ATL01/10397815v9 A&B Draft 02/24/99
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as
of February 26, 1999 by and among REGENCY CENTERS, L.P., a Delaware limited
partnership (the "Borrower"), REGENCY REALTY CORPORATION, a Florida corporation
(the "Parent"), each of the financial institutions initially a signatory hereto
together with their assignees under Section 12.8. (the "Lenders"), FIRST UNION
NATIONAL BANK, as Syndication Agent (the "Syndication Agent"), WACHOVIA BANK,
N.A., as Documentation Agent (the "Documentation Agent"), each of COMMERZBANK
AKTIENGESELLSCHAFT, ATLANTA AGENCY and pnc bank, national Association, as a
Managing Agent (each a "Managing Agent"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as contractual representative of the Lenders to the extent and in
the manner provided in Article XI. below (in such capacity, the "Agent").
WHEREAS, certain of the Lenders and other financial institutions have
made available to Borrower a $300,000,000 revolving credit facility on the terms
and conditions contained in that certain Credit Agreement dated as of March 27,
1998 (as amended and in effect immediately prior to the date hereof, the
"Existing Regency Credit Agreement") by and among the Borrower, the Parent, such
Lenders, such other financial institutions and Wells Fargo Bank, National
Association, as Agent;
WHEREAS, pursuant to the Merger Agreement (as defined below), Pacific
Retail Trust, a Maryland real estate investment trust ("PRT"), is to merge with
and into the Parent;
WHEREAS, certain of the Lenders and other financial institutions have
made available to PRT a $325,000,000 revolving credit facility on the terms and
conditions contained in that certain Amended and Restated Credit Agreement dated
as of May 18, 1998 (as amended and in effect immediately prior to the date
hereof, the "Existing PRT Credit Agreement") by and among PRT, certain of the
Lenders and other financial institutions, and Wells Fargo Bank, National
Association, as Agent;
WHEREAS, the proceeds of the initial loans to be borrowed by the
Borrower hereunder on the Effective Date (as defined below) will be used to
satisfy in full all outstanding financial obligations owing by PRT under the
Existing PRT Credit Agreement; and
WHEREAS, the Borrower, the Lenders and the Agent desire to amend and
restate the terms of the Existing Regency Credit Agreement in order to make
available to Borrower a $635,000,000 revolving credit facility, including a
$30,000,000 swingline subfacility and a $2,000,000 letter of credit subfacility,
all pursuant to the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree that the Existing Regency Credit Agreement is amended and restated
in its entirety as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
The following terms, as used herein, have the following meanings:
"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.
"Acquisition" means any transaction, or any series of related
transactions, by which a Person directly or indirectly acquires any assets of
another Person, whether through purchase of assets, merger or otherwise.
"Additional Costs" has the meaning given that term in Section 5.1.
"Adjusted Base Rents" means the total rentals from a given Property
which are denominated as base rent or minimum rent under the applicable leases
which shall in any event exclude all percentage rent and reimbursements for
operating expenses, taxes or insurance, and shall be based on actual rents
presently being paid without any rent leveling adjustments.
"Affiliate" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower; (b) directly or indirectly owning or holding ten percent (10%) or
more of any equity interest in the Borrower; or (c) ten percent (10%) or more of
whose voting stock or other equity interest is directly or indirectly owned or
held by 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.
"Agreement Date" means February 26, 1999.
"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%
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2 0.25%
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3 0.30%
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4 0.30%
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5 0.40%
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As of the Agreement Date, the Applicable Facility Fee equals 0.30%.
"Applicable Law" means all applicable provisions of local, state,
federal and foreign constitutions, statutes, rules, regulations, ordinances,
decrees, permits, concessions and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" shall mean, as of any date of determination, the
respective percentage rates set forth below corresponding to the Borrower's
Credit Rating as assigned by the Rating Agencies:
Level Borrower's Credit Rating Applicable Margin Applicable Margin
(S&P/Moody's or equivalent) for LIBOR Loans for
Base Rate Loans
1 A-/A3 or equivalent or higher 0.85% 0.00%
2 BBB+/Baa1 or equivalent 0.90% 0.00%
3 BBB/Baa2 or equivalent 1.00% 0.00%
4 BBB-/Baa3 or equivalent 1.15% 0.00%
5 Less than BBB-/Baa3 or equivalent 1.35% 0.00%
The Agent shall determine the Applicable Margin from time to time in
accordance with the above table and the provisions of this definition and notify
the Borrower and the Lenders of such determination. If the Rating Agencies
assign Credit Ratings which correspond to different Levels in the above 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 and such Credit Ratings are not equivalent, 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. Each change in the Applicable Margin resulting from a
change in a Credit Rating of the Borrower shall take effect on the first
calendar day of the month following the month in which such Credit Rating is
publicly announced by the relevant Rating Agency. As of the Agreement Date, the
Applicable Margin for LIBOR Loans equals 1.075% and for Base Rate Loans equals
0.0%.
"Asset Value" means
(a) with respect to any Subsidiary at a given time, the sum of (i) the
Capitalized EBITDA of such Subsidiary at such time, plus (ii) the Capitalized
Fee Income of such Subsidiary at such time, plus (iii) the book value of all
Construction in Process of such Subsidiary as of the end of the Parent's fiscal
quarter most recently ended, and
(b) with respect to any Unconsolidated Affiliate at a given time the
sum of (i) with respect to any of such Unconsolidated Affiliate's Properties
under construction, the Parent's pro rata share of the book value of
Construction in Process for such Property as of the end of the Parent's fiscal
quarter most recently ended and (ii) with respect to any of such Unconsolidated
Affiliate's Properties which have been completed, the Parent's pro rata share of
Capitalized EBITDA of such Unconsolidated Affiliate attributable to such
Properties.
"Assignee" has the meaning given that term in Section 12.8.(c).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent, substantially in
the form of Exhibit A.
"Base Rate" means the greater of (a) the rate of interest per annum
established from time to time by Wells Fargo, San Francisco, California and
designated as its prime rate (which rate of interest may not be the lowest rate
charged by such bank, 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 any Revolving Loan or Term Loan hereunder with
respect to which the interest rate is calculated by reference to the Base Rate.
"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.(b).
"Bid Rate Note" has the meaning given that term in Section 2.12.
"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).
"Bridge Facility" has the meaning given that term in Section
6.1.(v)(ii).
"Business Day" means (a) any day other than Saturday, Sunday or other
day on which commercial banks in Atlanta, Georgia or San Francisco, California
are authorized or required to close and (b) with reference to LIBOR Loans, any
such 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) 9.25%. In determining Capitalized EBITDA (i) EBITDA
attributable to real estate properties either acquired or disposed of by such
Person during such fiscal quarter shall be disregarded, (ii) Fee Income for the
applicable period shall be excluded from EBITDA, (iii) any amounts deducted from
the net earnings of Properties owned by Consolidated Subsidiaries in which a
third party owns a minority equity interest shall be included in EBITDA; and
(iv) distributions of cash received by such Person during such period from any
of its Unconsolidated Affiliates shall be excluded from EBITDA.
"Capitalized Fee Income" means, with respect to a Person and as of a
given date, (a) such Person's Fee Income for the fiscal quarter most recently
ended times (b) 4 and divided by (c) 20.0%.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with such principles.
"Collateral Account" means a special non-interest bearing deposit
account maintained by the Agent under its sole dominion and control.
"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 Lenders other than the Agent in such
capacity) Letters of Credit pursuant to Section 2.15.(a) and 2.15.(f)
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 2.9. or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 12.8.
"Compliance Certificate" means the certificate described in Section
8.1.(c).
"Consolidated Subsidiary" means, with respect to a Person at any date,
any Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements in accordance with
GAAP, if such statements were prepared as of such date. The term "Consolidated
Subsidiary" shall also include any Preferred Stock Entity the accounts of which
are consolidated with those of such Person in its consolidated financial
statements in accordance with GAAP.
"Construction Budget" means the fully budgeted costs for the
construction, development and redevelopment of a given Development Property,
such budget to include an adequate operating deficiency reserve. For purposes of
this definition the "fully budgeted costs" of a Development Property to be
acquired by a Person upon completion pursuant to a contract in 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
be based on certain performance levels or other related criteria.
"Construction in Process" means construction in process as determined
in accordance with GAAP.
"Contingent Obligation" means, for any Person, any commitment,
undertaking, Guarantee or other obligation constituting a contingent liability
that must be accrued under GAAP.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to the next Interest
Period pursuant to Section 2.5.
"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 2.6.
"Credit Rating" means the lowest rating assigned by a Rating Agency to
each series of rated senior unsecured long term indebtedness of the Borrower.
"Credit Tenant" means any Person which has entered into, and continues
to be subject to, a lease of any portion of a Property and has a rating of at
least BBB- assigned to its senior long-term debt obligations by S&P or Moody's.
For purposes of this Agreement, Publix Super Markets, Inc. shall be deemed a
Credit Tenant.
"Debt Service" means, with respect to any Person and for any period,
the sum of (a) Interest Expense of such Person for such period plus (b)
regularly scheduled principal payments on Indebtedness of such Person during
such period, other than any balloon, bullet or similar principal payment payable
on any Indebtedness of such Person which repays such Indebtedness in full.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defaulting Lender" has the meaning given that term in Section 3.5.
"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 12.8.(d) 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 12.8.(d).
"Designation Agreement" means a Designation Agreement between a Lender
and a Designated Lender and accepted by the Agent, substantially in the form of
Exhibit B or such other form as may be agreed to by such Lender, such Designated
Lender and the Agent.
"Development Property" means either (a) a real estate project acquired
by the Borrower, any Subsidiary, any Unconsolidated Affiliate or any Preferred
Stock Entity as unimproved real estate to be developed as a Property or (b) a
Property acquired by the Borrower, any Subsidiary, any Unconsolidated Affiliate
or any Preferred Stock Entity on which the Borrower, such Subsidiary, such
Unconsolidated Affiliate or such Preferred Stock Entity is to increase
materially the rentable square footage of such Property, in each case for which
an 85% Occupancy Rate has not been achieved. The term "Development Property"
shall include real property of the type described in the immediately preceding
clause (a) or (b) to be (but not yet) acquired by the Borrower, any Subsidiary,
any Unconsolidated Affiliate or any Preferred Stock Entity 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, but shall not include any build-to-suit Property which is 100%
preleased by a single tenant having an investment grade rating assigned to its
senior long-term unsecured debt obligations by a nationally recognized
securities rating agency.
"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 (excluding
equity in net earnings or net loss of Unconsolidated Affiliates) plus the sum of
the following amounts (but only to the extent included in determining net
earnings (loss) for such period): (a) depreciation and amortization expense and
other non-cash charges of such Person for such period plus (b) interest expense
of such Person for such period plus (c) income tax expense of such Person in
respect of such period plus (d) distributions of cash received by such Person
during such period from any of its Unconsolidated Affiliates. EBITDA shall
exclude extraordinary gains of such Person and gains from sales of assets of
such Person for such period but will include extraordinary losses of such
Person, losses from sales of assets of such Person and losses resulting from
forgiveness by such Person of Indebtedness for such period. For purposes of this
definition, net earnings (loss) shall be determined before minority interests
and distributions to holders of Preferred Stock.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 6.1.
