Exhibit 10.1
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$500,000,000 Senior Credit Facility
CREDIT AGREEMENT
Dated as of November 20, 2003
by and among
PREIT ASSOCIATES, L.P.,
as Borrower,
PENNSYLVANIA REAL ESTATE INVESTMENT TRUST,
as Parent,
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 11.5.(c),
as Lenders,
Each of
U.S. BANK NATIONAL ASSOCIATION,
and
FLEET NATIONAL BANK,
as co-Syndication Agents,
Each of
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
and
MANUFACTURERS & TRADERS TRUST COMPANY,
as co-Documentation Agents,
Each of
BANK ONE, NA,
EUROHYPO AG, NEW YORK BRANCH,
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as co-Managing Agent
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and
Sole Lead Arranger
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TABLE OF CONTENTS*
Article I. Definitions................................................................1
Section 1.1. Definitions....................................................1
Section 1.2. General; References to Times...................................1
Article II. Credit Facilities.........................................................2
Section 2.1. Loans..........................................................2
Section 2.2. Letters of Credit..............................................3
Section 2.3. Swingline Loans................................................7
Section 2.4. Rates and Payment of Interest on Loans.........................9
Section 2.5. Number of Interest Periods.....................................10
Section 2.6. Repayment of Loans.............................................10
Section 2.7. Late Charges...................................................10
Section 2.8. Prepayments....................................................10
Section 2.9. Continuation...................................................10
Section 2.10. Conversion.....................................................11
Section 2.11. Notes..........................................................11
Section 2.12. Expiration or Maturity Date of Letters of Credit Past
Termination Date...............................................12
Section 2.13. Increase in Commitments........................................12
Section 2.14. Extension of Termination Date..................................13
Section 2.15. Voluntary Reduction of Commitments.............................13
Section 2.16. Amount Limitations.............................................14
Article III. Payments, Fees and Other General Provisions..............................14
Section 3.1. Payments.......................................................14
Section 3.2. Pro Rata Treatment.............................................14
Section 3.3. Sharing of Payments, Etc.......................................15
Section 3.4. Several Obligations............................................15
Section 3.5. Fees...........................................................16
Section 3.6. Computations...................................................17
Section 3.7. Usury..........................................................17
Section 3.8. Statements of Account..........................................17
Section 3.9. Defaulting Lenders.............................................18
Section 3.10. Taxes..........................................................19
Article IV. Yield Protection, Etc.....................................................20
Section 4.1. Additional Costs; Capital Adequacy.............................20
Section 4.2. Suspension of LIBOR Loans......................................22
Section 4.3. Illegality.....................................................22
Section 4.4. Compensation...................................................22
Section 4.5. Treatment of Affected Loans....................................23
____________
* This Table of Contents is not part of the Credit Agreement and is
provided as a convenience only.
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Section 4.6. Affected Lenders...................................................24
Section 4.7. Assumptions Concerning Funding of LIBOR Loans......................24
Section 4.8. Change of Lending Office...........................................24
Article V. Conditions Precedent..........................................................25
Section 5.1. Initial Conditions Precedent.......................................25
Section 5.2. Conditions Precedent to All Loans and Letters of Credit............27
Section 5.3. Conditions as Covenants............................................27
Article VI. Representations and Warranties...............................................28
Section 6.1. Representations and Warranties....................................28
Section 6.2. Survival of Representations and Warranties, Etc...................34
Article VII. Affirmative Covenants.......................................................35
Section 7.1. Financial Reporting and Other Information..........................35
Section 7.2. Preservation of Existence and Similar Matters......................39
Section 7.3. Compliance with Applicable Law.....................................39
Section 7.4. Maintenance of Property............................................39
Section 7.5. Conduct of Business................................................39
Section 7.6. Insurance..........................................................39
Section 7.7. Payment of Taxes and Claims........................................40
Section 7.8. Books and Records; Visits and Inspections..........................40
Section 7.9. Use of Proceeds....................................................40
Section 7.10. Environmental Matters..............................................41
Section 7.11. Further Assurances.................................................41
Section 7.12. Material Contracts.................................................41
Section 7.13. REIT Status........................................................42
Section 7.14. Exchange Listing...................................................42
Section 7.15. Guarantors.........................................................42
Article VIII. Negative Covenants.........................................................43
Section 8.1. Financial Covenants................................................44
Section 8.2. Restricted Payments................................................46
Section 8.3. Liens; Negative Pledges............................................47
Section 8.4. Restrictions on Intercompany Transfers.............................48
Section 8.5. Mergers, Acquisitions and Sales of Assets..........................48
Section 8.6. Fiscal Year........................................................48
Section 8.7. Modifications of Organizational Documents and Material
Contracts..........................................................48
Section 8.8. Transactions with Affiliates.......................................49
Section 8.9. ERISA Exemptions...................................................49
Article IX. Default......................................................................49
Section 9.1. Events of Default..................................................49
Section 9.2. Remedies Upon Event of Default.....................................53
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Section 9.3. Termination of Commitments Upon Certain Defaults...................54
Section 9.4. Marshaling; Payments Set Aside.....................................55
Section 9.5. Allocation of Proceeds.............................................55
Section 9.6. Letter of Credit Collateral Account................................55
Section 9.7. Performance by Agent...............................................57
Section 9.8. Rescission of Acceleration by Requisite Lenders....................57
Section 9.9. Rights Cumulative..................................................57
Article X. The Agent.....................................................................57
Section 10.1. Appointment and Authorization......................................57
Section 10.2. Agent's Reliance, Etc..............................................58
Section 10.3. Notice of Defaults.................................................59
Section 10.4. ▇▇▇▇▇ Fargo as Lender..............................................59
Section 10.5. Approvals of Lenders...............................................60
Section 10.6. Lender Credit Decision, Etc........................................60
Section 10.7. Indemnification of Agent...........................................61
Section 10.8. Successor Agent....................................................62
Section 10.9. Titled Agents......................................................62
Article XI. Miscellaneous................................................................62
Section 11.1. Notices............................................................62
Section 11.2. Expenses...........................................................64
Section 11.3. Setoff.............................................................65
Section 11.4. Litigation; Jurisdiction; Other Matters; Waivers...................65
Section 11.5. Successors and Assigns.............................................66
Section 11.6. Amendments and Waivers.............................................68
Section 11.7. Nonliability of Agent and Lenders..................................70
Section 11.8. Confidentiality....................................................70
Section 11.9. Indemnification....................................................71
Section 11.10.Termination; Survival..............................................72
Section 11.11.Severability of Provisions.........................................72
Section 11.12.GOVERNING LAW......................................................72
Section 11.13.Counterparts.......................................................73
Section 11.14.Obligations with Respect to Loan Parties...........................73
Section 11.15.Limitation of Liability............................................73
Section 11.16.Entire Agreement...................................................73
Section ▇▇.▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.......................................................73
Section 11.18.Time of the Essence................................................74
SCHEDULE 1.1.(A) List of Loan Parties
SCHEDULE 1.1.(B) Non-Core Crown Properties
SCHEDULE 2.2.(a) Existing Letters of Credit
SCHEDULE 6.1.(b) Ownership Structure
SCHEDULE 6.1.(f) Title to Properties
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SCHEDULE 6.1.(g) Indebtedness
SCHEDULE 6.1.(h) Material Contracts
SCHEDULE 6.1.(i) Litigation
SCHEDULE 6.1.(x) Non-Guarantor Subsidiaries
SCHEDULE 8.1.(a) Equity Issuances
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Guaranty
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Notice of Continuation
EXHIBIT E Form of Notice of Conversion
EXHIBIT F Form of Notice of Swingline Borrowing
EXHIBIT G Form of Revolving Note
EXHIBIT H Form of Swingline Note
EXHIBIT I Form of Opinion of Counsel
EXHIBIT J Form of Compliance Certificate
EXHIBIT K Form of Pricing Certificate
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Exhibit 10.1
THIS CREDIT AGREEMENT dated as of November 20, 2003, by and among PREIT
ASSOCIATES, L.P., a Delaware limited partnership (the "Borrower"), PENNSYLVANIA
REAL ESTATE INVESTMENT TRUST, a Pennsylvania business trust (the "Parent"), each
of the financial institutions initially a signatory hereto together with their
assignees pursuant to Section 11.5.(c), each of U.S. BANK NATIONAL ASSOCIATION
and FLEET NATIONAL BANK, as a Syndication Agent (each a "Syndication Agent"),
each of COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES and MANUFACTURERS &
TRADERS TRUST COMPANY, as a Documentation Agent (each a "Documentation Agent"),
each of BANK ONE, NA, EUROHYPO AG, NEW YORK BRANCH and WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Managing Agent (each a "Managing Agent") and ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as Sole Lead Arranger (the "Sole Lead Arranger") and
Administrative Agent.
WHEREAS, the Lenders are willing to make available to the Borrower a
$500,000,000 revolving credit facility on the terms and conditions contained
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the capitalized terms
used herein shall have their respective defined meanings as set forth in Annex
I.
Section 1.2. General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP as in
effect as of the Agreement Date. References in this Agreement to "Sections",
"Articles", "Exhibits" and "Schedules" are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. references in this
Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement thereto, as amended, supplemented, restated or
otherwise modified from time to time to the extent permitted hereby and in
effect at any given time. Wherever from the context it appears appropriate, each
term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine and the neuter. Unless explicitly set forth
to the contrary, a reference to "Subsidiary" means a Subsidiary of the Parent or
a Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Borrower. Titles and captions of Articles,
Sections, subsections and clauses in this Agreement are for convenience only,
and neither limit nor amplify the provisions of this Agreement. Unless otherwise
indicated, all references to time are references to San Francisco, California
time.
ARTICLE II. CREDIT FACILITIES
Section 2.1. Loans.
(a) Making of Revolving Loans. Subject to the terms and conditions set
forth in this Agreement, including without limitation, Section 2.16. below, each
Lender severally and not jointly agrees to make Revolving Loans to the Borrower
during the period from and including the Effective Date to but excluding the
Termination Date, in an aggregate principal amount at any one time outstanding
up to, but not exceeding, such Lender's Commitment. Each borrowing of Base Rate
Loans shall be in an aggregate minimum amount of $500,000 and integral multiples
of $100,000 in excess thereof. Each borrowing and Continuation under Section
2.9. of, and each Conversion under Section 2.10. of Base Rate Loans into, LIBOR
Loans shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $250,000 in excess of that amount. Notwithstanding the preceding
two sentences, a borrowing of Revolving Loans may be in the aggregate amount of
the unused Commitments. Within the foregoing limits and subject to the terms and
conditions of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans.
(b) Requests for Revolving Loans. Not later than 9:00 a.m. San
Francisco time at least one (1) Business Day prior to a borrowing of Base Rate
Loans and not later than 9:00 a.m. San Francisco time at least three (3)
Business Days prior to a borrowing of LIBOR Loans, the Borrower shall deliver to
the Agent a Notice of Borrowing. Each Notice of Borrowing shall specify the
aggregate principal amount of the Revolving Loans to be borrowed, the date such
Revolving Loans are to be borrowed (which must be a Business Day), the use of
the proceeds of such Revolving Loans, the Type of the requested Revolving Loans,
and if such Revolving Loans are to be LIBOR Loans, the initial Interest Period
for such Revolving Loans. Each Notice of Borrowing shall be irrevocable once
given and binding on the Borrower. Prior to delivering a Notice of Borrowing,
the Borrower may (without specifying whether a Revolving Loan will be a Base
Rate Loan or a LIBOR Loan) request that the Agent provide the Borrower with the
most recent LIBOR available to the Agent. The Agent shall provide such quoted
rate to the Borrower on the date of such request or as soon as possible
thereafter.
(c) Funding of Revolving Loans. Promptly after receipt of a Notice of
Borrowing under the immediately preceding subsection (b), the Agent shall notify
each Lender by telecopy, or other similar form of transmission of the proposed
borrowing. In addition, not later than 2 Business Days prior to the proposed
date of the borrowing of any LIBOR Loans, the Agent shall notify each Lender of
the interest rate (LIBOR plus the Applicable Margin) applicable to such LIBOR
Loans. Each Lender shall deposit an amount equal to the Revolving Loan to be
made by such Lender to the Borrower with the Agent at the Principal Office, in
immediately available funds not later than 9:00 a.m. San Francisco time on the
date of such proposed Revolving Loans. Subject to fulfillment of all applicable
conditions set forth herein, the Agent shall make available to the Borrower at
the Principal Office, not later than 12:00 noon San Francisco time on the date
of the requested borrowing of Revolving Loans, the proceeds of such amounts
received by the Agent. No Lender shall be responsible for the failure of any
other Lender to make a Loan or to perform any other obligation to be made or
performed by such other Lender hereunder, and the failure of any Lender to make
a Loan or to perform any other obligation to be made or performed by it
hereunder shall not relieve the obligation of any other Lender to make any Loan
or to perform any other obligation to be made or performed by such other Lender.
(d) Assumptions Regarding Funding by Lenders. With respect to Revolving
Loans to be made after the Effective Date, unless the Agent shall have been
notified by any Lender that such Lender will not make available to the Agent a
Revolving Loan to be made by such Lender, the Agent may assume that such Lender
will make the proceeds of such Revolving Loan available to the Agent in
accordance with this Section and the Agent may (but shall not be obligated to),
in reliance upon such assumption, make available to the Borrower the amount of
such Revolving Loan to be provided by such Lender.
Section 2.2. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, including without limitation, Section 2.16., the Agent, on behalf of
the Lenders, agrees to issue for the account of the Borrower during the period
from and including the Effective Date to, but excluding, the date 30 days prior
to the Termination Date, one or more standby letters of credit (each a "Letter
of Credit") up to a maximum aggregate Stated Amount at any one time outstanding
not to exceed 10.0% of the aggregate amount of the Commitments (as such amount
may be increased or reduced from time to time in accordance with the terms
hereof, the "L/C Commitment Amount"). The parties agree that the letters of
credit listed on Schedule 2.2.(a) shall be deemed to be Letters of Credit issued
hereunder.
(b) Terms of Letters of Credit. At the time of issuance, the amount,
form, terms and conditions of each Letter of Credit, and of any drafts or
acceptances thereunder, shall be subject to approval by the Agent and the
Borrower. Notwithstanding the foregoing, in no event may (i) the expiration date
of any Letter of Credit extend beyond the Termination Date, (ii) any Letter of
Credit have an initial duration in excess of one year, or (iii) any Letter of
Credit contain an automatic renewal provision (other than renewal provisions
which are automatic in the absence of a notice of non-renewal from the Agent and
which provide for renewal for periods not in excess of three years in the
aggregate) or (iv) a Letter of Credit provide that the Agent be required to
honor draws any time prior to three Business Days following presentation. The
initial Stated Amount of each Letter of Credit shall be at least $10,000.
(c) Requests for Issuance of Letters of Credit. The Borrower shall give
the Agent written notice at least 5 Business Days prior to the requested date of
issuance of a Letter of Credit, such notice to describe in reasonable detail the
proposed terms of such Letter of Credit and the nature of the transactions or
obligations proposed to be supported by such Letter of Credit, and in any event
shall set forth with respect to such Letter of Credit the proposed (i) initial
Stated Amount, (ii) the beneficiary, and (iii) expiration date. The Borrower
shall also execute and deliver such customary applications and agreements for
standby letters of credit, and other forms as requested from time to time by the
Agent. Provided the Borrower has given the notice prescribed by the first
sentence of this subsection and delivered such application and agreements
referred to in the preceding sentence, subject to the other terms and conditions
of this Agreement, including the satisfaction of any applicable conditions
precedent set forth in Article V. and payment of all fees then payable under
Section 3.5.(c), the Agent shall issue the requested Letter of Credit on the
requested date of issuance for the benefit of the stipulated beneficiary but in
no event prior to the date 5 Business Days following the date after which the
Agent has received all of the items required to be delivered to it under this
subsection. Upon the written request of the Borrower, the Agent shall deliver to
the Borrower a copy of (i) any Letter of Credit proposed to be issued hereunder
prior to the issuance thereof and (ii) each issued Letter of Credit within a
reasonable time after the date of issuance thereof. To the extent any term of a
Letter of Credit Document is inconsistent with a term of any Loan Document, the
term of such Loan Document shall control as to the Agent, the Lenders and the
Loan Parties.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrower of the amount to be paid by
the Agent as a result of such demand and the date on which payment is to be made
by the Agent to such beneficiary in respect of such demand. The Borrower hereby
absolutely, unconditionally and irrevocably agrees to pay and reimburse the
Agent for the amount of each demand for payment under such Letter of Credit at
or prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind. Upon receipt by the Agent of any payment in respect of
any Reimbursement Obligation, the Agent shall promptly pay to each Lender that
has acquired a participation therein under the second sentence of subsection (i)
of this Section such Lender's Pro Rata Share of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to
in the immediately preceding subsection (d), the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment and, if it does, the Borrower shall submit a timely request for such
borrowing as provided in the applicable provisions of this Agreement. If the
Borrower fails to so advise the Agent, or if the Borrower fails to reimburse the
Agent for a demand for payment under a Letter of Credit by the date of such
payment, then the Borrower shall be deemed to have requested a borrowing of Base
Rate Loans hereunder in the amount of its unpaid Reimbursement Obligation to
finance its obligation to reimburse the Agent for the amount of the related
demand for payment. The amount limitations contained in the second sentence of
Section 2.1.(a) shall not apply to any borrowing of Base Rate Loans made
pursuant to this subsection. The Agent shall notify each Lender of the proposed
borrowing no later than 9:00 a.m. San Francisco time on the proposed date of
borrowing. No later than 11:00 a.m. San Francisco time on the proposed date of
borrowing, each Lender shall deposit with the Agent at the Principal Office, in
immediately available funds, an amount equal to the Base Rate Loan to be made by
such Lender. Subject to fulfillment of all applicable conditions set forth
herein, the Agent shall apply the proceeds of such Loans in satisfaction of the
unpaid Reimbursement Obligation. If the conditions of this Agreement do not
permit the making of Base Rate Loans hereunder, then the Agent shall give each
Lender prompt notice thereof and of the amount of the demand for payment,
specifying such Lender's Pro Rata Share of the amount of the related demand for
payment and the provisions of subsection (j) of this Section shall apply.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by
the Agent of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Commitment of each Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to the product of
(i) such Lender's Pro Rata Share and (ii) the sum of (A) the Stated Amount of
such Letter of Credit plus (B) any related Reimbursement Obligations then
outstanding.
(g) Agent's Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligations. In examining documents presented in connection with
drawings under Letters of Credit and making payments under such Letters of
Credit against such documents, the Agent shall only be required to use the same
standard of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any of
the Lenders shall be responsible for (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored under
any Letter of Credit even if such document should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) failure of the beneficiary of any
Letter of Credit to comply fully with conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telecopy or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical
terms; (vi) any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit, or of the
proceeds thereof; (vii) the misapplication by the beneficiary of any Letter of
Credit, or of the proceeds of any drawing under any Letter of Credit; or (viii)
any consequences arising from causes beyond the control of the Agent or the
Lenders. None of the above shall affect, impair or prevent the vesting of any of
the Agent's rights or powers hereunder. Any action taken or omitted to be taken
by the Agent under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create against the Agent any liability to the Borrower or any Lender. In this
connection, the obligation of the Borrower to reimburse the Agent for any
drawing made under any Letter of Credit shall be absolute, unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement or any other applicable Letter of Credit Document under all
circumstances whatsoever, including without limitation, the following
circumstances: (A) any lack of validity or enforceability of any Letter of
Credit Document or any term or provisions therein; (B) any amendment or waiver
of or any consent to departure from all or any of the Letter of Credit
Documents; (C) the existence of any claim, setoff, defense or other right which
the Borrower may have at any time against the Agent, any Lender, any beneficiary
of a Letter of Credit or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or in the Letter of Credit
Documents or any unrelated transaction; (D) any breach of contract or dispute
between the Borrower, the Agent, any Lender or any other Person; (E) any demand,
statement or any other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein or made in connection therewith being untrue or inaccurate in any
respect whatsoever; (F) any non-application or misapplication by the beneficiary
of a Letter of Credit or of the proceeds of any drawing under such Letter of
Credit; (G) payment by the Agent under the Letter of Credit against presentation
of a draft or certificate which does not strictly comply with the terms of the
Letter of Credit; and (H) any other act, omission to act, delay or circumstance
whatsoever that might, but for the provisions of this Section, constitute a
legal or equitable defense to or discharge of the Borrower's Reimbursement
Obligations.
(h) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefor be made
through the Agent), and no such amendment, supplement or other modification
shall be issued unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Agent and
Requisite Lenders shall have consented thereto. In connection with any such
amendment, supplement or other modification, the Borrower shall pay the fees, if
any, payable under the last sentence of Section 3.5.(c).
(i) Lenders' Participation in Letters of Credit. Immediately upon the
issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have absolutely, irrevocably and unconditionally purchased and received from the
Agent, without recourse or warranty, an undivided interest and participation to
the extent of such Lender's Pro Rata Share of the liability of the Agent with
respect to such Letter of Credit and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Agent to pay and discharge when
due, such Lender's Pro Rata Share of the Agent's liability under such Letter of
Credit. In addition, upon the making of each payment by a Lender to the Agent in
respect of any Letter of Credit pursuant to the immediately following subsection
(j), such Lender shall, automatically and without any further action on the part
of the Agent or such Lender, acquire (i) a participation in an amount equal to
such payment in the Reimbursement Obligation owing to the Agent by the Borrower
in respect of such Letter of Credit and (ii) a participation in a percentage
equal to such Lender's Pro Rata Share in any interest or other amounts payable
by the Borrower in respect of such Reimbursement Obligation (other than the Fees
payable to the Agent pursuant to the last sentence of Section 3.5.(c)).
(j) Payment Obligation of Lenders. Each Lender severally agrees to pay
to the Agent on demand in immediately available funds in Dollars the amount of
such Lender's Pro Rata Share of each drawing paid by the Agent under each Letter
of Credit to the extent such amount is not reimbursed by the Borrower pursuant
to subsection (d) of this Section; provided, however, that in respect of any
drawing under any Letter of Credit, the maximum amount that any Lender shall be
required to fund, whether as a Revolving Loan or as a participation, shall not
exceed such Lender's Pro Rata Share of such drawing. Each Lender's obligation to
make such payments to the Agent under this subsection, and the Agent's right to
receive the same, shall be absolute, irrevocable and unconditional and shall not
be affected in any way by any circumstance whatsoever, including without
limitation, (i) the failure of any other Lender to make its payment under this
subsection, (ii) the financial condition of the Borrower or any other Loan
Party, (iii) the existence of any Default or Event of Default, including any
Event of Default described in Section 9.1.(e) or 9.1.(f) or (iv) the termination
of the Commitments. Each such payment to the Agent shall be made without any
offset, abatement, withholding or deduction whatsoever.
(k) Information to Lenders. Promptly following any change in Letters of
Credit outstanding, the Agent shall deliver to each Lender and the Borrower a
notice describing the aggregate amount of all Letters of Credit outstanding at
such time. Upon the request of any Lender from time to time, the Agent shall
deliver any other information reasonably requested by such Lender with respect
to each Letter of Credit then outstanding. Other than as set forth in this
subsection, the Agent shall have no duty to notify the Lenders regarding the
issuance or other matters regarding Letters of Credit issued hereunder. The
failure of the Agent to perform its requirements under this subsection shall not
relieve any Lender from its obligations under the immediately preceding
subsection (j).
Section 2.3. Swingline Loans.
(a) Swingline Loans. Subject to the terms and conditions hereof,
including without limitation Section 2.16., the Swingline Lender agrees to make
Swingline Loans to the Borrower, during the period from the Effective Date to
but excluding the Swingline Termination Date, in an aggregate principal amount
at any one time outstanding up to, but not exceeding, $35,000,000, as such
amount may be reduced from time to time in accordance with the terms hereof. If
at any time the aggregate principal amount of the Swingline Loans outstanding at
such time exceeds the Swingline Commitment in effect at such time, the Borrower
shall immediately pay the Agent for the account of the Swingline Lender the
amount of such excess. Subject to the terms and conditions of this Agreement,
the Borrower may borrow, repay and reborrow Swingline Loans hereunder. The
borrowing of a Swingline Loan shall not constitute usage of any Lender's
Commitment for purposes of calculation of the fee payable under Section 3.5.(b)
or otherwise.
(b) Procedure for Borrowing Swingline Loans. The Borrower shall give
the Agent and the Swingline Lender notice pursuant to a Notice of Swingline
Borrowing delivered no later than 9:00 a.m. San Francisco time on the proposed
date of such borrowing. Any such telephonic notice shall include all information
to be specified in a written Notice of Swingline Borrowing. Not later than 11:00
a.m. San Francisco time on the date of the requested Swingline Loan and subject
to satisfaction of the applicable conditions set forth in Article V. for such
borrowing, the Swingline Lender will make the proceeds of such Swingline Loan
available to the Borrower in Dollars, in immediately available funds, at the
account specified by the Borrower in the Notice of Swingline Borrowing.
(c) Interest. Swingline Loans shall bear interest at a per annum rate
equal to the Base Rate as in effect from time to time or at such other rate or
rates as the Borrower and the Swingline Lender may agree from time to time in
writing. All accrued and unpaid interest on Swingline Loans shall be payable on
the dates and in the manner provided in Section 2.4. with respect to interest on
Base Rate Loans (except as the Swingline Lender and the Borrower may otherwise
agree in writing in connection with any particular Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
minimum amount of $500,000 and integral multiples of $100,000 in excess thereof,
or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. Any voluntary prepayment of a Swingline Loan must be in integral
multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the Swingline Lender
and the Borrower may agree) and in connection with any such prepayment, the
Borrower must give the Swingline Lender prior written notice thereof no later
than 10:00 a.m. San Francisco time on the day prior to the date of such
prepayment.
(e) Repayment and Participations of Swingline Loans. The Borrower
agrees to repay each Swingline Loan within three Business Days of demand
therefor by the Swingline Lender and, in any event, within 5 Business Days after
the date such Swingline Loan was made. Notwithstanding the foregoing, the
Borrower shall repay the entire outstanding principal amount of, and all accrued
but unpaid interest on, the Swingline Loans on the Swingline Termination Date
(or such earlier date as the Swingline Lender and the Borrower may agree in
writing). In lieu of demanding repayment of any outstanding Swingline Loan from
the Borrower, the Swingline Lender may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), request a
borrowing of LIBOR Loans having an Interest Period of one month from the Lenders
in an amount equal to the principal balance of such Swingline Loan. The amount
limitations contained in the second sentence of Section 2.1.(a) shall not apply
to any borrowing of LIBOR Loans made pursuant to this subsection. The Swingline
Lender shall give notice to the Agent of any such borrowing of LIBOR Loans not
later than 9:00 a.m. San Francisco time at least three Business Days prior to
the proposed date of such borrowing. Not later than 9:00 a.m. San Francisco time
on the proposed date of such borrowing, each Lender will make available to the
Agent at the Principal Office for the account of the Swingline Lender, in
immediately available funds, the proceeds of the LIBOR Loan to be made by such
Lender. The Agent shall pay the proceeds of such LIBOR Loans to the Swingline
Lender, which shall apply such proceeds to repay such Swingline Loan. If the
Lenders are prohibited from making Loans required to be made under this
subsection for any reason whatsoever, including without limitation, the
occurrence of any of the Defaults or Events of Default described in Sections
9.1.(e) and (f), each Lender shall purchase from the Swingline Lender, without
recourse or warranty, an undivided interest and participation to the extent of
such Lender's Pro Rata Share of such Swingline Loan, by directly purchasing a
participation in such Swingline Loan in such amount and paying the proceeds
thereof to the Agent for the account of the Swingline Lender in Dollars and in
immediately available funds. A Lender's obligation to purchase such a
participation in a Swingline Loan shall be absolute and unconditional and shall
not be affected by any circumstance whatsoever, including without limitation,
(i) any claim of setoff, counterclaim, recoupment, defense or other right which
such Lender or any other Person may have or claim against the Agent, the
Swingline Lender or any other Person whatsoever, (ii) the occurrence or
continuation of a Default or Event of Default (including without limitation, any
of the Defaults or Events of Default described in Sections 9.1.(e) and (f)), or
the termination of any Lender's Commitment, (iii) the existence (or alleged
existence) of an event or condition which has had or could have a Material
Adverse Effect, (iv) any breach of any Loan Document by the Agent, any Lender,
the Borrower or any other Loan Party or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. If such amount
is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from the date of
demand thereof, at the Federal Funds Rate. If such Lender does not pay such
amount forthwith upon the Swingline Lender's demand therefor, and until such
time as such Lender makes the required payment, the Swingline Lender shall be
deemed to continue to have outstanding Swingline Loans in the amount of such
unpaid participation obligation for all purposes of the Loan Documents (other
than those provisions requiring the other Lenders to purchase a participation
therein). Further, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans, and any other amounts due
it hereunder, to the Swingline Lender to fund Swingline Loans in the amount of
the participation in Swingline Loans that such Lender failed to purchase
pursuant to this Section until such amount has been purchased (as a result of
such assignment or otherwise).
