Exhibit 10.21
CREDIT AGREEMENT
among
▇▇▇▇▇▇▇▇ PROPERTIES ACQUISITION PARTNERS, L.P.,
as Borrower
COMMERZBANK AG, NEW YORK BRANCH,
as Administrative Agent
and
THE LENDERS NAMED HEREIN,
as Lenders
As of
MARCH 16, 2001
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent
FLEET NATIONAL BANK,
as Syndication Agent
COMMERZBANK AG, NEW YORK BRANCH,
as Sole Arranger and Sole Book Runner
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS AND TERMS.............................................1
1.1 Definitions.......................................................1
1.2 Time References..................................................16
1.3 Other References.................................................16
1.4 Accounting Principles............................................16
SECTION 2 TERM LOANS.......................................................17
SECTION 3 TERMS OF PAYMENT.................................................17
3.1 Notes and Payments...............................................17
3.2 Interest and Principal Payments..................................17
(a) Interest Payments...........................................17
(b) Principal Payments..........................................18
(c) Voluntary Prepayment........................................18
3.3 Interest Options.................................................18
3.4 Selection of Interest Option.....................................18
3.5 Default Rate.....................................................19
3.6 Interest Recapture...............................................19
3.7 Interest Calculations............................................19
3.8 Maximum Rate.....................................................19
3.9 Order of Application.............................................20
3.10 Sharing of Payments, Etc.........................................20
3.11 Booking Borrowings...............................................20
3.12 Basis Unavailable or Inadequate for the Eurodollar Rate..........21
3.13 Additional Costs.................................................21
3.14 Change in Governmental Requirement...............................22
3.15 Funding Loss.....................................................23
3.16 Foreign Lenders..................................................23
3.17 Fees.............................................................23
(a) Treatment of Fees............................................23
(b) Agent Fees...................................................23
3.18 Option to Replace Lenders........................................23
SECTION 4 UNENCUMBERED PROPERTIES; GUARANTIES..............................24
4.1 Unencumbered Properties..........................................24
4.2 Negative Pledge Agreements.......................................25
4.3 Guaranties.......................................................25
4.4 Unencumbered Properties Held by Consolidated Affiliates..........25
4.5 Minimum Unencumbered Property Value..............................26
SECTION 5 CONDITIONS PRECEDENT.............................................26
5.1 Conditions to Initial Borrowings.................................26
5.2 Conditions to all Borrowings.....................................28
5.3 Conditions Generally.............................................28
(i)
SECTION 6 REPRESENTATIONS AND WARRANTIES...................................28
6.1 Purpose of Credit Facility.......................................28
6.2 Existence, Good Standing, Authority and Compliance...............28
6.3 Affiliates.......................................................29
6.4 Authorization and Contravention..................................29
6.5 Binding Effect...................................................29
6.6 Financial Statements; Fiscal Year................................29
6.7 Litigation.......................................................29
6.8 Taxes............................................................29
6.9 Environmental Matters............................................30
6.10 Employee Plans...................................................30
6.11 Properties; Liens................................................30
6.12 Locations........................................................30
6.13 Government Regulations...........................................30
6.14 Transactions with Affiliates.....................................31
6.15 Insurance........................................................31
6.16 Labor Matters....................................................31
6.17 Solvency.........................................................31
6.18 Full Disclosure..................................................31
6.19 Exemption from ERISA; Plan Assets................................31
SECTION 7 AFFIRMATIVE COVENANTS............................................31
7.1 Items to be Furnished............................................31
7.2 Use of Proceeds..................................................33
7.3 Books and Records................................................33
7.4 Inspections......................................................33
7.5 Taxes............................................................33
7.6 Payment of Obligations...........................................33
7.7 Expenses.........................................................33
7.8 Maintenance of Existence, Assets, and Business...................33
7.9 Insurance........................................................34
7.10 Preservation and Protection of Rights............................34
7.11 Environmental Laws...............................................34
7.12 INDEMNIFICATION..................................................34
7.13 REIT Status......................................................35
7.14 ERISA Exemptions.................................................35
7.15 Listed Company...................................................35
SECTION 8 NEGATIVE COVENANTS...............................................35
8.1 Payment of Obligations...........................................35
8.2 Employee Plans...................................................36
8.3 Transactions with Affiliates.....................................36
8.4 Compliance with Governmental Requirements and Documents..........36
8.5 Loans, Advances, and Investments.................................36
8.6 Distributions and Redemptions....................................36
8.7 Sale of Assets...................................................37
8.8 Mergers and Dissolutions.........................................37
(ii)
8.9 Assignment.......................................................37
8.10 Fiscal Year and Accounting Methods...............................37
8.11 New Businesses...................................................37
8.12 Government Regulations...........................................37
8.13 Amendment of Constituent Documents...............................37
SECTION 9 FINANCIAL COVENANTS..............................................38
9.1 Minimum Tangible Net Worth.......................................38
9.2 Total Indebtedness to Total Assets...............................38
9.3 Maximum Secured Debt.............................................38
9.4 Recourse Debt....................................................38
9.5 Interest and Debt Service Coverage Ratios........................38
SECTION 10 DEFAULT..........................................................39
10.1 Payment of Obligation............................................39
10.2 Covenants........................................................40
10.3 Debtor Relief....................................................40
10.4 Judgments and Attachments........................................40
10.5 Government Action................................................40
10.6 Misrepresentation................................................40
10.7 Default Under Other Agreements...................................41
10.8 Validity and Enforceability of Loan Documents....................41
10.9 Management Changes...............................................41
10.10 Change in Control................................................41
10.11 Plan Assets......................................................41
10.12 Termination of Credit Facility...................................41
SECTION 11 RIGHTS AND REMEDIES..............................................42
11.1 Remedies Upon Default............................................42
11.2 Waivers..........................................................42
11.3 Performance by Administrative Agent..............................42
11.4 Not in Control...................................................42
11.5 Course of Dealing................................................42
11.6 Cumulative Rights................................................43
11.7 Application of Proceeds..........................................43
11.8 Certain Proceedings..............................................43
SECTION 12 AGENTS AND LENDERS...............................................43
12.1 Agents...........................................................43
12.2 Expenses.........................................................45
12.3 Proportionate Absorption of Losses...............................45
12.4 Delegation of Duties; Reliance...................................45
12.5 Limitation of Agents' Liability..................................46
12.6 Default..........................................................47
12.7 Limitation of Liability..........................................47
12.8 Relationship of Lenders..........................................47
12.9 Benefits of Agreement............................................47
12.10 Approval of Lenders..............................................47
(iii)
12.11 Other Agents; Lead Arrangers.....................................48
SECTION 13 MISCELLANEOUS....................................................48
13.1 Headings.........................................................48
13.2 Nonbusiness Days; Time...........................................48
13.3 Communications...................................................48
13.4 Form and Number of Documents.....................................48
13.5 Survival.........................................................48
13.6 Governing Law....................................................48
13.7 Invalid Provisions...............................................49
13.8 Venue; Service of Process; Jury Trial............................49
13.9 Amendments, Consents, Conflicts, and Waivers.....................50
13.10 Multiple Counterparts............................................50
13.11 Successors and Assigns; Participations...........................51
13.12 Discharge Only Upon Payment in Full; Reinstatement
in Certain Circumstances.........................................52
13.13 Entirety.........................................................52
(iv)
(v)
(vi)
(vii)
SCHEDULES AND EXHIBITS
Schedule 1 Parties, Addresses, Term Loan Amounts, and Wiring Information
Schedule 2 Terramics Entities
Schedule 4.1 Initial Unencumbered Properties
Schedule 4.2-1 Maryland Properties
Schedule 4.2-2 Northeast Region Properties
Schedule 6.2 Jurisdictions of Incorporation, Chief Executive Office, and Jurisdictions
Schedule 6.7 Litigation
Schedule 6.9 Environmental Matters
Schedule 6.14 Affiliates Transactions
Exhibit A Borrowing Request
Exhibit B Compliance Certificate
Exhibit C-1 Form of PPT Guaranty
Exhibit C-2 Form of Subsidiary Guaranty
Exhibit D Form of Note
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Counsel Opinion
(viii)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of March 16, 2001 (the "Closing Date"),
among ▇▇▇▇▇▇▇▇ PROPERTIES ACQUISITION PARTNERS, L.P., a Delaware limited
partnership ("Borrower"), each of the lenders that are a signatory hereto or
that becomes a signatory hereto as provided in Section 13.11(c) (individually,
together with its successors and assigns, a "Lender" and collectively, the
"Lenders"), and COMMERZBANK AG, NEW YORK BRANCH, as Administrative Agent (in
such capacity, together with its successors and assigns, "Administrative
Agent").
R E C I T A L S:
- - - - - - - -
1. Borrower has requested that Lenders extend to Borrower a term loan in
the original principal amount of $75,000,000.
2. Lenders are willing to provide the requested credit on the terms and
subject to the conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1)
DEFINITIONS AND TERMS
a) Definitions. Unless otherwise indicated, as used in the Loan Documents:
"Adjusted Aggregate EBITDA" means, for any period, (a) Aggregate EBITDA,
minus (b) the EBITDA Adjustments for all Properties.
"Adjusted Property EBITDA" means, for any Property, the product of (a) the
difference between (i) the EBITDA of such Property, minus (ii) the EBITDA
Adjustments for such Property, in each case for the three (3) month period
ending on the last day of the fiscal quarter immediately preceding such
determination date, times (b) four (4). For Properties owned for less than three
(3) months as of the date of determination, EBITDA of all such Properties shall
be equal to the lesser of (I) the product of (x) the Approved Costs of such
Properties, times (y) eight percent (8%), and (II) Borrower's most-recent asset
manager's forecasts for the EBITDA of such Properties for the first (1st)
calendar quarter following acquisition thereof; provided that if Administrative
Agent shall reasonably determine that such amount is not an appropriate
computation of EBITDA of any such Property, then EBITDA for all such Properties
shall be based upon the most recent three (3) month period available.
"Administrative Agent" is defined in the preamble.
"Affiliate" of a Person means any other individual or entity who directly
or indirectly controls, or is controlled by, or is under common control with,
that Person. For purposes of this definition "control," "controlled by," and
"under common control with" mean possession, directly or indirectly, of power to
direct (or cause the direction of) management or policies (whether through
ownership of Stock, by contract, or otherwise).
"Agents" means, collectively, Administrative Agent and any other Person
identified as an agent or co-agent on the cover page or signature pages of this
Agreement or pursuant to any provision of this Agreement, and "Agent" means any
one of the Agents.
"Aggregate EBITDA" means, for the Companies for any period, (a) EBITDA of
the Companies, minus (b) the Companies' Share of recognized net income of
Unconsolidated Affiliates, plus (c) the Companies' Share of EBITDA of
Unconsolidated Affiliates (other than Broadmoor), to the extent a Company is
entitled to such amounts under the Constituent Documents of the applicable
Unconsolidated Affiliate.
"Agreement" means this Credit Agreement, as modified, amended,
supplemented, or restated from time to time.
"Applicable Amount" means (a) with respect to a Contract Property, the
lesser of (i) the purchase price of such Contract Property (or the Stock of the
Person that owns such Contract Property), and (ii) the maximum personal
liability of the Companies to pay such purchase price as determined by Borrower
in a manner reasonably acceptable to Administrative Agent, and (b) with respect
to a Development Property, the unpaid balance of any Liabilities incurred to
finance the costs of constructing or developing such Development Property to the
extent that a Company is obligated (as guarantor or otherwise) with respect to
such Liabilities.
"Applicable Margin" means, at the time of determination thereof, the
interest margin over the Eurodollar Rate and the Base Rate, as the case may be,
based upon the Index Ratio as follows:
=========================================================================================
Index Ratio Applicable Margin for Applicable Margin for
Eurodollar Borrowings Base Rate Borrowings
=========================================================================================
Greater than or equal to 0.50 to 1.0 1.75% 0.25%
-----------------------------------------------------------------------------------------
Less than 0.50 to 1.0 but greater than or 1.50% 0%
equal to 0.45 to 1.0
-----------------------------------------------------------------------------------------
Less than 0.45 to 1.0 but greater than or 1.375% 0%
equal to 0.35 to 1.0
Less than 0.35 to 1.0 1.25% 0%
=========================================================================================
The Index Ratio shall be determined from the Current Financials and Compliance
Certificate delivered to Administrative Agent pursuant to Section 7.1; provided
that the initial Applicable Margin shall be based upon the most-recent
Compliance Certificate delivered pursuant to the Existing Line of Credit. The
adjustment, if any, to the Applicable Margin shall be effective commencing on
the fifth (5th) Business Day after delivery of such Current Financials and
Compliance Certificate pursuant to Section 7.1. If Borrower fails at any time to
furnish to Administrative Agent the Current Financials and Compliance
Certificate as required to be delivered pursuant to Section 7.1, then the
maximum Applicable Margin shall apply until such time as such Current Financials
and Compliance Certificate are so delivered.
"Approved Costs" means, for any Property, the sum of the acquisition,
construction, and other capitalized costs of such Property (or the Stock of the
Company that owns such Property), whether in the form of cash, property,
liabilities assumed, or other consideration.
"Assumed Interest Expense" means, as of any date, the product of (a) the
aggregate amount of all Unsecured Debt of the Companies as of such date, times
(b) the weighted average interest rate per annum on all such Unsecured Debt as
of such date.
"Base Rate" means, for any day, the greater of (a) the sum of the Federal
Funds Rate plus one-half of one percent (0.5%), and (b) the annual interest rate
most recently announced by Administrative Agent as its prime rate (or, if the
Person then acting as Administrative Agent under this Agreement is not a bank
organized under the Governmental Requirements of the United States or any State,
then the rate announced by Bank One, NA, or any successor thereof, as its prime
rate) in effect at its principal office, automatically fluctuating upward and
downward with and as specified in each announcement without special notice to
Borrower or any other Person (which prime rate may not necessarily represent the
lowest or best rate actually charged to a customer).
"Base Rate Borrowing" means a Borrowing bearing interest at the Base Rate
plus the Applicable Margin.
"Binding Agreement" means a binding agreement pursuant to which a Company
has agreed to purchase a Contract Property or a Development Property from
another Person and in which such Person may enforce rights and remedies at law
or in equity against a Company for failure to purchase such Contract Property or
Development Property and which remedies are not limited to retaining ▇▇▇▇▇▇▇
money, escrow, liquidated damages not to exceed ten percent (10%) of the
applicable purchase price, or other deposits of a Company or similar limitations
on the liability of any Company.
"Borrowing" means (without duplication) any amount disbursed by (a) Lenders
to or on behalf of Borrower under the Loan Documents, or (b) any Lender in
accordance with, and to satisfy the obligations of Borrower under, any Loan
Document.
"Borrowing Request" means a request substantially in the form of Exhibit A.
"Broadmoor" means Broadmoor Austin Associates, a Texas joint venture.
"Business Day" means (a) for all purposes, any day other than Saturday,
Sunday, and any other day that commercial banks are authorized by any
Governmental Requirement to be closed in New York, and (b) for purposes of any
Eurodollar Borrowing, a day that satisfies the requirements of clause (a) and is
a day when commercial banks are open for domestic or international business in
London.
"Capital Expenditures" means any expenditures by a Person for an asset that
will be used in years subsequent to the year in which the expenditure is made or
which is properly classified in the relevant financial statements of such Person
in accordance with GAAP as a capital asset.
"Capital Lease" means, for any Person, any capital lease or sublease that
has been (or under GAAP should be) capitalized on a balance sheet of such
Person.
"Cash Equivalents" means (a) investments and direct obligations of the
United States of America or any agency thereof, or obligations fully guaranteed
by the United States of America or any agency thereof,
provided that such obligations mature within one (1) year of the date of
acquisition thereof, (b) commercial paper rated "A-1" or higher according to S &
P or "P-1" or better according to ▇▇▇▇▇'▇ and maturing not more than one hundred
and eighty (180) days from the date of acquisition thereof, (c) time deposits
with, and certificates of deposit and bankers' acceptances issued by, any Agent
or any United States bank having capital surplus and undivided profits
aggregating at least $1,000,000,000, and (d) mutual funds whose investments are
limited to the foregoing.
"Change in Control" means, with respect to Borrower, the transfer of
beneficial ownership of the outstanding partnership interests of Borrower such
that PPT owns, directly or indirectly, less than fifty-one percent (51%) of the
outstanding partnership interests of Borrower.
"Closing Date" is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated thereunder.
"Companies" means, without duplication, (a) PPT, (b) Borrower, and (c) each
of their respective Consolidated Affiliates, and "Company" means any one of the
Companies.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit B and signed by a Responsible Officer of Borrower and PPT.
"Consolidated Affiliate" means, in respect of any Person, any other Person
in whom such Person holds an equity or ownership interest and whose financial
results would be consolidated under GAAP with the financial results of such
Person on the consolidated financial statements of such Person.
"Constituent Documents" means, with respect to any Person, its articles or
certificate of incorporation, bylaws, partnership agreements, organizational
documents, limited liability company agreements, trust agreement, or such other
document as may govern such Person's formation, organization, and management.
"Contract Property" means a real estate property that a Company has agreed
to purchase directly or indirectly (through the purchase of Stock) from a Person
that is not a Company.
"Credit Parties" means Agents and Lenders, and "Credit Party" means any one
of the Credit Parties.
"Current Financials" means, at any time, the consolidated Financial
Statements of the Companies most recently delivered to Administrative Agent
under Section 7.1(a) or 7.1(b), as the case may be.
"Customary Recourse Exceptions" means with respect to any Non-Recourse
Debt, exclusions from the exculpation provisions with respect to such
Non-Recourse Debt for fraud, misapplication of cash, environmental claims,
breach of representations or warranties, failure to pay taxes and insurance, and
other circumstances customarily excluded by institutional lenders from
exculpation provisions and/or included in separate indemnification agreements in
non-recourse financings of real estate.
"Debt Service" means, for the Companies on a consolidated basis for any
period, the sum of all regularly scheduled principal payments (but excluding any
regularly scheduled principal payments on any Indebtedness which pays such
Indebtedness in full, but only to the extent that the amount of such final
payment
is greater than the scheduled principal payment immediately preceding such final
payment) and all Interest Expense that are paid or payable during such period in
respect of all Liabilities of the Companies.
"Debtor Relief Laws" means Title 11 of the United States Code and all other
applicable state or federal liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments, or similar Governmental Requirements affecting creditors' Rights in
effect from time to time.
"Default" is defined in Section 10.
"Defaulting Lender" means, as of any date, any Lender that has defaulted on
any of its obligations under this Agreement, which default has not been cured or
waived as of such date.
"Default Rate" means an annual rate of interest equal from day-to-day to
the lesser of (a) the then-existing Base Rate plus the Applicable Margin plus
four percent (4%), and (b) the Maximum Rate.
"Development Property" means a real estate property that is under
construction or development by a Person that is not a Company and that a Company
has agreed to purchase or lease (pursuant to a master lease or ground lease of
all or substantially all of the property) upon completion of such construction
or development.
"Distribution" means, with respect to any Stock issued by a Person, (a) the
declaration or payment of any dividend or distribution on or with respect to
such Stock by such Person, (b) any loan or advance by that Person to, or other
investment by that Person in, the holder of any of such Stock, and (c) any other
payment by that Person with respect to such Stock (other than a Redemption).
"Dresdner Agreement" means that certain Amended and Restated Credit
Agreement dated as of December 14, 1998, executed by Borrower, Dresdner Bank AG,
New York Branch and Grand Cayman Branch, as Administrative Agent, the
Syndication Agent defined therein, the Documentation Agent defined therein, and
the Lenders defined therein.