"Eligible Assignee" means any Person who is, at the time of
determination: (a) a Lender; (b) a commercial bank, trust company, savings and
loan association, savings bank, insurance company, investment bank or pension
fund organized under the laws of the United States of America, or any state
thereof, and having total assets in excess of $5,000,000,000; or (c) a
commercial bank organized under the laws of any other country which is a member
of the 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 as confirmed by the Agent: (a) such Property is owned in
fee simple by only the Borrower or a Subsidiary of the Borrower; (b) neither
such Property, nor any interest of the Borrower or such Subsidiary therein, is
subject to any Lien other than Permitted Liens or to any agreement (other than
this Agreement or any other Loan Document) that prohibits the creation of any
Lien thereon as security for Indebtedness; (c) if such Property is owned by a
Subsidiary of the Borrower, (i) none of the Borrower's direct or indirect
ownership interest in such Subsidiary is subject to any Lien other than
Permitted Liens or to any agreement (other than this Agreement or any other Loan
Document) that prohibits the creation of any Lien thereon as security for
Indebtedness and (ii) the Borrower directly, or indirectly through a Subsidiary,
has the right to take the following actions without the need to obtain the
consent of any Person: (A) to create Lien on such Property as security for
Indebtedness of the Borrower or such Subsidiary, as applicable and (B) to sell,
transfer or otherwise dispose of such Property; (d) such Property is not a
Development Property and has an Occupancy Rate which has remained stabilized;
(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; (f) such Property is not subject to a ground lease
(other than a lease of land on such Property by the Borrower or such Subsidiary
to a Person which is not an Affiliate) and (g) such Property is improved with a
shopping center or a stand-alone building containing a grocery store occupied by
a Credit Tenant. Prior to March 31, 1999, the requirements contained in the
immediately preceding clauses (a) through (c), shall be disregarded with respect
to each Regency Office Property so long as (1) such Regency Office Property is
otherwise an Eligible Property; (2) such Regency Office Property is owned in fee
simple by Regency Office; (3) Regency Office is a Wholly Owned Subsidiary of the
Parent; (4) such Regency Office Property is not, nor is any interest of Regency
Office therein, subject to any Lien other than Permitted Liens or to any
agreement (other than this Agreement or any other Loan Document) that prohibits
the creation of any Lien thereon as security for Indebtedness; and (5) none of
the Parent's direct or indirect ownership interest in Regency Office is subject
to any Lien other than Permitted Liens or to any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien
thereon as security for Indebtedness. For purposes of this definition only, when
determining the Occupancy Rate for a given Property which is a retail shopping
center, an anchor tenant who has vacated its space shall nonetheless be deemed
to occupy such space if such tenant is continuing to pay all rental payments
when due under its lease and either of the following two conditions apply, as
the case may be: (i) if such Property has two or more anchor tenants and the
other anchor tenants still actually occupy their respective spaces or (ii) such
space is undergoing construction to meet the specific needs of a new anchor
tenant who has either subleased the space from the existing tenant or who is
obligated to lease such space upon substantial completion of such construction.
"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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
that are treated as a single employer under Section 414 of the Internal Revenue
Code.
"ERISA Plan" means any employee benefit plan subject to Title I of
ERISA.
"Event of Default" means the occurrence of any of the events specified
in Section 10.1., whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or nongovernmental body; provided that any requirement for notice
or lapse of time or any other condition has been satisfied.
"Executive Memorandum" means the set of information provided to the
investment committee of the Parent's board of directors in connection with the
purchase or acquisition of a Property. The Executive Memorandum shall include,
at a minimum, the following information relating to such Property: (a) a
description of such Property, such description to include the age, location,
site plan and current occupancy rate of such Property; (b) the purchase price
paid or to be paid for such Property; (c) the capitalization rate for such
Property; (d) a summary of the existing tenants of such Property; (e) grocery
sales information for any grocery store tenants of such Property and a
competitive retail inventory for such Property; (f) either current operating
statements for such Property for the immediately preceding fiscal year and for
current fiscal year through the fiscal quarter most recently ending (to the
extent reasonably available to Borrower) or pro forma operating statements for
such Property; and (g) other demographic and trade information relating to such
Property.
"Existing PRT Credit Agreement" is defined in the recitals herein.
"Existing Regency Credit Agreement" is defined in the recitals herein.
"Extension Request" has the meaning given that term in Section 2.10.(a).
"Federal Funds Rate" means, on any day, the rate per annum (rounded
upward, if necessary, 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 as so published on the next succeeding Business Day,
and (b) if no such rate is published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to the Agent on
such day on such transactions as reasonably determined by the Agent.
"Fee Income" means, with respect to a Person and for a given period,
the amount of net income accrued by such Person during such period from fees,
commissions and other compensation derived from (a) managing and/or leasing
properties owned by third parties; (b) developing properties for third parties;
(c) arranging for property acquisitions by third parties; (d) arranging
financing for third parties and (e) consulting and business services performed
for third parties.
"Funds From Operations" means, with respect to a Person and for a given
period, net earnings (loss) of such Person for such period (excluding equity in
net earnings or net loss of Unconsolidated Affiliates) plus the sum of the
following amounts (but only to the extent included in determining net income
(loss) for such period): (a) depreciation and amortization expense, deferred
taxes and other non-cash charges of such Person with respect to its real estate
assets for such period plus (b) losses from sales of assets of such Person and
losses resulting from restructuring of Indebtedness of such Person, all for such
period minus (c) gains from sales of assets of such Person and gains resulting
from restructuring of Indebtedness of such Person, all for such period plus (d)
such Person's pro rata share of Funds From Operations of such Person's
Unconsolidated Affiliates plus (e) adjustments for straight-line rent leveling
for such period.
"GAAP" shall mean 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.
"Gross Asset Value" means, at a given time, the sum of (a) the
Capitalized EBITDA of the Parent and its Consolidated Subsidiaries at such time,
plus (b) the Capitalized Fee Income of the Parent and its Consolidated
Subsidiaries at such time, plus (c) the purchase price paid by the Parent or any
Consolidated Subsidiary (less any amounts paid to the Parent or such
Consolidated Subsidiary as a purchase price adjustment, held in escrow, retained
as a contingency reserve, or other similar arrangements) for any real property
acquired by the Parent or such Consolidated Subsidiary as a Property other than
a Development Property during the Parent's fiscal quarter most recently ended,
plus (d) all of Parent's and its Consolidated Subsidiaries' cash and cash
equivalents as of the end of such fiscal quarter (excluding tenant deposits and
other cash and cash equivalents the disposition of which is restricted in any
way (excluding restrictions in the nature of early withdrawal penalties)), plus
(e) with respect to each of the Parent's Unconsolidated Affiliates, (i) with
respect to any of such Unconsolidated Affiliate's Properties under construction,
the Parent's pro rata share of the book value of Construction in Process for
such Property as of the end of such fiscal quarter and (ii) with respect to any
of such Unconsolidated Affiliate's Properties which have been completed, the
Parent's pro rata share of Capitalized EBITDA of such Unconsolidated Affiliate
attributable to such Properties, plus (f) the book value of all Construction in
Process for real property acquired for development the Parent or any
Consolidated Subsidiary as a Property as such book value is set forth on the
Parent's consolidated balance sheet most recently delivered to the Lenders under
Section 8.1.(a) or (b) plus (g) the contractual purchase price of any property
subject to a purchase obligation, repurchase obligation or forward commitment
which at such time could be specifically enforced by the seller of such
property, but only to the extent such obligations are included in the Parent's
or any Consolidated Subsidiary's Total Liabilities plus (h) in the case of any
property subject to a purchase obligation, repurchase obligation or forward
commitment which at such time could not be specifically enforced by the seller
of such property, the aggregate amount of due diligence deposits, earnest money
payments and other similar payments made under the applicable contract which, at
such time, would be subject to forfeiture upon termination of the contract, but
only to the extent such amounts are included in the Parent's or any Consolidated
Subsidiary's Total Liabilities.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means any Person that is party to the Guaranty as a
"Guarantor"
"Guaranty" means the Guaranty executed and delivered by the Guarantors
substantially in the form of Exhibit O.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Hedge Agreements" means, collectively, Interest Rate Agreements,
commodity future or option contracts, currency swap agreements, currency future
or option contracts and other similar agreements.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication and determined on
a consolidated basis): (a) obligations of such Person in respect of money
borrowed; (b) obligations of such Person (other than trade debt incurred in the
ordinary course of business), whether or not for money borrowed (i) represented
by notes payable, or drafts accepted, in each case representing extensions of
credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or
(iii) constituting purchase money indebtedness, conditional sales contracts,
title retention debt instruments or other similar instruments, upon which
interest charges are customarily paid or that are issued or assumed as full or
partial payment for property; (c) 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
Indebtedness of other Persons which (i) such Person has Guaranteed or which is
otherwise recourse to such Person or (ii) is secured by a Lien on any property
of such Person; (f) all Indebtedness of any other Person of which such Person is
a general partner; and (g) with respect to Indebtedness of an Unconsolidated
Affiliate, (i) all such Indebtedness which such Person has Guaranteed or is
otherwise obligated on a recourse basis and (ii) such Person's Ownership Share
of all other Indebtedness of such Unconsolidated Affiliate.
"Interest Expense" means, with respect to a Person and for any period,
(a) the total interest expense (including, without limitation, capitalized
interest expense 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.
In addition to such periods, the Borrower may request Interest Periods for LIBOR
Loans having durations of at least 7, but not more than 30, days no more than
ten times during any 12-month period beginning during the term of this Agreement
but only in anticipation of (i) the Borrower's prepayment of such LIBOR Loans
from equity or debt offerings, financings or proceeds resulting from the sale or
other disposition of major assets of the Borrower or any of its Subsidiaries or
(ii) changes in the amount of the Lenders' Commitments associated with a
modification of this Agreement;
(b) with respect to any Absolute Rate Loan, the period commencing on
the date such Absolute Rate Loan is made and ending on the numerically
corresponding day in the first, second, or third calendar month thereafter, as
the Borrower may select as provided in Section 2.2.(b), 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
(c) with respect to any LIBOR Margin Loan, each period commencing on
the date such LIBOR Margin Loan is made and ending on the numerically
corresponding day in the first, second or third calendar month thereafter, as
the Borrower may select as provided in Section 2.2.(b), 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.
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 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) notwithstanding either of the immediately preceding clauses (i) and (ii)
but except as otherwise provided in the second sentence of the immediately
preceding clause (a), no Interest Period for any LIBOR Loan shall have a
duration of less than one month and, if the Interest Period for any LIBOR 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
contractual agreement or arrangement entered into by a Person with a nationally
recognized then rated investment grade financial institution for the purpose of
protecting such Person against fluctuations in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock or other equity interest,
evidence of Indebtedness or other security issued by any other Person; (b) any
loan, advance or extension of credit to, or contribution to the capital of, any
other Person; (c) any Guarantee of the Indebtedness of any other Person; (d) the
subordination of any claim against a Person to other Indebtedness of such
Person; and (e) any other investment in any other Person.
"Investment Grade Rating" means a Credit Rating of BBB- or higher by
S&P or Baa3 or higher by Moody's.
"L/C Commitment Amount" means an amount equal to $2,000,000.
"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; provided, however, that 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 12.8.(d), have the rights (including the
rights given to a Lender contained in Sections 12.3. and 12.5.) 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 any
applicable Assignment or Acceptance Agreement or such other office of such
Lender as such Lender may notify the Agent from time to time.
"Letter of Credit" has the meaning set forth in Section 2.15.(a).
"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" shall mean, 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 in the related Letter of Credit under Section 2.15.(f),
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.
"LIBO Rate" means, with respect to each Interest Period, for any LIBOR
Loan or LIBOR Margin Loan, the average rate of interest per annum (rounded
upwards, if necessary, to the next highest 1/16th of 1%) at which deposits in
immediately available funds in Dollars are offered to Wells Fargo Bank, National
Association (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, 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 the LIBO Rate 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 the LIBO Rate pursuant to Section 2.2.
"LIBOR Loan" means any Revolving Loan or Term Loan hereunder with
respect to which the interest rate is calculated by reference to the LIBO Rate
for a particular Interest Period.
