Exhibit 10.37
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CREDIT AGREEMENT
Dated as of November 1, 2001
by and among
PUBLIC STORAGE, INC.,
as Borrower
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 13.5.,
as Lenders
FIRST UNION NATIONAL BANK,
as Syndication Agent,
Each of
SALOMON SMITH BARNEY INC.,
CREDIT SUISSE FIRST BOSTON
and
BANKERS TRUST COMPANY,
as Documentation Agent,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Agent
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THIS CREDIT AGREEMENT dated as of November 1, 2001 by and among Public
Storage, Inc., a corporation organized under the laws of the State of California
(the "Borrower"), each of the financial institutions initially a signatory
hereto together with their assignees pursuant to Section 13.5.(d), FIRST UNION
NATIONAL BANK, as Syndication Agent (the "Syndication Agent"), each of SALOMON
SMITH BARNEY INC., CREDIT SUISSE FIRST BOSTON and BANKERS TRUST COMPANY (each a
"Documentation Agent"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent.
WHEREAS, the Agent and the Lenders desire to make available to the
Borrower a revolving credit facility in the initial amount of $200,000,000 which
may be increased to $300,000,000, and which will include a $70,000,000
competitive bid subfacility, a $50,000,000 swingline subfacility and a
$5,000,000 letter of credit subfacility, all 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 following terms
shall have the following meanings for the purposes of this Agreement:
"Absolute Rate" has the meaning given that term in Section
2.2.(c)(ii)(C).
"Absolute Rate Auction" means a solicitation of Bid Rate Quotes setting
forth Absolute Rates pursuant to Section 2.2.
"Absolute Rate Loan" means a Bid Rate Loan the interest rate on which
is determined on the basis of an Absolute Rate pursuant to an Absolute Rate
Auction.
"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 5.1.
"Affected Lender" has the meaning given that term in Section 5.6.
"Affiliate" means any Person (other than the Agent or any Lender)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower. 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 of such Person.
In no event shall the Agent or any Lender be deemed to be an Affiliate of the
Borrower.
"Agent" means Wells Fargo Bank, National Association, as contractual
representative for the Lenders under the terms of this Agreement, and any of its
successors.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Facility Fee" means the percentage set forth in the table
below corresponding to the Level at which the "Applicable Margin" is determined
in accordance with the definition thereof:
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Level Facility Fee
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1 0.20%
2 0.20%
3 0.20%
4 0.25%
5 0.30%
Any change in the applicable Level at which the Applicable Margin is
determined shall result in a corresponding and simultaneous change in the
Applicable Facility Fee.
"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 in the table
below corresponding to the range into which the Borrower's Credit Rating then
falls. Any change in the Borrower's Credit Rating which would cause it to move
to a different range in the table shall be effective as of the first day of the
calendar month immediately following the date on which such change occurs. If
only one Rating Agency has issued a Credit Rating, then the Applicable Margin
will be determined based on the Level corresponding to such Credit Rating. If
two Rating Agencies have issued Credit Ratings and such Credit Ratings
correspond to different Levels in the table resulting in different Applicable
Margin determinations, the Applicable Margin will be determined based on the
Level corresponding to the lower of the two Credit Ratings. During any period
that the Borrower receives more than two Credit Ratings (i) if at least two of
such Credit Ratings are equivalent, then the Applicable Margin will be
determined based on the Level corresponding to such equivalent Credit Ratings
and (ii) if none of such Credit Ratings is equivalent, then the Applicable
Margin shall equal the average of the Applicable Margins as determined in
accordance with the two lowest of such Credit Ratings; provided that one of such
Credit Ratings has been issued by either S&P or Moody's and such Credit Rating
is an Investment Grade Rating. If the Applicable Margin cannot be determined in
accordance with any of the three immediately preceding sentences, then the
Applicable Margin shall be determined based on Level 5.
Applicable Margin
Borrower's Credit Rating Applicable Margin Margin for
Level (S&P/Moody's or equivalent) for LIBOR Loans Base Rate Loans
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1 A-/A3 or higher 0.45% 0%
2 BBB+/Baa1 0.60% 0%
3 BBB/Baa2 0.70% 0%
4 BBB-/Baa3 0.90% 0%
5 Lower than BBB-/Baa3 1.50% 0.25%
"Assignee" has the meaning given that term in Section 13.5.(d).
"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.
"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 or Term Loan bearing interest
at a rate based on the Base Rate.
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"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Bid Rate Borrowing" has the meaning given that term in Section
2.2.(b).
"Bid Rate Loan" means a loan made by a Lender under Section 2.2.
"Bid Rate Loan Limit" means an amount equal to $70,000,000, as such
amount may be reduced from time to time in accordance with the terms hereof.
"Bid Rate Note" means a promissory note of the Borrower substantially
in the form of Exhibit B, payable to the order of a Lender and otherwise duly
completed.
"Bid Rate Quote" means an offer in accordance with Section 2.2.(c) by a
Lender to make a Bid Rate Loan with one single specified interest rate.
"Bid Rate Quote Request" has the meaning given that term in Section
2.2.(b).
"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 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 EBITDA" means, with respect to a Person and as of a given
date, (a) such Person's EBITDA for the fiscal quarter most recently ended times
(b) 4 and divided by (c) 10.0%. In determining Capitalized EBITDA, EBITDA
attributable to real estate properties either acquired or disposed of by such
Person during such fiscal quarter shall be disregarded; provided, however,
EBITDA attributable to real estate properties acquired by the Borrower or any of
its Subsidiaries during such fiscal quarter may, at the Borrower's option, be
included in determinations of the Capitalized EBITDA of the Borrower.
"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) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by an
agency thereof and backed by the full faith and credit of the United States of
America, in each case maturing within one year after the date of acquisition
thereof, (b) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof, maturing within 90 days after the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from S&P and Moody's (or, if at any time either of the foregoing
shall not be rating such obligations, then from such other nationally recognized
rating services acceptable to the Agent) and not listed for possible down-grade
in Credit Watch published by S&P; (c) commercial paper, other than commercial
paper issued by any Loan Party or any of their respective Affiliates, maturing
no more than 90 days after the date of creation thereof and, at the time of
acquisition, having a rating of at least A-2 or P-2 from either S&P or Moody's
(or, if at any time neither S&P nor Moody's shall be rating such obligations,
then the highest rating from such other nationally recognized rating services
acceptable to the Agent); (d) domestic certificates of deposit, time deposits
and bankers' acceptances which mature within one year after the date of
acquisition thereof; and (e) overnight securities, repurchase agreements, or
reverse repurchase agreements secured by any of the foregoing types of
Securities or debt instruments issued, in each case, by (i) any commercial bank
organized under the laws of the United States of America or any state thereof or
the District of Columbia or Canada having combined capital and surplus of not
less than $250,000,000 or (ii) any Lender.
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"Change of Control" means the occurrence of any of the following
events: (a) the Borrower is merged or consolidated with or into another Person
with the effect that the common stockholders of Borrower immediately prior to
such merger or consolidation hold less than seventy-five percent (75%) of the
ordinary voting power of the outstanding securities of the survivor of such
merger or the Person resulting from such consolidation; (b) a change in the
composition of the Board of Directors of the Borrower after the Agreement Date
as a result of which fewer than a majority of the incumbent directors are
directors who either (i) had been directors of the Borrower 24 months prior to
such change, or (ii) were elected, or nominated for election to the Board of
Directors with the affirmative votes of a majority of the directors who had been
directors of the Borrower 24 months prior to such change and who were still in
office at the time of the election or nomination; or (c) any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other
than any Excluded Shareholder, 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 25.0% of the total
voting power of the then outstanding voting stock of the Borrower.
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to issue (in the case of the Agent)
or participate in (in the case of the other Lenders) Letters of Credit pursuant
to Section 2.3.(a) and 2.3.(i) respectively, in an amount up to, but not
exceeding, (but in the case of the Agent excluding the aggregate amount of
participations in the Letters of Credit held by other Lenders) 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 reduced from time to time pursuant to Section 2.13. and or
otherwise pursuant to the terms of this Agreement or as appropriate to reflect
any assignments to or by such Lender effected in accordance with Section 13.5.
"Commitment Percentage" means, with respect to any Lender, the
percentage obtained by dividing (a) the amount of such Lender's Commitment by
(b) the aggregate amount of Commitments of all the Lenders, or, if the
Commitments have been terminated (whether pursuant to Section 11.2. or
otherwise), the percentage obtained by dividing (i) the aggregate unpaid
principal amount of Loans and Letter of Credit Liabilities owing to such Lender
by (ii) the aggregate unpaid principal amount of all Loans and Letter of Credit
Liabilities.
"Compliance Certificate" has the meaning given that term in Section
9.3.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.10.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Revolving Loan of one Type into a Revolving Loan of another Type pursuant
to Section 2.11.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Revolving Loan, (c) the
Continuation of a LIBOR Loan and (d) the issuance of a Letter of Credit.
"Credit Rating" means the lowest rating or implied rating assigned and
published by a Rating Agency to each series of rated senior unsecured long term
indebtedness of the Borrower.
"Default" means any of the events specified in Section 11.1., 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 3.10.
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"Derivatives Contract" means any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the
foregoing, the term "Derivatives Contract" includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement, including any such
obligations or liabilities under any such master agreement.
"Derivatives Termination Value" means, in respect of any one or more
Derivatives Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Derivatives Contracts, (a) for
any date on or after the date such Derivatives Contracts have been closed out
and termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the mark-to-market value(s) for such Derivatives
Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Derivatives
Contracts (which may include the Agent or any Lender).
"Designated Lender" means a special purpose corporation which is an
affiliate of, or sponsored by, a Lender, that is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial paper rated
at least P-1 (or the then equivalent grade) by Moody's or A-1 (or the then
equivalent grade) by S&P that, in either case, (a) is organized under the laws
of the United States of America or any state thereof, (b) shall have become a
party to this Agreement pursuant to Section 13.5.(f) and (c) is not otherwise a
Lender.
"Designated Lender Note" means a Bid Rate Note of the Borrower
evidencing the obligation of the Borrower to repay Bid Rate Loans made by a
Designated Lender.
"Designating Lender" has the meaning given that term in Section
13.5.(f).
"Designation Agreement" means a Designation Agreement between a Lender
and a Designated Lender and accepted by the Agent, substantially in the form of
Exhibit C or such other form as may be agreed to by such Lender, such Designated
Lender and the Agent.
"Development Property" means a Property currently under development
that has not yet achieved an Occupancy Rate such that the Property is achieving
breakeven or positive operating cash flow, or on which the improvements (other
than tenant improvements on unoccupied space) related to the development have
not been completed. The term "Development Property" shall include real property
of the type described in the immediately preceding sentence to be (but not yet)
acquired by the Borrower, any Subsidiary or any Unconsolidated Affiliate upon
completion of construction pursuant to a contract in which the seller of such
real property is required to develop or renovate prior to, and as a condition
precedent to, such acquisition.
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any period and without
duplication, net earnings (loss) of such Person for such period (including
equity in net earnings or net loss of Unconsolidated Affiliates) excluding 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; (b) interest expense of such
Person for such period; (c) income tax expense of such Person in respect of such
period; and (d) extraordinary and nonrecurring gains and losses of such Person
for such period, including without limitation, gains and losses from the sale of
assets, write-offs and forgiveness of debt.
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"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 6.1.(a) shall
have been fulfilled or waived in writing by the Agent.
"Eligible Assignee" means any Person who is: (i) currently a Lender;
(ii) a commercial bank, trust company, insurance company, investment bank or
pension fund organized under the laws of the United States of America, or any
state thereof, and having total assets in excess of $5,000,000,000; (iii) a
savings and loan association or savings bank organized under the laws of the
United States of America, or any state thereof, and having a tangible net worth
of at least $500,000,000; or (iv) a commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development ("OECD"), 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 Person is not currently a Lender, such Person's senior unsecured long term
indebtedness must be rated BBB or higher by S&P, Baa2 or higher by Moody's, or
the equivalent or higher of either such rating by another Rating Agency
acceptable to the Agent.
"Eligible Property" means a Property which satisfies all of the
following requirements: (a) such Property is owned in fee simple by the Borrower
or a Wholly Owned Subsidiary and is located in a State of the United States of
America or in the District of Columbia; (b) regardless of whether such Property
is owned by the Borrower or a Subsidiary, the Borrower has the right directly,
or indirectly through a Subsidiary, to take the following actions without the
need to obtain the consent of any Person: (i) to create Lien on such Property as
security for Indebtedness of the Borrower or such Subsidiary, as applicable and
(ii) to sell, transfer or otherwise dispose of such Property; (c) neither such
Property, nor if such Property is owned by a Subsidiary, any of the Borrower's
direct or indirect ownership interest in such Subsidiary, is subject to (i) any
Lien other than Permitted Liens or (ii) any Negative Pledge; (d) the average
Occupancy Rate of such Property for the period of twelve calendar months most
recently ended equals or exceeds 80.0%; (e) such Property is free of all
structural defects, title defects, environmental conditions or other adverse
matters except for defects, conditions or matters individually or collectively
which are not material to the profitable operation of such Property; and (f) the
Borrower has obtained a "Phase I" environmental assessment or other appropriate
environmental assessment with respect to such Property, and such assessment does
not indicate the existence of any condition that has, or could reasonably
expected to have, a materially adverse effect on the condition, fair market
value or net operating income of such Property.
"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.; Solid Waste Disposal Act, 42 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.
"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.
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"Event of Default" means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, together with all rules and regulations issued thereunder.
"Excluded Shareholder" means (a) any Hughes Family Member and (b) any
Person eligible to file a statement on Schedule 13G pursuant to Rule 13d-1(b)(1)
of the Exchange Act.
"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. Except as otherwise provided herein,
Fair Market Value shall be determined by the Board of Directors of the Borrower
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 or treasurer of
the Borrower 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.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"Fixed Charges" means, with respect to a Person and for a given period,
the sum of (a) the Interest Expense of such Person for such period, plus (b) the
aggregate of all scheduled principal payments on Indebtedness made by such
Person during such period (excluding balloon, bullet or similar payments of
principal due upon the stated maturity of Indebtedness), plus (c) the aggregate
of all dividends paid or accrued by such Person on any Preferred Stock during
such period, plus (d) the Reserve for Replacements.
"Funds From Operations" means the following, determined on a
consolidated basis for the Borrower and its Subsidiaries: net income (loss)
before (a) gain (loss) on early extinguishment of debt, (b) minority interest in
income and (c) gain (loss) on disposition of real estate, adjusted as follows:
(i) plus depreciation and amortization related to real estate assets (including
the Borrower's pro-rata share of depreciation and amortization of unconsolidated
equity interests and amortization of assets acquired in a merger, including
property management agreements and goodwill), and (ii) less Funds From
Operations attributable to minority interests.
"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,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"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.
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"Gross Asset Value" means, at a given time, the sum (without
duplication) of (a) Capitalized EBITDA of the Borrower and its Subsidiaries
determined on a consolidated basis, excluding EBITDA attributable to Development
Properties, plus (b) all cash and cash equivalents (excluding tenant deposits
and other cash and cash equivalents the disposition of which is restricted) of
the Borrower and its Subsidiaries at such time, plus (c) the current book value
of all real property of the Borrower and its Subsidiaries upon which
construction is then in progress and all land held for development; provided,
however, any land which is not appropriately entitled or zoned to permit the use
of such Property a self-storage facility shall only be included at 50% of book
value, plus (d) with respect to each Unconsolidated Affiliate of the Borrower,
the Borrower's respective Ownership Share of (i) the Capitalized EBITDA of each
such Unconsolidated Affiliate and (ii) the current book values of all real
property of each such Unconsolidated Affiliate upon which construction is in
progress, plus (e) at the Borrower's option, the purchase price paid by the
Borrower or any Subsidiary (less any amounts paid to the Borrower 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 Borrower or such Subsidiary during the immediately
preceding fiscal quarter of the Borrower, plus (f) the contractual purchase
price of Properties of the Borrower 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 of the Borrower. No more than 10.0% of the
Gross Asset Value may be attributable to the current book value of land held for
development.
"Guarantor" means any Person that is party to the Guaranty as a
"Guarantor".
"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 6.1.(a) and substantially in the form
of Exhibit D.
"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,
"TCLP" toxicity, or "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; and (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Hughes Family Member" means any of the following: (a) B. Wayne Hughes,
his spouse, his children (natural or adopted) and the children (natural or
adopted) of his children; or (b) any foundation, trust, partnership, corporation
or other Person controlled by any of the individuals referred to in clause (a).
-8-
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) all
obligations of such Person in respect of money borrowed; (b) all 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) Capitalized Lease Obligations of such Person; (d) all
reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment); (e) all
Off Balance Sheet Liabilities of such Person; (f) net obligations under any
Derivative Contract in an amount equal to the Derivatives Termination Value
thereof; and (g) all Indebtedness of other Persons which (i) such Person has
Guaranteed or is otherwise recourse to such Person or (ii) is secured by a Lien
on any property of such Person.
"Intellectual Property" has the meaning given that term in Section
7.1.(s).
"Interest Expense" means, with respect to a Person and for any period,
(a) all paid, accrued or capitalized interest expense (including, without
limitation, capitalized interest expense (other than capitalized interest funded
from a construction loan interest reserve account held by another lender and not
included in the calculation of cash for balance sheet reporting purposes) and
interest expense attributable to Capitalized Lease Obligations) 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) such Person's Ownership Share of all paid, accrued
or capitalized interest expense for such period of Unconsolidated Affiliates of
such Person.
"Interest Period" means,
(a) with respect to any LIBOR Loan, each period commencing on the date
such LIBOR Loan is made or the last day of the next preceding Interest Period
for such Loan and ending on the numerically corresponding day in the first,
second, third or sixth calendar month thereafter, as the Borrower may select in
a Notice of Borrowing, Notice of Continuation or Notice of Conversion, as the
case may be, except that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month;
and
(b) with respect to any Absolute Rate Loan or LIBOR Margin Loan, the
period commencing on the date such Loan is made and ending on the date 30, 60,
90 or 180 days thereafter.