"EBITDA" means, for any Person or any Property for any period, the sum of
(a) Net Income, plus (b) depreciation and amortization expense, plus (c)
Interest Expense, plus (d) income taxes deducted from Net Income in accordance
with GAAP, plus (e) extraordinary losses (and any unusual losses arising in or
outside the ordinary course of business of such Person not included in
extraordinary losses) determined in accordance with GAAP that have been
reflected in the determination of Net Income, minus (f) extraordinary gains (and
any unusual gains arising in or outside the ordinary course of business of such
Person not included in extraordinary gains) determined in accordance with GAAP
that have been reflected in the determination of Net Income, minus (g) earnings
of Consolidated Affiliates for such period distributed to minority interests not
previously deducted in the calculation of Net Income.
"EBITDA Adjustments" means, for any Property for any period, appropriate
accruals for items such as taxes, insurance, or other expenses determined by
Borrower (subject to the reasonable approval of Administrative Agent), a
management fee equal to the greater of actual fees incurred or two percent (2%)
of in place actual rents, and a reserve of $1 per square foot per year for
office Properties and $0.25 per square foot for industrial Properties, all as
determined in accordance with accounting principles reasonably acceptable to
Administrative Agent, consistently applied.
"EBITDA Value" means, for any Property as of any determination date, (a)
Adjusted Property EBITDA for such Property, divided by (b) nine and one-quarter
of one percent (9.25%).
"Eligible Assignee" means any of the following entities: (a) a commercial
bank organized under the laws of the United States, or any state thereof; (b) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development, or a political
subdivision of any such country, provided that such bank is acting through a
branch or agency located in the United States, in the country in which it is
organized, or in another country which is also a member of the Organization for
Economic Cooperation and Development; (c) the central bank of any country which
is a member of the Organization for Economic Cooperation and Development; and
(d) any other Person approved by Administrative Agent and, so long as no Default
or Potential Default exists, by Borrower.
"Employee Plan" means an employee pension benefit plan covered by Title IV
of ERISA and established or maintained by any Company.
"Environmental Law" means any and all Governmental Requirements pertaining
to health or the environment in effect in any and all jurisdictions in which any
Company is conducting or at any time has conducted business, or where any
property of any Company is located, including, without limitation, the Oil
Pollution Act of 1990, as amended, ("OPA"), the Clean Air Act, as amended, the
Comprehensive Environmental, Response, Compensation, and Liability Act of 1980,
as amended, ("CERCLA"), the Federal Water Pollution Control Act, as amended, the
Occupational Safety and Health Act of 1970, as amended, the Resource
Conservation and Recovery Act of 1976, as amended, ("RCRA"), the Safe Drinking
Water Act, as amended, the Toxic Substances Control Act, as amended, the
Superfund Amendments and Reauthorization Act of 1986, as amended, the Hazardous
Materials Transportation Act, as amended, and other environmental conservation
or protection Governmental Requirements. The term "oil" has the meaning
specified in OPA, the terms "hazardous substance" and "release" (or "threatened
release") have the meanings specified in CERCLA, and the terms "solid waste" and
"disposal" (or "disposed") have the meanings specified in RCRA; provided,
however, that (i) in the event either OPA, CERCLA or RCRA is amended so as to
broaden the meaning of any term defined thereby, such broader meaning shall
apply subsequent to the effective date of such amendment, and (ii) to the extent
the Governmental Requirements of the state in which any property of any Company
is located establish a meaning for "oil," "hazardous substance," "release,"
"solid waste" or "disposal" which is broader than that specified in either OPA,
CERCLA or RCRA, such broader meaning shall apply.
"Equity Issuance" means the issuance or sale by any Company of any Stock,
or options, warrants, or other rights to subscribe for or otherwise acquire
Stock of such Company, other than the issuance by Borrower of Stock in Borrower
to sellers of properties or non-cash assets as a partial payment of the purchase
price of such assets.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"Eurodollar Rate" means, for any Eurodollar Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Dow ▇▇▇▇▇ Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
(1st) day of such Interest Period for a term comparable to such Interest Period.
If for any reason such rate is not available, then the term "Eurodollar Rate"
shall mean, for any Eurodollar Borrowing for any Interest Period therefor, the
rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
(1st) day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, then the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Eurodollar Borrowing" means a Borrowing bearing interest at the sum of the
Eurodollar Rate plus the Applicable Margin.
"Excluded Companies" means, as of any date of determination, any
Consolidated Affiliate or Unconsolidated Affiliate of PPT determined in a manner
reasonably acceptable to Administrative Agent whose (a) individual contribution
to the calculation of Total Assets as of such determination date constitutes
less than fifteen percent (15%) of Total Assets, and (b) aggregate contributions
to the calculation of Total Assets as of such determination date constitute less
than twenty percent (20%) of Total Assets.
"Existing Line of Credit" means (a) the Credit Agreement dated as of May
23, 2000, executed by Borrower, Bank One, N.A., as administrative agent, Bank of
America, N.A., as syndication agent, Dresdner Bank AG, New York Branch and Grand
Cayman Branch, as Documentation Agent, and the Lenders defined therein, as such
Credit Agreement has been or may be modified, amended, renewed, extended, or
restated from time to time, and (b) a revolving credit facility that replaces
the facility described in clause (a).
"Federal Funds Rate" means, on any day, the annual rate (rounded upwards,
if necessary, to the nearest 0.01%) determined by Administrative Agent (which
determination is conclusive and binding, absent manifest error) to be equal to
the weighted average of the rates on overnight federal funds transactions with
member banks of the Federal Reserve System arranged by federal funds brokers as
published by the Federal Reserve Bank of New York on the next successive
Business Day; provided, however, that (a) if such determination date is not a
Business Day, then the Federal Funds Rate for such day shall be the rate for
such transactions on the next preceding Business Day as published on the next
successive Business Day, or (b) if those rates are not published for any
Business Day, then the Federal Funds Rate shall be the average of the quotations
at approximately 10:00 a.m. on such Business Day received by Administrative
Agent from three (3) federal funds brokers of recognized standing selected by
Administrative Agent in its sole discretion.
"Financial Statements" of a Person means balance sheets, and statements of
earnings, shareholders' equity, and cash flow prepared (a) according to GAAP,
(b) except as stated in Section 1.4, in comparative form to prior year-end
figures or corresponding periods of the preceding fiscal year, as applicable,
and (c) on a consolidated basis if that Person had any Consolidated Affiliates
during the applicable period.
"Fixed Charges" means, for the Companies on a consolidated basis for any
period, the sum of (a) Debt Service during such period, and (b) all
Distributions paid or payable during such period in respect of any preferred
Stock of the Companies (including the Companies' Share of such Distributions in
respect of any preferred Stock of their Unconsolidated Affiliates (other than
Broadmoor)).
"Funding Loss" means, without duplication, any loss, expense, or costs
incurred by any Lender (including any loss, expense or cost incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by such
Lender to make or maintain any portion of any Borrowing as a Eurodollar
Borrowing) when (a) Borrower fails or refuses (for any reason other than any
Lender's failure to comply with this Agreement) to take any Borrowing that it
has requested under this Agreement, (b) Borrower prepays or pays any Borrowing
or converts any Borrowing to a Borrowing of another Type, in each case, before
the last day of
the applicable Interest Period, (c) Borrower fails or refuses to prepay a
Eurodollar Borrowing on the date specified in any notice of prepayment, (d)
Borrower fails or refuses to continue a Eurodollar Borrowing on the date
specified in a Borrowing Request, or (e) Borrower fails or refuses to convert a
Base Rate Borrowing to a Eurodollar Borrowing on the date specified in a
Borrowing Request.
"Funds from Operations" means, for any Person for any period, the sum of
(a) Net Income plus depreciation and amortization expense (exclusive of
amortization of financing costs), all as determined in accordance with GAAP, and
(b) such Person's Share of Funds from Operations of any Unconsolidated
Affiliates of such Person (calculated in accordance with clause (a) preceding);
provided that there shall not be included in such calculation (i) any proceeds
of any insurance policy other than rental or business interruption insurance
received by such Person, (ii) any gain or loss which is classified as
"extraordinary" in accordance with GAAP, or (iii) any capital gains and taxes on
capital gains. Funds from Operations shall not be reduced by any Distribution in
respect of any preferred Stock of such Person.
"GAAP" means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board that are applicable on the date of this
Agreement, subject to changes permitted by Section 1.4.
"Governmental Authority" means any (a) local, state, or federal judicial,
executive, or legislative instrumentality, (b) private arbitration board or
panel acting through binding arbitration or mediation, or (c) central bank.
"Governmental Requirement" means all applicable statutes, laws, treaties,
ordinances, rules, regulations, orders, writs, injunctions, decrees, judgments,
opinions, and interpretations of any Governmental Authority.
"Guaranties" means the PPT Guaranty and the Subsidiary Guaranty, and
"Guaranty" means any one of the Guaranties.
"Guarantors" means PPT and Subsidiary Guarantors, and "Guarantor" means any
one of the Guarantors.
"Hazardous Substance" means any substance (a) the presence of which
requires removal, remediation, or investigation under any Environmental Law, or
(b) that is defined or classified as a hazardous waste, hazardous material,
pollutant, contaminant, or toxic or hazardous substance under any Environmental
Law.
"Indebtedness" means, for any Person, all Liabilities of such Person,
excluding (a) accounts payable and accrued expenses in each case incurred in the
ordinary course of business and the payment of which is not past-due (unless
payment is being contested in good faith by appropriate proceedings diligently
conducted and for which reserves in accordance with GAAP or otherwise reasonably
acceptable to Administrative Agent have been provided), and (b) Liabilities in
which such Person maintains restricted cash deposits that are not included in
Total Assets to satisfy payment thereof, but only to the extent of such cash
deposits.
"Index Ratio" means the financial covenant set forth in Section 9.2.
"Interest Expense" means, for any Person for any period, all of such
Person's paid, accrued, or amortized interest expense (net of any amounts
received by such Person in respect of any Interest Rate
Agreements, but including any amounts paid or amortized during such period in
respect of any Interest Rate Agreements) on such Person's Indebtedness (whether
direct, indirect, or contingent, and including interest on all convertible
Indebtedness), other than interest capitalized on the balance sheet of such
Person in accordance with GAAP.
"Interest Period" has the meaning set forth in Section 3.4.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement, or other similar agreement
or arrangement designed to protect any Company against fluctuations in interest
rates.
"Investments in Joint Ventures" means the Companies' investments in the
Stock of, or loans and advances to, partnerships, joint ventures, and similar
entities that are not Consolidated Affiliates. Investments in Joint Ventures, as
of any date, shall be calculated as the lesser of the Companies' Share of (a)
the Approved Costs of each Property owned by an Unconsolidated Affiliate, and
(b) the sum of (i) the book value of such Property on the financial statements
of such Unconsolidated Affiliate determined in accordance with GAAP plus (ii)
accumulated depreciation with respect to such Property determined in accordance
with GAAP.
"Lenders" is defined in the preamble.
"Liabilities" means (without duplication), for any Person, (a) any
indebtedness, liabilities, or obligations required by GAAP to be classified upon
such Person's balance sheet as liabilities, (b) any liabilities secured (or for
which the holder of the Liability has an existing Right, contingent or
otherwise, to be so secured) by any Lien existing on property owned or acquired
by that Person, (c) any obligations that have been (or under GAAP should be)
capitalized for financial reporting purposes, including all Capital Leases, (d)
mandatory net obligations to purchase or repurchase such Person's Stock as
calculated by Borrower in a manner reasonably acceptable to Administrative
Agent, (e) Unfunded Liabilities, and (f) such Person's Share of any Liabilities
of Unconsolidated Affiliates (other than of Broadmoor), and "Liability" means
any of the Liabilities.
"Lien" means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind and any other
substantially similar arrangement for a creditor's claim to be satisfied from
assets or proceeds prior to the claims of other creditors or the owners.
"Litigation" means any action by or before any Governmental Authority.
"Loan Documents" means (a) this Agreement, certificates, and reports
delivered under this Agreement, and exhibits and schedules to this Agreement,
(b) the Notes, (c) the Guaranties, (d) any Interest Rate Agreements with any
Lender specifically relating to the Obligation, (e) all other agreements,
documents, and instruments executed by Obligors in favor of any of the Credit
Parties (or Administrative Agent on behalf of the Credit Parties) ever delivered
in connection with or under this Agreement, and (f) all renewals, extensions,
and restatements of, and amendments and supplements to, any of the foregoing.
"Majority Lenders" means, as of any date, any combination of Lenders (other
than any Defaulting Lenders) who collectively hold fifty-one percent (51%) or
more of the outstanding principal balance of the Term Loans (other than of any
Defaulting Lenders).
"Maryland Properties" means the Properties listed on Schedule 4.2-1.
"Material Adverse Event" means any circumstance or event that, individually
or collectively with other circumstances or events, reasonably is expected to
result in any (a) material impairment of the ability of the Obligors (including
Borrower and PPT), taken as a whole, Borrower, or PPT to perform any of their
respective payment or other obligations under any Loan Document, (b) material
impairment of the ability of any Credit Party to enforce (i) any of the
obligations of any Obligor under this Agreement or the other Loan Documents, or
(ii) any of their respective Rights under the Loan Documents, or (c) material
and adverse effect on the financial condition of the Companies (including
Borrower and PPT), taken as a whole, Borrower, or PPT.
"Maturity Date" means March 16, 2006.
"Maximum Amount" and "Maximum Rate" respectively mean, for an Agent or a
Lender, the maximum non-usurious amount and the maximum non-usurious rate of
interest that, under applicable Governmental Requirement, such Agent or Lender
is permitted to contract for, charge, take, reserve, or receive on the
Obligation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or, if Moody's no longer
publishes ratings, another ratings agency acceptable to Administrative Agent.
"Multi-employer Plan" means a multi-employer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which Borrower or
any of its Consolidated Affiliates (or any Person that, for purposes of Title IV
of ERISA, is a member of Borrower's controlled group or is under common control
with Borrower within the meaning of Section 414 of the Code) is making, or has
made, or is accruing, or has accrued, an obligation to make contributions.
"Net Income" means, for any Person or any Property for any period, the net
earnings (or loss) after taxes of such Person or such Property, as the case may
be, determined in accordance with GAAP.
"Net Proceeds" means, with respect to any Equity Issuance by any Company,
the amount of cash received by such Company in connection with such transaction
after deducting therefrom the aggregate, without duplication, of the following
amounts to the extent properly attributable to such transaction: (a) brokerage
commissions, attorneys' fees, finder's fees, financial advisory fees, accounting
fees, underwriting fees, investment banking fees, and other similar commissions
and fees (and expenses and disbursements of any of the foregoing), in each case,
to the extent paid or payable by such Company; (b) printing and related expenses
and filing, recording, or registration fees or charges or similar fees or
charges paid by such Company; and (c) taxes paid or payable by such Company to
any Governmental Authority as a result of such transaction.
"Non-Incremental Capital Expenditures" means, for the Companies on a
consolidated basis for the twelve (12) month period ending on the date of
determination, that portion of Capital Expenditures deducted from Funds from
Operations for the purpose of calculating "Funds Available for Distribution" as
publicly reported to the shareholders of PPT. "Non-Incremental Capital
Expenditures" shall include all Capital Expenditures required to sustain or
replace existing lease income. "Non-Incremental Capital Expenditures" for any
period shall not include the following:
(a) The costs of new construction of Properties;
(b) The costs of leasing first generation space in Properties;
(c) The costs of the initial leasing of space in Properties that was
vacant at the time of acquisition of such Properties;
(d) Capital improvements (exclusive of tenant finish) that were
budgeted as part of an acquisition of Properties and anticipated to be
spent in the first twelve (12) months following acquisition of such
Properties;
(e) The costs of leasing space in Properties which has been vacant for
twelve (12) months; and
(f) Capital improvements (exclusive of tenant finish) to existing
Properties that are made to generate incremental revenues and that are
approved by Administrative Agent.
"Non-Recourse Debt" means, for any Person, any Indebtedness of such Person
in which the holder of such Indebtedness may not look to such Person personally
for repayment, other than to the extent of any security therefor or pursuant to
Customary Recourse Exceptions.
"Northeast Region Properties" means the Properties listed on Schedule
4.2-2.
"Notes" means one of the promissory notes substantially in the form of
Exhibit D, and "Note" means any one of the Notes.
"Obligation" means all present and future indebtedness and obligations, and
all renewals, increases, and extensions thereof, or any part thereof, now or
hereafter owed to any Credit Party by Borrower under any Loan Document, together
with all interest accruing thereon, fees, costs and expenses (including all
reasonable attorneys' fees and expenses incurred in the enforcement or
collection thereof) payable under the Loan Documents or in connection with the
protection of Rights under the Loan Documents.
"Obligors" means Borrower and Guarantors, and "Obligor" means any one of
the Obligors.
"Occupancy Rate" means, for any Property, the percentage of the rentable
area of such Property leased pursuant to bona fide tenant leases, licenses, or
other agreements requiring current rent or other similar payments.
"Participant" is defined in Section 13.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereof, established under ERISA.
"Permitted Distributions" means, for (a) Borrower for any fiscal year of
Borrower, an amount of Distributions not to exceed ninety-five percent (95%) of
Borrower's Funds from Operations for such fiscal year, and (b) PPT for any
fiscal year of PPT, an amount of Distributions not to exceed ninety-five percent
(95%) of PPT's Funds from Operations for such fiscal year.
"Permitted Liens" means:
(a) Liens granted to Administrative Agent, for the ratable benefit of the
Credit Parties, to secure the Obligation;
(b) pledges or deposits made to secure payment of worker's compensation (or
to participate in any fund in connection with worker's compensation insurance),
unemployment insurance, pensions, or social security programs;
(c) 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 and none of
which is violated in any material respect by existing or proposed structures or
land use;
(d) Liens imposed by mandatory provisions of any Governmental Requirement
such as for materialmen's, mechanic's, warehousemen's, and other like Liens
arising in the ordinary course of business, securing payment of any Liability
whose payment is not yet due or that is being contested in good faith by
appropriate proceedings diligently conducted, and for which reserves in
accordance with GAAP or other security (and otherwise reasonably acceptable to
Administrative Agent) have been provided;
(e) Liens for taxes, assessments, and governmental charges or assessments
that are not yet due and payable or that are being contested in good faith by
appropriate proceedings diligently conducted, and for which reserves in
accordance with GAAP or other security (and otherwise reasonably acceptable to
Administrative Agent) have been provided;
(f) Liens securing assessments or charges payable to a property owner
association or similar entity, which assessments are not yet due and payable or
that are being contested in good faith by appropriate proceedings diligently
conducted, and for which reserves in accordance with GAAP or other security (and
otherwise reasonably acceptable to Administrative Agent) have been provided; and
(g) Liens in a Property securing Indebtedness for which cash or Cash
Equivalents in an amount sufficient to pay all principal and interest of such
Indebtedness have been deposited with a title company or other escrow agent and
in which the owner of such Property is insured by title insurance acceptable to
Administrative Agent.
"Permitted Recourse Debt" means Recourse Debt existing from time to time
under this Agreement and other Recourse Debt (including, without limitation,
Recourse Debt existing from time to time under the Existing Line of Credit);
provided that Permitted Recourse Debt shall not exceed $700,000,000 in the
aggregate at any time outstanding.
