisition Property (regardless of whether such contribution is effected by
a direct contribution of the property or indirectly through the contribution of
interests in the direct or indirect owners of such property), (ii) the
contribution, directly or indirectly by SLGP to the Issuer or any Subsidiary of
the Issuer of any Portfolio property (regardless of whether such contribution is
effected by a direct contribution of the property or indirectly through the
contribution of interests in the direct or
14
indirect owners of such property) or (iii) the contribution, directly or
indirectly, by SLGM of any or all of the Assigned Agreements, the Borrower shall
prepay the entire outstanding principal balance of all Tranche B Term Loans.
(f) All prepayments made pursuant to this Section 2.3 shall be
made together with (i) accrued interest to the date of such prepayment on the
amount prepaid, (ii) any amounts payable pursuant to Section 3.5 and (iii) any
fees due pursuant to Section 3.2(b). Unless otherwise specified, all
prepayments required to be made pursuant to this Section 2.3 shall be due and
payable on the date of receipt of the amounts, or the occurrence of the event
giving rise to such prepayment.
2.4 ADDITIONAL FINANCING. (a) The Borrower shall, and shall
cause each other Acquiror to, give the Lender a right of first offer and a right
of first refusal, as hereinafter set forth, to provide any additional financing
that the Borrower or such other Acquiror may require in connection with any
Acquisition, including, without limitation, any mortgage, financing. Prior to
consummating any Acquisition, the Acquiror shall notify the Lender as to the
amount, term and proposed security for any additional financing. Within five
(5) Business Days after its receipt of such notice, the Lender shall advise the
Acquiror as to whether the Lender is interested in providing such financing and
the proposed terms thereof. If the Lender elects not to provide such financing,
the Acquiror may solicit proposals from other lenders. If the Acquiror receives
a financing proposal from another lender which the Acquiror finds acceptable,
prior to accepting such proposal, the Acquiror shall notify the Lender and
provide the Lender with a copy of such proposal. The Lender shall have two (2)
Business Days after the Lender's receipt of such proposal to determine whether
to provide the Acquiror with the financing on the terms set forth in the
proposal. If the Lender elects not to provide such financing, then the Acquiror
may obtain such financing from the other lender on the terms set forth in the
proposal delivered to the Lender.
(b) If the Lender elects not to provide any financing which the
Acquiror has given it the option to provide pursuant to Section 2.4(a), the
Lender agrees that the Acquiror will not be required to pledge the equity
interests acquired in the Acquisition to the Lender and that, if such interest
has already been pledged to the Lender, the Lender will, at the Borrower's
expense, terminate the applicable Acquisition Pledge Agreement (other than
Sections 6(h), 7(a), 7(b) and 7(h) which shall survive) and release its Lien on
the pledged equity interests.
SECTION 3. FEES AND PAYMENTS; YIELD PROTECTION
3.1 TRANCHE A TERM LOAN FEES. (a) In consideration of the
Lender's agreement to make a Tranche A Term Loan pursuant to Section 2.1(a)(i),
the Borrower shall pay to the Lender at the time it submits a request for such
Loan a loan funding fee equal to 0.02% of the principal amount of such Loan.
(b) In consideration of the Lender's agreement to make an
additional Tranche A Term Loan pursuant to Section 2.1(a)(ii), the Borrower
shall pay to the Lender at the time it submits a request for such Loan a loan
funding fee equal to 0.02% of the principal amount of such additional Loan.
15
(c) In consideration of the Lender's agreement to extend the
Tranche A Maturity Date, the Borrower shall pay to the Lender at the time it
submits each request for an extension an extension fee equal to 0.02% of the
principal amount of the aggregate principal amount of all of the Tranche A Term
Loans outstanding at such time.
3.2 TRANCHE B TERM LOAN FEES. (a) In consideration of the
Lender's agreement to make the Tranche B Term Loans, the Borrower shall pay to
the Lender on each Borrowing Date a loan funding fee equal to 1% of the amount
of the Tranche B Term Loans advanced to the Borrower on such date.
(b) On each date on which the principal of any Tranche B Term
Loan is repaid or prepaid, the Borrower shall pay to the Lender a fee equal to
1% of the principal amount of the Tranche B Term Loans repaid or prepaid.
(c) The Borrower shall pay to the Lender a servicing fee from
and including the Closing Date to but not including the date on which the
Tranche B Term Loans are paid in full at a rate per annum equal to 0.1% of the
Tranche B Term Loan Commitment (computed on the basis of a 360-day year and the
actual number of days elapsed). Such fee shall be payable monthly, in arrears,
on the last day of each calendar month, commencing March 31, 1997, and on the
date on which the Tranche B Term Loans are repaid in full.
3.3 COMPUTATION OF INTEREST. Interest on the all Loans
shall be calculated on the basis of a 360-day year and the actual number of days
elapsed. In computing the amount of interest payable in respect of any period,
the first day of such period shall be included and the last day of such period
shall be excluded. Each determination of an interest rate by the Lender shall
be conclusive and binding on the Borrower absent manifest error.
3.4 PAYMENTS. All payments (including prepayments) to be made
by the Borrower on account of principal and interest shall be made without
set-off or counterclaim and shall be made to the Lender, at such account of the
Lender designated for such purpose, in Dollars and in immediately available
funds not later than 12:00 noon, New York City time, on the date on which such
payment shall become due. Any payment received after such time on any Business
Day shall be deemed to have been received on the next Business Day. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
3.5 TAXES. All payments made by the Borrower under this
Agreement and the Related Documents shall be made free and clear of, and without
reduction for or on account of, any current or future taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
income and franchise taxes imposed on the Lender (such non-excluded taxes being
called "TAXES"). If any Taxes are required to be withheld from any amounts
payable to the Lender hereunder or under any of the Related Documents, the
amounts so payable to the Lender shall be increased to the extent necessary to
yield to the Lender (after payment of all Taxes) interest or any such other
amounts payable hereunder or under the Related Documents
16
at the rates or in the amounts specified in this Agreement and the Related
Documents. Whenever any Taxes are payable by the Borrower, as promptly as
possible thereafter, the Borrower shall send to the Lender a certified copy of
an original official receipt showing payment thereof. If the Borrower fails to
pay Taxes when due to the appropriate taxing authority or fails to remit to the
Lender the required receipts or other required documentary evidence, the
Borrower shall indemnify and hold harmless the Lender against, and reimburse the
Lender upon demand for, any incremental taxes, interest or penalties that may
become payable by the Lender as a result of any such failure. The obligations
of the Borrower set forth in this Section 3.5 shall survive the termination of
this Agreement and the payment in full of the Notes and all other Obligations.
3.6 FUNDING LOSSES. The Borrower agrees to indemnify the
Lender against and to hold the Lender harmless from, and on demand reimburse the
Lender for, any loss, premium, penalty or expense which the Lender may sustain
or incur (including, without limitation, interest or fees payable to lenders of
funds obtained by the Lender in order to make any Loan and any loss or expense
incurred by reason of the relending, depositing or other employment of funds
acquired by the Lender to fund any Loan) as a consequence of (a) any default by
the Borrower in payment of the principal amount of or interest on the Loans, (b)
any failure by the Borrower to borrow any Loan on the date such Loan is
requested to be made, other than as a result of a default by the Lender, (c)
default by the Borrower in making any prepayment of the Loans after having given
a notice in accordance with Section 2.3, and/or (d) any acceleration of the
Loans pursuant to Section 8.2 hereof. A certificate setting forth any amounts
payable pursuant to this Section 3.6, submitted by the Lender to the Borrower,
shall be conclusive absent manifest error.