"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 the LIBO Rate pursuant to a LIBOR Auction.
"Lien" as applied to the property of any Person means: (a) any
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 interest, 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; and (c) the filing of, or any agreement to give, any
financing statement under the Uniform Commercial Code or its equivalent in any
jurisdiction.
"Loan" means a Revolving Loan, a Bid Rate Loan, a Swingline Loan or a Term Loan.
"Loan Document" means this Agreement, each of the Notes, each Letter of
Credit Document, the Guaranty, each Accession Agreement, any agreement
evidencing the fees referred to in Section 3.1.(e) and each other document or
instrument executed and delivered by the Borrower or any other Loan Party in
connection with this Agreement or any of the other foregoing documents.
"Loan Party" means each of the Borrower and each Guarantor.
"Majority Lenders" means, as of any date, (a) all Lenders, if there are
fewer than three Lenders party hereto at such time and (b) the Lenders whose
combined Pro Rata Shares equal or exceed 66-2/3%, if there are three or more
Lenders party hereto at such time.
"Material Contract" means any agreement, lease, Mortgage, indenture, or
other contract or other arrangement (other than Loan Documents), whether written
or oral, to which the Borrower, any Guarantor or any other Subsidiary is a party
as to which the breach, nonperformance, cancellation or failure to renew by any
party thereto could have a Materially Adverse Effect.
"Materially 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 Consolidated Subsidiaries, or the Parent
and its Consolidated 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
such Loan Documents, (d) the rights and remedies of the Lenders and the Agent
under any of such Loan Documents or (e) the timely payment of the principal of
or interest on the Loans or other amounts payable in connection therewith.
Except with respect to representations made or deemed made by the Borrower under
Article VII. or in any of the other Loan Documents to which it is a party, all
determinations of materiality shall be made by the Agent in its reasonable
judgment unless expressly provided otherwise.
"Maximum Loan Availability" means, at any time, the lesser of (a) an
amount equal to the positive difference, if any, of (i) the Unencumbered Pool
Value divided by 1.75, minus (ii) all Unsecured Liabilities (other than the
Loans and the Letter of Credit Liabilities), of the Parent and its Subsidiaries
determined on a consolidated basis and (b) the aggregate amount of the
Commitments at such time.
"Merger Agreement" means that certain Agreement and Plan of Merger
dated as of September 23, 1998, between the Parent and PRT pursuant to which,
among other things, PRT will merge with and into the Parent.
"Moody's" means Moody's Investors Services, Inc.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or
similar security instrument made or to be made by a Person owning an interest in
real estate granting a Lien on such interest in real estate as security for the
payment of Indebtedness.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Borrower or
any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Operating Income" means, for any Property and for a given period,
the sum of the following (without duplication): (a) rents and other revenues
received in the ordinary course from such Property (including proceeds of rent
loss insurance but excluding pre-paid rents and revenues and security deposits
except to the extent applied in satisfaction of tenants' obligations for rent)
minus (b) all expenses paid or accrued related to the ownership, operation or
maintenance of such property, including but not limited to taxes, assessments
and 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 Borrower and
any property management fees) minus (c) the Reserve for Replacements for such
Property as of the end of such period minus (d) the greater of (i) the actual
property management fee paid during such period and (ii) an imputed management
fee in the amount of four percent (4.0%) of the gross revenues for such Property
for such period.
"Net Worth" means, for any Person and as of a given date, such Person's
total consolidated stockholder's equity plus, in the case of the Parent and its
Consolidated Subsidiaries, increases in accumulated depreciation accrued after
the Agreement Date 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 contained in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (b) the aggregate of
all amounts appearing on the assets side of any such balance sheet for
franchises, licenses, permits, patents, patent applications, copyrights,
trademarks, trade names, goodwill, treasury stock, experimental or
organizational expenses and other like assets which would be classified as
intangible assets under GAAP, all determined on a consolidated basis.
"Non-ERISA Plan" means any Plan subject to Section 4975 of the Internal
Revenue Code.
"Non-Guarantor Entity" means (a) any Subsidiary not required to become
a party to the Guaranty under to Section 8.24.(a); (b) any Preferred Stock
Entity; and (c) any Unconsolidated Affiliate of the Parent or the Borrower.
"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, environmental matters, waste, misapplication
of insurance proceeds, and other similar exceptions acceptable to the Agent in
its sole discretion) 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 a Swingline Note.
"Notice of Borrowing" means a notice in the form of Exhibit F to be
delivered to the Agent pursuant to Section 2.1. evidencing the Borrower's
request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit G to be
delivered to the Agent pursuant to Section 2.5. evidencing the Borrower's
request for the Continuation of a borrowing of Revolving Loans.
"Notice of Conversion" means a notice in the form of Exhibit H to be
delivered to the Agent pursuant to Section 2.6. evidencing the Borrower's
request for the Conversion of a borrowing of Revolving Loans.
"Notice of Swingline Borrowing" means a notice in the form of Exhibit L
to be delivered to the Swingline Lender pursuant to Section 2.3.(b) evidencing
the Borrower's request for a Swingline Loan.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; (c) any
and all renewals and extensions of any of the foregoing and (d) all other
indebtedness, liabilities, obligations, covenants and duties of the Borrower
owing to the Agent and/or the Lenders and/or the Swingline Lender of every kind,
nature and description, under or in respect of this Agreement or any of the
other Loan Documents, 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 monetary default has occurred and is continuing to (b) the aggregate
net rentable square footage of such Property.
"Ownership Share" means, with respect to any Subsidiary of a Person
that is not a Wholly Owned Subsidiary, and any Preferred Stock Entity 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, Preferred Stock Entity or Unconsolidated Affiliate or (b)
subject to compliance with Section 8.1.(t), such Person's relative direct and
indirect economic interest (calculated as a percentage) in such Subsidiary,
Preferred Stock Entity 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,
Preferred Stock Entity or Unconsolidated Affiliate.
"Parent" means Regency Realty Corporation, a Florida corporation.
"Participant" has the meaning given that term in Section 12.8.(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) pledges or deposits made to secure payment
of worker's compensation (or to participate in any fund in connection with
worker's compensation insurance), unemployment insurance, pensions or social
security programs; (b) encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, provided that such
items do not materially impair the use of such property for the purposes
intended and none of which is violated in any material respect by existing or
proposed structures or land use; (c) the following to the extent no Lien has
been filed in any jurisdiction or agreed to: (i) Liens for taxes not yet due and
payable; or (ii) Liens imposed by mandatory provisions of Applicable Law such as
for materialmen's, mechanic's, warehousemen's and other like Liens arising in
the ordinary course of business, securing payment of Indebtedness the payment of
which is not yet due; (d) Liens for taxes, assessments and governmental charges
or assessments that are being contested in good faith by appropriate proceedings
diligently conducted, and in which reserves acceptable to the Agent have been
provided; (e) Liens expressly permitted under the terms of the Loan Documents;
and (f) any extension, renewal or replacement of the foregoing to the extent
such Lien as so extended, renewed or replaced would otherwise be permitted
hereunder.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code.
"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.
"Preferred Stock Entity" means any Person (other than a Subsidiary) in
whom the Borrower or the Parent owns, directly or indirectly, all of the
Preferred Stock or other equity interests which are not Voting Stock and which
Preferred Stock or other equity interests entitle the Borrower to receive the
majority of all economic benefits associated with ownership of all equity
interests issued by such Person.
"Principal Office" means the office of the Agent located at 2120 E.
Park Place, Suite 100, El Segundo, California 90245, or such other office of the
Agent as the Agent may designate from time to time.
"Pro Rata Share" 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 shall
have been terminated, 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.
"Property" means real property improved with (a) one or more operating
retail shopping centers or (b) a stand-alone building containing a grocery store
occupied by a Credit Tenant, in either case that is owned directly or
indirectly, in whole or in part, by the Borrower, or solely for purposes of
determining Unencumbered NOI, owned directly or indirectly, in whole or in part,
by the Parent.
"Property Certificate" means a certificate substantially in the form of
Exhibit R.
"PRT" means Pacific Retail Trust, a Maryland real estate investment
trust.
"PRT Acquisition" means the Acquisition by the Parent of all of the
shares of beneficial interest of PRT pursuant to the terms and conditions of the
Merger Agreement.
"Rating Agencies" means any two nationally recognized securities rating
agencies designated by the Borrower and acceptable to the Agent. One of such
ratings agencies must be either (a) Moody's or (b) S&P, but if both such
corporations cease to act as a securities rating agency or cease to provide
ratings with respect to the senior long-term unsecured debt obligations of the
Borrower, the Borrower may designate as a replacement Rating Agency any
nationally recognized securities rating agency acceptable to the Agent.
"Regency Office" means Regency Office Partnership, L.P.
"Regency Office Properties" means the two Properties owned by Regency
Office and referred to as the "Cherry Grove" shopping center and the
"Bloomingdale" shopping center.
"Regulations U and X" means Regulations U and X of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"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.
"Reportable Event" has the meaning set forth in Section 4043(b) of
ERISA, but shall not include a Reportable Event as to which the provision for 30
days' notice to the PBGC is waived under applicable regulations.
"Reserve for Replacements" means, for any period and with respect to
any Property, an amount equal to (a)(i) the aggregate square footage of all
completed space of such Property if such Property is owned by the Parent or any
of its Subsidiaries or (ii) the Parent's or such Subsidiary's Ownership Share of
the aggregate square footage of all completed space of such Property if such
Property is owned by an Unconsolidated Affiliate or Preferred Stock Entity times
(b) $0.15 times (c) the number of days in such period divided by (d) 365.
"Restricted Payment" means, with respect to a Person: (a) any dividend
or other distribution, direct or indirect, on account of any shares or other
equity units of any class of stock, partnership interest or other equity
interest, as applicable, of such Person now or hereafter outstanding, except a
dividend payable solely in shares or other equity units of that class of stock,
partnership interest or other equity interest, as applicable, 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 or other equity units of any class of stock, partnership interests
or other equity interests, as applicable, of such Person now or hereafter
outstanding; and (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares or other
equity units of any class of stock, partnership interests or other equity
interests, as applicable, of such Person now or hereafter outstanding.
"Revolving Credit Termination Date" means the earlier to occur of (a)
February 26, 2001, or such later date to which such date may be extended in
accordance with Section 2.10. or (b) the date on which the Revolving Loans are
converted into Term Loans pursuant to Section 2.11.
"Revolving Loan" means a loan made by a Lender under Section 2.1.
"Revolving Note" has the meaning given that term in Section 2.12.
"Revolving Period" means the period commencing on the Effective Date
and ending on the earlier of (a) the Revolving Credit Termination Date or (b)
the date on which the Revolving Loans are converted into the Term Loan pursuant
to Section 2.11.
"Secured Indebtedness" means, with respect to any Person, any
Indebtedness of such Person that is secured in any manner by any Lien on any
real property and shall include 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, and all
rules and regulations issued pursuant thereto.
"Single Asset Subsidiary" means a Subsidiary that meets all of the
following requirements: (a) such Subsidiary only owns a single Property; (b)
such Subsidiary is engaged only in the business of leasing such Property to
other Persons; (c) such Subsidiary receives substantially all of its gross
revenues from the leasing of such Property; and (d) such Subsidiary is not
obligated in respect of any Indebtedness other than Indebtedness for borrowed
money secured by a Lien encumbering such Property.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any Affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities); and (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature and (c) that the Person has capital not unreasonably small to carry
on its business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Services, a division of
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.
"Stein Parties" means (a) Joan Stein, Richard Stein, Robert Stein and
Martin E. Stein, Jr. and (b) The Regency Group, Inc.,The Regency Group II, Ltd.
and Regency Square II but only so long as the foregoing individuals own,
directly or indirectly, all of the capital stock of any such entity.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. "Wholly Owned Subsidiary" means any such
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are so owned or controlled.