"Permitted Redemptions" means the Redemption by PPT and Borrower of Stock
issued by PPT or Borrower not to exceed $250,000,000 in the aggregate during the
term of this Agreement, provided that no Default exists or would result from
such Redemption.
"Person means any individual, entity, or Governmental Authority.
"Potential Default" means the occurrence of any event or the existence of
any circumstance that could, upon notice or lapse of time or both, become a
Default.
"PPT" means ▇▇▇▇▇▇▇▇ Properties Trust, a Maryland real estate investment
trust.
"PPT Guaranty" means the Unconditional Guaranty of Payment dated of even
date herewith, executed by PPT in favor of the Credit Parties, and substantially
in the form of Exhibit C-1.
"Properties" means all real estate properties owned by any Company or any
Unconsolidated Affiliate, and "Property" means any one of the Properties.
"Pro Rata" and "Pro Rata Share" means, for any Lender, the percentage
obtained by dividing (a) the aggregate unpaid principal amount of such Lender's
Note by (b) the aggregate unpaid principal amount of all Notes of all Lenders.
"Purchaser" is defined in Section 13.11(c).
"Recourse Debt" means, for any Person, Indebtedness of such Person that is
not Non-Recourse Debt; provided that (a) Recourse Debt of the Companies shall
include any Indebtedness guaranteed (other than Customary Recourse Exceptions)
by PPT or Borrower, and (b) Recourse Debt of the Companies, as of any date,
shall not include Indebtedness of any Excluded Companies so long as no Obligor
is obligated (as guarantor or otherwise other than for Customary Recourse
Exceptions) on such Indebtedness. To the extent that any Person has partial
recourse obligations with respect to any Indebtedness, then only that portion of
such Indebtedness that is not Non-Recourse Debt shall be considered to be
Recourse Debt (e.g., if any such Person is personally liable for only
$25,000,000 of Indebtedness equal to $100,000,000, then only $25,000,000 of such
Indebtedness shall be Recourse Debt).
"Redemption" means, with respect to any Stock issued by a Person, the
retirement, redemption, purchase, or other acquisition for value of such Stock
by such Person.
"REIT" means a "real estate investment trust" for purposes of the Code.
"Representatives" means representatives, officers, directors, employees,
attorneys, and agents.
"Required Lenders" means, as of any date, any combination of Lenders (other
than any Defaulting Lenders) who collectively hold sixty-six and two-thirds
percent (66-2/3%) of the outstanding principal balance of the Term Loans (other
than of any Defaulting Lenders).
"Reserve Requirement" means, with respect to any Eurodollar Borrowing for
the relevant Interest Period, the actual aggregate reserve requirements
(including all basic, supplemental, emergency, special, marginal, and other
reserves required by applicable Governmental Requirement) applicable to a member
bank of the Federal Reserve System for eurocurrency fundings or liabilities.
"Responsible Officer" means, for any Person, any chairman, president, chief
executive officer, chief financial officer, controller, secretary, executive
vice president, or senior vice president of such Person.
"Rights" means rights, remedies, powers, privileges, and benefits.
"Secured Debt" means, for any Person, Indebtedness of such Person secured
by Liens (other than Permitted Liens) in any of such Person's Properties or
other assets.
"Share" means, for any Person, such Person's share of the assets,
liabilities, revenues, income, losses, or expenses of an Unconsolidated
Affiliate based upon such Person's percentage ownership of Stock of such
Unconsolidated Affiliate.
"Solvent" means, as to a Person, that (a) the aggregate fair market value
of its assets exceeds its Liabilities, (b) such Person is able to pay and is
paying its Liabilities as they mature, and (c) it does not have unreasonably
small capital to conduct its businesses.
"S & P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., a New York corporation, or if S & P no longer publishes ratings, then
another ratings agency acceptable to Administrative Agent.
"Stock" means all shares, options, warrants, general or limited partnership
interests, membership interests, or other ownership interests (regardless of how
designated) of or in a corporation, partnership, limited liability company,
trust, or other entity, whether voting or nonvoting, including common stock,
preferred stock, or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended).
"Subsidiary Guarantors" means, as of any date, all Consolidated Affiliates
that have executed the Subsidiary Guaranty, and "Subsidiary Guarantor" means any
one of the Subsidiary Guarantors.
"Subsidiary Guaranty" means the Unconditional Guaranty of Payment dated of
even date herewith, executed by each of the Subsidiary Guarantors in favor of
the Credit Parties, and substantially in the form of Exhibit C-2.
"Tangible Net Worth" means, as of any date, (a) Total Assets, minus (b) all
Liabilities (other than accounts payable and accrued expenses that are not
Indebtedness and that are incurred in the ordinary course of business not
exceeding five percent (5%) of Total Assets as of such date) of the Companies,
on a consolidated basis, as of such date.
"Taxes" means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon it, its income, or any of its properties,
franchises, or assets.
"Term Loan" means, for a Lender, the amount (which is subject to reduction
and cancellation as a result of payments under this Agreement) stated besides
such Lender's name on Schedule 1 as most recently amended under this Agreement,
as the same may be increased or decreased from time to time by further
assignment pursuant to Section 13.11, and "Term Loans" means the Term Loans of
all Lenders.
"Terramics Entities" means the Consolidated Affiliates of Borrower or a
Consolidated Affiliate of Borrower listed on Schedule 2.
"Total Assets" means, as of any determination date, the sum of the
following (without duplication):
(a) the EBITDA Value of each Property owned by a Company for, and in which
construction was completed and a certificate of occupancy was issued, more than
twelve (12) months as of such determination date; plus
(b) the EBITDA Value of each Property owned by a Company for, and in which
construction was completed by a Company and a certificate of occupancy was
issued, less than twelve (12) months as of such determination date and that has
an Occupancy Rate of at least eighty-five percent (85%) for three (3)
consecutive months; plus
(c) so long as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ is owned by a Company, then the
Approved Costs of such Property until December 31, 2002 and, thereafter, the
EBITDA Value of such Property; plus
(d) the Approved Costs of each Property not included in (a) through (c)
above; plus
(e) the lesser of (i) $40,000,000, and (ii) the product of (A) seven (7),
and (B) EBITDA for the four (4) fiscal quarters ending on such determination
date in respect of management contracts between a Company and a third party
(other than another Company); plus
(f) the sum of (without duplication) Borrower's Share of the Approved Costs
of each Property owned by an Unconsolidated Affiliate (other than Broadmoor) as
of such determination date; plus
(g) the Companies' cash and Cash Equivalents, in each case that are not
subject to any Lien; plus
(h) the lesser of (i) the Approved Costs of each other Property consisting
of raw land, and (ii) two and one-half percent (2.5%) of Total Assets as of such
date; plus
(i) the Applicable Amount of each Contract Property to the extent that the
calculation of Liabilities or Indebtedness includes any Unfunded Liabilities
with respect to such Contract Property; plus
(j) the Applicable Amount of each Development Property to the extent that
the calculation of Liabilities or Indebtedness includes any Unfunded Liabilities
with respect to such Development Property.
If any Company that owns any Total Assets described above has any minority
interests, then Total Assets shall be adjusted to exclude the minority
interests' Share of such Total Assets. No Property can have a value, calculated
as provided above, of less than $0.
"Type" means any type of Borrowing determined with respect to the
applicable interest option.
"Unconsolidated Affiliate" means any Person in whom Borrower or PPT holds a
voting equity or ownership interest and whose financial results would not be
consolidated under GAAP with the financial results of Borrower or PPT on the
consolidated financial statements of Borrower or PPT.
"Unencumbered Properties" means, as of any date, all Properties in which
any Company owns fee simple title or leasehold interests, in each case free and
clear of any Liens (other than Permitted Liens), and "Unencumbered Property"
means any one of the Unencumbered Properties. Unencumbered Properties include
Properties owned by Subsidiary Guarantors that have executed guaranties
permitted by the last two sentences of Section 4.4.
"Unencumbered Property Report" means a report in substantially the form of
Schedule 4.1 certified by a Responsible Officer of Borrower, setting forth in
reasonable detail the total square footage, Occupancy Rate, Approved Costs,
EBITDA, EBITDA Adjustments, and Adjusted Property EBITDA for the Unencumbered
Properties (individually and in the aggregate).
"Unfunded Liabilities" means, for any Person, (a) if evidenced by a Binding
Agreement, then all obligations to purchase a Contract Property or Development
Property (the amount of such Unfunded Liabilities being equal to the Applicable
Amount with respect to such Contract Property or Development Property), and (b)
any guaranties, endorsements, and other contingent obligations (including any
obligations as general partner) with respect to the principal of the Liabilities
of others (including any Unconsolidated Affiliates of such Person) for which
such Person has personal liability.
"Unsecured Debt" means, for any Person, Indebtedness of such Person that is
not Secured Debt.
b) Time References. Unless otherwise specified in the Loan Documents (a)
time references are to time in New York, New York, and (b) in calculating a
period from one date to another, the word "from" means "from and including" and
the word "to" or "until" means "to but excluding."
c) Other References. Unless otherwise specified in the Loan Documents (a)
where appropriate, the singular includes the plural and vice versa, and words of
any gender include each other gender, (b) headings and caption references may
not be construed in interpreting provisions, (c) monetary references are to
currency of the United States of America, (d) section, paragraph, annex,
schedule, exhibit, and similar references are to the particular Loan Document in
which they are used, (e) references to "telecopy," "facsimile," "fax," or
similar terms are to facsimile or telecopy transmissions, (f) references to
"including" mean including without limiting the generality of any description
preceding that word, (g) the rule of construction that references to general
items that follow references to specific items are limited to the same type or
character of those specific items is not applicable in the Loan Documents, (h)
references to any Person include that Person's heirs, personal representatives,
successors, trustees, receivers, and permitted assigns, (i) references to any
Governmental Requirement include every amendment or supplement to it, rule and
regulation adopted under it, and successor or replacement for it, and (j)
references to any Loan Document or other document include every renewal and
extension of it, amendment and supplement to it, and replacement or substitution
for it.
d) Accounting Principles. Under the Loan Documents, unless otherwise
stated, (a) GAAP determines all accounting and financial terms and compliance
with financial covenants, (b) GAAP in effect on the date of this Agreement
determines compliance with financial covenants, (c) otherwise, all accounting
principles applied in a current period must be comparable in all material
respects to those applied during the preceding comparable period, and (d) all
accounting and financial terms and compliance with financial covenants must be
for the Companies, on a consolidated basis, as applicable. If there is a change
in GAAP after the date hereof, then each Compliance Certificate shall include
calculations setting forth the adjustments from the relevant financial items as
shown in the Current Financials, based on the then-current GAAP, to the
corresponding financial items based on GAAP as used in the Current Financials
delivered to Administrative Agent and Lenders on or prior to the date hereof, so
as to demonstrate how such financial covenant compliance was derived from the
Current Financials.
SECTION 2)
TERM LOANS
a) Term Loans.
(a) Borrowing. Subject to the terms and conditions of this Agreement
(including the conditions precedent in Section 5), each Lender on the Closing
Date severally, but not jointly, agree to lend to Borrower such Lender's Term
Loan in a single Borrowing in the aggregate amount of $75,000,000.
(b) Term Loans Generally. If Borrower pays or prepays any portion of the
Term Loans under this Agreement, then that portion may not be reborrowed. The
Term Loans shall bear interest from time to time in accordance with selections
made by Borrower from time to time pursuant to Section 3.4.
SECTION 3)
TERMS OF PAYMENT
a) Notes and Payments.
(a) The Term Loans shall be evidenced by the Notes, one payable to each
Lender in the stated principal amount of its Term Loan.
(b) Borrower must make each payment and prepayment on the Obligation,
without offset, counterclaim, or deduction, to Administrative Agent's principal
office in New York, New York, in funds that will be available for immediate use
by Administrative Agent by 12:00 noon on the day due. Payments received after
such time shall be deemed received on the next Business Day. Administrative
Agent shall pay to each Lender any payment to which such Lender is entitled on
the same day Administrative Agent receives the funds from Borrower if
Administrative Agent receives the payment or prepayment before 12:00 noon, and
otherwise before 12:00 noon on the following Business Day. If and to the extent
that Administrative Agent does not make payments to Lenders when due, then
Administrative Agent shall be obligated to pay to Lenders such unpaid amounts
together with interest at the Federal Funds Rate from the due date until (but
not including) the payment date.
b) Interest and Principal Payments.
(a) Interest Payments. Accrued interest on all Borrowing shall be due and
payable on the first (1st) day of each calendar month during the term of this
Agreement, commencing on April 1, 2001.
(b) Principal Payments. The unpaid principal balance of the Notes shall be
due and payable on the Maturity Date.
(c) Voluntary Prepayment. Borrower may voluntarily repay or prepay all or
any part of the unpaid principal balance of the Notes at any time, subject to
the following conditions:
(i) Administrative Agent must receive Borrower's written payment
notice by 11:00 a.m. on (A) the Business Day preceding the date of payment
of a Eurodollar Borrowing, and (B) the Business Day preceding the date of
payment of a Base Rate Borrowing, which shall specify the payment date and
the Type and amount of the Borrowing(s) to be paid, and which shall
constitute an irrevocable and binding obligation of Borrower to make a
repayment or prepayment on the designated date;
(ii) each partial repayment or prepayment must be in a minimum amount
of at least $1,000,000 or a greater integral multiple of $100,000, or, if
less, the unpaid principal balance of the Notes; and
(iii) Borrower shall pay any related Funding Loss upon demand.
c) Interest Options. Except as specifically otherwise provided, each
Borrowing shall bear interest, if applicable, at an annual rate equal to the
lesser of (a) at Borrower's option, either (i) the Base Rate plus the Applicable
Margin, or (ii) the Eurodollar Rate plus the Applicable Margin (in each case as
designated or deemed designated by Borrower and, in the case of Eurodollar
Borrowings, for the Interest Period designated by Borrower), and (b) the Maximum
Rate. Each change in the Base Rate and the Maximum Rate is effective, without
notice to Borrower or any other Person, upon the effective date of change.
d) Selection of Interest Option.
(a) When Borrower requests any Eurodollar Borrowing, Borrower shall elect
the applicable interest period (each an "Interest Period"), which may be, at
Borrower's option, one (1), two (2), three (3), or six (6) months or, if
available from all Lenders, twelve (12) months, subject to the following
conditions: (i) each Interest Period applicable to any Borrowing commences on
the day on or after the day when the next preceding applicable Interest Period
expires; (ii) if any Interest Period for a Eurodollar Borrowing begins on a day
for which there exists no numerically corresponding Business Day in the calendar
month at the end of the Interest Period ("Ending Calendar Month"), then the
Interest Period ends on the next succeeding Business Day of the Ending Calendar
Month, unless there is no succeeding Business Day in the Ending Calendar Month
in which case the Interest Period ends on the next preceding Business Day of the
Ending Calendar Month; and (iii) no Interest Period for any portion of Term
Loans may extend beyond the scheduled repayment date for that portion of the
Term Loans.
(b) Borrower may (i) on the last day of the applicable Interest Period (or
at any other time, subject to payment of any Funding Loss) convert all or part
of a Eurodollar Borrowing to a Base Rate Borrowing, (ii) at any time convert all
or part of a Base Rate Borrowing to a Eurodollar Borrowing, and (iii) on the
last day of an Interest Period, elect a new Interest Period for a Eurodollar
Borrowing. Any such conversion may be accomplished by delivering a Borrowing
Request to Administrative Agent no later than 11:00 a.m. (A) on the third (3rd)
Business Day before (x) the conversion date for conversion to a Eurodollar
Borrowing, and (y) the last day of the Interest Period, for the election of a
new Interest Period, and (B) one (1) Business Day before the last day of the
Interest Period for conversion to a Base Rate Borrowing. Absent a Borrowing
Request, a Eurodollar Borrowing shall be converted to a Base Rate Borrowing when
the applicable Interest Period expires.
(c) Notwithstanding anything to the contrary contained in this Section 3.4,
(i) each Eurodollar Borrowing with respect to the Term Loans shall be in a
minimum amount of $1,000,000 (or a greater integral multiple of $100,000), (ii)
no more than five (5) Interest Periods shall be in effect at any one time with
respect to Eurodollar Borrowings, and (iii) Borrower may not request a
Eurodollar Borrowing if the interest rate applicable thereto under Section 3.3
would exceed the Maximum Rate in effect on the first (1st) day of the Interest
Period applicable to such Borrowing.
e) Default Rate. At the option of the Required Lenders at any time while a
Default exists and to the extent permitted by applicable law, all principal,
accrued interest thereon, and fees and expenses payable
hereunder and under the other Loan Documents shall bear interest at the Default
Rate until paid, regardless of whether such payment is made before or after
entry of a judgment.
f) Interest Recapture. If the designated interest rate applicable to any
Borrowing exceeds the Maximum Rate, then the interest rate on that Borrowing is
limited to the Maximum Rate, provided that any subsequent reductions in the
designated rate shall not reduce the interest rate thereon below the Maximum
Rate until the total amount of accrued interest equals the amount of interest
that would have accrued if that designated rate had always been in effect. If at
maturity (stated or by acceleration), or at final payment of the Notes, the
total interest paid or accrued is less than the interest that would have accrued
if the designated rates had always been in effect, then, at that time and to the
extent permitted by applicable law, Borrower shall pay an amount equal to the
difference between (a) the lesser of the amount of interest that would have
accrued if the designated rates had always been in effect and the amount of
interest that would have accrued if the Maximum Rate had always been in effect,
and (b) the amount of interest actually paid or accrued on the Notes.
g) Interest Calculations.
(a) Interest shall be calculated on the basis of actual number of days
elapsed (including the first (1st) day but excluding the last day) but computed
as if each calendar year consisted of (i) 365 or 366 days, as the case may be,
for Base Rate Borrowings, and (ii) 360 days for all other Borrowings (unless the
calculation would result in an interest rate greater than the Maximum Rate, in
which event interest shall be calculated on the basis of a year of 365 or 366
days, as the case may be). All interest rate determinations and calculations by
Administrative Agent are conclusive and binding absent manifest error.
(b) The provisions of this Agreement relating to calculation of the Base
Rate and the Eurodollar Rate are included only for the purpose of determining
the rate of interest or other amounts to be paid under this Agreement that are
based upon those rates. Each Lender may fund and maintain its funding of all or
any part of each Borrowing as it selects.
h) Maximum Rate. Regardless of any provision contained in any Loan Document
or any document related thereto, it is the intent of the parties to this
Agreement that no Credit Party contract for, charge, take, reserve, receive, or
apply, as interest on all or any part of the Obligation any amount in excess of
the Maximum Rate or the Maximum Amount or receive any unearned interest in
violation of any applicable law, and, if any Credit Party ever does so, then any
excess shall be treated as a partial repayment or prepayment of principal and
any remaining excess shall be refunded to Borrower. In determining if the
interest paid or payable exceeds the Maximum Rate, Borrower and the Credit
Parties shall, to the maximum extent permitted under applicable law, (a) treat
all Borrowings as but a single extension of credit (and the Credit Parties and
Borrower agree that this is the case and that provision in this Agreement for
multiple Borrowings is for convenience only), (b) characterize any non-principal
payment as an expense, fee, or premium rather than as interest, (c) exclude
voluntary repayments or prepayments and their effects, and (d) amortize,
prorate, allocate, and spread the total amount of interest throughout the entire
contemplated term of the Obligation. If, however, the Obligation is paid in full
before the end of its full contemplated term, and if the interest received for
its actual period of existence exceeds the Maximum Amount, then the Credit
Parties shall refund any excess (and Lenders may not, to the extent permitted by
applicable law, be subject to any penalties provided by any Governmental
Requirements for contracting for, charging, taking, reserving, or receiving
interest in excess of the Maximum Amount).
i) Order of Application.