Notwithstanding the foregoing: (i) if any Interest Period for a Revolving Loan
or a Bid Rate Loan would otherwise end after the Revolving Credit Termination
Date, such Interest Period shall end on the Revolving Credit Termination Date;
(ii) if any Interest Period in respect of a Term Loan would otherwise end after
the Termination Date, such Interest Period shall end on the Termination Date;
(iii) each Interest Period that would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, if such next
succeeding Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); and (iv) no Interest Period for any Loan shall have a
duration of less than one month and, if the Interest Period for a Loan would
otherwise be a shorter period, such Loan shall not be available hereunder for
such period.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
Derivatives Contract 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 Moody's for the purpose of protecting against fluctuations in interest
rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
-9-
"Investment" means, with respect to any Person, any acquisition or
investment (whether or not of a controlling interest) by such Person, whether by
means of (a) the purchase or other acquisition of any Equity Interest in another
Person, (b) a loan, advance or extension of credit to, capital contribution to,
Guaranty of Indebtedness of, or purchase or other acquisition of any
Indebtedness of, another Person, including any partnership or joint venture
interest in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute the business or a division or operating unit of another Person. A any
commitment or option to make an Investment in any other Person shall constitute
an Investment. Except as expressly provided otherwise, for purposes of
determining compliance with any covenant contained in a Loan Document, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"Investment Grade Rating" means a Credit Rating of BBB- or higher by
S&P, Baa3 or higher by Moody's, or the equivalent or higher of either such
rating by another Rating Agency.
"L/C Commitment Amount" equals an amount equal to $5,000,000 as such
amount may be reduced from time to time in accordance with the terms hereof.
"Lender" means each financial institution from time to time party
hereto as a "Lender" or a "Designated Lender," together with its respective
successors and assigns, and, as the context requires, includes the Swingline
Lender. The term "Lender" shall exclude each Designated Lender when used in
reference to any Loan other than a Bid Rate Loan, the Commitments or terms
relating to any Loan other than a Bid Rate Loan and the Commitments and shall
further exclude each Designated Lender for all other purposes hereunder except
that any Designated Lender which funds a Bid Rate Loan shall, subject to Section
13.5.(f), have the rights (including the rights given to a Lender contained in
Sections 13.2. and 13.9.) and obligations of a Lender associated with holding
such Bid Rate Loan.
"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 given that term in Section 2.3.(a).
"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.
"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 Agent in its capacity as such) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest under Section 2.3.(i) in the related Letter of Credit,
and the 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 Agent of their
participation interests under such Section.
-10-
"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 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 absence of demonstrable error, be conclusive and binding.
"LIBOR Auction" means a solicitation of Bid Rate Quotes setting forth
LIBOR Margins based on LIBOR pursuant to Section 2.2.
"LIBOR Loan" means a Revolving Loan or Term Loan bearing interest at a
rate based on LIBOR.
"LIBOR Margin" shall have the meaning assigned to such term in Section
2.2.(c)(ii)(D).
"LIBOR Margin Loan" means a Bid Rate Loan the interest rate on which is
determined on the basis of LIBOR pursuant to a LIBOR Auction.
"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
UCC or its equivalent in any jurisdiction; and (d) any agreement by such Person
to grant, give or otherwise convey any of the foregoing.
"Loan" means a Revolving Loan, a Term Loan, a Bid Rate Loan or a
Swingline Loan.
"Loan Document" means this Agreement, each Note, each Letter of Credit
Document 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, each other Person who
guarantees all or a portion of the Obligations and/or who pledges any collateral
to secure all or a portion of the Obligations. Schedule 1.1. sets forth the Loan
Parties in addition to the Borrower as of the Agreement Date.
"Majority Lenders" means, as of any date, Lenders whose combined
Commitment Percentages equal or exceed 51.0%.
"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, (b)
the ability of the Borrower or any other Loan Party 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 the 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 Borrower, any Subsidiary
or any other Loan Party is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could have a Material
Adverse Effect.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $2,500,000.
-11-
"Maximum Availability" means, at any time, an amount equal to the
positive difference, if any, of (a) 50.0% of the Unencumbered Pool Value minus
(b) all Unsecured Liabilities (other than the Loans and the Letter of Credit
Liabilities) of the Borrower and its Subsidiaries determined on a consolidated
basis.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or
similar security instrument made by a Person owning an interest in real property
granting a Lien on such interest in real property as security for the payment of
Indebtedness of such Person.
"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 Operating Income" means, for any Property and for a given period,
the sum (without duplication) of (a) rents and other revenues earned in the
ordinary course from such Property (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 the like, 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 its Subsidiaries and any property management fees) minus (c) the
Reserve for Replacements for such Property for such period minus (d) the greater
of (i) the actual property management fee paid during such period with respect
to such Property and (ii) an imputed management fee in an amount equal to 6.0%
of the gross revenues for such Property for such period, all as determined in
accordance with GAAP.
"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.
"New Guarantor" has the meaning given that term in Section 8.14.
"Non-Guarantor Entity" means: (a) any Subsidiary that is not required
to become a party to the Guaranty under Section 8.14.(a); (b) any Unconsolidated
Affiliate of the Borrower; and (c) any other Affiliate of the Borrower in which
the Borrower holds an Investment.
"Nonrecourse Indebtedness" means, with respect to a Person,
Indebtedness for borrowed money in respect of which recourse for payment (except
for customary exceptions for fraud, misapplication of funds, environmental
indemnities, and other similar exceptions to recourse liability in a form
reasonably acceptable to the Agent) is contractually limited to specific assets
of such Person encumbered by a Lien securing such Indebtedness.
"Note" means a Revolving Note, a Bid Rate Note or the Swingline Note.
"Notice of Borrowing" means a notice in the form of Exhibit E to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrower's
request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit F to be
delivered to the Agent pursuant to Section 2.10. evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
-12-
"Notice of Conversion" means a notice in the form of Exhibit G to be
delivered to the Agent pursuant to Section 2.11. evidencing the Borrower's
request for the Conversion of a Revolving Loan from one Type to another Type.
"Notice of Swingline Borrowing" means a notice substantially in the
form of Exhibit H to be delivered to the Swingline Lender pursuant to Section
2.4.(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 or any of the other Loan Parties owing to the Agent or any Lender of
every kind, nature and description, under or in respect of this Agreement or any
of the other Loan Documents, including, without limitation, the Fees 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 pursuant to binding leases as
to which no default exists to (b) the aggregate net rentable square footage of
such Property.
"Off Balance Sheet Liabilities" means, with respect to any Person, (a)
any repurchase obligation or liability, contingent or otherwise, 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,
contingent or otherwise, of such Person with respect to property or assets
leased by such Person as lessee and (c) all obligations, contingent or
otherwise, of such Person under any synthetic lease, tax retention operating
lease, off balance sheet loan or similar off balance sheet financing if 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.
"Ownership Share" means, with respect to any Subsidiary of a Person
(other than a Wholly Owned Subsidiary) 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) subject to compliance with Section 9.4.(q), 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.
"Participant" has the meaning given that term in Section 13.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means, with respect to any asset or property of a
Person, (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 8.6.;
(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; and (d) the rights of tenants under
leases or subleases not interfering with the ordinary conduct of business of
such Person and (e) Liens in favor of the Agent for the benefit of the Lenders.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
-13-
"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.
"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 five percent (5.0%) plus the Base Rate as in effect from time to
time.
"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.
"Property" means a parcel (or group of related parcels) of real
property developed (or to be developed) for use as storage facility either as a
mini-warehouse or combination mini-warehouse and central warehouse for container
storage.
"Property Management Agreements" means, collectively, all agreements
entered into by the Borrower or any other Loan Party pursuant to which the
Borrower or such other Loan Party engages a Person to advise it with respect to
the management of a given Property.
"Rating Agency" means S&P, Moody's or Fitch, Inc. Other nationally
recognized securities rating agencies selected by the Borrower shall be "Rating
Agencies" only upon written approval by the Agent.
"Recurring Capital Expenditures" means capital expenditures made in
respect of a Property for maintenance of such Property and replacement of items
due to ordinary wear and tear including, but not limited to, expenditures made
for maintenance or replacement of carpeting, roofing materials, mechanical
systems, electrical systems and other structural systems and expenditures
relating to tenant improvements and leasing commissions. "Recurring Capital
Expenditures" shall not include any of the following: (a) improvements to the
appearance of such Property or any other major upgrade or renovation of such
Property not necessary for proper maintenance or marketability of such Property;
(b) capital expenditures for seismic upgrades; or (c) capital expenditures for
deferred maintenance for such Property existing at the time such Property was
acquired by the Borrower or a Subsidiary.
"Register" has the meaning given that term in Section 13.5.(e).
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date 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 must include
the Lender then acting as Agent) whose combined Commitment Percentages equal or
exceed 66-2/3%.
-14-
"Reserve for Replacements" means, for any period and with respect to
any Property, an amount equal to (a) the aggregate net rentable square footage
of all completed space of such Property times (b) the Reserve Amount times (c)
the number of days such Property was owned in such period divided by (d) 365. If
the term Reserve for Replacements is used without reference to any specific
Property, then it shall be determined on an aggregate basis with respect to all
Properties and a proportionate share of all real property of all Unconsolidated
Affiliates. For purposes of this definition, the term "Reserve Amount" means an
amount equal to (i) $0.45 for any portion of a period occurring in any calendar
year prior to 2003 and (ii) during any portion of a period occurring in a
calendar year following 2002, an amount equal to $0.45 increased by 5.0% for
each calendar year following 2002.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock or other
equity interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class; (b) any redemption, conversion, exchange,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock or other equity
interest of the Borrower or any of its Subsidiaries now or hereafter
outstanding; (c) any payment or prepayment of principal of, premium, if any, or
interest on, redemption, conversion, exchange, purchase, retirement, defeasance,
sinking fund or similar payment with respect to, any Subordinated Debt; and (d)
any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of stock of the
Borrower or any of its Subsidiaries now or hereafter outstanding.
"Revolving Credit Termination Date" means October 31, 2004, or such
later date to which such date may be extended in accordance with Section 2.14.
"Revolving Loan" means a loan made by a Lender to the Borrower pursuant
to Section 2.1.(a).
"Revolving Note" has the meaning given that term in Section 2.12.
"Secured Indebtedness" means, with respect to any Person, (a) all
Indebtedness of such Person that is secured in any manner by any Lien on any
property plus (b) such Person's Ownership Share of the Secured Indebtedness of
any of such Person's Unconsolidated Affiliates.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
"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); (b) such Person
is able to pay its debts or other obligations in the ordinary course as they
mature; and (c) such Person has capital not unreasonably small to carry on its
business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc.
"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.
"Subordinated Debt" means Indebtedness for money borrowed of the
Borrower or any of its Subsidiaries that is subordinated in right of payment and
otherwise to the Loans and the other Obligations in a manner satisfactory to the
Agent in its sole and absolute discretion.
"Subsidiary" means, for any Person, any corporation, partnership,
limited liability company 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, limited liability
company 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.
-15-
"Substantial Amount" means, at the time of determination thereof, an
amount in excess of 10.0% of total assets (exclusive of depreciation) at such
time of the Borrower and its Subsidiaries determined on a consolidated basis.
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.4. in an amount up to, but not exceeding,
$50,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"Swingline Lender" means Wells 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 2.4.(a).
"Swingline Note" means a promissory note of the Borrower substantially
in the form of Exhibit I, 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 Revolving Credit Termination Date.
"Tangible Net Worth" means, for any Person and as of a given date, such
Person's total stockholder's equity plus, in the case of the Borrower, (i)
accumulated depreciation and amortization and (ii) minority interests in the
Borrower, 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 asset 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.
"Taxes" has the meaning given that term in Section 3.11.
"Term Loan" has the meaning given that term in Section 2.15.
"Termination Date" means the date one year after the Revolving Credit
Termination Date.
"Total Budgeted Cost" means, with respect to a Development Property,
and at any time, the aggregate amount of all costs budgeted to be paid, incurred
or otherwise expended or accrued by the Borrower, a Subsidiary or an
Unconsolidated Affiliate with respect to such Property to achieve an Occupancy
Rate such that the Property is achieving breakeven or positive operating cash
flow, 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 (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 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 Borrower, any Subsidiary or any Unconsolidated Affiliate, as the case may
be.
"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 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; (b) all accounts
payable 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 (i) forward equity
commitments and (ii) commitments to purchase any real property under
development, redevelopment or renovation); (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 of such Person including,
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without limitation, all Guarantees of Indebtedness by 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; (h)
such Person's Ownership Share of the Indebtedness of any Unconsolidated
Affiliate of such Person, including Nonrecourse Indebtedness of such Person; and
(i) in the case of the Borrower, obligations in respect of preferred partnership
units or other preferred Equity Interest issued by any Subsidiary (excluding
obligations in respect of any such preferred Equity Interests beneficially owned
by the Borrower or any Subsidiary). 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 (x) a contract to purchase or otherwise acquire unimproved or
developed real property shall be equal to 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, and (y) a contract relating to the acquisition of real property which
the seller is required to develop or renovate prior to, and as a condition
precedent to, such acquisition, shall equal the maximum amount reasonably
estimated to be payable by such Person under the contract assuming performance
by the seller of its obligations under the contract, which amount shall include,
without limitation, any amounts payable after consummation of such acquisition
which may based on certain performance levels or other related criteria.
"Type" with respect to any Revolving Loan or Term Loan, refers to
whether such Loan is a LIBOR Loan or a Base Rate Loan, or in the case of a Bid
Rate Loan only, refers to whether such Loan is an Absolute Rate Loan or a LIBOR
Margin Loan.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"Unconsolidated Affiliate" shall mean, 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 under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person.
"Unencumbered NOI" means, for any period, the aggregate Net Operating
Income for such period of Unencumbered Pool Properties and all other Properties
which satisfy all requirements contained in the definition of Eligible Property
other than the requirements contained in clauses (d) and (e) thereof.
"Unencumbered Pool Certificate" means a report, certified by the chief
financial officer or treasurer of the Borrower, substantially in the form of
Exhibit J, setting forth the calculations required to establish the Unencumbered
Pool Values of each Unencumbered Pool Property as of a specified date, all in
form and detail satisfactory to the Agent.
"Unencumbered Pool Properties" means those Eligible Properties that,
pursuant to the terms of this Agreement, are to be included when calculating the
Maximum Availability. A Property shall cease to be a Unencumbered Pool Property
if such Property shall cease to be an Eligible Property.
"Unencumbered Pool Value" means (a) the Net Operating Income of each
Unencumbered Pool Property for the fiscal quarter most recently ended times (b)
4 and divided by (c) 10.0%. To the extent that Properties located in any one
State of the United States of America (in the case of California, each of
northern and southern California shall be considered separate states for
purposes of this definition) or in the District of Columbia would, in the
aggregate, account for more than 40.0% of Unencumbered Pool Value, such excess
shall be excluded.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
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 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 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.
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"Unsecured Liabilities" means, as to any Person as of a given date, the
sum of the following (without duplication): (a) all liabilities which would, in
conformity with GAAP, be properly classified as a liability on the balance sheet
of such Person as at such date; plus (b) all Indebtedness of such Person; minus
(c) all Secured Indebtedness of such Person.
"Wells Fargo" means Wells Fargo Bank, National Association, and its
successors and permitted assigns.
"Wholly Owned Subsidiary" means any Subsidiary of a Person which all of
the equity securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) 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 Borrower, the term "Wholly Owned Subsidiary" shall
also include any Subsidiary of the Borrower (a) of which the Borrower owns or
controls, directly, or indirectly through one or more other Subsidiaries, at
least 95% of the equity securities or other ownership interests of such
Subsidiary and (b) the remaining the equity securities or other ownership
interests of such Subsidiary are owned by Hughes Family Members.
Section 1.2. General; References to San Francisco Time.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP 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 or predecessor 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 Borrower 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. Revolving Loans.
(a) GENERALLY. Subject to the terms and conditions hereof, including
without limitation, Section 2.18., during the period from the Effective Date to
but excluding the Revolving Credit Termination Date, each Lender severally and
not jointly agrees to make Revolving Loans to the Borrower in an aggregate
principal amount at any one time outstanding up to, but not to exceed, the
lesser of (i) the amount of such Lender's Commitment and (ii) such Lender's
Commitment Percentage of the Maximum Availability. Subject to the terms and
conditions of this Agreement, during the period from the Effective Date to but
excluding the Revolving Credit Termination Date, the Borrower may borrow, repay
and reborrow Revolving Loans hereunder.
(b) REQUESTING REVOLVING LOANS. The Borrower shall give the Agent
notice pursuant to a Notice of Borrowing of each borrowing of Revolving Loans.
Each Notice of Borrowing shall be delivered to the Agent before 10:00 a.m. (i)
in the case of LIBOR Loans, on the date three Business Days prior to the
proposed date of such borrowing and (ii) in the case of Base Rate Loans, on the
date one Business Day prior to the proposed date of such borrowing. The Agent
will transmit by telecopy, electronic mail or other form of transmission the
Notice of Borrowing (or the information contained in such Notice of Borrowing)
to each Lender promptly upon receipt by the Agent. Each Notice of Borrowing
shall be irrevocable once given and binding on the Borrower.
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(c) DISBURSEMENTS OF REVOLVING LOAN PROCEEDS. No later than 10:00 a.m.
on the date specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the Agent, in
immediately available funds, the proceeds of the Revolving Loan to be made by
such Lender. With respect to Revolving Loans to be made after the Effective
Date, unless the Agent shall have been notified by any Lender prior to the
specified date of borrowing that such Lender does not intend to make available
to the Agent the Revolving Loan to be made by such Lender on such date, the
Agent may assume that such Lender will make the proceeds of such Revolving Loan
available to the Agent on the date of the requested borrowing as set forth in
the Notice of Borrowing 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. Subject to satisfaction of the
applicable conditions set forth in Article VI. for such borrowing, the Agent
will make the proceeds of such borrowing available to the Borrower no later than
12:00 noon on the date and at the account specified by the Borrower in such
Notice of Borrowing.
Section 2.2. Bid Rate Loans.
(a) BID RATE LOANS. In addition to borrowings of Revolving Loans, at
any time during the period from the Effective Date to but excluding the
Revolving Credit Termination Date, and so long as the Borrower continues to
maintain an Investment Grade Rating, the Borrower may, as set forth in this
Section, request the Lenders to make offers to make Bid Rate Loans to the
Borrower in Dollars. The Lenders may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section. The aggregate outstanding
principal amount of Bid Rate Loans may not exceed the Bid Rate Loan Limit at any
time.