Section 2.4. Rates and Payment of Interest on Loans.
(a) Rates. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the following per
annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at
the Base Rate (as in effect from time to time); and
(ii) during such periods as such Loan is a LIBOR Loan, at
LIBOR for such Loan for the Interest Period therefor (from the first
day to, but excluding, the last day of such Interest Period), plus the
Applicable Margin for such Loan.
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of any Loan made by
such Lender, on all Reimbursement Obligations and on any other amount payable by
the Borrower hereunder or under the Revolving Notes held by such Lender to or
for the account of such Lender (including without limitation, accrued but unpaid
interest to the extent permitted under Applicable Law).
(b) Payment of Interest. All accrued and unpaid interest on the
outstanding principal amount of each Loan shall be payable (i) monthly in
arrears on the first day of each month, commencing with the first full month
occurring after the Effective Date and (ii) on any date on which the principal
balance of such Loan is due and payable in full (whether at maturity, due to
acceleration or otherwise). Interest payable at the Post-Default Rate shall be
payable from time to time on demand. All determinations by the Agent of an
interest rate hereunder shall be conclusive and binding on the Lenders and the
Borrower for all purposes, absent manifest error.
Section 2.5. Number of Interest Periods.
There may be no more than 6 different Interest Periods outstanding at
the same time with respect to Revolving Loans.
Section 2.6. Repayment of Loans.
The Borrower shall repay the entire outstanding principal amount of,
and all accrued and unpaid interest on, all Revolving Loans on the Termination
Date.
Section 2.7. Late Charges.
If any payment required under this Agreement is not paid within 10 days
after it becomes due and payable, the Requisite Lenders may, by notice to the
Borrower, require that the Borrower pay a late charge for late payment to
compensate the Lenders for the loss of use of funds and for the expenses of
handling the delinquent payment, in an amount not to exceed four percent (4.0%)
of such delinquent payment. Such late charge shall be paid in any event not
later than the due date of the next subsequent installment of principal and/or
interest. In the event the maturity of the Obligations hereunder occurs or is
accelerated pursuant to Section 9.2., this Section shall apply only to payments
overdue prior to the time of such acceleration. This Section shall not be deemed
to be a waiver of the Lenders' right to accelerate payment of any of the
Obligations as permitted under the terms of this Agreement.
Section 2.8. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrower may prepay any
Revolving Loan at any time without premium or penalty. The Borrower shall give
the Agent at least three (3) Business Days prior written notice of the
prepayment of any Revolving Loan. Each voluntary prepayment of Revolving Loans
shall be in an aggregate minimum amount of $1,000,000 and integral multiples of
$100,000 in excess thereof or, if all Revolving Loans are being prepaid at such
time, the prepayment may be in such other amount as is then outstanding.
(b) Mandatory. If at any time the aggregate principal amount of all
outstanding Loans, together with the aggregate amount of all Letter of Credit
Liabilities, exceeds the aggregate amount of the Commitments, the Borrower shall
immediately on demand pay to the Agent for the account of the Lenders, the
amount of such excess. All payments under this subsection (b) shall be applied
to pay all amounts of excess principal outstanding on the applicable Loans and
any applicable Reimbursement Obligations in accordance with Section 3.2., and
the remainder, if any, shall be deposited into the Letter of Credit Collateral
Account for application to any Reimbursement Obligations as and when due.
Section 2.9. Continuation.
So long as no Event of Default exists, the Borrower may on any Business
Day, with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any
portion thereof as a LIBOR Loan by selecting a new Interest Period for such
LIBOR Loan. Each new Interest Period selected under this Section shall commence
on the last day of the immediately preceding Interest Period. Each selection of
a new Interest Period shall be made by the Borrower giving to the Agent a Notice
of Continuation not later than 9:00 a.m. (San Francisco time) on the third
Business Day prior to the date of any such Continuation. Such notice by the
Borrower of a Continuation shall be by telephone or telecopy, confirmed
immediately in writing if by telephone, in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR Loan and
portion thereof subject to such Continuation and (c) the duration of the
selected Interest Period, all of which shall be specified in such manner as is
necessary to comply with all limitations on Loans outstanding hereunder. Each
Notice of Continuation shall be irrevocable by and binding on the Borrower once
given. Promptly after receipt of a Notice of Continuation, the Agent shall
notify each Lender by telecopy, or other similar form of transmission of the
proposed Continuation. If the Borrower shall fail to select in a timely manner a
new Interest Period for any LIBOR Loan in accordance with this Section, such
Loan will automatically, on the last day of the current Interest Period
therefor, Continue as a LIBOR Loan having an Interest Period of one month
notwithstanding the Borrower not complying with this Section.
Section 2.10. Conversion.
So long as no Event of Default exists, the Borrower may on any Business
Day, upon the Borrower's giving of a Notice of Conversion to the Agent, Convert
all or a portion of a Loan of one Type into a Loan of another Type. Any
Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only on,
the last day of an Interest Period for such LIBOR Loan and, upon Conversion of a
Base Rate Loan into a LIBOR Loan, the Borrower shall pay accrued interest to the
date of Conversion on the principal amount so Converted. Each such Notice of
Conversion shall be given not later than 9:00 a.m. (San Francisco time) one
Business Day prior to the date of any proposed Conversion into Base Rate Loans
and three Business Days prior to the date of any proposed Conversion into LIBOR
Loans. Promptly after receipt of a Notice of Conversion, the Agent shall notify
each Lender by telecopy, or other similar form of transmission of the proposed
Conversion. Subject to the restrictions specified above, each Notice of
Conversion shall be by telephone (confirmed immediately in writing) or telecopy
in the form of a Notice of Conversion specifying (a) the requested date of such
Conversion, (b) the Type of Loan to be Converted, (c) the portion of such Type
of Loan to be Converted, (d) the Type of Loan such Loan is to be Converted into
and (e) if such Conversion is into a LIBOR Loan, the requested duration of the
Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by
and binding on the Borrower once given.
Section 2.11. Notes.
The Revolving Loans made by each Lender shall, in addition to this
Agreement, also be evidenced by a Revolving Note, payable to the order of such
Lender in a principal amount equal to the amount of its Commitment as originally
in effect and otherwise duly completed. The Swingline Loans made by the
Swingline Lender to the Borrower shall, in addition to this Agreement, also be
evidenced by a Swingline Note payable to the order of the Swingline Lender.
Section 2.12. Expiration or Maturity Date of Letters of Credit Past Termination
Date.
If on the date the Commitments are terminated (whether voluntarily, by
reason of the occurrence of an Event of Default or otherwise), there are any
Letters of Credit outstanding hereunder, the Borrower shall, on such date, pay
to the Agent an amount of money equal to the Stated Amount of such Letter(s) of
Credit for deposit into the Letter of Credit Collateral Account. If a drawing
pursuant to any such Letter of Credit occurs on or prior to the expiration date
of such Letter of Credit, the Borrower authorizes the Agent to use the monies
deposited in the Letter of Credit Collateral Account to make payment to the
beneficiary with respect to such drawing or the payee with respect to such
presentment. If no drawing occurs on or prior to the expiration date of such
Letter of Credit, the Agent shall pay to the Borrower (or to whomever else may
be legally entitled thereto) the monies deposited in the Letter of Credit
Collateral Account with respect to such outstanding Letter of Credit on or
before the date 10 days after the expiration date of such Letter of Credit.
Section 2.13. Increase in Commitments.
At any time and from time to time prior to the date two years after the
Agreement Date the Borrower shall have the right, subject to the terms and
conditions of this Section 2.13., to increase the aggregate amount of the
Commitments to an amount not to exceed $650,000,000. Any such increase in the
aggregate amount of the Commitments must be in an aggregate minimum amount of
$20,000,000 and integral multiples of $5,000,000 in excess thereof. If the
Borrower elects to exercise such right, it shall give the Agent at least 15 days
prior written notice of such exercise and the proposed effective date of such
increase. Any such notice given by the Borrower shall be irrevocable. The Agent
shall forward a copy of any such notice to each Lender promptly upon receipt. No
Lender shall be obligated in any way whatsoever to increase its Commitment. If a
new Lender becomes a party to this Agreement, or if any existing Lender agrees
to increase its Commitment, such Lender shall on the date it becomes a Lender
hereunder (or in the case of an existing Lender, increases its Commitment) (and
as a condition thereto) purchase from the other Lenders its Pro Rata Share
(determined with respect to the Lenders' relative Commitments and after giving
effect to the increase of Commitments) of any outstanding Revolving Loans, by
making available to the Agent for the account of such other Lenders, in same day
funds, an amount equal to the sum of (A) the portion of the outstanding
principal amount of such Revolving Loans to be purchased by such Lender plus (B)
interest accrued and unpaid to and as of such date on such portion of the
outstanding principal amount of such Revolving Loans. The Borrower shall pay to
the Lenders amounts payable, if any, to such Lenders under Section 4.4. as a
result of the prepayment of any such Revolving Loans; provided, however, that at
the Borrower's request, any increase of the Commitments pursuant to this Section
shall occur on a date or dates agreed to by the Borrower and the Agent in order
to minimize the amounts payable to the Lenders under Section 4.4. No increase of
the aggregate amount of the Commitments may be effected under this Section if
(x) a Default or Event of Default exists on the effective date of such increase
or (y) any representation or warranty made or deemed made by the Borrower or any
other Loan Party in any Loan Document to which any such Loan Party is a party is
not (or would not be) true or correct in all material respects on the effective
date of such increase (except for representations or warranties which expressly
relate solely to an earlier date). In connection with any increase in the
aggregate amount of the Commitments pursuant to this Section, (a) any Lender
becoming a party to this Agreement shall execute such documents and agreements
as the Agent may reasonably request and (b) the Borrower shall make appropriate
arrangements so that each new Lender, and any existing Lender increasing the
amount of its Commitment, receives a new or replacement Note, as appropriate, in
the amount of such Lender's Commitment within 2 Business Days of the
effectiveness of the applicable increase in the aggregate amount of Commitments.
Section 2.14. Extension of Termination Date.
The Borrower shall have the right, exercisable one time, to extend the
Termination Date by one year. The Borrower may exercise such right only by
executing and delivering to the Agent at least 90 days but not more than 180
days prior to the current Termination Date, a written request for such extension
(an "Extension Request"). The Agent shall forward to each Lender a copy of the
Extension Request received by the Agent promptly upon receipt thereof. Subject
to satisfaction of the following conditions, the Termination Date shall be
extended for one year: (a) immediately prior to such extension and immediately
after giving effect thereto, (i) no Default or Event of Default shall exist and
(ii) the representations and warranties made or deemed made by the Borrower and
each other Loan Party in the Loan Documents to which any of them is a party,
shall be true and correct in all material respects on and as of the date of such
extension with the same force and effect as if made on and as of such date
(except to the extent that such representations and warranties expressly relate
solely to an earlier date) and (b) the Borrower shall have paid the Fees payable
under Section 3.5.(d).
Section 2.15. Voluntary Reduction of Commitments
The Borrower may terminate or reduce the amount of the Commitments (for
which purpose use of the Commitments shall be deemed to include the aggregate
principal amount of all outstanding Swingline Loans) at any time and from time
to time without penalty or premium upon not less than five (5) Business Days
prior notice to the Agent of each such termination or reduction, which notice
shall specify the effective date thereof and the amount of any such reduction
(which in the case of any partial reduction of the Commitments shall not be less
than $10,000,000 and integral multiples of $5,000,000 in excess of that amount
in the aggregate) and shall be irrevocable once given and effective only upon
receipt by the Agent (such notice a "Prepayment Notice"); provided, however,
that if the Borrower seeks to reduce the aggregate amount of the Commitments
below $200,000,000, then, unless the Agent and all Lenders have otherwise
previously agreed in writing, the Commitments shall be reduced to zero. Promptly
after receipt of a Prepayment Notice the Agent shall notify each Lender by
telecopy, or other similar form of transmission of the proposed termination or
Commitment reduction. The Commitments, once reduced pursuant to this Section,
may not be increased. The Borrower shall pay all interest and fees, on the Loans
accrued to the date of such reduction or termination of the Commitments to the
Agent for the account of the Lenders, including but not limited to any
applicable compensation due to each Lender in accordance with Section 4.4. of
this Agreement.
Section 2.16. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, no Lender shall be required to make any Loan, and the Agent shall not
be required to issue any Letter of Credit if, immediately after the making of
such Loan or issuance of such Letter of Credit the aggregate principal amount of
all outstanding Loans, together with the aggregate amount of all Letter of
Credit Liabilities, would exceed the aggregate amount of the Commitments.
ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement, the Notes or any other Loan Document shall be made in Dollars, in
immediately available funds, without setoff, deduction or counterclaim, to the
Agent at the Principal Office, not later than 11:00 a.m. San Francisco time on
the date on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next succeeding
Business Day). Subject to Section 9.5., the Borrower shall, at the time of
making each payment under this Agreement or any other Loan Document, specify to
the Agent the amounts payable by the Borrower hereunder to which such payment is
to be applied. Each payment received by the Agent for the account of a Lender
under this Agreement or any Note shall be paid to such Lender by wire transfer
of immediately available funds in accordance with the wiring instructions
provided by such Lender to the Agent from time to time, for the account of such
Lender at the applicable Lending Office of such Lender. In the event the Agent
fails to pay such amounts to such Lender within one Business Day of receipt of
such amounts, the Agent shall pay interest on such amount at a rate per annum
equal to the Federal Funds Rate from time to time in effect. If the due date of
any payment under this Agreement or any other Loan Document would otherwise fall
on a day which is not a Business Day such date shall be extended to the next
succeeding Business Day and interest shall continue to accrue at the rate, if
any, applicable to such payment for the period of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided in this Agreement: (a) each
borrowing from Lenders under Section 2.1. shall be made from the Lenders, each
payment of the fees under Section 3.5. shall be made for the account of the
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.15. shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (b)
each payment or prepayment of principal of Revolving Loans by the Borrower shall
be made for the account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Revolving Loans held by them,
provided that if immediately prior to giving effect to any such payment in
respect of any Revolving Loans the outstanding principal amount of the Revolving
Loans shall not be held by the Lenders pro rata in accordance with their
respective Commitments in effect at the time such Loans were made, then such
payment shall be applied to the Revolving Loans in such manner as shall result,
as nearly as is practicable, in the outstanding principal amount of the
Revolving Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Revolving Loans by the
Borrower shall be made for the account of the Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; (d) the Conversion and Continuation of Revolving Loans of a
particular Type (other than Conversions provided for by Section 4.5.) shall be
made pro rata among the Lenders according to the amounts of their respective
Revolving Loans and the then current Interest Period for each Lender's portion
of each Revolving Loan of such Type shall be coterminous; (e) the Lenders'
participation in, and payment obligations in respect of, Swingline Loans under
Section 2.3., shall be in accordance with their respective Pro Rata Shares; and
(f) the Lenders' participation in, and payment obligations in respect of,
Letters of Credit under Section 2.2., shall be pro rata in accordance with their
respective Commitments. All payments of principal, interest, fees and other
amounts in respect of the Swingline Loans shall be for the account of the
Swingline Lender only (except to the extent any Lender shall have acquired a
participating interest in any such Swingline Loan pursuant to Section 2.3.).
Section 3.3. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on,
any Loan under this Agreement or shall obtain payment on any other Obligation
owing by the Borrower or any other Loan Party through the exercise of any right
of set-off, banker's lien or counterclaim or similar right or otherwise or
through voluntary prepayments directly to a Lender or other payments made by the
Borrower or any other Loan Party to a Lender not in accordance with the terms of
this Agreement and such payment should be distributed to the Lenders in
accordance with Section 3.2. or Section 9.5., such Lender shall promptly
purchase from such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans made by the other
Lenders or other Obligations owed to such other Lenders in such amounts, and
make such other adjustments from time to time as shall be equitable, to the end
that all the Lenders shall share the benefit of such payment (net of any
reasonable expenses which may actually be incurred by such Lender in obtaining
or preserving such benefit) in accordance with the requirements of Section 3.2.
or Section 9.5., as applicable. To such end, all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The
Borrower agrees that any Lender so purchasing a participation (or direct
interest) in the Loans or other Obligations owed to such other Lenders may
exercise all rights of set-off, banker's lien, counterclaim or similar rights
with respect to such participation as fully as if such Lender were a direct
holder of Loans in the amount of such participation. Nothing contained herein
shall require any Lender to exercise any such right or shall affect the right of
any Lender to exercise and retain the benefits of exercising, any such right
with respect to any other indebtedness or obligation of the Borrower.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or performed by such
other Lender hereunder, and the failure of any Lender to make a Loan or to
perform any other obligation to be made or performed by it hereunder shall not
relieve the obligation of any other Lender to make any Loan or to perform any
other obligation to be made or performed by such other Lender.
Section 3.5. Fees.
(a) Loan Fees. On the Effective Date, the Borrower agrees to pay to the
Agent for the account of each Lender such loan fees as agreed to by the
Borrower, the Agent and such Lender.
(b) Unused Fee. During the period from the Effective Date to but
excluding the Termination Date, the Borrower agrees to pay to the Agent for the
account of the Lenders an unused facility fee equal to the sum of the daily
amount by which the aggregate amount of the Commitments exceeds the aggregate
outstanding principal balance of Revolving Loans and Letter of Credit
Liabilities set forth in the table below multiplied by the corresponding per
annum rate applicable to that portion:
--------------------------------------------------------------- ----------------
Amount by Which Commitments Exceeds Revolving Loans and
Letter of Credit Liabilities Unused Fee
--------------------------------------------------------------- ----------------
$0 to and including an amount equal to 33% of 0.150%
the aggregate amount of Commitments
--------------------------------------------------------------- ----------------
Greater than an amount equal to 33% of the 0.225%
aggregate amount of the Commitments but less
than an amount equal to 66% of the aggregate
amount of Commitments
--------------------------------------------------------------- ----------------
Greater than or equal to an amount equal to 66% 0.300%
of the aggregate amount of Commitments
--------------------------------------------------------------- ----------------
Such fees shall be computed on a daily basis and payable quarterly in arrears on
the first day of each January, April, July and October during the term of this
Agreement and on the Termination Date.
(c) Letter of Credit Fees. The Borrower agrees to pay to the Agent for
the account of the Lenders a letter of credit fee at a rate per annum equal to
the Applicable Margin multiplied by the Stated Amount of each Letter of Credit;
provided, however, that in no event shall the amount of such fee be less then
$1,000 in the case of any Letter of Credit. Such fee shall be computed on a
daily basis and payable quarterly in arrears on the first day of each January,
April, July and October until such Letter of Credit has expired and on the
expiration date thereof. The Borrower shall pay directly to the Agent from time
to time on demand all routine commissions, charges, costs and expenses in the
amounts customarily charged by the Agent from time to time in like circumstances
with respect to the issuance of each Letter of Credit, drawings, amendments and
other transactions relating thereto.
(d) Extension Fee. If, pursuant to Section 2.14., the Borrower
exercises its right to extend the Termination Date, the Borrower agrees to pay
to the Agent for the account of each Lender an extension fee equal to 0.25% of
the amount of such Lender's Commitment at such time. Such fee shall be paid to
the Agent for the account of the Lenders prior to, and as a condition to, any
such extension.
(e) Agent's Fees. The Borrower agrees to pay the administrative and
other fees of the Agent as may be agreed to in writing from time to time.
Section 3.6. Computations.
Unless otherwise expressly set forth herein, any accrued interest on
any Loan, any Fees or other Obligations due hereunder shall be computed on the
basis of a year of 360 days and the actual number of days elapsed.
Section 3.7. Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender or
the Swingline Lender, then such excess sum shall be credited as a payment of
principal, unless the Borrower shall notify the respective Lender or the
Swingline Lender in writing that the Borrower elects to have such excess sum
returned to it forthwith. It is the express intent of the parties hereto that
the Borrower not pay and neither the Lenders nor the Swingline Lender receive,
directly or indirectly, in any manner whatsoever, interest in excess of that
which may be lawfully paid by the Borrower under Applicable Law. The parties
hereto hereby agree and stipulate that the only charge imposed upon the Borrower
for the use of money in connection with this Agreement is and shall be the
interest described in Sections 2.4.(a)(i) and (ii) and in Section 2.3.(c).
Notwithstanding the foregoing, the parties hereto further agree and stipulate
that all agency fees, syndication fees, loan fees, letter of credit fees,
underwriting fees, default charges, late charges, funding or "breakage" charges,
increased cost charges, attorneys' fees and reimbursement for costs and expenses
paid by the Agent, any Lender or the Swingline Lender to third parties or for
damages incurred by the Agent, any Lender or the Swingline Lender, are charges
made to compensate the Agent, any such Lender or the Swingline Lender for
underwriting or administrative services and costs or losses performed or
incurred, and to be performed or incurred, by the Agent, the Lenders and the
Swingline Lender in connection with this Agreement. Unless otherwise expressly
provided herein, all fees and all charges, other than charges for the use of
money, shall be fully earned and nonrefundable when due.
Section 3.8. Statements of Account.
The Agent will account to the Borrower monthly with a statement of
Loans, accrued interest and Fees, charges and payments made pursuant to this
Agreement and the other Loan Documents, and such account rendered by the Agent
shall be deemed conclusive upon the Borrower absent manifest error. The Agent
will account to the Borrower on changes in Letters of Credit in accordance with
Section 2.2.(k). The failure of the Agent to deliver such a statement of
accounts shall not relieve or discharge the Borrower from any of its obligations
hereunder.
Section 3.9. Defaulting Lenders.
(a) Defaulting Lender. If for any reason any Lender (a "Defaulting
Lender") shall fail or refuse to perform any of its obligations under this
Agreement or any other Loan Document to which it is a party within the time
period specified for performance of such obligation or, if no time period is
specified, if such failure or refusal continues for a period of 2 Business Days
after notice from the Agent, then, in addition to the rights and remedies that
may be available to the Agent or the Borrower under this Agreement or Applicable
Law, such Defaulting Lender's right to participate in the administration of the
Loans, this Agreement and the other Loan Documents, including without
limitation, any right to vote in respect of, to consent to or to direct any
action or inaction of the Agent or to be taken into account in the calculation
of Requisite Lenders, shall be suspended during the pendency of such failure or
refusal. If for any reason a Lender fails to make timely payment to the Agent of
any amount required to be paid to the Agent hereunder (without giving effect to
any notice or cure periods), in addition to other rights and remedies which the
Agent or the Borrower may have under the immediately preceding provisions or
otherwise, the Agent shall be entitled (i) to collect interest from such
Defaulting Lender on such delinquent payment for the period from the date on
which the payment was due until the date on which the payment is made at the
Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of
the defaulted payment and any related interest, any amounts otherwise payable to
such Defaulting Lender under this Agreement or any other Loan Document and (iii)
to bring an action or suit against such Defaulting Lender in a court of
competent jurisdiction to recover the defaulted amount and any related interest.
Any amounts received by the Agent in respect of a Defaulting Lender's Loans
shall not be paid to such Defaulting Lender and shall be held by the Agent and
paid to such Defaulting Lender upon the Defaulting Lender's curing of its
default.
(b) Assignment of Defaulting Lender's Commitment. The Borrower may
demand that a Defaulting Lender, and upon such demand the Defaulting Lender
shall promptly, assign its Commitment to an Eligible Assignee for a purchase
price equal to the aggregate principal balance of the Loans then owing to such
Defaulting Lender plus any accrued but unpaid interest thereon and accrued but
unpaid fees owing to such Defaulting Lender. Upon any such assignment, the
Defaulting Lender's interest in the Loans and its rights hereunder (but not its
liability in respect thereof or under the Loan Documents or this Agreement to
the extent the same relate to the period prior to the effective date of the
purchase) shall terminate on the date of assignment, and the Defaulting Lender
shall promptly execute all documents reasonably requested to surrender and
transfer such interest to the Assignee thereof, including an appropriate
Assignment and Acceptance Agreement and, notwithstanding Section 11.5.(c), shall
pay to the Agent an assignment fee in the amount of $7,000. It shall be the sole
responsibility of the Borrower to find an Eligible Assignee willing to acquire
the Defaulting Lender's Commitment under this Section and at no time shall the
Agent or any Lender be obligated in any way whatsoever to assist in finding an
Eligible Assignee or to purchase a Defaulting Lender's Commitment. The exercise
by the Borrower of its rights under this clause shall be at the Borrower's sole
cost and expense and at no cost or expense to the Agent or any of the other
Lenders (excluding the Defaulting Lender). Nothing contained in this Section is
intended to limit in any way whatsoever the rights and remedies that the
Borrower may have with respect to the Defaulting Lender hereunder or otherwise.
Section 3.10. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits and (iv)
any taxes arising after the Agreement Date solely as a result of or attributable
to a Lender changing its designated Lending Office after the date such Lender
becomes a party hereto (such non-excluded items being collectively called
"Taxes"). If any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the
full amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received
by the Agent or such Lender will equal the full amount that the Agent
or such Lender would have received had no such withholding or deduction
been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the Agent,
for its account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
(c) Tax Forms. Prior to the date that any Lender or Participant
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the Agent
such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto (including Internal
Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor
forms), properly completed, currently effective and duly executed by such Lender
or Participant establishing that payments to it hereunder and under the Notes
are (i) not subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax under the Code. Each such
Lender or Participant shall (x) deliver further copies of such forms or other
appropriate certifications on or before the date that any such forms expire or
become obsolete and after the occurrence of any event requiring a change in the
most recent form delivered to the Borrower and (y) obtain such extensions of the
time for filing, and renew such forms and certifications thereof, as may be
reasonably requested by the Borrower or the Agent. The Borrower shall not be
required to pay any amount pursuant to last sentence of subsection (a) above to
any Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America or the Agent, if it is organized under
the laws of a jurisdiction outside of the United States of America, if such
Lender, Participant or the Agent, as applicable, fails to comply with the
requirements of this subsection. If any such Lender or Participant fails to
deliver the above forms or other documentation, then the Agent may withhold from
such payment to such Lender such amounts as are required by the Code. If any
Governmental Authority asserts that the Agent did not properly withhold or
backup withhold, as the case may be, any tax or other amount from payments made
to or for the account of any Lender, such Lender shall indemnify the Agent
therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section, and costs
and expenses (including all fees and disbursements of any law firm or other
external counsel and the allocated cost of internal legal services and all
disbursements of internal counsel) of the Agent. The obligation of the Lenders
under this Section shall survive the termination of the Commitments, repayment
of all Obligations and the resignation or replacement of the Agent.
ARTICLE IV. YIELD PROTECTION, ETC.