(a) No Default. If no Default exists, then except as otherwise specifically
provided in the Loan Documents, any payment shall be applied to the Obligation
in the order and manner as Borrower directs.
(b) Default. If a Default exists, any payment (including proceeds from the
exercise of any Rights) shall be applied in the following order: (i) to all fees
and expenses for which any Credit Party have not been paid or reimbursed in
accordance with the Loan Documents (and if such payment is less than all unpaid
or unreimbursed fees and expenses, then the payment shall be paid against unpaid
and unreimbursed fees and expenses in the order of incurrence or due date); (ii)
to accrued interest on the principal of the Obligation; and (iii) to the
remaining Obligation in the order and manner as the Required Lenders deem
appropriate.
(c) Pro Rata. Each payment or prepayment shall be distributed to each
Lender in accordance with its Pro Rata Share of such payment or prepayment.
j) Sharing of Payments, Etc. If any Lender obtains any amount (whether
voluntary, involuntary, or otherwise) that exceeds the part of that payment that
such Lender is then entitled to receive under the Loan Documents, then such
Lender shall purchase from the other Lenders participations that will cause the
purchasing Lender to share the excess amount ratably with each other Lender. If
all or any portion of any excess amount is subsequently recovered from the
purchasing Lender, then the purchase shall be rescinded and the purchase price
restored to the extent of the recovery. Borrower agrees that any Lender
purchasing a participation from another Lender under this Section 3.10 may, to
the fullest extent permitted by applicable law, exercise all of its Rights of
payment with respect to that participation as fully as if such Lender were the
direct creditor of Borrower in the amount of that participation.
k) Booking Borrowings. To the extent permitted by applicable law, any
Lender may make, carry, or transfer its Borrowings at, to, or for the account of
any of its branch offices or the office of any of its Affiliates. However, no
Affiliate is entitled to receive any greater payment under Section 3.13 than the
transferor Lender would have been entitled to receive with respect to those
Borrowings, and a transfer may not be made if, as a direct result of it, Section
3.13 or 3.14 would apply to any of the Obligation. If any of the conditions of
Sections 3.13 or 3.14 ever apply to a Lender, then such Lender shall, to the
extent possible, carry or transfer its Borrowings at, to, or for the account of
any of its branch offices or the office or branch of any of its Affiliates so
long as the transfer is consistent with the other provisions of this Section,
does not create any burden or adverse circumstance for such Lender that would
not otherwise exist, and eliminates or ameliorates the conditions of Sections
3.13 or 3.14 as applicable.
l) Basis Unavailable or Inadequate for the Eurodollar Rate.
(a) Determination by Administrative Agent. If Administrative Agent
determines that for any Eurodollar Borrowing the basis for determining the
applicable rate is not available, then Administrative Agent shall promptly
notify Borrower and Lenders of such determination (which is conclusive and
binding on Borrower absent manifest error), and all Borrowings shall bear
interest at the Base Rate plus the Applicable Margin. Until Administrative Agent
notifies Borrower that such circumstances no longer exist, Lenders' commitments
under this Agreement to make, or to convert to, Eurodollar Borrowings shall be
suspended.
(b) Determination by a Lender. If any Lender determines that for any
Eurodollar Borrowing and for other similar loans made by such Lender to similar
borrowers, the resulting rate does not accurately reflect the cost to such
Lender of making or converting Borrowings at that rate for the applicable
Interest Period, then such Lender shall promptly notify Administrative Agent and
Borrower, and all Borrowings of such Lender shall bear interest at the Base Rate
plus the Applicable Margin. Until Administrative Agent
notifies Borrower that such circumstances no longer exist, such Lender's
commitment under this Agreement to make, or to convert to, Eurodollar Borrowings
shall be suspended.
m) Additional Costs.
(a) Eurocurrency Reserves. If, after the date hereof, any Lender shall be
required under any Reserve Requirement to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities, then
(i) such Lender (through Administrative Agent) shall, within sixty (60) days
after the end of any Interest Period with respect to any Eurodollar Borrowing
during which Lender was so required to maintain reserves, deliver to Borrower a
certificate stating (A) that such Lender was required to maintain reserves and
as a result such Lender incurred additional costs in connection with making
Eurodollar Borrowings and (B) in reasonable detail, such Lender's computations
of the amount of additional interest payable by Borrower, pursuant to the
provisions below, and (ii) Borrower shall, promptly upon receipt of any such
certificate, pay to Administrative Agent, for the account to such Lender,
additional interest on the unpaid principal amount of each Eurodollar Borrowing
of such Lender made to it outstanding during the Interest Period with respect to
which the above-referenced certificate was delivered to Administrative Agent, at
a rate per annum equal to the difference obtained by subtracting (x) the
Eurodollar Rate for such Interest Period from (y) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the Reserve Requirement
of such Lender for such Interest Period. The amount of interest payable by
Borrower to any Lender as stated in any certificate delivered to Administrative
Agent pursuant to the provisions of this Section 3.13(a) shall be conclusive and
binding for all purposes, absent manifest error. The provisions of this Section
3.13(a) shall survive the termination of this Agreement.
(b) Reserves. With respect to any Eurodollar Borrowing, if (i) any change
in present Governmental Requirement, any change in the interpretation or
application of any present Governmental Requirement, or any future Governmental
Requirement imposes, modifies, or deems applicable (or if compliance by any
Lender with any such requirement of any Governmental Authority results in) any
such requirement that any reserves (including any marginal, emergency,
supplemental or special reserves) be maintained, and (ii) those reserves reduce
any sums receivable by such Lender under this Agreement or increase the costs
incurred by such Lender in advancing or maintaining any portion of any
Eurodollar Borrowing, then (unless the effect is already reflected in the rate
of interest then applicable under this Agreement) such Lender (through
Administrative Agent) shall deliver to Borrower a certificate setting forth in
reasonable detail the calculation of the amount necessary to compensate it for
its reduction or increase (which certificate is conclusive and binding absent
manifest error), and Borrower shall promptly pay that amount to such Lender upon
demand.
(c) Capital Adequacy. With respect to any Borrowing and for similar loans
to similar borrowers, if any change in present Governmental Requirement or any
future Governmental Requirement regarding capital adequacy or compliance by
Administrative Agent or any Lender (or any Person controlling such Lender) with
any request, directive, or requirement now existing or hereafter imposed by any
Governmental Authority regarding capital adequacy, or any change in its written
policies or in the risk category of this transaction, reduces the rate of return
on its capital as a consequence of its obligations under this Agreement to a
level below that which it otherwise could have achieved (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by it to be material (and it may, in determining the amount, use reasonable
assumptions and allocations of costs and expenses and use any reasonable
averaging or attribution method), then (unless the effect is already reflected
in the rate of interest then applicable under this Agreement) Administrative
Agent or such Lender (through Administrative Agent) shall notify Borrower and
deliver to Borrower a certificate setting forth in reasonable detail the
calculation of the amount necessary to compensate it
(which certificate is conclusive and binding absent manifest error), and
Borrower shall promptly pay that amount to Administrative Agent or such Lender
upon demand.
(d) Taxes. Any Taxes payable by Administrative Agent or any Lender or ruled
(by a Governmental Authority) payable by Administrative Agent or any Lender in
respect of this Agreement or any other Loan Document shall, if permitted by
Governmental Requirement, be paid by Borrower, together with interest and
penalties, if any (except for Taxes imposed on or measured by the overall net
income of Administrative Agent or such Lender). Administrative Agent or such
Lender (through Administrative Agent) shall notify Borrower and deliver to
Borrower a certificate setting forth in reasonable detail the calculation of the
amount of payable Taxes, which certificate is conclusive and binding (absent
manifest error), and Borrower shall promptly pay that amount to Administrative
Agent for its account or the account of such Lender, as the case may be. If
Administrative Agent or such Lender subsequently receives a refund of the Taxes
paid to it by Borrower, then the recipient shall promptly pay the refund to
Borrower.
(e) Survival. The provisions of this Section 3.13 shall survive the
satisfaction and payment of the Obligation and termination of this Agreement.
n) Change in Governmental Requirement. If any Governmental Requirement
makes it unlawful for any Lender to make or maintain Eurodollar Borrowings, then
such Lender shall promptly notify Borrower and Administrative Agent, and (a) if
maintaining the Borrowing until the last day of the applicable Interest Period
is unlawful, then the Borrowing shall be converted to a Base Rate Borrowing as
of the date of notice, and Borrower shall pay any related Funding Loss, or (b)
if not prohibited by any Governmental Requirements, then the Borrowing shall be
converted to a Base Rate Borrowing as of the last day of the applicable Interest
Period, or (c) if any conversion will not resolve the unlawfulness, then
Borrower shall promptly prepay the Borrowing, without penalty, together with any
related Funding Loss.
o) Funding Loss. BORROWER AGREES TO INDEMNIFY EACH LENDER AGAINST, AND PAY
TO IT UPON DEMAND, ANY FUNDING LOSS OF SUCH LENDER. When any Lender demands that
Borrower pay any Funding Loss, such Lender shall deliver to Borrower and
Administrative Agent a certificate setting forth in reasonable detail the basis
for imposing Funding Loss and the calculation of the amount, which calculation
is conclusive and binding absent manifest error. The provisions of this Section
3.15 shall survive the satisfaction and payment of the Obligation and
termination of this Agreement.
p) Foreign Lenders. Each Lender that is organized under the Governmental
Requirements of any jurisdiction other than the United States of America or any
State thereof (a) represents to Administrative Agent and Borrower that (i) no
Taxes are required to be withheld by Administrative Agent or Borrower with
respect to any payments to be made to it in respect of the Obligation, and (ii)
it has furnished to Administrative Agent and Borrower two (2) duly completed
copies of U.S. Internal Revenue Service Form W-8 BEN, Form W-8 ECI, Form W-8, or
any other tax form acceptable to Administrative Agent (wherein it claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments under the Loan Documents), and (b) covenants to (i) provide
Administrative Agent and Borrower a new tax form upon the expiration or
obsolescence of any previously delivered form according to Governmental
Requirement, duly executed and completed by it, and (ii) comply from time to
time with all Governmental Requirements with regard to the withholding tax
exemption. If any of the foregoing is not true or the applicable forms are not
provided and such party is obligated by law to withhold, then Borrower or
Administrative Agent (without duplication) may deduct and withhold from interest
payments under the Loan Documents United States federal income tax at the full
rate applicable under the Code.
q) Fees.
(a) Treatment of Fees. The fees described in this Section 3.17 (i) are not
compensation for the use, detention, or forbearance of money, (ii) are in
addition to, and not in lieu of, interest and expenses otherwise described in
this Agreement, (iii) are payable in accordance with Section 3.1(b), (iv) are
non-refundable, (v) to the fullest extent permitted by applicable law, bear
interest, if not paid when due, at the Default Rate, and (vi) are calculated on
the basis of actual number of days (including the first day but excluding the
last day) elapsed, but computed as if each calendar year consisted of 360 days,
unless computation would result in an interest rate in excess of the Maximum
Rate in which event the computation is made on the basis of a year of 365 or 366
days, as the case may be. The fees described in this Section 3.17 are in all
events subject to the provisions of Section 3.8.
(b) Agent Fees. Borrower shall pay to Administrative Agent, the fees
specified in the letter agreement between Administrative Agent and Borrower,
which fees shall be for the account of Administrative Agent and for the account
of the Credit Parties as shall be agreed between Administrative Agent and each
other Credit Party.
r) Option to Replace Lenders. If any Lender shall make demand for payment
or reimbursement pursuant to Section 3.12(b) or Sections 3.13(a), (b), (c), or
(d) or notifies Borrower of the occurrence of the circumstances described in
Section 3.14, then, provided that (a) no Default has occurred and is continuing,
and (b) the circumstances resulting in such demand for payment or reimbursement
are not applicable to all Lenders, Borrower may terminate the Term Loan of such
Lender, in whole but not in part, by either (i) paying such Lender (and there
shall become due and payable) on such date the outstanding principal of all
Borrowings made by such Lender, all interest thereon, and any other Obligation
owed to such Lender (including any amounts payable under Section 3.15), if any,
or (ii) pursuant to the provisions of Section 13.11, proposing the introduction
of a replacement Lender satisfactory to Administrative Agent, or obtaining the
agreement of one or more existing Lenders, to assume the entire amount of the
Term Loan of the Lender whose Term Loan is being terminated, on the effective
date of such termination. Upon the satisfaction of all the foregoing conditions,
such Lender that is being terminated shall cease to be a "Lender" for purposes
of this Agreement, provided that Borrower shall continue to be obligated to such
Lender under Section 7.12 with respect to Indemnified Liabilities (as defined in
Section 7.12) arising prior to such termination.
SECTION 4)
UNENCUMBERED PROPERTIES; GUARANTIES
a) Unencumbered Properties. Borrower shall not permit, as of any date, the
ratio of the Companies' Unsecured Debt to the Unencumbered Property Value of all
Unencumbered Properties to exceed 0.50 to 1.0. For purposes of the foregoing,
"Unencumbered Property Value" means, as of any determination date, the sum of
(without duplication):
(a) the EBITDA Value of each Unencumbered Property owned by Borrower or a
Subsidiary Guarantor for, and in which construction was completed and a
certificate of occupancy was issued, more than twelve (12) months prior to such
determination date; plus
(b) the EBITDA Value of each Unencumbered Property owned by Borrower or a
Subsidiary Guarantor for, and in which construction was completed by a Company
and a certificate of occupancy was
issued, less than twelve (12) months prior to such determination date and that
has an Occupancy Rate of at least eighty-five percent (85%) for three (3)
consecutive months; plus
(c) if ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ is an Unencumbered Property, then the
Approved Costs of such Property until December 31, 2002 and, thereafter, the
EBITDA Value of such Property; plus
(d) the Approved Costs of each Unencumbered Property not included in (a)
through (c) above.
Notwithstanding the foregoing, Unencumbered Property Value shall be limited as
follows:
(i) the aggregate amount of Approved Costs (other than with respect to
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇) included in the calculation of Unencumbered
Property Value attributable to (x) Unencumbered Properties under
construction and (y) Unencumbered Properties owned by Borrower or a
Subsidiary Guarantor for, or in which construction work was completed and a
certificate of occupancy was issued, less than twelve (12) months prior to
the date of determination and that have Occupancy Rates of less than
eighty-five percent (85%), shall not exceed the lesser of (A) $90,000,000,
and (B) fifteen percent (15%) of Unencumbered Property Value;
(ii) the amount of Approved Costs or EBITDA Value, as the case may be,
included in the calculation of Unencumbered Property Value attributable to
any single Unencumbered Property shall not exceed twenty percent (20%) of
Unencumbered Property Value;
(iii) if any Company that owns any Unencumbered Property described
above has any minority interests, then Unencumbered Property Value shall be
adjusted to exclude the minority interests' Share of such Unencumbered
Property.
As of the Closing Date, the Unencumbered Properties consist of the Unencumbered
Properties listed on Schedule 4.1. No Unencumbered Property can have a value,
calculated as provided above, of less than $0.00.
b) Negative Pledge Agreements. Borrower shall not, and shall not permit any
other Company to, enter into or permit to exist any arrangement or agreement
(other than the Loan Documents) that directly or indirectly prohibits any
Company from (a) creating or incurring any Lien (other than Permitted Liens) on
any Unencumbered Property, or (b) transferring ownership of any Unencumbered
Property.
c) Guaranties.
(a) PPT Guaranty. Pursuant to the PPT Guaranty, PPT shall unconditionally
guarantee in favor of the Credit Parties the full payment and performance of the
Obligation.
(b) Subsidiary Guaranty. Pursuant to the Subsidiary Guaranty or an addendum
thereto in the form attached to the Subsidiary Guaranty, each Company that owns
an Unencumbered Property shall unconditionally guarantee in favor of the Credit
Parties the full payment and performance of the Obligation subject to the last
two sentences of Section 4.4.
(c) Release of Specific Subsidiary Guarantors. If, as of any date, any
Property owned by a Subsidiary Guarantor is no longer an Unencumbered Property,
then Administrative Agent shall, upon the written request of Borrower, release
such Subsidiary Guarantor from the Subsidiary Guaranty pursuant to a
release of guaranty in the form attached to the Subsidiary Guaranty, unless a
Default exists or would result from such release.
d) Unencumbered Properties Held by Consolidated Affiliates. Notwithstanding
anything contained herein to the contrary, Unencumbered Properties may include
Properties owned by a Consolidated Affiliate of Borrower only if (a) in the case
of (i) the Terramics Entities, Borrower or PPT owns or controls, directly or
indirectly, at least eighty-nine percent (89%) of the issued and outstanding
Stock of such Consolidated Affiliate free and clear of any Liens (other than
Permitted Liens) or other restrictions on the sale or pledge thereof, and (ii)
Consolidated Affiliates other than the Terramics Entities, Borrower or PPT owns
or controls, directly or indirectly, at least ninety-five percent (95%) of the
issued and outstanding Stock of such Consolidated Affiliate free and clear of
any Liens (other than Permitted Liens) or other restrictions on the sale or
pledge thereof, (b) a majority of the holders of the Stock of such Consolidated
Affiliate has the power to cause such Consolidated Affiliate to execute the
Subsidiary Guaranty, grant Liens in the Unencumbered Properties owned by such
Consolidated Affiliate, and transfer ownership of the Unencumbered Properties
owned by such Consolidated Affiliate, (c) such Consolidated Affiliate has not
(i) created, incurred, assumed, guaranteed, or suffered to exist any
Liabilities, other than (A) the Obligation, (B) trade payables created in the
ordinary course of business, (C) endorsements of negotiable instruments in the
ordinary course of business, (D) contingent Liabilities covered by reserves or
insurance, (E) the guaranty of the obligations of Borrower pursuant to any
Permitted Recourse Debt of Borrower, and (F) equipment leases incurred in the
ordinary course of business, (d) such Consolidated Affiliate has not created,
incurred, or suffered or permitted to be created or incurred or to exist any
Lien upon any of its assets (other than Permitted Liens), (e) such Consolidated
Affiliate has executed the Subsidiary Guaranty (except for the Consolidated
Affiliates that own the Maryland Properties, subject to the immediately
following sentence), and (f) such Consolidated Affiliate is not a general
partnership. Notwithstanding the foregoing, any Consolidated Affiliate may
guarantee any Unsecured Debt of Borrower or PPT, which guarantee shall be pari
passu with the obligations of such Consolidated Affiliate under the Subsidiary
Guaranty. Unencumbered Properties may include any Maryland Property and any
Northeast Region Property without the applicable Consolidated Affiliate that
owns such Maryland Property or Northeast Region Property executing the
Subsidiary Guaranty until the earlier of (x) (i) in the case of a Maryland
Property, April 1, 2001, and (ii) in the case of a Northeast Region Property,
June 30, 2001, and (y) such time as such Consolidated Affiliate no longer owns
such Maryland Property or Northeast Region Property or such Maryland Property or
Northeast Region Property no longer qualifies as an Unencumbered Property.