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.3. in an amount up to, but not exceeding,
$30,000,000, 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 2.3.(a).
"Swingline Termination Date" means the date which is seven Business
Days prior to the Revolving Credit Termination Date.
"Swingline Note" means the promissory note of the Borrower 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,
substantially in the form of Exhibit E.
"Taxes" has the meaning given that term in Section 3.11.
"Term Loan" has the meaning given that term in Section 2.11.
"Termination Date" means the date two years after the Revolving Credit
Termination Date.
"Termination Event" means (a) a Reportable Event; (b) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA or (c) the institution of proceedings to
terminate a Plan by the PBGC under Section 4042 of ERISA, or the appointment of
a trustee to administer any Plan.
"Total Liabilities" means, as to any Person as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on the consolidated balance sheet of such Person as of such date, and
in any event shall include (without duplication): (a) all Indebtedness of such
Person; (b) all accounts payable 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,
without limitation, all Guarantees of Indebtedness by such Person; and (g) all
liabilities of any Unconsolidated Affiliate of such Person, which liabilities
such Person has Guaranteed or is otherwise obligated on a recourse basis. For
purposes of clauses (c) and (d) of this definition, the amount of Total
Liabilities of a Person at any given time in respect of a contract to purchase
or otherwise acquire unimproved or fully developed real property shall be equal
to (i) the total purchase price payable by such Person under the contract if, at
such time, the seller of such real property would be entitled to specifically
enforce the contract against such Person, otherwise, (ii) the aggregate amount
of due diligence deposits, earnest money payments and other similar payments
made by such Person under the contract which, at such time, would be subject to
forfeiture upon termination of the contract. For purposes of clauses (c) and (d)
of this definition, the amount of Total Liabilities of a Person at any given
time in respect of 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, an Absolute Rate Loan or a LIBOR Margin Loan.
"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. The term "Unconsolidated Affiliate" shall also include any
Preferred Stock Entity in which a Person has made 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 any other Property
which satisfies the following requirements: (a) such Property is owned in fee
simple by only the Parent or a Subsidiary; (b) neither such Property, nor any
interest of the Parent or such Subsidiary therein, is subject to any Lien other
than Permitted Liens or to any agreement (other than this Agreement or any other
Loan Document) that prohibits the creation of any Lien thereon as security for
Indebtedness; (c) if such Property is owned by a Subsidiary, (i) none of the
Parent's direct or indirect ownership interest in such Subsidiary is subject to
any Lien other than Permitted Liens or to any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien
thereon as security for Indebtedness and (ii) the Parent directly, or indirectly
through a Subsidiary, has the right to take the following actions without the
need to obtain the consent of any Person: (A) to create Lien on such Property as
security for Indebtedness of the Parent or such Subsidiary, as applicable and
(B) to sell, transfer or otherwise dispose of such Property; and (d) 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.
"Unencumbered Pool Certificate" means a report, certified by the chief
financial officer of the Borrower in the manner provided for in Exhibit P,
setting forth the calculations required to establish the Unencumbered Pool Value
as of a specified date, all in form and detail satisfactory to the Agent.
"Unencumbered Pool Properties" means those Eligible Properties that
have been approved pursuant to Article IV. for inclusion when calculating the
Maximum Loan Availability.
"Unencumbered Pool Value" means, at any time, the sum of the following
amounts as determined for each Unencumbered Pool Property: (a) the Net Operating
Income of such Unencumbered Pool Property for the fiscal quarter most recently
ended times (b) 4 and divided by (c) 9.25%. For purposes of this definition, the
Unencumbered Pool Value for any period for any Unencumbered Pool Property owned
by a Subsidiary which is not a Wholly Owned Subsidiary shall be limited to the
Borrower's Ownership Share of the distributed Net Operating Income of such
Unencumbered Pool Property for such period. Notwithstanding anything set forth
in this definition to the contrary, not more than 20% of the total Unencumbered
Pool Value can be attributable to Unencumbered Pool Properties owned by
Subsidiaries of the Borrower that are not Wholly Owned Subsidiaries.
"Unprotected Floating Rate Debt" means all Indebtedness of a Person
(including, without limitation, Indebtedness of Unconsolidated Affiliates of
such Person which Indebtedness is recourse to such Person) which bears interest
at a variable rate that fluctuates during the scheduled life of such
Indebtedness and for which such Person has not obtained Interest Rate Agreements
which effectively cause such variable rates to be equivalent to fixed rates less
than or equal to 9% per annum.
"Unsecured Indebtedness" means, with respect to a Person, all
Indebtedness of such Person that is not Secured Indebtedness.
"Unsecured Liabilities" means, as to any Person as of a given date, (a)
all liabilities which would, in conformity with GAAP, be properly classified as
a liability on the consolidated balance sheet of such Person as at such date
plus (b) all Indebtedness of such Person (to the extent not included in the
preceding clause (a)) minus (c) all Secured Indebtedness of such Person. When
determining the Unsecured Liabilities of the Parent and its Subsidiaries: (i)
the following (to the extent not in excess of $1,500,000 in the aggregate) shall
be excluded: (A) any amounts related to contributions by the Borrower paid in
the Borrower's capital stock to the 401(k) plan maintained by the Borrower and
(B) contributions paid by the Borrower to the Borrower's Long-term Omnibus Plan;
(ii) accounts payable and accrued dividends payable shall be included only to
the extent the aggregate amount thereof exceeds the aggregate amount of
unrestricted cash then reportable on a consolidated balance sheet of the
Borrower and (iii) accrued property taxes in respect of real property shall be
included only to the extent the aggregate amount thereof exceeds the aggregate
amount of cash held by the Borrower and its Subsidiaries in escrow for the
payment of such taxes at such time.
"Unsecured Interest Expense" means, with respect to a Person and for a
given period, all Interest Expense for such period attributable the Unsecured
Indebtedness of such Person.
"U.S. Realty" means Security Capital U.S. Realty, a Luxembourg societe
d'investment a capital variable.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency
"Wells Fargo" means Wells Fargo Bank, National Association.
SECTION 1.2. General; References to Time.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with, and all
financial statements required to be delivered under any Loan Document shall be
prepared in accordance with, GAAP. With respect to any Property which has not
been owned by a Loan Party for a full fiscal quarter, financial amounts with
respect to such Property shall be adjusted appropriately to account for such
lesser period of ownership unless specifically provided otherwise herein.
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, 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 and in effect at
any given time. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and plural,
and pronouns stated in the masculine, feminine or neuter gender shall include
the masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Parent or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
reference to an Affiliate of the Borrower. Unless otherwise indicated, all
references to time are references to San Francisco, California time.
ARTICLE II. CREDIT FACILITY
SECTION 2.1. Revolving Loans.
(a) Making of Revolving Loans. Subject to the terms and conditions set
forth in this Agreement and the limitations set forth in Section 2.14., each
Lender severally and not jointly agrees to make Revolving Loans to the Borrower
during the period from and including the Effective Date to but excluding the
Revolving Credit Termination Date, in an aggregate principal amount at any one
time outstanding up to, but not exceeding such, Lender's Pro Rata Share of the
Maximum Loan Availability. Each borrowing of Revolving Loans hereunder shall be
in an aggregate principal amount of $1,000,000 and integral multiples of
$100,000 in excess of that amount (except that any such borrowing of Revolving
Loans may be in the aggregate amount of the unused Commitments, which Revolving
Loans, if less than $1,000,000, must be Base Rate Loans). Within the foregoing
limits and subject to the other terms of this Agreement, the Borrower may
borrow, repay and reborrow Revolving Loans. Upon the Effective Date, all
Revolving Loans (as defined under the Existing Regency Credit Agreement) then
outstanding under the Existing Regency Credit Agreement shall be deemed to be
Revolving Loans to the Borrower outstanding hereunder being of the same Types,
and in the case of LIBOR Loans, having the same Interest Periods. As of the
Effective Date, such Revolving Loans shall be allocated among the Lenders in
accordance with their respective Pro Rata Shares. Each Lender agrees to make
such payments to the other Lenders and any Person who ceased to be a "Lender"
under the Existing Regency Credit Agreement upon the Effective Date in such
amounts as are necessary to effect such allocation. All such payments shall be
made to the Agent for the account of the Person to be paid.
(b) Requests for Revolving Loans. Not later than 9:00 a.m. at least two
Business Days prior to a borrowing of Base Rate Loans and not later than 9:00
a.m. at least three Business Days prior to a borrowing of LIBOR Loans, the
Borrower shall deliver to the Agent a Notice of Borrowing. Each Notice of
Borrowing shall specify the principal amount of the Revolving Loan to be
borrowed, the date such Revolving Loan is to be borrowed (which must be a
Business Day), the use of the proceeds of such Revolving Loan, the Type of the
requested Revolving Loan and if such Revolving Loan is to be a LIBOR Loan, the
initial Interest Period for such Revolving Loan. Each Notice of Borrowing shall
be irrevocable once given and binding on the Borrower. Prior to delivering a
Notice of Borrowing, the Borrower may (without specifying whether a Revolving
Loan will be a Base Rate Loan or a LIBOR Loan) request that the Agent provide
the Borrower with the most recent LIBO Rate available to the Agent. The Agent
shall provide such quoted rate to the Borrower and to the Lenders on the date of
such request or as soon as possible thereafter.
(c) Funding of Revolving Loans. Promptly after receipt of a Notice of
Borrowing under Section 2.1.(b), the Agent shall notify each Lender by telex or
telecopy, or other similar form of transmission of the proposed borrowing. Each
Lender shall deposit an amount equal to its Pro Rata Share of the Revolving Loan
requested by the Borrower with the Agent at the Principal Office, in immediately
available funds not later than 9:00 a.m. on the date of such proposed Revolving
Loan. Upon fulfillment of all applicable conditions set forth herein, the Agent
shall make available to the Borrower at the Principal Office, not later than
12:00 noon on the date of the requested Revolving Loan, the proceeds of such
amounts received by the Agent. The failure of any Lender to deposit the amount
described above with the Agent shall not relieve any other Lender of its
obligations hereunder to make its Pro Rata Share of a Revolving Loan.
(d) Unless the Agent shall have been notified by any Lender that such
Lender will not make available to the Agent such Lender's Pro Rata Share of a
proposed Revolving Loan, the Agent may in its discretion assume that such Lender
has made such Pro Rata Share of such Revolving Loan available to the Agent in
accordance with this Section and the Agent may, if it chooses, in reliance upon
such assumption, make such Pro Rata Share of such Revolving Loan available to
the Borrower.
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 from both S&P and Moody's, 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.
Upon the Effective Date, all Bid Rate Loans owing to a Lender then outstanding
under the Existing Credit Agreement shall be deemed to be Bid Rate Loans to
Borrower and made by such Lender outstanding hereunder being of the same Types
and having the same Interest Periods.
(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 9:00 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 (for which purpose Interest Periods in different lettered clauses
of the definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous); 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 I and shall specify as to
each Bid Rate Borrowing:
(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 $15,000,000 and integral multiples
of $1,000,000 in excess thereof which shall not cause any of the
limits specified in Section 2.14. to be violated;
(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 deliver no more than one Bid Rate Quote Request in
any calendar month and no Bid Rate Quote Request shall be delivered within five
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 7:30 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
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 X., 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 12.8.(d),
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 J 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 $5,000,000 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 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 8:30
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 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 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 K. 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:
(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) but shall not cause the limits specified in
Section 2.14. to be violated;
(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 $5,000,000 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 (x) 10:00 a.m. 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 12.8. 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 11:00 a.m. on the date specified
for the making of such Loan, make the amount of such Loan available to the Agent
at its Principal Office 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
12:00 noon 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 2.9., the amount of any Bid Rate Loan made by any
Lender shall not constitute a utilization of such Lender's Commitment.