Section 4.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly pay to the Agent for
the account of a Lender from time to time such amounts as such Lender may
reasonably determine to be necessary to compensate such Lender for any costs
incurred by such Lender that it reasonably determines are attributable to its
making or maintaining of any LIBOR Loans or its obligation to make any LIBOR
Loans hereunder, any reduction in any amount receivable by such Lender under
this Agreement or any of the other Loan Documents in respect of any of such
LIBOR Loans or such obligation or the maintenance by such Lender of capital in
respect of its LIBOR Loans or its Commitment (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change that: (i) changes the basis of taxation of
any amounts payable to such Lender under this Agreement or any of the other Loan
Documents in respect of any of such LIBOR Loans or its Commitment (other than
taxes imposed on or measured by the overall net income of such Lender or of its
Lending Office for any of such LIBOR Loans by the jurisdiction in which such
Lender has its principal office or such Lending Office), or (ii) imposes or
modifies any reserve, special deposit or similar requirements (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve System
or other similar reserve requirement applicable to any other category of
liabilities or category of extensions of credit or other assets by reference to
which the interest rate on LIBOR Loans is determined) relating to any extensions
of credit or other assets of, or any deposits with or other liabilities of, or
other credit extended by, or any other acquisition of funds by such Lender (or
its parent corporation), or any commitment of such Lender (including, without
limitation, the Commitment of such Lender hereunder) or (iii) has or would have
the effect of reducing the rate of return on capital of such Lender to a level
below that which such Lender could have achieved but for such Regulatory Change
(taking into consideration such Lender's policies with respect to capital
adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
the provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Loans
into, LIBOR Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of Section 4.5. shall
apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting
the obligations of the Borrower under the preceding subsections of this Section
(but without duplication), if as a result of any Regulatory Change or any
risk-based capital guideline or other requirement heretofore or hereafter issued
by any Governmental Authority there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of
Credit and the result shall be to increase the cost to the Agent of issuing (or
any Lender of purchasing participations in) or maintaining its obligation
hereunder to issue (or purchase participations in) any Letter of Credit or
reduce any amount receivable by the Agent or any Lender hereunder in respect of
any Letter of Credit, then, upon demand by the Agent or such Lender, the
Borrower shall pay immediately to the Agent for its account or the account of
such Lender, as applicable, from time to time as specified by the Agent or a
Lender, such additional amounts as shall be sufficient to compensate the Agent
or such Lender for such increased costs or reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the
Agent and each Lender, as the case may be, agrees to notify the Borrower of any
event occurring after the Agreement Date entitling the Agent or such Lender to
compensation under any of the preceding subsections of this Section as promptly
as practicable; provided, however, that the failure of the Agent or any Lender
to give such notice shall not release the Borrower from any of its obligations
hereunder; provided, further, however, that no Lender shall be entitled to claim
any compensation under any of the preceding subsections of this Section if such
Lender fails to provide such notice to the Borrower within 90 days of the date
such Lender becomes aware of the occurrence of the event giving rise to the
claim for such compensation. The Agent and each Lender, as the case may be,
agrees to furnish to the Borrower (and in the case of a Lender to the Agent as
well) a certificate setting forth the basis and amount of each request for
compensation under this Section. Determinations by the Agent or such Lender, as
the case may be, of the effect of any Regulatory Change shall be conclusive,
absent manifest error, provided that such determinations are made on a
reasonable basis and in good faith.
Section 4.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any LIBOR for any Interest Period:
(a) the Agent reasonably determines (which determination shall
be conclusive, absent manifest error) that quotations of interest rates
for the relevant deposits referred to in the definition of LIBOR are
not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for LIBOR
Loans as provided herein or is otherwise unable to determine LIBOR, or
(b) the Agent reasonably determines (which determination shall
be conclusive) that the relevant rates of interest referred to in the
definition of LIBOR upon the basis of which the rate of interest for
LIBOR Loans for such Interest Period is to be determined are not likely
to adequately cover the cost to any Lender of making or maintaining
LIBOR Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either prepay such
Loan or Convert such Loan into a Base Rate Loan.
Section 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if any Lender
shall determine (which determination shall be conclusive and binding) that it is
unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy of such notice to the Agent) and such Lender's obligation to make or
Continue, or to Convert Revolving Loans of any other Type into, LIBOR Loans
shall be suspended until such time as such Lender may again make and maintain
LIBOR Loans (in which case the provisions of Section 4.5.shall be applicable).
Section 4.4. Compensation.
The Borrower shall pay to the Agent for the account of each Lender,
upon the request of such Lender through the Agent, such amount or amounts as
shall be sufficient to compensate such Lender for any loss, cost or expense that
such Lender reasonably determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional)
of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender for
any reason (including, without limitation, acceleration) on a date
other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the applicable conditions
precedent specified in Article V. to be satisfied) to borrow a LIBOR
Loan from such Lender on the date for such borrowing, or to Convert a
Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the
requested date of such Conversion or Continuation.
Not in limitation of the foregoing, such compensation shall include, without
limitation; in the case of a LIBOR Loan, an amount equal to the then present
value of (i) the amount of interest that would have accrued on such LIBOR Loan
for the remainder of the Interest Period at the rate applicable to such LIBOR
Loan, less (ii) the amount of interest that would accrue on the same LIBOR Loan
for the same period if LIBOR were set on the date on which such LIBOR Loan was
repaid, prepaid or Converted or the date on which the Borrower failed to borrow,
Convert or Continue such LIBOR Loan, as applicable, calculating present value by
using as a discount rate LIBOR quoted on such date plus the Applicable Margin.
Upon the Borrower's request (made through the Agent), any Lender seeking
compensation under this Section shall provide the Borrower with a statement
setting forth the basis for requesting such compensation and the method for
determining the amount thereof. Any such statement shall be conclusive absent
manifest error.
Section 4.5. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to
Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended
pursuant to Section 4.1.(b), Section 4.2., or Section 4.3. then such Lender's
LIBOR Loans shall be automatically Converted into Base Rate Loans on the last
day(s) of the then current Interest Period(s) for LIBOR Loans (or, in the case
of a Conversion required by Section 4.1.(b), Section 4.2., or Section 4.3. on
such earlier date as such Lender may specify to the Borrower with a copy to the
Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.1., Section 4.2., or Section 4.3. that gave
rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Base Rate Loans; and
(b) all Revolving Loans that would otherwise be made or
Continued by such Lender as LIBOR Loans shall be made or Continued
instead as Base Rate Loans, and all Base Rate Loans of such Lender that
would otherwise be Converted into LIBOR Loans shall remain as Base Rate
Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1. or Section 4.3. that gave rise to the
Conversion of such Lender's LIBOR Loans pursuant to this Section no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when LIBOR Loans made by other Lenders are outstanding, then
such Lender's Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR
Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as
to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
Section 4.6. Affected Lenders.
If (a) a Lender requests compensation pursuant to Section 3.10. or
4.1., and the Requisite Lenders are not also doing the same, or (b) the
obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base
Rate Loans into LIBOR Loans shall be suspended pursuant to Section 4.1., 4.2. or
4.3. but the obligation of the Requisite Lenders shall not have been suspended
under such Sections, then, so long as there does not then exist any Default or
Event of Default, the Borrower may demand that such Lender (the "Affected
Lender"), and upon such demand the Affected Lender shall promptly assign its
Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 11.5.(c) for a purchase price equal to the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued
but unpaid interest thereon and accrued but unpaid fees owing to the Affected
Lender. Each of the Agent, the Borrower and the Affected Lender shall reasonably
cooperate in effectuating the replacement of such Affected Lender under this
Section, but at no time shall the Agent, such Affected Lender nor any other
Lender be obligated in any way whatsoever to initiate any such replacement or to
assist in finding an Eligible Assignee. The exercise by the Borrower of its
rights under this Section shall be at the Borrower's sole cost and expense and
at no cost or expense to the Agent, the Affected Lender or any of the other
Lenders. The terms of this Section shall not in any way limit the Borrower's
obligation to pay to any Affected Lender compensation owing to such Affected
Lender pursuant to Section 3.10. or 4.1.
Section 4.7. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article IV.
shall be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
Section 4.8. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.10., 4.1. or 4.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
ARTICLE V. CONDITIONS PRECEDENT
Section 5.1. Initial Conditions Precedent.
The obligation of the Agent and the Lenders to effect or permit the
occurrence of the first Credit Event hereunder, whether as the making of a Loan
or the issuance of a Letter of Credit, is subject to the following conditions
precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the
parties hereto;
(ii) Revolving Notes and Swingline Note executed by the
Borrower, payable to each Lender and complying with the terms of
Section 2.11.;
(iii) the Guaranty executed by each of the Guarantors
initially to be a party thereto;
(iv) an opinion of counsel to the Parent, the Borrower, and
the Guarantors, addressed to the Agent and the Lenders and covering the
matters set forth on Exhibit I;
(v) a certificate of incumbency signed by the Secretary or
Assistant Secretary of the Parent with respect to each of the officers
of the Parent authorized to execute and deliver on behalf of the Parent
and the Borrower the Loan Documents to which the Parent or the Borrower
is a party and to execute and deliver (or make by telephone in the case
of Notices of Conversion or Continuation) on behalf of the Borrower
Notices of Borrowing, Notices of Conversion, Notices of Continuation,
Notices of Swingline Borrowing and requests for Letters of Credit;
(vi) a certified copy (certified by the Secretary or Assistant
Secretary of the Parent) of all necessary action taken by the Parent to
authorize the execution, delivery and performance of the Loan Documents
to which either the Parent or the Borrower is a party;
(vii) the certificate or articles of incorporation, articles
of organization, certificate of limited partnership, declaration of
trust or other comparable organizational instrument (if any) of the
Parent, the Borrower and each Guarantor, certified as of a recent date
by the Secretary of State of the State of formation of such Person;
(viii) a Certificate of Good Standing or certificate of
similar meaning with respect to the Parent, the Borrower and each
Guarantor (and in the case of a limited partnership, the general
partner of such Guarantor) issued as of a recent date by the Secretary
of State of the State of formation of each such Person and certificates
of qualification to transact business or other comparable certificates
issued by each Secretary of State (and any state department of
taxation, as applicable) of each state in which such Person is required
to be so qualified;
(ix) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of each Guarantor with respect to each of the officers of such Person
authorized to execute and deliver the Loan Documents to which such
Person is a party;
(x) copies certified by the Secretary or Assistant Secretary
(or other individual performing similar functions) of the Parent, the
Borrower and each Guarantor of the by-laws of such Person, if a
corporation, the operating agreement, if a limited liability company,
the partnership agreement, if a limited or general partnership, or
other comparable document in the case of any other form of legal
entity;
(xi) copies certified by the Secretary or Assistant Secretary
(or other individual performing similar functions) of each Guarantor of
all corporate, partnership, member or other necessary action taken by
each Guarantor to authorize the execution, delivery and performance of
the Loan Documents to which it is a party;
(xii) a copy of the Crown Merger Agreement and any other
material documents executed in connection therewith requested by the
Agent, together with all amendments and supplements thereto, certified
by a officer of the Parent to be true, correct and complete copies and
in full force and effect;
(xiii) a certificate of the chief executive officer, chief
financial officer or other senior officer of the Parent stating that
all conditions precedent to the consummation of the Crown Transaction
as set forth in the Crown Merger Agreement have been satisfied or
waived, together with a file-stamped copies of the articles of merger
of PREIT and Crown filed with the Secretary of the Commonwealth of the
Commonwealth of Pennsylvania and the Secretary of State of the State of
Maryland;
(xiv) a letter from the administrative agent under each of the
Existing Credit Agreements providing information regarding the payment
in full of amounts outstanding thereunder (other than the Letters of
Credit described on Schedule 2.2.(a)) and providing for the termination
thereof; and
(xv) such other documents and instruments as the Agent, or any
Lender through the Agent, may reasonably request.
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent
or the Lenders any event, condition, situation or status since the date
of the information contained in the financial and business projections,
budgets, pro forma data and forecasts concerning the Parent, the
Borrower and the other Subsidiaries delivered to the Agent and the
Lenders prior to the Agreement Date that has had or could reasonably be
expected to have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which could reasonably be expected to (A) have a Material
Adverse Effect or (B) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability
of any Loan Party to fulfill its obligations under the Loan Documents
to which it is a party; and
(iii) The Parent, the Borrower and the other Loan Parties
shall have received all approvals, consents and waivers, and shall have
made or given all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the occurrence
of any default under or violation of (A) any Applicable Law or (B) any
agreement, document or instrument to which any Loan Party is a party or
by which any of them or their respective properties is bound, except
for such approvals, consents, waivers, filings and notices the receipt,
making or giving of which, or the failure to make, give or receive
which, would not reasonably be likely to (1) have a Material Adverse
Effect, or (2) restrain or enjoin, impose materially burdensome
conditions on, or otherwise materially and adversely affect the ability
of the Borrower, the Parent or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party.
Section 5.2. Conditions Precedent to All Loans and Letters of Credit.
The obligation of the Lenders to make any Loans, of the Swingline
Lender to make a Swingline Loan and of the Agent to issue Letters of Credit are
all subject to the further condition precedent that: (a) no Default, or Event of
Default shall have occurred and be continuing as of the date of the making of
such Loan or date of issuance of such Letter of Credit or would exist
immediately after giving effect thereto; (b) the representations and warranties
made or deemed made by each Loan Party in the Loan Documents to which any of
them is a party, shall be true and correct on and as of the date of the making
of such Loan or date of issuance of such Letter of Credit with the same force
and effect as if made on and as of such date except to the extent that such
representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and accurate
on and as of such earlier date) and except for changes in factual circumstances
not prohibited hereunder and (c) in the case of the borrowing of Loans, the
Agent shall have received a timely Notice of Borrowing or the Swingline Lender
shall have received a timely Notice of Swingline Borrowing, as applicable. Each
Credit Event shall constitute a certification by the Borrower to the effect set
forth in the preceding sentence (both as of the date of the giving of notice
relating to such Credit Event and, unless the Borrower otherwise notifies the
Agent prior to the date of such Credit Event, as of the date of the occurrence
of such Credit Event). In addition, the Borrower shall be deemed to have
represented to the Agent and the Lenders at the time any such Loan is made or
any such Letter of Credit is issued that all conditions to the making of such
Loan or issuing of such Letter of Credit contained in Article V. have been
satisfied or waived as permitted hereunder.
Section 5.3. Conditions as Covenants.
If the Lenders make any Loans, or the Agent issues a Letter of Credit,
prior to the satisfaction of all conditions precedent set forth in Sections 5.1.
and 5.2., the Borrower shall nevertheless cause such condition or conditions to
be satisfied within 5 Business Days after the date of the making of such Loans
or the issuance of such Letter of Credit, unless waived as permitted hereunder.
Unless set forth in writing to the contrary, the making of its initial Loan by a
Lender shall constitute a confirmation by such Lender to the Agent and the other
Lenders that insofar as such Lender is concerned the Borrower has satisfied the
conditions precedent for initial Loans set forth in Sections 5.1. and 5.2.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties.
In order to induce the Agent, each Lender and the Swingline Lender to
enter into this Agreement and to make Loans and issue Letters of Credit, in the
case of the Agent, and to acquire participations in Letters of Credit and
Swingline Loans, in the case of Lenders, the Borrower and the Parent each
represents and warrants to the Agent, each Lender and the Swingline Lender as
follows:
(a) Organization; Power; Qualification. Each of the Loan Parties is a
corporation, partnership or other legal entity, duly organized or formed,
validly existing and in good standing under the jurisdiction of its
incorporation or formation, has the power and authority to own or lease its
respective properties and to carry on its respective business as now being and
hereafter proposed to be conducted and is duly qualified and is in good standing
as a foreign corporation, partnership or other legal entity, and authorized to
do business, in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification or authorization and
where the failure to be so qualified or authorized could reasonably be expected
to have, in each instance, a Material Adverse Effect.
(b) Ownership Structure. Part I of Schedule 6.1.(b) is a complete and
correct list, as of the Agreement Date (and after giving effect to the Crown
Transaction), of all Subsidiaries of the Parent, setting forth for each such
Subsidiary (i) the jurisdiction of organization of such Subsidiary, (ii) each
Person holding any Equity Interest in such Subsidiary, (iii) the nature of the
Equity Interests held by each such Person and (iv) the percentage of ownership
of such Subsidiary represented by such Equity Interests. Except as disclosed in
such Schedule (w) each of the Parent and its Subsidiaries owns, free and clear
of all Liens, and has the unencumbered right to vote, all outstanding Equity
Interests in each Person shown to be held by it on such Schedule, (x) all of the
issued and outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (y) there are no
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including, without limitation, any stockholders' or
voting trust agreements) for the issuance, sale, registration or voting of, or
outstanding securities convertible into, any additional shares of capital stock
of any class, or partnership or other ownership interests of any type in, any
such Person. Part II of Schedule 6.1.(b) correctly sets forth, as of the
Agreement Date (and after giving effect to the Crown Transaction), all
Unconsolidated Affiliates of the Parent, including the correct legal name of
such Person, the type of legal entity which each such Person is, and all Equity
Interests in such Person held directly or indirectly by the Parent.
(c) Authorization of Loan Documents and Borrowings. The Borrower has
the right and power, and has taken all necessary action to authorize it, to
borrow hereunder. The Parent, the Borrower and each other Loan Party has the
right and power, and has taken all necessary action to authorize it, to execute,
deliver and perform each of the Loan Documents to which it is a party in
accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. The Loan Documents to which the Parent, the
Borrower or any other Loan Party is a party have been duly executed and
delivered by duly authorized signatories of such Person and each is a legal,
valid and binding obligation of such Person enforceable against such Person in
accordance with its respective terms, except as the same may be limited by
bankruptcy, insolvency, fraudulent conveyance and other similar laws affecting
the rights of creditors generally and the availability of equitable remedies for
the enforcement of certain obligations (other than the payment of principal)
contained herein or therein may be limited by equitable principles generally.
(d) Compliance of Loan Documents and Borrowing with Laws, etc. The
execution, delivery and performance of this Agreement and the other Loan
Documents to which the Parent, the Borrower or any other Loan Party is a party
in accordance with their respective terms, and the borrowings hereunder, do not
and will not, by the passage of time, the giving of notice, or both: (i) require
any Governmental Approval or violate any Applicable Law (including all
Environmental Laws) relating to any Loan Party or any other Subsidiary; (ii)
result in a breach of or constitute a default under the declaration of trust,
certificate or articles of incorporation, bylaws, partnership agreement or other
organizational documents of any Loan Party or any other Subsidiary, or any
indenture, agreement or other instrument to which any Loan Party or any other
Subsidiary is a party or by which it or any of its respective properties may be
bound; or (iii) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by any Loan
Party or any other Subsidiary other than in favor of the Agent for the benefit
of the Lenders.
(e) Compliance with Law; Governmental Approvals. Each Loan Party and
each other Subsidiary is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Law relating to
such Loan Party or such other Subsidiary except for noncompliances which, and
Governmental Approvals the failure to possess could not reasonably be expected
to have a Material Adverse Effect.
(f) Title to Properties. Schedule 6.1.(f) is, as of the Agreement Date
(and after giving effect to the Crown Transaction), a complete and correct
listing of all Properties of the Parent, the Borrower, the other Loan Parties
and all other Subsidiaries, setting forth, for each such Property, (i) to the
best of the Loan Parties' knowledge, the current occupancy status of such
Property, (ii) whether such Property is a Development Property or Major
Redevelopment Property and, (iii) if such Property is a Development Property or
Major Redevelopment Property, the status of completion of such Property. Each of
the Parent, the Borrower, the other Loan Parties and all other Subsidiaries has
good, marketable and legal title to, or a valid leasehold interest in, its
respective assets necessary to the conduct of their businesses.
(g) Existing Indebtedness; Liabilities. Part I of Schedule 6.1.(g) is,
as of the Agreement Date (and after giving effect to the Crown Transaction), a
complete and correct listing of all Indebtedness (including all Guarantees of
Indebtedness) of the Parent, the Borrower, the other Loan Parties, the other
Subsidiaries and any Unconsolidated Affiliates, and if such Indebtedness is
secured by any Lien, a description of all of the property subject to such Lien.
As of the Agreement Date, the Loan Parties and the other Subsidiaries have
performed and are in compliance with all of the terms of all Indebtedness of the
Loan Parties and other Subsidiaries and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
the giving of notice, the lapse of time, or both, would constitute such a
default or event of default, exists with respect to any such Indebtedness. Part
II of Schedule 6.1.(g) is, as of the Agreement Date (and after giving effect to
the Crown Transaction), to the best of the Loan Parties' knowledge, a complete
and correct listing of all Total Liabilities of the Parent, the Borrower, the
other Loan Parties and the other Subsidiaries (excluding any Indebtedness set
forth on Part I of such Schedule but including Contingent Obligations not set
forth on Part I of such Schedule).
(h) Material Contracts. Schedule 6.1.(h) is, as of the Agreement Date
(and after giving effect to the Crown Transaction), a true, correct and complete
listing of all Material Contracts. As of the Agreement Date, all such Material
Contracts are in full force and effect and each Loan Party and the other
Subsidiaries that are parties to any Material Contract has performed and is in
compliance with all of the terms of such Material Contract, and no default or
event of default, or event or condition which with the giving of notice, the
lapse of time, or both, would constitute such a default or event of default,
exists with respect to any such Material Contract.
(i) Litigation. Except as set forth on Schedule 6.1.(i), there are no
actions, suits, proceedings or, to the knowledge of the Parent or the Borrower,
any investigations by any Governmental Authority pending (nor, to the knowledge
of the Parent or the Borrower, are there any actions, suits, proceedings or
investigations by any Governmental Authority threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting the
Parent, the Borrower, any other Loan Party or any other Subsidiary or any of its
respective property in any court or before any arbitrator of any kind or before
or by any other Governmental Authority which could reasonably be expected to
have a Material Adverse Effect, and there are no strikes, slow downs, work
stoppages or walkouts or other labor disputes in progress or threatened relating
to any Loan Party or any other Subsidiary which could reasonably be expected to
have a Material Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the Loan Parties
and the other Subsidiaries required by Applicable Law to be filed have been duly
filed, and all federal, state and other taxes, assessments and other
governmental charges or levies upon any Loan Party or any other Subsidiary and
its respective properties, income, profits and assets which are due and payable
have been paid, except any such nonpayment which is at the time permitted under
Section 7.7. All charges, accruals and reserves on the books of the Parent and
each of its Subsidiaries in respect of any taxes or other governmental charges
are in accordance with GAAP.
(k) Financial Statements. The Parent has furnished to each Lender
copies of (i) the audited consolidated balance sheet of the Parent and its
consolidated Subsidiaries for the fiscal year ending December 31, 2002, and the
related consolidated statements of income, shareholders' equity and cash flows
for the fiscal year ending on such date, with the opinion thereon of KPMG LLP,
(ii) the unaudited consolidated balance sheet of the Parent and its consolidated
Subsidiaries for the fiscal quarter ending September 30, 2003, and the related
consolidated statements of income, shareholders' equity and cash flows of the
Parent and its consolidated Subsidiaries for the three fiscal quarter period
ending on such date, (iii) the audited consolidated balance sheet of Crown and
its consolidated Subsidiaries for the fiscal year ending December 31, 2002, and
the related consolidated statements of income, shareholders' equity and cash
flows for the fiscal year ending on such date, with the opinion thereon of Ernst
& Young LLP, (iv) the unaudited consolidated balance sheet of Crown and its
consolidated Subsidiaries for the fiscal quarter ending September 30, 2003, and
the related consolidated statements of income, shareholders' equity and cash
flows of Crown and its consolidated Subsidiaries for the three fiscal quarter
period ending on such date and (v) unaudited pro forma condensed consolidated
statements of income of the Parent and its Subsidiaries (giving effect to the
Crown Transaction) for the year ended December 31, 2002 and for the six-month
period ended June 30, 2003 and the unaudited pro forma condensed consolidated
balance sheet of the Parent and its Subsidiaries (giving effect to the Crown
Transaction) as of June 30, 2003 (such pro forma statements, the "Pro Forma
Financial Statements"). Such balance sheets and statements (including in each
case related schedules and notes but excluding the Pro Forma Financial
Statements) present fairly, in accordance with GAAP consistently applied
throughout the periods involved, and in all material respects, the consolidated
financial position of the Parent and its consolidated Subsidiaries as at their
respective dates and the results of operations and the cash flow for such
periods (subject, as to interim statements, to changes resulting from normal
year-end audit adjustments). Neither the Parent nor any of its Subsidiaries has
on the Agreement Date any material contingent liabilities, liabilities,
liabilities for taxes, unusual or long-term commitments or unrealized or forward
anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in said financial statements. The Pro Forma Financial
Statements have been prepared by the Parent and Crown, based on their respective
financial statements for such periods and at such date together with available
information and certain assumptions which the Parent believes to be reasonable,
and give pro forma effect to the Crown Transaction.
(l) No Material Adverse Change. Since December 31, 2002, there has been
no material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Parent and its consolidated
Subsidiaries taken as a whole. Each of the Parent, the Borrower, the other Loan
Parties and the other Subsidiaries is Solvent.
(m) ERISA. No member of the ERISA Group maintains or has ever
maintained any Benefit Plan. No member of the ERISA Group contributes or is
obligated to contribute to or has ever contributed to or been obligated to
contribute to any Multiemployer Plan. No member of the ERISA Group has failed to
make any contribution or payment in respect of any Benefit Arrangement, or made
any amendment to any Benefit Arrangement, which has resulted or, to the
Borrower's or the Parent's knowledge, could result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Internal Revenue
Code.
(n) Absence of Defaults. No Loan Party nor any other Subsidiary is in
default under its declaration of trust, certificate or articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents, and no event has occurred, which has not been remedied, cured or
waived: (i) which constitutes a Default or an Event of Default; or (ii) which
constitutes, or which with the passage of time, the giving of notice, or both,
would constitute, a default or event of default by any Loan Party or any other
Subsidiary under any agreement (excluding any Loan Document) or judgment, decree
or order to which any Loan Party or any other Subsidiary is a party or by which
any such Person or any of its respective properties may be bound where such
default or event of default could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(o) Environmental Laws. Each of the Loan Parties and the other
Subsidiaries is in compliance with all applicable Environmental Laws and has
obtained all Governmental Approvals which are required under Environmental Laws
and is in compliance with all terms and conditions of such Governmental
Approvals, where with respect to each of the foregoing the failure to obtain or
to comply with could be reasonably expected to have a Material Adverse Effect.
Except for any of the following matters that could not be reasonably expected to
have a Material Adverse Effect, neither the Parent nor the Borrower is aware of,
nor has either received notice of, any past or present events, conditions,
circumstances, activities, practices, incidents, actions, or plans which, with
respect to any Loan Party or any other Subsidiary, may unreasonably interfere
with or prevent compliance or continued compliance with Environmental Laws, or
may give rise to any common-law or legal liability, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any Hazardous Material; and there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice, or
demand letter, notice of violation, investigation, or proceeding pending or, to
the Parent's or the Borrower's knowledge after due inquiry, threatened, against
any Loan Party or any other Subsidiary relating in any way to Environmental Laws
which could be reasonably expected to have a Material Adverse Effect.
(p) Investment Company; Public Utility Holding Company. No Loan Party
nor any other Subsidiary is (i) an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, (ii) a "holding company" or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or (iii) subject to any other
Applicable Law which purports to regulate or restrict its ability to borrow
money or to consummate the transactions contemplated by this Agreement or to
perform its obligations under any Loan Document to which it is a party.
(q) Margin Stock. No Loan Party nor any other Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System.
(r) Affiliate Transactions. Except as permitted by Section 8.8., no
Loan Party is a party to or bound by any agreement or arrangement (whether oral
or written) to which any Affiliate of the Borrower is a party.
(s) Intellectual Property. Each Loan Party and each other Subsidiary
own or have the right to use, under valid license agreements or otherwise, all
material patents, licenses, franchises, trademarks, trademark rights, trade
names, trade name rights, trade secrets and copyrights (collectively,
"Intellectual Property") necessary to the conduct of the businesses of the
Borrower and its Subsidiaries, taken as a whole, as now conducted and as
contemplated by the Loan Documents, without known conflict with any patent,
license, franchise, trademark, trade secret, trade name, copyright, or other
proprietary right of any other Person. All such Intellectual Property is fully
protected and/or duly and properly registered, filed or issued in the
appropriate office and jurisdictions for such registrations, filing or
issuances. No material claim has been asserted by any Person with respect to the
use of any such Intellectual Property, or challenging or questioning the
validity or effectiveness of any such Intellectual Property. The use of such
Intellectual Property by the Loan Parties and the other Subsidiaries does not
infringe on the rights of any Person, subject to such claims and infringements
as do not, in the aggregate, give rise to any liabilities on the part of any
Loan Party or any other Subsidiary that could reasonably be expected to have a
Material Adverse Effect.