(b) REQUESTS FOR BID RATE LOANS. When the Borrower wishes to request
from the Lenders offers to make Bid Rate Loans, it shall give the Agent notice
(a "Bid Rate Quote Request") so as to be received no later than 10:00 a.m. on
(x) the Business Day immediately preceding the date of borrowing proposed
therein, in the case of an Absolute Rate Auction and (y) on the date four
Business Days prior to the proposed date of borrowing, in the case of a LIBOR
Auction. The Agent shall deliver to each Lender a copy of each Bid Rate Quote
Request promptly upon receipt thereof by the Agent. The Borrower may request
offers to make Bid Rate Loans for up to 3 different Interest Periods in each Bid
Rate Quote Request; provided, that the request for each separate Interest Period
shall be deemed to be a separate Bid Rate Quote Request for a separate borrowing
(a "Bid Rate Borrowing"). Each Bid Rate Quote Request shall be substantially in
the form of Exhibit K and shall specify as to each Bid Rate Borrowing all of the
following:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Rate Borrowing which
shall be in a minimum amount of $10,000,000 and integral multiples of
$1,000,000 in excess thereof;
(iii) whether the Bid Rate Quote Request is for LIBOR Margin
Loans or Absolute Rate Loans; and
(iv) the duration of the Interest Period applicable thereto.
The Borrower shall not deliver any Bid Rate Quote Request more frequently than
once per calendar month nor within 5 Business Days of the giving of any other
Bid Rate Quote Request.
(c) BID RATE QUOTES.
(i) Each Lender may submit one or more Bid Rate Quotes, each
containing an offer to make a Bid Rate Loan in response to any Bid Rate
Quote Request; provided that, if the Borrower's request under Section
2.2.(b) specified more than one Interest Period, such Lender may make a
single submission containing only one Bid Rate Quote for each such
Interest Period. Each Bid Rate Quote must be submitted to the Agent not
later than 8:30 a.m. (x) on the proposed date of borrowing, in the case
of an Absolute Rate Auction and (y) on the date three Business Days
prior to the proposed date of borrowing, in the case of a LIBOR
Auction, and in either case the Agent shall disregard any Bid Rate
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Quote received after such time; provided that the Lender then acting as
the Agent may submit a Bid Rate Quote only if it notifies the Borrower
of the terms of the offer contained therein not later than 30 minutes
prior to the latest time by which the Lenders must submit applicable
Bid Rate Quotes. Subject to Articles VI. and XI., any Bid Rate Quote so
made shall be irrevocable. Such Bid Rate Loans may be funded by a
Lender's Designated Lender (if any) as provided in Section 13.5.(f),
however such Lender shall not be required to specify in its Bid Rate
Quote whether such Bid Rate Loan will be funded by such Designated
Lender.
(ii) Each Bid Rate Quote shall be substantially in the form of
Exhibit L and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Bid Rate Loan for
which each such offer is being made; provided that the
aggregate principal amount of all Bid Rate Loans for which a
Lender submits Bid Rate Quotes (x) may be greater or less than
the Commitment of such Lender but (y) shall not exceed the
principal amount of the Bid Rate Borrowing for a particular
Interest Period for which offers were requested;
(C) in the case of an Absolute Rate Auction, the rate
of interest per annum (rounded upwards, if necessary, to the
nearest 1/1,000th of 1%) offered for each such Absolute Rate
Loan (the "Absolute Rate");
(D) in the case of a LIBOR Auction, the margin above
or below applicable LIBOR (the "LIBOR Margin") offered for
each such LIBOR Margin Loan, expressed as a percentage
(rounded upwards, if necessary, to the nearest 1/1,000th of
1%) to be added to (or subtracted from) the applicable LIBOR;
(E) the identity of the quoting Lender; and
(F) any Bid Rate Quote shall be in a minimum amount
of $10,000,000 and integral multiples of $1,000,000 in excess
thereof.
No Bid Rate Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Bid Rate Quote Request and, in particular, no Bid
Rate Quote may be conditioned upon acceptance by the applicable
Borrower of all (or some specified minimum) of the principal amount of
the Bid Rate Loan for which such Bid Rate Quote is being made.
(d) NOTIFICATION BY AGENT. The Agent shall, as promptly as practicable
after the Bid Rate Quotes are submitted (but in any event not later than 9:30
a.m. (x) on the proposed date of borrowing, in the case of an Absolute Rate
Margin and (y) on the date three Business Days prior to the proposed date of
borrowing, in the case of a LIBOR Auction), notify the Borrower of the terms (i)
of any Bid Rate Quote submitted by a Lender that is in accordance with Section
2.2.(c) and (ii) of any Bid Rate Quote that amends, modifies or is otherwise
inconsistent with a previous Bid Rate Quote submitted by such Lender with
respect to the same Bid Rate Quote Request. Any such subsequent Bid Rate Quote
shall be disregarded by the Agent unless such subsequent Bid Rate Quote is
submitted solely to correct a manifest error in such former Bid Rate Quote. The
Agent's notice to the Borrower shall specify (A) the aggregate principal amount
of the Bid Rate Borrowing for which offers have been received and (B) the
principal amounts and Absolute Rates or LIBOR Margins, as applicable, so offered
by each Lender.
(e) ACCEPTANCE BY BORROWER.
(i) Not later than 10:30 a.m. (x) on the proposed date of
borrowing, in the case of an Absolute Rate Auction and (y) on the date
three Business Days prior to the proposed date of borrowing, in the
case of LIBOR Auction, the Borrower shall notify the Agent of its
acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.2.(d) which notice shall be in the form of Exhibit M. In the
case of acceptance, such notice shall specify the aggregate principal
amount of offers for each Interest Period that are accepted. The
failure of the Borrower to give such notice by such time shall
constitute nonacceptance. The Borrower may accept any Bid Rate Quote in
whole or in part; provided that:
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(A) the aggregate principal amount of each Bid Rate
Borrowing may not exceed the applicable amount set forth in
the related Bid Rate Quote Request;
(B) the aggregate principal amount of each Bid Rate
Borrowing shall comply with the provisions of Section
2.2.(b)(ii);
(C) acceptance of offers may be made only in
ascending order of Absolute Rates or LIBOR Margins, as
applicable, in each case beginning with the lowest rate so
offered;
(D) any acceptance in part by the Borrower shall be
in a minimum amount of $10,000,000 and integral multiples of
$1,000,000 in excess thereof; and
(E) the Borrower may not accept any offer that fails
to comply with Section 2.2.(c) or otherwise fails to comply
with the requirements of this Agreement.
(ii) If offers are made by two or more Lenders with the same
Absolute Rates or LIBOR Margins, as applicable, for a greater aggregate
principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of Bid
Rate Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders in proportion to the
aggregate principal amount of such offers. Determinations by the Agent
of the amounts of Bid Rate Loans shall be conclusive in the absence of
manifest error.
(f) OBLIGATION TO MAKE BID RATE LOANS. The Agent shall promptly (and in
any event not later than 11:00 a.m. (x) on the proposed date of borrowing of
Absolute Rate Loans and (y) on the date three Business Days prior to the
proposed date of borrowing of LIBOR Margin Loans) notify each Lender that
submitted a Bid Rate Quote as to whose Bid Rate Quote has been accepted and the
amount and rate thereof. A Lender who is notified that it has been selected to
make a Bid Rate Loan may designate its Designated Lender (if any) to fund such
Bid Rate Loan on its behalf, as described in Section 13.5. Any Designated Lender
which funds a Bid Rate Loan shall on and after the time of such funding become
the obligee under such Bid Rate Loan and be entitled to receive payment thereof
when due. No Lender shall be relieved of its obligation to fund a Bid Rate Loan,
and no Designated Lender shall assume such obligation, prior to the time the
applicable Bid Rate Loan is funded. Any Lender whose offer to make any Bid Rate
Loan has been accepted shall, not later than 12:00 noon. on the date specified
for the making of such Loan, make the amount of such Loan available to the Agent
in immediately available funds, for the account of the Borrower. The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower not later than 1:00 p.m. on such
date by depositing the same, in immediately available funds, in an account of
the Borrower designated by the Borrower.
(g) NO EFFECT ON COMMITMENT. Except for the purpose and to the extent
expressly stated in Section 2.13., the amount of any Bid Rate Loan made by any
Lender shall not constitute a utilization of such Lender's Commitment.
Section 2.3. Letters of Credit.
(a) LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement, including without limitation, Section 2.18., 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 Revolving Credit Termination Date, one or more letters of credit (each a
"Letter of Credit") up to a maximum aggregate Stated Amount at any one time
outstanding not to exceed the L/C Commitment Amount.
(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 Revolving Credit 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.
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(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 (i) the requested initial
Stated Amount, (ii) the proposed beneficiary, (iii) whether such Letter of
Credit is to be a standby or commercial letter of credit and (iv) the requested
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 VI., 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.
(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 Section
2.3.(i) such Lender's Commitment Percentage 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 (i) if the applicable conditions contained in Article VI. would
permit the making of Revolving Loans, the Borrower shall be deemed to have
requested a borrowing of Revolving Loans (which shall be Base Rate Loans) in an
amount equal to the unpaid Reimbursement Obligation and the Agent shall give
each Lender prompt notice of the amount of the Revolving Loan to be made
available to the Agent not later than 11:00 a.m. and (ii) if such conditions
would not permit the making of Revolving Loans, 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 Commitment Percentage 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 it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
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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, telex, 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 such
Letter of Credit, or of the proceeds of any drawing under such 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 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 3.6.(b).
(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 Commitment Percentage 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 Commitment Percentage 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 Commitment Percentage 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 second and last sentences of Section 3.6.(b)).
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(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 Commitment Percentage 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 Section 2.3.(d). Each such 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 11.1.(e) or 11.1.(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 Section 2.3.(j).
Section 2.4. Swingline Loans.
(a) SWINGLINE LOANS. Subject to the terms and conditions hereof,
including without limitation, Section 2.18., if necessary to meet the various
funding deadlines of the Borrower, 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, the amount of the Swingline
Commitment. 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.
(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 to the Swingline Lender no later than 1:00 p.m. 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 3:00 p.m. on the date of the requested Swingline Loan and subject to
satisfaction of the applicable conditions set forth in Article VI. 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 the Base Rate or
such other rates as the Borrower and the Swingline Lender may agree from time to
time in writing. Interest payable on Swingline Loans is solely for the account
of the Swingline Lender. All accrued and unpaid interest on Swingline Loans
shall be payable on the dates and in the manner provided in Section 2.5. 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, or such other minimum amounts agreed to by the
Swingline Lender and the Borrower. Any voluntary prepayment of a Swingline Loan
must be in the minimum amount of $100,000 or, if less, 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. on the day prior to the date of such
prepayment. The Swingline Loans shall, in addition to this Agreement, be
evidenced by the Swingline Notes.
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(e) REPAYMENT AND PARTICIPATIONS OF SWINGLINE LOANS. The Borrower
agrees to repay each Swingline Loan borrowed by it within one Business Day 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 borrowed by it 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 Revolving Loans (which shall be Base Rate Loans)
from the Lenders in an amount equal to the principal balance of such Swingline
Loan. The amount limitations contained in Section 3.5.(a) shall not apply to any
borrowing of Base Rate Loans made pursuant to this subsection. The Swingline
Lender shall give notice to the Agent of any such borrowing of Base Rate Loans
not later than 10:00 a.m. at least one Business Day prior to the proposed date
of such borrowing. Each Lender will make available to the Agent at the Principal
Office for the account of Swingline Lender, in immediately available funds, the
proceeds of the Base Rate Loan to be made by such Lender. The Agent shall pay
the proceeds of such Base Rate 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 11.1.(e) or 11.1.(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 Commitment
Percentage 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 11.1.(e) or 11.1.(f)) or the termination of the
Commitments of any Lender, (iii) the existence (or alleged existence) of an
event of 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 to 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 2.5. 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), plus the Applicable
Margin for Base Rate Loans;
(ii) during such periods as such Loan is a LIBOR Loan, at
LIBOR for such Loan for the Interest Period therefor, plus the
Applicable Margin for LIBOR Loans;
(iii) if such Loan is a Absolute Rate Loan, at the Absolute
Rate for such Loan for the Interest Period therefor quoted by the
Lender making such Loan, in accordance with Section 2.2.; and
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(iv) if such Loan is a LIBOR Margin Loan, at LIBOR for such
Loan for the Interest Period therefor, plus (or minus) the LIBOR Margin
to be added to (or subtracted from) LIBOR, as quoted by the Lender
making such Loan, in accordance with Section 2.2.
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 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) in the case of
Base Rate Loans and Bid Rate Loans, monthly in arrears on the first day of each
month, (ii) in the case of a Bid Rate Loan, on the last day of each Interest
Period therefor, (iii) in the case of a LIBOR Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, and (iv) for all Loans, (A) on the Termination Date and (B) 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 2.6. Number of Interest Periods.
There may be no more than 6 different Interest Periods collectively
with respect to LIBOR Loans and Bid Rate Loans outstanding at the same time.
Section 2.7. Repayment of Loans.
(a) REVOLVING LOANS. Subject to Section 2.15., the Borrower shall repay
the aggregate outstanding principal balance of all Revolving Loans in full on
the Revolving Credit Termination Date.
(b) BID RATE LOANS. The Borrower shall repay the entire outstanding
principal amount of each Bid Rate Loan on the last day of the Interest Period of
such Bid Rate Loan.
(c) TERM LOANS. The Borrower shall repay the aggregate principal
balance of the Term Loans in four equal consecutive quarterly installments. Each
such installment due on the last day of January, April, July and October
following the date of conversion of the Revolving Loans into Term Loans until
such Term Loans are paid in full. Notwithstanding the foregoing, if not repaid
in full prior to then, the entire outstanding principal balance of the Term
Loans shall be due and payable in full on the Termination Date.
Section 2.8. Prepayments.
(a) OPTIONAL. Subject to Section 5.4., the Borrower may prepay any
Revolving Loan or Term Loan at any time without premium or penalty. The Borrower
shall give the Agent at least 2 Business Days prior written notice of the
prepayment of any Revolving Loan or Term Loan. Bid Rate Loans may not be prepaid
at the option of the Borrower.
(b) MANDATORY.
(i) COMMITMENT OVERADVANCE. 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 upon demand
pay to the Agent for the account of the Lenders, the amount of such
excess.
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(ii) UNENCUMBERED POOL OVERADVANCE. 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
Maximum Availability, the Borrower shall within 5 days of the Borrower
obtaining knowledge of the occurrence of any such excess, deliver to
the Agent for prompt distribution to each Lender a written plan
acceptable to the Lenders to eliminate such excess. If such excess is
not eliminated within 15 days of the Borrower obtaining knowledge of
the occurrence thereof, then the entire outstanding principal balance
of all Loans, together with all accrued interest thereon, and an amount
equal to all Letter of Credit Liabilities for deposit into the Letter
of Credit Collateral Account, shall be immediately due and payable in
full.
(iii) BID RATE LOAN OVERADVANCE. If at any time the aggregate
principal amount of all outstanding Bid Rate Loans exceeds the Bid Rate
Loan Limit, then the Borrower shall immediately pay to the Agent for
the accounts of the Lenders then holding outstanding Bid Rate Loans 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. Late Charges.
If the Borrower fails to pay any interest payable under this Agreement
on or prior to the expiration of 10 days after such interest first becomes due
and payable, the Borrower shall pay to the Agent for the benefit of the Lenders
a late charge equal to four percent (4.0%) of the amount of such unpaid interest
payment. The Borrower acknowledges and agrees that an accurate determination of
the Lenders' damages as a result of the Borrower's failure to pay interest as
and when due hereunder is not reasonably practicable, and the late charge
provided for herein is a reasonable estimate of the amount of additional cost
and the value of the loss of use of funds that will be suffered by the Lenders
if an interest payment is not paid when due.
Section 2.10. Continuation.
So long as no Default or 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 10:00 a.m. on the third Business
Day prior to the date of any such Continuation. Such notice by the Borrower of a
Continuation shall be by telecopy, electronic mail or other form of
communication 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, electronic mail 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,
Convert into a Base Rate Loan notwithstanding failure of the Borrower to comply
with Section 2.11.
Section 2.11. Conversion.
So long as no Default or 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 Revolving Loan of one Type into a Revolving
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 10:00
a.m. 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
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into LIBOR Loans. Promptly after receipt of a Notice of Conversion, the Agent
shall notify each Lender by telecopy, electronic mail or other similar form of
transmission of the proposed Conversion. Subject to the restrictions specified
above, each Notice of Conversion shall be by telecopy in the form of a Notice of
Conversion specifying (a) the requested date of such Conversion, (b) the Type of
Revolving Loan to be Converted, (c) the portion of such Type of Loan to be
Converted, (d) the Type of Revolving 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 2.12. Notes.
The Revolving Loans and the Term Loan, if any, made by each Lender
shall, in addition to this Agreement, also be evidenced by a promissory note of
the Borrower substantially in the form of Exhibit N (each 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 Bid
Rate Loans made by a Lender to the Borrower shall, in addition to this
Agreement, also be evidenced by the Borrower's Bid Rate Note payable to such
Lender.
Section 2.13. Voluntary Reductions of the Commitment.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate principal amount of all outstanding Bid Rate
Loans and Swingline Loans and the aggregate amount of Letter of Credit
Liabilities) at any time and from time to time without penalty or premium upon
not less than 5 Business Days prior written 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 and shall be irrevocable once given and
effective only upon receipt by the Agent; provided, however, that if the
Borrower seeks to reduce the aggregate amount of the Commitments below
$75,000,000, then, unless the Agent and all Lenders have otherwise previously
agreed in writing, the Commitments shall be reduced to zero and, except as
otherwise provided herein, the provisions of this Agreement shall terminate. The
Agent will promptly transmit such notice to each Lender. The Commitments, once
terminated or reduced may not be increased or reinstated. Any reduction in the
aggregate amount of the Commitments shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in each of the L/C
Commitment Amount, the Swingline Commitment and the Bid Rate Loan Limit.
Section 2.14. Extension of Revolving Credit Termination Date.