SECTION 2.3. Swingline Loans.
(a) Swingline Loans. Subject to the terms and conditions hereof,
including, without limitation Section 2.14., if necessary to meet Borrower's
funding deadline, 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 9:00 a.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 11:00 a.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 a per annum rate
equal to the Base Rate as in effect from time to time or at such other rate or
rates as the Borrower and the Swingline Lender may agree from time to time in
writing. 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 2.8. 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 $1,000,000 and integral multiples of $100,000 in excess
thereof, or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. Any voluntary prepayment of a Swingline Loan must be in integral
multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the Swingline Lender
and the Borrower may agree) and in connection with any such prepayment, the
Borrower must give the Swingline Lender prior written notice thereof no later
than 10:00 a.m. on the day prior to the date of such prepayment. The Swingline
Loans shall, in addition to this Agreement, be evidenced by the Swingline Note.
(e) Repayment and Participations of Swingline Loans. The Borrower
agrees to repay each Swingline Loan 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 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 Base
Rate Loans from the Lenders in an amount equal to the principal balance of such
Swingline Loan. The amount limitations contained in the second sentence of
Section 2.1.(a) shall not apply to any borrowing of 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 9:00 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
10.1.(g) or 10.1.(h), each Lender shall purchase from the Swingline Lender,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Pro Rata Share of such Swingline Loan, by directly
purchasing a participation in such Swingline Loan in such amount and paying the
proceeds thereof to the Agent for the account of the Swingline Lender in Dollars
and in immediately available funds. A Lender's obligation to purchase such a
participation in a Swingline Loan shall be absolute and unconditional and shall
not be affected by any circumstance whatsoever, including without limitation,
(i) any claim of setoff, counterclaim, recoupment, defense or other right which
such Lender or any other Person may have or claim against the Agent, the
Swingline Lender or any other Person whatsoever, (ii) the occurrence or
continuation of a Default or Event of Default (including without limitation, any
of the Defaults or Events of Default described in Sections 10.1.(g) or 10.1.(h))
or the termination of any Lender's Commitment, (iii) the existence (or alleged
existence) of an event of condition which has had or could have a Materially
Adverse Effect, (iv) any breach of any Loan Document by the Agent, any Lender or
the Borrower 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 2.4. Number of Interest Periods.
Anything herein to the contrary notwithstanding, there may be no more
than 8 different Interest Periods outstanding at the same time.
SECTION 2.5. Continuation.
So long as no Default or Event of Default shall have occurred and be
continuing, 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's giving of a Notice of Continuation not later than 9:00 a.m. on
the third Business Day prior to the date of any such Continuation by the
Borrower to the Agent. Promptly after receipt of a Notice of Continuation, the
Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission of the proposed Continuation. Such notice by the Borrower of a
Continuation shall be by telephone or telecopy, confirmed immediately in writing
if by telephone, in the form of a Notice of Continuation, specifying (a) the
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. 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 therefore, Convert into a Base Rate Loan
notwithstanding failure of the Borrower to comply with Section 2.6. In the case
of the Continuation of only a portion of a LIBOR Loan, such portion shall be in
the aggregate amount for all of the Lenders of $1,000,000 or integral multiples
of $100,000 in excess of that amount.
SECTION 2.6. Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Agent, Convert the entire amount of all or a
portion of a Revolving Loan of one Type into a Revolving Loan of another Type.
Promptly after receipt of a Notice of Conversion, the Agent shall notify each
Lender by telex or telecopy, or other similar form of transmission of the
proposed Conversion. 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.
Each such Notice of Conversion shall be given not later than 9:00 a.m. on the
Business Day prior to the date of any proposed Conversion into Base Rate Loans
and on the third Business Day prior to the date of any proposed Conversion into
LIBOR Loans. Subject to the restrictions specified above, each Notice of
Conversion shall be by telephone or telecopy confirmed immediately in writing if
by telephone 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 Revolving Loan to be Converted, (d) the Type of
Revolving Loan such Revolving 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 Revolving Loan. Each Notice of Conversion shall be irrevocable by and
binding on the Borrower once given. Each Conversion from a Base Rate Loan to a
LIBOR Loan shall be in an aggregate amount for the Revolving Loans of all the
Lenders of not less than $1,000,000 or integral multiples of $100,000 in excess
of that amount.
SECTION 2.7. Interest Rate.
(a) All Loans. The unpaid principal of each Base Rate Loan shall bear
interest from the date of the making of such Loan to but not including the date
of repayment thereof at a rate per annum equal to the Base Rate in effect from
day to day plus the Applicable Margin. The unpaid principal of each LIBOR Loan
shall bear interest from the date of the making of such Loan to but not
including the date of repayment thereof at a rate per annum equal to the LIBO
Rate for such Loan for the Interest Period therefor plus the Applicable Margin.
The unpaid principal of each Absolute Rate Loan shall bear interest 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. The unpaid principal of
each LIBOR Margin Loan shall bear interest at the LIBO Rate for such Loan for
the Interest Period therefor plus the LIBOR Margin quoted by the Lender making
such Loan in accordance with Section 2.2.
(b) Default Rate. All past-due principal of, and to the extent
permitted by Applicable Law, interest on, the Loans and all Reimbursement
Obligations shall bear interest until paid at the Base Rate from time to time in
effect plus four percent (4%).
SECTION 2.8. Repayment of Loans.
(a) Payment of Interest. All accrued and unpaid interest on the unpaid
principal amount of each Loan shall be payable (i) in the case of a Base Rate
Loan or a LIBOR Loan, monthly in arrears on the first day of each month,
commencing with the first full calendar month occurring after the Effective
Date, (ii) in the case of a Bid Rate Loan, on the last day of each Interest
Period therefor and, if such Interest Period is longer than a month, monthly in
arrears on the first day of each month, commencing with the first full calendar
month following the first day of such Interest Period, and (iii) for all Loans,
(A) on the Revolving Credit Termination Date, (B) on the Termination Date and
(C) on any date on which the principal balance of such Loan is due and payable
in full.
(b) Payment of Principal of Revolving Loans. Subject to Section 2.11.,
the Borrower shall repay the aggregate outstanding principal balance of all
Revolving Loans in full on the Revolving Credit Termination Date.
(c) 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.
(d) Payment of Principal of Term Loans. The Borrower shall repay the
aggregate principal balance of the Term Loans in eight equal consecutive
quarterly installments due on the first day of June first following the date of
conversion of the Revolving Loans into the Term Loans and on the first day of
each subsequent September, December, March and June until the Term Loans are
paid in full. Each installment shall be in an amount equal to one-eighth of the
initial aggregate principal balance of the Term Loans. Notwithstanding the
foregoing, the entire outstanding principal balance of each Term Loan shall be
due and payable in full on the Termination Date.
(e) Optional Prepayments. The Borrower may, upon at least one Business
Day's prior notice to the Agent, prepay any Revolving Loan or Term Loan in whole
at any time, or from time to time in part in an amount equal to $500,000 or
integral multiples of $100,000 in excess of that amount, by paying the principal
amount to be prepaid. If the Borrower shall prepay the principal of any LIBOR
Loan on any date other than the last day of the Interest Period applicable
thereto, the Borrower shall pay the amounts, if any, due under Section 5.4. Bid
Rate Loans may not be prepaid at the option of the Borrower.
(f) Mandatory Prepayments. If at any time the aggregate outstanding
principal balance of Loans and the aggregate amount of Letter of Credit
Liabilities exceeds the Maximum Loan Availability, then the Borrower shall,
within 15 days of the Borrower obtaining actual knowledge of the occurrence of
such excess, deliver to the Agent and each Lender a written plan acceptable to
the Lenders to eliminate such excess, whether by the designation of additional
Properties as Unencumbered Pool Properties, by the Borrower repaying an
appropriate amount of Loans, or otherwise. If such excess is not eliminated
within 45 days of the Borrower obtaining actual 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 Collateral Account, shall be immediately due
and payable in full. If at any time the aggregate principal amount of all
outstanding Bid Rate Loans exceeds the lesser of (i) $250,000,000 or (ii)
one-half of the aggregate amount of all Commitments at such time, then the
Borrower shall immediately pay to the Agent for the accounts of the applicable
Lenders the amount of such excess. Such payment shall be applied as provided in
Section 3.3.(f).
(g) General Provisions as to Payments. Except to the extent otherwise
provided herein, all payments of principal, interest and other amounts to be
made by the Borrower under this Agreement, the Notes or any other Loan Document
shall be made in Dollars, in immediately available funds, without setoff,
deduction or counterclaim, to the Agent at the Principal Office, not later than
11:00 a.m. 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). Each payment received by the Agent for the account of
a Lender under this Agreement or any Note shall be paid to such Lender (i) on
the date of receipt by the Agent if received not later than 11:00 a.m. on the
due date of such payment or (ii) not later than the Business Day immediately
following the date of receipt by the Agent if received after 11:00 a.m. on the
due date of such payment. Such payments by the Agent shall be paid to a Lender
by wire transfer of immediately available funds in accordance with the wiring
instructions provided by such Lender to the Agent from time to time, for the
account of such Lender at the applicable Lending Office of such Lender. In the
event the Agent fails to pay such amounts to such Lender within the time period
provided in the immediately preceding clause (i) or (ii), as applicable, the
Agent shall pay interest on such amount at a rate per annum equal to the Federal
Funds rate from time to time in effect. If the due date of any payment under
this Agreement or any other Loan Document would otherwise fall on a day which is
not a Business Day such date shall be extended to the next succeeding Business
Day and interest shall continue to accrue at the rate, if any, applicable to
such payment for the period of such extension.
SECTION 2.9. Voluntary Reductions of the Commitments.
The Borrower may terminate or reduce the amount of the Commitments (for
which purpose use of the Commitments shall be deemed to include the aggregate
principal amount of all outstanding Bid Rate Loans and Swingline Loans and the
aggregate amount of all Letter of Credit Liabilities) at any time and from time
to time without penalty or premium upon not less than five Business Days prior
notice to the Agent of each such termination or reduction, which notice shall
specify the effective date thereof and the amount of any such reduction (which
in the case of any partial reduction of the Commitments shall not be less than
$5,000,000 and integral multiples of $5,000,000 in excess of that amount in the
aggregate) and shall be irrevocable once given and effective only upon receipt
by the Agent. The Commitments, once reduced pursuant to this Section, may not be
increased. The Borrower shall pay all interest and fees on the Revolving Loans
accrued to the date of such reduction or termination of the Commitments to the
Agent for the account of the Lenders. Any reduction in the aggregate amount of
the Commitments shall result in a proportionate reduction (rounded to the next
lowest integral multiple of multiple of $100,000) in the Swingline Commitment
and the L/C Commitment Amount.
SECTION 2.10. Extension of Revolving Credit Termination Date.
(a) The Borrower may request that the Agent and the Lenders extend the
current Revolving Credit Termination Date by successive one-year intervals by
executing and delivering to the Agent at least 60 days but no more than 90 days
prior to the date one year prior to the current Revolving Credit Termination
Date, a written request in the form of Exhibit M (an "Extension Request"). The
Agent shall forward to each Lender a copy of each Extension Request delivered to
the Agent promptly upon receipt thereof. If all of the Lenders shall have
notified the Agent on or prior to the date which is 30 days prior to the date
one year prior to the current Revolving Credit Termination Date that they accept
such Extension Request, the Revolving Credit Termination Date shall be extended
for one year. If any Lender shall not have notified the Agent on or prior to the
date which is 30 days prior to the date one year prior to the Revolving Credit
Termination Date that it accepts such Extension Request, 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 the Extension Request has been accepted or rejected as well as
which Lender or Lenders rejected Borrower's Extension Request (each such Lender,
a "Rejecting Lender"). The Borrower understands that this Section has been
included in this Agreement for the Borrower's convenience in requesting an
extension and acknowledges that none of the Lenders nor the Agent has promised
(either expressly or impliedly), nor has any obligation or commitment
whatsoever, to extend the Revolving Credit Termination Date at any time.