(t) Business. As of the Agreement Date, the Parent, the Borrower, the
other Loan Parties and the other Subsidiaries are engaged in the business of
acquiring, developing, owning, operating and managing primarily retail real
estate, but also office, multi-family and industrial properties, together with
related business activities and investments incidental thereto.
(u) Accuracy and Completeness of Information. All written information,
reports and other papers and data (excluding financial projections or other
forward looking statements) furnished to the Agent or any Lender by, or at the
direction of, the Parent, the Borrower, any other Loan Party or any other
Subsidiary were, at the time the same were so furnished, to the best of the
Parent's and the Borrower's knowledge, complete and correct in all material
respects, to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter, or, in the case of financial statements,
present fairly, in accordance with GAAP consistently applied throughout the
periods involved, the financial position of the Persons involved as at the date
thereof and the results of operations for such periods. All financial
projections and other forward looking statements prepared by or on behalf of the
Parent, the Borrower or any other Loan Party or Subsidiary that have been or may
hereafter be made available to the Agent or any Lender were or will be prepared
in good faith based on reasonable assumptions. No document furnished or written
statement made, in each case by, or at the direction of any Loan Party or any
other Subsidiary to the Agent or any Lender in connection with the negotiation,
preparation or execution of any Loan Document contains or will contain any
untrue statement of a fact material to the creditworthiness of any Loan Party or
any other Subsidiary or omits or will omit to state a fact material to the
creditworthiness of any Loan Party or any other Subsidiary which is necessary in
order to make the statements contained therein not misleading.
(v) Not Plan Assets. None of the assets of any Loan Party or any other
Subsidiary constitutes "plan assets" within the meaning of ERISA, the Internal
Revenue Code and the respective regulations promulgated thereunder, of any ERISA
Benefit Plan. The execution, delivery and performance of the Loan Documents by
the Loan Parties, and the borrowing and repayment of amounts thereunder, do not
and will not constitute "prohibited transactions" under ERISA or the Internal
Revenue Code for which no statutory or administrative exemption is available.
(x) Non-Guarantor Subsidiaries. Schedule 6.1.(x) is, as of the
Agreement Date (and after giving effect to the Crown Transaction), a complete
and correct list of all Subsidiaries which are not required to become a
Guarantor as of the Agreement Date, setting forth for each such Person, the
correct legal name of such Person, the type of legal entity which each such
Person is, all equity interests in such Person held directly or indirectly by
the Parent and the reason such Subsidiary is not required to become a Guarantor
as of the Agreement Date. As of the Agreement Date, none of the Subsidiaries
identified on Part II of Schedule 6.1.(x) as the "Dissolution Subsidiaries" owns
any assets other than assets of nominal value incidental to such Subsidiary's
existence as a legal entity.
(y) Tax Shelter Regulations. None of the Borrower, any other Loan Party
nor any other Subsidiary intends to treat the Loans or the transactions
contemplated by this Agreement and the other Loan Documents as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). If the Borrower, any other Loan Party or any other Subsidiary
determines to take any action inconsistent with such intention, the Borrower
will promptly notify the Agent thereof. If the Borrower so notifies the Agent,
the Borrower acknowledges that one or more of the Lenders may treat its Loans as
part of a transaction that is subject to Treasury Regulation Section 301.6112-1,
and such Lender or Lenders, as applicable, will maintain the lists and other
records, including the identity of the applicable Loan Parties, all as required
by such Treasury Regulation.
Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by, or at the direction of, any Loan Party or any
other Subsidiary to the Agent or any Lender (other than the content of any
projections or other similar forward looking statements) pursuant to or in
connection with this Agreement or any of the other Loan Documents (including,
but not limited to, any such statement made in or in connection with any
amendment thereto or any statement contained in any certificate, financial
statement or other instrument delivered by, or at the direction of, the Parent
or the Borrower prior to the Agreement Date and delivered to the Agent or any
Lender in connection with closing the transactions contemplated hereby) shall
constitute representations and warranties made by the Parent and the Borrower
under this Agreement. All representations and warranties made under this
Agreement and the other Loan Documents shall be deemed to be made at and as of
the Agreement Date, the Effective Date and at and as of the date of the
occurrence of any Credit Event, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate on and as of
such earlier date) and except for changes in factual circumstances specifically
permitted hereunder. All such representations and warranties shall survive the
effectiveness of this Agreement, the execution and delivery of the Loan
Documents and the making of the Loans and the issuance of the Letters of Credit.
ARTICLE VII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 11.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 11.6., the Borrower and
the Parent, as applicable, shall comply with the following covenants:
Section 7.1. Financial Reporting and Other Information
The Parent shall furnish to the Agent each of the following:
(a) Quarterly Financial Statements. As soon as available and in any
event when the same is required to be filed with the Securities and Exchange
Commission, but in no event later than 45 days after the close of each of the
first, second and third fiscal quarters of the Parent, the unaudited
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such period and the related unaudited consolidated statements of income and cash
flows of the Parent and its Subsidiaries for such period, and setting forth in
each case in comparative form the figures for the corresponding periods of the
previous fiscal year, all of which shall be accompanied by a statement signed by
the chief financial officer of the Parent on behalf of the Parent stating that,
in his or her opinion, such statements present fairly, in accordance with GAAP
and in all material respects, the consolidated financial position of the Parent
and its Subsidiaries as at the date thereof and the results of operations for
such period (subject to normal year-end audit adjustments).
(b) Year-End Statements. As soon as available and in any event when the
same is required to be filed with the Securities and Exchange Commission, but in
no event later than 90 days after the end of each fiscal year of the Parent, the
audited consolidated balance sheet of the Parent and its Subsidiaries as at the
end of such fiscal year and the related audited consolidated statements of
income and cash flows of the Parent and its Subsidiaries for such fiscal year,
setting forth in comparative form the figures as at the end of and for the
previous fiscal year, all of which shall be (a) accompanied by a statement
signed by the chief financial officer of the Parent on behalf of the Parent
stating that, in his or her opinion, such statements present fairly, in
accordance with GAAP and in all material respects, the financial position of the
Parent and its Subsidiaries as at the date thereof and the result of operations
for such period and (b) certified by KPMG LLP or any other independent certified
public accountants of recognized national standing acceptable to the Agent and
the Requisite Lenders, whose opinion shall be unqualified and in scope and
substance satisfactory to the Agent and the Requisite Lenders and who shall have
authorized the Parent to deliver such financial statements and certification
thereof to the Agent and the Lenders pursuant to this Agreement.
(c) Compliance Certificate. At the time the financial statements are
furnished pursuant to the immediately preceding subsections (a) and (b), a
certificate substantially in the form of Exhibit J (a "Compliance Certificate")
executed on behalf of the Parent by the chief financial officer of the Parent
(i) setting forth as of the end of such quarterly accounting period or fiscal
year, as the case may be, the calculations required to establish whether or not
the Parent and the Borrower, as applicable, were in compliance with the
covenants contained in Section 8.1.; and (ii) stating that no Default or Event
of Default exists, or, if such is not the case, specifying such Default or Event
of Default and its nature, when it occurred and, whether it is continuing and
the steps being taken by the Parent or the Borrower with respect to such event,
condition or failure.
(d) Reports from Accountants. Upon the request of the Agent, copies of
all reports, if any, submitted to the Parent or its Board of Trustees by its
independent public accountants including, without limitation, any management
report.
(e) Shareholder Information. Promptly upon the mailing thereof to the
shareholders of the Parent generally, copies of all financial statements,
reports, proxy statements and other written information so mailed and promptly
upon the issuance thereof copies of all press releases issued by the Parent, the
Borrower, any Subsidiary or any other Loan Party; provided, however, the Parent
need not deliver any such information to the Agent so long as the Parent makes
such information generally available on its website free of charge and the
Parent notifies the Agent when any such information has been posted to the
Parent's website.
(f) Securities Filings. Within 10 Business Days of the filing thereof,
copies of all registration statements (excluding the exhibits thereto and any
registration statements on Form S-8 or its equivalent), reports on Forms 10-K,
10-Q and 8-K (or their equivalents) and all other periodic reports which the
Parent, any other Loan Party or any other Subsidiary shall file with the
Securities and Exchange Commission (or any Governmental Authority substituted
therefor) or any national securities exchange; provided, however, the Parent
need not deliver any such information to the Agent so long as the Parent makes
such information generally available on its website free of charge and the
Parent notifies the Agent when any such information has been posted to the
Parent's website.
(g) Pricing Certificate. At the time the financial statements are
furnished pursuant to subsections (a) and (b) above, a certificate substantially
in the form of Exhibit K (a "Pricing Certificate") executed by the chief
financial officer of the Parent (i) setting forth as of the end of such
quarterly accounting period or fiscal year, as the case may be, the calculations
required to establish the ratio of Total Liabilities to Gross Asset Value (as
determined in accordance with Section 8.1.) and (ii) stating the corresponding
level of Applicable Margin with respect to such ratio.
(h) Annual Budget and Plans of the Parent. No later than 15 days after
the beginning of each fiscal year of the Parent, projected balance sheets,
operating statements and cash flow budgets of the Parent and its Subsidiaries on
a consolidated basis for each quarter of such fiscal year, all itemized in
reasonable detail. The foregoing shall be accompanied by pro forma calculations,
together with detailed assumptions, required to establish whether or not the
Parent, and when appropriate its consolidated Subsidiaries, will be in
compliance with the covenants contained in Section 8.1. at the end of each
fiscal quarter of such fiscal year.
(i) Report on Sources and Uses Funds. Within 20 Business Days of the
Agent's request therefor, a report in form and substance reasonably satisfactory
to the Agent detailing the Parent's, together with its Subsidiaries', projected
sources and uses of cash for the period of four consecutive fiscal quarters
immediately following the date of the Agent's request. Such sources shall
include but not be limited to excess operating cash flow, availability under
this Agreement, unused availability under committed development loans, unfunded
committed equity and any other committed sources of funds. Such uses shall
include but not be limited to cash obligations for binding acquisitions,
unfunded development costs, capital expenditures, debt service, overhead,
dividends, maturing project loans, hedge settlements and other anticipated uses
of cash.
(j) Ownership Share/Recourse Share Calculations. Promptly upon the
request of the Agent, evidence of the Parent's calculation of the Ownership
Share and Recourse Share with respect to a Subsidiary or an Unconsolidated
Affiliate, such evidence to be in form and detail reasonably satisfactory to the
Agent.
(k) ERISA Notices. If and when any member of the ERISA Group (i) gives
notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Benefit Plan which might constitute grounds for a
termination of such Benefit Plan under Title IV of ERISA, or knows that the plan
administrator of any Benefit Plan has given notice of any such reportable event,
a copy of the notice of such reportable event given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Benefit Plan, a copy of such notice; (iv) applies for a waiver of
the minimum funding standard under Section 412 of the Internal Revenue Code, a
copy of such application; (v) gives notice of intent to terminate any Benefit
Plan under Section 4041(c) of ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal from any Benefit Plan
pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make
any payment or contribution to any Benefit Plan or Multiemployer Plan or in
respect of any Benefit Arrangement or makes any amendment to any Benefit Plan or
Benefit Arrangement which has resulted or, to the Parent's or the Borrower's
knowledge, could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code, a certificate of the
controller of the Borrower setting forth details as to such occurrence and
action, if any, which the Borrower or applicable member of the ERISA Group is
required or proposes to take.
(l) Litigation and Governmental Proceedings. To the extent the Parent
or the Borrower is aware of the same, prompt notice of the commencement of any
proceeding or investigation by or before any Governmental Authority and any
action or proceeding in any court or other tribunal or before any arbitrator
against or in any other way relating adversely to, or adversely affecting, the
Parent, the Borrower, any other Loan Party or any other Subsidiary or any of
their respective properties, assets or businesses which, if determined or
resolved adversely to such Person, could reasonably be expected to have a
Material Adverse Effect, and prompt notice of the receipt of notice that any
United States income tax returns of the Parent, the Borrower or any of its
Subsidiaries are being audited.
(m) Modification of Organizational Documents. At least five (5)
Business Days prior to the effectiveness thereof, a copy of any material
amendment or other material modification to the Trust Agreement, the Partnership
Agreement or other similar organizational documents of the Parent or the
Borrower.
(n) Material Adverse Change. Prompt notice of any change in the
business, assets, liabilities, financial condition, results of operations of the
Parent, the Borrower, any Subsidiary or any other Loan Party which has had or
could reasonably be expected to have Material Adverse Effect.
(o) Default. Prompt notice of the occurrence of (i) any Default, or
(ii) Event of Default, or (iii) the occurrence of any event which constitutes or
which with the passage of time, the giving of notice, or otherwise, would
constitute an event of default by the Parent, the Borrower, any other Loan Party
or any other Subsidiary under any Material Contract to which any such Person is
a party or by which any such Person or any of its respective properties may be
bound.
(p) Material Contracts. Promptly upon entering into any Material
Contract after the Agreement Date, a copy of such Material Contract to the
Agent.
(q) Other Information, Etc. From time to time and promptly upon each
request, such data, certificates, reports, statements, opinions of counsel,
documents or further information regarding the business, assets, liabilities,
financial condition, results of operations of the Parent, the Borrower, any
other Loan Party or any other Subsidiary as the Agent (or any Lender through the
Agent) may reasonably request.
Upon receipt of any of the items referred to above (other than items requested
under the immediately preceding subsection (q)), the Agent shall promptly
forward a copy thereof to each Lender at its Lending Office (or in the case of
items available on the Parent's website, the Agent shall give each Lender notice
thereof). Upon receipt of any item requested by a Lender under the immediately
preceding subsection (q), the Agent shall promptly forward a copy thereof to
such Lender at its Lending Office.
Section 7.2. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 8.5., the Borrower and the
Parent shall preserve and maintain, and cause each Subsidiary to preserve and
maintain, its respective existence, rights, franchises, licenses and privileges
in the jurisdiction of its incorporation or formation and qualify and remain
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified could reasonably be expected to have a Material Adverse Effect.
Section 7.3. Compliance with Applicable Law.
The Borrower and the Parent shall comply, and cause each Subsidiary to
comply, with all Applicable Law, including the obtaining of all Governmental
Approvals, the failure with which to comply could reasonably be expected to have
a Material Adverse Effect.
Section 7.4. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower and the Parent shall, and shall cause each Subsidiary to, (a) protect
and preserve all of its properties, including, but not limited to, all
Intellectual Property, and maintain in good repair, working order and condition
all tangible properties, ordinary wear and tear and casualty excepted, and (b)
from time to time make or cause to be made all needed and appropriate repairs,
renewals, replacements and additions to such properties, so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times except where the failure to do any of the foregoing under clauses
(a) and (b) herein could not reasonably be expected to have a Material Adverse
Effect.
Section 7.5. Conduct of Business.
The Parent and the Borrower shall at all times carry on, and, except as
permitted under Section 8.5., cause each of their Subsidiaries to carry on, its
respective businesses as described in Section 6.1.(t).
Section 7.6. Insurance.
The Borrower and the Parent shall maintain, and cause each Loan Party
to maintain, insurance with financially sound and reputable insurance companies
against such risks and in such amounts as is customarily maintained by similar
businesses or as may be required by Applicable Law. The Borrower and the Parent
shall from time to time deliver to the Agent upon request a detailed list,
together with copies of all policies of the insurance then in effect, stating
the names of the insurance companies, the amounts and rates of the insurance,
the dates of the expiration thereof and the properties and risks covered
thereby.
Section 7.7. Payment of Taxes and Claims.
The Borrower and the Parent shall pay or discharge, and cause each
Subsidiary to pay and discharge, when due (a) all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
upon any properties belonging to it, and (b) all lawful claims of materialmen,
mechanics, carriers, warehousemen and landlords for labor, materials, supplies
and rentals which, if unpaid, might become a Lien on any properties of such
Person, except in each case, any such non-payment or failure to discharge which
could not reasonably be expected to have a Material Adverse Effect; provided,
however, that this Section shall not require the payment or discharge of any
such tax, assessment, charge, levy or claim which is being contested in good
faith by appropriate proceedings which operate to suspend the collection thereof
and for which adequate reserves have been established on the books of the
Borrower, the Parent or such Subsidiary, as applicable, in accordance with GAAP.
Section 7.8. Books and Records; Visits and Inspections.
The Borrower and the Parent will keep, and will cause each Subsidiary
to keep, proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation to its
business and activities. The Borrower and the Parent will permit, and will cause
each Subsidiary to permit, representatives of the Agent or any Lender to visit
and inspect any of their respective properties, to examine and make abstracts
from any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants in the Borrower's presence prior to an Event of
Default, all at such reasonable times during business hours and as often as may
reasonably be desired and so long as no Event of Default shall have occurred and
be continuing, with reasonable notice and, at any time after the occurrence and
during the continuance of a Default or Event of Default, all at the Borrower's
expense.
Section 7.9. Use of Proceeds.
(a) Loans and Letters of Credit. The Borrower will only use the
proceeds of Loans (i) for the payment of pre-development and development costs
incurred in connection with Properties; (ii) to finance acquisitions and the
general working capital needs of the Parent, the Borrower and the Borrower's
Subsidiaries; (iii) to finance the repayment of Indebtedness of the Parent, the
Borrower and the Borrower's Subsidiaries; (iv) to finance Investments in
Unconsolidated Affiliates of the Parent; and (v) for other general corporate
purposes of the Parent, the Borrower and the Borrower's Subsidiaries. The
Borrower shall only use Letters of Credit for the same purposes for which it may
use the proceeds of Loans.
(b) Margin Stock. The Borrower and the Parent shall not, and shall not
permit any Subsidiary, to use any part of the proceeds of any Loan or Letters of
Credit to purchase or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock; provided, however, subject to the other terms and conditions of
the Loan Documents, the Borrower may use proceeds of Loans (i) to purchase
Equity Interests of publicly traded Persons to the extent permitted under
Section 8.1.(e)(ii); (ii) to repurchase Preferred Equity Interests of the Parent
issued and outstanding as of the Effective Date (and Equity Interests issued in
exchange or replacement for such Preferred Equity Interests); and (iii) to
repurchase outstanding common Equity Interests of the Parent so long as the
aggregate amount of such proceeds used to repurchase such common Equity Interest
does not exceed $50,000,000 during the term of this Agreement. Notwithstanding
any other provision of this Agreement or any other Loan Document, no Loan shall
be made and no Letter of Credit shall be issued if the Agent determines that
making of such Loan or issuance of such Letter of Credit could reasonably be
expected to result in a violation of such Regulation U.
Section 7.10. Environmental Matters.
The Borrower and the Parent shall comply, and cause all of its
Subsidiaries to comply, with all Environmental Laws the failure to comply with
which could reasonably be expected to have a Material Adverse Effect. If the
Borrower, the Parent or any Subsidiary shall (a) receive notice that any
violation of any Environmental Law may have been committed or is about to be
committed by such Person, (b) receive notice that any administrative or judicial
complaint or order has been filed or is about to be filed against the Borrower,
any Subsidiary or any other Loan Party alleging violations of any Environmental
Law or requiring the Borrower, or Subsidiary or any other Loan Party to take any
action in connection with the release of Hazardous Materials or (c) receive any
notice from a Governmental Authority or private party alleging that the
Borrower, or Subsidiary or any other Loan Party may be liable or responsible for
costs associated with a response to or cleanup of a release of a Hazardous
Materials or any damages caused thereby, the Borrower shall provide the Agent
with a copy of such notice within 10 days after the receipt thereof by the
Borrower or any of the Subsidiaries. The Borrower, the Parent and the
Subsidiaries shall promptly take all actions necessary to prevent the imposition
of any Liens on any of their respective properties arising out of or related to
any Environmental Laws.
Section 7.11. Further Assurances.
At the Borrower's cost and expense, upon request of the Agent, the
Borrower shall duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents and certificates,
and do and cause to be done such further acts that may be reasonably necessary
or advisable in the reasonable opinion of the Agent to carry out more
effectively the provisions and purposes of this Agreement and the other Loan
Documents.
Section 7.12. Material Contracts.
The Borrower and the Parent shall, and shall cause each Subsidiary to,
duly and punctually perform and comply with any and all material
representations, warranties, covenants and agreements expressed as binding upon
the Borrower, the Parent or such Subsidiary under any Material Contract neither
the Borrower nor the Parent shall, nor shall the Borrower permit any Subsidiary,
to do or knowingly permit to be done anything to impair materially the value of
any of the Material Contracts.
Section 7.13. REIT Status.
The Parent shall at all times maintain its status as a REIT.
Section 7.14. Exchange Listing.
The Parent shall maintain at least one class of common shares of the
Parent having trading privileges on the New York Stock Exchange or the American
Stock Exchange or which is subject to price quotations on The NASDAQ Stock
Market's National Market System.
Section 7.15. Guarantors.
(a) Generally. Subject to subsection (d) below, the Parent shall cause
any Subsidiary (other than an Excluded Subsidiary) of the Parent or the Borrower
that is not already a Guarantor and to which any of the following conditions
apply (each a "New Guarantor"), to execute and deliver to the Agent an Accession
Agreement to the Guaranty, together with the other items required to be
delivered under the immediately following subsection (b):
(i) such Subsidiary Guarantees, or otherwise becomes obligated
in respect of, any Indebtedness of any other Person (other than
Indebtedness under Guarantees which are solely Guarantees of
performance and not of payment and other Guarantees of such Person for
liabilities arising from Nonrecourse Exceptions); or
(ii) such Subsidiary is a Wholly Owned Subsidiary.
Any such Accession Agreement and the other items required under such subsection
(b) must be delivered to the Agent no later than 45 days following the last day
of the Parent's fiscal quarter during which any of the above conditions first
applies to a Subsidiary. Notwithstanding the foregoing, if the assets of a
Subsidiary consist solely of (x) Equity Interests in another Subsidiary and (y)
cash and other assets of nominal value incidental to such Subsidiary's ownership
of the other Subsidiary, and such other Subsidiary is not required to become a
Guarantor under the terms of this Section, then such Subsidiary shall not be
required to become a Guarantor under the terms of this Section.
(b) Required Deliveries. Each Accession Agreement delivered by a New
Guarantor under the immediately preceding subsection (a) shall be accompanied by
(i) the items that would have been delivered under Sections 5.1.(a)(iv), and
(vii) through (xi) if such New Guarantor had been a Guarantor on the Agreement
Date; (ii) if such New Guarantor is not a Wholly Owned Subsidiary, a written
acknowledgement of all Persons (other than Loan Parties) holding Equity
Interests in such New Guarantor, pursuant to which such Persons acknowledge and
consent to the Guaranty made by such New Guarantor and (iii) such other
documents and instruments as the Agent may reasonably request.
(c) Release of Certain Guarantors. The Borrower may request in writing
that the Agent release a Guarantor, other than the Parent, if (i) such Guarantor
(A) upon its release as a Guarantor will become an Excluded Subsidiary or cease
to be a Subsidiary or (B) is no longer required to be a party to the Guaranty
under this Section, in any such case as a result of events or transactions not
otherwise prohibited under any of the Loan Documents and (ii) no Event of
Default shall then be in existence or would occur as a result of such release.
Together with any such request, the Borrower shall deliver to the Agent a
certificate signed by the chief financial officer of the Parent certifying that
the conditions set forth in immediately preceding clauses (i) and (ii) will be
true and correct upon the release of such Guarantor. No later than 10 Business
Days following the Agent's receipt of such written request and the related
certificate, and so long as the conditions set forth in immediately preceding
clauses (i) and (ii) will be true and correct, the release shall be effective
and Agent shall execute and deliver, at the sole cost and expense of the
Borrower, such documents as Borrower may reasonably request to evidence such
release.
(d) Limited Exception for Certain Subsidiaries. Notwithstanding the
requirements of the immediately preceding subsection (a):
(i) The Parent shall not be required to cause any Subsidiary
identified on Part II of Schedule 6.1.(x) as one of the "Dissolution
Subsidiaries" to execute and deliver an Accession Agreement to the
Guaranty so long as such Subsidiary owns no assets other than assets of
nominal value incidental to its existence as a legal entity; provided,
however, the Parent agrees that if (x) at any time such Subsidiary owns
assets in excess of those described above or (y) the Parent has not
filed documentation with the appropriate Governmental Authority to
commence the termination of the existence of such Subsidiary by April
15, 2004, then the Parent shall cause such Subsidiary to comply with
the provisions of this Section within 10 days of the date such
Subsidiary first owned such excess assets, in the case of clause (x),
or by April 26, 2004, in the case of clause (y);
(ii) The Parent shall not be required to cause PR Jacksonville
Limited Partnership or PR Washington Crown Limited Partnership to
execute and deliver an Accession Agreement to the Guaranty; provided,
however, the Parent agrees that if either such Subsidiary does not
become an Excluded Subsidiary within 90 days following the Agreement
Date, the Parent shall cause such Subsidiary to comply with the
provisions of this Section within 100 days following the Agreement
Date; and
(iii) Notwithstanding the immediately preceding clauses (i)
and (ii), if the provisions of Section 7.15.(a)(i) apply to any
Subsidiary referred to in any of such clauses (i) and (ii), the Parent
shall be required to cause such Subsidiary to execute and deliver an
Accession Agreement to the Guaranty and comply with the other
provisions of this Section within 10 days of the date the provisions of
Section 7.15.(a)(i) apply to such Subsidiary.
ARTICLE VIII. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 11.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 11.6., the Borrower and the
Parent, as applicable, shall comply with the following covenants:
Section 8.1. Financial Covenants.
(a) Minimum Tangible Net Worth. The Parent shall not permit its
Tangible Net Worth determined on a consolidated basis at the end of its fiscal
quarter ending on March 31, 2004 and at the end of each fiscal quarter
thereafter to be less than (i) 80% of the Tangible Net Worth of the Parent as of
December 31, 2003, plus (ii) 75% of the Net Proceeds of all Equity Issuances
effected at any time after December 31, 2003 by the Parent or any of its
Subsidiaries to any Person other than the Parent or any of its Subsidiaries (in
the case of any Equity Issuance effected by a Subsidiary, the amount of such Net
Proceeds shall be appropriately adjusted to account for minority interests
consistent with GAAP), minus (iii) the carrying value attributable to any
Preferred Stock of the Parent or any Subsidiary redeemed after December 31,
2003. Net Proceeds from the following Equity Issuances shall be excluded from
the immediately preceding clause (ii): (x) Equity Issuances made after December
31, 2003 and described on Schedule 8.1.(a) the Net Proceeds of which shall not
exceed an aggregate amount of $45,000,000, (y) Equity Issuances of Equity
Interest of the Parent made after December 31, 2003 solely in exchange for (A)
other Equity Interest of the Parent or (B) common operating units of the
Borrower and (z) Equity Issuances to employees and trustees of the Parent and
its Subsidiaries as part of a stock bonus plan, restricted stock plan or similar
plan but only to the extent neither the Parent nor any Subsidiary received cash
in connection with any such Equity Issuance.
(b) Ratio of Total Liabilities to Gross Asset Value. The Parent shall
not permit the ratio of (i) Total Liabilities of the Parent and its Subsidiaries
determined on a consolidated basis to (ii) Gross Asset Value of the Parent and
its Subsidiaries determined on a consolidated basis, to exceed 0.65 to 1 at any
time.
(c) Ratio of EBITDA to Interest Expense. The Parent shall not permit
the ratio of (i) EBITDA of the Parent and its Subsidiaries determined on a
consolidated basis for the period of four consecutive fiscal quarters most
recently ending to (ii) Interest Expense of the Parent and its Subsidiaries
determined on a consolidated basis for such period, to be less than 1.90 to 1
for any such period.