3.7 INABILITY TO DETERMINE INTEREST RATE. In the event that,
prior to the first day of any Interest Period, the Lender shall have reasonably
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of market circumstances, adequate and reasonable means
do not exist for ascertaining the LIBO Rate applicable to such Interest Period,
the Lender shall forthwith give telecopy notice of such determination to the
Borrower and the Tranche B Term Loans shall thereafter bear interest at a rate
equal to the Base Rate plus the Applicable Margin. Such notice shall be
withdrawn by the Lender when the Lender shall reasonably determine that adequate
and reasonable means exist for ascertaining the LIBO Rate.
3.8 ILLEGALITY. Notwithstanding any other provision hereof to
the contrary, if any introduction of or change in any law, rule, regulations or
treaty or in the interpretation or application thereof occurring after the date
hereof shall make it unlawful for the Lender to charge interest on any Tranche B
Term Loan based on the LIBO Rate, the Lender shall forthwith give notice of such
circumstances to the Borrower, and (a) the obligation of the Lender to charge
interest on such Loan based upon the LIBO Rate shall immediately be cancelled
and (b) such Loan shall automatically on the last day of the applicable Interest
Period (or within such earlier time as may be required by law) bear interest at
a rate equal to the Base Rate plus the Applicable Margin. Any such conversion
of the applicable interest on the Tranche B Term Loans on a date other than the
end of an Interest Period shall be accompanied by the payment
17
of accrued interest on such Loans to the date of conversion and any additional
amounts owing under Section 3.6.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and to
make the Loans herein provided for, the Borrower hereby represents and warrants
to the Lender that:
4.1 ORGANIZATION AND GOOD STANDING. The Borrower is a New
York limited liability company, duly organized, validly existing and in good
standing under the laws of the state of its organization, is duly qualified as a
foreign entity and in good standing in all states in which the failure to so
qualify would have a Material Adverse Effect, and has the power and authority to
own its properties and assets and to transact the business in which it is
currently engaged. The Borrower has no Subsidiaries; the sole member of the
Borrower is SLGP.
4.2 AUTHORIZATION AND POWER. The Borrower has the power and
authority to execute, deliver and perform this Agreement and the Related
Documents to which it is a party, and has taken all action necessary to
authorize the execution and delivery of this Agreement and the Related Documents
to which it is a party and to perform its obligations contemplated hereunder and
thereunder.
4.3 NO CONFLICTS OR CONSENTS. Neither the execution, delivery
or performance of this Agreement or the Related Documents to which it is a party
nor the consummation of the transactions contemplated hereby or thereby, nor the
compliance with the terms and provisions hereof or thereof, will contravene or
conflict with any provision of any constitution, law or regulation to which the
Borrower is subject, or any judgment, license, order or permit applicable to the
Borrower or any indenture, loan agreement, mortgage, deed of trust, or other
material agreement or instrument to which the Borrower is a party or by which
any of its assets may be bound or subject, or violate any provision of its
organizational documents. No consent, approval, authorization or order of any
court or Governmental Authority or third party is required in connection with
the execution, delivery and performance by the Borrower of this Agreement or any
of the Related Documents to which it is a party or for the consummation of the
transactions contemplated hereby or thereby, except those that have been
obtained and are in full force and effect.
4.4 ENFORCEABLE OBLIGATIONS. This Agreement and the Related
Documents to which the Borrower is a party have been duly executed and delivered
by the Borrower and are the legal, valid and binding obligations of the
Borrower, enforceable against it in accordance with their respective terms,
except as limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and general principles of
equity.
4.5 TITLE TO ASSETS. The Borrower has good and marketable
title to all of its assets free and clear of all Liens and other encumbrances
and adverse claims of any nature, except Permitted Liens.
18
4.6 FINANCIAL CONDITION. The Borrower has delivered to the
Lender a copy of its unaudited balance sheet as of March 13, 1997, certified by
its Chief Financial Officer. Such balance sheet fairly presents the financial
condition of the Borrower as of such date and has been prepared in accordance
with GAAP (subject to non-material audit adjustments and the absence of full
footnote disclosures). Prior to March 11, 1997, the Borrower has conducted no
business. As of March 13, 1997, there were no obligations, liabilities or
Indebtedness (including contingent and indirect liabilities and obligations) of
the Borrower which are not reflected in such balance sheet. Since March 13,
1997, no event, act, condition or change has occurred that could reasonably be
expected to have a Material Adverse Effect.
4.7 FULL DISCLOSURE. With respect to the representations and
warranties contained in this Agreement or in any of the Related Documents or in
any financial statements, certificates or other documents delivered in
connection herewith or therewith, there is no material fact that the Borrower
has not disclosed to the Lender. Neither this Agreement, the Related Documents,
the financial statements referenced in Section 4.6 hereof, nor any agreement,
document, certificate or written statement delivered herewith or heretofore by
the Borrower or any Affiliate of the Borrower to the Lender in connection with
the transactions contemplated hereby, contains any untrue statement of a
material fact or omits to state any material fact necessary to keep the
statements contained herein or therein from being misleading in light of the
circumstances under which they are made.
4.8 NO DEFAULT. No Default has occurred and is continuing,
nor will the execution, delivery and performance of this Agreement or any of the
Related Documents cause a Default to occur.
4.9 AGREEMENTS. The Borrower is not in default in any respect
under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound.
4.10 NO LITIGATION. There are no actions, suits or legal,
equitable, arbitration or administrative proceedings pending or, to the best of
the Borrower's knowledge, threatened against the Borrower, which if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
4.11 BURDENSOME CONTRACTS. The Borrower is not party to any
agreement or instrument or subject to any legislative or charter or other
corporate restriction or any judgment, order, writ, injunction, decree, rule or
regulation which could reasonably be expected to have a Material Adverse Effect.
4.12 SECURITY INTERESTS. Each of the Security Documents
creates or will create, as security for the obligations described therein, a
valid, exclusive and perfected first security interest in and Lien on all of the
Collateral described in such agreements in favor of the Lender superior and
prior to the rights of all third Persons and subject to no other Liens except
Permitted Liens. No filings or recordings are required in order to perfect the
security interests created under the Security Documents except for the filing of
UCC-1 financing statements with
19
the New York Secretary of State and the City Register in New York County and
such other filing offices as the Borrower may hereafter designate in writing to
the Lender.
4.13 USE OF PROCEEDS; MARGIN STOCK. None of the proceeds of
the Loans will be used for the purpose of purchasing or carrying any "margin
stock" as defined in Regulations U, T, X, or G of the Board of Governors of the
Federal Reserve, or for the purpose of reducing or retiring any Indebtedness
which was originally incurred to purchase or carry "margin stock," or for any
other purpose which might constitute this transaction a "purpose credit" within
the meaning of Regulations U, T, X or G. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stocks. Neither the Borrower nor any Person acting on behalf of the Borrower
has taken or will take any action which might cause any violation of Regulations
U, T, X, G or any other regulations of the Board of Governors of the Federal
Reserve System or any violation of Section 7 of the Securities Exchange Act of
1934 or any rule or regulation promulgated thereunder, in each case as now in
effect or as the same may hereinafter be in effect.
4.14 TAXES. All tax returns required to be filed by the
Borrower in any jurisdiction have been filed or extensions obtained and all
taxes as reflected in such returns (including mortgage recording taxes),
assessments, fees and other governmental charges upon the Borrower or upon any
of its properties, income or franchises have been paid prior to the time that
such taxes would give rise to a Lien thereon. There is no proposed tax
assessment against the Borrower, and there is no basis for any such assessment.
4.15 PRINCIPAL OFFICE, ETC. The principal office, chief
executive office and principal place of business of the Borrower is ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. The Borrower maintains its records and books at
such address. There are no assets at any other location, individual or in the
aggregate, that are material to the operation of the business of the Borrower as
currently conducted.