(b) Notwithstanding the preceding subsection (a), if the Borrower
receives notification from the Agent that an Extension Request has been rejected
(a "Notice of Rejection"), and provided that the aggregate amount of all
Commitments of the Rejecting Lenders does not exceed 20% of the aggregate amount
of Commitments then outstanding, the Borrower may elect, with respect to each
such Rejecting Lender, by giving written notice to the Agent of any 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 respective 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, together with all
amounts, if any, payable under Section 5.4., owing to such Rejecting 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 promptly, assign its respective
Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 12.8.(c) 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 completed within 30 days
after receipt by the Borrower of a Notice of Rejection or (y) within 30 days
after receipt by the Borrower of a Notice of Rejection, 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, and such Rejecting Lender shall no longer be a party hereto or
have any rights or obligations hereunder or under any of the other Loan
Documents. None of the Agent, such Rejecting Lender, or any other Lender shall
be obligated in any way whatsoever to initiate any such replacement or to assist
in finding an Assignee. If all Rejecting Lenders have either assigned their
Commitments to Eligible Assignees as contemplated by the preceding clause (x) or
have been paid the amounts specified in the preceding clause (y), then the
Borrower's Extension Request which was initially rejected shall be deemed to
have been granted and accordingly the Revolving Credit Termination Date shall be
extended by one year, otherwise the Revolving Credit Termination Date shall not
be extended. If the aggregate amount of Commitments of the Rejecting Lenders
exceeds 20% of the aggregate amount of Commitments then outstanding, the
Revolving Credit Termination Date shall not be extended.
SECTION 2.11. Term Loan Conversion.
Subject to the terms and conditions of this Agreement, if any Extension
Request of the Borrower shall be denied, the Borrower may then elect to convert
each Lender's Pro Rata Share of the aggregate principal amount of Revolving
Loans outstanding on the date one year prior to the current Revolving Credit
Termination Date into a term loan owing to such Lender (each a "Term Loan")
provided (a) the Borrower has given the Agent at least 15 days prior notice 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 the date one year
prior to the current Revolving Credit Termination Date. Subject to the terms and
conditions hereof, any such conversion shall be effective as of the date one
year prior to the current Revolving Credit Termination Date. Upon the
effectiveness of the conversion of the outstanding principal balance of
Revolving Loans into Term Loans as contemplated by this Section, the Borrower
shall have no right to borrow, and no Lender shall have any obligation to make,
any Revolving Loans.
SECTION 2.12. Notes.
The Revolving Loans and the Term Loan 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 C (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 any Lender shall, in addition to this Agreement, also be
evidenced by a single promissory note of the Borrower substantially in the form
of Exhibit D (each a "Bid Rate Note"), dated the date hereof, payable to the
order of such Lender and otherwise duly completed.
SECTION 2.13. Option to Replace Lenders.
If any Lender, other than the Agent in its capacity as such, shall:
(a) have notified Agent of a determination under Section 5.1.(a) or
become subject to the provisions of Section 5.3.; or
(b) make any demand for payment or reimbursement pursuant to Section
5.1.(c) or Section 5.4.;
then, provided that (x) there does not then exist any Default or Event of
Default and (y) the circumstances resulting in such demand for payment or
reimbursement under Section 5.1.(c) or Section 5.4. or the applicability of
Section 5.1.(a) or Section 5.3. are not applicable to the Majority Lenders
generally, the Borrower may either (x) demand that such Lender, and upon such
demand such Lender shall promptly, assign its respective Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
12.8.(c) for a purchase price equal to the aggregate principal balance of Loans
then outstanding and owing to such Lender plus any accrued but unpaid interest
thereon and accrued but unpaid fees owing to such Lender, any such assignment to
be completed within 30 days after the making by such Lender of such
determination or demand for payment or (y) within 30 days after the making by
such Lender of such determination or demand for payment, pay to Agent, for
deposit into the Collateral Account, an amount equal to such Lender's Pro Rata
Share of all outstanding Letter of Credit Liabilities and pay to such Lender the
aggregate principal balance of Loans then outstanding and owing to such Lender
plus any accrued but unpaid interest thereon and accrued but unpaid fees owing
to such Lender, whereupon such Lender's Commitment shall terminate, and such
Lender shall no longer be a party hereto or have any rights or obligations
hereunder or under any of the other Loan Documents. None of the Agent, such
Lender, or any other Lender shall be obligated in any way whatsoever to initiate
any such replacement or to assist in finding an Assignee.
SECTION 2.14. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may (a) the aggregate principal amount of all outstanding
Revolving Loans, together with the aggregate principal amount of all outstanding
Swingline Loans, the aggregate amount of all outstanding Bid Rate Loans and the
aggregate amount of all Letter of Credit Liabilities, exceed the Maximum Loan
Availability at such time or (b) the aggregate principal amount of all
outstanding Bid Rate Loans exceed the lesser of (i) $250,000,000 or (ii)
one-half of the aggregate amount of all Commitments at such time.
SECTION 2.15. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement including, without limitation, Section 2.14., the Agent, on behalf of
Lenders, agrees to issue for the account of the Borrower during the period from
and including the Effective Date to, but excluding, the Revolving Credit
Termination Date one or more letters of credit (each a "Letter of Credit") in
such form and containing such terms as may be requested from time to time by the
Borrower and acceptable to the Agent, 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,
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) a
Letter of Credit be issued within 30 days of the Revolving Credit Termination
Date. The initial Stated Amount of each Letter of Credit shall be at least
$100,000.
(c) Requests for Issuance of Letters of Credit. In connection with the
proposed issuance of a Letter of Credit, the Borrower shall give Agent written
notice (or telephonic notice promptly confirmed in writing) 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 proposed initial Stated Amount, (ii) the beneficiary, (iii) whether such
Letter of Credit is a commercial or standby letter of credit and (iv) the
proposed expiration date. The Borrower shall also execute and deliver such
customary applications and agreements for standby letters of credit, standby
letter of credit agreements, applications for amendment to letter 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 the
Borrower has executed and delivered to the Agent the agreements, applications
and other forms as required by the immediately preceding sentence of this
subsection, and subject to the terms and conditions of this Agreement, including
the satisfaction of any applicable conditions precedent set forth in Article
VI., the Agent agrees to 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
received 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 the
Letter of Credit 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
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 agrees to pay to each Lender that has acquired a participation therein
under the second sentence of Section 2.15.(f) such Lender's Pro Rata Share of
such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to
in the immediately preceding subsection (d), the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment and, if it does, the Borrower shall submit a timely request for such
borrowing as provided in the applicable provisions of this Agreement. If
Borrower fails to reimburse the Agent for a demand for payment under a Letter of
Credit by the date of such payment, the Agent shall give each Lender prompt
notice thereof and of the amount of the demand for payment, specifying such
Lender's Pro Rata Share of the amount of the related demand for payment.
(f) 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 irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Pro Rata Share of the liability of the Agent with
respect to such Letter of Credit and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Agent to pay and discharge when
due, such Lender's Pro Rata Share of the Agent's liability under such Letter of
Credit. In addition, upon the making of each payment by a Lender to the Agent in
respect of any Letter of Credit pursuant to the immediately following subsection
(g), such Lender shall, automatically and without any further action on the part
of the Agent or such Lender, acquire (i) a participation in an amount equal to
such payment in the Reimbursement Obligation owing to the Agent by the Borrower
in respect of such Letter of Credit and (ii) a participation in a percentage
equal to such Lender's Pro Rata Share in any interest or other amounts payable
by the Borrower in respect of such Reimbursement Obligation (other than fees
owing only to the Agent).
(g) Payment Obligation of Lenders. Each Lender severally agrees to pay
to the Agent on demand in immediately available funds in Dollars the amount of
such Lender's Pro Rata Share of each drawing paid by the Agent under each Letter
of Credit to the extent such amount is not reimbursed by the Borrower pursuant
to Section 2.15.(d) and (e) or the other Letter of Credit Documents. 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, (iii) the existence of any Default or Event of Default, including any
Event of Default described in Section 10.1.(g) or (h) or (iv) the termination of
the Commitments. Each such payment to the Agent shall be made without any
offset, abatement, withholding or deduction whatsoever.
(h) Agent's Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligation. 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
Lenders shall be responsible (i) for 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) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for 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) for 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) for errors in interpretation of
technical terms; (vi) for 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) for the misapplication by the beneficiary of any
such Letter of Credit, or the proceeds of any drawing under such Letter of
Credit; and (viii) for 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: (i) any lack of validity or enforceability of any Letter of
Credit Document or any term or provisions therein; (ii) any amendment or waiver
of or any consent to departure from all or any of the Letter of Credit
Documents; (iii) 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; (iv) any breach of contract or
dispute between Borrower, the Agent, any Lender or any other Person; (v) 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; (vi) any non-application or misapplication by the
beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; (vii) 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 (viii) 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.
(i) 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, 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 Majority Lenders shall
have consented thereto.
(j) Information to Lenders. Promptly following the issuance of any
Letters of Credit, the Agent shall deliver to the Borrower, and each Lender 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 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 2.15.(g).
(k) 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 such Lender's
Pro Rata Share of the Stated Amount of such Letter of Credit plus any related
Reimbursement Obligations then outstanding.
(l) Termination of Agreement Prior to Expiration of Letters of Credit;
Letter of Credit Liabilities in Excess of L/C Commitment Amount. If on the date
(the "Facility Termination Date") this Agreement is terminated (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise)
any Letters of Credit are outstanding, the Borrower shall, on the Facility
Termination Date, pay to the Agent an amount of money equal to the Stated Amount
of such Letter(s) of Credit, together with the amount of any fees which would
otherwise be payable by the Borrower to the Agent or the Lenders in respect of
such Letters of Credit but for the occurrence of the Facility Termination Date
for deposit into a the Collateral Account. If at any time the aggregate Stated
Amount of all outstanding Letters of Credit shall exceed the L/C Commitment
Amount then in effect, the Borrower shall pay to the Agent for deposit into the
Collateral Account an amount equal to such excess. 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 disburse the monies deposited in
the Collateral Account to make payment to the beneficiary with respect to such
drawing. If no drawing occurs on or prior to the expiration date of any such
Letter of Credit, the Agent shall return to the Borrower the monies deposited in
the Collateral Account with respect to such outstanding Letter of Credit on or
before the date 30 Business Days after the expiration date with respect to the
Letter of Credit.
(m) Additional Costs in Respect of Letters of Credit. If as a result of
the adoption of any Applicable Law or guideline of general applicability
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or if as a result of 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 or 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.
ARTICLE III. GENERAL LOAN PROVISIONS
SECTION 3.1. Fees.
(a) Facility Fee. During the period commencing on the Agreement Date to
but excluding the Revolving Credit Termination Date, the Borrower agrees to pay
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 accrue through the
last day of each calendar quarter and shall be payable in arrears on the fifth
day following the end of such calendar quarter. The Borrower acknowledges that
the fee payable hereunder is a bona fide commitment fee and is intended as
reasonable compensation to the Lenders for committing to make funds available to
the Borrower as described herein and for no other purposes.
(b) Extension Fee. If, pursuant to Section 2.10., 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) an extension fee equal to
one-fifth of one percent (0.20%) of the amount of such Lender's Commitment at
such time. Such fee shall be payable on the date five days following the sooner
of the date on which the Agent notified the Borrower of such extension or the
date on which such extension is effective.