Unencumbered Properties shall not include any Maryland Property on or after
April 1, 2001 or any Northeast Region Property on or after June 30, 2001 unless
the applicable Consolidated Affiliate that owns such Maryland Property or
Northeast Region Property has executed the Subsidiary Guaranty or an addendum
thereto in the form attached to the Subsidiary Guaranty and delivered to
Administrative Agent such documents as Administrative Agent shall reasonably
request to evidence such Consolidated Affiliate's authority to enter into the
transactions contemplated thereby and such Maryland Property or Northeast Region
Property otherwise qualifies as an Unencumbered Property.
e) Minimum Unencumbered Property Value. Borrower shall not permit
Unencumbered Property Value, as of any date, to be less than $500,000,000.
SECTION 5)
CONDITIONS PRECEDENT
a) Conditions to Initial Borrowings. The obligation of Lenders to make the
initial Borrowings hereunder is subject to satisfaction of the following
conditions precedent on or before the Closing Date:
(a) Borrower Documents. Borrower shall deliver or cause to be delivered to
Administrative Agent the following, each, unless otherwise noted, dated as of
the Closing Date:
(i) A good standing certificate from the Secretary of State of the
State of Delaware and each other state in which an Unencumbered Property
owned by Borrower is located (to the extent that qualification is required
by applicable law) and, to the extent generally available, a certificate or
other evidence of good standing as to payment of any applicable franchise
or similar taxes from the appropriate taxing authority of each of such
states, each dated a recent date prior to the Closing Date;
(ii) An Officer's Certificate of Borrower certifying (A) changes to
its Constituent Documents since the date of the Existing Line of Credit,
(B) resolutions of its Board of Directors approving and authorizing the
execution, delivery, and performance of this Agreement and the other Loan
Documents, certified as of the Closing Date as being in full force and
effect without modification or amendment, and (C) signatures and incumbency
of its officers executing this Agreement and the other Loan Documents;
(iii) Executed originals of this Agreement, the Notes, and the other
Loan Documents; and
(iv) Such other documents as Administrative Agent may reasonably
request.
(b) Guarantor Documents. Borrower shall deliver or cause to be delivered to
Administrative Agent the following with respect to each Guarantor, each, unless
otherwise noted, dated as of the Closing Date:
(i) A good standing certificate from each Guarantor's jurisdiction of
incorporation or formation and each other state in which an Unencumbered
Property owned by each Guarantor is located (to the extent that
qualification is required by applicable law), and, to the extent generally
available, a certificate or other evidence of good standing as to payment
of any applicable franchise or similar taxes from the appropriate taxing
authority of each of such states, each dated a recent date prior to the
Closing Date;
(ii) Officer's Certificate of each Guarantor certifying (A) changes to
its Constituent Documents since the date of the Existing Line of Credit,
(B) resolutions of its Board of Directors approving and authorizing the
execution, delivery, and performance of the Loan Documents to which it is a
party, certified as of the Closing Date as being in full force and effect
without modification or amendment, and (C) signatures and incumbency of its
officers executing the Loan Documents to which it is a party;
(iii) Executed originals of the Loan Documents to which it is a party;
and
(iv) Such other documents as Administrative Agent may reasonably
request.
(c) Opinions of Counsel for Borrower and Guarantors. The Credit Parties and
their respective counsel shall have received originally executed copies of a
favorable written opinion of counsel for the Obligors, in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of the
Closing Date, and setting forth substantially the matters in the opinions
designated in Exhibit F and as to such other matters as Administrative Agent,
acting on behalf of the Credit Parties, may reasonably request.
(d) Fees. Borrower shall have paid to Administrative Agent, for
distribution (as appropriate) to the Credit Parties, the fees payable on the
Closing Date referred to in Section 3.17.
(e) Unencumbered Property Report. Borrower shall have delivered an
Unencumbered Property Report dated as of December 31, 2000.
(f) Compliance Certificate. Borrower shall have delivered a Compliance
Certificate dated as of December 31, 2000.
(g) Completion of Proceedings. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Administrative
Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in
form and substance to Administrative Agent and such counsel, and Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably
request.
(h) Representations and Warranties; Performance of Agreements. The
representations and warranties in Loan Documents are true, correct, and complete
in all material respects as of the Closing Date.
b) Conditions to all Borrowings. No Lender shall be obligated to (a) fund
any Term Loan, (b) convert any Base Rate Borrowing to a Eurodollar Borrowing, or
(c) continue any Eurodollar Borrowing for a successive Interest Period, unless,
as of the date of such Term Loan or Borrowing:
(a) No Default. No Potential Default, Default, or Material Adverse Event
exists or would be caused by the making of such Borrowing.
(b) No Injunction or Restraining Order. No order, judgment, or decree of
any Governmental Authority shall purport to enjoin or restrain any Lender from
making the Borrowing to be made by it.
(c) No Violation. The making of the Borrowing shall not violate any
Governmental Requirement, including, without limitation, Regulation T,
Regulation U, or Regulation X of the Board of Governors of the Federal Reserve
System.
c) Conditions Generally. Each condition precedent in this Agreement is
material to the transactions contemplated by this Agreement, and time is of the
essence with respect to each condition precedent. Lenders may fund any Borrowing
without all conditions being satisfied, but, to the extent permitted by
Governmental Requirements, such funding shall not be deemed to be a waiver of
the requirement that each condition precedent be satisfied as a prerequisite for
any subsequent funding or issuance, unless Lenders specifically waive each item
in writing.
SECTION 6)
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Credit Parties as follows:
a) Purpose of Credit Facility. Borrower shall use proceeds of the
Borrowings hereunder to pay existing Indebtedness of Borrower under the Dresdner
Agreement. Borrower is not engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, as
amended. No part of the proceeds of the Term Loans shall be used, directly or
indirectly, for a purpose that violates any Governmental Requirement, including
the provisions of Regulation U.
b) Existence, Good Standing, Authority and Compliance. Each Company is duly
formed, validly existing and in good standing under the Governmental
Requirements of the jurisdiction in which it is incorporated or formed as
identified on Schedule 6.2 (as supplemented from time to time). Each Company (a)
is duly qualified to transact business and is in good standing as a foreign
trust, corporation, partnership, limited liability company, or other entity in
each jurisdiction where the nature and extent of its business and properties
require due qualification and good standing, which jurisdictions are identified
on Schedule 6.2 (as supplemented from time to time to reflect changes as a
result of transactions permitted by the Loan Documents), except where the
failure to so qualify could not result in a Material Adverse Event, (b)
possesses all requisite authority, permits and power to conduct its business as
is now being, or is contemplated by this Agreement to be, conducted, and (c) is
in compliance with all applicable Governmental Requirements.
c) Affiliates. Borrower has no Consolidated Affiliates or Unconsolidated
Affiliates except as disclosed on Schedule 6.2 (as supplemented from time to
time to reflect changes as a result of transactions permitted by the Loan
Documents).
d) Authorization and Contravention. The execution and delivery by each
Company of each Loan Document or related document to which it is a party, and
the performance by it of its obligations thereunder, (a) are within its trust,
corporate, limited liability company, or partnership power, (b) have been duly
authorized by all necessary trust, corporate, limited liability company, or
partnership action of such Person, (c) require no action by or filing with any
Governmental Authority, (d) do not violate any provision of its Constituent
Documents, (e) do not violate any provision of any Governmental Requirement or
order of any Governmental Authority applicable to it, (f) do not violate any
material agreements to which it is a party, or (g) do not result in the creation
or imposition of any Lien on any asset of any Company, other than pursuant to
the Loan Documents.
e) Binding Effect. Upon execution and delivery by all parties thereto, each
Loan Document to which it is a party shall constitute a legal and binding
obligation of each Company, enforceable against such Company in accordance with
its terms, subject to applicable Debtor Relief Laws and general principles of
equity.
f) Financial Statements; Fiscal Year. The Current Financials were prepared
in accordance with GAAP and present fairly, in all material respects, the
consolidated financial condition, results of operations, and cash flows of the
Companies as of, and for the portion of the fiscal year ending on the date or
dates thereof (subject only to normal audit adjustments). All material
liabilities of the Companies as of the date or dates of the Current Financials
are reflected therein or in the notes thereto. Except for transactions directly
related to, or specifically contemplated by, the Loan Documents or disclosed in
the Current Financials, no subsequent material adverse changes have occurred in
the consolidated financial condition of the Companies from that shown in the
Current Financials. The fiscal year of each Company ends on December 31.
g) Litigation. Except as disclosed on Schedule 6.7, no Company is subject
to, or aware of the threat of, any Litigation that is reasonably likely to be
determined adversely to such Company or the Companies, taken as a whole or, if
so adversely determined, is a Material Adverse Event. No outstanding and
unpaid final and non-appealable judgments against any Company exist which could
result in a Material Adverse Event.
h) Taxes.
(a) All Tax returns of each Company required to be filed have been filed
(or extensions have been granted) before delinquency, and all Taxes imposed upon
each Company that are due and payable have been paid before delinquency or are
being contested in good faith by appropriate proceedings diligently conducted
and for which reserves in accordance with GAAP or otherwise reasonably
acceptable to Administrative Agent have been provided.
(b) As of the date hereof, no United States federal income tax returns of
the "affiliated group" (as defined in the Code) of which any Company is a member
have been examined and closed. The members of such affiliated group have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by or any of them (except
for taxes being contested in good faith by appropriate proceedings diligently
conducted and for which reserves in accordance with GAAP or otherwise acceptable
to Administrative Agent have been provided). The charges, accruals, and reserves
on the books of the Companies in respect of taxes or other governmental charges
are, in the opinion of the Companies, adequate.
(c) PPT qualifies as a REIT.
i) Environmental Matters. Except as disclosed on Schedule 6.9, and except
where the breach of any of the following representations could not result in a
Material Adverse Event, (a) no environmental condition or circumstance exists
that materially and adversely affects any Company's properties or operations,
(b) no Company has received any report of any Company's violation of any
Environmental Law that has not been remedied, (c) no Company knows that any
Company is under any obligation to remedy any violation of any Environmental
Law, or (d) to the best of Borrower's knowledge, no facility of any Company is
or has been used for storage, treatment, or disposal of any Hazardous Substance,
except for (i) the storage and use of cleaning and maintenance materials, used
and stored in commercially reasonable quantities and in compliance with
applicable Environmental Laws, and (ii) light manufacturing and distribution
activities of tenants, in compliance with applicable Environmental Laws,
provided that such tenants are not primarily engaged in the treatment,
processing, recycling, or disposal of any Hazardous Substance, or for any other
use that would give rise to the release of any Hazardous Substance on such
facility. Each Company has taken prudent steps to determine that its properties
and operations do not violate any Environmental Law.
j) Employee Plans. Except where occurrence or existence could not
reasonably be expected to result in a Material Adverse Event, (a) no Employee
Plan has incurred an "accumulated funding deficiency" (as defined in Section 302
of ERISA or Section 412 of the Code), (b) no Company has incurred liability
under ERISA to the PBGC in connection with any Employee Plan (other than
required insurance premiums, all of which have been paid), (c) no Company has
withdrawn in whole or in part from participation in a Multi-employer Plan, (d)
no Company has engaged in any "prohibited transaction" (as defined in Section
406 of ERISA or Section 4975 of the Code), and (e) no "reportable event" (as
defined in Section 4043 of ERISA) has occurred, excluding events for which the
notice requirement is waived under applicable PBGC regulations.
k) Properties; Liens. Each Company has good title to all of its property
reflected on the Current Financials (except for property that is obsolete or
that has been disposed in the ordinary course of business or, after the date of
this Agreement, as otherwise permitted by Section 8.7 or Section 8.8). Except
for Permitted
Liens, no Lien exists on any Unencumbered Property, and the execution, delivery,
performance, or observance of the Loan Documents shall not require or result in
the creation of any Lien on any Unencumbered Property.
l) Locations. Each Company's chief executive office is located at the
address set forth on Schedule 6.2 (as supplemented from time to time). Each
Company's books and records are located at its chief executive office.
m) Government Regulations. No Company is subject to regulation under the
Investment Company Act of 1940, as amended, or the Public Utility Holding
Company Act of 1935, as amended.
n) Transactions with Affiliates. Except as disclosed on Schedule 6.14 (as
supplemented from time to time if the disclosures are approved by Administrative
Agent), no Company is a party to a material transaction with any of its
Affiliates, other than transactions in the ordinary course of business and upon
fair and reasonable terms not materially less favorable than it could obtain or
could become entitled to in an arm's-length transaction with a Person that was
not its Affiliate.
o) Insurance. Each Company maintains with financially sound, responsible,
and reputable insurance companies or associations (or, as to workers'
compensation or similar insurance, with an insurance fund or by self-insurance
authorized by the jurisdictions in which it operates) insurance concerning its
properties and businesses against casualties and contingencies and of types and
in amounts (and with co-insurance and deductibles) as is customary in the case
of similar businesses.
p) Labor Matters. No actual or, to Borrower's knowledge, threatened
strikes, labor disputes, slow downs, walkouts, or other concerted interruptions
of operations by the employees of any Company that could reasonably be expected
to result in a Material Adverse Event exist. All payments due from any Company
for employee health and welfare insurance have been paid or accrued as a
liability on its books, other than any non-payment that are not, individually or
collectively, a Material Adverse Event.
q) Solvency. Each Company is Solvent.
r) Full Disclosure. Each material fact or condition relating to the
financial condition or business of the Companies which could reasonably be
expected to result in a Material Adverse Event has been disclosed to
Administrative Agent. All information previously furnished, furnished on the
date of this Agreement, and furnished in the future, by any Company to
Administrative Agent in connection with the Loan Documents (a) was, is, and will
be, true and accurate in all material respects or based on good faith estimates
on the date the information is stated or certified, and (b) did not, does not,
and will not, fail to state any material fact the existence of which or the
omission of which could be or result in a Material Adverse Event.
s) Exemption from ERISA; Plan Assets. PPT is a "real estate operating
company" within the meaning of 29 C.F.R.Section.2510.3-101(e) (or any successor
regulation) and the assets of the Companies would not be deemed "plan assets" as
defined in 29 C.F.R.Section. 2510.3-101(a)(1) (or any successor regulation) of
any Employee Plan or Multi-employer Plan.
SECTION 7)
AFFIRMATIVE COVENANTS
So long as Lenders are committed to fund any Borrowings under this
Agreement and until the Obligation is paid in full, Borrower covenants and
agrees as follows:
a) Items to be Furnished. Borrower shall cause the following to be
furnished to Administrative Agent (with sufficient copies for each Lender):
(a) Annual Financial Statements. Promptly after preparation, and no later
than ninety (90) days after the last day of each fiscal year of PPT, Financial
Statements of PPT showing the consolidated financial condition and results of
operations of PPT as of, and for the year ended on, that last day, accompanied
by: (A) the unqualified opinion of an accounting firm of nationally-recognized
independent certified public accountants, based on an audit using generally
accepted auditing standards, that the Financial Statements of PPT were prepared
in accordance with GAAP and present fairly, in all material respects, the
consolidated financial condition and results of operations of PPT; and (B) a
Compliance Certificate.
(b) Periodic Financial Statements. Promptly after preparation, and no later
than forty-five (45) days after the last day of each fiscal quarter (except the
last) of PPT: (i) Financial Statements of PPT showing the consolidated financial
condition and results of operations of PPT for the fiscal quarter and for the
period from the beginning of the current fiscal year to the last day of the
fiscal quarter; and (ii) a Compliance Certificate.
(c) Other Reports.
(i) Promptly after receipt, a copy of each interim or special audit
report and management letter issued by independent accountants with respect
to Borrower and PPT or their financial records.
(ii) Promptly upon its becoming available, each press release and each
regular or periodic report and any registration statement or prospectus in
respect thereof filed by Borrower or PPT with, or received by Borrower or
PPT in connection therewith from, any securities exchange or the Securities
and Exchange Commission, or any successor agency thereof, including,
without limitation, each Form 10-K, 10-Q, and S-8 filed with the Securities
and Exchange Commission.
(iii) Promptly after the mailing or delivery thereof, copies of all
material reports or other information from Borrower or PPT to its
shareholders or partners (other than reports or other information delivered
only to Responsible Officers or other employees of Borrower or PPT).
(d) Unencumbered Property Report. Promptly after the preparation, and no
later than forty-five (45) days after the last day of each fiscal quarter of
Borrower, an Unencumbered Property Report and certifying compliance with Section
4.1.
(e) Unencumbered Property Information. Promptly upon reasonable request by
Administrative Agent, information concerning the Unencumbered Properties,
including, without limitation, rent rolls, operating statements, Capital
Expenditure budgets, copies of leases, copies of tenant financial statements,
agings of rent payments, copies of existing environmental assessments, and
copies of existing property inspection reports.
(f) Notices. Notice, promptly after a Responsible Officer of Borrower knows
of (i) the existence and status of any Litigation that, if determined adversely
to any Company, could reasonably be expected to result in a Material Adverse
Event, (ii) any change in any material fact or circumstance represented or
warranted by any Company in any Loan Document which could be or result in a
Material Adverse Event, (iii) the receipt by any Company of notice of any
violation or alleged violation of ERISA or any Environmental Law (which
individually or collectively with other violations or allegations could
reasonably be expected to result in a Material Adverse Event), or (iv) a Default
or Potential Default, specifying the nature thereof and what action Borrower has
taken, is taking, or proposes to take.
(g) Change in Control. Promptly upon any Change in Control, notice of such
event together with a description of the transaction giving rise thereto.