4.16 ERISA. (a) No Reportable Event has occurred and is
continuing with respect to any Plan; (b) the PBGC has not instituted proceedings
to terminate any Plan; (c) neither the Borrower nor any duly-appointed
administrator of a Plan: (i) has incurred any liability to PBGC with respect to
any Plan other than for premiums not yet due or payable, or (ii) has (A)
instituted or, intends, to the Borrower's knowledge, to institute proceedings to
terminate any Plan under Sections 4041 or 4041A of ERISA or (B) withdrawn or
intends, to the Borrower's knowledge, to withdraw from any Multiemployer Plan;
and (d) each Plan of the Borrower has been maintained and funded in all material
respects in accordance with its terms and with all provisions and requirements
of the Code and ERISA applicable thereto.
4.17 COMPLIANCE WITH LAW. The Borrower and, to the Borrower's
knowledge, its Affiliates are in compliance with all applicable provisions of
all constitutions, laws, rules, regulations, orders, judgments, decrees,
licenses and approvals of any Governmental Authority (including, without
limitation, any such laws, rules or regulations, orders, judgments or decrees
relating to tender offers) the violation of which would have a Material Adverse
Effect.
20
4.18 GOVERNMENT REGULATION. The Borrower is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Investment Company Act of 1940, the Interstate Commerce Act (as
any of the preceding acts have been amended), or any other law (other than
Regulation X of the Board of Governors of the Federal Reserve) which would
regulate the incurring by the Borrower of any Indebtedness, including but not
limited to laws relating to common contract carriers or the sale of electricity,
gas, steam, water, or other public utility services.
4.19 SOLVENCY. The Borrower is, and after consummation of the
transactions contemplated hereby, including all Acquisitions, and after giving
effect to all Indebtedness incurred or to be incurred hereunder or in connection
with any Acquisition will be, Solvent.
4.20 INSURANCE. The Borrower maintains insurance coverage of
the types and in the amounts required under Section 6.9.
SECTION 5. CONDITIONS PRECEDENT
5.1 CONDITIONS TO LOANS MADE ON THE CLOSING DATE. The
obligation of the Lender to make the initial Tranche A Term Loan and the initial
Tranche B Term Loan is subject to the satisfaction, immediately prior to or
concurrently with the making of such Loans, of the following conditions
precedent:
(a) THIS AGREEMENT AND RELATED DOCUMENTS. The Lender shall
have received a counterpart of this Agreement and each of the Related Documents,
duly executed by each of the parties thereto.
(b) ORGANIZATIONAL DOCUMENTS. The Lender shall have received
(i) a copy of the certificate of formation and the operating agreement of the
Borrower, (ii) a copy of the charter and by-laws of SLGM and (iii) a copy of the
charter and by-laws of SLGP, in each case, together with all amendments thereto
and certified to be true, correct and complete by the Secretary or an Assistant
Secretary of the Borrower, SLGM or SLGP, as applicable.
(c) GOOD STANDING CERTIFICATES. The Lender shall have
received certificates from the Secretary of State of the State of New York
evidencing the good standing of the Borrower, SLGM and SLGP.
(d) CORPORATE PROCEEDINGS. The Lender shall have received a
copy of resolutions, in form and substance reasonably satisfactory to it, of (i)
the Principal, in his capacity as the sole member of the Borrower, (ii) the
Board of Directors (or duly empowered committee thereof) of SLGM and (iii) the
Board of Directors (or duly empowered committee thereof) of SLGP, in each case,
authorizing the execution, delivery and performance of this Agreement and the
Related Documents to which it is a party and the consummation of the
transactions hereunder and thereunder certified by its Secretary or an Assistant
Secretary, which certificate shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded as of the date of such
certificate.
21
(e) INCUMBENCY CERTIFICATE. The Lender shall have received a
certificate of the Secretary or an Assistant Secretary of the Borrower, SLGM and
SLGP as to the incumbency and signature of its officers authorized to sign this
Agreement and the Related Documents to which it is a party.
(f) LEGAL OPINION OF COUNSEL TO THE BORROWERS. The Lender
shall have received an executed legal opinion, addressed to the Lender, of
counsel to the Borrower, the Principal, SLGM and SLGP, in substantially the form
set forth in Exhibit K.
(g) COLLATERAL. The Lender shall have received (i) all
certificates or other instruments representing any interests or other securities
pledged as Collateral, together with executed and undated stock powers or
assignments in blank, and (ii) evidence that all filings and other actions
necessary to perfect the Lender's security interest in the Collateral have been
made or taken and that the Lender's Lien on the Collateral has priority over any
other Liens, other than Permitted Liens.
(h) APPROVALS. All governmental and third party consents and
approvals necessary in connection with this Agreement and the Related Documents
(including, without limitation, any consents of any partners and lenders
required in order to pledge the interests to be pledged under the SLGP Pledge
Agreement) shall have been obtained (without the imposition of any conditions
other than those that are reasonably acceptable to the Lender) and shall remain
in effect and no law or regulation shall be applicable which, in the judgment of
the Lender, restrains, prevents, or imposes adverse conditions upon, the
transactions contemplated hereby. The Lender shall have received copies,
certified as true, correct and complete by the Secretary or an Assistant
Secretary of the Borrower, of any and all governmental and third party consents
and approvals necessary in connection with this Agreement and the Related
Documents.
(i) NO LITIGATION. There shall exist no action, suit,
investigation, litigation or proceeding that purports to affect the legality,
validity or enforceability of this Agreement, the Related Documents or any
document to be executed or delivered in connection herewith.
(j) PORTFOLIO EQUITY. The Lender shall have received evidence
that SLGP has an equity interest, as determined by the Lender using such
valuation method as the Lender deems appropriate, in the Portfolio of not less
than $35,000,000.
(k) ORGANIZATIONAL DOCUMENTS. The Lender shall have received
copies of the certificates of limited partnership or formation and the
partnership or operating agreement of each partnership or limited liability
company that directly or indirectly owns any Portfolio property and in which
SLGP has a direct or indirect interest, certified to be true, correct and
complete by the Secretary or an Assistant Secretary of SLGP.
(l) RENT ROLLS. Lender shall have received certified copies
of the rent rolls relating to each Portfolio property from the general partner
or managing member of the owner of such property as the case may be.
22
(m) INSURANCE. The Lender shall have received reasonable
evidence that each of the Borrower, SLGP and SLGM has in effect the insurance
coverages of the type required under this Agreement and the Related Documents,
as applicable.
(n) FEES AND EXPENSES. The Lender shall have received all
amounts payable pursuant to Section 9.6 on or prior to the Closing Date.
(o) ENGAGEMENT LETTER. The Lender shall have received a
fully executed copy of an engagement letter appointing ▇▇▇▇▇▇ Brothers Inc. as
the lead manager of the Initial Public Offering.
(p) OTHER. The Lender shall have received such other
documents, certificates, opinions and financial or other information as it may
reasonably request, and all corporate and other proceedings and all other legal
matters in connection herewith shall be satisfactory in form and substance to
the Lender and its counsel.
5.2 CONDITIONS TO THE TRANCHE A TERM LOAN AND TRANCHE B TERM
LOANS TO BE MADE AFTER THE CLOSING DATE. In addition to the conditions set
forth in Section 5.1, the obligation of the Lender to make any Tranche A Term
Loan or Tranche B Term Loan, including the initial Tranche A Term Loan and the
initial Tranche B Term Loan, is subject to the satisfaction, immediately prior
to or concurrently with the making of such Loans, of the following conditions
precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower pursuant to this Agreement
and the Related Documents to which it is a party, and each of the
representations and warranties contained in any certificate, document or
financial or other statement furnished in connection with this Agreement and the
Related Documents, shall be true and complete in all material respects on and as
of the date of such Loan as if made on and as of such date, except to the extent
such representations and warranties expressly relate to a particular date.
(b) NO DEFAULT. No Default shall have occurred and be
continuing on such date or would occur as a result of such Loan.