(d) Ratio of Adjusted EBITDA to Fixed Charges. The Parent shall not
permit the ratio of (i) Adjusted EBITDA of the Parent and its Subsidiaries
determined on a consolidated basis for the period of four consecutive fiscal
quarters most recently ending to (ii) Fixed Charges of the Parent and its
Subsidiaries determined on a consolidated basis for such period, to be less than
1.50 to 1 for any such period.
(e) Permitted Investments. The Parent and the Borrower shall not make
any Investment in or otherwise own, and shall not permit any Subsidiary to make
any Investment in or otherwise own, the following items which would cause the
aggregate value of such holdings of the Parent, the Borrower and its
Subsidiaries to exceed the following percentages of Gross Asset Value:
(i) unimproved real estate, such that the aggregate value of
all such unimproved real estate, calculated on the basis of cost,
exceeds 5.0% of Gross Asset Value;
(ii) Investments in Persons (other than Investments in
Subsidiaries and Unconsolidated Affiliates) such that the aggregate
value of such Investment calculated on the basis of cost, exceeds 10.0%
of Gross Asset Value;
(iii) Mortgages in favor of the Parent, the Borrower or any
other Subsidiary, such that the aggregate amount of Indebtedness
secured by such Mortgages exceeds 5.0% of Gross Asset Value (excluding
any Mortgage encumbering any Property owned by a Subsidiary the
accounts of which are required to be consolidated with those of the
Parent under GAAP); and
(iv) Investments in Subsidiaries that are not Wholly Owned
Subsidiaries and Investments in Unconsolidated Affiliates such that the
aggregate value of such Investments calculated on the basis of cost,
exceeds 10.0% of Gross Asset Value.
In addition to the foregoing limitations, (x) the aggregate value of the
Investments and other items subject to the limitations in the preceding clauses
(i) through (iii) shall not exceed 15.0% of Gross Asset Value and (y) the amount
of Gross Asset Value attributable to any one Property shall not exceed 15.0% of
Gross Asset Value at any time.
(f) Properties under Development or Redevelopment. The Parent and the
Borrower shall not permit the aggregate amount of Total Budgeted Cost Until
Stabilization with respect to all Development Properties and Major Redevelopment
Properties owned by the Parent, the Borrower, any Subsidiary or any
Unconsolidated Affiliate to exceed 10.0% of Gross Asset Value at any time. For
purposes of this subsection, the Total Budgeted Cost Until Stabilization with
respect to any Development Property or Major Redevelopment Property owned by an
Unconsolidated Affiliate of the Parent shall equal the greater of (i) the
product of (x) the Parent's Ownership Share in such Unconsolidated Affiliate and
(y) the Total Budgeted Cost Until Stabilization for such Property and (ii) the
Parent's Recourse Share of all Indebtedness of such Unconsolidated Affiliate.
For purposes of calculating Gross Asset Value as used in this subsection, the
Gross Asset Value of Development Properties and Major Redevelopment Properties
shall include, without duplication of any other amounts already included
elsewhere in such calculation, the Total Budgeted Cost Until Stabilization of
such Properties.
(g) Leasing Requirement for Properties under Development or
Redevelopment. The Parent and the Borrower shall not at any time permit the
aggregate amount of projected rentable square footage of all Development
Properties and Major Redevelopment Properties owned by the Parent, the Borrower,
any Subsidiary or any Unconsolidated Affiliate subject to binding leases to be
less than 50.0% of the aggregate amount of projected rentable square footage of
all such Development Properties and Major Redevelopment Properties.
(h) Floating Rate Indebtedness. The Parent and the Borrower will not,
and will not permit any of their respective Subsidiaries or Unconsolidated
Affiliates to, incur, assume or suffer to exist at any time Floating Rate
Indebtedness in an aggregate outstanding principal amount in excess of one-third
of all Indebtedness of the Parent, its Subsidiaries and its Unconsolidated
Affiliates determined on a consolidated basis.
(i) Secured Indebtedness. The Parent shall not permit the ratio of (i)
Secured Indebtedness of the Parent, its Subsidiaries and its Unconsolidated
Affiliates to (ii) Gross Asset Value, to exceed 0.60 to 1.00 at any time.
(j) Secured Recourse Indebtedness. The Parent shall not permit the
ratio of (i) Secured Indebtedness of the Borrower or the Guarantors which is not
Nonrecourse Indebtedness to (ii) Gross Asset Value, to exceed 0.25 to 1.00 at
any time.
(k) Ratio of EBITDA to Indebtedness. The Parent shall not permit the
ratio of (i) EBITDA of the Parent and its Subsidiaries determined on a
consolidated basis for the period of four consecutive fiscal quarters most
recently ending to (ii) all Indebtedness of the Parent, its Subsidiaries and
Unconsolidated Affiliates determined on a consolidated basis at the end of such
period, to be less than 0.130 to 1 for any such period. For purposes of
determining this ratio, if at any time Indebtedness with respect to a Property
which has been acquired during the past four quarters is required to be included
in the ratio, the amount of EBITDA attributable to such Property and to be
included in the ratio shall be determined as follows: (x) if the Property was
acquired more than 30 days prior to the date of determination of the ratio, the
EBITDA for the Property since the date such Property was acquired by the Parent,
the Borrower, any other Subsidiary or an Unconsolidated Affiliate, as the case
may be, shall be appropriately annualized and (y) otherwise, the amount of
EBITDA for such Property shall be the actual EBITDA attributable to the Property
during the last four consecutive fiscal quarters most recently ended. Any
certification by the Parent or the Borrower of EBITDA included under the
immediately preceding clause (y), shall be limited to their knowledge.
For purposes of determining compliance with immediately preceding subsections
(h), (i) and (k), the Indebtedness of the Parent shall include the greater of
the Parent's Recourse Share or Ownership Share of the Indebtedness of the
Parent's Unconsolidated Affiliates.
Section 8.2. Restricted Payments.
The Parent and the Borrower will not declare or make, or permit any
other Subsidiary to declare or make, any Restricted Payment; provided, however,
that:
(a) the Parent may acquire limited partnership interests in the
Borrower in exchange for cash or common stock of the Parent;
(b) the Parent may declare or make cash distributions to its
shareholders during any period of four consecutive fiscal quarters in an
aggregate amount not to exceed the greater of (i) 95.0% of Funds From Operations
of the Parent for such period or (ii) the amount for the Parent to remain in
compliance with Section 7.13.;
(c) the Parent may make cash distributions to its shareholders to the
extent necessary to avoid any liability for taxes imposed under Sections
857(b)(1), 857(b)(3) and 4981 of the Internal Revenue Code;
(d) the Parent may make cash payments to repurchase outstanding Equity
Interests of the Parent;
(e) the Parent may cause the Borrower (directly or indirectly through
any intermediate Subsidiaries) to make distributions to the Parent and to the
limited partners of the Borrower, and the Parent may cause other Subsidiaries of
the Parent to make distributions to the Parent and to other holders of Equity
Interests in such Subsidiaries, in each case, so long as immediately after
giving effect to any such distribution no Default or Event of Default would
exist; and
(f) subject to the following sentence, if a Default or Event of Default
shall have occurred and be continuing, the Parent may only declare or make cash
distributions to its shareholders during any fiscal year in an aggregate amount
not to exceed the minimum amount necessary for the Parent to remain in
compliance with Section 7.13., and in connection therewith, the Parent may cause
its Subsidiaries (directly or indirectly through any intermediate Subsidiaries)
to make distributions to the Parent, to its other Subsidiaries and, solely to
the extent required to do pursuant to the organization documents of a
Subsidiary, other holders of Equity Interests in such Subsidiary.
Notwithstanding the foregoing, if a Default or Event of Default specified in
Section 9.1.(a), Section 9.1.(e) or Section 9.1.(f) shall have occurred and be
continuing, or if as a result of the occurrence of any other Event of Default
the Obligations have been accelerated pursuant to Section 9.2.(a), the Parent
and the Borrower shall not, and shall not permit any other Subsidiary to, make
any Restricted Payments to any Person whatsoever other than to the Borrower or
any Subsidiary.
Section 8.3. Liens; Negative Pledges.
(a) The Parent and the Borrower shall not, and shall not permit any
Subsidiary or other Loan Party to, create, assume, or incur any Lien (other than
Permitted Liens) upon any of its properties, assets, income or profits of any
character whether now owned or hereafter acquired if immediately prior to the
creation, assumption or incurring of such Lien, or immediately thereafter, a
Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of any of
the covenants contained in Section 8.1.
(b) The Parent and the Borrower shall not, and shall not permit any
Subsidiary or other Loan Party to, enter into, assume or otherwise be bound by
any Negative Pledge of assets owned by such Person except for a Negative Pledge
contained in any agreement (i) evidencing Debt and secured by a Lien, in each
case, which the Parent, the Borrower or such Subsidiary may create, incur,
assume, or permit or suffer to exist without causing a Default or Event of
Default to exist and (ii) which prohibits the creation of any other Lien on only
the property securing such Debt as of the date such agreement was entered into.
Section 8.4. Restrictions on Intercompany Transfers.
The Borrower shall not create or otherwise cause or suffer to exist or
become effective, or permit any Subsidiary (other than an Excluded Subsidiary)
to create or otherwise cause or suffer to exist or become effective, any
consensual encumbrance or restriction of any kind on the ability of such
Subsidiary to: (i) pay dividends or make any other distribution on any of such
Subsidiary's capital stock or other equity interests owned by the Borrower or
such Subsidiary of the Borrower; (ii) pay any Indebtedness owed to the Borrower
or any Subsidiary; (iii) make loans or advances to the Borrower or any
Subsidiary; or (iv) transfer any of its property or assets to the Borrower or
any Subsidiary; provided, however that the Borrower or any such Subsidiary may
have provision for preferred, priority or guaranteed payments to a joint venture
partner of such Subsidiary.
Section 8.5. Mergers, Acquisitions and Sales of Assets.
The Parent and the Borrower shall not, and shall not permit any other
Loan Party or any other Subsidiary of the Parent or the Borrower to: (a) engage
in any transaction of merger or consolidation; (b) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell,
lease, sublease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any substantial part of its business or assets,
or the capital stock of or other Equity Interests in any of its Subsidiaries,
whether now owned or hereafter acquired or (d) acquire a Substantial Amount of
the assets of, or make an Investment of a Substantial Amount in, any other
Person; unless, (i) immediately prior thereto, and immediately thereafter and
after giving effect thereto, no Default or Event of Default is or would be in
existence; (ii) in the case of a consolidation or merger involving the Parent or
the Borrower, the Parent or the Borrower, as the case may be, shall be the
survivor thereof and, (iii) in the case of the acquisition, Investment or sale
of a Substantial Amount of assets, the Parent shall have given the Agent and the
Lenders at least 30 days prior written notice of such, acquisition, Investment
or sale, such notice to be accompanied by a Compliance Certificate, calculated
on a pro forma basis, evidencing the continued compliance by the Borrower and
the Parent with the terms and conditions of this Agreement and the other Loan
Documents, including without limitation, the financial covenants contained in
Section 8.1., after giving effect to such acquisition, Investment or sale.
Section 8.6. Fiscal Year.
The Parent shall not change its fiscal year from that in effect as of
the Agreement Date.
Section 8.7. Modifications of Organizational Documents and Material Contracts.
The Parent shall not amend, supplement, restate or otherwise modify the
Trust Agreement, and the Borrower shall not amend, supplement, restate or
otherwise modify the Partnership Agreement, in each case in any respect, without
the prior written consent of the Agent and the Requisite Lenders unless such
amendment, supplement, restatement or other modification could not reasonably be
expected to have in a Material Adverse Effect. The Borrower and the Parent shall
not enter into, and shall not permit any Subsidiary or other Loan Party to enter
into, any amendment or modification to any Material Contract that could
reasonably be expected to have a Material Adverse Effect.
Section 8.8. Transactions with Affiliates.
The Borrower and the Parent shall not permit to exist or enter into,
and will not permit any of its Subsidiaries to permit to exist or enter into,
any transaction (including the purchase, sale, lease or exchange of any property
or the rendering of any service) with any Affiliate, except (a) transactions in
the ordinary course of and pursuant to the reasonable requirements of the
business of the Borrower, the Parent or any Subsidiary and upon fair and
reasonable terms which are no less favorable to the Borrower, the Parent or such
Subsidiary than would be obtained in a comparable arm's length transaction with
a Person that is not an Affiliate, (b) transactions between or among the Parent,
the Borrower and it Subsidiaries and (c) the transactions described on Schedule
8.1.(a).
Section 8.9. ERISA Exemptions.
The Borrower and the Parent shall not permit, and shall not permit any
other Loan Party or any other Subsidiary to permit, any of its respective assets
to become or be deemed to be "plan assets" within the meaning of ERISA, the
Internal Revenue Code and the respective regulations promulgated thereunder.
ARTICLE IX. DEFAULT
Section 9.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment. The Borrower shall fail to pay when due under
this Agreement or any other Loan Document (whether upon demand, at maturity, by
reason of acceleration or otherwise) the principal of, or any interest on, any
of the Loans, or shall fail to pay any of the other payment Obligations owing by
the Borrower under this Agreement or any other Loan Document, or any other Loan
Party shall fail to pay when due any payment obligation owing by such Loan Party
under any Loan Document to which it is a party and any such failure shall
continue for a period of five (5) calendar days thereafter.
(b) Default in Performance.
(i) The Borrower or the Parent shall fail to perform or
observe any term, covenant, condition or agreement on its part to be
performed or observed and contained in Sections 7.1.(o) or Article
VIII.; or
(ii) The Borrower, the Parent or any other Loan Party shall
fail to perform or observe any term, covenant, condition or agreement
contained in this Agreement or any other Loan Document to which it is a
party and not otherwise mentioned in this Section and such failure
shall continue for a period of 30 days after the earlier of (x) the
date upon which the Borrower obtains knowledge of such failure or (y)
the date upon which the Parent or the Borrower has received written
notice of such failure from the Agent; provided, however, that if any
such failure referred to in this clause (ii) is reasonably capable of
being cured but not within such 30-day period and the Borrower has in
good faith commenced to cure such failure prior to the expiration of
such 30-day period and continues to diligently prosecute such cure, no
Event of Default shall be deemed to have occurred unless such failure
has not been cured within 30 calendar days after the last day of such
initial 30-day period;
(c) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of the Borrower, the Parent or any
other Loan Party under this Agreement or under any other Loan Document, or any
amendment hereto or thereto, or in any other writing or statement (other than
forward looking statements) at any time furnished by, or at the direction of,
the Borrower, the Parent or any other Loan Party to the Agent, any Lender or the
Swingline Lender, shall at any time prove to have been incorrect or misleading
in any material respect when furnished or made.
(d) Indebtedness Cross-Default.
(i) The Parent, the Borrower, any other Loan Party, any other
Subsidiary shall fail to pay when due and payable the principal of, or
interest on, any Indebtedness (other than the Loans) having an
aggregate outstanding principal amount of $10,000,000 or more (or
$80,000,000 or more in the case of Nonrecourse Indebtedness), and in
any such case such failure shall continue beyond any applicable notice
and cure periods; or
(ii) The maturity of any such Indebtedness shall have (x) been
accelerated in accordance with the provisions of any indenture,
contract or instrument evidencing, providing for the creation of or
otherwise concerning such Indebtedness or (y) been required to be
prepaid or repurchased prior to the stated maturity thereof.
(e) Voluntary Bankruptcy Proceeding. The Borrower, the Parent or any
Material Subsidiary shall: (i) commence a voluntary case under the Bankruptcy
Code of 1978, as amended or other federal bankruptcy laws (as now or hereafter
in effect); (ii) file a petition seeking to take advantage of any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; (iii) consent
to, or fail to contest in a timely and appropriate manner, any petition filed
against it in an involuntary case under such bankruptcy laws or other Applicable
Laws or consent to any proceeding or action described in the immediately
following subsection; (iv) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking of possession
by, a receiver, custodian, trustee, or liquidator of itself or of a substantial
part of its property, domestic or foreign; (v) admit in writing its inability to
pay its debts as they become due; (vi) make a general assignment for the benefit
of creditors; (vii) make a conveyance fraudulent as to creditors under any
Applicable Law; or (viii) take any corporate or partnership action for the
purpose of effecting any of the foregoing.
(f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower, the Parent or any Material Subsidiary in any
court of competent jurisdiction seeking: (i) relief under the Bankruptcy Code of
1978, as amended or other federal bankruptcy laws (as now or hereafter in
effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator
or the like of such Person, or of all or any substantial part of the assets,
domestic or foreign, of such Person, and in the case of either clause (i) or
(ii) such case or proceeding shall continue undismissed or unstayed for a period
of 60 consecutive days, or an order granting the relief requested in such case
or proceeding (including, but not limited to, an order for relief under such
Bankruptcy Code or such other federal bankruptcy laws) shall be entered.
(g) Revocation of Loan Documents. The Borrower, the Parent or any other
Loan Party shall disavow, revoke or terminate in writing any Loan Document to
which it is a party or shall otherwise challenge or contest in any action, suit
or proceeding in any court or before any Governmental Authority the validity or
enforceability of any Loan Document.
(h) Judgment. A judgment or order for the payment of money shall be
entered against the Borrower, the Parent or any other Loan Party, by any court
or other tribunal and (i) such judgment or order shall continue for a period of
30 days without being paid, bonded over, stayed or dismissed through appropriate
appellate proceedings (provided however, that if a bond has been issued in favor
of the claimant or other Person obtaining such judgment or order, the issuer of
such bond shall have executed an agreement in form and substance satisfactory to
the Agent pursuant to which the issuer of such bond waives any Lien it may have
on the assets of any Loan Party), and (ii) either (A) the amount for which the
insurer has denied liability exceeds, individually or together with all other
such judgments or orders entered against the Borrower, the Parent and the other
Loan Parties, $10,000,000 (or $80,000,000 or more if the judgment or order for
the payment of money directly relates to Nonrecourse Indebtedness and is itself
nonrecourse) in amount or (B) could reasonably be expected to have a Material
Adverse Effect.
(i) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Borrower, the Parent or any
other Loan Party, which exceeds, individually or together with all other such
warrants, writs, executions and processes, $10,000,000 (or $80,000,000 or more
if the warrant, writ of attachment, execution or similar process directly
relates to Nonrecourse Indebtedness and is itself nonrecourse) in amount and
such warrant, writ, execution or process shall not be paid, discharged, vacated,
stayed or bonded for a period of 30 days; provided however, that if a bond has
been issued in favor of the claimant or other Person obtaining such warrant,
writ of attachment, execution or process, the issuer of such bond shall have
executed an agreement in form and substance satisfactory to the Agent pursuant
to which the issuer of such bond waives any Lien it may have on the assets of
any Loan Party.
(j) ERISA.
(i) Any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $1,000,000 which it shall
have become liable to pay under Title IV of ERISA and such failure
shall continue for a period of 30 days; or
(ii) Notice of intent to terminate a Material Plan shall be
filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing, the liability
resulting therefrom shall exceed $1,000,000 and either (A) such notice
shall not have been revoked or rescinded after 30 days from the filing
thereof or (B) such Material Plan shall be terminated; or
(iii) The PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer any Material Plan, the liability resulting
therefrom shall exceed $1,000,000 and either (A) such proceedings shall
not have been dismissed or terminated after 30 days from the filing
thereof or (B) such Material Plan shall be terminated or such liability
shall be imposed; or
(iv) A condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Material Plan must
be terminated, the liability resulting therefrom shall exceed
$1,000,000 and such condition shall exist for a period of 30 days; or
(v) There shall occur a complete or partial withdrawal from,
or a default, within the meaning of Section 4219(c)(5) of ERISA, with
respect to, one or more Multiemployer Plans which could cause one or
more members of the ERISA Group to incur an obligation to pay on a
current annual basis during the term of this Agreement an amount in
excess of $1,000,000.
(k) Loan Documents. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents;
(l) Change of Control/Change in Management.
(i) (A) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person will be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 20% of the total voting
power of the then outstanding voting shares of the Parent other than
such Persons who are, as of the Agreement Date, current officers or
trustees of the Parent, including officers and trustees elected
pursuant to the Crown Merger Agreement, or Affiliates of current
officers or trustees of the Parent or (B) during any period of 12
consecutive months ending after the Agreement Date, individuals who at
the beginning of any such 12-month period constituted the Board of
Trustees of the Parent (together with any new trustees whose election
by such Board or whose nomination for election by the shareholders of
the Parent was approved by a vote of a majority of the trustees then
still in office who were either trustees at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Trustees of the Parent then in office;
(ii) If three or more of the following four individuals shall
cease for any reason (other than death, disability or resignation) to
be principally involved in the senior management of the Parent: ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (each a
"Principal Officer");
(iii) If three or more of the Principal Officers shall die,
become disabled or resign and the Parent shall have failed to replace
the resulting vacancies in senior management with individuals
reasonably acceptable to the Agent and the Requisite Lenders and such
failure shall continue for a period in excess of 120 days; or
(iv) The Parent or a Wholly Owned Subsidiary of the Parent
that is a Guarantor shall cease (A) to be the sole general partner of
the Borrower or (B) to own and control, directly or indirectly, at
least 70.0% of all partnership interests of the Borrower.
(m) Strike; Casualty. Any strike, lockout, labor dispute, embargo,
condemnation, act of God or public enemy, or other casualty which causes, for
more than 30 consecutive days beyond the coverage period of any applicable
business interruption insurance, the cessation or substantial curtailment of
revenue producing activities of the Borrower or its Subsidiaries taken as a
whole and only if any such event or circumstance could reasonably be expected to
have a Material Adverse Effect.
Section 9.2. Remedies Upon Event of Default.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default
specified in Sections 9.1.(e) or 9.1.(f), (A)(1) the principal of, and
all accrued interest on, the Loans and the Notes at the time
outstanding (2) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of the Event of
Default and (3) all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders,
the Swingline Lender and the Agent under this Agreement, the Notes or
any of the other Loan Documents, shall become immediately and
automatically due and payable without presentment, demand, protest, or
other notice of any kind, all of which are expressly waived by the
Borrower and (B) the Commitments and the obligation of the Lenders to
make Revolving Loans hereunder, the Swingline Commitment and the
obligation of the Swingline Lender to make Swingline Loans hereunder,
and the obligation of the Agent to issue Letters of Credit hereunder
shall immediately and automatically terminate.
(ii) Optional. If any other Event of Default shall have
occurred and be continuing, the Agent may, and at the direction of the
Requisite Lenders shall: (A) declare (1) the principal of, and accrued
interest on, the Loans (excluding Swingline Loans) and the Notes
(excluding Swingline Notes) at the time outstanding, (2) an amount
equal to the Stated Amount of all Letters of Credit outstanding as of
the date of the occurrence of the Event of Default and (3) all of the
other Obligations, including, but not limited to, the other amounts
owed to the Lenders and the Agent under this Agreement, such Notes or
any of the other Loan Documents to be forthwith due and payable,
whereupon the same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which
are expressly waived by the Borrower and (B) terminate the Commitments
and the obligation of the Lenders to make Revolving Loans hereunder and
the obligation of the Agent to issue Letters of Credit hereunder. If
the Agent has exercised any of the rights provided under the preceding
sentence, the Swingline Lender shall: (I) declare the principal of, and
accrued interest on, the Swingline Loans and the Swingline Notes at the
time outstanding, and all of the other Obligations owing to the
Swingline Lender, to be forthwith due and payable, whereupon the same
shall immediately become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived
by the Borrower and (II) terminate the Swingline Commitment and the
obligation of the Swingline Lender to make Swingline Loans.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise any and all of its rights and remedies
under or in respect of any and all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and
the Agent if so directed shall, exercise all other rights and remedies it may
have under any Applicable Law.
Section 9.3. Termination of Commitments Upon Certain Defaults.
Upon the occurrence of a Default specified in Sections 9.1.(e) or
9.1.(f), the Commitments shall immediately and automatically terminate.
Section 9.4. Marshaling; Payments Set Aside.
Neither the Agent nor any Lender shall be under any obligation to
marshal any assets in favor of any Loan Party or any other party or against or
in payment of any or all of the Obligations. To the extent that any Loan Party
makes a payment or payments to the Agent and/or any Lender, or the Agent and/or
any Lender enforce their security interests or exercise their rights of setoff,
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such recovery, the Obligations or part
thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor, shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
Section 9.5. Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and
maturity of any of the Obligations has been accelerated, all payments received
by the Agent under any of the Loan Documents, in respect of any principal of or
interest on the Obligations or any other amounts payable by the Borrower or any
other Loan Party hereunder or thereunder, shall be applied in the following
order and priority:
(a) amounts due to the Agent and the Lenders in respect of
Fees and other fees and expenses due under Section 11.2.;
(b) payments of interest on the Loans, to be applied for the
ratable benefit of the Lenders, in such order as the Lenders may
determine in their sole discretion;
(c) payments of principal of the Loans, to be applied for the
ratable benefit of the Lenders, in such order as the Lenders may
determine in their sole discretion;
(d) amounts due to the Agent and the Lenders pursuant to
Sections 10.7. and 11.9.;
(e) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders; and
(f) any amount remaining after application as provided above,
shall be paid to the Borrower or whomever else may be legally entitled
thereto.
Section 9.6. Letter of Credit Collateral Account.
(a) As collateral security for the prompt payment in full when due of
all Letter of Credit Liabilities, the Borrower hereby pledges and grants to the
Agent, for the benefit of the Agent and the Lenders as provided herein, a
security interest in all of its right, title and interest in and to the Letter
of Credit Collateral Account and the balances from time to time in the Letter of
Credit Collateral Account (including the investments and reinvestments therein
provided for below). The balances from time to time in the Letter of Credit
Collateral Account shall not constitute payment of any Letter of Credit
Liabilities until applied by the Agent as provided herein. Anything in this
Agreement to the contrary notwithstanding, funds held in the Letter of Credit
Collateral Account shall be subject to withdrawal only as provided in this
Section and in Section 2.12.
(b) So long as no Event of Default shall exist, amounts on deposit in
the Letter of Credit Collateral Account shall be invested and reinvested by the
Agent in such Cash Equivalents as determined by the Borrower with the approval
of the Agent. If an Event of Default shall exist, amounts on deposit in the
Letter of Credit Collateral Account shall be invested and reinvested by the
Agent in such Cash Equivalents as the Agent shall determine in its sole
discretion. All such investments and reinvestments shall be held in the name of
and be under the sole dominion and control of the Agent, provided, that all
earnings on such investments will be credited to and retained in the Letter of
Credit Collateral Account. The Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Letter of Credit Collateral
Account and shall be deemed to have exercised such care if such funds are
accorded treatment substantially equivalent to that which the Agent accords
other funds deposited with the Agent, it being understood that the Agent shall
not have any responsibility for taking any necessary steps to preserve rights
against any parties with respect to any funds held in the Letter of Credit
Collateral Account.
(c) If an Event of Default shall have occurred and be continuing, the
Agent may (and, if instructed by the Requisite Lenders, shall) in its (or their)
discretion at any time and from time to time elect to liquidate any such
investments and reinvestments and credit the proceeds thereof to the Letter of
Credit Collateral Account and apply or cause to be applied such proceeds and any
other balances in the Letter of Credit Collateral Account to the payment of any
of the Letter of Credit Liabilities due and payable.
(d) If no Default or Event of Default has occurred and is continuing,
the Agent shall, from time to time, at the request of the Borrower, deliver to
the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, such of the balances in the Letter of Credit
Collateral Account as exceed the aggregate amount of Letter of Credit
Liabilities at such time. When all of the Obligations shall have been
indefeasibly paid in full and no Letters of Credit remain outstanding, the Agent
shall deliver to the Borrower, against receipt but without any recourse,
warranty or representation whatsoever, the balances remaining in the Letter of
Credit Collateral Account.
(e) The Borrower shall pay to the Agent from time to time such fees as
the Agent normally charges for similar services in connection with the Agent's
administration of the Letter of Credit Collateral Account and investments and
reinvestments of funds therein.
Section 9.7. Performance by Agent.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Loan Document.
Section 9.8. Rescission of Acceleration by Requisite Lenders.