(c) Term Loan Conversion Fee. If, pursuant to Section 2.11., the
outstanding balance of 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 one-quarter of one percent (0.25%) per annum of the outstanding
principal balance of such Lender's Term Loan on the first anniversary of the
date of the conversion of the Revolving Loans into the Term Loans, such fee to
be payable on such anniversary date.
(d) 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.
(e) Agent's Fees. The Borrower agrees to pay to the Agent such fees for
services rendered by the Agent as shall be separately agreed upon between the
Borrower and the Agent.
(f) Letter of Credit Fees. The Borrower agrees to pay to the Agent for
account of each Lender a letter of credit fee at a rate per annum equal to one
and seventy-five one-thousandths percent (1.075%) of the Stated Amount of each
Letter of Credit on the date of issuance of such Letter of Credit and on each
annual anniversary of the date of issuance thereof until such Letter of Credit
has expired. The fee provided for in the immediately preceding sentence shall be
nonrefundable. 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.
SECTION 3.2. Computation of Interest and Fees.
Unless set forth to the contrary herein, accrued interest on the Loans
and the Letter of Credit Liabilities and all fees due hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day of a period).
SECTION 3.3. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) and Section 2.3.(e) shall be made from the
Lenders, each payment of the fees under Sections 3.1.(a) through (c) shall be
made for account of the Lenders, and each termination or reduction of the amount
of the Commitments under Section 2.9. 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 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 or prepayment of principal of Term
Loans by the Borrower shall be made for account of the Lenders pro rata in
accordance with the respective unpaid principal amounts of the Term Loan then
owing to each of them; (d) each payment of interest on Revolving Loans and Term
Loans by the Borrower shall be made for account of the Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders; (e) the making of Revolving Loans, and the 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 Revolving Loans) or their respective Loans (in the case of Conversions
and Continuations of Revolving Loans or Term Loans) and the then current
Interest Period for each Lender's portion of each Revolving Loan or Term Loan of
such Type shall be coterminous; (f) each prepayment of principal of Bid Rate
Loans by the Borrower pursuant to Section 2.8.(f) 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 Loan then owing to each such Lender;
(g) the Lenders' participation in, and payment obligations in respect of,
Swingline Loans under Section 2.3., shall be in accordance with their respective
Pro Rata Shares, and (h) the Lenders' participation in, and payment obligations
in respect of, Letters of Credit under Section 2.15., shall be pro rata in
accordance with their respective Commitments. All payments of principal,
interest, fees and other amounts in respect of the Swingline Loans shall be for
the account of the Swingline Lender only (except to the extent any Lender shall
have acquired a participating interest in any such Swingline Loan pursuant to
Section 2.3.(e)).
SECTION 3.4. Sharing of Payments, Etc.
The Borrower agrees that, in addition to (and without limitation of)
any right of set-off, bankers' lien or counterclaim a Lender may otherwise have,
each Lender shall be entitled, at its option, upon the occurrence and during the
continuance of an Event of Default but subject to the Agent's prior written
consent, to offset balances held by it for the account of the Borrower at any of
such Lender's offices, in Dollars or in any other currency, against any
principal of, or interest on, any of such Lender's Loans hereunder (or other
Obligations owing to such Lender hereunder) which is not paid when due
(regardless of whether such balances are then due to the Borrower), in which
case such Lender shall promptly notify the Borrower, all other Lenders and the
Agent thereof; provided, however, such Lender's failure to give such notice
shall not affect the validity of such offset. If a Lender shall obtain payment
of any principal of, or interest on, any Loan under this Agreement, or shall
obtain payment on any other Obligation owing by the Borrower or any other Loan
Party through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise or through voluntary prepayments
directly to a Lender or other payments made by the Borrower or any other Loan
Party to a Lender not in accordance with the terms of this Agreement and such
payment, pursuant to the immediately preceding Section, should be distributed to
the Lenders in accordance with their Pro Rata Shares, 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, and
make such other adjustments from time to time as shall be equitable, to the end
that all the Lenders shall share the benefit of such payment (net of any
expenses which may be incurred by such Lender in obtaining or preserving such
benefit) in accordance with their respective Pro Rata Shares. 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, bankers' lien,
counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of Loans in the amount of such participation.
Nothing contained herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower.
SECTION 3.5. Defaulting Lenders.
If for any reason any Lender (a "Defaulting Lender") shall fail or
refuse to perform 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 5 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 Majority Lenders, shall be suspended
during the pendency of such failure or refusal. If for any reason a Lender fails
to make timely payment to the Agent of any amount required to be paid to the
Agent hereunder (without giving effect to any notice or cure periods), in
addition to other rights and remedies which the Agent or the Borrower may have
under the immediately preceding provisions or otherwise, the Agent shall be
entitled (i) to collect interest from such Defaulting Lender on such delinquent
payment for the period from the date on which the payment was due until the date
on which the payment is made at the Federal Funds Rate, (ii) to withhold or
setoff and to apply in satisfaction of the defaulted payment and any related
interest, any amounts otherwise payable to such Lender under this Agreement or
any other Loan Document and (iii) to bring an action or suit against such 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 Pro Rata Share of the Loans shall not be paid to such Defaulting Lender
and shall be held by the Agent and either (a)(i) if any Swingline Loans are
outstanding, applied first, to the Swingline Lender to fund the amount of the
Defaulting Lender's participation in the outstanding Swing Line Loans or (ii) if
no Swingline Loans are outstanding, applied against the purchase price of such
Pro Rata Share of the Loans under Section 3.6. or (b) paid to such Defaulting
Lender upon the Defaulting Lender's curing of its default.
SECTION 3.6. Purchase of Defaulting Lender's Pro Rata Share.
(a) Any Lender who is not a Defaulting Lender shall have the right, but
not the obligation, in its sole discretion, to acquire all of a Defaulting
Lender's Pro Rata Share of the Loans. If more than one Lender exercises such
right, each such Lender shall have the right to acquire such proportion of such
Defaulting Lender's Pro Rata Share of the Loans as they may mutually agree. Upon
any such purchase of the Pro Rata Share of the Loans of a Defaulting Lender, the
Defaulting Lender's interest in the Loans and its rights hereunder (but not its
liability in respect thereof or under the Loan Documents or this Agreement to
the extent the same relate to the period prior to the effective date of the
purchase) shall terminate on the date of purchase, and the Defaulting Lender
shall promptly execute all documents reasonably requested to surrender and
transfer such interest to the purchaser thereof, including an appropriate
Assignment and Acceptance Agreement.
(b) The purchase price for the Pro Rata Share of the Loans of a
Defaulting Lender shall be equal to the amount of the principal balance of the
Loans outstanding and owed by the Borrower to the Defaulting Lender. Prior to
payment of such purchase price to the Defaulting Lender, the Agent shall apply
against such purchase price any amounts payable in respect of such Pro Rata
Share of the Loans as contemplated by the last sentence of Section 3.5. The
Defaulting Lender shall be entitled to receive amounts owed to it by the
Borrower under the Loan Documents which accrued prior to the date of the default
by the Defaulting Lender, to the extent the same are received by the Agent from
or on behalf of the Borrower. There shall be no recourse against any Lender or
the Agent for the payment of such sums except to the extent of the receipt of
payments from any other party or in respect of the Loans.
SECTION 3.7. Usury.
In no event shall the amount of interest due or payable on the Loans
exceed the maximum rate of interest allowed by Applicable Law and, in the event
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. 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.
SECTION 3.8. Agreement Regarding Interest and Charges.
THE PARTIES HERETO HEREBY AGREE AND STIPULATE THAT THE ONLY CHARGE
IMPOSED UPON THE BORROWER FOR THE USE OF MONEY IN CONNECTION WITH THIS AGREEMENT
IS AND SHALL BE THE INTEREST DESCRIBED IN SECTION 2.7. AND WITH RESPECT TO
SWINGLINE LOANS, IN SECTION 2.3.(C). THE PARTIES HERETO FURTHER AGREE AND
STIPULATE THAT ALL OTHER CHARGES IMPOSED BY LENDERS AND THE AGENT ON THE
BORROWER IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL AGENCY FEES,
COMMITMENT FEES, FACILITY FEES, UNUSED FACILITY FEES, EXTENSION FEES,
UNDERWRITING FEES, LETTER OF CREDIT FEES, DEFAULT CHARGES, LATE 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 LENDERS IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND SHALL UNDER NO CIRCUMSTANCES BE
DEEMED TO BE CHARGES FOR THE USE OF MONEY PURSUANT TO OFFICIAL CODE OF GEORGIA
ANNOTATED SECTION 7-4-2 OR 7-4-18. 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, charges and payments made pursuant to this Agreement
and the other Loan Documents, and such account rendered by the Agent shall be
deemed final, binding and conclusive upon the Borrower absent demonstrable
error. The failure of the Agent or any Lender to maintain or deliver such a
statement of accounts shall not relieve or discharge the Borrower from its
obligations hereunder.
SECTION 3.10. Reliance.
Neither the Agent nor any Lender shall incur any liability to the
Borrower for acting upon any telephonic notice permitted under this Agreement
which the Agent or such Lender believes reasonably and in good faith to have
been given by an individual authorized to deliver a Notice of Borrowing, Notice
of Conversion, Notice of Continuation, Extension Request or a request for
issuance of a Letter of Credit on behalf of the Borrower.
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
(without duplication): (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 withholding taxes payable with respect to payments hereunder or under
any other Loan Document under Applicable Law in effect on the Agreement Date,
(iv) any taxes imposed on or measured by any Lender's assets, net income,
receipts or branch profits and (v) 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 collective 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. Each Lender or Participant organized under the laws of a
jurisdiction other than the United States of America agrees to deliver to the
Borrower and the Agent such certificates, documents or other evidence, as
required by the Internal Revenue Code, correctly completed and executed by such
Lender or Participant establishing that such payment is not subject to United
States federal withholding tax under the Internal Revenue Code because such
payment is either effectively connected with the conduct by such Lender or
Participant of a trade or business in the United States or totally exempt from
United States federal withholding tax by reason of the application of the
provisions of a treaty to which the United States is a party or such Lender is
otherwise exempt.
(d) Refunds. If the Agent or any Lender shall become aware that it is
entitled to a refund in respect of Taxes for which it has been indemnified by
the Borrower pursuant to this Section, the Agent or such Lender shall promptly
notify the Borrower of the availability of such refund and shall, within 30 days
after receipt of a written request by the Borrower, apply for such refund at the
Borrower's sole cost and expense. So long as no Event of Default shall have
occurred and be continuing, if the Agent or any Lender shall receive a refund in
respect of any such Taxes as to which it has been indemnified by the Borrower
pursuant to this Section, the Agent or such Lender shall promptly notify the
Borrower of such refund and shall, within 30 days of receipt, pay such refund
(to the extent of amounts that have been paid by the Borrower under this Section
with respect to such refund and not previously reimbursed) to the Borrower, net
of all reasonable out-of-pocket expenses of such Lender or the Agent and without
interest (other than the interest, if any, included in such refund).
ARTICLE IV. UNENCUMBERED POOL PROPERTIES
SECTION 4.1. Acceptance of Unencumbered Pool Properties.
(a) Existing Unencumbered Pool Properties.Subject to compliance with the terms
and conditions of Section 6.1. and subject to any limitations set forth on
Schedule 4.1., as of the Effective Date the Lenders have accepted the Properties
listed on Schedule 4.1. as Unencumbered Pool Properties.