(c) NOTICE OF BORROWING. The Lender shall have received the
notice required pursuant to Section 2.1 or 2.2, as applicable.
(d) OFFICER'S CERTIFICATE. The Lender shall have received a
certificate from an appropriate officer of the Borrower certifying as to each of
the conditions set forth in subsections (a) and (b).
(e) FEES. The Lender shall have received the fees payable
pursuant to Section 3.1 and/or 3.2, as applicable.
5.3 ADDITIONAL CONDITIONS TO TRANCHE B TERM LOANS FOR
ACQUISITIONS. In addition to the conditions set forth in subsections 5.1 and
5.2, the obligation of the Lender to
23
make a Tranche B Term Loan to fund any Acquisition is subject to the
satisfaction of the following further conditions precedent:
(a) ACQUISITION PLEDGE AGREEMENT. The Lender shall have
received (i) (A) a counterpart of an Acquisition Pledge Agreement or an
amendment to an existing Acquisition Pledge Agreement, duly executed by the
Acquiror making such Acquisition, pledging to the Lender as Collateral the
equity interests acquired in such Acquisition, (B) all certificates or other
instruments representing any Collateral pledged pursuant to such Acquisition
Pledge Agreement, together with executed and undated stock powers or assignments
in blank, and (C) evidence that all filings and other actions necessary to
perfect the Lender's security interest in the Collateral pledged pursuant to
such Acquisition Pledge Agreement have been made or taken and that the Lender's
Lien on such Collateral has priority over any other Liens or (ii) if in
accordance with Section 2.4(b) no pledge of the equity interests to be acquired
in the Acquisition is required, an agreement, in form and substance satisfactory
to the Lender, duly executed by the Acquiror making the Acquisition, to the
effect provided in Sections 6(h), 7(a), 7(b) and 7(h) of the Acquisition Pledge
Agreement.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments are
in effect or the Notes or any Loan remains outstanding and unpaid or any other
Obligation is owing to the Lender, the Borrower shall:
6.1 FINANCIAL STATEMENTS, REPORTS AND DOCUMENTS. The Borrower
shall deliver to the Lender each of the following:
(a) INTERIM STATEMENTS. As soon as available and in any event
within forty-five (45) days after the end of each fiscal quarter, (i) copies of
the balance sheet of the Borrower as of the end of each such period, and
statements of operations, member's equity and cash flows of the Borrower for
each such period and for the portion of the fiscal year ending with such period,
in each case setting forth in comparative form the figures for the corresponding
period of the preceding fiscal year and (ii) a schedule of the contingent
liabilities of the Borrower, all in reasonable detail, and certified on behalf
of the Borrower by its chief financial officer to fairly represent the financial
position of the Borrower as of such date and to have been prepared in accordance
with GAAP, subject to normal year-end audit adjustments and the absence of full
footnote disclosures;
(b) ANNUAL STATEMENTS. As soon as available and in any event
within ninety (90) days after the close of each fiscal year, copies of the
balance sheet of the Borrower as of the close of such fiscal year and statements
of operations, member's equity and cash flows of the Borrower for such fiscal
year, in each case setting forth in comparative form the figures for the
preceding fiscal year, all in reasonable detail and accompanied by an opinion
thereon (which shall not be qualified by reason of any limitation imposed by the
Borrower) of independent public accountants of recognized national standing
selected by the Borrower, to the effect that such financial statements have been
prepared in accordance with GAAP, and that the examination of such accountants
in connection with such financial statements has been made in
24
accordance with generally accepted auditing standards and, accordingly, includes
such tests of the accounting records and such other auditing procedures as were
considered necessary in the circumstances;
(c) ACCOUNTANTS' CERTIFICATES. Within the period provided in
paragraph (b) above, a certificate of the accountants who render an opinion with
respect to such financial statements, stating that they have reviewed this
Agreement and stating further whether, in making their audit, such accountants
have become aware of any condition or event which would constitute a Default
under any of the terms or provisions of this Agreement and, if any such
condition or event then exists, specifying the nature and period of existence
thereof;
(d) MANAGEMENT REPORTS. Promptly upon receipt thereof by the
Borrower, one copy of each written report submitted to the Borrower by its
independent accountants in any annual, quarterly or special audit made, it being
understood and agreed that all management reports which are furnished to the
Lender pursuant hereto shall be subject to the confidentiality covenant of the
Lender contained in Section 9.12;
(e) SEC FILINGS. Promptly upon the filing thereof, one copy
of each registration statement or prospectus, or other document filed by the
Issuer with any securities exchange or the Securities and Exchange Commission or
any successor agency; and
(f) OTHER INFORMATION. Such other information concerning the
business, properties or financial condition of the Borrower as the Lender shall
reasonably request.
6.2 PAYMENT OF TAXES AND OTHER INDEBTEDNESS. The Borrower
shall pay and discharge: (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits, or upon any property
belonging to it, before delinquent, (ii) all lawful claims (including claims for
labor, materials and supplies) and (iii) all of its Indebtedness as and when
due; PROVIDED, HOWEVER, that the Borrower shall not be required to pay any such
tax, assessment, charge, claim or levy, if and so long as the amount,
applicability or validity thereof is at the time being contested in good faith
by appropriate proceedings and appropriate accruals and reserves therefor have
been established in accordance with GAAP.
6.3 MAINTENANCE OF EXISTENCE AND RIGHTS; CONDUCT OF BUSINESS.
The Borrower shall preserve and maintain its limited liability company existence
and all of its rights, privileges and franchises necessary or desirable in the
normal conduct of its businesses, and conduct its businesses in an orderly and
efficient manner consistent with good business practices and in accordance with
all valid regulations and orders of any Governmental Authority.
6.4 NOTICE OF DEFAULT. Immediately upon becoming aware of the
existence of any condition or event which constitutes a Default, the Borrower
shall furnish to the Lender written notice specifying the nature and period of
existence thereof and the action which the Borrower is taking or proposes to
take with respect thereto.
6.5 OTHER NOTICES. The Borrower shall promptly notify the
Lender of (i) any change which could reasonably be expected to have a Material
Adverse Effect; (ii) the
25
commencement of, or any material determination in, any litigation with any third
party or any proceeding before any Governmental Authority affecting the Borrower
which could reasonably be expected to have a Material Adverse Effect; and (iii)
any material adverse claim against or affecting the Borrower or any of its
properties.
6.6 COMPLIANCE WITH MATERIAL AGREEMENTS. The Borrower shall
comply in all material respects with all material agreements indentures,
mortgages or documents binding on it or affecting its properties or business.
6.7 BOOKS AND RECORDS; ACCESS. The Borrower shall give any
representative or agent of the Lender reasonable access upon reasonable notice
and during business hours and permit such representative or agent to examine,
copy or make excerpts from, any and all books, records and documents in the
possession of the Borrower and relating to the affairs of the Borrower and to
inspect any of the properties of the Borrower. The Borrower shall, and shall
cause each other Acquiror or such other appropriate Person to permit any
representative or agent of the Lender to visit and inspect any property
indirectly acquired in any Acquisition and examine, copy and make abstracts from
the books and records relating to such property upon reasonable notice at any
reasonable time and as often as may be reasonably desired and to discuss the
operations and conditions of such property with the officers and employees of
such Person. The Borrower shall maintain complete and accurate books and
records of its transactions in accordance with good accounting practices.
6.8 COMPLIANCE WITH LAW. The Borrower shall comply with all
applicable constitutions, laws, rules, regulations, judgments, orders,
decisions, rulings and decrees of any Governmental Authority applicable to it or
to any of its properties, business operations or transactions, a violation of
which would have a Material Adverse Effect.