If at any time after acceleration of the maturity of the Loans and the
other Obligations, the Borrower shall pay all arrears of interest and all
payments on account of principal of the Obligations which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by Applicable Law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Defaults (other than nonpayment of
principal of and accrued interest on the Obligations due and payable solely by
virtue of acceleration) shall become remedied or waived to the satisfaction of
the Requisite Lenders, then by written notice to the Borrower, the Requisite
Lenders may elect, in the sole discretion of such Requisite Lenders, to rescind
and annul the acceleration and its consequences. The provisions of the preceding
sentence are intended merely to bind all of the Lenders to a decision which may
be made at the election of the Requisite Lenders, and are not intended to
benefit the Borrower and do not give the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are satisfied.
Section 9.9. Rights Cumulative.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies, the Agent
and the Lenders may be selective and no failure or delay by the Agent or any of
the Lenders in exercising any right shall operate as a waiver of it, nor shall
any single or partial exercise of any power or right preclude its other or
further exercise or the exercise of any other power or right.
ARTICLE X. THE AGENT
Section 10.1. Appointment and Authorization.
Each Lender hereby irrevocably appoints and authorizes the Agent to
take such action as contractual representative on such Lender's behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Not in limitation of the
foregoing, each Lender authorizes and directs the Agent to enter into the Loan
Documents for the benefit of the Lenders. Each Lender hereby agrees that, except
as otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender or to impose
on the Agent duties or obligations other than those expressly provided for
herein. Without limiting the generality of the foregoing, the use of the terms
"Agent", "Agent", "agent" and similar terms in the Loan Documents with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any Applicable Law.
Instead, use of such terms is merely a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties. The Agent will also furnish to any Lender, upon the request
of such Lender, a copy (or, where appropriate, an original) of any document,
instrument, agreement, certificate or notice furnished to the Agent by the
Borrower, the Parent, any Loan Party or any other Affiliate of the Borrower,
pursuant to this Agreement or any other Loan Document not already delivered to
such Lender pursuant to the terms of this Agreement or any such other Loan
Document. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of any of the
Obligations), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders (or all of the Lenders if explicitly required under any
other provision of this Agreement), and such instructions shall be binding upon
all Lenders and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or Applicable
Law. Not in limitation of the foregoing, the Agent shall exercise any right or
remedy it or the Lenders may have under any Loan Document upon the occurrence of
a Default or an Event of Default unless the Requisite Lenders have directed the
Agent otherwise. Without limiting the foregoing, no Lender shall have any right
of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of the Requisite Lenders, or where
applicable, all the Lenders.
Section 10.2. Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other
Loan Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or not taken by it
under or in connection with this Agreement or any other Loan Document, except
for its or their own gross negligence or willful misconduct in connection with
its duties expressly set forth herein or therein. Without limiting the
generality of the foregoing, the Agent: may consult with legal counsel
(including its own counsel or counsel for the Borrower or any other Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts. Neither the
Agent nor any of its directors, officers, agents, employees or counsel: (a)
makes any warranty or representation to any Lender or any other Person and shall
be responsible to any Lender or any other Person for any statement, warranty or
representation made or deemed made by the Borrower, the Parent, any other Loan
Party or any other Person in or in connection with this Agreement or any other
Loan Document; (b) shall have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or any other Loan Document or the satisfaction of any conditions
precedent under this Agreement or any Loan Document on the part of the Borrower,
the Parent or other Persons or inspect the property, books or records of the
Borrower, the Parent or any other Person; (c) shall be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other Loan Document, any other
instrument or document furnished pursuant thereto or any collateral covered
thereby or the perfection or priority of any Lien in favor of the Agent on
behalf of the Lenders in any such collateral; (d) shall have any liability in
respect of any recitals, statements, certifications, representations or
warranties contained in any of the Loan Documents or any other document,
instrument, agreement, certificate or statement delivered in connection
therewith; and (e) shall incur any liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telephone, telecopy
or electronic mail) believed by it to be genuine and signed, sent or given by
the proper party or parties. The Agent may execute any of its duties under the
Loan Documents by or through agents, employees or attorneys-in-fact and shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
Section 10.3. Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default". If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default". Further, if the
Agent receives such a "notice of default," the Agent shall give prompt notice
thereof to the Lenders.
Section 10.4. ▇▇▇▇▇ Fargo as Lender.
▇▇▇▇▇ Fargo, as a Lender, shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include ▇▇▇▇▇ Fargo in each case in
its individual capacity. ▇▇▇▇▇ Fargo and its affiliates may each accept deposits
from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with the Borrower, the Parent any other Loan Party or
any other affiliate thereof as if it were any other bank and without any duty to
account therefor to the other Lenders. Further, the Agent and any affiliate may
accept fees and other consideration from the Borrower for services in connection
with this Agreement and otherwise without having to account for the same to the
other Lenders. The Lenders acknowledge that, pursuant to such activities, ▇▇▇▇▇
Fargo or its affiliates may receive information regarding the Borrower, the
Parent, other Loan Parties, other Subsidiaries and other Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Person) and acknowledge that the Agent shall be under no obligation to provide
such information to them.
Section 10.5. Approvals of Lenders.
All communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given in
the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
the Agent by the Borrower in respect of the matter or issue to be resolved, and
(d) shall include the Agent's recommended course of action or determination in
respect thereof. Unless a Lender shall give written notice to the Agent that it
specifically objects to the recommendation or determination of the Agent
(together with a reasonable written explanation of the reasons behind such
objection) within 10 Business Days (or such lesser or greater period as may be
specifically required under the express terms of the Loan Documents) of receipt
of such communication, such Lender shall be deemed to have conclusively approved
of or consented to such recommendation or determination.
Section 10.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the Agent
nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other affiliates has made any representations or warranties
to such Lender and that no act by the Agent hereafter taken, including any
review of the affairs of the Borrower, the Parent, any other Loan Party or any
other Subsidiary or Affiliate, shall be deemed to constitute any such
representation or warranty by the Agent to any Lender. Each Lender acknowledges
that it has, independently and without reliance upon the Agent, any other Lender
or counsel to the Agent, or any of their respective officers, directors,
employees, agents or counsel, and based on the financial statements of the
Parent, the Borrower, the other Loan Parties, the other Subsidiaries and other
Affiliates, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Parent, the Borrower, the other Loan Parties, the
other Subsidiaries and other Persons, its review of the Loan Documents, the
legal opinions required to be delivered to it hereunder, the advice of its own
counsel and such other documents and information as it has deemed appropriate,
made its own credit and legal analysis and decision to enter into this Agreement
and the transactions contemplated hereby. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent, any other Lender or
counsel to the Agent or any of their respective officers, directors, employees
and agents, and based on such review, advice, documents and information as it
shall deem appropriate at the time, continue to make its own decisions in taking
or not taking action under the Loan Documents. The Agent shall not be required
to keep itself informed as to the performance or observance by the Parent, the
Borrower or any other Loan Party of the Loan Documents or any other document
referred to or provided for therein or to inspect the properties or books of, or
make any other investigation of, the Parent, the Borrower, any other Loan Party
or any other Subsidiary. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent under
this Agreement or any of the other Loan Documents, the Agent shall have no duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Parent, the Borrower, any other Loan Party or any other
Affiliate thereof which may come into possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or other Affiliates.
Each Lender acknowledges that the Agent's legal counsel in connection with the
transactions contemplated by this Agreement is only acting as counsel to the
Agent and is not acting as counsel to such Lender.
Section 10.7. Indemnification of Agent.
Regardless of whether the transactions contemplated by this Agreement
and the other Loan Documents are consummated, each Lender agrees to indemnify
the Agent (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) pro rata in accordance with such Lender's
respective Pro Rata Share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time
be imposed on, incurred by, or asserted against the Agent (in its capacity as
Agent but not as a "Lender") in any way relating to or arising out of the Loan
Documents, any transaction contemplated hereby or thereby or any action taken or
omitted by the Agent under the Loan Documents (collectively, "Indemnifiable
Amounts"); provided, however, that no Lender shall be liable for any portion of
such Indemnifiable Amounts to the extent resulting from the Agent's gross
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment; provided, however, that no
action taken in accordance with the directions of the Requisite Lenders (or all
of the Lenders if expressly required hereunder) shall be deemed to constitute
gross negligence or willful misconduct for purposes of this Section. Without
limiting the generality of the foregoing, each Lender agrees to reimburse the
Agent (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so) promptly upon demand for its ratable share
of any out-of-pocket expenses (including the reasonable fees and expenses of the
counsel to the Agent) incurred by the Agent in connection with the preparation,
negotiation, execution, administration, or enforcement (whether through
negotiations, legal proceedings, or otherwise) of, or legal advice with respect
to the rights or responsibilities of the parties under, the Loan Documents, any
suit or action brought by the Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any "lender liability" suit or claim brought
against the Agent and/or the Lenders, and any claim or suit brought against the
Agent and/or the Lenders arising under any Environmental Laws. Such
out-of-pocket expenses (including counsel fees) shall be advanced by the Lenders
on the request of the Agent notwithstanding any claim or assertion that the
Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by the Agent that the Agent will reimburse the Lenders if it is
actually and finally determined by a court of competent jurisdiction that the
Agent is not so entitled to indemnification. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder
or under the other Loan Documents and the termination of this Agreement. If the
Borrower shall reimburse the Agent for any Indemnifiable Amount following
payment by any Lender to the Agent in respect of such Indemnifiable Amount
pursuant to this Section, the Agent shall share such reimbursement on a ratable
basis with each Lender making any such payment.
Section 10.8. Successor Agent.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Requisite Lenders shall have the right to appoint a successor
Agent which appointment shall, provided no Default or Event of Default exists,
be subject to the Borrower's approval, which approval shall not be unreasonably
withheld or delayed. If no successor Agent shall have been so appointed in
accordance with the immediately preceding sentence, and shall have accepted such
appointment, within 30 days after the current Agent's giving of notice of
resignation, then the current Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a Lender, if any Lender shall be willing to
serve, and otherwise shall be an Eligible Assignee. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the current Agent, and the current Agent shall be discharged from
its duties and obligations under the Loan Documents. After any Agent's
resignation hereunder as Agent, the provisions of this Article X. shall continue
to inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under the Loan Documents. Notwithstanding anything contained
herein to the contrary, the Agent may assign its rights and duties under the
Loan Documents to any of its affiliates which is an Eligible Assignee by giving
the Borrower and each Lender prior written notice.
Section 10.9. Titled Agents.
Each of the Sole Lead Arranger, Syndication Agents, Documentation
Agents and Managing Agents (each a "Titled Agent") in each such respective
capacity, assumes no responsibility or obligation hereunder, including, without
limitation, for servicing, enforcement or collection of any of the Loans, nor
any duties as an agent hereunder for the Lenders. The titles given to the Titled
Agents are solely honorific and imply no fiduciary responsibility on the part of
the Titled Agents to the Agent, any Lender, the Borrower or any other Loan Party
and the use of such titles does not impose on the Titled Agents any duties or
obligations greater than those of any other Lender or entitle the Titled Agents
to any rights other than those to which any other Lender is entitled.
ARTICLE XI. MISCELLANEOUS
Section 11.1. Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
PREIT Associates, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy of notices of Defaults, Events of Default or notices
pursuant to Article IX. to:
PREIT Associates, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
One ▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent or a Lender:
To the address or telecopy number, as applicable, of the Agent
or such Lender, as the case may be, set forth on its signature
page hereto or, in the case of a Lender, in the applicable
Assignment and Acceptance Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, upon mechanical confirmation of
transmission if received on a Business Day prior to 5:00 p.m. local time at the
point of destination and, if otherwise, on the next succeeding Business Day; or
(iii) if hand delivered, when delivered. Notwithstanding the immediately
preceding sentence, all notices or communications to the Agent, any Lender or
the Swingline Lender under Article II. shall be effective only when actually
received. Any notice to the Borrower received by any individual designated by
the Borrower to receive such notice shall be effective notwithstanding the fact
that any other individual designated by the Borrower to receive a copy of such
notice did not receive such copy. The Agent, each Lender and the Swingline
Lender shall not incur any liability to the Borrower (nor shall the Agent or the
Swingline Lender incur any liability to the Lenders) for acting upon any
telephonic notice referred to in this Agreement which the Agent, such Lender or
the Swingline Lender, as the case may be, believes in good faith to have been
given by a Person authorized to deliver such notice or for otherwise acting in
good faith hereunder. In addition to the Agent's Lending Office, the Borrower
shall send copies of the notices described in Article II. to the following
address of the Agent:
▇▇▇▇▇ Fargo Bank, National Association
Disbursement and Operations Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Disbursement Administrator, Puree Rhein
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number:(▇▇▇) ▇▇▇-▇▇▇▇
Section 11.2. Expenses.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents, and the consummation of the
transactions contemplated thereby, including the reasonable fees and
disbursements of counsel to the Agent, (b) to pay or reimburse the Agent and,
after the occurrence and during the continuance of an Event of Default, the
Lenders, for all their costs and expenses incurred in connection with the
enforcement or preservation of any rights under the Loan Documents, including
the reasonable fees and disbursements of their respective counsel (including the
allocated fees and expenses of in-house counsel) and any payments in
indemnification or otherwise payable by the Lenders to the Agent pursuant to the
Loan Documents, (c) to pay, indemnify and hold the Agent and the Lenders
harmless from any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any failure to pay or delay in paying,
documentary, stamp, excise and other similar taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of any
of the Loan Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of, any Loan
Document and (d) to the extent not already covered by any of the preceding
subsections, to pay the fees and disbursements of counsel to the Agent and any
Lender incurred in connection with the representation of the Agent or such
Lender in any matter relating to or arising out of any bankruptcy or other
proceeding of the type described in Sections 9.1.(e) or 9.1.(f), including,
without limitation (i) any motion for relief from any stay or similar order,
(ii) the negotiation, preparation, execution and delivery of any document
relating to the Obligations and (iii) the negotiation and preparation of any
debtor-in-possession financing or any plan of reorganization of the Parent, the
Borrower or any other Loan Party, whether proposed by the Parent, the Borrower,
such Loan Party, the Lenders or any other Person, and whether such fees and
expenses are incurred prior to, during or after the commencement of such
proceeding or the confirmation or conclusion of any such proceeding.
Section 11.3. Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant is hereby authorized by the
Borrower, at any time or from time to time while an Event of Default exists,
without notice to the Borrower or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or a Participant subject to
receipt of the prior written consent of the Agent exercised in its sole
discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account of
the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by
Section 9.2., and although such obligations shall be contingent or unmatured.
Promptly following any such set-off the Agent shall notify the Borrower thereof
and of the application of such set-off, provided that the failure to give such
notice shall not invalidate such set-off.
Section 11.4. Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE PARENT, THE AGENT, THE SWINGLINE LENDER OR
ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND
FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE SWINGLINE LENDER,
THE AGENT, THE PARENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL
IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT
OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT,
CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE AGENT,
THE SWINGLINE LENDER OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE BORROWER, THE PARENT, THE AGENT, THE SWINGLINE
LENDER AND EACH LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT COURT OF THE
EASTERN DISTRICT OF PENNSYLVANIA OR, AT THE OPTION OF THE AGENT, ANY STATE COURT
LOCATED IN PHILADELPHIA COUNTY, PENNSYLVANIA, SHALL HAVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE PARENT,
THE AGENT, THE SWINGLINE LENDER OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, OR ANY OTHER LOAN
DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER AND EACH
OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS.
(c) EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH
AGREES NOT TO PLEAD OR CLAIM THE SAME.
(d) THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE
DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE
ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(e) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND
SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER OBLIGATIONS AND THE
TERMINATION OF THIS AGREEMENT.
Section 11.5. Successors and Assigns.
(a) Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or otherwise
transfer any of is rights under this Agreement without the prior written consent
of all the Lenders (and any such assignment or transfer to which all of the
Lenders have not consented shall be void).
(b) Participations. Any Lender may at any time grant to an
affiliate of such Lender, or one or more banks or other financial institutions
(each a "Participant" ) participating interests in its Commitment or the
Obligations owing to such Lender. Except as otherwise provided in Section 3.3.,
no Participant shall have any rights or benefits under this Agreement or any
other Loan Document. In the event of any such grant by a Lender of a
participating interest to a Participant, such Lender shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement
pursuant to which any Lender may grant such a participating interest shall
provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided, however, such Lender may agree with the Participant
that it will not, without the consent of the Participant, agree to (i) increase
such Lender's Commitment (unless such increase will not result in a increase in
the Participant's share), (ii) extend the date fixed for the payment of
principal on the Loans or portions thereof owing to such Lender, or (iii) reduce
the rate at which interest is payable thereon. An assignment or other transfer
which is not permitted by subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a participating interest
granted in accordance with this subsection (b). The selling Lender shall
promptly notify the Agent and the Borrower of the sale of any participation
hereunder and the terms thereof.
(c) Assignments. Any Lender may with the prior written consent of
the Agent and the Borrower (which consent in each case, shall not be
unreasonably withheld) at any time assign to one or more Eligible Assignee (each
an "Assignee") all or a portion of its rights and obligations under this
Agreement and the Notes; provided, however, (i) no such consent by the Borrower
shall be required (x) if a Default or Event of Default shall exist or (y) in the
case of an assignment to another Lender, to an affiliate of the assigning Lender
or to an affiliate of another Lender; (ii) any partial assignment shall be in an
amount at least equal to $10,000,000 and after giving effect to such assignment
the assigning Lender retains a Commitment, or if the Commitments have been
terminated, holds Notes having an aggregate stated principal amount, of at least
$10,000,000; (iii) so long as no Default or Event of Default exists, after
giving effect to any such assignment by the Lender then acting as Agent, such
Lender shall retain a Commitment (or if the Commitments have been terminated,
hold Notes having an aggregate outstanding principal balance) greater than or
equal to the Commitment of (or the principal balance of Notes held by) each
other Lender (other than any Lender whose Commitment (or principal balance of
its Note) has increased as a result of a merger or combination with another
Lender); (iv) each such assignment shall be effected by means of an Assignment
and Assumption Agreement and (v) such Lender must give the Agent at least 10
days prior written notice of any such assignment. Upon execution and delivery of
such instrument and payment by such Assignee to such transferor Lender of an
amount equal to the purchase price agreed between such transferor Lender and
such Assignee, such Assignee shall be deemed to be a Lender party to this
Agreement and shall have all the rights and obligations of a Lender with a
Commitment as set forth in such Assignment and Assumption Agreement, and the
transferor Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Lender, the Agent and the Borrower shall make appropriate
arrangements so that new Notes are issued to the Assignee and such transferor
Lender, as appropriate. In connection with any such assignment, the transferor
Lender shall pay to the Agent an administrative fee for processing such
assignment in the amount of $3,500. Anything in this Section to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
held by it hereunder to the Borrower, or any of its respective affiliates or
Subsidiaries.
(d) Register. The Agent shall maintain a copy of each Assignment
and Acceptance Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of each
Lender from time to time (the "Register"). The Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement and the other Loan Documents. The
Register and copies of each Assignment and Acceptance Agreement shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice to the Agent. Upon its
receipt of an Assignment and Acceptance Agreement executed by an assigning
Lender, together with each Note subject to such assignment (a "Surrendered
Note"), the Agent shall, if such Assignment and Acceptance Agreement has been
completed and if the Agent receives the processing and recording fee described
in subsection (c) above, (i) accept such Assignment and Acceptance Agreement,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof, and return each Surrendered Note, to the Borrower.
(e) Federal Reserve Bank Assignments. In addition to the
assignments and participations permitted under the foregoing provisions of the
Section, and without the need to comply with any of the formal or procedural
requirements of this Section, any Lender may at any time and from time to time,
pledge and assign all or any portion of its rights under all or any of the Loan
Documents to a Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from its obligations thereunder. To facilitate any
such pledge or assignment, Agent shall, at the request of such Lender, enter
into a letter agreement with the Federal Reserve Bank in, or substantially in,
the form of the exhibit to Appendix C to the Federal Reserve Bank of New York
Operating Circular No 10, as amended from time to time.
(f) Information to Assignee, Etc. A Lender may furnish any
information concerning the Parent the Borrower, any Subsidiary or any other Loan
Party in the possession of such Lender from time to time to Assignees and
Participants (including prospective Assignees and Participants) subject to
compliance with the applicable terms of Section 11.8.
(g) Assignments Requiring Registration. Each Lender agrees that,
without the prior written consent of the Borrower and the Agent, it will not
make any assignment hereunder in any manner or under any circumstances that
would require registration or qualification of, or filings in respect of, any
Loan or Revolving Note under the Securities Act or any other securities laws of
the United States of America or of any other jurisdiction.
Section 11.6. Amendments and Waivers.
(a) Generally. Except as otherwise expressly provided in this
Agreement, (i) any consent or approval required or permitted by this Agreement
or in any Loan Document to be given by the Lenders may be given, (ii) any term
of this Agreement or of any other Loan Document (other than any fee letter
solely between the Borrower and the Agent) may be amended, (iii) the performance
or observance by the Borrower or any other Loan Party of any terms of this
Agreement or such other Loan Document (other than any fee letter solely between
the Borrower and the Agent) may be waived, and (iv) the continuance of any
Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Requisite Lenders (or the Agent at the written direction
of the Requisite Lenders), and, in the case of an amendment to any Loan
Document, the written consent of each Loan Party which is party thereto.
Notwithstanding the previous sentence, the Agent, shall be authorized on behalf
of all the Lenders, without the necessity of any notice to, or further consent
from, any Lender, to waive the imposition of the late fees provided in Section
2.7., up to a maximum of 3 times per calendar year.
(b) Unanimous Consent. Notwithstanding the foregoing, no
amendment, waiver or consent shall, unless in writing, and signed by all of the
Lenders (or the Agent at the written direction of the Lenders), do any of the
following:
(i) increase the Commitments of the Lenders (excluding any
increase as a result of an assignment of Commitments permitted under
Section 11.5. or as a result of increases contemplated under Section
2.13.) or subject the Lenders to any additional obligations;
(ii) reduce the principal of, or interest rates that have
accrued or that will be charged on the outstanding principal amount of,
any Loans or other Obligations;
(iii) reduce the amount of any Fees payable to the Lenders
hereunder;
(iv) modify the definition of the term "Termination Date" or
postpone any date fixed for any payment of principal of, or interest
on, any Loans or for the payment of Fees or any other Obligations, or
extend the expiration date of any Letter of Credit beyond the
Termination Date;
(v) change the Pro Rata Shares (excluding any change as a
result of an assignment of Commitments permitted under Section 11.5. or
an increase of Commitments effected pursuant to Section 2.13.;);
(vi) amend this Section or amend the definitions of the terms
used in this Agreement or the other Loan Documents insofar as such
definitions affect the substance of this Section;
(vii) modify the definition of the term "Requisite Lenders" or
modify in any other manner the number or percentage of the Lenders
required to make any determinations or waive any rights hereunder or to
modify any provision hereof;
(viii) release any Guarantor from its obligations under the
Guaranty except as contemplated under Section 7.15.(c); or
(ix) waive a Default or Event of Default under Section
9.1.(a), except as contemplated by Section 9.8.
(c) Amendment of Agent's Duties, Etc. No amendment, waiver or
consent unless in writing and signed by the Agent, in addition to the Lenders
required hereinabove to take such action, shall affect the rights or duties of
the Agent under this Agreement or any of the other Loan Documents. Any
amendment, waiver or consent relating to Section 2.3. or the obligations of the
Swingline Lender under this Agreement or any other Loan Document shall, in
addition to the Lenders required hereinabove to take such action, require the
written consent of the Swingline Lender. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon and any
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose set forth therein. No course of dealing or delay or
omission on the part of the Agent or any Lender in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. Any Event of
Default occurring hereunder shall continue to exist until such time as such
Event of Default is waived in writing in accordance with the terms of this
Section, notwithstanding any attempted cure or other action by the Borrower, the
Parent, any other Loan Party or any other Person subsequent to the occurrence of
such Event of Default. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other
circumstances.
Section 11.7. Nonliability of Agent and Lenders.
The relationship between the Borrower, on the one hand, and the Lenders
and the Agent, on the other hand, shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower and no provision in this Agreement or in any of the other Loan
Documents, and no course of dealing between or among any of the parties hereto,
shall be deemed to create any fiduciary duty owing by the Agent or any Lender to
any Lender, the Borrower, any Subsidiary or any other Loan Party. Neither the
Agent nor any Lender undertakes any responsibility to the Parent or the Borrower
to review or inform the Parent or the Borrower of any matter in connection with
any phase of the business or operations of the Parent or the Borrower.
Section 11.8. Confidentiality.
Except as otherwise provided by Applicable Law, the Agent and each
Lender shall utilize all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential or
proprietary by the Parent or the Borrower in accordance with its customary
procedure for handling confidential information of this nature and in accordance
with safe and sound banking practices but in any event may make disclosure: (a)
to any of their respective affiliates (provided any such affiliate shall agree
to keep such information confidential in accordance with the terms of this
Section); (b) as reasonably required by any bona fide Assignee, Participant or
other transferee in connection with the contemplated transfer of any Commitment
or participations therein as permitted hereunder (provided they shall agree to
keep such information confidential in accordance with the terms of this
Section); (c) as required by any Governmental Authority or representative
thereof or pursuant to legal process; (d) to the independent auditors and other
professional advisors (provided they shall be notified of the confidential
nature of the information of the Agent or any Lender and shall agree to keep
such information confidential in accordance with the terms of this Section); and
(e) after the happening and during the continuance of an Event of Default, to
any other Person, in connection with the exercise by the Agent or the Lenders of
rights hereunder or under any of the other Loan Documents. The Agent and each
Lender agrees to use any such non-public information solely in connection with
the transactions contemplated by this Agreement and the other Loan Documents.
Notwithstanding anything to the contrary set forth herein or in any other
written or oral understanding or agreement to which the parties hereto are
parties or by which they are bound, the parties hereto acknowledge and agree
that (i) any obligations of confidentiality contained herein and therein do not
apply and have not applied from the commencement of discussions between the
parties to the tax treatment and tax structure of the transactions contemplated
by the Loan Documents (and any related transactions or arrangements), and (ii)
each party (and each of its employees, representatives, or other agents) may
disclose to any and all Persons, without limitation of any kind, the tax
treatment and tax structure of the transactions contemplated by the Loan
Documents and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax treatment and tax
structure, all within the meaning of Treasury Regulations Section 1.6011-4;
provided, however, that each party recognizes that the privilege each has to
maintain, in its sole discretion, the confidentiality of a communication
relating to the transactions contemplated by the Loan Documents, including a
confidential communication with its attorney or a confidential communication
with a federally authorized tax practitioner under Section 7525 of the Internal
Revenue Code, is not intended to be affected by the foregoing.
Section 11.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and
hold harmless the Agent, any affiliate of the Agent, and each of the Lenders and
their respective directors, officers, shareholders, agents, employees and
counsel (each referred to herein as an "Indemnified Party") from and against any
and all losses, costs, claims, damages, liabilities, deficiencies, judgments or
expenses of every kind and nature (including, without limitation, amounts paid
in settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith) incurred by an Indemnified Party in connection
with, arising out of, or by reason of, any suit, cause of action, claim,
arbitration, investigation or settlement, consent decree or other proceeding
(the foregoing referred to herein as an "Indemnity Proceeding") which is in any
way related directly or indirectly to: (i) this Agreement or any other Loan
Document or the transactions contemplated hereby or thereby; (ii) the making of
any Loans or issuance of Letters of Credit hereunder; (iii) any actual or
proposed use by the Borrower of the proceeds of the Loans or Letters of Credit;
(iv) the Agent's or any Lender's entering into this Agreement; (v) the fact that
the Agent and the Lenders have established the credit facility evidenced hereby
in favor of the Borrower; (vi) the fact that the Agent and the Lenders are
creditors of the Borrower and have or are alleged to have information regarding
the financial condition, strategic plans or business operations of the Parent,
the Borrower and the other Subsidiaries; (vii) the fact that the Agent and the
Lenders are material creditors of the Borrower and are alleged to influence
directly or indirectly the business decisions or affairs of the Parent, the
Borrower and the other Subsidiaries or their financial condition; (viii) the
exercise of any right or remedy the Agent or the Lenders may have under this
Agreement or the other Loan Documents; provided, however, that the Borrower
shall not be obligated to indemnify any Indemnified Party for any acts or
omissions of such Indemnified Party in connection with matters described in
clause (i) and this clause (viii) to the extent found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct; or (ix) any
violation or non-compliance by the Borrower or any Subsidiary of any Applicable
Law (including any Environmental Law) including, but not limited to, any
Indemnity Proceeding commenced by (A) the Internal Revenue Service or state
taxing authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to cause
the Borrower or its Subsidiaries (or its respective properties) (or the Agent
and/or the Lenders as successors to the Borrower) to be in compliance with such
Environmental Laws.