(a) GENERALLY. At least 60 days but not more than 90 days prior to any
anniversary date of the Agreement Date, the Borrower may request the Agent and
the Lenders to extend the Revolving Credit Termination Date by one year. If the
Agent receives such a request, the Agent shall forward a copy of it to each
Lender promptly upon receipt thereof. If all of the Lenders have notified the
Agent on or before the date 30 days prior to the applicable anniversary date
that they accept such request, the Revolving Credit Termination Date shall be
extended by one year. Otherwise, the Revolving Credit Termination Date shall not
be extended (except as otherwise permitted under the immediately following
subsection (b)). The Agent shall promptly notify the Borrower whether a request
for an extension has been accepted or rejected as well as which Lender or
Lenders rejected such request (each such Lender, a "Rejecting Lender"). The
Borrower understands and acknowledges that (i) this Section has been included in
this Agreement for the Borrower's convenience in requesting an extension of the
Revolving Credit Termination Date; (ii) neither the Agent nor any Lender has
promised (either expressly or impliedly), nor does the Agent or any Lender have
any obligation or commitment whatsoever, to extend the Revolving Credit
Termination Date and (iii) the Agent and the Lenders may condition any such
extension on such terms and conditions as they may deem appropriate in their
sole and absolute discretion.
(b) REJECTING LENDERS. Notwithstanding the preceding subsection (a), if
the Borrower receives notification from the Agent that a request for an
extension of the Revolving Credit Termination Date has been rejected (a "Notice
of Rejection"), and provided that Lenders holding at least 70% of the
Commitments have approved of such request, the Borrower may elect, with respect
to each such Rejecting Lender, by giving written notice to the Agent of such
election within 15 days after receipt by the Borrower of a Notice of Rejection,
to either (i) require such Rejecting Lender to assign its Commitment to an
Eligible Assignee as contemplated in the immediately following clause (x) or
(ii) pay in full the amount of Loans, interest and fees owing to such Rejecting
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Lender and terminate such Rejecting Lender's Commitment as contemplated in the
immediately following clause (y). If the Borrower has made a timely election as
permitted by the preceding sentence, then the Borrower shall take either of the
following actions as specified in such election: (x) demand that such Rejecting
Lender, and upon such demand such Rejecting Lender shall be obligated to, assign
its Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 13.5.(d) for a purchase price equal to the aggregate
principal balance of Loans then outstanding and owing to such Rejecting Lender
plus any accrued but unpaid interest thereon and accrued but unpaid fees owing
to such Rejecting Lender, any such assignment to be effective as of the current
Revolving Credit Termination Date (without taking account of the requested
extension) or (y) effective as of such current Revolving Credit Termination
Date, pay to such Rejecting Lender the aggregate principal balance of Loans then
outstanding and owing to such Rejecting Lender plus any accrued but unpaid
interest thereon and accrued but unpaid fees owing to such Rejecting Lender,
together with all amounts, if any, payable under Section 5.4., whereupon such
Rejecting Lender's Commitment shall terminate. Neither the Agent, such Rejecting
Lender, nor any other Lender shall be obligated in any way whatsoever to
initiate any such replacement or to assist in finding an Assignee. If the
Borrower has elected to cause all Rejecting Lenders either to assign their
Revolving Commitments to Eligible Assignees as contemplated by the preceding
clause (x) or to be paid the amounts specified in the preceding clause (y), then
the Borrower's request for an extension of the Revolving Credit Termination Date
which was initially rejected shall be deemed to have been granted and
accordingly the Revolving Credit Termination Date shall be extended by one
single year, otherwise the Revolving Credit Termination Date shall not be
extended. Any reduction in the aggregate amount of the Commitments resulting
from the Borrower exercising its rights under this subsection shall result in a
proportionate reduction (rounded to the next lowest integral multiple of
$100,000) in each of the L/C Commitment Amount, the Swingline Commitment and the
Bid Rate Loan Limit.
(c) NO EXTENSION IN CERTAIN CASES. Notwithstanding the preceding
subsections, if Lenders holding at least 70% of the Commitments do not approve a
request for an extension of the Revolving Credit Termination Date or if a
Default or Event of Default exists on the current Revolving Credit Termination
Date or would exist after giving effect to any of the transactions contemplated
by this Section, then the Revolving Credit Termination Date shall not be
extended.
Section 2.15. Term Loan Conversion.
Subject to the terms and conditions of this Agreement, if a request by
the Borrower for an extension of the Revolving Credit Termination Date shall be
denied, the Borrower may then elect to convert each Lender's Commitment
Percentage of the aggregate principal amount of Revolving Loans outstanding on
the Revolving Credit Termination Date into a term loan owing to such Lender
(each a "Term Loan") provided (a) the Borrower has given the Agent notice at
least 15 days prior to the applicable Anniversary Date of the Borrower's
intention to so convert the Revolving Loans and (b) the conditions set forth in
Section 6.3. have been satisfied as of Revolving Credit Termination Date.
Subject to the terms and conditions hereof, any such conversion shall be
effective as of the Revolving Credit Termination Date and upon such conversion
the Borrower shall not longer have the right to borrow any Loans hereunder.
Section 2.16. Expiration or Maturity Date of Letters of Credit Past Termination
of Facility.
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 30 days after the expiration date of such Letter of Credit.
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Section 2.17. Increase in Commitments.
At any time during the twelve-month period immediately following the
Agreement Date, the Borrower shall have the right, exercisable one time, to
request an increase in the aggregate amount of the Commitments by providing
written notice to the Agent, which notice shall be irrevocable once given;
provided, however, that after giving effect to such increase the aggregate
amount of the Commitments shall not exceed $300,000,000. The Agent shall
promptly notify each Lender of any such request. 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 Commitment Percentage (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 Loans. The Borrower shall pay to the Lenders amounts payable, if
any, to such Lenders under Section 5.4. as a result of the prepayment of any
such Loans. An increase of the aggregate amount of the Commitments may not be
effected under this Section if either (x) a Default or Event of Default shall be
in existence 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 such Loan Party is a party is not (or would not be) true or
correct on the effective date of such increase 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 and expressly permitted hereunder. In connection with an increase
in the aggregate amount of the Commitments pursuant to this Section (a) any
Lender becoming a party hereto 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 its
Commitment, receives a new or replacement Note, as appropriate, in the amount of
such Lender's Commitment at the time of the effectiveness of the increase in the
aggregate amount of Commitments.
Section 2.18. Amount Limitations.
Notwithstanding any other term of this Agreement, 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: (a) the aggregate principal amount of all outstanding
Loans, together with the aggregate amount of all Letter of Credit Liabilities,
would exceed either (i) the aggregate amount of the Commitments or (ii) the
Maximum Availability or (b) the aggregate principal amount of all outstanding
Bid Rate Loans would exceed the Bid Rate Loan Limit.
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 or any other Loan Document shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the Agent, not
later than 11:00 a.m. 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). The Borrower shall, at the time of
making each payment under this Agreement or any Note, 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 of such Lender 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. If the
Agent fails to pay such amount to a Lender within one Business Day of receipt
thereof by the Agent, the Agent shall pay interest on such amount until paid 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
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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 be payable for
the period of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) shall be made from the Lenders, each payment
of the Fees under Section 3.6.(a) and the first sentence of Section 3.6.(b)
shall be made for the account of the Lenders, and each termination or reduction
of the amount of the Commitments under Section 2.13. or otherwise pursuant to
this Agreement 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 and Term 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 making, Conversion and Continuation of Revolving Loans and Term
Loans of a particular Type (other than Conversions provided for by Section 5.5.)
shall be made pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of making of Loans) or their respective
Revolving Loans or Term Loans (in the case of Conversions and Continuations of
Revolving Loans or Term Loans, as the case may be) and the then current Interest
Period for each Lender's portion of each Loan of such Type shall be coterminous;
(e) the Lenders' participation in, and payment obligations in respect of,
Letters of Credit under Section 2.3. and Swingline Loans under Section 2.4.,
shall be pro rata in accordance with their respective Commitments; (f) each
prepayment of principal of Bid Rate Loans by the Borrower pursuant to Section
2.8.(b)(iii) shall be made for account of the Lenders then owed Bid Rate Loans
pro rata in accordance with the respective unpaid principal amounts of the Bid
Rate Loans then owing to each such Lender; and (g) each payment or prepayment of
principal of Term Loans by the Borrower shall be made for the account of the
Lenders pro rata in accordance with the respective unpaid principal amount of
the Term Loans then owing to each of them.. 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
2.4.(e)).
Section 3.3. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on,
any Loan made by it to the Borrower under this Agreement, or shall obtain
payment on any other Obligation owing by the Borrower or a 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 pro rata in accordance with Section 3.2. or Section
11.5., as applicable, such Lender shall promptly purchase from the 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, pay such amounts to the other Lenders and
make such other adjustments from time to time as shall be equitable, so that all
the Lenders shall share the benefit of such payment (net of any reasonable
expenses which may be incurred by such Lender in obtaining or preserving such
benefit) pro rata in accordance with Section 3.2. or Section 11.5. 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.
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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. Minimum Amounts.
(a) BORROWINGS. Each borrowing of Base Rate Loans shall be in an
aggregate minimum amount of $5,000,000. Each borrowing of and Continuation of,
and each Conversion of Base Rate Loans into, LIBOR Loans shall be in an
aggregate minimum amount of $5,000,000.
(b) PREPAYMENTS. Each voluntary prepayment of Revolving Loans shall be
in an aggregate minimum amount of $100,000, or if less, the entire outstanding
balance of Revolving Loans.
(c) REDUCTIONS OF COMMITMENTS. Each reduction of the Commitments under
Section 2.13. shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $100,000 in excess thereof.
Section 3.6. Fees.
(a) FACILITY FEES. During the period from the Effective Date to but
excluding the Revolving Credit Termination Date, the Borrower agrees to pay to
the Agent for the account of the Lenders a facility fee equal to the daily
aggregate amount of the Commitments (whether or not utilized) times a rate per
annum equal to the Applicable Facility Fee. Such fee shall be payable quarterly
in arrears on the last day of each March, June, September and December during
the term of this Agreement and on the Revolving Credit Termination Date.
(b) LETTER OF CREDIT FEES. The Borrower agrees to pay to the Agent for
the account of each Lender a letter of credit fee at a rate per annum equal to
the Applicable Margin for LIBOR Loans times the daily average Stated Amount of
each Letter of Credit for the period from and including the date of issuance of
such Letter of Credit (x) to and including the date such Letter of Credit
expires or is terminated or (y) to but excluding the date such Letter of Credit
is drawn in full; provided, however, in no event shall the aggregate amount of
such fee be less than $1,000. The Agent shall be entitled to deduct from such
Letter of Credit fees, and retain for its own account, a fronting fee in respect
of each Letter of Credit at the rate equal to one-eighth of one percent (0.125%)
per annum on the daily average Stated Amount of such Letter of Credit. The fees
provided for in the immediately preceding two sentences shall be nonrefundable
and payable in arrears (i) quarterly on the last day of March, June, September
and December, (ii) on the Revolving Credit Termination Date, (iii) on the date
the Commitments are terminated or reduced to zero and (iv) thereafter from time
to time on demand of the Agent. The Borrower shall pay directly to the Agent
from time to time on demand all 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.
(c) BID RATE LOAN FEES. The Borrower agrees to pay to the Agent such
fees for services rendered by the Agent in connection with the Bid Rate Loans as
shall be separately agreed upon between the Borrower and the Agent.
(d) EXTENSION FEE. If, pursuant to Section 2.14., the Revolving Credit
Termination Date is extended, the Borrower agrees to pay to the Agent for the
account of each Lender (other than a Rejecting Lender) such fees as the Borrower
and the Lenders (other than a Rejecting Lender) may agree to in writing. Payment
of such fees shall be a condition precedent to the effectiveness of any such
extension.
(e) TERM LOAN CONVERSION FEE. If, pursuant to Section 2.15., the
outstanding balance of any Revolving Loans is converted into Term Loans, the
Borrower agrees to pay to the Agent for the account of each Lender a conversion
fee equal to two-tenths of one percent (0.20%) of the outstanding principal
balance of such Lender's Revolving Loans being converted to a Term Loan, such
fee to be payable on the date of such conversion.
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(f) OTHER FEES. The Borrower agrees to pay such other fees of the Agent
and the Lenders as may be agreed to in writing from time to time between the
Borrower and the Agent or any Lenders, as the case may be.
Section 3.7. 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 3.8. 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, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective 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 the Lenders not 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
specifically described in subsections (i) through (iv) of Section 2.5.(a) and in
Section 2.4.(c). Notwithstanding the foregoing, the parties hereto further agree
and stipulate that all agency fees, syndication fees, facility 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 or any Lender to third parties or for
damages incurred by the Agent or any Lender, are charges made to compensate the
Agent or any such Lender for underwriting or administrative services and costs
or losses performed or incurred, and to be performed or incurred, by the Agent
and the Lenders in connection with this Agreement and shall under no
circumstances be deemed to be charges for the use of money. All charges other
than charges for the use of money shall be fully earned and nonrefundable when
due.
Section 3.9. Statements of Account.
The Agent will account to the Borrower monthly with a statement of
Loans, Letters of Credit, 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 2.3.(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 3.10. Defaulting Lenders.
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 two 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 the Requisite Lenders, shall be
suspended during the pendency of such failure or refusal. If a Lender is a
Defaulting Lender because it has failed 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
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shall not be paid to such Defaulting Lender and shall be held uninvested by the
Agent and paid to such Defaulting Lender upon the Defaulting Lender's curing of
its default.
Section 3.11. 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 Lender
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.
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ARTICLE IV. UNENCUMBERED POOL PROPERTIES
Section 4.1. Inclusion of Unencumbered Pool Properties.
(a) EXISTING UNENCUMBERED POOL PROPERTIES. Subject to compliance with
the terms and conditions of Section 6.1.(a), as of the Effective Date the
parties hereto acknowledge and agree that the Properties listed on Schedule 4.1.
are Unencumbered Pool Properties.
(b) ADDITIONAL UNENCUMBERED POOL PROPERTIES. After the Effective Date,
an Eligible Property shall be included as Unencumbered Pool Property upon
delivery to the Agent of (i) an Unencumbered Pool Certificate pursuant to
Section 9.4.(a) setting forth the information required to be contained therein
and assuming that such Eligible Property is included as an Unencumbered Pool
Property, (ii) if not previously delivered to the Agent, a certificate of
qualification to transact business or other comparable certificate issued with
respect to the Loan Party that owns such Property by the Secretary of State (and
any state department of taxation, as applicable) of the state in which such
Property is located and (iii) such other information as the Agent or any Lender
(through the Agent) may reasonably request in connection with the evaluation
such Eligible Property. Subject to the terms and conditions of this Agreement,
upon the Agent's receipt of such certificates and such other information, such
Eligible Property shall be included as an Unencumbered Pool Property. Any
Property that does not satisfy the requirements of an Eligible Property shall be
included only upon the written approval of the Majority Lenders. If a Property
that is to become an Unencumbered Pool Property is owned (or is being acquired)
by a Subsidiary of the Borrower that is not yet a party to the Guaranty, such
Property shall not become an Unencumbered Pool Property unless and until (x) an
Accession Agreement executed by such Subsidiary, and all other items required to
be delivered under Section 8.14., have all been delivered to the Agent and (y)
the Agent shall have received each of the following, in form and substance
satisfactory to the Agent, if not previously delivered to the Agent:
(A) an opinion of counsel to such Subsidiary, addressed to the
Agent and the Lenders and addressing the same legal matters address in
the opinions delivered pursuant to Section 6.1.(a)(iv);
(B) the certificate or articles of incorporation, articles of
organization, certificate of limited partnership, declaration of trust
or other comparable organizational instrument (if any) of such
Subsidiary certified as of a recent date by the Secretary of State of
the State of formation of such Subsidiary;
(C) a certificate of good standing (or certificate of similar
meaning) with respect to such Subsidiary issued as of a recent date by
the Secretary of State of the State of formation of such Subsidiary;
and
(D) copies certified by the Secretary or Assistant Secretary
of such Subsidiary (or other individual performing similar functions)
of (1) the by-laws of such Subsidiary, 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 and (2) all corporate,
partnership, member or other necessary action taken by such Subsidiary
to authorize the execution, delivery and performance of the Loan
Documents to which it is a party.
Section 4.2. Termination of Designation as Unencumbered Pool Property.
Any Property previously included as an Unencumbered Pool Property but
which is not included in an Unencumbered Pool Certificate subsequently submitted
pursuant to this Agreement shall no longer be included as an Unencumbered Pool
Property (effective as of the date of receipt by the Agent of such Unencumbered
Pool Certificate) so long as no Default or Event of Default exists or would
exist immediately after such Property is no longer included as an Unencumbered
Pool Property.
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ARTICLE V. YIELD PROTECTION, ETC.
Section 5.1. 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 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 Loans or
such obligation or the maintenance by such Lender of capital in respect of its
Loans or its Commitments (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 Loans or its Commitments (other than taxes imposed on or
measured by the overall net income of such Lender or of its Lending Office for
any of such 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, such Lender, or any commitment
of such Lender (including, without limitation, the Commitments 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 any other Type of
Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 5.5.
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 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 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, the failure of the Agent or any Lender to give such notice
shall not release the Borrower from any of its obligations hereunder. The Agent
or such Lender agrees to furnish to the Borrower a certificate setting forth the
basis and amount of each request by the Agent or such Lender for compensation
under this Section. Determinations by the Agent or any Lender of the effect of
any Regulatory Change shall be conclusive, provided that such determinations are
made on a reasonable basis and in good faith.
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Section 5.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of LIBOR for any Interest Period:
(a) the Agent reasonably determines (which determination shall
be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining
LIBOR for such Interest Period;
(b) the Agent reasonably determines (which determination shall
be conclusive) that LIBOR will not adequately and fairly reflect the
cost to the Lenders of making or maintaining LIBOR Loans for such
Interest Period; or
(c) a Lender that has outstanding a Bid Rate Quote with
respect to a LIBOR Margin Loan reasonably determines (which
determination shall be conclusive) that LIBOR will not adequately and
fairly reflect the cost to such Lender of making or maintaining such
LIBOR Margin Loan and such Lender gives notice thereof to the Agent;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, (i) in the case of clauses (a)
and (b) above, 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 repay such Loan or Convert such Loan into a Base
Rate Loan and (ii) in the case of clause (c) above, such Lender that has
outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan shall not be
under any obligation to make such Loan.