6.9 INSURANCE. The Borrower shall maintain workers'
compensation insurance, liability insurance, casualty insurance and other
insurance on its properties, assets and businesses, now owned or hereafter
acquired, against such casualties, risks and contingencies, and in such types
and amounts, as are consistent with customary practices and standards of
companies engaged in similar businesses.
6.10 AUTHORIZATIONS AND APPROVALS. The Borrower shall promptly
obtain, from time to time at its own expense, all such governmental licenses,
authorizations, consents, permits and approvals as may be required to enable it
to comply with its obligations hereunder.
6.11 ERISA COMPLIANCE. The Borrower shall: (i) at all times,
make prompt payment of all contributions required under all of its Plans and the
minimum funding standard set forth in the Code and ERISA with respect to such
Plans; (ii) within thirty (30) days after the filing thereof, furnish to the
Lender a copy of each annual report/return (Form 5500 Series), as well as all
schedules and attachments required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA, and the regulations
promulgated thereunder, in connection with each Plan for each Plan year;
(iii) notify the Lender immediately of any fact, including, but not limited to,
any Reportable Event arising in connection with any Plan, which might constitute
grounds for termination thereof by the PBGC or for the appointment by the
26
appropriate United States District Court of a trustee to administer such Plan,
together with a statement, if requested by the Lender, as to the reason therefor
and the action, if any, proposed to be taken with respect thereto; and
(iv) furnish to the Lender, upon its request, such additional information
concerning any Plan as may be reasonably requested.
6.12 REIMBURSEMENT FROM ISSUER. The Borrower shall, upon
formation of the Issuer, obtain from the Issuer an unconditional written promise
to reimburse the Borrower for all costs and expenses incurred in connection with
the Initial Public Offering and paid by the Borrower using the proceeds of the
Tranche B Term Loans.
6.13 FURTHER ASSURANCES. The Borrower shall, and shall cause
each of its Affiliates to, make, execute or endorse, and acknowledge and deliver
or file or cause the same to be done, all such notices, certificates and
additional agreements, undertakings, conveyances, transfers, assignments or
other assurances, and take any and all such other action, as the Lender may,
from time to time, deem reasonably necessary or proper in connection with this
Agreement or any of the Related Documents, or the obligations of the Borrower or
its Affiliates hereunder or thereunder.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments are
in effect or the Notes or any Loan remain outstanding and unpaid or any other
Obligation is owing to the Lender hereunder:
7.1 LIMITATION ON INDEBTEDNESS. The Borrower shall not
incur, create, contract, assume, have outstanding, Guarantee or otherwise be or
become, directly or indirectly, liable in respect of any Indebtedness, except
Permitted Indebtedness.
7.2 NEGATIVE PLEDGE. The Borrower shall not create, incur or
permit or suffer to exist any Lien upon any of its properties or assets, now
owned or hereafter acquired, except for Permitted Liens.
7.3 NO RESTRICTIONS. The Borrower shall not, nor shall it
permit any other Acquiror to, allow there to be any restrictions on the sale or
transfer of any shares of stock, partnership interests, membership interests or
assets acquired with the proceeds of any Loan, except for restrictions expressly
consented to by the Lender in writing and restrictions imposed by applicable
law.
7.4 LIMITATION ON INVESTMENTS. The Borrower shall not,
without the prior written consent of the Lender, make or maintain any
Investments, except Permitted Investments and any Acquisition as to which the
Lender has made a Tranche B Term Loan.
7.5 PROHIBITION ON DIVIDENDS. The Borrower shall not make or
declare any Dividend, either directly or indirectly, whether in cash or property
or in obligations of the Borrower; PROVIDED that, if, as of the end of any
fiscal year of the Borrower, (i) the sum of (A) the Borrower's net income for
such period PLUS (B) the sum of any required principal payments
27
of Indebtedness of the Borrower for such period, PLUS (C) the aggregate interest
expense of the Borrower for such period (but only to the extent deducted in
computing net income), PLUS (D) any amortization expenses and other non-cash
changes of the Borrower for such period (but only to the extent deducted in
computing net income) exceeds (ii) the sum of (X) any required principal
payments of Indebtedness of the Borrower for such period, PLUS (Y) the aggregate
interest expense of the Borrower for such period, then the Borrower may at any
time during the 30 day period after the date of delivery to the Lender pursuant
to Section 6.1(b) of the Borrower's audited financial statements for such fiscal
year and a certificate of the Borrower's Chief Financial Officer setting forth
in reasonable detail the computation set forth above, pay a Dividend to the
Principal in an amount equal to such excess, PROVIDED that on the date such
payment is to be made no Default has occurred and is continuing or would result
therefrom. Determination of each of the amounts described in the foregoing
proviso shall be made in accordance with GAAP applied on a basis consistent with
those used in the preparation of the Borrower's audited financial statements
delivered pursuant to Section 6.1(b).
7.6 MATERIAL AGREEMENTS. The Borrower shall not consent to or
permit any alteration, amendment, modification, release, waiver or termination
of any provision of any agreement to which it is a party, including, without
limitation, any agreement governing or relating to any Collateral, if such
action could adversely effect the interest of the Lender or could reasonably be
expected to have a Material Adverse Effect.
7.7 CERTAIN TRANSACTIONS. Except as permitted hereunder, the
Borrower shall not enter into any transaction with an Affiliate upon terms less
favorable to the Borrower than those which the Borrower could obtain in
arm's-length dealings with Persons other than Affiliates.
7.8 ISSUANCE OF INTERESTS. The Borrower shall not issue, sell
or otherwise dispose of its membership interests or other securities, or rights,
warrants or options to purchase or acquire any such interests or other
securities.
7.9 NAME, FISCAL YEAR AND ACCOUNTING METHOD. The Borrower
shall not change its name or fiscal year or, unless required by GAAP, its method
of accounting.
7.10 MERGERS AND SALES OF ASSETS. The Borrower shall not
dissolve or liquidate, or become a party to any merger or consolidation, sell,
transfer, lease or otherwise dispose of any of its property or assets or
business, PROVIDED, HOWEVER, that in connection with the Initial Public
Offering, the Borrower may contribute to the Issuer or a Subsidiary of the
Issuer any equity interest acquired in connection with any Acquisition and such
other assets as the Lender may agree, provided that simultaneously with the
making of such contribution the Borrower makes the prepayment of the Loans
required pursuant to Section 2.3(e).
7.11 LINES OF BUSINESS. The Borrower shall not, directly or
indirectly, change the lines of business in which it currently is engaged or
substantially alter its method of doing business.
28
7.12 NO AMENDMENTS. The Borrower shall not amend its
organizational documents.
7.13 ACQUISITION PROPERTIES. The Borrower shall not, and shall
not permit any Person owning a direct or indirect interest in any Acquisition
Property to, sell, transfer or otherwise dispose of any Acquisition Property, or
any direct or indirect interest in such property, or to finance, or refinance
any Indebtedness encumbering such property, or any direct or indirect interest
in such property, unless the net cash proceeds of any such transaction paid or
payable to the applicable Acquiror or any Affiliate of such Acquiror are applied
to the prepayment of the Tranche B Loans in accordance with Section 2.3 hereof.