(b) The Borrower's indemnification obligations under this Section
shall apply to all Indemnity Proceedings arising out of, or related to, the
foregoing whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all costs and
expenses of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority. If
and to the extent that the obligations of the Borrower hereunder are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law. The Borrower's obligations hereunder are in
addition to, and not in substitution of, any other obligation in respect of
indemnification contained in this Agreement or any other Loan Document.
Section 11.10. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b)
none of the Lenders and the Swingline Lender are obligated any longer under this
Agreement to make any Loans and the Agent is no longer obligated to issue
Letters of Credit hereunder and (c) all Obligations (other than obligations
which survive as provided in the following sentence) have been paid and
satisfied in full, this Agreement shall terminate. Notwithstanding any
termination of this Agreement, or of the other Loan Documents, the indemnities
to which the Agent, the Swingline Lender and the Lenders are entitled under the
provisions of Sections 10.7., 11.2. and 11.9. and any other provision of this
Agreement and the other Loan Documents, and the waivers of jury trial and
submission to jurisdictions contained in Section 11.4., shall continue in full
force and effect and shall protect the Agent and the Lenders against events
arising after such termination as well as before.
Section 11.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 11.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH COMMONWEALTH.
Section 11.13. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
Section 11.14. Obligations with Respect to Loan Parties.
The obligations of the Borrower or the Parent to direct or prohibit the
taking of certain actions by the other Loan Parties as specified herein shall be
absolute and not subject to any defense the Borrower or the Parent may have that
the Borrower or the Parent does not control such Loan Parties.
Section 11.15. Limitation of Liability.
Neither the Agent, the Swingline Lender, any Lender, nor any affiliate,
officer, director, employee, attorney, or agent of the Agent, the Swingline
Lender or any Lender shall have any liability with respect to, and the Borrower
and the Parent each hereby waives, releases, and agrees not to ▇▇▇ any of them
upon, any claim for any special, indirect, incidental, or consequential damages
suffered or incurred by the Borrower or the Parent in connection with, arising
out of, or in any way related to, this Agreement or any of the other Loan
Documents, or any of the transactions contemplated by this Agreement or any of
the other Loan Documents. The Borrower and the Parent each hereby waives,
releases, and agrees not to ▇▇▇ the Agent, the Swingline Lender or any Lender or
any of their respective affiliates, officers, directors, employees, attorneys,
or agents for punitive damages in respect of any claim in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or
financed hereby. Notwithstanding anything in this Section to the contrary, no
Defaulting Lender shall be entitled to claim any of the benefits of this
Section.
Section 11.16. Entire Agreement.
This Agreement and the other Loan Documents referred to herein embody
the final, entire agreement among the parties hereto and supersede any and all
prior commitments, agreements, representations, and understandings, whether
written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto.
Section 11.17. Construction.
The Borrower, the Parent, the Agent, the Swingline Lender and each
Lender acknowledge that each of them has had the benefit of legal counsel of its
own choice and has been afforded an opportunity to review this Agreement and the
other Loan Documents with its legal counsel and that this Agreement and the
other Loan Documents shall be construed as if jointly drafted by the Borrower,
the Parent, the Agent, the Swingline Lender and each Lender.
Section 11.18. Time of the Essence.
Time is of the essence of each and every provision of this Agreement.
[Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed by their authorized officers all as of the day and year
first above written.
PREIT ASSOCIATES, L.P.
By: Pennsylvania Real Estate Investment Trust,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
PENNSYLVANIA REAL ESTATE
INVESTMENT TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Agent, Swingline Lender and
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Title: Vice President
Commitment: $86,500,000
Lending Office (all Types of Loans):
▇▇▇▇▇ Fargo Bank, National Association
Two ▇▇▇▇▇ Square, Suite 1750
▇▇▇-▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
▇▇▇▇▇ Fargo Bank, National Association
Two ▇▇▇▇▇ Square, Suite 1750
▇▇▇-▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ Fargo Bank, National Association
Real Estate Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Credit Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Commitment: $ 45,000,000
Lending Office (all Types of Loans) and
Address for Notices:
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ -▇▇-▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
COMMERZBANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
Commitment: $45,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Commerzbank AG, New York Branch
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
MANUFACTURERES & TRADERS TRUST COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: AssistantVice President
Commitment: $45,000,000
Lending Office (all Types of Loans) and
Address for Notices:
M&T Bank
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
BANK ONE, NA
By: /s/ F. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: F. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
Commitment: $ 32,500,000
Lending Office (all Types of Loans) and
Address for Notices:
Bank One, NA
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
EUROHYPO AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $32,500,000
Lending Office (all Types of Loans) and
Address for Notices:
Eurohypo AG, New York Branch
1114 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Commitment: $32,500,000
Lending Office (all Types of Loans) and
Address for Notices:
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Street
15th Floor, Mailcode: PA 1245
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Ms. Tag ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Commitment: $30,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Genolson
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
UNION BANK OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $30,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Union Bank of California, N.A.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
ALLIED IRISH BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Commitment: $19,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Allied Irish Bank - Corporate Operations
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Ehibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
CITIZENS BANK OF PENNSYLVANIA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $19,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Citizens Bank of Pennsylvania
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
NATIONAL CITY BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Commitment: $19,000,000
Lending Office (all Types of Loans) and
Address for Notices:
National City Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
WILMINGTON TRUST OF PENNSYLVANIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Commitment: $19,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Wilmington Trust of Pennsylvania
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Commitment: $15,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Bank of America
10 Light Street, 18th ▇▇▇▇
MD4-302-18-01
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
CITICORP NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director and Vice President
Commitment: $15,000,000
Lending Office (all Types of Loans):
Citicorp North America, Inc.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Notices:
Citicorp North America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
[Signatures Continued on Next Page]
Exhibit 10.1
[Signature Page to Credit Agreement dated as of
November 20, 2003 with PREIT Associates, L.P.]
FIRSTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $15,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Firstrust Bank
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ANNEX I
DEFINED TERMS
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Additional Costs" has the meaning given that term in Section 4.1.
"Adjusted EBITDA" means, for any Person and for any given period, (a)
the EBITDA of such Person and its Subsidiaries determined on a consolidated
basis for such period, plus (b) rent payments made during such period by such
Person and its Subsidiaries in respect of ground leases minus (c) the Reserve
for Replacements for all Properties owned by such Person and its Subsidiaries.
Adjusted EBITDA shall be (i) increased by the greater of a Person's Ownership
Share or Recourse Share of rent payments made during such period by any
Unconsolidated Affiliate of such Person in respect of ground leases and (ii)
decreased by the greater of a Person's Ownership Share or Recourse Share of the
Reserve for Replacements for all Properties owned by Unconsolidated Affiliates
of such Person.
"Adjusted NOI" means, for any Property and for a given period, the sum
of the following (without duplication): (a) rents and other revenues received in
the ordinary course from such Property (including proceeds of rent loss
insurance but excluding pre-paid rents and revenues and security deposits except
to the extent applied in satisfaction of tenants' obligations for rent) minus
(b) all expenses paid or accrued related to the ownership, operation or
maintenance of such Property, including but not limited to taxes, assessments
and other similar charges, insurance, utilities, payroll costs, maintenance,
repair and landscaping expenses, marketing expenses, and general and
administrative expenses (including an appropriate allocation for legal,
accounting, advertising, marketing and other expenses incurred in connection
with such Property, but specifically excluding general overhead expenses of the
Borrower and the Parent) minus (c) the Reserve for Replacements for such
Property as of the end of such period minus (d) the greater of (i) the actual
property management fee paid during such period and (ii) an imputed management
fee in the amount of three percent (3.0%) of the base rent revenues for such
Property for such period.
"Affected Lender" has the meaning given that term in Section 4.6.
"Affiliate" means with respect to a given Person, any other Person
(other than the Agent or any Lender): (a) directly or indirectly controlling,
controlled by, or under common control with, such given Person; (b) directly or
indirectly owning or holding five percent (5.0%) or more of any equity interest
in such given Person; or (c) five percent (5.0%) or more of whose voting stock
or other equity interest is directly or indirectly owned or held by such given
Person. For purposes of this definition, "control" (including with correlative
meanings, the terms "controlling", "controlled by" and "under common control
with") means the possession directly or indirectly of the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities or by contract or otherwise. The Affiliates
of a Person shall include any officer or director (or other Persons holding
similar positions) of such Person.
I-1
"Agent" means ▇▇▇▇▇ Fargo Bank, National Association, as contractual
representative for the Lenders under the terms of this Agreement and the other
Loan Documents, and together with its successors and assigns.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means the percentage rate set forth below
corresponding to the ratio of Total Liabilities to Gross Asset Value as
determined in accordance with Section 8.1.(b) in effect at such time:
------------ ------------------------------------------- -----------------------
Ratio of Total Liabilities to Gross Asset
Level Value Applicable Margin
------------ ------------------------------------------- -----------------------
1 Less than or equal to 0.40 to 1.00 1.50%
------------ ------------------------------------------- -----------------------
2 Greater than 0.40 to 1.00 but less than 1.75%
or equal to 0.50 to 1.00
------------ ------------------------------------------- -----------------------
3 Greater than 0.50 to 1.00 but less than 2.00%
or equal to 0.55 to 1.00
------------ ------------------------------------------- -----------------------
4 Greater than 0.55 to 1.00 but less than 2.25%
or equal to 0.60 to 1.00
------------ ------------------------------------------- -----------------------
5 Greater than 0.60 to 1.00 2.50%
------------ ------------------------------------------- -----------------------
The Applicable Margin shall be determined by the Agent from time to time, based
on the ratio of Total Liabilities to Gross Asset Value as set forth in the
Pricing Certificate most recently delivered by the Borrower pursuant to Section
7.1.(g). Any adjustment to the Applicable Margin shall be effective as of the
date the quarterly financial statements are required to be delivered pursuant to
Section 7.1.(a) or as of the date the annual financial statements are required
to be delivered pursuant to Section 7.1.(b), as the case may be. Notwithstanding
the foregoing, for the period from the Effective Date through but excluding the
date on which the Agent first determines the Applicable Margin for Loans as set
forth above, such Applicable Margin shall equal 2.25%. Thereafter, such
Applicable Margin shall be adjusted from time to time as set forth above.
"Assignee" has the meaning given that term in Section 11.5.(c).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent, substantially in
the form of Exhibit A.
I-2
"Bankruptcy Event" means with respect to a Person, any of the events of
the type described or referred to in Section 9.1.(e) or (f).
"Base Rate" means the greater of (a) the rate of interest per annum
publicly announced from time to time by the Agent at its principal office in San
Francisco, California as its "prime rate" (which rate of interest may not be the
lowest rate charged by the Agent or any of the Lenders on similar loans) and (b)
the Federal Funds Rate plus one-half of one percent (0.5%). Each change in the
Base Rate shall become effective without prior notice to the Borrower or the
Lenders automatically as of the opening of business on the date of such change
in the Base Rate.
"Base Rate Loan" means a Revolving Loan bearing interest at a rate
based on the Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Benefit Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Benefit Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to, by
any Person which was at such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA Group.
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and permitted assigns.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Philadelphia, Pennsylvania or San Francisco, California
are authorized or required to close and (b) with reference to a LIBOR Loan, any
such day that is also a day on which dealings in Dollar deposits are carried out
in the London interbank market.
"Capitalized Lease Obligation" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of
such obligation determined in accordance with GAAP.
"Cash Equivalents" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not
more than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, which
has capital and unimpaired surplus in excess of $500,000,000 and which bank or
its holding company has a short-term commercial paper rating of at least A-1 or
the equivalent by S&P or at least P-1 or the equivalent by ▇▇▇▇▇'▇; (c) reverse
repurchase agreements with terms of not more than seven days from the date
acquired, for securities of the type described in clause (a) above and entered
into only with commercial banks having the qualifications described in clause
(b) above; (d) commercial paper issued by any Person incorporated under the laws
of the United States of America or any State thereof and rated at least A-1 or
the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
▇▇▇▇▇'▇, in each case with maturities of not more than one year from the date
acquired; and (e) investments in money market funds registered under the
Investment Company Act of 1940, which have net assets of at least $500,000,000
and at least 85% of whose assets consist of securities and other obligations of
the type described in clauses (a) through (d) above.
I-3
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1., to participate in Letters of Credit
pursuant to Section 2.2.(i), and to participate in Swingline Loans pursuant to
Section 2.3.(e), in an amount up to, but not exceeding the amount set forth for
such Lender on its signature page hereto as such Lender's "Commitment Amount" or
as set forth in the applicable Assignment and Acceptance Agreement, as the same
may be increased pursuant to Section 2.13., reduced from time to time pursuant
to Section 2.15., or otherwise changed pursuant to the terms of this Agreement
or as appropriate to reflect any assignments to or by such Lender effected in
accordance with Section 11.5.
"Compliance Certificate" has the meaning given that term in Section
7.1.(c).
"Contingent Obligation" as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person with respect to any
Indebtedness, lease, dividend or other payment obligation of another Person if
the primary purpose or intent of the Person incurring such liability, or the
primary effect thereof, is to provide assurance to the obligee of such liability
that such liability will be paid or discharged, or that the holders of such
liability will be protected (in whole or in part) against loss with respect
thereto. Contingent Obligations shall include (i) any Guaranty of the
Indebtedness of another (other than of such Person for liabilities arising from
Nonrecourse Exceptions), (ii) the obligation to make take-or-pay or similar
payments if required regardless of nonperformance by any other party or parties
to an agreement, and (iii) any liability of such Person for the Indebtedness of
another through any agreement to purchase, repurchase or otherwise acquire such
obligation or any property constituting security therefor, to provide funds for
the payment or discharge of such obligation or to maintain the solvency,
financial condition or any balance sheet item or level of income of another. The
amount of any Contingent Obligation shall be equal to the amount of the
obligation so guaranteed or otherwise supported or, if not a fixed and
determined amount, the maximum amount so guaranteed.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.9.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 2.10.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
I-4
"Credit Rating" means, for any Person, the lowest rating assigned by a
Rating Agency to each series of rated senior unsecured long term indebtedness of
such Person.
"Crown" means Crown American Realty Trust, a Maryland real estate
investment trust.
"Crown Distribution Agreement" means that certain Distribution
Agreement dated as of May 13, 2003 by and between Crown and Crown Partnership.
"Crown Merger Agreement" means that certain Agreement and Plan of
Merger dated as of May 13, 2003 by and among the Parent, the Borrower, Crown and
Crown Partnership.
"Crown Partnership" means Crown American Properties, L.P., a Delaware
limited partnership.
"Crown Property" means any Property acquired by the Parent, the
Borrower or any other Subsidiary in connection with the Crown Transaction.
"Crown/PREIT Contribution Agreement" means that certain Contribution
Agreement dated as of May 13, 2003 by and between Crown Partnership and the
Borrower.
"Crown Transaction" means the transactions contemplated by the Crown
Merger Agreement, including without limitation, (a) the distribution by Crown
Partnership to Crown of certain assets as contemplated by the Crown Distribution
Agreement; (b) the merger of Crown with and into the Parent; (c) the
contribution by the Parent to the Borrower of certain assets as contemplated by
the PREIT Contribution Agreement and (d) the contribution by Crown Partnership
to the Borrower of certain assets as contemplated by the Crown/PREIT
Contribution Agreement.
"Default" means any of the events specified in Section 9.1., whether or
not there has been satisfied any requirement for the giving of notice, the lapse
of time, or both.
"Defaulting Lender" has the meaning set forth in Section 3.9.
"Development Property" means a Property (a) which is not a Major
Redevelopment Property; (b) which is under development and either construction
has commenced or the owner of such Property (or an Affiliate) has entered into a
binding construction contract; and (c) either (i) which has not achieved an
Occupancy Rate of 75% or more or (ii) on which the improvements (other than
tenant improvements on unoccupied space) related to the development have not
been completed.
"Dollars" or "$" means the lawful currency of the United States of
America.
I-5
"EBITDA" means, with respect to any Person for any period and without
duplication, net earnings (loss) of such Person for such period (excluding
equity in net earnings or net loss of Unconsolidated Affiliates) plus the sum of
the following amounts (but only to the extent included in determining net
earnings (loss) for such period): (a) depreciation and amortization expense and
other non-cash charges of such Person for such period, plus (b) interest expense
of such Person for such period, plus (c) all provisions for any federal, state
or other income tax of such Person in respect of such period, minus (plus) (d)
extraordinary gains (losses) of such Person for such period, plus (e) the
greater of such Person's (i) Ownership Share or (ii) Recourse Share of the
EBITDA of the Unconsolidated Affiliates of such Person for such period. For
purposes of this definition, net earnings (loss) shall be determined before
minority interests and distributions to holders of Preferred Stock.
"Effective Date" means the later of (a) the Agreement Date and (b) the
date on which all of the conditions precedent set forth in Section 5.1. shall
have been fulfilled or waived in accordance with the provisions of Section 11.6.
"Eligible Assignee" means any Person that is: (a) an existing Lender;
(b) a commercial bank, trust company, savings and loan association, savings
bank, insurance company, investment bank or pension fund organized under the
laws of the United States of America, any state thereof or the District of
Columbia, and having total assets in excess of $5,000,000,000; or (c) a
commercial bank organized under the laws of any other country which is a member
of the Organisation for Economic Co-operation and Development, or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such entity is not currently a
Lender, such entity's (or in the case of a bank which is a subsidiary, such
bank's parent's) senior unsecured long term indebtedness must be rated BBB or
higher by S&P, Baa2 or higher by ▇▇▇▇▇'▇ or the equivalent or higher of either
such rating by another rating agency acceptable to the Agent.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
ss. 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et
seq.; ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ U.S.C. ss. 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss. 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. ss. 4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"Equity Interest" means, with respect to any Person, any share of
capital stock of (or other ownership or profit interests in) such Person, any
warrant, option or other right for the purchase or other acquisition from such
Person of any share of capital stock of (or other ownership or profit interests
in) such Person, any security convertible into or exchangeable for any share of
capital stock of (or other ownership or profit interests in) such Person or
warrant, right or option for the purchase or other acquisition from such Person
of such shares (or such other interests), and any other ownership or profit
interest in such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting, and whether or not such
share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.
I-6
"Equity Issuance" means any issuance or sale by a Person of any Equity
Interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Event of Default" means any of the events specified in Section 9.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Excluded Subsidiary" means any Subsidiary (a) holding title to assets
which are or are to become collateral for any Secured Indebtedness of such
Subsidiary; and (b) which is prohibited from Guarantying the Indebtedness of any
other Person pursuant to (i) any document, instrument or agreement evidencing
such Secured Indebtedness, (ii) a provision of such Subsidiary's organizational
documents which provision was included in such Subsidiary's organizational
documents as a condition to the extension of such Secured Indebtedness or (iii)
any fiduciary obligation owing to the holders of an Equity Interest in such
Subsidiary and imposed under Applicable Law.
"Extension Request" has that meaning set forth in Section 2.14.
"Existing Credit Agreements" mean (i) that certain Credit Agreement
dated as of December 28, 2000 by and between the Parent, the Borrower, the
financial institutions party thereto as "Lenders", ▇▇▇▇▇ Fargo, as Agent, and
the other Persons party thereto and (ii) that certain Credit Agreement dated as
of April 23, 2003 by and between the Borrower, the Parent, the financial
institutions party thereto as "Lenders", and ▇▇▇▇▇ Fargo, as Agent.
"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction. Fair Market Value shall be determined
by the Board of Directors of the Parent acting in good faith conclusively
evidenced by a board resolution thereof delivered to the Agent or, with respect
to any asset valued at up to $5,000,000, such determination may be made by the
chief financial officer of the Parent evidenced by an officer's certificate
delivered to the Agent.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.
I-7
"Fees" means the fees and commissions provided for or referred to in
Section 3.5. (excluding fees payable under the last sentence of Section 3.5.(c)
and any fees referred to in Section 3.5.(e)).
"Fixed Charges" means, with respect to a Person and for a given period,
(a) such Person's Interest Expense for such period, plus (b) regularly scheduled
principal payments on Indebtedness of such Person and its Subsidiaries made
during such period, other than any balloon, bullet or similar principal payment
payable on any Indebtedness of such Person which repays such Indebtedness in
full, plus (c) Preferred Dividends paid by such Person and its Subsidiaries
during such period, plus (d) rent payments made during such period by such
Person and its Subsidiaries in respect of ground leases. Fixed Charges shall
include the greater of such Person's Ownership Share or Recourse Share of the
amount of any of the items described in the immediately preceding clause (b)
though (d) of such Person's Unconsolidated Affiliates.
"Floating Rate Indebtedness" means all Indebtedness of a Person which
bears interest at a variable rate during the scheduled life of such Indebtedness
and for which such Person has not obtained Interest Rate Agreements which
effectively cause such variable rates to be equivalent to fixed rates less than
or equal to 10.0% per annum.
"Funds From Operations" means, with respect to a Person and for a given
period, (a) net income (loss) of such Person determined on a consolidated basis
for such period minus (or plus) (b) gains (or losses) from debt restructuring
and sales of property during such period plus (c) depreciation with respect to
such Person's real estate assets and amortization (other than amortization of
deferred financing costs) of such Person for such period, all after adjustment
for unconsolidated partnerships and joint ventures. Adjustments for
unconsolidated entities will be calculated to reflect funds from operations on
the same basis.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Governmental Approvals" means all authorizations, consents, approvals,
permits, licenses and exemptions of, registrations and filings with, and reports
to, all Governmental Authorities.
I-8
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Gross Asset Value" means, at a given time, the sum (without
duplication) of (a) Operating Real Estate Value at such time, plus (b) all cash
and Cash Equivalents (excluding cash and Cash Equivalents the disposition of
which is restricted (other than restrictions on cash held in an exchange account
by a "qualified intermediary" in connection with the sale of a property pursuant
to and qualifying for tax treatment under Section 1031 of the Internal Revenue
Code)), and all accounts receivable net of reserves, of the Parent and its
Subsidiaries at such time, plus (c) the current book value of all real property
of the Parent and its Subsidiaries upon which construction is then in progress
and all land held by any of them for development, plus (d) with respect to
Development Properties, development costs incurred to date with respect to such
Properties, plus (e) with respect to Major Redevelopment Properties, (i) the
Adjusted NOI for all Major Redevelopment Properties of the Parent and its
Subsidiaries for the fiscal quarter most recently ended (excluding Major
Redevelopment Properties acquired or disposed of by the Parent or any Subsidiary
during such fiscal quarter) multiplied by 4 and divided by 9.00% plus (ii)
redevelopment costs incurred to date with respect to such Properties, plus (f)
predevelopment costs incurred to date with respect to Properties to the extent
such predevelopment costs are disclosed as a line item in the Parent's publicly
filed financial statements, plus (g) the purchase price paid by the Parent or
any Subsidiary (less any amounts paid to the Parent or such Subsidiary as a
purchase price adjustment, held in escrow, retained as a contingency reserve, or
in connection with other similar arrangements) for any Property acquired by the
Parent or such Subsidiary during the immediately preceding two fiscal quarters
of the Parent (excluding Crown Properties), plus (h) with respect to each
Unconsolidated Affiliate of the Parent, the greater of the Parent's (i)
Ownership Share or (ii) Recourse Share of (x) for projects under construction,
the book value of construction in process as of the end of the Parent's fiscal
quarter most recently ended or (y) for completed projects, such Unconsolidated
Affiliate's Operating Real Estate Value, plus (i) the contractual purchase price
of Properties of the Parent and its Subsidiaries subject to purchase
obligations, repurchase obligations, forward commitments and unfunded
obligations to the extent such obligations and commitments are included in
determinations of Total Liabilities. If obligations under a contract to purchase
or otherwise acquire unimproved or fully developed real property are included
when determining Total Liabilities and the seller under such contract does not
have the right to specifically enforce such contract, then only an amount equal
to the aggregate amount of due diligence deposits, ▇▇▇▇▇▇▇ money payments and
other similar payments made under the contract which, at such time, would be
subject to forfeiture upon termination of the contract, shall be included in
Gross Asset Value. If obligations under a contract to purchase or otherwise
acquire real property being renovated or developed by a third party are included
when determining Total Liabilities and such real property is not owned or leased
by the Borrower or any of its Subsidiaries, then only the amount equal to the
maximum amount reasonably estimated to be payable by such Person to such third
party under a contract between such Person and such third party during the
remaining term of such contract, shall be included in Gross Asset Value. To the
extent that the current book value of land held for development would account
for in excess of 5.0% of Gross Asset Value (determined without giving effect to
this sentence), such excess shall be excluded in determining Gross Asset Value.
I-9
"Guarantor" means any Person that is party to the Guaranty as a
"Guarantor" and shall in any event include the Parent.
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any obligation
means and includes: (a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation, or (b) an
agreement, direct or indirect, contingent or otherwise, and whether or not
constituting a guaranty, the practical effect of which is to assure the payment
or performance (or payment of damages in the event of nonperformance) of any
part or all of such obligation whether by: (i) the purchase of securities or
obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property
or the purchase or sale of services primarily for the purpose of enabling the
obligor with respect to such obligation to make any payment or performance (or
payment of damages in the event of nonperformance) of or on account of any part
or all of such obligation, or to assure the owner of such obligation against
loss, (iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn down by
beneficiaries of letters of credit (including Letters of Credit), or (v) the
supplying of funds to or investing in a Person on account of all or any part of
such Person's obligation under a Guaranty of any obligation or indemnifying or
holding harmless, in any way, such Person against any part or all of such
obligation. As the context requires, "Guaranty" shall also mean the guaranty
executed and delivered pursuant to Section 5.1. and substantially in the form of
Exhibit B.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; (d)
asbestos in any form; (e) toxic mold and (f) electrical equipment which contains
any oil or dielectric fluid containing levels of polychlorinated biphenyls in
excess of fifty parts per million.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) obligations
of such Person in respect of money borrowed; (b) obligations of such Person
(other than trade debt incurred in the ordinary course of business), whether or
not for money borrowed (i) represented by notes payable, or drafts accepted, in
each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase money
indebtedness, conditional sales contracts, title retention debt instruments or
other similar instruments, upon which interest charges are customarily paid or
that are issued or assumed as full or partial payment for property; (c) all
master lease obligations; (d) Capitalized Lease Obligations of such Person; (e)
all reimbursement obligations of such Person under any letters of credit or
acceptances that have been presented for payment; (f) all Indebtedness of other
Persons which (i) such Person has Guaranteed (other than Guarantees which are
solely Guarantees of performance and not of payment and other Guarantees of such
Person for liabilities arising from Nonrecourse Exceptions) or is otherwise
recourse to such Person or (ii) is secured by a Lien on any property of such
Person; provided, that such Indebtedness shall be limited to the value of such
property so encumbered; and (g) the Recourse Share of all Indebtedness of any
partnership of which such Person is a general partner. For purposes of this
definition preferred equity of a Person shall not be considered to be
Indebtedness.
I-10
"Intellectual Property" has the meaning given that term in Section 6.1.
"Interest Expense" means, with respect to a Person and for any period,
(a) all paid, accrued or capitalized interest expense (including, without
limitation, interest expense attributable to Capitalized Lease Obligations but
excluding capitalized interest funded from an interest reserve in a construction
loan) of such Person and in any event shall include all letter of credit fees
and all interest expense with respect to any Indebtedness in respect of which
such Person is wholly or partially liable whether pursuant to any repayment,
interest carry, performance Guarantee or otherwise, plus (b) to the extent not
already included in the foregoing clause (a) the greater of such Person's (i)
Ownership Share or (ii) Recourse Share of all paid, accrued or capitalized
interest expense (as limited above) for such period of Unconsolidated Affiliates
of such Person.