Section 5.3. Illegality.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Agent) and such Lender's obligation to make or Continue, or to
Convert 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 5.5. shall be applicable).
Section 5.4. Compensation.
The Borrower shall pay to the Agent for the account of a Lender, upon
the request of such Lender through the Agent, such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate it for any
yield-maintenance loss, cost or expense that such Lender determines is
attributable to: (a) any payment or prepayment (whether mandatory, including
payment required under Section 2.7.(c), or optional) of a LIBOR Loan or Bid Rate
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 VI. to be satisfied) to borrow a LIBOR
Loan or Bid Rate Loan from such Lender on the date for such borrowing, or to
Convert a Revolving Loan into a LIBOR Loan or Continue a LIBOR Loan on the
requested date of such Conversion or Continuation. Upon the Borrower's request,
any Lender requesting 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 5.5. 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 5.1.(b), 5.2. or 5.3., 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 5.1.(b) or 5.3., 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 5.1., 5.2. or 5.3. that gave rise to such Conversion no longer exist:
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(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 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 5.1. or 5.3. 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 5.6. Affected Lenders.
If (a) a Lender requests compensation pursuant to Section 3.11. or
5.1., 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 5.1.(b) or
5.3. 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 either (i) demand that such Lender (the
"Affected Lender"), and upon such demand the Affected Lender shall promptly,
assign its Commitments to an Eligible Assignee subject to and in accordance with
the provisions of Section 13.5.(d) 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, or (ii) pay to the Affected Lender 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, whereupon the
Affected Lender shall no longer be a party hereto or have any rights or
obligations hereunder or under any of the other Loan Documents. Each of the
Agent 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 expenses and at no cost or expense to the Agent,
the Affected Lender or any of the other Lenders; provided, however, the Borrower
shall not be obligated to reimburse or otherwise pay an Affected Lender's
administrative or legal costs incurred as a result of the Borrower's exercise of
its rights under this Section. 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 3.11. or 5.1.
Section 5.7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.11., 5.1. or 5.3. 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.
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Section 5.8. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article V.
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 V.
ARTICLE VI. CONDITIONS PRECEDENT
Section 6.1. Initial Conditions Precedent.
The obligation of 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 Bid Rate Notes executed by the
Borrower, payable to each Lender (or in the case of a Bid Rate Note,
such Lender's Designated Lender, if applicable), and the Swingline Note
executed by the Borrower;
(iii) the Guaranty executed by each of the Borrower's
Subsidiaries and Unconsolidated Affiliates initially required to be a
party thereto pursuant to Section 8.14.(a);
(iv) an opinion of David Goldberg, Vice President and Senior
Counsel of the Borrower and the other Loan Parties, and addressed to
the Agent and the Lenders in substantially the form of Exhibit O -1 and
an opinion of Heller Ehrman White & McAuliffe LLP, special California
counsel to the Borrower and the other Loan Parties, and addressed to
the Agent and the Lenders in substantially the form of Exhibit O-2;
(v) the articles of incorporation of the Borrower certified as
of a recent date by the Secretary of State of the State of formation of
such Person;
(vi) a certificate of good standing (or certificate of similar
meaning) with respect to the Borrower issued as of a recent date by the
Secretary of State of the State of formation of the Borrower 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
Properties listed on Schedule 4.1. are located;
(vii) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of each Loan Party 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, and in the case of the Borrower, authorized to
execute and deliver on behalf of the Borrower Notices of Borrowing,
Notices of Swingline Borrowing, requests for Letters of Credit, Notices
of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant
Secretary of the Borrower (or other individual performing similar
functions) of (i) the by-laws of such Person and (ii) all corporate
action taken by such Person to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;
(ix) an Unencumbered Pool Certificate calculated as of June
30, 2001;
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(x) a Compliance Certificate calculated on a pro forma basis
for the Borrower's fiscal quarter ending June 30, 2001;
(xi) all tax forms and other documents required to be provided
by a Lender under Section 3.11.;
(xii) evidence that the Second Amended and Restated Credit
Agreement dated as of February 25, 1997, by and among the Borrower, the
financial institutions party thereto as "Banks", and Wells Fargo Bank,
National Association, as agent for such Banks, has been terminated; and
(xiii) such other documents and instruments as the Agent, or
any Lender through the Agent, may reasonably request; and
(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 Borrower and its
Subsidiaries delivered to the Agent and the Lenders prior to the
Agreement Date that has had or could reasonably be expected to result
in 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) result in 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;
(iii) 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, conflict with 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 or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any other material
disruption of financial or capital markets that could reasonably be
expected to materially and adversely affect the transactions
contemplated by the Loan Documents.
Section 6.2. Conditions Precedent to All Loans and Letters of Credit.
The obligation of the Lenders to make any Loans and of the Agent to
issue Letters of Credit is subject to the further condition precedent that: (a)
no Default or Event of Default shall exist 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, and none of the conditions described in Section
2.18. would exist after giving effect thereto; (b) 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 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 specifically and expressly permitted hereunder and (c)
except as otherwise provided herein, in the case of the borrowing of Loans, the
Borrower shall have delivered a timely Notice of Borrowing or Notice of
Swingline Borrowing, as the case may be. Each Credit Event shall constitute a
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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
Lender at the time such Loan is made or 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 VI. have been satisfied.
Section 6.3. Conditions to Conversion to Term Loans.
The right of the Borrower to convert Revolving Loans into Term Loans
under Section 2.15. is subject to the condition precedent that the following
conditions be satisfied in the judgment of the Agent:
(a) timely receipt by the Agent of the notice from the Borrower
required under such Section;
(b) the fee due under Section 3.6.(e) shall have been paid to the
Agent;
(c) immediately before and after such conversion, no Default or Event
of Default shall exist; and
(d) the representations and warranties of the Borrower and the other
Loan Parties contained in the Loan Documents to which any such Loan Party is a
party shall be true in all material respects on and as of the date of such
conversion except to the extent such representations or warranties specifically
relate to an earlier date or such representations or warranties become untrue by
reason of events or conditions otherwise expressly permitted under the Loan
Documents.
The delivery of the notice required under such Section shall constitute a
certification by the Borrower to the Agent and the Lenders that the statements
in the immediately preceding clauses (c) and (d) are true.
Section 6.4. Conditions as Covenants.
If the Lenders effect or permit the occurrence of the first Credit
Event hereunder, whether the making of a Loan or the issuance of a Letter of
Credit, prior to the satisfaction of all conditions precedent set forth in
Sections 6.1. and 6.2., 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 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 6.1. and 6.2.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties.
In order to induce the Agent and each Lender to enter into this
Agreement and to make Loans and, in the case of the Agent, to issue Letters of
Credit, and, in the case of the Lenders, to acquire participations in Letters of
Credit, the Borrower represents and warrants to the Agent and each Lender as
follows:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of the Loan Parties and
the other Subsidiaries 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.
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(b) OWNERSHIP STRUCTURE. Part I of Schedule 7.1. is, as of the
Agreement Date, a complete and correct list of all Subsidiaries of the Borrower,
setting forth for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary and (ii) the percentage of ownership of such Subsidiary
represented by such Equity Interests. Except as disclosed in such Schedule (A)
each of the Borrower 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, (B) all of the issued and
outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (C) except for (x) securities
of the Borrower and its Subsidiaries convertible or exchangeable into securities
of Borrower as disclosed in the financial statements referred to in Section
7.1.(k) and (y) employee stock options, 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 Equity Interests of any type in any such
Person. Part II of Schedule 7.1. correctly sets forth, as of the Agreement Date,
all Unconsolidated Affiliates of the Borrower, 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 Borrower.
Part III of Schedule 7.1. is, as of the Agreement Date, a complete and correct
list of all Non-Guarantor Entities, setting forth for each such Person, 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 Borrower.
(c) AUTHORIZATION OF AGREEMENT, NOTES, LOAN DOCUMENTS AND BORROWINGS.
The Borrower has the right and power, and has taken all necessary action to
authorize it, to borrow hereunder. 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 Borrower or any
other Loan Party is a party have been duly executed and delivered by the duly
authorized officers 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,
and other similar laws affecting the rights of creditors generally and the
availability of equitable remedies for the enforcement of certain obligations
contained herein or therein may be limited by equitable principles generally.
(d) COMPLIANCE OF AGREEMENT, ETC. WITH LAWS. The execution, delivery
and performance of this Agreement and the other Loan Documents to which 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 the Borrower
or any other Loan Party; (ii) conflict with, result in a breach of or constitute
a default under the Borrower's articles of incorporation or bylaws (including
without limitation, Section 2 of Article IV and Section 2(a) of Article VIII of
the Borrower's bylaws), or any resolution adopted by the Borrower's Board of
Directors in connection with the designation of any series of Preferred Stock of
the Borrower, or the organizational documents of any other Loan Party, or any
indenture, agreement or other instrument to which the Borrower or any other Loan
Party 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 the Borrower
or any other Loan Party other than in favor of the Agent for the benefit of the
Lenders.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. The Borrower, each
other Loan Party and each other Subsidiary is in compliance with each
Governmental Approval and all other Applicable Laws relating to it except for
noncompliances which, and Governmental Approvals the failure to possess which,
could not, individually or in the aggregate, reasonably be expected to cause a
Default or Event of Default or have a Material Adverse Effect.
(f) TITLE TO PROPERTIES. Each of the Borrower and the other Loan
Parties and all other Subsidiaries has good, marketable and legal title to, or a
valid leasehold interest in, its respective assets.
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(g) EXISTING INDEBTEDNESS; TOTAL LIABILITIES; LIENS. Part I of Schedule
7.1.(g) is, as of June 30, 2001, a complete and correct listing of all
Indebtedness of the Borrower, its Subsidiaries and all of its Unconsolidated
Affiliates, and if such Indebtedness is secured by any Lien, a description of
all of the property encumbered by such Lien. As of the Agreement Date, the
Borrower, its Subsidiaries and its Unconsolidated Affiliates have performed and
are in compliance with all of the terms of all Indebtedness of the Borrower, its
Subsidiaries and all of its Unconsolidated Affiliates 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 7.1.(g) is, as of June 30, 2001, a complete
and correct listing of all Total Liabilities of the Borrower and its
Subsidiaries (excluding any Indebtedness set forth on Part I of such Schedule).
During the period from June 30, 2001 to but excluding the Agreement Date, the
Borrower, its Subsidiaries and all of its Unconsolidated Affiliates have not
incurred additional Total Liabilities in excess of $100,000,000 in the
aggregate.
(h) MATERIAL CONTRACTS. Schedule 7.1.(h) is, as of the Agreement Date,
a true, correct and complete listing of all Material Contracts. Each of the
Borrower, the other Loan Parties and the other Subsidiaries that is a party 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. Each Property Management Agreement, if any, relating to an
Unencumbered Pool Property is in full force and effect and is subject to
termination at the option of the Loan Party that owns such Unencumbered Pool
Property upon no more than 60-days' written notice.
(i) LITIGATION. Except as set forth on Schedule 7.1.(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Borrower,
are there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting the
Borrower, any other Loan Party, any other Subsidiary or any of their respective
property in any court or before any arbitrator of any kind or before or by any
other Governmental Authority which, if adversely determined, 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 the Borrower, any other Loan Party or any other
Subsidiary.
(j) TAXES. All federal, state and other tax returns of the Borrower,
each other Loan Party and each other Subsidiary 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 the Borrower, each other Loan
Party and each other Subsidiary and their 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 8.6. As of the Agreement Date, none
of the United States income tax returns of the Borrower, any other Loan Party or
any other Subsidiary is under audit. All charges, accruals and reserves on the
books of the Borrower and each of its Subsidiaries in respect of any taxes or
other governmental charges are in accordance with GAAP.
(k) FINANCIAL STATEMENTS. The Borrower has furnished to each Lender
copies of (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries for the fiscal years ending December 31, 1999 and December 31, 2000
and the related consolidated statements of operations, stockholders' equity and
cash flow for the fiscal years ending on such dates, with the opinion thereon of
Ernst & Young LLP, and (ii) the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal quarter ending June 30, 2001, and
the related consolidated statements of operations, stockholders' equity and cash
flow of the Borrower and its Subsidiaries for the two fiscal quarter period
ending on such date. Such balance sheets and statements (including in each case
related schedules and notes) are complete and correct and present fairly, in
accordance with GAAP consistently applied throughout the periods involved, the
consolidated financial position of the Borrower and its 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 Borrower 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.
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(l) NO MATERIAL ADVERSE CHANGE. Since December 31, 2000, there has been
no material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Borrower and its Subsidiaries taken as
a whole. Each of the Borrower, the other Loan Parties and the other Subsidiaries
is Solvent.
(m) ERISA. Each member of the ERISA Group has fulfilled its obligations
under the minimum funding standards of ERISA and the Internal Revenue Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Internal Revenue Code with
respect to each Plan. No member of the ERISA Group has (i) sought a waiver of
the minimum funding standard under Section 412 of the Internal Revenue Code in
respect of any Plan, (ii) failed to make any contribution or payment to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Internal Revenue Code or (iii) incurred any liability under Title
IV of ERISA other than a liability to the PBGC for premiums under Section 4007
of ERISA.
(n) ABSENCE OF DEFAULTS. None of the Borrower, the other Loan Parties
or the other Subsidiaries is in default under its 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 the Borrower, any other Loan Party or any other
Subsidiary under any agreement (other than this Agreement) or judgment, decree
or order to which any such Person 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, have a Material Adverse Effect.
(o) ENVIRONMENTAL LAWS. In the ordinary course of business and from
time to time each of the Loan Parties and the other Subsidiaries conducts
reviews of the effect of Environmental Laws on its respective business,
operations and properties, including without limitation, its respective
Properties, in the course of which such Loan Party or such Subsidiary identifies
and evaluates associated liabilities and costs (including, without limitation,
determining whether any capital or operating expenditures are required for
clean-up or closure of properties presently or previously owned, determining
whether any capital or operating expenditures are required to achieve or
maintain compliance in all material respects with Environmental Laws or required
as a condition of any Governmental Approval, any contract, or any related
constraints on operating activities, determining whether any costs or
liabilities exist in connection with off-site disposal of wastes or Hazardous
Materials, and determining whether any actual or potential liabilities to third
parties, including employees, and any related costs and expenses exist). 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, the Borrower
is not 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. 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 Borrower's
knowledge after due inquiry, threatened, against any Loan Party or any other
Subsidiary relating in any way to Environmental Laws which, if determined
adversely to such Loan Party or Subsidiary, could be reasonably expected to have
a Material Adverse Effect.
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(p) INVESTMENT COMPANY; PUBLIC UTILITY HOLDING COMPANY. Neither the
Borrower, any other 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. None of the Borrower, any other 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 10.9., none
of the Borrower, any other Loan Party nor any other Subsidiary is a party to or
bound by any agreement or arrangement (whether oral or written) with any
Affiliate.
(s) INTELLECTUAL PROPERTY. The Borrower and each Subsidiary owns or has
the right to use, under valid license agreements or otherwise, all patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights (collectively, "Intellectual Property")
necessary to the conduct of its businesses, 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.
(t) BUSINESS. As of the Agreement Date, the principal business
activities of the Borrower and its Subsidiaries are the acquisition,
development, ownership and operation of storage facilities which offer storage
spaces, usually on a month-to-month basis, for personal and business use.
(u) BROKER'S FEES. Except for the various fees payable to the Agent and
the Lenders in connection with the Loan Documents, no broker's or finder's fee,
commission or similar compensation will be payable with respect to the
transactions contemplated hereby. No other similar fees or commissions will be
payable by any Loan Party for any other services rendered to the Borrower or any
of its Subsidiaries ancillary to the transactions contemplated hereby.
(v) NOT PLAN ASSETS; NO PROHIBITED TRANSACTIONS. 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 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.
(w) UNENCUMBERED POOL PROPERTIES. Each Unencumbered Pool Property
satisfies all requirements under the Loan Documents for being an Eligible
Property.
(x) ACCURACY AND COMPLETENESS OF INFORMATION. All written information,
reports and other papers and data furnished to the Agent or any Lender by, on
behalf of, or at the direction of, the Borrower, any other Loan Party or any
other Subsidiary were, at the time the same were so furnished, 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.
No fact is known to the Borrower which has had, or may in the future have (so
far as the Borrower can reasonably foresee), a Material Adverse Effect which has
not been set forth in the financial statements referred to in Section 7.1.(k) or
in such information, reports or other papers or data or otherwise disclosed in
writing to the Agent and the Lenders prior to the Effective Date. No document
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furnished or written statement made to the Agent or any Lender in connection
with the negotiation, preparation or execution of this Agreement or any of the
other Loan Documents contains or will contain any untrue statement of a fact
material to the creditworthiness of the Borrower, any other Loan Party or any
other Subsidiary or omits or will omit to state a material fact necessary in
order to make the statements contained therein not misleading.
Section 7.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower, any other Loan Party
or any other Subsidiary to the Agent or any Lender 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 on behalf of 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 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 VIII. AFFIRMATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 13.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 13.6., the Borrower
shall comply with the following covenants:
Section 8.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 10.5., the Borrower shall,
and shall cause each other Loan Party and each other 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 8.2. Compliance with Applicable Law and Material Contracts.
The Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, comply with (a) 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, and (b) all terms and conditions
of all Material Contracts to which it is a party.
Section 8.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Borrower shall, and shall cause each other Loan Party and each other Subsidiary
to, (a) protect and preserve all of its material 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 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.
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Section 8.4. Conduct of Business.
The Borrower shall, and shall cause the other Loan Parties and each
other Subsidiary to, carry on its respective businesses as described in Section
7.1.(t) and not enter into any line of business not otherwise engaged in by any
such Person as of the Agreement Date except for (a) lines of business incidental
or related thereto and (b) other lines of business so long as the aggregate book
value of the assets of all such other lines of business does not exceed 5.0% of
Gross Asset Value.
Section 8.5. Insurance.
The Borrower shall, and shall cause each Subsidiary 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 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 if requested, 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 8.6. Payment of Taxes and Claims.
The Borrower shall, and shall cause each other Loan Party and each
other 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; 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 such Person in accordance with GAAP.