SECTION 8. EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT. Each of the following events shall
constitute an Event of Default:
(a) The Borrower shall fail to pay (i) any principal of or
interest on the Loans when due (whether at stated maturity or by prepayment or
otherwise) in accordance with the terms hereof, or (ii) any other amount payable
hereunder or under any Related Document within three (3) Business Days of when
such payment is due in accordance with the terms hereof or thereof;
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any Related Document to which it is a party, or in any
certificate, document or financial or other statement furnished at any time
under or in connection with this Agreement, shall prove to have been incorrect
in any material respect on or as of the date made or deemed made or shall be
breached; or
(c) The Borrower shall default in the observance or
performance of any covenant contained in Sections 2.4, 6.3, (with respect to
maintenance of existence), 6.4, 6.7 or Section 7; or
(d) The Borrower shall default in the observance or
performance of any of the other covenants or agreements contained herein or in
any of the Related Documents and such default shall continue unremedied for a
period of thirty (30) days after notice thereof to the Borrower by the Lender;
or
(e) The Borrower shall, with respect to any Indebtedness
having an outstanding aggregate principal amount in excess of $25,000,
(i) default in any payment of principal of or premium or interest on any
Indebtedness (other than the Notes) beyond any applicable cure period (not to
exceed thirty (30) days), (ii) default in the observance or performance of any
other agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto and such
default shall continue beyond any applicable grace period (not to exceed thirty
(30) days), or (iii) any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or
29
holders) to cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity, or (iv) have any such Indebtedness be
declared to be due and payable, or be required to be prepaid (other than by a
regularly scheduled required prepayment) prior to the stated maturity thereof;
or
(f) The Borrower, the Principal, SLGM or SLGP shall (i) apply
for or consent to the appointment of a receiver, trustee, custodian, intervenor
or liquidator of itself or of all or a substantial part of such Person's assets,
(ii) file a voluntary petition in bankruptcy, admit in writing that such Person
is unable to pay such Person's debts as they become due, or generally not pay
such Person's debts as they become due, (iii) make a general assignment for the
benefit of creditors, (iv) file a petition or answer seeking reorganization or
an arrangement with creditors or to take advantage of any bankruptcy or
insolvency laws, (v) file an answer admitting the material allegations of, or
consent to, or default in answering, a petition filed against such Person in any
bankruptcy, reorganization or insolvency proceeding, or (vi) take corporate
action for the purpose of effecting any of the foregoing;
(g) An involuntary petition or complaint shall be filed
against the Borrower, the Principal, SLGM or SLGP seeking bankruptcy relief or
reorganization or the appointment of a receiver, custodian, trustee, intervenor
or liquidator of such Person, or all or substantially all of such Person's
assets and such petition or complaint shall not have been dismissed within sixty
(60) days of the filing thereof, or an order, order for relief, judgment or
decree is entered by any court of competent jurisdiction or other competent
authority approving or ordering any of the foregoing;
(h) Both the following events shall occur: (i) either (x)
proceedings shall have been instituted to terminate, or a notice of termination
shall have been filed with respect to, any Plan (other than a Multiemployer
Plan) by the Borrower, the PBGC or any representative of any thereof, or any
such Plan shall be terminated, in each case under Section 4041 or 4042 of ERISA,
or (y) a Reportable Event, the occurrence of which would cause the imposition of
a lien under Section 4069 of ERISA, shall have occurred with respect to any Plan
(other than a Multiemployer Plan) and be continuing for a period of sixty (60)
days; and (ii) the sum of the estimated liability to the PBGC under Section 4062
of ERISA and the currently payable obligations of the Borrower to fund
liabilities (in excess of amounts required to be paid to satisfy the minimum
funding standard of Section 412 of the Code) under the Plan or Plans subject to
such event shall exceed ten percent (10%) of the Borrower's net worth at such
time;
(i) Any or all of the following events shall occur with
respect to any Multiemployer Plan to which the Borrower contributes or has
contributed on behalf of its employees: (i) the Borrower incurs a withdrawal
liability under Section 4201 of ERISA; or (ii) any such plan is "in
reorganization" as that term is defined in Section 2441 of ERISA; or (iii) any
such Plan is terminated under Section 4041A of ERISA, and the Lender determines
in good faith that the aggregate liability likely to be incurred by the Borrower
thereof, as a result of all or any of the events specified in subparagraphs (i),
(ii) and (iii) above occurring, shall have a Material Adverse Effect; or
30
(j) One or more judgments or decrees shall be entered against
the Borrower involving in the aggregate a liability (to the extent not paid or
fully covered by insurance and for which the insurer has accepted liability in
writing) of $25,000 or more and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded (if required in order to effect an
appeal) pending appeal within sixty (60) days from the entry thereof; or
(k) The Lender does not have or ceases to have a valid and
perfected first priority security interest (subject to Permitted Liens) in the
Collateral or this Agreement or any of the Related Documents shall cease for any
reason to be in full force and effect in accordance with their terms or any
Person obligated thereunder shall so assert in writing or the Security Documents
shall cease to be effective to grant the Liens purported to be granted thereby
in favor of the Lender or such Liens shall cease to be enforceable or superior
to and prior to the rights of any other Person (subject to Permitted Liens); or
(l) The Principal shall cease to beneficially own 100% of the
issued and outstanding membership interests in the Borrower;
(m) There shall occur any change in the condition (financial
or otherwise) of the Borrower which, in the reasonable opinion of the Lender,
has a Material Adverse Effect; or
(n) Any Affiliates of the Principal shall publicly offer its
securities by means of an underwriting that is not lead managed by ▇▇▇▇▇▇
Brothers Inc.
8.2 REMEDIES. If any Event of Default shall occur and be
continuing, then, and in any such event, (a) if such event is an Event of
Default specified in Section 8.1(f) or (g), automatically the Commitments shall
be terminated and reduced to zero and all Loans (with accrued interest thereon)
and all other amounts owing under this Agreement and the Related Documents shall
immediately become due and payable, and (b) if such event is any other Event of
Default, the Lender may, by notice of default to the Borrower, terminate the
Commitments and declare the Loans (with accrued interest thereon) and all other
amounts owing under this Agreement and the Related Documents to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section 8.2, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
8.3 SET-OFF. In addition to any rights and remedies of the
Lender provided by law, the Lender shall have the right, without presentment,
demand, protest or other notice of any kind to the Borrower or to any other
Person, any such notice being hereby expressly waived by the Borrower, to the
extent permitted by applicable law, upon the occurrence and during the
continuance of any Event of Default, to set-off and apply against the
Obligations any amount owing from the Lender at any of its branches or offices
to the Borrower. The Lender agrees promptly to notify the Borrower after any
such set-off and application made by the Lender, PROVIDED that the failure to
give such notice shall not affect the validity of such set-off and application.
8.4 DEFAULT INTEREST. Notwithstanding any other provision of
this Agreement to the contrary, if the Borrower shall fail to pay any amount
owing to the Lender under this
31
Agreement when due (whether at stated due date, on acceleration or otherwise),
then the Borrower will pay interest to the Lender, payable on demand, on the
amount in default from the date such payment became due until payment in full at
a rate equal to the rate of interest payable on the Loans immediately prior to
the date of such default plus 10% per annum, such rate to change as and when the
Applicable Margin would otherwise change as provided herein.
32
SECTION 9. MISCELLANEOUS
9.1 LIMITATIONS ON RECOURSE. (a) Subject to the
qualifications set forth in this Section 9.1, the Lender shall not enforce the
liability of the Borrower to pay and perform the Obligations by an action or
proceeding wherein a money judgment shall be sought against the Borrower, except
that the Lender may bring a foreclosure action, an action for specific
performance or any other appropriate action or proceeding to enable the Lender
to enforce this Agreement and the Related Documents and realize upon any
Collateral; PROVIDED, HOWEVER, that, except as specifically provided in this
Section, any judgment in any such action or proceeding shall be enforceable
against the Borrower only to the extent of the interest of the Borrower in the
Collateral. By accepting this Agreement and the Related Documents, the Lender
agrees that it shall not ▇▇▇ for, seek or demand any deficiency judgment against
the Borrower in any such action or proceeding under, by reason of or in
connection with this Agreement or the Related Documents. The provisions of this
Section shall not, however: (i) constitute a waiver, release or impairment of
any obligation evidenced or secured by this Agreement or the Related Documents;
(ii) affect the validity or enforceability of any guaranty or indemnity made in
connection with this Agreement or of any Collateral therefor; (iii) impair the
right of the Lender to obtain the appointment of a receiver; (iv) impair the
right of the Lender to bring suit with respect to fraud or intentional
misrepresentation by the Borrower or any other Person in connection with this
Agreement or the Related Documents; or (v) affect the validity or enforceability
of this Agreement or the Related Documents or limit (except as expressly
provided) the liability of the Borrower or any other party thereunder.