(h) Other Information. Promptly upon reasonable request by Administrative
Agent, information (not otherwise required to be furnished under the Loan
Documents) respecting the business affairs, assets, and liabilities of the
Companies and opinions, certifications, and documents in addition to those
mentioned in this Agreement.
b) Use of Proceeds. Borrower shall use the proceeds of Borrowings only for
the purposes represented in this Agreement.
c) Books and Records. Borrower shall, and shall cause each Company to,
maintain books, records, and accounts necessary to prepare financial statements
in accordance with GAAP.
d) Inspections. Upon reasonable notice and during normal business hours,
Borrower shall, and shall cause each Company to, allow Administrative Agent (or
its Representatives who may be accompanied by Representatives of one (1) or more
Lenders) to inspect any of their respective properties (subject to the
inspection rights in any tenant leases), to review reports, files, and other
records and to make and take away copies, and to discuss in the presence of
Borrower or such other Company any of its affairs, conditions and finances with
its other creditors, directors, officers, employees, or representatives from
time to time, during reasonable business hours.
e) Taxes. Borrower shall, and shall cause each Company to, promptly pay
prior to delinquency any and all Taxes, other than Taxes that are being
contested in good faith by lawful proceedings diligently conducted, against
which reserves or other provisions required by GAAP have been made, and in
respect of which levy and execution of any Lien have been and continue to be
stayed.
f) Payment of Obligations. Borrower shall, and shall cause each Company to,
promptly pay (or renew and extend) all of their respective obligations as they
become due (unless any such obligations are being contested in good faith by
appropriate proceedings and against which reserves or other provisions required
by GAAP have been made, except where the failure to so pay (or renew or extend)
could not result in a Material Adverse Event).
g) Expenses. Borrower shall promptly pay following demand (a) all costs,
fees, and expenses paid or incurred by Administrative Agent in connection with
the arrangement, syndication, and negotiation of the loan evidenced by this
Agreement and the other Loan Documents and the negotiation, preparation,
delivery, and execution of the Loan Documents and any related amendment, waiver,
or consent (including in each case the reasonable fees and expenses of
Administrative Agent's counsel), and (b) all costs, fees, and expenses of
Administrative Agent and, after a Default, Lenders incurred by Administrative
Agent or, after a Default, any Lender in connection with the enforcement of the
obligations of any Obligor arising under the Loan Documents or the exercise of
any Rights arising under the Loan Documents (including reasonable attorneys'
fees, expenses, and costs paid or incurred in connection with any workout or
restructure and any
action taken in connection with any Debtor Relief Laws), all of which shall be a
part of the Obligation and shall bear interest, if not paid upon demand, at the
Default Rate until repaid.
h) Maintenance of Existence, Assets, and Business. Each Company shall (a)
maintain its trust, partnership, limited liability company, or corporate
existence in good standing in its state of organization, and (b) except where
not a Material Adverse Event (i) maintain its authority to transact business in
good standing in all other states, (ii) maintain all licenses, permits,
franchises, and Governmental Requirements necessary for its business, and (iii)
keep all of its material assets that are useful in and necessary to its business
in good working order and condition (ordinary wear and tear excepted) and make
all necessary repairs and replacements.
i) Insurance. Borrower shall, and shall cause each Company to, maintain
with financially sound, responsible, and reputable insurance companies or
associations (or, as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdictions in which it
operates) insurance reasonably acceptable to Administrative Agent concerning its
properties and businesses against casualties and contingencies and of types and
in amounts (and with co-insurance and deductibles) as is customary in the case
of similar businesses. At Administrative Agent's request, Borrower shall, and
shall cause each Company to, deliver to Administrative Agent evidence of
insurance for each policy of insurance and evidence of payment of all premiums.
j) Preservation and Protection of Rights. Borrower shall, and shall cause
each other Obligor to, perform the acts and duly authorize, execute,
acknowledge, deliver, file, and record any additional writings as Administrative
Agent may reasonably deem necessary or appropriate to preserve and protect the
Rights of the Credit Parties under any Loan Document.
k) Environmental Laws. Borrower shall, and shall cause each Company to, (a)
operate and manage its businesses and otherwise conduct its affairs in
compliance with all Environmental Laws, except to the extent noncompliance could
not reasonably be expected to result in a Material Adverse Event, (b) promptly
deliver to Administrative Agent a copy of any written notice received from any
Governmental Authority alleging that any Company is not in compliance with any
Environmental Law, where such notice or non-compliance could result in a
Material Adverse Event, and (c) promptly deliver to Administrative Agent a copy
of any written notice received from any Governmental Authority alleging that any
Company has any potential environmental Liability that could result in a
Material Adverse Event.
l) Indemnification.
(a) As Used in This Section: (i) "Indemnitor" Means the Obligors; (ii)
----------
"Indemnitee" Means Each Credit Party, Each Present and Future Affiliate of Each
----------
Credit Party, Each Present and Future Representative of Each Credit Party, or
Any of Such Affiliates, and Each Present and Future Successor and Assign of Each
Credit Party, or Any of Such Affiliates OR Representatives; and (iii)
"Indemnified Liabilities" Means All Present and Future, Known and Unknown, Fixed
-----------------------
And Contingent, Administrative, Investigative, Judicial, and Other Claims,
Demands, Actions, Causes of Action, Investigations, Suits, Proceedings, Amounts
Paid in Settlement, Damages, Judgments, Penalties, Court Costs, Liabilities, and
Obligations -- and All Present and Future Costs, Expenses, and Disbursements
(Including, Without Limitation, All Reasonable Attorneys' Fees and Expenses
Whether or Not Suit or Other Proceeding Exists or Any Indemnitee is Party to Any
Suit or Other Proceeding) in Any Way Related to Any of the Foregoing -- That May
At Any Time be Imposed On, Incurred By, Or
Asserted Against Any Indemnitee and in Any Way Relating to or Arising Out of Any
(A) Loan Document, Transaction Contemplated by Any Loan Document, or Any
Property, (B) Environmental Liability in Any Way Related to Any Company, Any
Property, or Any Act, Omission, Status, Ownership, or Other Relationship,
Condition, or Circumstance Contemplated By, Created Under, or Arising Pursuant
to or in Connection With Any Loan Document, or (C) Indemnitee's Sole Or
--------------------
Concurrent Ordinary Negligence.
------------------------------
(b) Each Indemnitor Shall Jointly and Severally Indemnify Each Indemnitee
From and Against, Protect and Defend Each Indemnitee From and Against, Hold Each
Indemnitee Harmless From and Against, and On Demand Pay or Reimburse Each
Indemnitee For, All Indemnified Liabilities.
(c) The Foregoing Provisions (I) are Not Limited in Amount Even if That
Amount Exceeds the Obligation, (Ii) Include, Without Limitation, Reasonable Fees
and Expenses of Attorneys and Other Costs and Expenses of Litigation or
Preparing for Litigation and Damages or Injury to Persons, Property, or Natural
Resources Arising Under Any Statutory or Common Law, Punitive Damages, Fines,
and Other Penalties, and (Iii) are Not Affected by the Source or Origin of Any
Hazardous Substance, and (Iv) are Not Affected by Any Indemnitee's
Investigation, Actual or Constructive Knowledge, Course of Dealing, or Waiver.
(d) No Indemnitee is entitled to be indemnified under the Loan Documents
for its or its Representatives' own fraud, gross negligence, or willful
misconduct.
(E) The Provisions of and Indemnification and Other Undertakings Under This
Section Survive the Satisfaction of the Obligation and the Termination of the
Loan Documents.
m) REIT Status. At all times, PPT (including its organization and method of
operations and those of its Consolidated Affiliates) shall qualify as a REIT.
n) ERISA Exemptions. PPT shall qualify as a "real estate operating company"
under the 29 C.F.R. Section. 2510.3-101(e) (or any successor regulation) or
other appropriate exemption such that its assets shall not be deemed "plan
assets" as defined in 29 C.F.R. Section. 2510.3-101(a)(1) (or any successor
regulation) of any Employee Plan or Multi-employer Plan.
o) Listed Company. The common Stock of PPT shall at all times be listed for
trading and be traded on either the New York Stock Exchange or American Stock
Exchange.
SECTION 8)
NEGATIVE COVENANTS
So long as Lenders are committed to fund any Borrowings under this
Agreement and until the Obligation is paid in full, Borrower covenants and
agrees as follows:
a) Payment of Obligations. Borrower shall not, and shall not permit any
Company to, voluntarily prepay principal of, or interest on, any Liabilities
other than the Obligation, if a Default exists.
b) Employee Plans. Except where a Material Adverse Event would not result,
Borrower shall not, and shall not permit any Company to, permit any of the
events or circumstances described in Section 6.10 to exist or occur.
c) Transactions with Affiliates. Except as disclosed on Schedule 6.14 (as
supplemented from time to time to reflect changes as a result of transactions
permitted by this Agreement or approved by the Required Lenders), Borrower shall
not, and shall not permit any Company to, enter into any material transaction
with any of its Affiliates, other than transactions in the ordinary course of
business and upon fair and reasonable terms not materially less favorable than
it could obtain or could become entitled to in an arm's-length transaction with
a Person that was not its Affiliate.
d) Compliance with Governmental Requirements and Documents. Borrower shall
not, and shall not permit any Company to, (a) violate the provisions of any
Governmental Requirements applicable to it or of any material agreement to which
it is a party if that violation alone, or when aggregated with all other
violations, could reasonably be expected to result in Material Adverse Event,
(b) violate the provisions of its Constituent Documents where such violation
could result in a Material Adverse Event, or (c) repeal, replace, or amend any
provision of its Constituent Documents if that action could reasonably be
expected to result in a Material Adverse Event.
e) Loans, Advances, and Investments. Without the prior written consent of
the Required Lenders, no Company shall have or make any investments in:
(a) Properties consisting of raw land exceeding in the aggregate five
percent (5%) of Total Assets;
(b) Properties under construction having actual and budgeted costs
exceeding in the aggregate twenty percent (20%) of Total Assets (including the
total budgeted project costs for all Properties under construction); provided
that the Companies may not have Properties under construction that are less than
fifty percent (50%) pre-leased having actual and budgeted costs exceeding in the
aggregate fifteen percent (15%) of Total Assets (including the total budgeted
project costs for all Properties under construction);
(c) Except for Borrower's investment in Broadmoor, Investments in Joint
Ventures exceeding in the aggregate twenty percent (20%) of Total Assets;
(d) Loans, mortgages, advances, and extensions of credit to Persons
exceeding in the aggregate ten percent (10%) of Total Assets;
(e) The Stock of Persons that are neither Consolidated Affiliates nor
Investments in Joint Ventures exceeding in the aggregate five percent (5%) of
Total Assets; or
(f) The investments described in (a) through (e) above exceeding in the
aggregate (without duplication) thirty percent (30%) of the sum of (i) Total
Assets, and (ii) to the extent not included in the calculation of Total Assets,
budgeted project costs for all Properties under construction.
f) Distributions and Redemptions. Borrower shall not, and shall not permit
any Company to, declare, make, or pay any Distribution other than (a) Permitted
Distributions, (b) Distributions declared, made, or paid by (i) any Company
wholly in the form of its Stock, and (ii) any Company (other than Borrower) to
Borrower or to PPT, and (c) Distributions paid to the holders of PPT's Stock who
simultaneously use the
proceeds of such Distributions to purchase additional shares of PPT's Stock
pursuant to a dividend reinvestment program; provided that the amount of any
Distributions made pursuant to clauses (b) and (c) shall not be limited by
clause (a). Borrower shall not, and shall not permit any Company to, declare,
make, or pay any Redemptions (net of the amount of any Net Proceeds from the
resale of Stock previously redeemed pursuant to a Permitted Redemption) other
than Permitted Redemptions. Borrower shall not, and shall not permit any Company
to, enter into or permit to exist any arrangement or agreement (other than this
Agreement and restrictions no more restrictive than those set forth in this
Section 8.6 contained in loan documents with respect to other Indebtedness
permitted by this Agreement) that prohibits it from paying Distributions to its
shareholders, partners, or members. Nothing in this Section 8.6 restricts the
issuance by any Company of preferred Stock solely because such Stock requires
the payment of Distributions with respect to such Stock prior to the payment of
Distributions with respect to common Stock.
g) Sale of Assets. Neither Borrower nor PPT shall sell, assign, lease,
transfer, or otherwise dispose of all or substantially all of its assets.
h) Mergers and Dissolutions. Borrower shall not, and shall not permit any
Obligor to, merge or consolidate with any other Person or liquidate, wind up, or
dissolve (or suffer any liquidation or dissolution); provided, however, that the
foregoing shall not operate to prevent mergers or consolidations of any Company
into Borrower or another Company (if such transaction does not reduce the net
worth of the Companies determined in accordance with GAAP).
i) Assignment. Borrower shall not, and shall not permit any Company to,
assign or transfer any of its Rights, duties, or obligations under any of the
Loan Documents.
j) Fiscal Year and Accounting Methods. Without the prior written consent of
Administrative Agent, Borrower shall not, and shall not permit any Company to,
change its fiscal year or its method of accounting (other than immaterial
changes in methods or as required by GAAP).
k) New Businesses. Borrower shall not, and shall not permit any Company to,
engage in any type of business except the types of businesses in which they are
presently engaged and any other reasonably related business.
l) Government Regulations. Borrower shall not, and shall not permit any
Company to, conduct its business in a way that it becomes regulated under the
Investment Company Act of 1940, as amended, or the Public Utility Holding
Company Act of 1935, as amended.
m) Amendment of Constituent Documents. Borrower shall not permit any
amendment of any Company's Constituent Documents, if any, which would materially
and adversely affect any Credit Party or its respective Rights under the Loan
Documents.
n) Interest Rate Agreements. Borrower shall not permit the Companies'
Indebtedness that is not either subject to a fixed interest rate or hedged
pursuant to an Interest Rate Agreement acceptable to Administrative Agent
("Variable Rate Debt") to exceed twenty-five percent (25%) of Total Assets as of
such date; provided that the Companies' Variable Rate Debt may exceed
twenty-five percent (25%) of Total Assets for a period of time not to exceed
ninety (90) days if Borrower is diligently seeking Interest Rate Agreements with
respect to such Indebtedness or is in the process of incurring fixed rate
Indebtedness or an Equity Issuance in order to comply with the requirements of
this Section 8.14.
SECTION 9)
FINANCIAL COVENANTS
So long as Lenders are committed to fund Borrowings under this Agreement
and until the Obligation is paid and performed in full, Borrower covenants and
agrees with Administrative Agent and Lenders that Borrower shall not directly or
indirectly permit:
a) Minimum Tangible Net Worth. As of any date, the Tangible Net Worth to be
less than (a) $1,000,000,000, plus (b) eighty percent (80%) of the amount of Net
Proceeds of any Equity Issuances subsequent to May 23, 2000, minus (c) eighty
percent (80%) of the amount of any Permitted Redemptions subsequent to May 23,
2000.
b) Total Indebtedness to Total Assets. As of any date, the ratio of (a) all
Indebtedness of the Companies, on a consolidated basis, to (b) Total Assets to
exceed 0.55 to 1.0.
c) Maximum Secured Debt. As of any date, the ratio of (a) Secured Debt of
the Companies, on a consolidated basis, to (b) Total Assets to exceed 0.475 to
1.0.
d) Recourse Debt.
(i) As of any date, the Companies, individually or on a consolidated basis,
to incur, guaranty, or otherwise be or become, directly or indirectly, liable in
respect of any Recourse Debt (other than Permitted Recourse Debt).
(ii) As of any date, the ratio of (a) all Recourse Debt (other than
construction loans in which the commitment amount does not exceed seventy-five
percent (75%) of the aggregate budgeted project costs agreed to by Borrower and
the lender providing such construction loans) of the Companies, on a
consolidated basis, to (b) Unencumbered Property Value to exceed 0.75 to 1.0.
(iii) As of any date, the ratio of (a) all Recourse Debt of the Companies,
on a consolidated basis, to (b) Unencumbered Property Value to exceed 1.0 to
1.0.
e) Interest and Debt Service Coverage Ratios.
(a) As of any date, the ratio of (i) Aggregate EBITDA, to (ii) Interest
Expense of the Companies, on a consolidated basis, in each case for the twelve
(12) month period ending on the date of determination, to be less than 2.0 to
1.0. For purposes of the foregoing, Aggregate EBITDA and Interest Expense shall
include each Company's (as the case may be, but without duplication) Share of
Aggregate EBITDA and Interest Expense of their respective Unconsolidated
Affiliates.
(b) As of any date, the ratio of (i) Adjusted Property EBITDA for the
Unencumbered Properties owned by Borrower or a Subsidiary Guarantor as of such
date, to (ii) Assumed Interest Expense, on a consolidated basis, to be less than
2.0 to 1.0.
(c) As of any date, the ratio of (i) (A) Aggregate EBITDA, minus (B)
Non-Incremental Capital Expenditures (other than of Broadmoor), to (ii) Debt
Service, in each case for the twelve (12) month period ending on the date of
determination, to be less than 1.75 to 1.0. For purposes of the foregoing,
Aggregate
EBITDA, Non-Incremental Capital Expenditures, and Debt Service shall include
each Company's (as the case may be, but without duplication) Share of Aggregate
EBITDA, Non-Incremental Capital Expenditures, and Debt Service of their
respective Unconsolidated Affiliates.
(d) As of any date, the ratio of (i) Adjusted Property EBITDA for the
Unencumbered Properties owned by Borrower or a Subsidiary Guarantor as of the
date of determination that has an Occupancy Rate of at least eighty-five percent
(85%), to (ii) the outstanding Unsecured Debt of the Companies as of such date,
to be less than 0.13 to 1.0.
(e) As of any date, the ratio of (i) Adjusted Aggregate EBITDA, to (ii)
Fixed Charges, in each case for the twelve (12) month period ending on the date
of determination, to be less than 1.6 to 1.0.
For purposes of calculating any of the financial covenants in this Section 9,
(x) (i) Indebtedness shall not include any Indebtedness of any Company that has
been defeased, (ii) Total Assets shall not include any assets of any Company
that have been used to defease any Indebtedness of any Company, (iii) Aggregate
EBITDA, Adjusted Property EBITDA, and other income items shall not include any
income on or with respect to any assets of any Company that have been used to
defease any Indebtedness of any Company, and (iv) Interest Expense shall not
include any Interest Expense with respect to any Indebtedness that has been
defeased (except to the extent that such Interest Expense exceeds any income
excluded pursuant to clause (iii)); provided that the aggregate principal amount
of all Indebtedness that has been defeased shall not exceed $100,000,000 at any
time outstanding without the prior written consent of Administrative Agent, and
(y) the definitions of Adjusted Aggregate EBITDA, Adjusted Property EBITDA,
Indebtedness, Secured Debt, Recourse Debt, Aggregate EBITDA, Interest Expense,
Non-Incremental Capital Expenditures, Debt Service, Unsecured Debt, and Fixed
Charges shall include (without duplication) the Companies' Share of such amounts
for their Unconsolidated Affiliates (other than Broadmoor).
SECTION 10)
DEFAULT
The term "Default" means the occurrence of any one or more of the following
events:
a) Payment of Obligation.
(a) The failure of Borrower or PPT to pay any principal of the Obligation
at maturity (whether by its terms or by acceleration); or
(b) The failure of Borrower or PPT to pay any of the Obligation (other than
any principal at maturity (whether by its terms or by acceleration)) when it
becomes due and payable under the Loan Documents, and (i) for the first (1st)
and second (2nd) such failures, if any, occurring during any calendar year, such
failure shall continue for three (3) days after written notice thereof from
Administrative Agent to Borrower, and (ii) for any other such failures, if any,
such failure shall continue for five (5) days after such payment became due and
payable.
b) Covenants. The failure of Borrower (and, if applicable, any Company) to
punctually and properly perform, observe, and comply with:
(a) any covenant or agreement contained in Section 7.1; or
(b) any other covenant or agreement contained in any Loan Document (other
than the covenants to pay the principal of and interest on the Obligation and
the covenants in (a) preceding), and such failure shall continue for (i) thirty
(30) days after the earlier to occur of the date (A) Borrower knows of, or (B)
Borrower receives notice from Administrative Agent of, such failure, or (ii)
seventy-five (75) days after such earlier date if such failure is not capable of
being cured within thirty (30) days and Borrower is diligently pursuing cure
thereof.
c) Debtor Relief. Any Company (a) is not Solvent, (b) fails to pay its
Liabilities generally as they become due, (c) voluntarily seeks, consents to, or
acquiesces in the benefit of any Debtor Relief Law, or (d) becomes a party to or
is made the subject of any proceeding provided for by any Debtor Relief Law,
other than as a creditor or claimant, that could suspend or otherwise adversely
affect the Rights of any Credit Party granted in the Loan Documents (unless, if
the proceeding is involuntary, the applicable petition is dismissed within sixty
(60) days after its filing).
d) Judgments and Attachments. Any Company fails, within sixty (60) days
after entry, to pay, bond, or otherwise discharge any judgment or order for the
payment of money in excess of $1,000,000 (individually or collectively) or any
warrant of attachment, sequestration, or similar proceeding against such
Company's assets having a value (individually or collectively) of $1,000,000
unless such judgment, order for payment, warrant of attachment, sequestration,
or similar proceeding is (a) stayed on appeal, (b) diligently contested in good
faith by appropriate proceedings and adequate reserves have been set aside on
its books in accordance with GAAP, or (c) covered by insurance acceptable to
Administrative Agent.
e) Government Action.