Section 8.7. Books and Records; Inspections.
The Borrower shall, and shall cause each other Loan Party and each
other 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 respective business and activities. The Borrower shall, and shall cause
each other Loan Party and each other 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 if an Event of Default does not then exist), all at such reasonable
times during business hours and as often as may reasonably be requested and so
long as no Event of Default exists, with reasonable prior notice and, at any
time while an Event of Default exists, all at the Borrower's sole cost and
expense.
Section 8.8. Use of Proceeds.
The Borrower shall use the proceeds of Loans only (a) for the payment
of pre-development and development costs incurred in connection with Properties
owned by the Borrower or any Subsidiary; (b) to finance acquisitions otherwise
permitted under this Agreement; (c) to finance capital expenditures and the
repayment of Indebtedness of the Borrower and its Subsidiaries; and (d) to
provide for the general working capital needs of the Borrower and its
Subsidiaries and for other general corporate purposes of the Borrower and its
Subsidiaries. The Borrower shall only use Letters of Credit for the same
purposes for which it may use the proceeds of Loans. The Borrower shall not, and
shall not permit any Subsidiary to, use any part of such proceeds 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 if, in any such case,
such use might result in any of the Loans being consider to be "purpose credit"
directly or indirectly secured by margin stock within the meaning of Regulation
U or Regulation X of the Board of Governors of the Federal Reserve System.
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Section 8.9. Environmental Matters.
The Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, comply with all Environmental Laws the failure with which
to comply could reasonably be expected to have a Material Adverse Effect. If the
Borrower, any other Loan Party or any other 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 any
such Person alleging violations of any Environmental Law or requiring any such
Person 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 any such Person may be liable or responsible for costs associated
with a response to or cleanup of a release of Hazardous Materials or any damages
caused thereby, and the matters covered by such notices, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, the
Borrower shall provide the Agent with a copy of such notice within 10 days after
the receipt thereof by the Borrower, such other Loan Party or such other
Subsidiary. The Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, 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 8.10. Further Assurances.
At the Borrower's cost and expense and 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 8.11. Material Contracts.
The Borrower shall, and shall cause each other Loan Party and each
other Subsidiary to, duly and punctually perform and comply with any and all
material representations, warranties, covenants and agreements binding upon any
such Person under any Material Contract. The Borrower shall not, and shall not
permit any other Loan Party or any other Subsidiary to, do or knowingly permit
to be done anything to impair materially the value of any of the Material
Contracts.
Section 8.12. REIT Status.
The Borrower shall maintain its status as a REIT.
Section 8.13. Exchange Listing.
The Borrower shall maintain at least one class of common shares of the
Borrower 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 8.14. Guarantors; Release of Guarantors.
(a) GENERALLY. The Borrower shall cause any Subsidiary and any
Unconsolidated Affiliate 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, together with the other items required to be
delivered under the subsection (c) below:
(i) In the case of a Subsidiary, such Subsidiary (A) owns an
Unencumbered Pool Property or (B) is a Wholly Owned Subsidiary; or
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(ii) In the case of any Subsidiary or any Unconsolidated
Affiliate, such Person shall Guarantee, or otherwise become obligated
in respect of, any Indebtedness of the Borrower, any Subsidiary or any
Non-Guarantor Entity (except in the case of an Unconsolidated Affiliate
Guaranteeing, or otherwise becoming obligated in respect of, any
Indebtedness of another Unconsolidated Affiliate).
Any such Accession Agreement and the other items required under subsection (c)
below must be delivered to the Agent no later than the date the Borrower is
required to deliver financial statements under Section 9.1. for the fiscal
quarter (or Section 9.2. for the fourth fiscal quarter) during which any of the
above conditions first applies to a New Guarantor.
(b) OTHER GUARANTORS. The Borrower may, at its option, cause any other
Person that is not already a Guarantor to become a Guarantor by causing such
Person to execute and deliver to the Agent an Accession Agreement, together with
the other items required to be delivered under the subsection (c) below.
(c) REQUIRED DELIVERIES. Each Accession Agreement delivered by a New
Guarantor under the immediately preceding subsections (a) or (b) shall be
accompanied by each of the following in form and substance satisfactory to the
Agent:
(i) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of such New Guarantor with respect to each of the officers of such New
Guarantor authorized to execute and deliver the Loan Documents to which
such New Guarantor is a party; and
(ii) such other documents and instruments as the Agent, or any
Lender through the Agent, may reasonably request.
(d) RELEASE OF GUARANTOR. The Borrower may request in writing that the
Agent release, and upon receipt of such request the Agent shall release, a
Guarantor from it obligations under the Guaranty if, and only if: (i) such
Guarantor does not own any Unencumbered Pool Property, nor any direct or
indirect Equity Interest in any Subsidiary that does own an Unencumbered Pool
Property; (ii) such Guarantor is not otherwise required to be a party to the
Guaranty under this Section; and (iii) no Default or Event of Default shall then
be in existence or would occur as a result of such release.
ARTICLE IX. INFORMATION
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 13.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 13.6., the Borrower shall
furnish to each Lender (or to the Agent if so provided below) at its Lending
Office:
Section 9.1. Quarterly Financial Statements.
As soon as available and in any event within 50 days after the close of
each of the first, second and third fiscal quarters of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such period and the related unaudited consolidated statements of
income, shareholders' equity and cash flows of the Borrower and its Subsidiaries
for such period, setting forth in each case in comparative form the figures for
the corresponding periods of the previous fiscal year, all of which shall be
certified by the chief financial officer or treasurer of the Borrower, in his or
her opinion, to present fairly, in accordance with GAAP, the consolidated
financial position of the Borrower and its Subsidiaries as at the date thereof
and the results of operations for such period (subject to normal year-end audit
adjustments).
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Section 9.2. Year-End Statements.
As soon as available and in any event within 120 days after the end of
each fiscal year of the Borrower, the audited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the related
audited consolidated statements of income, shareholders' equity and cash flows
of the Borrower 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 certified by (a) the chief financial officer or treasurer
of the Borrower, in his or her opinion, to present fairly, in accordance with
GAAP, the financial position of the Borrower and its Subsidiaries as at the date
thereof and the result of operations for such period and (b) either (i) Ernst &
Young LLP or (ii) any other independent certified public accountants of
recognized national standing acceptable to the Requisite Lenders, whose
certificate shall be unqualified and in scope and substance satisfactory to the
Requisite Lenders and who shall have authorized the Borrower to deliver such
financial statements and certification thereof to the Agent and the Lenders
pursuant to this Agreement. Such financial statements shall be accompanied by a
statement of the accountants which reported on such statements indicating
whether anything has come to their attention to cause them to believe that any
Default or Event of Default existed on the date of such statements.
Section 9.3. Compliance Certificate.
At the time the financial statements are furnished pursuant to Sections
9.1. and 9.2., a certificate substantially in the form of Exhibit P (a
"Compliance Certificate") executed on behalf of the Borrower by the chief
financial officer or treasurer of the Borrower (a) 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 the Borrower was in compliance with
the covenants contained in Section 10.1.; and (b) 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 the steps being taken by
the Borrower with respect to such event, condition or failure.
Section 9.4. Other Information.
(a) UNENCUMBERED POOL CERTIFICATES. As soon as available and in any
event within 50 days after the end of each fiscal quarter of the Borrower, an
Unencumbered Pool Certificate setting forth the information to be contained
therein;
(b) SECURITIES FILINGS. Within 5 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
Borrower, 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;
(c) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof, copies of all
reports, if any, submitted to the Borrower or its Board of Directors by its
independent public accountants including, without limitation, any management
report;
(d) REPORTS TO SHAREHOLDERS. Promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all financial statements,
reports and proxy statements so mailed;
(e) PRESS RELEASES. Promptly upon the issuance thereof, copies of all
press releases issued by the Borrower, any other Loan Party or any other
Subsidiary;
(f) BUDGETS. No later than November 30th of each calendar year,
projected balance sheets, income statements and cash flow budgets (including
projected sources and uses of funds) of the Borrower and its Subsidiaries on a
consolidated basis for each quarter of the next succeeding 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 Borrower will be in compliance with the covenants contained in
Sections 10.1. at the end of each fiscal quarter of the next succeeding fiscal
year;
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(g) ERISA. If and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be 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 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 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 Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, 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;
(h) GOVERNMENTAL ACTIONS. To the extent the Borrower or any Subsidiary
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 Borrower or any
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 Borrower or any of its Subsidiaries
are being audited;
(i) AMENDMENT TO ORGANIZATIONAL DOCUMENTS. A copy of any material
amendment, or any other amendment upon the Agent's request, to the articles of
incorporation, bylaws, partnership agreement or other similar organizational
documents of the Borrower, or any Subsidiary that owns an Unencumbered Pool
Property within 5 Business Days of the effectiveness thereof (or request
therefor);
(j) CHANGES IN MANAGEMENT, FINANCIAL CONDITION, ETC. Prompt notice of
any change in the senior management of the Borrower, any other Loan Party or any
other Subsidiary and any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of the Borrower or any
Subsidiary which in either event has had or could have Material Adverse Effect;
(k) DEFAULTS. Prompt notice of the occurrence of any Default or Event
of Default or any event which constitutes or which with the passage of time, the
giving of notice, or otherwise, would constitute a default or event of default
by 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;
(l) JUDGMENTS, ETC. Prompt notice of any order, judgment or decree in
excess of $10,000,000 having been entered against the Borrower, any other Loan
Party or any other Subsidiary or any of their respective properties or assets;
(m) OWNERSHIP SHARE CALCULATION. Promptly upon the request of the
Agent, evidence of the Borrower's calculation of the Ownership Share with
respect to a Subsidiary or an Unconsolidated Affiliate, such evidence to be in
form and detail satisfactory to the Agent;
(n) ELIGIBILITY OF PROPERTIES. Prompt notice to the Agent if any
Unencumbered Pool Property shall cease to qualify as an Eligible Property; and
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(o) OTHER INFORMATION. From time to time and promptly upon each
request, such data, certificates, reports, statements, opinions of counsel,
documents or further information regarding any Property or the business, assets,
liabilities, financial condition, results of operations or business prospects of
the Borrower or any of its Subsidiaries as the Agent or any Lender may request
and which is reasonably available to the Borrower or any such Subsidiary.
ARTICLE X. NEGATIVE COVENANTS
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 13.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 13.6., the Borrower shall
comply with the following covenants:
Section 10.1. Financial Covenants.
(a) RATIO OF TOTAL LIABILITIES TO GROSS ASSET VALUE. The Borrower shall
not permit the ratio of (i) Total Liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value, at
the end of any fiscal quarter to exceed 0.50 to 1.00 at any time.
(b) RATIO OF SECURED INDEBTEDNESS TO GROSS ASSET VALUE. The Borrower
shall not permit the ratio of (i) Secured Indebtedness of the Borrower and its
Subsidiaries determined on a consolidated basis to (ii) Gross Asset Value, to
exceed 0.35 to 1.0 at any time.
(c) RATIO OF EBITDA TO INTEREST EXPENSE. The Borrower shall not permit
the ratio of (i) EBITDA of the Borrower and its Subsidiaries determined on a
consolidated basis for the fiscal quarter most recently ended to (ii) Interest
Expense of the Borrower and its Subsidiaries determined on a consolidated basis
for such fiscal quarter, to be less than 2.50 to 1.0 at the end of such fiscal
quarter.
(d) RATIO OF EBITDA TO FIXED CHARGES. The Borrower shall not permit the
ratio of (i) EBITDA of the Borrower and its Subsidiaries determined on a
consolidated basis for the four fiscal-quarter period most recently ended to
(ii) Fixed Charges of the Borrower and its Subsidiaries determined on a
consolidated basis for such four-quarter period, to be less than 1.75 to 1.0 at
the end of each fiscal quarter.
(e) RATIO OF UNENCUMBERED NOI TO UNSECURED INTEREST EXPENSE. The
Borrower shall not permit the ratio of (i) Unencumbered NOI of the Borrower and
its Subsidiaries determined on a consolidated basis to (ii) Interest Expense on
Indebtedness (other than Secured Indebtedness) of the Borrower and its
Subsidiaries determined on a consolidated basis, for any fiscal quarter to be
less than 1.75 to 1.00 for such fiscal quarter.
(f) RATIO OF UNENCUMBERED POOL VALUE TO UNSECURED LIABILITIES. The
Borrower shall not permit the ratio of (i) the Unencumbered Pool Value to (ii)
Unsecured Liabilities, to be less than 2.0 to 1.0 at any time.
(g) MINIMUM TANGIBLE NET WORTH. The Borrower shall not at any time
permit the Tangible Net Worth of the Borrower and its Subsidiaries determined on
a consolidated basis to be less than an amount equal to the greater of (a)(i)
$4,000,000,000 plus (ii) 90% of the Net Proceeds of all Equity Issuances
effected at any time after the Agreement Date by the Borrower to any Person
other than the Borrower or any of its Subsidiaries minus (iii) the aggregate
amount paid by the Borrower to purchase or otherwise acquire outstanding shares
of the common stock or Preferred Stock of the Borrower (so long as such payments
are permitted by the immediately following subsection (h)), or (b)
$3,000,000,000. To the extent a purchase or other acquisition of outstanding
shares of the common stock of the Borrower is purchased or acquired in exchange
for, or out of the net cash proceeds of, a substantially concurrent issue and
sale of Equity Interests of the Borrower (other than Equity Interests that are
subject to mandatory redemption) to any Person (other than to a Subsidiary),
such purchase or acquisition shall be excluded from the immediately preceding
clause (iii).
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(h) DISTRIBUTIONS. The Borrower shall not, and shall not permit any
Subsidiary to, declare or make any Restricted Payment; provided, however, that:
(i) the Borrower may declare or make cash distributions to its shareholders
during any fiscal year in an aggregate amount not to exceed the greater of (x)
95.0% of Funds From Operations for such fiscal year or (y) the minimum amount
required for the Borrower to remain in compliance with Section 8.12.; (ii) the
Borrower may make cash distributions to its shareholders of capital gains
resulting from gains from certain asset sales to the extent necessary to avoid
payment of taxes on such asset sales imposed under Sections 857(b)(3) and 4981
of the Internal Revenue Code; (iii) the Borrower and its Subsidiaries may make
cash payments to repurchase outstanding shares of any of its respective
Preferred Stock, common stock or other similar common Equity Interests; and (iv)
Subsidiaries may pay Restricted Payments to the Borrower or any other
Subsidiary. Notwithstanding the foregoing, but subject to the following
sentence, if a Default or Event of Default shall have occurred and be
continuing, the Borrower 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 Borrower to remain in compliance with Section
8.12. If a Default or Event of Default specified in Section 11.1.(a), Section
11.1.(e) or Section 11.1.(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, the Borrower shall not, and shall not permit any Subsidiary to,
make any Restricted Payments to any Person whatsoever other than to the Borrower
or any Subsidiary.
(i) INVESTMENTS GENERALLY. The Borrower shall not, and shall not permit
any Subsidiary to, directly or indirectly, acquire, make or purchase any
Investment, or permit any Investment of such Person to be outstanding on and
after the Agreement Date, other than the following:
(i) Investments in cash, Cash Equivalents or institutional
money market funds organized under the laws of the United States of
America or any state thereof that invest solely in Cash Equivalents;
(ii) (x) trade credit extended on usual and customary terms in
the ordinary course of business, and (y) advances to employees for
moving, relocation and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business;
(iii) Investments in Subsidiaries in existence on the
Agreement Date and disclosed on Part I of Schedule 7.1.(b);
(iv) Investments to acquire Equity Interests of a Subsidiary
or any other Person who after giving effect to such acquisition would
be a Subsidiary, so long as in each case (x) immediately prior to such
Investment, and after giving effect thereto, no Default or Event of
Default is or would be in existence and (y) if such Subsidiary is (or
immediately after giving effect to such Investment would be) required
to be a party to the Guaranty, the terms and conditions set forth in
Section 8.14. are satisfied; and
(v) other Investments subject to, and otherwise permitted
under, the immediately following subsection (j).
(j) Limitations on Certain Investments. The Borrower shall not, and
shall not permit any Subsidiary to, make an Investment in or otherwise own the
following items which would cause the aggregate value of such holdings of such
Persons 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 the lower of
cost or market value, exceeds 10.0% of Gross Asset Value (a Property
that is a Development Property shall not be considered to be unimproved
real estate for purposes of this clause);
(ii) Equity Interests in Persons (other than Subsidiaries,
Unconsolidated Affiliates and Persons that are REITs), such that the
aggregate value of such interests calculated on the basis of the lower
of cost or market, exceeds 10.0% of Gross Asset Value;
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(iii) Mortgages in favor of the Borrower or any Subsidiary,
such that the aggregate book value of Indebtedness determined on a
consolidated basis secured by such Mortgages exceeds 10.0% of Gross
Asset Value;
(iv) Investments in Unconsolidated Affiliates, such that the
aggregate value of such Investments, exceeds 15.0% of Gross Asset
Value. For purposes of this clause (iv), the "value" of any such
Investment in an Unconsolidated Affiliate shall be determined with
respect to the Borrower's Ownership Share of such Unconsolidated
Affiliate; and
(v) other Investments having an aggregate book value not
exceeding 5% of Gross Asset Value.
In addition to the foregoing limitations, the aggregate value of the Investments
and other items subject to the limitations in the preceding clauses (i) through
(v) shall not exceed 25.0% of Gross Asset Value.
(k) DEVELOPMENT LIMITS. The Borrower shall not permit the aggregate
amount of Total Budgeted Cost with respect to all Development Properties of the
Borrower, its Subsidiaries and all of the Borrower's Unconsolidated Affiliates
to exceed 15.0% of Gross Asset Value at any time. For purposes of this
subsection, the Total Budgeted Cost with respect to any Development Property
owned by an Unconsolidated Affiliate of the Borrower shall equal the greater of
(i) the product of (x) the Borrower's Ownership Share in such Unconsolidated
Affiliate and (y) the Total Budgeted Cost for such Development Property or (ii)
the recourse obligations of the Borrower and its Subsidiaries relating to the
Indebtedness of such Unconsolidated Affiliate.