"Interest Period" means with respect to any LIBOR Loan, the period
commencing on the date of the borrowing, Conversion or Continuation of such Loan
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each Interest Period shall be one, two,
three or six months as the Borrower may, in an appropriate Notice of Borrowing,
Notice of Continuation or Notice of Conversion, select. In addition to such
periods, the Borrower may request Interest Periods for LIBOR Loans having
durations of less than one month no more than 12 times during any 12-month
period beginning during the term of this Agreement but only for the purpose of
managing the number of Interest Periods outstanding with respect to LIBOR Loans.
In no event shall an Interest Period of a Revolving Loan extend beyond the
Termination Date. Whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day; provided,
however, that if such extension would cause the last day of such Interest Period
to occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
contractual agreement or arrangement entered into with a nationally recognized
financial institution then having a Credit Rating of BBB- or higher by S&P or
Baa3 or higher by ▇▇▇▇▇'▇ for the purpose of protecting against fluctuations in
interest rates.
I-11
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock, evidence of Indebtedness or
other security issued by any other Person; (b) any loan, advance or extension of
credit to, or contribution (in the form of money or goods) to the capital of,
any other Person; (c) any Guaranty of the Indebtedness of any other Person; (d)
any other investment in any other Person; and (e) any commitment or option to
make an Investment in any other Person.
"L/C Commitment Amount" has the meaning given to that term in Section
2.2.(a).
"Lender" means each financial institution from time to time party
hereto as a "Lender" together with its respective successors and permitted
assigns, and, as the context requires, includes the Swingline Lender.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Agent in writing from time to time.
"Letter of Credit" has the meaning set forth in Section 2.2.
"Letter of Credit Collateral Account" means a special interest bearing
deposit account maintained by the Agent and under its sole dominion and control.
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
I-12
"Letter of Credit Liabilities" means, without duplication, at any time
and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such
Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender then acting as Agent) shall be deemed
to hold a Letter of Credit Liability in an amount equal to its participation
interest under Section 2.2. in the related Letter of Credit, and the Lender then
acting as Agent shall be deemed to hold a Letter of Credit Liability in an
amount equal to its retained interest in the related Letter of Credit after
giving effect to the acquisition by the Lenders (other than the Lender then
acting as Agent of their participation interests under such Section).
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
average rate of interest per annum (rounded upwards, if necessary, to the next
highest 1/100th of 1%) at which deposits in immediately available funds in
Dollars are offered to the Agent (at approximately 9:00 a.m., two Business Days
prior to the first day of such Interest Period) by first class banks in the
interbank Eurodollar market where the Eurodollar operations of the Agent are
customarily conducted, for delivery on the first day of such Interest Period,
such deposits being for a period of time equal or comparable to such Interest
Period (or, if such Interest Period is shorter than one month, then such period
of time shall be based on a period of one month) and in an amount equal to or
comparable to the principal amount of the LIBOR Loan to which such Interest
Period relates. Each determination of LIBOR by the Agent shall, in the absence
of demonstrable error, be conclusive and binding.
"LIBOR Loan" means a Revolving Loan bearing interest at a rate based on
LIBOR.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge or lease constituting a Capitalized Lease Obligation, conditional
sale or other title retention agreement, or other security title or encumbrance
of any kind in respect of any property of such Person, or upon the income or
profits therefrom; (b) any arrangement, express or implied, under which any
property of such Person is transferred, sequestered or otherwise identified for
the purpose of subjecting the same to the payment of Indebtedness or performance
of any other obligation in priority to the payment of the general, unsecured
creditors of such Person; (c) the filing of any financing statement under the
Uniform Commercial Code or its equivalent in any jurisdiction, excluding any
financing statement filed to give notice of the existence of an operating lease;
and (d) any agreement by such Person to grant, give or otherwise convey any of
the foregoing.
"Loan" means a Revolving Loan or a Swingline Loan.
"Loan Document" means this Agreement, each Note, the Guaranty, each
Letter of Credit Document, any fee letter and each other document or instrument
now or hereafter executed and delivered by a Loan Party in connection with,
pursuant to or relating to this Agreement.
"Loan Party" means each of the Borrower, the Parent and each other
Guarantor. Schedule 1.1.(A) sets forth the Loan Parties in addition to the
Borrower and the Parent as of the Agreement Date.
"Major Redevelopment Property" means a Property, (a) the net rentable
square footage of such Property which is responsible for 33% or more of the
Adjusted NOI of such Property is undergoing renovation and redevelopment and
either (i) construction has commenced or (ii) the owner of such Property (or an
Affiliate) has entered into a binding construction contract; and (b) either (i)
which has not achieved an Occupancy Rate of 75% or more or (ii) on which the
improvements (other than tenant improvements on unoccupied space) related to the
renovation and redevelopment have not been completed. The term "Major
Redevelopment Property" shall include real property of the type described in the
immediately preceding sentence to be (but not yet) acquired upon completion of
redevelopment pursuant to a contract in which the seller of such real property
is required to renovate prior to, and as a condition precedent to, such
acquisition.
I-13
"Material Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower and its Subsidiaries taken as a whole, or the
Parent and its Subsidiaries taken as a whole, (b) the legal ability of the
Borrower or any other Loan Party that is a Material Subsidiary to perform its
obligations under any Loan Document to which it is a party, (c) the validity or
enforceability of any of the Loan Documents, (d) the rights and remedies of the
Lenders and the Agent under any of such Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Parent, the Borrower, any
other Loan Party or any other Subsidiary is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.
"Material Plan" means at any time a Benefit Plan or Benefit Plans
having aggregate Unfunded Liabilities in excess of $1,000,000.
"Material Subsidiary" means one or more Subsidiaries (other than the
Borrower) to which more than $25,000,000 of Gross Asset Value is directly or
indirectly attributable.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or
similar security instrument made or to be made by a Person owning an interest in
real estate granting a Lien on such interest in real estate as security for the
payment of Indebtedness.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Negative Pledge" means, with respect to a given asset, any provision
of a document, instrument or agreement (other than any Loan Document) which
prohibits or purports to prohibit the creation of any Lien on such asset as
security for Indebtedness of the Person owning such asset or any other Person.
"Net Proceeds" means with respect to an Equity Issuance by a Person,
the aggregate amount of all cash or the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
I-14
"Non-Core Crown Properties" means the Properties identified on Schedule
1.1.(B).
"Nonrecourse Exceptions" means, with respect to Nonrecourse
Indebtedness, reasonable and customary exceptions for fraud, willful
misrepresentation, misapplication of funds (including misappropriation of
security deposits and failure to apply rents to operating expenses or debt
service), indemnities relating to environmental matters and waste of property
constituting security for such Nonrecourse Indebtedness, post-default interest,
attorney's fees and other costs of collection to the extent not covered by the
value of the property constituting security for such Nonrecourse Indebtedness
and other similar exceptions to nonrecourse liability. Nonrecourse Exceptions
shall also include the contingent liability of a Person in respect of
Nonrecourse Indebtedness of another Person providing for liability arising upon
the occurrence of a Bankruptcy Event with respect to such other Person or the
occurrence of other contingent events such as a violation of a due on sale
clause or a due on finance clause or a violation of special purpose entity
covenants (whether such liability arises under a Guaranty of such Nonrecourse
Indebtedness enforceable only upon the occurrence of such Bankruptcy Event or
such other contingent event, as an obligation to pay to the holder of such
Nonrecourse Indebtedness damages resulting from the occurrence of such
Bankruptcy Event or other contingent event, or otherwise); provided, however,
upon the occurrence of any Bankruptcy Event or other contingent event with
respect to such other Person, or once such liability shall otherwise cease to be
contingent, then such liability shall no longer be considered to be Nonrecourse
Indebtedness.
"Nonrecourse Indebtedness" means, with respect to a Person, (a)
Indebtedness for borrowed money in respect of which recourse for payment is
contractually limited to specific assets of such Person encumbered by a Lien
securing such Indebtedness or (b) if such Person is a Single Asset Entity, any
Indebtedness for borrowed money of such Person. Liability of a Person under (i)
a Guaranty of Nonrecourse Exceptions or (ii) completion guarantees for
Development Properties and Major Redevelopment Properties, to the extent
relating to the Nonrecourse Indebtedness of another Person, shall not, in and of
itself, prevent such liability from being characterized as Nonrecourse
Indebtedness.
"Note" means a Revolving Note or a Swingline Note.
"Notice of Borrowing" means a notice in the form of Exhibit C to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrower's
request for a borrowing of Loans.
"Notice of Continuation" means a notice in the form of Exhibit D to be
delivered to the Agent pursuant to Section 2.9. evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit E to be
delivered to the Agent pursuant to Section 2.10. evidencing the Borrower's
request for the Conversion of a Loan from one Type to another Type.
I-15
"Notice of Swingline Borrowing" means a notice substantially in the
form of Exhibit F to be delivered to the Swingline Lender pursuant to Section
2.3.(b) evidencing the Borrower's request for a Swingline Loan.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities and (c) all
other indebtedness, liabilities, obligations, covenants and duties of the
Borrower owing to the Agent, any Lender or the Swingline Lender of every kind,
nature and description, under or in respect of this Agreement, any of the other
Loan Documents, including, without limitation, the Fees, any other fees payable
under any Loan Document and indemnification obligations, whether direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, and whether or not evidenced by any promissory note.
"Occupancy Rate" means, with respect to a Property at any time, the
ratio, expressed as a percentage, of (a) the net rentable square footage of such
Property actually occupied by tenants paying rent (including each tenant in
occupancy during a free rent period negotiated under the terms of its lease and
space provided to and accepted by a tenant for performance by the tenant of
fit-up work) pursuant to binding leases as to which no monetary default has
occurred and is continuing to (b) the aggregate net rentable square footage of
such Property. When determining the Occupancy Rate of a Property, a tenant will
be deemed to be in occupancy provided such tenant (A) is paying rent to the
extent required under the lease, (B) has taken physical possession of its leased
space, and (C) if not already open for business, the Borrower reasonably
anticipates that such tenant will be open for business within 90 days of the
date such tenant first took possession of such space.
"Off Balance Sheet Liabilities" means, with respect to any Person, (a)
any repurchase obligation or liability of such Person with respect to any
accounts or notes receivable sold, transferred or otherwise disposed of by such
Person, (b) any repurchase obligation or liability of such Person with respect
to property or assets leased by such Person as lessee and (c) all obligations of
such Person under any synthetic lease, tax retention operating lease, off
balance sheet loan or similar off balance sheet financing, if in the case of
this clause (c), the transaction giving rise to such obligation (i) is
considered indebtedness for borrowed money for tax purposes but is classified as
an operating lease or (ii) does not (and is not required to pursuant to GAAP)
appear as a liability on the balance sheet of such Person. The obligations or
liabilities of a Person as lessee under any operating lease shall not be
included within this definition so long as the terms of such operating lease do
not require any payment by or on behalf of such Person at the scheduled
termination date of such operating lease, pursuant to a required purchase by or
on behalf of such Person of the property or assets subject to such operating
lease.
"Operating Real Estate Value" means, as of a given date, the Adjusted
NOI for all Properties (excluding Development Properties and Major Redevelopment
Properties) of the Parent, its Subsidiaries and its Unconsolidated Affiliates
for the four fiscal-quarter period most recently ended divided by 9.00%. For
purposes of determining Operating Real Estate Value (a) Adjusted NOI from
Properties (other than Crown Properties) acquired by the Parent, any Subsidiary
or any Unconsolidated Affiliate during the immediately preceding two fiscal
I-16
quarters of the Parent or disposed of by any such Person during the immediately
preceding fiscal quarter of the Parent, shall be excluded, (b) the calculation
of Adjusted NOI from Properties (excluding Crown Properties) owned by the
Parent, any Subsidiary or any Unconsolidated Affiliate for more than two but
less than four fiscal quarters shall be appropriately annualized, (c) Adjusted
NOI from Non-Core Crown Properties shall be divided by 11.00% rather than 9.00%,
(d) Adjusted NOI from Crown Properties shall be based on the preceding four
calendar quarters, (e) Adjusted NOI from Properties upon which construction is
then in progress and which are Major Redevelopment Properties or Development
Properties shall be excluded and (f) with respect to a Property owned by an
Unconsolidated Affiliate, only the greater of the Parent's (i) Ownership Share
or (ii) Recourse Share of the Adjusted NOI, as applicable, of such Property
shall be used when determining Operating Real Estate Value. If the Parent, the
Borrower or their Subsidiaries own Equity Interests in an Unconsolidated
Affiliate which owns a Property the Adjusted NOI of which has not been excluded
from determinations of Operating Real Estate Value by virtue of the immediately
preceding clause (a), and such Unconsolidated Affiliate then becomes a
Subsidiary as a result of the acquisition by the Parent, the Borrower or their
Subsidiaries of additional Equity Interests or otherwise, the Adjusted NOI for
Properties owned by such Unconsolidated Affiliate which has become a Subsidiary
shall continue to be included in determinations of Operating Real Estate Value
and not be excluded by virtue of the immediately preceding clause (a).
"Ownership Share" means, with respect to any Subsidiary of a Person or
any Unconsolidated Affiliate of a Person, the greater of (a) such Person's
relative nominal direct and indirect ownership interest (expressed as a
percentage) in such Subsidiary or Unconsolidated Affiliate or (b) such Person's
relative direct and indirect economic interest (calculated as a percentage) in
such Subsidiary or Unconsolidated Affiliate determined in accordance with the
applicable provisions of the declaration of trust, articles or certificate of
incorporation, articles of organization, partnership agreement, joint venture
agreement or other applicable organizational document of such Subsidiary or
Unconsolidated Affiliate.
"Parent" has the meaning set forth in the introductory paragraph hereof
and shall include the Parent's successors and permitted assigns.
"Participant" has the meaning given that term in Section 11.5.(b).
"Partnership Agreement" means that certain First Amended and Restated
Agreement of Limited Partnership Agreement of PREIT Associates, L.P. dated as of
September 30, 1997, by and among Pennsylvania Real Estate Investment Trust, as
the general partner and the limited partners whose names are set forth therein,
as amended and in effect on the Effective Date.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means (a) Liens securing taxes, assessments and other
charges or levies imposed by any Governmental Authority (excluding any Lien
imposed pursuant to any of the provisions of ERISA or pursuant to any
Environmental Laws) or the claims of materialmen, mechanics, carriers,
warehousemen or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, which are not at the time required to be paid
or discharged under Section 7.7.; (b) Liens consisting of deposits or pledges
made, in the ordinary course of business, in connection with, or to secure
payment of, obligations under workmen's compensation, unemployment insurance or
similar Applicable Laws; (c) Liens consisting of encumbrances in the nature of
zoning restrictions, easements, and rights or restrictions of record on the use
of real property, which do not materially detract from the value of such
property or impair the use thereof in the business of such Person; (d) the
rights of tenants under leases or subleases not interfering with the ordinary
conduct of business of the Borrower and (e) Liens in favor of the Agent for the
benefit of the Lenders.
I-17
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Post-Default Rate" means, in respect of any principal of any Loan or
any other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to 5.0% plus the Base Rate as in effect from time to time.
"Preferred Dividends" means, for any period and without duplication,
all Restricted Payments paid during such period on Preferred Stock issued by the
Parent or a Subsidiary. Preferred Dividends shall not include dividends or
distributions (a) paid or payable solely in Equity Interests (other than Equity
Interests redeemable at the option of the holder) payable to holders of such
class of Equity Interests; (b) paid or payable to the Parent, the Borrower or
another Subsidiary; or (c) constituting balloon, bullet or similar redemptions
resulting in the redemption of Preferred Stock.
"Preferred Stock" means, with respect to any Person, shares of capital
stock of, or other Equity Interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other Equity Interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"PREIT Contribution Agreement" means that certain Contribution
Agreement dated as of May 13, 2003 by and between the Parent and the Borrower.
"Prepayment Notice" has the meaning given that term in Section 2.15.
"Pricing Certificate" has the meaning given to that term in Section
7.1.(g).
"Principal Office" means ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Property" means a parcel (or group of related parcels) of real
property developed (or which is to be developed) principally for retail,
industrial or residential multi-family use.
I-18
"Pro Rata Share" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
at the time of determination the Commitments have terminated or been reduced to
zero, the "Pro Rata Share" of each Lender shall be the Pro Rata Share of such
Lender in effect immediately prior to such termination or reduction.
"Rating Agencies" means each of Moody's and S&P.
"Recourse Share" means, with respect to any Person, the portion
(calculated as a percentage) of the total Indebtedness of another Person
guaranteed by such Person, or which is otherwise recourse to such Person (other
than Indebtedness consisting of Guarantees which are solely Guarantees of
performance and not of payment and other Guarantees of such Person for
liabilities arising from Nonrecourse Exceptions).
"Register" has the meaning given that term in Section 11.5.(d).
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date (or with respect to any Lender that becomes a
party to this Agreement after the Agreement Date, any change effective after the
date on which such Lender becomes a party hereto) in Applicable Law (including
without limitation, Regulation D of the Board of Governors of the Federal
Reserve System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Requisite Lenders" means, as of any date, Lenders (which shall include
the Lender then acting as Agent) having at least 66-2/3% of the aggregate amount
of the Commitments, or, if the Commitments have been terminated or reduced to
zero, Lenders holding at least 66-2/3% of the principal amount of the Loans and
Letter of Credit Liabilities.
"Reserve for Replacements" means, for any period and with respect to
any Property, an amount equal to (a)(i) the aggregate square footage of all
completed space of such Property times (ii) $0.15 times (b) the number of days
in such period divided by (c) 365. The Properties included in the calculation of
Reserve for Replacements shall not include those Properties or portions thereof
with respect to which or to the extent that a third party (x) owns the
improvements thereon, (y) is a party to a ground lease with the Parent, the
Borrower or a Subsidiary with respect to the land therein and (z) is
contractually obligated to make all repairs and capital improvements and
replacements thereof.
I-19
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any Equity Interest of the Parent or any of
its Subsidiaries now or hereafter outstanding, except a dividend payable to
holders of Equity Interests solely in the form of Equity Interests of the Parent
or any such Subsidiary, as the case may be; (b) any redemption, conversion,
exchange, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares or similar units of any
class of stock or other equity interest of the Parent or any of its Subsidiaries
now or hereafter outstanding; and (c) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to acquire
shares or similar units of any class of stock or other equity interest of the
Parent or any of its Subsidiaries now or hereafter outstanding.
"Revolving Loan" means a loan made by a Lender to the Borrower pursuant
to Section 2.1.(a).
"Revolving Note" means a promissory note of the Borrower substantially
in the form of Exhibit G, payable to the order of a Lender in a principal amount
equal to the amount of such Lender's Commitment as originally in effect and
otherwise duly completed.
"S&P" means Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Secured Indebtedness" means, with respect to a Person as of any given
date and without duplication, (a) the aggregate principal amount of all
Indebtedness of such Person outstanding at such date and that is secured in any
manner by any Lien and (b) Indebtedness of such Person under a Guaranty of
Secured Indebtedness of another Person. In the case of the Parent, shall include
(without duplication) the Parent's Ownership Share of the Secured Indebtedness
of its Unconsolidated Affiliates.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"Single Asset Entity" means a Person (other than an individual) that
(a) only owns a single Property; (b) is engaged only in the business of owning,
developing and/or leasing such Property; and (c) receives substantially all of
its gross revenues from such Property. In addition, if the assets of a Person
consist solely of (i) Equity Interests in one other Single Asset Entity and (ii)
cash and other assets of nominal value incidental to such Person's ownership of
the other Single Asset Entity, such Person shall also be deemed to be a Single
Asset Entity for purposes of this Agreement.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities); and (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature and (c) that the Person has capital not unreasonably small to carry
on its business and all business in which it proposes to be engaged.
I-20
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Substantial Amount" means, at the time of determination thereof, an
amount in excess of 30.0% of total consolidated assets (exclusive of
depreciation) at such time of the Parent and its Subsidiaries determined on a
consolidated basis.
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.3. in an amount up to, but not exceeding
the amount set forth in Section 2.3., as such amount may be reduced from time to
time in accordance with the terms hereof.
"Swingline Lender" means ▇▇▇▇▇ Fargo Bank, National Association,
together with its respective successors and assigns.
"Swingline Loan" means a loan made by the Swingline Lender to the
Borrower pursuant to Section 2.3.(a).
"Swingline Note" means the promissory note of the Borrower
substantially in the form of Exhibit H, payable to the order of the Swingline
Lender in a principal amount equal to the amount of the Swingline Commitment as
originally in effect and otherwise duly completed.
"Swingline Termination Date" means the date which is 7 Business Days
prior to the Termination Date.
"Tangible Net Worth" means, for any Person and as of a given date, such
Person's total consolidated stockholder's equity plus, in the case of the
Parent, increases in accumulated depreciation and amortization occurring after
December 31, 2003, minus (to the extent reflected in determining stockholders'
equity of such Person): (a) the amount of any write-up in the book value of any
assets reflected in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (b) the aggregate of
all amounts appearing on the assets side of any such balance sheet for patents,
patent applications, copyrights, trademarks, trade names, goodwill and other
like assets which would be classified as intangible assets under GAAP, all
determined on a consolidated basis.
I-21
"Taxes" has the meaning given that term in Section 3.10.
"Termination Date" means November 20, 2006 or such later date to which
such date may be extended in accordance with Section 2.14.
"Total Budgeted Cost Until Stabilization" means, with respect to a
Development Property or a Major Redevelopment Property, and at any time, the
aggregate amount of all costs budgeted to be paid, incurred or otherwise
expended or accrued by the Parent, the Borrower, a Subsidiary or an
Unconsolidated Affiliate with respect to such Property to achieve an Occupancy
Rate of 100%, including without limitation, all amounts budgeted with respect to
all of the following: (a) acquisition of land and any related improvements; (b)
a reasonable and appropriate reserve for construction interest; (c) a reasonable
and appropriate operating deficit reserve; (d) tenant improvements; (e) leasing
commissions and infrastructure costs and (f) other hard and soft costs
associated with the development or redevelopment of such Property. With respect
to any Property to be developed in more than one phase, the Total Budgeted Cost
Until Stabilization shall exclude budgeted costs (other than costs relating to
acquisition of land and related improvements) to the extent relating to any
phase for which (i) construction has not yet commenced and (ii) a binding
construction contract has not been entered into by the Parent, the Borrower, any
other Subsidiary or any Unconsolidated Affiliate, as the case may be. The
calculation of Total Budgeted Cost Until Stabilization herein shall be net of
the aggregate sale proceeds of a sale of a pad site within a Development
Property or Major Redevelopment Property that are payable pursuant to a binding
sale contract with a third party approved by the Agent.
"Total Liabilities" means, as to any Person as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on the consolidated balance sheet of such Person as of such date, and
in any event shall include (without duplication): (a) all Indebtedness of such
Person (whether or not Nonrecourse Indebtedness and whether or not secured by a
Lien), including without limitation, Capitalized Lease Obligations and the full
stated amount of undrawn letters of credit issued for the account of such
Person, but excluding (i) letters of credit secured with cash collateral, (ii)
letters of credit issued solely in lieu of a non-payment performance obligation
and (iii) letters of credit securing a refundable obligation under a binding
contract; (b) all accounts payable (including tenant deposits accounted for as
payables but excluding tenant deposits held as restricted cash and not included
in the calculation of Gross Asset Value pursuant to clause (b) of the definition
of such term) and accrued expenses of such Person; (c) all purchase and
repurchase obligations and forward commitments of such Person to the extent such
obligations or commitments are evidenced by a binding purchase agreement
(forward commitments shall include without limitation forward equity commitments
and commitments to purchase properties); (d) all unfunded obligations of such
Person; (e) all lease obligations of such Person (including ground leases) to
the extent required under GAAP to be classified as a liability on the balance
sheet of such Person; (f) all Contingent Obligations and Off Balance Sheet
I-22
Liabilities of such Person; (g) all liabilities of any Unconsolidated Affiliate
of such Person, which liabilities such Person has Guaranteed or is otherwise
obligated on a recourse basis; and (h) the greater of such Person's (i)
Ownership Share or (ii) Recourse Share of the Indebtedness of any Unconsolidated
Affiliate of such Person, including Nonrecourse Indebtedness of such Person. For
purposes of clauses (c) and (d) of this definition, the amount of Total
Liabilities of a Person at any given time in respect of a contract to purchase
or otherwise acquire unimproved or fully developed real property shall be equal
to (i) the total purchase price payable by such Person under the contract if, at
such time, the seller of such real property would be entitled to specifically
enforce the contract against such Person, otherwise and (ii) the aggregate
amount of due diligence deposits, ▇▇▇▇▇▇▇ money payments and other similar
payments made by such Person under the contract which, at such time, would be
subject to forfeiture upon termination of the contract. For purposes of clause
(c) of this definition, the amount of Total Liabilities of a Person at any given
time in respect of a contract to purchase or otherwise acquire real property
being renovated or developed by a third party shall be equal to the maximum
amount reasonably estimated to be payable by such Person to such third party
under a contract between such Person and such third party during the remaining
term of such contract. For purposes of this definition, if the assets of a
Subsidiary of a Person consist solely of Equity Interests in one Unconsolidated
Affiliate of such Person and such Person is not otherwise obligated in respect
of the Indebtedness of such Unconsolidated Affiliate, then only such Person's
Ownership Share of the Indebtedness of such Unconsolidated Affiliate shall be
included as Total Liabilities of such Person. For purposes of determining the
Total Liabilities of the Parent and the Subsidiaries, the amount of any
Indebtedness assumed by the Parent or any Subsidiary at the time of an
acquisition which the Parent is required under GAAP to reflect at fair value on
a balance sheet, shall be equal to outstanding principal balance of such
Indebtedness and not the fair value of such Indebtedness as would be reflected
on the Parent's balance sheet.
"Trust Agreement" means that certain Pennsylvania Real Estate
Investment Trust Trust Agreement, as amended and restated as of December 16,
1997, among the trustees a party thereto, as amended and in effect on the
Effective Date.
"Type" with respect to any Revolving Loan, refers to whether such Loan
is a LIBOR Loan or a Base Rate Loan.
"Unconsolidated Affiliate" means, with respect to any Person, any other
Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting
and whose financial results would not be consolidated in accordance with GAAP
with the financial results of such Person on the consolidated financial
statements of such Person.
"Unfunded Liabilities" means, with respect to any Benefit Plan at any
time, the amount (if any) by which (a) the value of all benefit liabilities
under such Benefit Plan, determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA,
exceeds (b) the fair market value of all Benefit Plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Benefit Plan, but only to the extent that such excess represents a
potential liability of a member of the ERISA Group to the PBGC or any other
Person under Title IV of ERISA.
I-23
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association, and its
successors and permitted assigns.
"Wholly Owned Subsidiary" means any Subsidiary of a Person all of the
equity securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) of which are at the time directly or
indirectly owned or controlled by such Person or one or more other Subsidiaries
of such Person or by such Person and one or more other Subsidiaries of such
Person. In the case of the Parent, the term "Wholly Owned Subsidiary" shall also
include any Subsidiary of the Parent (a) of which the Parent owns or controls,
directly, or indirectly through one or more other Subsidiaries, substantially
all of the equity securities or other ownership interests and (b) over which the
Parent possesses sufficient control to warrant treating such Subsidiary as if it
were otherwise a Wholly Owned Subsidiary, in each case, as determined by the
Agent.
I-24
Exhibit 10.1
SCHEDULE 2.2.(a)
Existing Letters of Credit
--------------------------
--------------------------------------------------------------------------------
L/C Number L/C Amount Issue Date Expiry Date Beneficiary
--------------------------------------------------------------------------------
NZS380916 $250,000.00 12/29/2000 12/31/2003 Lawyers Title Insurance Co.
--------------------------------------------------------------------------------
NZS425214 $250,000.00 12/21/2001 11/28/2003 New Garden Properties, L.P.
--------------------------------------------------------------------------------