(a) A final non-appealable order is issued by any Governmental Authority
(including the United States Justice Department) requiring any Company to divest
all or a substantial portion of its assets under any antitrust, restraint of
trade, unfair competition, industry regulation, or similar Governmental
Requirements, or
(b) any Governmental Authority seizes or otherwise appropriates, or takes
custody or control of, all or any substantial portion of the assets of any
Company, other than through condemnation proceeding.
f) Misrepresentation. Any material representation or warranty made by any
Company contained in any Loan Document at any time proves to have been incorrect
in any material respect when made and such misrepresentation shall continue for
thirty (30) days after the earlier to occur of the date (a) Borrower knows of,
or (b) Borrower receives notice from Administrative Agent of, such
misrepresentation.
g) Default Under Other Agreements.
(a) A default shall occur under the Existing Line of Credit and such
default shall continue for more than the period of grace or cure, if any,
specified therein or otherwise granted by the lenders thereof.
(b) Any Company or Companies shall fail to make any payment in respect of
any Recourse Debt in excess (individually or collectively at any time) of
$5,000,000 when due or within any applicable grace or cure period or otherwise
granted by the lender thereof; or
(c) A default shall occur in respect of credit agreement, note, mortgage,
indenture, or other agreement or document evidencing, securing, or otherwise
relating to any Recourse Debt in excess
(individually or collectively at any time) of $5,000,000 (other than a failure
to make any payment when due in respect of any such Recourse Debt) and such
default shall continue for more than the period of grace or cure, if any,
specified therein or otherwise granted by the lender thereof; or
(d) The acceleration of the maturity of any Non-Recourse Debt in excess
(individually or collectively during the term of this Agreement) of $125,000,000
of any Company or Companies; or
(e) The acceleration of the maturity of any Non-Recourse Debt in which the
Companies' Share of the amount thereof is in excess (individually or
collectively during the term of this Agreement) of $75,000,000 of any
Unconsolidated Affiliate of any Company.
h) Validity and Enforceability of Loan Documents. Except in accordance with
its terms or as otherwise expressly permitted by this Agreement, any Loan
Document at any time after its execution and delivery ceases to be in full force
and effect in any material respect or is declared by a Governmental Authority to
be null and void or its validity or enforceability is contested by any Company,
or any Company denies that it has any further liability or obligations under any
Loan Document to which it is a party.
i) Management Changes. During any period of twelve (12) consecutive
calendar months, individuals who were directors or trustees of PPT on the first
day of such period shall cease to constitute a majority of the board of
directors of PPT; provided, however, that the directors or trustees of PPT may
include new or replacement directors or trustees that (a) are an officer or
employee of an Affiliate, (b) are required in order (as a practical matter) for
the majority of the board of directors or trustees of PPT to be independent
directors or trustees, or (c) are independent directors or trustees that are
replacing another independent director or trustee whose term has expired or who
has voluntarily resigned.
j) Change in Control. A Change in Control shall occur.
k) Plan Assets. The assets of the Companies at any time constitute assets,
within the meaning of ERISA, the Code, and the respective regulations
promulgated thereunder, of any Employee Plan or Multi-employer Plan.
l) Termination of Credit Facility. Borrower shall fail to have terminated
the commitments of the lenders under the Dresdner Agreement and paid to such
lenders the Obligation (as defined in the Dresdner Agreement) outstanding
thereunder within one (1) Business Day after the Closing Date.
SECTION 11)
RIGHTS AND REMEDIES
a) Remedies Upon Default.
(a) Debtor Relief. If a Default (i) occurs under Section 10.3(c), or (ii)
occurs and is continuing under Section 10.3(a), (b) or (d), the commitment to
extend credit under this Agreement automatically terminates, the entire unpaid
balance of the Obligation automatically becomes due and payable without any
action of any kind whatsoever.
(b) Other Defaults. If a Default occurs and is continuing, subject to
the terms of Section 13.9(b), then Administrative Agent may, and upon the
request of the Required Lenders shall, do any one or more of the
following: (i) if the maturity of the Obligation has not already been
accelerated under Section 11.1(a), then declare the entire unpaid balance of all
or any part of the Obligation immediately due and payable, whereupon it is due
and payable; (ii) terminate any obligations of Lenders to extend credit under
this Agreement; (iii) reduce any claim to judgment; and (iv) exercise any and
all other legal or equitable Rights afforded by the Loan Documents, the
Governmental Requirements of the State of New York, or any other applicable
jurisdiction.
b) Waivers. To the extent permitted by applicable law, each Company waives
presentment and demand for payment, protest, notice of intention to accelerate,
notice of acceleration, and notice of protest and nonpayment, and agrees that
its liability with respect to all or any part of the Obligation is not affected
by any renewal or extension in the time of payment of all or any part of the
Obligation, by any indulgence, or by any release or change in any security for
the payment of all or any part of the Obligation.
c) Performance by Administrative Agent. If any covenant, duty, or agreement
of Borrower is not performed in accordance with the terms of the Loan Documents,
Administrative Agent may, while a Default exists, at its option, perform, or
attempt to perform that covenant, duty, or agreement on behalf of Borrower (and
any amount expended by Administrative Agent in its performance or attempted
performance is payable by Borrower to Administrative Agent on demand, becomes
part of the Obligation, and bears interest at the Default Rate from the date of
Administrative Agent's expenditure until paid). However, neither Administrative
Agent nor any Lender assumes or shall have, except by its express written
consent, any liability or responsibility for the performance of any covenant,
duty, or agreement of Borrower.
d) Not in Control. None of the covenants or other provisions contained in
any Loan Document shall, or shall be deemed to, give any Credit Party the Right
to exercise control over the assets (including real property), affairs, or
management of any Company.
e) Course of Dealing. The acceptance by any Credit Party of any partial
payment on the Obligation shall not be deemed to be a waiver of any Default then
existing. No waiver by any Credit Party of any Default shall be deemed to be a
waiver of any other then-existing or subsequent Default. No delay or omission by
any Credit Party in exercising any Right under the Loan Documents will impair
that Right or be construed as a waiver thereof or any acquiescence therein, nor
will any single or partial exercise of any Right preclude other or further
exercise thereof or the exercise of any other Right under the Loan Documents or
otherwise.
f) Cumulative Rights. All Rights available to the Credit Parties under the
Loan Documents are cumulative of and in addition to all other Rights granted to
the Credit Parties at law or in equity, whether or not the Obligation is due and
payable and whether or not the Credit Parties have instituted any suit for
collection, foreclosure, or other action in connection with the Loan Documents.
g) Application of Proceeds. Any and all proceeds ever received by any
Credit Party from the exercise of any Rights pertaining to the Obligation shall
be applied to the Obligation according to Section 3.9.
h) Certain Proceedings. Borrower shall promptly execute and deliver, or
cause the execution and delivery of, all applications, certificates,
instruments, and all other documents and papers Administrative Agent reasonably
requests in connection with the obtaining of any consent, approval,
registration, qualification, permit, license, or authorization of any
Governmental Authority or other Person necessary or appropriate for the
effective exercise of any Rights under the Loan Documents. Because Borrower
agrees that the Credit Parties' remedies at law for failure of Borrower to
comply with the provisions of this paragraph would be
inadequate and that failure would not be adequately compensable in damages,
Borrower agrees that the covenants of this Section 11.8 may be specifically
enforced.
SECTION 12)
AGENTS AND LENDERS
a) Agents.
(a) Appointment of Administrative Agent. Each Lender appoints
Administrative Agent (including, without limitation, each successor Agent in
accordance with this Section 12) as its nominee and agent to act in its name and
on its behalf (and Administrative Agent and each such successor accepts that
appointment): (i) to act as its nominee and on its behalf in and under all Loan
Documents; (ii) to arrange the means whereby its funds are to be made available
to Borrower under the Loan Documents; (iii) to take any action that it properly
requests under the Loan Documents (subject to the concurrence of other Lenders
as may be required under the Loan Documents); (iv) to receive all documents and
items to be furnished to it under the Loan Documents; (v) to be the secured
party, mortgagee, beneficiary, recipient, and similar party in respect of any
collateral, for the benefit of Lenders; (vi) to promptly distribute to it all
Financial Statements, Unencumbered Property Reports, notices received hereunder,
and other items specifically required to be delivered to it hereunder, and, upon
request, such other material information, requests, documents, and items
received under the Loan Documents; (vii) to promptly distribute to it its
ratable part of each payment or prepayment (whether voluntary, as proceeds of
collateral upon or after foreclosure, as proceeds of insurance thereon, or
otherwise) in accordance with the terms of the Loan Documents; (viii) to deliver
to the appropriate Persons requests, demands, approvals, and consents received
from it (including any requests to Borrower for additional information pursuant
to Section 7.1(i)); and (ix) to arrange for any inspections pursuant to Section
7.4. However, Administrative Agent may not be required to take any action that
exposes it to personal liability or that is contrary to any Loan Document or
applicable Governmental Requirement.
(b) Successor. Administrative Agent may assign all of its Rights and
obligations as Administrative Agent under the Loan Documents to any of its
Affiliates, which Affiliate shall then be the successor Administrative Agent
under the Loan Documents. Administrative Agent may also voluntarily resign by
giving thirty (30) days' prior written notice to Borrower and Lenders, and shall
resign upon the request of the Required Lenders for cause. If the initial or any
successor Administrative Agent ever ceases to be a party to this Agreement or if
the initial or any successor Administrative Agent ever resigns (whether
voluntarily or at the request of the Required Lenders), then the Required
Lenders shall (which, if no Default or Potential Default exists, is subject to
Borrower's approval that may not be unreasonably withheld) appoint the successor
Administrative Agent from among Lenders (other than the resigning Administrative
Agent). If the Required Lenders fail to appoint a successor Administrative Agent
within thirty (30) days after the resigning Administrative Agent has given
notice of resignation or the Required Lenders have removed the resigning
Administrative Agent, then the resigning Administrative Agent may, on behalf of
Lenders, appoint a successor Administrative Agent (which, if no Default or
Potential Default exists, is subject to Borrower's approval that may not be
unreasonably withheld), which must be a commercial bank having a combined
capital and surplus of at least $1,000,000,000 (as shown on its most recently
published statement of condition) and whose debt obligations (or whose parent's
debt obligations) are rated not less than Baa1 by ▇▇▇▇▇'▇ or BBB+ by S & P. If
no successor Administrative Agent has been appointed by the Required Lenders or
Administrative Agent, as provided above, then the retiring Administrative
Agent's resignation shall nevertheless become effective forty-five (45) days
after the retiring Administrative Agent's notice of resignation and the Required
Lenders shall thereafter perform all of the duties of Administrative Agent
hereunder and/or under any other Loan Documents
until such time, if any, as the Required Lenders appoint a successor
Administrative Agent, as provided in this Section 12.1(b). Upon its acceptance
of appointment as successor Administrative Agent, the successor Administrative
Agent succeeds to and becomes vested with all of the Rights of the prior
Administrative Agent, and the prior Administrative Agent is discharged from its
duties and obligations of Administrative Agent under the Loan Documents, and
each Lender shall execute the documents that any Lender, the resigning or
removed Administrative Agent, or the successor Administrative Agent reasonably
request to reflect the change. After any Administrative Agent's resignation or
removal as Administrative Agent under the Loan Documents, the provisions of this
Section inure to its benefit as to any actions taken or not taken by it while it
was Administrative Agent under the Loan Documents. If Borrower fails to respond
to any written request for any consent required in this Section 12.1(b) within
ten (10) days after the date that Borrower receives such request, then Borrower
shall be deemed to have given its consent to such request.
(c) Rights as Lender. Each Agent, in its capacity as a Lender, has the same
Rights under the Loan Documents as any other Lender and may exercise those
Rights as if it were not acting as an Agent. The term "Lender," unless the
context otherwise indicates, includes Agents. Administrative Agent's resignation
or removal does not impair or otherwise affect any Rights that it has or may
have in its capacity as an individual Lender. Each Lender and Borrower agree
that no Agent is a fiduciary for Lenders or for Borrower but are simply acting
in the capacities described in this Agreement to alleviate administrative
burdens for Borrower and Lenders, that Agents have no duties or responsibilities
to Lenders or Borrower except those expressly set forth in the Loan Documents,
and that each Agent in its capacity as a Lender has the same Rights as any other
Lender.
(d) Other Activities. Any Credit Party may now or in the future be engaged
in one or more loan, letter of credit, leasing, or other financing transactions
with Borrower or another Company, act as trustee or depositary for Borrower or
another Company, or otherwise be engaged in other transactions with Borrower
(collectively, the "other activities") not the subject of the Loan Documents.
Without limiting the Rights of Lenders specifically set forth in the Loan
Documents, no Credit Party is responsible to account to the other Credit Parties
for those other activities, and no Credit Party shall have any interest in any
other Credit Party's activities, any present or future guaranties by or for the
account of Borrower that are not contemplated by or included in the Loan
Documents, any present or future offset exercised by any Credit Party in respect
of those other activities, any present or future property taken as security for
any of those other activities, or any property now or hereafter in any Credit
Party's possession or control that may be or become security for the obligations
of Borrower arising under the Loan Documents by reason of the general
description of indebtedness secured or of property contained in any other
agreements, documents, or instruments related to any of those other activities
(but, if any payments in respect of those guaranties or that property or the
proceeds thereof is applied by any Credit Party to reduce the Obligation, then
each Lender is entitled to share ratably in the application as provided in the
Loan Documents).
b) Expenses. Should Administrative Agent commence any proceeding or in any
way seek to enforce its Rights under the Loan Documents, irrespective of whether
as a result thereof Administrative Agent shall acquire title to any collateral,
either through foreclosure, deed in lieu of foreclosure, or otherwise, each
Lender, upon demand therefor from time to time, shall contribute its share
(based on its Pro Rata Share) of the reasonable costs and/or expenses of any
such enforcement or acquisition, including, but not limited to, fees of
receivers or trustees, court costs, title company charges, filing and recording
fees, appraisers' fees and fees and expenses of attorneys to the extent not
otherwise reimbursed by Borrower. Without limiting the generality of the
foregoing, each Lender shall contribute its share (based on its Pro Rata Share)
of all reasonable costs and expenses incurred by Administrative Agent (including
reasonable attorneys' fees and expenses) if Administrative Agent employs counsel
for advice or other representation (whether or not any suit has been or
shall be filed) with respect to any collateral or any part thereof, or any of
the Loan Documents, or the attempt to enforce any Lien in any of the collateral,
or to enforce any rights of Administrative Agent or any of Borrower's or any
other Company's obligations under any of the Loan Documents, but not with
respect to any dispute between Administrative Agent and any other Lender(s). Any
loss of principal and interest resulting from any Default shall be shared by
Lenders in accordance with their respective Pro Rata Share. It is understood and
agreed that if Administrative Agent determines that it is necessary to engage
counsel for Lenders from and after the occurrence of a Potential Default or
Default, then said counsel shall be selected by Administrative Agent and written
notice of the same shall be delivered to Lenders.
c) Proportionate Absorption of Losses. Except as otherwise provided in the
Loan Documents, nothing in the Loan Documents gives any Lender any advantage
over any other Lender insofar as the Obligation is concerned or relieves any
Lender from ratably absorbing any losses sustained with respect to the
Obligation (except to the extent unilateral actions or inactions by any Lender
result in Borrower or any other Obligor on the Obligation having any credit,
allowance, setoff, defense, or counterclaim solely with respect to all or any
part of that Lender's Pro Rata Share of the Obligation).
d) Delegation of Duties; Reliance. Lenders may perform any of their duties
or exercise any of their Rights under the Loan Documents by or through
Administrative Agent, and Lenders and Administrative Agent may perform any of
their duties or exercise any of their Rights under the Loan Documents by or
through their respective Representatives. Administrative Agent, Lenders, and
their respective Representatives (a) are entitled to rely upon (and shall be
protected in relying upon) any written or oral statement believed by it or them
to be genuine and correct and to have been signed or made by the proper Person
and, with respect to legal matters, upon opinion of counsel selected by
Administrative Agent or that Lender (but nothing in this clause (a) permits
Administrative Agent to rely on (i) oral statements if a writing is required by
this Agreement or (ii) any other writing if a specific writing is required by
this Agreement), (b) are entitled to deem and treat each Lender as the owner and
holder of its portion of the Obligation for all purposes until written notice of
the assignment or transfer is given to and received by Administrative Agent (and
any request, authorization, consent, or approval of any Lender is conclusive and
binding on each subsequent holder, assignee, or transferee of or Participant in
that Lender's portion of the Obligation until that notice is given and
received), (c) are not deemed to have notice of the occurrence of a Default
(other than a Default of the types specified in Section 10.1) unless a
Responsible Officer of Administrative Agent, who handles matters associated with
the Loan Documents and transactions thereunder, has actual knowledge or
Administrative Agent has been notified by a Lender or Borrower, and (d) are
entitled to consult with legal counsel (including counsel for Borrower),
independent accountants, and other experts selected by Administrative Agent and
are not liable for any action taken or not taken in good faith by it in
accordance with the advice of counsel, accountants, or experts.
e) Limitation of Agents' Liability.
(a) Exculpation. No Agent nor any of their Affiliates or Representatives
will be liable for any action taken or omitted to be taken by it or them under
the Loan Documents in good faith and believed by it or them to be within the
discretion or power conferred upon it or them by the Loan Documents or be
responsible for the consequences of any error of judgment (except for fraud,
gross negligence, or willful misconduct), and no Agent nor any of its Affiliates
or Representatives has a fiduciary relationship with any Lender by virtue of the
Loan Documents (but nothing in this Agreement negates the obligation of
Administrative Agent to account for funds received by it for the account of any
Lender).
(b) Indemnity. Unless indemnified to its satisfaction against loss, cost,
liability, and expense, no Agent may be compelled to do any act under the Loan
Documents or to take any action toward the execution or
enforcement of the powers thereby created or to prosecute or defend any suit in
respect of the Loan Documents. If an Agent requests instructions from Lenders,
or the Required Lenders, as the case may be, with respect to any act or action
in connection with any Loan Document, then such Agent is entitled to refrain
(without incurring any liability to any Person by so refraining) from that act
or action unless and until it has received instructions. In no event, however,
may any Agent or any of its Representatives be required to take any action that
it or they determine could incur for it or them criminal or onerous civil
liability. Without limiting the generality of the foregoing, no Lender has any
right of action against any Agent as a result of such Agent's acting or
refraining from acting under this Agreement in accordance with instructions of
the Required Lenders (except for such Agent's fraud, gross negligence, or
willful misconduct).