(l) AGGREGATE OCCUPANCY RATES. The Borrower shall not permit the
weighted average aggregate Occupancy Rate (weighted on the basis of aggregate
square footage) of all Unencumbered Pool Properties (i) for the period of four
calendar quarters most recently ended to be less than 85.0% or (ii) to be less
than 80.0% at any time.
(m) GROSS ASSETS VALUE OF NON-GUARANTORS. The Borrower shall not permit
Gross Asset Value determined with respect to the Non-Guarantor Entities
obligated in respect of any Indebtedness other than Nonrecourse Indebtedness to
exceed 25.0% of the Gross Asset Value of the Borrower and its Subsidiaries.
Section 10.2. Indebtedness.
The Borrower will not, and will not permit any other Loan Party or any
other Subsidiary to, incur, assume or otherwise become obligated in respect of
any Indebtedness after the Agreement Date if immediately after incurring,
assuming or otherwise becoming obligated in respect of such Indebtedness, a
Default or Event of Default would exist, including without limitation, a Default
or Event of Default resulting from a violation of any of the covenants contained
in Section 10.1. determined after giving proforma effect thereto.
Section 10.3. Negative Pledge.
The Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, (a) create, assume, incur or permit or suffer to exist
any Lien upon any of the Unencumbered Pool Properties or any direct or indirect
ownership interest of the Borrower in any Subsidiary owning any Unencumbered
Pool Property, other than Permitted Liens or (b) permit any Unencumbered Pool
Property, or any direct or indirect ownership interest of the Borrower in any
Subsidiary owning any Unencumbered Pool Property, to become subject to a
Negative Pledge.
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Section 10.4. Restrictions on Intercompany Transfers.
Except for the encumbrances or restrictions described on Schedule
10.4., the Borrower shall not, and shall not permit any Subsidiary either (a)
having assets whose book value is in excess of 5% of Gross Asset Value or (b)
owning any Unencumbered Pool Property, to, create or otherwise cause or suffer
to exist or become effective any consensual encumbrance or restriction of any
kind on the ability of any such Subsidiary to: (i) pay dividends or make any
other distribution on any Equity Interests issued by such Subsidiary and owned
by the Borrower or any other Subsidiary; (ii) pay any Indebtedness owed to the
Borrower or any other Subsidiary; (iii) make loans or advances to the Borrower
or any other Subsidiary; or (iv) transfer any of its property or assets to the
Borrower or any other Subsidiary.
Section 10.5. Merger, Consolidation, Sales of Assets, Acquisitions and Other
Arrangements.
The Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, (a) enter into 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 (whether by purchase, acquisition of Equity Interests
of a Person, or as a result of a merger or consolidation) a Substantial Amount
of the assets of, or make an Investment of a Substantial Amount in, any other
Person; provided, however, that:
(i) the Borrower and its Subsidiaries may lease and sublease
its respective assets, as lessor or sublessor (as the case may be), in
the ordinary course of their business;
(ii) any Subsidiary may merge with (x) the Borrower so long as
the Borrower is the survivor of such merger or (y) any other Subsidiary
so long as the survivor of such merger is a Loan Party or becomes a
Guarantor simultaneously with the effectiveness of such merger;
(iii) any Subsidiary may sell, transfer or dispose of its
assets to any Loan Party or any other Subsidiary that becomes a
Guarantor simultaneously with the effectiveness of such sale, transfer
or disposition;
(iv) a Loan Party (other than the Borrower or any Loan Party
which owns an Unencumbered Pool Property) and any Subsidiary that is
not (and is not required to be) a Loan Party may convey, sell, 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, and immediately thereafter liquidate, provided that
immediately prior to any such conveyance, sale, transfer, disposition
or liquidation and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would be in existence;
and
(v) the Borrower, any other Loan Party and any other
Subsidiary may, directly or indirectly, (A) acquire (whether by
purchase, acquisition of Equity Interests of a Person, or as a result
of a merger or consolidation) a Substantial Amount of the assets of, or
make an Investment of a Substantial Amount in, any other Person and (B)
sell, lease or otherwise transfer, whether by one or a series of
transactions, a Substantial Amount of assets (including capital stock
or other securities of Subsidiaries) to any other Person, so long as,
in each case, (1) the Borrower shall have given the Agent and the
Lenders at least 15 days prior written notice of such consolidation,
merger, acquisition, Investment, sale, lease or other transfer; (2)
immediately prior thereto, and immediately thereafter and after giving
effect thereto, no Default or Event of Default is or would be in
existence; (3) in the case of a consolidation or merger involving the
Borrower or a Loan Party which owns an Unencumbered Pool Property, such
Person shall be the survivor thereof and (4) at the time the Borrower
gives notice pursuant to clause (1) of this subsection, the Borrower
shall have delivered to the Agent and the Lenders a Compliance
Certificate, calculated on a pro forma basis, evidencing the continued
compliance by the Borrower with the terms and conditions of this
Agreement and the other Loan Documents, including without limitation,
the financial covenants contained in Section 10.1., after giving effect
to such consolidation, merger, acquisition, Investment, sale, lease or
other transfer.
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Section 10.6. Plans.
The Borrower shall not, 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.
Section 10.7. Fiscal Year.
The Borrower shall not, and shall not permit any other Loan Party or
any other Subsidiary to, change its fiscal year from that in effect as of the
Agreement Date.
Section 10.8. Modifications of Organizational Documents; Material Contracts.
The Borrower shall not, and shall not permit any other Loan Party or
other Subsidiary to, amend, supplement, restate or otherwise modify its articles
of incorporation, by-laws, partnership agreement or other similar organizational
document if such amendment, supplement, restatement or other modification could
have a Material Adverse Effect. The Borrower shall not, and shall not permit any
other Loan Party or any other Subsidiary to, enter into any amendment or
modification to any Material Contract that could reasonably be expected to have
a Material Adverse Effect or default in the performance of any obligations of
such Person in any Material Contract or permit any Material Contract to be
canceled or terminated prior to its stated maturity.
Section 10.9. Transactions with Affiliates.
Except for transactions described on Schedule 10.9., the Borrower shall
not, and shall not permit any Subsidiary 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 of the Borrower or with any
director, officer or employee of any Subsidiary, except transactions in the
ordinary course of and pursuant to the reasonable requirements of the business
of the Borrower or any of its Subsidiaries and upon fair and reasonable terms
and are no less favorable to the Borrower or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person that is not an
Affiliate.
ARTICLE XI. DEFAULT
Section 11.1. 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) (i) the principal of any Loan or any
Reimbursement Obligation or (ii) any interest on any of the Loans, or 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 solely in the case of this clause (ii) such failure shall
continue for a period of 5 calendar days.
(b) DEFAULT IN PERFORMANCE. The Borrower or any other Loan Party shall
fail to perform or observe any term, covenant, condition or agreement contained
(i) in Section 10.1. or (ii) elsewhere in this Agreement or any other Loan
Document to which it is a party and not otherwise mentioned in this Section and
solely in the case of this clause (ii) such failure shall continue for a period
of 30 calendar days after the earlier of (x) the date upon which the Borrower
obtains knowledge of such failure or (y) the date upon which the Borrower has
received written notice of such failure from the Agent;
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(c) MISREPRESENTATIONS. Any written statement, representation or
warranty made or deemed made by or on behalf of the Borrower 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 at any time furnished
by, or at the direction of, the Borrower or any other Loan Party to the Agent or
any 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 Borrower or any 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 ("Material Indebtedness") and such failure shall
continue beyond any applicable cure periods; or
(ii) (x) The maturity of any Material Indebtedness shall have
been accelerated in accordance with the provisions of any indenture,
contract or instrument evidencing, providing for the creation of or
otherwise concerning such Material Indebtedness or (y) any Material
Indebtedness shall have been required to be prepaid or repurchased
prior to the stated maturity thereof; or
(iii) Any other event shall have occurred and be continuing
(including the expiration of any applicable cure periods) which permits
any holder or holders of any Material Indebtedness, any trustee or
agent acting on behalf of such holder or holders or any other Person,
to accelerate the maturity of any Material Indebtedness or require any
Material Indebtedness to be prepaid or repurchased prior to its stated
maturity; provided, however, this clause (iii) shall only apply to
Nonrecourse Indebtedness the aggregate outstanding principal amount of
which is $25,000,000 or more.
(e) VOLUNTARY BANKRUPTCY PROCEEDING. The Borrower, any other Loan Party
or any other 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, any other Loan Party or any other 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 calendar 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 or any other Loan Party
shall (or shall attempt to) disavow, revoke or terminate 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.
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(h) JUDGMENT. A judgment or order for the payment of money shall be
entered against the Borrower or any Subsidiary, by any court or other tribunal
and (i) such judgment or order shall continue for a period of 30 days without
being paid stayed or dismissed through appropriate appellate proceedings and
(ii) either (A) the amount for which insurance has not been acknowledged in
writing by the applicable insurance carrier (or the amount as to which the
insurer has denied liability) exceeds, individually or together with all other
such judgments or orders entered against the Borrower and its Subsidiaries,
$20,000,000 or (B) such judgment or order 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 or any Subsidiary,
which exceeds, individually or together with all other such warrants, writs,
executions and processes, $10,000,000 in amount and such warrant, writ,
execution or process shall not be paid, discharged, vacated, stayed or bonded
for a period of 30 days.
(j) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $2,500,000 which it shall have become
liable to pay under Title IV of ERISA; or 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; or 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; or 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; or 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 a current
payment obligation in excess of $2,500,000.
(k) LOAN DOCUMENTS. An Event of Default (as defined therein) shall
occur under any of the other Loan Documents;
(l) CHANGE OF CONTROL. A Change of Control shall occur.
Section 11.2. 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 11.1.(e) or 11.1.(f), (1)(A) the principal of,
and all accrued interest on, the Loans and the Notes at the time
outstanding, (B) an amount equal to the Stated Amount of all Letters of
Credit outstanding as of the date of the occurrence of such Event of
Default and (C) all of the other Obligations of the Borrower,
including, but not limited to, the other amounts owed to the Lenders
and the Agent under this Agreement, the Notes or any of the other Loan
Documents shall become immediately and automatically due and payable by
the Borrower without presentment, demand, protest, or other notice of
any kind, all of which are expressly waived by the Borrower and (2) the
Commitments and the Swingline Commitment, the obligation of the Lenders
to make Loans hereunder, and the obligation of the Agent to issue
Letters of Credit hereunder, shall all immediately and automatically
terminate.
(ii) OPTIONAL. If any other Event of Default shall exist, the
Agent may, and at the direction of the Requisite Lenders shall: (1)
declare (A) the principal of, and accrued interest on, the Loans and
the Notes at the time outstanding, (B) an amount equal to the Stated
Amount of all Letters of Credit outstanding as of the date of the
occurrence of such Event of Default and (C) all of the other
Obligations, including, but not limited to, the other amounts owed to
the Lenders and the Agent under this Agreement, the 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 (2) terminate the Commitments and the
obligation of the Lenders to make 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: (x) declare the principal of, and accrued
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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 (y) 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 under 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.
(d) APPOINTMENT OF RECEIVER. To the extent permitted by
Applicable Law, the Agent and the Lenders shall be entitled to the
appointment of a receiver for the assets and properties of the Borrower
and its Subsidiaries, without notice of any kind whatsoever and without
regard to the adequacy of any security for the Obligations or the
solvency of any party bound for its payment, to take possession of all
or any portion of the of any of the Unencumbered Pool Properties and/or
the business operations of the Borrower and its Subsidiaries and to
exercise such power as the court shall confer upon such receiver.
Section 11.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Sections 11.1.(e) or
11.1.(f), the Commitments shall immediately and automatically terminate.
Section 11.4. 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 11.5. Allocation of Proceeds.
If an Event of Default exists 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 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 expenses due under Section 13.2.;
(b) payments of interest on Swingline Loans;
(c) payments of interest on all other Loans, to be applied for
the ratable benefit of the Lenders, in such order as the Lenders may
determine in their sole discretion;
(d) payment of principal on Swingline Loans;
(e) payments of principal of all other Loans, to be applied
for the ratable benefit of the Lenders, in such order as the Lenders
may determine in their sole discretion;
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(f) amounts to be deposited into the Letter of Credit
collateral Account in respect of Letters of Credit;
(g) amounts due to the Agent and the Lenders pursuant to
Sections 12.7. and 13.9.;
(h) 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
(i) any amount remaining after application as provided above,
shall be paid to the Borrower or whomever else may be legally entitled
thereto.
Section 11.6. 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 2.16.
(b) 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 exists, 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) So long as no Default or Event of Default exists, 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.
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Section 11.7. 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 11.8. 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 XII. THE AGENT
Section 12.1. Authorization and Action.
Each Lender hereby 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 nor to impose
on the Agent duties or obligations other than those expressly provided for
herein. At the request of a Lender, the Agent will forward to such Lender copies
or, where appropriate, originals of the documents delivered to the Agent
pursuant to this Agreement or the other Loan Documents. The Agent will also
furnish to any Lender, upon the request of such Lender, a copy of any
certificate or notice furnished to the Agent by the Borrower, 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 not 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 so directed the Agent to exercise such
right or remedy.
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Section 12.2. 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 omitted to be taken
by it or them under or in connection with this Agreement, except for its or
their own gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a nonappealable judgment. Without limiting the
generality of the foregoing, the Agent: (a) may treat the payee of any Note as
the holder thereof until the Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to the Agent; (b)
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; (c) makes no warranty or representation to any Lender or
any other Person and shall not be responsible to any Lender or any other Person
for any statements, warranties or representations made by any Person in or in
connection with this Agreement or any other Loan Document; (d) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of any 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 or other Persons or inspect the
property, books or records of the Borrower or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Loan Document, or any other instrument or document furnished pursuant thereto;
and (f) shall incur no 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 or telecopy) believed by it to
be genuine and signed, sent or given by the proper party or parties.
Section 12.3. 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 12.4. Wells Fargo as Lender.
Wells 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 Wells Fargo in each case in
its individual capacity. Wells 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, 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.
Section 12.5. 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. Each Lender shall reply promptly, but in any event 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.
Except as otherwise expressly provided in this Agreement, unless a Lender shall
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give written notice to the Agent that it specifically objects to the
recommendation or determination of the Agent (together with a written
explanation of the reasons behind such objection) within the applicable time
period for reply, such Lender shall be deemed to have conclusively approved of
or consented to such recommendation or determination.
Section 12.6. 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
as to the financial condition, operations, creditworthiness, solvency or other
information concerning the business or affairs of the Borrower, any other Loan
Party, any Subsidiary or any other Person to such Lender and that no act by the
Agent hereafter taken, including any review of the affairs of the Borrower,
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 and agents, and based on the
financial statements of the Borrower, the Subsidiaries or any other Affiliate
thereof, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Borrower, the Loan Parties, the 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 transaction
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. 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 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 12.7. Indemnification of Agent.
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 Commitment Percentage, 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 or if
the Agent fails to follow the written direction of the Requisite Lenders unless
such failure is pursuant to the advice of counsel of which the Lenders have
received notice. 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 counsel fees of
the counsel(s) of the Agent's own choosing) incurred by the Agent in connection
with the preparation, negotiation, execution, administration, or enforcement 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
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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 12.8. 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. In the event of a
material breach of its duties hereunder, the Agent may be removed as Agent under
the Loan Documents at any time by all Lenders (other than the Lender then acting
as Agent) and the Borrower upon 30-day's prior notice. Upon any such resignation
or removal, the Requisite Lenders (which, in the case of the removal of the
Agent as provided in the immediately preceding sentence, shall be determined
without regard to the Commitment of the Lender then acting as Agent) 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 (except that the Borrower
shall, in all events, be deemed to have approved each Lender as a successor
Agent). 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 resigning Agent's giving of notice of resignation or
the Lenders' removal of the resigning Agent, then the resigning or removed 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 a
commercial bank having total combined assets of at least $10,000,000,000. 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 retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under the Loan
Documents. After any Agent's resignation or removal hereunder as Agent, the
provisions of this Article XII. 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.
Section 12.9. Titled Agents.
Each of the Syndication Agent and each Documentation Agent (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.
Section 12.10. Approvals and Other Actions by Lenders.
(a) Requisite Lenders. Each of the following shall require the approval
of, or may be taken at the request of, the Requisite Lenders:
(i) Termination of the Commitments and acceleration of the
Obligations upon the occurrence of an Event of Default as provided in
Section 11.2.(a)(ii);
(ii) Approving of a replacement Agent as provided in Section
12.8.;
(iii) Except as specifically provided otherwise in Section
13.6., any consent or approval regarding, any waiver of the performance
or observance by the Borrower of and the waiver of the continuance of
any Default or Event of Default in respect of, any term of this
Agreement or any other Loan Document.
(b) ALL LENDERS. Each of the following shall require the approval of,
or may be taken only at the request of, all of the Lenders:
(i) Agreeing that the Borrower's reduction of the aggregate
amount of Commitment below the amount set forth in Section 2.13. will
not result in a termination of this Agreement;
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(ii) Consenting to extensions of the Revolving Credit
Termination Date as provided in Section 2.14.;
(iii) Removing the Agent for good cause as provided in Section
12.8.; and
(iv) Consenting to the assignment by the Borrower to another
Person of the Borrower's rights and obligations under this Agreement as
provided in Section 13.5.(a); and
(v) Any consent or approval regarding, any waiver of the
performance or observance by the Borrower of and the waiver of the
continuance of any Default or Event of Default in respect of, any term
of this Agreement or any other Loan Document described in Section
13.6.(a) through (k).
(b) Conflict with Terms of Loan Documents. To the extent any provision
of this Section conflicts with any other provision of this Agreement, including
without limitation, Section 13.6., or any other Loan Document, such other
provision shall control.
ARTICLE XIII. MISCELLANEOUS
Section 13.1. 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:
Public Storage, Inc.
701 Western Avenue
Glendale, California 91201-2349
Attention: Treasurer
Telecopy Number: (818) 244-9267
Telephone Number: (818) 244-8080
If to the Agent:
Wells Fargo Bank, National Association
1000 Lakes Drive, Suite 250
West Covina, California 91790
Attention: Perry Moreth
Telecopy Number: (626) 919-2909
Telephone Number: (626) 919-6623
If to a Lender:
To such Lender's address or telecopy number, as applicable,
set forth on its signature page hereto or 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, when transmitted; or (iii) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Agent or any Lender under Article II. shall
be effective only when actually received. Neither the Agent nor any Lender shall
incur any liability to the Borrower (nor shall the Agent incur any liability to
the Lenders) for acting upon any telephonic notice referred to in this Agreement
which the Agent or such 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.