(b) Nothing herein shall be deemed to be a waiver of any right
which the Lender may have under Section 506(a), 506(b), 1111(b) or any other
provisions of the U.S. Bankruptcy Code to file a claim for the full amount of
the Loans or to require that all Collateral shall continue to secure all of the
Obligations owing to the Lender in accordance with this Agreement and the
Related Documents.
(c) Notwithstanding the foregoing provisions of this Section or
any other provision in this Agreement or any of the Related Documents, the
Borrower, the Principal, SLGM, SLGP and any other guarantor of the Loans shall
be fully liable for and shall indemnify the Lender for any and all loss, cost,
liability, judgment, claim, damage or expense sustained, suffered or incurred by
the Lender (including, without limitation, Lender's reasonable attorneys' fees)
arising out of or attributable or relating to:
(i) Physical waste of all or any portion of the Collateral,
any property in which the Collateral represents a direct or indirect
interest or any property included in the Portfolio;
(ii) The wrongful removal or disposal of any portion of the
Collateral, any property in which the Collateral represents a direct or
indirect interest or any property included in the Portfolio after a
Default under this Agreement or any of the Related Documents;
33
(iii) The failure to have in effect the insurance coverages
required under this Agreement or any of the Related Documents, which
failure continues unremedied for a period of thirty (30) days after
notice thereof to the party obligated to maintain such insurance and the
Borrower by the Lender; and
(iv) The breach of any indemnification obligation owing to the
Lender or any other indemnitee under this Agreement or any of the
Related Documents which breach continues unremedied for a period of
thirty (30) days after notice thereof to the breaching party and the
Borrower by the Lender;
(d) Notwithstanding the foregoing, the agreement of the
Lender not to pursue recourse liability as set forth in subsection (a) above
SHALL BECOME NULL AND VOID and shall be of no further force or effect in the
event: (i) of a voluntary bankruptcy or insolvency proceeding of the Borrower,
the Principal, SLGM, SLGP or any other guarantor of the Loans; (ii) of the
Borrower's, SLGP's or any other guarantor's failure to permit or cause its
Affiliates to permit, as applicable, inspections of properties, books and
records as provided herein or in any of the other Related Documents or to
provide financial reports and information as required by this Agreement; (iii)
any financial information concerning the Borrower, the Principal, SLGM, SLGP or
any other guarantor of the Loans proving to be fraudulent or misrepresenting in
any material respect the financial condition of the Borrower, the Principal,
SLGM, SLGP or any other guarantor of the Loans; (iv) the misapplication or
conversion of any distributions, insurance proceeds, awards, rents, issues,
profits, proceeds, accounts, or other amounts received by the Borrower, the
Principal, SLGM, SLGP or any other guarantor of the Loans; (v) fraud or material
misrepresentation by the Borrower, the Principal, SLGM, SLGP or any other
guarantor of the Loans in connection with the Loans; (vi) the gross negligence
or willful misconduct of the Borrower, the Principal, SLGM, SLGP or their
respective agents or employees; or (vii) the Borrower, the Principal, SLGM, SLGP
or any other guarantor of the Loans contests the validity or enforceability of
this Agreement or any of the Related Documents and/or asserts defenses for the
sole purpose of delaying, hindering, or impairing the Lender's rights or
remedies under this Agreement or the Related Documents.
9.2 AMENDMENTS. This Agreement may be amended, or any
provision waived, only by an instrument in writing executed by each of the
Borrower and the Lender. Any waiver given shall be effective only in the
specific instance and for the specific purpose for which it is given.
9.3 NOTICES. Except as expressly otherwise provided herein,
all notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy or telex), and shall be
deemed to have been duly given or made when delivered by hand, or one Business
Day after being sent by overnight mail, or five (5) Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
acknowledged as received addressed as follows, or to such other address as may
be hereafter notified by the respective parties hereto and any future holders of
the Notes:
34
The Lender: ▇▇▇▇▇▇ Brothers Holdings Inc.
3 World Financial Center
New York, New York 10285
Attn: ▇▇▇ ▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of each such notice to:
▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: G. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Borrower: Green Realty LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of each such notice to:
▇.▇. ▇▇▇▇▇ Properties, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ ▇. Ivanhoe
Greenburg, Traurig, Hoffman, Lipoff,
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
35
PROVIDED that any notice to the Lender pursuant to Section 2 shall not be
effective until actually received. Any notice, request or demand received on a
day which is not a Business Day shall be deemed to have been received on the
next following Business Day.
9.4 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Lender, of any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided at law, in equity or otherwise.
9.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Related Documents.
9.6 PAYMENT OF LENDER'S EXPENSES, INDEMNITY, ETC. The
Borrower shall:
(a) whether or not the transactions hereby contemplated are
consummated, pay all out-of-pocket costs and expenses of the Lender in
connection with the closing of the Loans made pursuant to this Agreement up to a
limit of $40,000; PROVIDED, HOWEVER, that any unused portion of the loan
application fee of $25,000, heretofore paid to the Lender, shall be credited
against such costs and expenses;
(b) pay, and hold the Lender harmless from and against, any
and all present and future stamp, excise and other similar taxes and hold the
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
the Lender) to pay such taxes; and
(c) indemnify the Lender, its officers, directors, employees,
representatives and agents and any persons or entities owned or controlled by,
owning or controlling, or under common control or Affiliated with Lender (each
an "INDEMNITEE") from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitee in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto) that may at any time (including, without
limitation, at any time following the payment of the Obligations) be imposed on,
asserted against or incurred by any Indemnitee as a result of, or arising out
of, or in any way related to or by reason of, (i) any of the transactions
contemplated under, or the execution, delivery or performance of, this Agreement
or any of the Related Documents, (ii) the breach of any of the Borrower's, the
Principal's, SLGM's or SLGP's representations and warranties or of any of their
respective agreements or obligations hereunder or under any of the Related
Documents to which it is a party, and (iii) the exercise by the Lender of its
rights and remedies (including, without limitation, foreclosure) under this
36
Agreement or any Related Document (but excluding, as to any Indemnitee, any such
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements to the extent incurred solely by reason
of the gross negligence or willful misconduct of such Indemnitee as finally
determined by a court of competent jurisdiction). Borrower's obligations under
this subsection shall survive the termination of this Agreement and the payment
of the Obligations.
9.7 BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lender, all future holders of the Notes and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of the
Lender.
(b) The Lender shall have the right to enter into one or more
participations, sales or assignments of all or any portion of any Loan.
9.8 HEADINGS. The Section and subsection headings in this
Agreement are for convenience of reference only and shall not affect the
interpretation hereof.
9.9 GOVERNING LAW. THIS AGREEMENT AND THE RELATED DOCUMENTS
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE
RELATED DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9.10 SUBMISSION TO JURISDICTION. The Borrower hereby
irrevocably and unconditionally: (i) submits for itself and its property in any
legal action or proceeding relating to this Agreement or any Related Document,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive jurisdiction of the courts of the State of New York, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof; (ii) consents that any such action or
proceeding may be brought in such courts, and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same; (iii) agrees that service of process in
any such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Borrower at its address set forth in or designated
pursuant to Section 9.2; and (iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction.
9.11 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS
AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY AS
TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT.