(c) Reliance. No Agent is responsible to any Lender or any Participant for,
and each Lender represents and warrants that it has not relied upon any Agent in
respect of, (i) the creditworthiness of Borrower or PPT and the risks involved
to that Lender, (ii) the effectiveness, enforceability, genuineness, validity,
or the due execution of any Loan Document (except by such Agent), (iii) any
representation, warranty, document, certificate, report, or statement made
therein (except by such Agent) or furnished thereunder or in connection
therewith, (iv) the adequacy of any collateral now or hereafter securing the
Obligation or the existence, priority, or perfection of any Lien now or
hereafter granted or purported to be granted on any collateral under any Loan
Document, or (v) observation of or compliance with any of the terms, covenants,
or conditions of any Loan Document on the part of any Company. Each Lender
Agrees to Indemnify Each Agent and its Representatives and Hold Them Harmless
From and Against (But Limited to Such Lender's Pro Rata Share of) Any and All
Liabilities, Obligations, Losses, Damages, Penalties, Actions, Judgments, Suits,
Costs, Reasonable Expenses, and Reasonable Disbursements of Any Kind or Nature
Whatsoever That May be Imposed on, Asserted Against, or Incurred by Them in Any
Way Relating to or Arising Out of the Loan Documents or Any Action Taken or
Omitted by Them Under the Loan Documents if Such Agent and its Representatives
are Not Reimbursed for Such Amounts by Any Company. Although Each Agent and Its
Representatives Have the Right to be Indemnified Under This Agreement for Its or
Their Own Ordinary Negligence, Each Agent and its Representatives Do Not Have
the Right to be Indemnified Under This Agreement for Its or Their Own Fraud,
Gross Negligence, or Willful Misconduct.
f) Default. While a Default exists, Lenders agree to promptly confer in
order that the Required Lenders or Lenders, as the case may be, may agree upon a
course of action for the enforcement of the Rights of Lenders. Administrative
Agent is entitled to act or refrain from taking any action (without incurring
any liability to any Person for so acting or refraining) unless and until it has
received instructions from the Required Lenders. In actions with respect to any
Company's property, Administrative Agent is acting for the ratable benefit of
each Lender.
g) Limitation of Liability. No Lender or any Participant will incur any
liability to any other Lender or Participant except for acts or omissions in bad
faith, and neither Administrative Agent nor any Lender or Participant will incur
any liability to any other Person for any act or omission of any other Lender or
any Participant.
h) Relationship of Lenders. The Loan Documents do not create a partnership
or joint venture among the Credit Parties.
i) Benefits of Agreement. None of the provisions of this Section inure to
the benefit of any Company or any other Person except the Credit Parties.
Therefore, no Company nor any other Person is
responsible or liable for, entitled to rely upon, or entitled to raise as a
defense -- in any manner whatsoever -- the failure of any Credit Party to comply
with these provisions.
j) Approval of Lenders.
(a) All communications from Administrative Agent to Lenders requesting
Lenders' determination, consent, approval, or disapproval (i) shall be given in
the form of a written notice to each Lender, (ii) shall be accompanied by a
description of the matter or thing as to which such determination, approval,
consent, or disapproval is requested, or shall advise each Lender where such
matter or thing may be inspected, or shall otherwise describe the matter or
issue to be resolved, (iii) shall include, if reasonably requested by a Lender
and to the extent not previously provided to such Lender, written materials and
a summary of all oral information provided to Administrative Agent by Borrower
in respect of the matter or issue to be resolved, and (iv) shall include
Administrative Agent's recommended course of action or determination in respect
thereof. Each Lender shall reply promptly, but in any event (x) within thirty
(30) days (or such lesser period as may be required under the Loan Documents for
Administrative Agent to respond) for those matters requiring the consent by the
Majority Lenders or all Lenders, and (y) within fifteen (15) Business Days (or
such lesser period as may be required under the Loan Documents for
Administrative Agent to respond) for those matters requiring the consent by the
Required Lenders, in each instance, after receipt of the request therefore by
Administrative Agent (in either event, the "Lender Reply Period").
(b) Unless a Lender shall give written notice to Administrative Agent that
it objects to the recommendation or determination of Administrative Agent within
the Lender Reply Period, such Lender shall be deemed to have approved of or
consented to such recommendation or determination.
k) Other Agents; Lead Arrangers. No Lender identified on the cover page or
signature pages of this Agreement as a "syndication agent," "documentation
agent," "co-agent," "arranger," or "book runner" shall have any Rights under
this Agreement other than those applicable to all Lenders as such. Without
limiting the foregoing, no Lender so identified shall have or be deemed to have
any fiduciary relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on any Lender so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
SECTION 13)
MISCELLANEOUS
a) Headings. The headings, captions and arrangements used in any of the
Loan Documents are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify, or modify the terms of the Loan Documents, nor
affect the meaning thereof.
b) Nonbusiness Days; Time. Any payment or action that is due under any Loan
Document on a non-Business Day may be delayed until the next-succeeding Business
Day (but interest shall continue to accrue on any applicable payment until
payment is in fact made) unless the payment concerns a Eurodollar Borrowing, in
which case if the next-succeeding Business Day is in the next calendar month,
then such payment shall be made on the next-preceding Business Day.
c) Communications. Unless otherwise specifically provided, whenever any
Loan Document requires or permits any consent, approval, notice, request,
demand, or other communication from one party to another, communication must be
in writing (which may be by telex or telecopy) to be effective and shall be
deemed to have been given (a) if by telex, when transmitted to the appropriate
telex number and the appropriate answerback is received, (b) if by telecopy,
when transmitted to the appropriate telecopy number (and all communications sent
by telecopy must be confirmed promptly thereafter by telephone; but any
requirement in this parenthetical shall not affect the date when the telecopy
shall be deemed to have been delivered), (c) if by mail, on the fifth (5th)
Business Day after it is enclosed in an envelope and properly addressed,
stamped, sealed, certified mail, return receipt requested, and deposited in the
appropriate official postal service, or (d) if by any other means, when actually
delivered. Until changed by notice pursuant to this Agreement, the address (and
telecopy number) for each party to a Loan Document is set forth on Schedule 1.
d) Form and Number of Documents. The form, substance, and number of
counterparts of each writing to be furnished under this Agreement must be
satisfactory to Administrative Agent and its counsel.
e) Survival. All covenants, agreements, undertakings, representations, and
warranties made in any of the Loan Documents survive all closings under the Loan
Documents and, except as otherwise indicated, are not affected by any
investigation made by any party.
f) Governing Law. Except as Expressly Provided in a Loan Document, the
Governmental Requirements (Other Than Conflict-of-laws Provisions) of the State
of New York and of the United States of America Govern the Rights and Duties of
the Parties to the Loan Documents and the Validity, Construction, Enforcement,
and Interpretation of the Loan Documents.
g) Invalid Provisions. Any provision in any Loan Document held to be
illegal, invalid, or unenforceable is fully severable; the appropriate Loan
Document shall be construed and enforced as if that provision had never been
included; and the remaining provisions shall remain in full force and effect and
shall not be affected by the severed provision. Agents, Lenders, and Borrower
agree to negotiate, in good faith, the terms of a replacement provision as
similar to the severed provision as may be possible and be legal, valid and
enforceable. However, if the provision held to be illegal, invalid, or
unenforceable is a material part of this Agreement, such invalid, illegal, or
unenforceable provision shall be, to the extent permitted by applicable law,
replaced by a clause or provision judicially construed and interpreted to be as
similar in substance and content to the original terms of such illegal, invalid,
or unenforceable clause or provision as the context thereof would reasonably
allow, so that such clause or provision would thereafter be legal, valid, and
enforceable.
h) Venue; Service of Process; Jury Trial. EACH PARTY TO ANY LOAN DOCUMENT,
IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS (AND IN THE CASE OF
BORROWER, FOR EACH OF ITS CONSOLIDATED AFFILIATES), (a) IRREVOCABLY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE STATE OF
NEW YORK, (b) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS AND THE
OBLIGATION BROUGHT IN COURTS OF THE STATE OF NEW YORK, BOROUGH OF MANHATTAN OR
IN THE UNITED STATES DISTRICT COURT LOCATED IN THE STATE OF NEW YORK, BOROUGH OF
MANHATTAN, (c) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY
OF THE AFOREMENTIONED COURTS HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, (d)
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THOSE COURTS IN ANY
LITIGATION BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, POSTAGE PREPAID, BY HAND-DELIVERY, OR BY DELIVERY BY A NATIONALLY
RECOGNIZED COURIER SERVICE, AND SERVICE SHALL
BE DEEMED COMPLETE UPON DELIVERY OF THE LEGAL PROCESS AT ITS ADDRESS SET FORTH
IN THIS AGREEMENT, (e) IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY
PARTY TO ANY LOAN DOCUMENT ARISING OUT OF OR IN CONNECTION WITH THE LOAN
DOCUMENTS OR THE OBLIGATION MAY BE BROUGHT IN ONE OF THE AFOREMENTIONED COURTS,
AND (f) IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY LOAN DOCUMENT. The scope of each of the foregoing waivers is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Borrower (for itself and on behalf of each of its
Consolidated Affiliates) acknowledges that these waivers are a material
inducement to Administrative Agent's and each Lender's agreement to enter into a
business relationship, that Administrative Agent and each Lender has already
relied on these waivers in entering into this Agreement, and that Administrative
Agent and each Lender will continue to rely on each of these waivers in related
future dealings. Borrower (for itself and on behalf of each of its Consolidated
Affiliates) further warrants and represents that it has reviewed these waivers
with its legal counsel, and that it knowingly and voluntarily agrees to each
waiver following consultation with legal counsel. THE WAIVERS IN THIS SECTION
13.8 ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THESE WAIVERS SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
SUPPLEMENTS, OR REPLACEMENTS TO OR OF THIS OR ANY OTHER LOAN DOCUMENT. In the
event of Litigation, this Agreement may be filed as a written consent to a trial
by the court.
i) Amendments, Consents, Conflicts, and Waivers.
(a) Required Lenders. Unless otherwise specifically provided, the
provisions of this Agreement may be amended, modified, or waived, only by an
instrument in writing executed by Borrower and the Required Lenders and
supplemented only by documents delivered or to be delivered in accordance with
the express terms of this Agreement; provided that any amendment to, or consent
or waiver under, this Agreement that purports to increase the amount or amend
the definition of "Permitted Redemptions" must be in an instrument in writing
executed by Borrower and Majority Lenders.
(b) All Lenders. Except as specifically otherwise provided in this Section
13.9, any amendment to or consent or waiver under this Agreement or any Loan
Document that purports to accomplish any of the following must be by an
instrument in writing executed by Borrower and executed (or approved, as the
case may be) by each Lender (other than any Defaulting Lender): (i) extends the
scheduled Maturity Date; (ii) extends the due date or decreases the amount of
any scheduled payment or amortization of the Obligation beyond the date
specified in the Loan Documents; (iii) decreases any rate or amount of interest,
fees, principal, or other sums payable to Agents or Lenders under this Agreement
(except such reductions as are contemplated by this Agreement); (iv) changes the
definition of "Adjusted Property EBITDA," "Approved Costs," "EBITDA
Adjustments," "EBITDA Value," "Majority Lenders," "Occupancy Rate," "Required
Lenders," "Pro Rata Share," or "Unencumbered Property;" (v) increases any one or
more Lenders' Term Loan; (vi) waives compliance with, amends, or fully or
partially releases the PPT Guaranty; (vii) permits Borrower to assign any of its
rights hereunder; (viii) amends Section 4.1; or (ix) changes this Section
13.9(b) or any other matter specifically requiring the consent of all Lenders
under this Agreement.
(c) Agents. No amendment, modification, consent, or waiver which modifies
the rights, duties, or obligations of any Agent shall be effective without the
consent of such Agent.
(d) Conflicts. Any conflict or ambiguity between the terms and provisions
of this Agreement and terms and provisions in any other Loan Document is
controlled by the terms and provisions of this Agreement.
(e) Course of Dealing. No course of dealing or any failure or delay by any
Credit Party or any of its Representatives with respect to exercising any Right
of any Credit Party under this Agreement operates as a waiver thereof. A waiver
must be in writing and signed by the Required Lenders or Lenders, as
appropriate, to be effective, and a waiver will be effective only in the
specific instance and for the specific purpose for which it is given.
j) Multiple Counterparts. Any Loan Document may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes and all of which constitute, collectively, one agreement; but, in
making proof of thereof, it shall not be necessary to produce or account for
more than one counterpart. Each Lender need not execute the same counterpart of
this Agreement so long as identical counterparts are executed by Borrower, each
Lender, and each Agent. This Agreement shall become effective when counterparts
of this Agreement have been executed and delivered to Administrative Agent by
each Lender, each Agent, and Borrower, or, in the case only of Lenders, when
Administrative Agent has received telecopied, telexed, or other evidence
satisfactory to it that each Lender has executed and is delivering to
Administrative Agent a counterpart of this Agreement.
k) Successors and Assigns; Participations.
(a) Each Loan Document binds and inures to the benefit of the parties
thereto, any intended beneficiary thereof, and each of their respective
successors and permitted assigns. No Lender may transfer, pledge, assign, sell
any participation in, or otherwise encumber its portion of the Obligation,
except as permitted by this Section.
(b) Subject to the provisions of this Section and in accordance with
applicable law, any Lender may, in the ordinary course of its commercial banking
business, at any time upon the prior written consent of Administrative Agent,
and so long as no Default or Potential Default exists, Borrower, such consents
not to be unreasonably withheld or delayed, sell to one (1) or more Eligible
Assignees (each a "Participant") participating interests in its portion of the
Obligation; provided that such participation is not less than $10,000,000. The
selling Lender shall remain a "Lender" under this Agreement (and the Participant
shall not constitute a "Lender" under this Agreement) and its obligations under
this Agreement shall remain unchanged. The selling Lender shall remain solely
responsible for the performance of its obligations under the Loan Documents and
shall remain the holder of its share of the Term Loans for all purposes under
this Agreement. Borrower and Administrative Agent shall continue to deal solely
and directly with the selling Lender in connection with such Lender's Rights and
obligations under the Loan Documents. Participants have no Rights under the Loan
Documents, other than certain voting Rights as provided below. Subject to the
following, each Lender may obtain (on behalf of its Participants) the benefits
of Section 3 with respect to all participations in its part of the Obligation
outstanding from time to time so long as Borrower is not obligated to pay any
amount in excess of the amount that would be due to such Lender under Section 3
calculated as though no participations have been made. No Lender may sell any
participating interest under which the Participant has any Rights to approve any
amendment, modification, or waiver of any Loan Document, except to the extent
the amendment, modification, or waiver extends the due date for payment of any
principal, interest, or fees due under the Loan Documents, reduces the interest
rate or the amount of principal or fees applicable to the Obligation (except
reductions contemplated by this Agreement), or releases any guaranty or
collateral, if any, for the Obligation. However, if a Participant is entitled to
the benefits of Section 3 or a Lender grants Rights to its Participants to
approve amendments to or waivers of the Loan Documents respecting the matters
described
in the previous sentence, then such Lender must include a voting mechanism in
the relevant participation agreement whereby a majority of its portion of the
Obligation (whether held by it or participated) shall control the vote for all
of such Lender's portion of the Obligation. Except in the case of the sale of a
participating interest to another Lender, the relevant participation agreement
shall prohibit the Participant from transferring, pledging, assigning, selling
participations in, or otherwise encumbering its portion of the Obligation.
(c) Subject to the provisions of this Section 13.11(c), any Lender may at
any time, in the ordinary course of its commercial banking business, (i) without
the consent of Borrower or Administrative Agent, assign all or any part of its
Rights and obligations under the Loan Documents to any of its Affiliates (each a
"Purchaser"), and (ii) upon the prior written consent of Administrative Agent,
and so long as no Default or Potential Default exists, Borrower, such consents
not to be unreasonably withheld or delayed, assign to any Eligible Assignee
(each of which is also a "Purchaser") a proportionate part (not less than
$10,000,000 and an integral multiple of $5,000,000) of all or any part of its
Rights and obligations under the Loan Documents; provided that unless the Lender
granting such assignment is assigning all of its Term Loan and Note hereunder,
after giving effect to such assignment, the Lender granting such assignment
shall retain a Term Loan of at least $10,000,000. In each case, the Purchaser
shall assume those Rights and obligations under an assignment agreement
substantially in the form of Exhibit E. Upon (i) delivery of an executed copy of
the assignment agreement to Borrower and Administrative Agent and (ii) unless
waived by Administrative Agent, payment of a fee of $3,500 from the transferor
to Administrative Agent, from and after the assignment's effective date (which
shall be after the date of delivery), the Purchaser shall for all purposes be a
Lender party to this Agreement and shall have all the Rights and obligations of
a Lender under this Agreement to the same extent as if it were an original party
to this Agreement with commitments as set forth in the assignment agreement, and
the transferor Lender shall be released from its obligations under this
Agreement to a corresponding extent, and, except as provided in the following
sentence, no further consent or action by Borrower, Lenders or Administrative
Agent shall be required. Upon the consummation of any transfer to a Purchaser
under this Section 13.11(c), the then-existing Schedule 1 shall automatically be
deemed to reflect the name, address, and Term Loan of such Purchaser,
Administrative Agent shall deliver to Borrower and Lenders an amended Schedule 1
reflecting those changes, Borrower shall execute and deliver to each of the
transferor Lender and the Purchaser a Note in the face amount of its respective
Term Loan following transfer, and, upon receipt of its new Note, the transferor
Lender shall return to Borrower the Note previously delivered to it under this
Agreement. A Purchaser is subject to all the provisions in this Section as if it
were a Lender signatory to this Agreement as of the date of this Agreement.
(d) Any Lender may at any time, without the consent of Borrower or
Administrative Agent, assign all or any part of its Rights under the Loan
Documents to a Federal Reserve Bank without releasing the transferor Lender from
its obligations thereunder.
(e) No Lender may assign or participate all or any portion of its Rights or
obligations under this Agreement to any Company or any Affiliate of any Company.
(f) Notwithstanding the foregoing, Administrative Agent shall, at all times
prior to its resignation or replacement as a Administrative Agent hereunder,
retain a Term Loan having a principal balance equal to the principal balance of
the largest Term Loan hereunder.
l) Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances. Borrower's obligations under the Loan Documents remain in full
force and effect until the Obligation is paid in full (except for provisions
under the Loan Documents which by their terms expressly survive payment of the
Obligation and termination of the Loan Documents). If at any time any payment of
the principal of or interest
on any Note or any other amount payable by Borrower or any other obligor on the
Obligation under any Loan Document is rescinded or must be restored or returned
upon the insolvency, bankruptcy, or reorganization of Borrower or otherwise,
then the obligations of Borrower under the Loan Documents with respect to that
payment shall be reinstated as though the payment had been due but not made at
that time.
m) Entirety. THIS AGREEMENT AND THE OTHER WRITTEN LOAN DOCUMENTS (EACH AS
AMENDED IN WRITING FROM TIME TO TIME) EXECUTED BY BORROWER AND/OR ANY CREDIT
PARTY REPRESENT THE FINAL AGREEMENT AMONG BORROWER AND THE CREDIT PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow.]
SIGNATURE PAGE TO CREDIT AGREEMENT
BETWEEN ▇▇▇▇▇▇▇▇ PROPERTIES ACQUISITION PARTNERS, L.P.,
COMMERZBANK AG, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT,
AND
THE LENDERS DEFINED THEREIN
EXECUTED as of the day and year first mentioned.
▇▇▇▇▇▇▇▇ PROPERTIES ACQUISITION PARTNERS, L.P.
a Delaware limited partnership,
as Borrower
By: ▇▇▇▇▇▇▇▇ PROPERTIES I, INC.,
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
BETWEEN ▇▇▇▇▇▇▇▇ PROPERTIES ACQUISITION PARTNERS, L.P.,
COMMERZBANK AG, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT,
AND
THE LENDERS DEFINED THEREIN
COMMERZBANK AG, NEW YORK BRANCH,
as Administrative Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President
---------------------------------
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
BETWEEN ▇▇▇▇▇▇▇▇ PROPERTIES ACQUISITION PARTNERS, L.P.,
COMMERZBANK AG, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT,
AND
THE LENDERS DEFINED THEREIN
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent and a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
BETWEEN ▇▇▇▇▇▇▇▇ PROPERTIES ACQUISITION PARTNERS, L.P.,
COMMERZBANK AG, NEW YORK BRANCH, AS ADMINISTRATIVE AGENT,
AND
THE LENDERS DEFINED THEREIN
FLEET NATIONAL BANK,
as Syndication Agent and a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President