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Section 13.2. 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, execution and delivery of, and any amendment,
supplement or modification to, any of the Loan Documents (including reasonable
due diligence expense and reasonable travel expenses related to closing), and
the arrangement, underwriting, syndication, consummation and administration of
the transactions contemplated thereby, including the reasonable fees and
disbursements of counsel to the Agent (which may include the reasonable
allocated cost of in-house counsel), (b) to pay or reimburse the Agent and 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
reasonable allocated cost 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, and indemnify and hold harmless the Agent and the
Lenders 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 reasonable 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 11.1.(e) or 11.1.(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 Borrower or
any other Loan Party, whether proposed by 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 13.3. 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 11.2., and although such obligations shall be contingent or unmatured.
Section 13.4. Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE AGENT 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 AGENT 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, THE NOTES, 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 OR ANY OF THE LENDERS OF ANY KIND OR NATURE.
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(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT
THE FEDERAL DISTRICT COURT OF THE NORTHERN DISTRICT OF CALIFORNIA OR, AT THE
OPTION OF THE AGENT, ANY STATE COURT LOCATED IN SAN FRANCISCO, CALIFORNIA, SHALL
HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG
THE BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY
TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES 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. THE BORROWER HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED
THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER PROCESS
OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE BORROWER
AT ITS ADDRESS FOR NOTICES PROVIDED FOR HEREIN. SHOULD THE BORROWER FAIL TO
APPEAR OR ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN
THIRTY DAYS AFTER THE MAILING THEREOF, THE BORROWER SHALL BE DEEMED IN DEFAULT
AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR
IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. 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. 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.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
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
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE TERMINATION OR
EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
Section 13.5. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations under this Agreement or as of the other Loan Documents
without the prior written consent of all Lenders (and any such assignment or
other transfer to which all of the Lenders have not so consented shall be null
and void).
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, any such
participating interest must be for a constant and not a varying percentage
interest. Except as otherwise provided in Section 13.3., 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, or extend the term or extend the time
or waive any requirement for the reduction or termination of, such Lender's
Commitment, (ii) extend the date fixed for the payment of principal of or
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interest on the Loans or portions thereof owing to such Lender, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at which interest
is payable thereon or (v) release any Guarantor from its obligations under the
Guaranty. An assignment or other transfer which is not permitted by subsection
(d) or (f) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (c). The selling Lender shall notify the Agent and the Borrower of
the sale of any participation hereunder and the terms thereof.
(d) Any Lender may with the prior written consent of the Agent and the
Borrower assign to one or more Eligible Assignees (each an "Assignee") all or a
portion of its Commitment and its other rights and obligations under this
Agreement and the Notes; provided, however, (i) so long as no Default or Event
of Default shall exist, the Borrower shall have consented to such assignment
(which consent, in each case, shall not be unreasonably withheld (it being
agreed that the Borrower's withholding of consent to an assignment which would
result in the Borrower having to pay amounts under Section 3.11. shall be deemed
to be reasonable)); (ii) no such consent by the Borrower shall be required in
the case of any assignment to another Lender or any affiliate of such Lender or
another Lender; (iii) 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 outstanding principal balance, of at least
$10,000,000; and (iv) each such assignment shall be effected by means of an
Assignment and Acceptance Agreement. 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
as of the effective date of the Assignment and Acceptance Agreement and shall
have all the rights and obligations of a Lender with a Commitment as set forth
in such Assignment and Acceptance 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, 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.
(e) 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 Agent shall give each Lender and the Borrower
notice of the assignment by any Lender of its rights as contemplated by this
Section. 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, 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 (d) above, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(f) Any Lender (each a "Designating Lender") may at any time while the
Borrower has been assigned an Investment Grade Rating designate one Designated
Lender to fund Bid Rate Loans on behalf of such Designating Lender subject to
the terms of this subsection, and the provisions in the immediately preceding
subsections (c) and (d) shall not apply to such designation. No Lender may
designate more than one Designated Lender. The parties to each such designation
shall execute and deliver to the Agent for its acceptance a Designation
Agreement. Upon such receipt of an appropriately completed Designation Agreement
executed by a Designating Lender and a designee representing that it is a
Designated Lender, the Agent will accept such Designation Agreement and give
prompt notice thereof to the Borrower, whereupon, (i) the Borrower shall execute
and deliver to the Designating Lender a Designated Lender Note payable to the
order of the Designated Lender, (ii) from and after the effective date specified
in the Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Bid Rate Loans on behalf of its Designating
Lender pursuant to Section 2.2. after the Borrower has accepted a Bid Rate Loan
(or portion thereof) of the Designating Lender, and (iii) the Designated Lender
shall not be required to make payments with respect to any obligations in this
Agreement except to the extent of excess cash flow of such Designated Lender
which is not otherwise required to repay obligations of such Designated Lender
which are then due and payable; provided, however, that regardless of such
designation and assumption by the Designated Lender, the Designating Lender
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shall be and remain obligated to the Borrower, the Agent and the Lenders for
each and every of the obligations of the Designating Lender and its related
Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 12.7. and any sums otherwise
payable to the Borrower by the Designated Lender. Each Designating Lender shall
serve as the agent of the Designated Lender and shall on behalf of, and to the
exclusion of, the Designated Lender: (i) receive any and all payments made for
the benefit of the Designated Lender and (ii) give and receive all
communications and notices and take all actions hereunder, including, without
limitation, votes, approvals, waivers, consents and amendments under or relating
to this Agreement and the other Loan Documents. Any such notice, communication,
vote, approval, waiver, consent or amendment shall be signed by the Designating
Lender as agent for the Designated Lender and shall not be signed by the
Designated Lender on its own behalf and shall be binding on the Designated
Lender to the same extent as if signed by the Designated Lender on its own
behalf. The Borrower, the Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No
Designated Lender may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than assignments to the
Designating Lender which originally designated such Designated Lender. The
Borrower, the Lenders and the Agent each hereby agrees that it will not
institute against any Designated Lender or join any other Person in instituting
against any Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, until the later to occur of (x) one year and one day after the
payment in full of the latest maturing commercial paper note issued by such
Designated Lender and (y) the Revolving Credit Termination Date. In connection
with any such designation the Designating Lender shall pay to the Agent an
administrative fee for processing such designation in the amount of $2,500.
(g) In addition to the assignments and participations permitted under
the foregoing provisions of this Section, any Lender may assign and pledge all
or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such Loans and Notes shall be fully
transferable as provided therein. No such assignment shall release the assigning
Lender from its obligations hereunder.
(h) A Lender may furnish any information concerning the Borrower, any
other Loan Party or any of their respective Subsidiaries in the possession of
such Lender from time to time to Assignees and Participants (including
prospective Assignees and Participants) subject to compliance with Section 13.8.
(i) 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, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(j) 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 Note under the Securities Act or any other
securities laws of the United States of America or of any other jurisdiction.
(k) Notwithstanding anything to the contrary contained herein, any
Lender (for purposes of this subsection, a "Granting Lender") may grant to a
special purpose funding vehicle organized under the laws of the United States of
America or any state thereof and affiliated or sponsored by such Granting Lender
or one of its affiliates (for the purposes of this subsection, an "SPC") the
option to make, on behalf of such Granting Lender, all or a portion of the Loans
which such Granting Lender is obligated to make (a "Funding Obligation")
hereunder, such option to be exercisable in the sole discretion of the SPC,
provided, however, that
(i) such Granting Lender's obligations under this Agreement
and the Loan Documents shall remain unchanged, including without
limitation the indemnification obligations of the Granting Lender
pursuant to Section 12.7. hereof;
(ii) such Granting Lender shall remain solely responsible to
the other parties hereto for the performance of all Funding
Obligations;
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(iii) the Borrower, the Lenders and the Agent shall continue
to deal solely and directly with such Granting Lender in connection
with such Granting Lender's rights and obligations under this
Agreement, and the Agent shall continue to deal solely and directly
with the Granting Lender as agent for the SPC with respect to
distribution of payment of principal, interest and fees, Notices of
Conversion and Continuation and all other matters;
(iv) such Granting Lender shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans and its
Notes and to approve any amendment, modification, or waiver of any
provisions of this Agreement;
(v) the granting of such option shall not constitute an
assignment to or participation of such SPC of or in the Granting
Lender's Commitment and Obligations owing thereto;
(vi) such SPC shall not become a Lender nor acquire any rights
hereunder as a result of the granting of such option;
(vii) such SPC shall not become obligated or committed to make
Loans as a result of the granting of such option;
(viii) if such SPC elects not to exercise such option or
otherwise fails to make all or any part of any Loan, the Granting
Lender shall retain its Funding Obligation and be obligated to make the
entire Loan or any portion of such Loan not made by such SPC;
(ix) Loans made by an SPC hereunder shall be deemed to satisfy
the Funding Obligation and utilize the Commitment of the Granting
Lender as if, and to the same extent, such Loans were made by such
Granting Lender;
(x) Each party hereto agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Granting
Lender would otherwise be liable so long as, and to the extent, such
Loans were made by such Granting Lender; and
(xi) Each party hereto agrees that, prior to the date that is
one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any
state thereof.
Section 13.6. Amendments.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or in any Loan Document to
be given by the Lenders may be given, and 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, and the performance or observance by the Borrower,
any other Loan Party or any other Subsidiary of any terms of this Agreement or
such other Loan Document (other than any fee letter solely between the Borrower
and the Agent) or 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
(and, in the case of an amendment to any Loan Document, the written consent of
each Loan Party which is party thereto). 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: (a) increase the Commitments of the Lenders or subject the Lenders to
any additional obligations; (b) 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; (c) reduce the amount of any Fees payable to the
Lenders hereunder; (d) postpone any date fixed for any payment of any principal
of, interest on, or Fees with respect to, any Loans or any other Obligations;
(e) change the Commitment Percentages (excluding any change as a result of an
assignment of Commitments permitted under Section 13.5.(d) or an increase of
Commitments effected pursuant to Section 2.17.); (f) modify the definition of
the terms "Revolving Credit Termination Date" or "Termination Date"; (g) amend
this Section or amend the definitions of the terms used in this Agreement or the
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other Loan Documents insofar as such definitions affect the substance of this
Section; (h) 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;
(i) release any Guarantor from its obligations under the Guaranty (except for
releases permitted under Sections 8.14.(d)); (j) modify the definition of the
terms "Maximum Availability" or "Unencumbered Pool Value"; and (k) waive a
Default or Event of Default under Section 11.1.(a). 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 2.4. 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, 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 13.7. 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 Borrower to review or
inform the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
Section 13.8. 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 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 requested 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 or requested by any Governmental Authority or representative thereof
or pursuant to legal process or in connection with any legal proceedings; (d) to
the Agent's or such Lender's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) if an Event of Default exists, 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; and (f) to the extent such information
(x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Agent or any Lender on a nonconfidential
basis from a source other than the Borrower or any Affiliate.
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Section 13.9. 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 affiliates, parents, 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, but excluding losses, costs, claims, damages, liabilities,
deficiencies, judgments or expenses indemnification in respect of which is
specifically covered by Section 3.11. or 5.1. or expressly excluded from the
coverage of such Sections) 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 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 Borrower and the 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 Borrower and the 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
this clause (viii) that constitute 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.
(c) This indemnification shall apply to any Indemnity Proceeding
arising during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts required to
be paid to third-persons by, an Indemnified Party in connection with this
Agreement or any of the other Loan Documents shall be advanced by the Borrower
at the request of such Indemnified Party notwithstanding any claim or assertion
by the Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
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(e) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnity Proceeding
covered by this Section and, as provided above, all costs and expenses incurred
by such Indemnified Party shall be reimbursed by the Borrower. No action taken
by legal counsel chosen by an Indemnified Party in investigating or defending
against any such Indemnity Proceeding shall vitiate or in any way impair the
obligations and duties of the Borrower hereunder to indemnify and hold harmless
each such Indemnified Party; provided, however, that (i) if the Borrower is
required to indemnify an Indemnified Party pursuant hereto and (ii) the Borrower
has provided evidence reasonably satisfactory to such Indemnified Party that the
Borrower has the financial wherewithal to reimburse such Indemnified Party for
any amount paid by such Indemnified Party with respect to such Indemnified
Proceeding, such Indemnified Party shall not settle or compromise any such
Indemnified Proceeding without the prior written consent of the Borrower (which
consent shall not be unreasonably withheld or delayed).
(f) 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.
(g) The Borrower's obligations hereunder shall survive any termination
of this Agreement and the other Loan Documents and the payment in full in cash
of the Obligations, and are in addition to, and not in substitution of, any
other of their obligations set forth in this Agreement or any other Loan
Document to which it is a party.
Section 13.10. Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b)
none of the Lenders is obligated any longer under this Agreement to make any
Loans 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. The indemnities to which the Agent and the Lenders are entitled
under the provisions of Sections 3.12., 5.1., 5.4., 12.7., 13.2. and 13.9. and
any other provision of this Agreement and the other Loan Documents, and the
provisions of Section 13.4., shall continue in full force and effect and shall
protect the Agent and the Lenders (i) notwithstanding any termination of this
Agreement, or of the other Loan Documents, against events arising after such
termination as well as before and (ii) at all times after any such party ceases
to be a party to this Agreement with respect to all matters and events existing
on or prior to the date such party ceased to be a party to this Agreement.
Section 13.11. 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 13.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
Section 13.13. 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.
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Section 13.14. Obligations with Respect to Loan Parties.
The obligations of the Borrower 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 may have that the Borrower does not
control such Loan Parties.
Section 13.15. 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 13.16. Independence of Covenants.
All covenants hereunder shall be given in any jurisdiction independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 13.17. Limitation of Liability.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender shall have any liability
with respect to, and the Borrower hereby waives, releases, and agrees not to sue
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Borrower 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 hereby waives, releases, and agrees
not to sue the Agent or any Lender or any of the Agent's or any Lender's
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.
Section 13.18. Entire Agreement.
This Agreement, the Notes, 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 thereof 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 13.19. Construction.
The Agent, the Borrower 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 Agent, the Borrower and each Lender.
[Signatures on Following Pages]
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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.
Borrower:
PUBLIC STORAGE, INC.
By: /s/ David P. Singelyn
---------------------
Name: David P. Singelyn
Title: Treasurer
[Signatures Continued on Next Page]
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Signature Page to Credit Agreement dated as of
November 1, 2001 with Public Storage, Inc.
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Agent, as the Swingline Lender and
as a Lender
By: /s/ Perry Moreth
----------------
Name: Perry Moreth
Title: Vice President
Commitment Amount:
$40,000,000
Lending Office (all Types of Loans) and
Address for Notices:
1000 Lakes Drive, Suite 250
West Covina, CA 91790
Attn: Perry Moreth
Telecopier: 626-919-2909
Telephone: 626-919-6623
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Signature Page to Credit Agreement dated as of
November 1, 2001 with Public Storage, Inc.
FIRST UNION NATIONAL BANK
By: /s/ David Hoagland
------------------
Name: David Hoagland
Title: Vice President
Commitment Amount:
$30,000,000
Lending Office (all Types of Loans) and
Address for Notices:
One First Union Center
301 South College Street
Charlotte, NC 28288-5604
Attn: David Hoagland
Telecopier: 704-383-6205
Telephone: 704-374-4809
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Signature Page to Credit Agreement dated as of
November 1, 2001 with Public Storage, Inc.
CREDIT SUISSE FIRST BOSTON
By: /s/ Bill O'Daly
---------------
Name: Bill O'Daly
Title: Vice President
By: /s/ Kristin Lepri
-----------------
Name: Kristin Lepri
Title: Assistant Vice President
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Eleven Madison Avenue
New York, NY 10010
Attn: Edward Markowski
Telecopier: 212-538-3477
Telephone: 212-538-3380
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Signature Page to Credit Agreement dated as of
November 1, 2001 with Public Storage, Inc.
AMSOUTH BANK
By: /s/ Arthur J. Sharbel, III
--------------------------
Name: Arthur J. Sharbel, III
Title: Vice President
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans) and
Address for Notices:
1900 5th Avenue North
AmSouth-Sonat Tower, 9th Floor
Birmingham, AL 35203
Attn: Arthur J. Sharbel III
Telecopier: 205-326-4075
Telephone: 205-581-7647
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Signature Page to Credit Agreement dated as of
November 1, 2001 with Public Storage, Inc.
BANKERS TRUST COMPANY
By: /s/ Steve P. Lepham
-------------------
Name: Steve P. Lepham
Title: Director
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans) and
Address for Notices:
300 South Grand Avenue
41st Floor
Los Angeles, CA 90071
Attn: Leon Schwartzman
Telecopier: 213-620-8210
Telephone: 213-620-8297
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Signature Page to Credit Agreement dated as of
November 1, 2001 with Public Storage, Inc.
CITICORP REAL ESTATE, INC.
By: /s/ David Bouton
----------------
Name: David Bouton
Title: Vice President
Commitment Amount:
$25,000,000
Lending Office (all Types of Loans) and
Address for Notices:
390 Greenwich Street
New York, NY 10013
Attn: Michael Psyllos
Telecopier: 212-723-8547
Telephone: 212-723-6789
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Signature Page to Credit Agreement dated as of
November 1, 2001 with Public Storage, Inc.
BANK OF MONTREAL
By: /s/ Greg K. Steele
------------------
Name: Greg K. Steele
Title: Vice President
Commitment Amount:
$15,000,000
Lending Office (all Types of Loans) and
Address for Notices:
115 South LaSalle Street, SW
Chicago, IL 60603
Attn: Thomas Batterham
Telecopier: 312-293-8364
Telephone: 312-293-5852
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Signature Page to Credit Agreement dated as of
November 1, 2001 with Public Storage, Inc.
THE BANK OF NEW YORK
By: /s/ Robert Besser
-----------------
Name: Robert Besser
Title: Vice President
Commitment Amount:
$15,000,000
Lending Office (all Types of Loans) and
Address for Notices:
10990 Wilshire Boulevard
Suite 1125
Los Angeles, CA 90024
Attn: Robert Besser
Telecopier: 310-996-8667
Telephone: 310-996-8663
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