37
9.12 CONFIDENTIALITY. The Lender agrees to hold any non-public
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure to (i) employees, directors, agents, legal
counsel, accountants and other professional advisors on a need-to-know basis,
(ii) regulatory officials, (iii) as required by law or legal process or in
connection with any legal proceeding, and (iv) another financial institution in
connection with a disposition or proposed disposition of the Lender's interests
hereunder or under the Related Documents, upon execution by such institution of
an agreement to keep such information confidential to the extent described in
this Section 9.12. Notwithstanding (ii) and (iii) above, in the event that the
Lender is requested pursuant to, or required by, applicable law, regulation,
legal process, or Governmental Authority to disclose any such information, the
Lender will provide the Borrower with prompt notice of such request or
requirement in order to enable the Borrower to seek an appropriate protective
order or other remedy, or to consult with the Lender with respect to the
Borrower's taking steps to resist or narrow the scope of such request or legal
process. If, in such event, the Borrower has not provided the Lender with a
protective order or other remedy in sufficient time, for the Lender, acting in
good faith and otherwise in its sole discretion, to avoid unlawful nondisclosure
of such information, the Lender may disclose such information pursuant to such
law, regulation, or in such legal process, or to such Governmental Authority, as
the case may be, without any recourse or remedy against the Lender by the
Borrower which the Borrower hereby expressly waives.
38
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇ ▇▇▇
---------------------------------
Name: ▇▇▇ ▇▇▇
Title: Vice President
GREEN REALTY LLC
By: ▇.▇. ▇▇▇▇▇ Properties, Inc.
its sole member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
39
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
Amendment No. 1, dated as of the ____ day of June, 1997, to the Credit
Agreement, dated as of March 24, 1997 (the "Credit Agreement"), among Green
Realty LLC (the "Borrower") and ▇▇▇▇▇▇ Brothers Holdings Inc. (the "Lender").
WHEREAS, the Borrower has requested that the Lender increase the
Tranche B Commitment under the Credit Agreement; and
WHEREAS, the Lender has agreed to such request on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration (the receipt and adequacy of which are hereby
acknowledged), the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein which are defined
in the Credit Agreement and not otherwise defined herein are used herein as
defined therein.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "Applicable Margin" Section 1.1 of the Credit
Agreement is amended in its entirety to read as follows:
"APPLICABLE MARGIN": shall mean (x) with respect to that portion of
the outstanding principal amount of Tranche B Loans not exceeding
$15,000,000 for any period set forth below, the amount per annum set
forth opposite such period:
PERIOD RATE
Closing Date to but not
including September 24, 1998 2.75%
September 24, 1998 to but not
including ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇
applicable) 3.75%
(y) for that portion of the outstanding principal amount of Tranche B
Loans in excess of $15,000,000 for any period set forth below, the
amount per annum set forth opposite such period (as such rate may be
increased pursuant to clause (z):
PERIOD RATE
Closing Date to and including
December 31, 1997 2.75%
From and including January 1,
1998 and thereafter 3.75%
and (z) for that portion of the outstanding principal amount of
Tranche B Loans in excess of $20,000,000 for any period set forth
below, the amount per annum set forth opposite such period:
PERIOD RATE
From and including September 24,
1998 and thereafter 4.75%
(b) The first sentence of Section 2.2(a) of the Credit Agreement is
amended by deleting the figure "$15,000,000" and replacing it with
"$26,000,000".
(c) The reference to "Tranche B Term Note" in Section 2.2(g) of the
Credit Agreement is amended to mean the Tranche B Note annexed hereto as Exhibit
A.
(d) Section 3.2(b) of the Credit Agreement is amended in its entirety
to read as follows:
(b) On each date on or before the close of business on December 31,
1997 on which the principal of any Tranche B Term Loan is repaid or
prepaid, the Borrower shall pay to the Lender a fee equal to 1% of the
principal amount of the Tranche B Term Loan repaid or prepaid;
provided that the aggregate fees payable with respect to such
repayments or prepayments made in 1997 shall not exceed $150,000. On
each date after December 31, 1997 on which the principal of any
Tranche B Term Loan is repaid or prepaid, the Borrower shall pay to
the Lender a fee equal to (i) in the case of repayments and
prepayments made after December 31, 1997 and not exceeding $20,000,000
in aggregate principal amount, 1% of the principal amount of the
Tranche B Term Loans repaid or prepaid and (ii) in the case of
repayments or prepayments exceeding $20,000,000 in aggregate principal
amount, 2% of the principal amount of such excess.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Lender to
enter into this Amendment No. 1, Borrower makes the following representations
and warranties to the Lender which shall survive the execution and delivery
hereof:
(a) The execution and delivery of this Amendment No. 1 has been
authorized by all necessary action on the part of Borrower and its members, this
Amendment No. 1 has been duly executed and delivered by the Borrower, and this
Amendment No. 1 and the Credit Agreement, as amended hereby constitute the
legal,
- NEXTRECORD -
valid and binding obligations of the Borrower enforceable in accordance with
their respective terms subject to applicable bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally, moratorium
laws from time to time in effect and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(b) Neither the execution and delivery of this Amendment No. 1, nor
the consummation by the Borrower of the transactions herein contemplated, nor
compliance by the Borrower with the terms, conditions and provisions hereof will
conflict with or result in a breach of any of the terms, conditions or
provisions of (i) the organizational documents of the Borrower; (ii) any other
agreement or instrument to which the Borrower is now a party or by which it or
its property is, or may be, bound, or constitute a default thereunder, or result
thereunder in the creation or imposition of any security interest, mortgage,
lien, charge or encumbrance of any nature whatsoever upon any of the properties
or assets of the Borrower; (iii) any judgment or order, writ, injunction or
decree of any court; or (iv) any requirement of law;
(c) No action of, or filing with, any governmental or public body or
authority is required to authorize, or is otherwise required in connection with
the execution, delivery and performance of this Amendment No. 1 by the Borrower;
and
(d) The representations and warranties set forth in Section 4 of the
Credit Agreement are true and correct as of the date hereof.
4. CONDITIONS PRECEDENT. This Amendment No. 1 shall not be
effective until the Lender shall have received duly executed originals of the
following documents:
(a)This Amendment No. 1 executed by the Borrower;
(b) Acknowledgments and Consents from the parties to the Related
Documents with respect to this Amendment No. 1 in form and substance
satisfactory to the Lender;
(c) a replacement Tranche B Term Note in the form annexed hereto as
Exhibit A, executed by the Borrower; and
(d) A favorable opinion of counsel to the Borrower and the parties to
the Related Documents in form and substance satisfactory to Lender.
5. EXPENSES. The Company shall pay all reasonable expenses,
including, without limitation, the reasonable legal fees incurred by Lender in
connection with the preparation, negotiation, execution and delivery and review
of this Amendment No. 1, and all other documents and instruments executed in
connection with this transaction.
6. REFERENCES TO CREDIT AGREEMENT. The Credit Agreement is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects except that after giving effect to this Amendment No.
1 all references in the Credit Agreement to "this Agreement", "hereto",
"hereof", "hereunder" or words of like import referring to the Credit Agreement
shall mean the Credit Agreement, as amended.
- NEXTRECORD -
7. AMENDMENT NO. 1. This Amendment No. 1 is limited as written and
shall not be deemed (i) to be an amendment of or a consent under or waiver of
any other term or condition of the Credit Agreement, or any of the various
agreements guaranteeing or securing the obligations of the Borrower under the
Credit Agreement or (ii) to prejudice any right or rights which the Lender now
has or may have in the future under or in connection with the Credit Agreement
or such other agreements except as expressly waived hereby.
8. GOVERNING LAW. This Amendment No. 1, including the validity
thereof and the rights and obligations of the parties hereunder, shall be
construed in accordance with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
this ____ day of June, 1997.
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: ______________________________
Name:
Title:
Green Realty LLC
By: ▇.▇. ▇▇▇▇▇ Properties, Inc.
its sole member
By: ______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
- NEXTRECORD -