(b) Submission of Additional Properties. If the Borrower desires that
the Lenders accept an additional Property as an Unencumbered Pool Property after
the Effective Date, the Borrower shall so notify the Agent in writing and the
Agent shall promptly notify each Lender. No Property will be evaluated by the
Lenders unless it is an Eligible Property, and unless and until the Borrower
delivers to the Agent the following, in form and substance satisfactory to the
Agent:
(i) An Executive Memorandum regarding such Property;
(ii) An Unencumbered Pool Certificate setting forth (A) on a
pro forma basis the Maximum Loan Availability, assuming that such
Property is accepted as an Unencumbered Pool Property, (B) the
Occupancy Rate of such Property, (C) calculations evidencing continued
compliance with Section 4.3., assuming that such Property is accepted
as an Unencumbered Pool Property, (D) the percentage amount of the
total Unencumbered Pool Value, assuming that such Property is accepted
as an Unencumbered Pool Property, attributable to such Property (which
percentage amount shall not exceed 5%) and (E) the amount of the
Unencumbered Pool Value, assuming that such Property is accepted as an
Unencumbered Pool Property, attributable to all Unencumbered Pool
Properties which are owned by Subsidiaries that are not Wholly Owned
Subsidiaries;
(iii) copy of the most recent ALTA Owner's Policy of Title
Insurance (or commitment to issue such a policy to the Loan Party
owning or to own such Property) relating to such Property showing the
identity of the fee titleholder thereto and all matters of record; and
(iv) A Property Certificate executed by the chief financial
officer or controller of the Borrower (which officer shall be
authorized to execute such certificate).
Following receipt of the foregoing items (i) through (iv) for such Property, the
Agent will promptly submit such documents and information to Lenders for review
and approval by all Lenders of such Property as an Unencumbered Pool Property.
Each Lender shall have 10 Business Days from the day on which the Agent receives
such documents and information from the Borrower (the "Review Period") to take
one of the following actions: (I) notify the Agent of such Lender's approval of
the Property as an Unencumbered Pool Property or (II) request from the Agent
further information relating to such Property in accordance with the following
paragraph. If neither of such actions is taken by a Lender prior to the
expiration of the Review Period, such Lender shall be deemed to have accepted
such Property as an Unencumbered Pool Property.
At any time during the Review Period, any Lender may request, in
writing, that the Agent obtain one or more of the items described in subsection
(c) below from the Borrower for such Lender's review to confirm the information
set forth in the Property Certificate. If a request is made for such further
information by a Lender during the Review Period, the Borrower shall promptly
(but in any event within 10 calendar days of receipt of such request) deliver
the requested information to the Agent who shall promptly deliver it to the
requesting Lender. Such requesting Lender shall then have 10 calendar days (the
"Extended Review Period") after the Agent's receipt from the Borrower of the
requested information to notify the Agent of its acceptance or rejection of such
Property. If such requesting Lender notifies the Agent of its rejection of such
Property, such Property shall not be accepted as an Unencumbered Pool Property
under this subsection (b). If such requesting Lender fails to notify the Agent
prior to the expiration of the Extended Review Period, such requesting Lender
shall be deemed to have accepted such Property as Unencumbered Pool Property.
Upon any acceptance of a Property pursuant to this subsection (b), and
upon execution and delivery of all of the following, such Property shall become
an Unencumbered Pool Property:
(1) If such Property is owned (or is being acquired) by a
Subsidiary that is not yet a party to the Guaranty, an Accession
Agreement executed by such Subsidiary and all other items required to
be delivered by a Subsidiary under Section 8.24.; and
(2)Such other items or documents as may be appropriate under the circumstances
as requested by the Agent.
(c) Alternative Acceptance Procedure. At the Borrower's option or if a
Property fails to be accepted as an Unencumbered Pool Property pursuant to the
immediately preceding subsection (b), the Borrower may submit or resubmit, as
applicable, such Property for consideration by notifying the Agent in writing of
the Borrower's intent to submit or resubmit, as applicable, such Property and by
delivering the following additional items, in form and substance satisfactory to
the Agent:
(i) A description of such Property, such description to
include the age, location and current occupancy rate of such Property;
(ii) Operating statements for such Property for the
immediately preceding fiscal year and for current fiscal year through
the fiscal quarter most recently ending, in each case audited or
certified by a representative of the Borrower as being true and correct
in all material respects and prepared in accordance with GAAP, provided
that, with respect to any period such Property was not owned by a Loan
Party, such information shall only be required to be delivered to the
extent reasonably available to the Borrower and such certification may
be based upon the best of the Borrower's knowledge;
(iii) If prepared by the Borrower, a pro forma operating
statement for such Property;
(iv) A current rent roll and occupancy report for such
Property, certified by a representative of the Borrower as being true
and correct in all material respects, and a two-year occupancy history
of such Property, certified by a representative of the Borrower to be
true and correct, provided that, with respect to any period such
Property was not owned by a Loan Party, such information shall only be
required to be delivered to the extent reasonably available to the
Borrower and such certification may be based upon the best of the
Borrower's knowledge;
(v) An operating budget for such Property with respect to the
current fiscal year if available;
(vi) Copies of all Material Contracts affecting such Property;
(vii) Copies of all engineering, mechanical, structural and
maintenance studies performed with respect to such Property;
(viii) A "Phase I" environmental assessment of such Property
not more than 12 months old prepared by an environmental engineering
firm acceptable to the Agent, and any additional environmental studies
or assessments available to the Borrower performed with respect to such
Property;
(ix) With respect to any Property being acquired by a Loan
Party, a copy of the materials relating to such Property submitted by
the Borrower to its board of directors for their approval of such
Property (but only to the extent such materials have not already been
provided under any of the preceding subsections);
(x) An Unencumbered Pool Certificate setting forth (A) on a
pro forma basis the Maximum Loan Availability, assuming that such
Property is accepted as an Unencumbered Pool Property, (B) the
Occupancy Rate of such Property, (C) calculations evidencing continued
compliance with Section 4.3., assuming that such Property is accepted
as an Unencumbered Pool Property, and (D) the amount of the
Unencumbered Pool Value, assuming that such Property is accepted as an
Unencumbered Pool Property, attributable to all Unencumbered Pool
Properties which are owned by Subsidiaries that are not Wholly Owned
Subsidiaries; and
(xi) Such other information the Agent may reasonably request
in order to evaluate the Property.
Following receipt of the foregoing documents and information, the Agent shall
promptly submit such documents and information to the Lenders for approval. Upon
approval by the Majority Lenders (which must include the Agent in its capacity
as a Lender), and upon execution and delivery of all of the following, such
Property shall become an Unencumbered Pool Property:
(1) A copy of the most recent ALTA Owner's Policy of Title
Insurance (or commitment to issue such a policy to the Loan Party
owning or to own such Property) relating to such Property showing the
identity of the fee titleholder thereto and all matters of record;
(2) If such Property is owned (or is being acquired) by a
Subsidiary that is not yet a party to the Guaranty, an Accession
Agreement executed by such Subsidiary and all other items required to
be delivered by a Subsidiary under Section 8.24.; and
(3) Such other items or documents as may be appropriate under
the circumstances as requested by the Agent.
SECTION 4.2. Termination of Designation as Unencumbered Pool Property.
From time to time the Borrower may request, upon not less than 20 days
prior written notice to the Agent and the Lenders, that an Unencumbered Pool
Property cease to be an Unencumbered Pool Property. The Agent shall grant such
request if all of the following conditions are satisfied:
(a) no Default or Event of Default shall have occurred and be
continuing both at the time of such request and immediately after giving effect
to such request; and
(b) the Borrower shall have delivered to the Agent an Unencumbered Pool
Certificate demonstrating on a pro forma basis, and the Agent shall have
determined, that the outstanding principal balance of the Loans will not exceed
the Maximum Loan Availability after giving effect to such request and any
prepayment to be made and/or the acceptance of any Property as an additional or
replacement Unencumbered Pool Property to be given concurrently with such
request.
After giving effect to any request that an Unencumbered Pool Property cease to
be designated as such, the Borrower may request in writing that the Agent
release, and upon receipt of such request the Agent shall release, a Guarantor
from the Guaranty so long as: (i) such Guarantor is a Subsidiary; (ii) such
Guarantor owns no other Unencumbered Pool Property, nor any direct or indirect
equity interest in any Subsidiary that does own an Unencumbered Pool Property;
(iii) such Guarantor is not otherwise required to be a party to the Guaranty
under Section 8.24.; and (iv) no Default or Event of Default shall then be in
existence or would occur as a result of such release.
SECTION 4.3. Additional Requirements of Unencumbered Pool Properties.
The ratio (expressed as a percentage) of (a) the net rentable square
footage of all Unencumbered Pool Properties actually occupied by tenants paying
rent pursuant to binding leases as to which no monetary default has occurred and
is continuing to (b) the aggregate net rentable square footage of all
Unencumbered Pool Properties shall at all times equal or exceed 90%. A Property
shall cease to be an Unencumbered Pool Property if it shall cease to be an
Eligible Property.
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
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 LIBOR Loans or such
obligation or the maintenance by such Lender of capital in respect of its LIBOR
Loans or its Commitment (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or any of the other Loan Documents in
respect of any of such LIBOR Loans or its 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 LIBOR Loans by the jurisdiction in which such Lender has its
principal office or such Lending Office); or (ii) imposes or modifies any
reserve, special deposit or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, or
other credit extended by, or any other acquisition of funds by such Lender (or
its parent corporation), or any commitment of such Lender (including, without
limitation, the Commitment of such Lender hereunder); or (iii) has or would have
the effect of reducing the rate of return on capital of such Lender to a level
below that which such Lender could have achieved but for such Regulatory Change
(taking into consideration such Lender's policies with respect to capital
adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
the provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Loans
into, LIBOR Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of Section 5.5. shall
apply).
(c) Notification and Determination of Additional Costs. Each of the
Agent and each Lender, as the case may be, agrees to notify the Borrower of any
event occurring after the Agreement Date entitling the Agent or such Lender to
compensation under any of the preceding subsections of this Section as promptly
as practicable; provided, however, that the failure of the Agent or any Lender
to give such notice shall not release the Borrower from any of its obligations
hereunder. Each Lender agrees to furnish to the Borrower and the Agent a
certificate setting forth the basis and amount of each request for compensation
under this Section. Determinations by such 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.
SECTION 5.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any LIBO Rate for any Interest Period:
(a) the Agent reasonably determines (which determination shall
be conclusive) that quotations of interest rates for the relevant
deposits referred to in the definition of LIBO Rate are not being
provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for LIBOR Loans as provided
herein or is otherwise unable to determine the LIBO Rate, or
(b) any Lender reasonably determines (which determination
shall be conclusive) that the relevant rates of interest referred to in
the definition of LIBO Rate upon the basis of which the rate of
interest for LIBOR Loans for such Interest Period is to be determined
are not likely adequately to cover the cost to such Lender of making or
maintaining LIBOR Loans for such Interest Period; or
(c) any Lender that has outstanding a Bid Rate Quote with
respect to a LIBOR Margin Loan reasonably determines (which
determination shall be conclusive) that the LIBO Rate will not
adequately and fairly reflect the cost to such Lender of making or
maintaining such LIBOR Margin Loan;
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
clause (a) or (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 prepay such Loan or Convert such
Loan into a Base Rate Loan and (ii) in the case of clause (c) above, no Lender
that has outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan shall
be under any obligation to make such Loan.
SECTION 5.3. Illegality.
Notwithstanding any other provision of this Agreement, if any Lender
shall determine (which determination shall be conclusive and binding) that it is
unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy of such notice to the Agent) and such Lender's obligation to make or
Continue, or to Convert Revolving Loans of any other Type into, LIBOR Loans
shall be suspended until such time as such Lender may again make and maintain
LIBOR Loans (in which case the provisions of Section 5.5. shall be applicable).
SECTION 5.4. Compensation.
The Borrower shall pay to the Agent for account of each Lender, upon
the request of such Lender through the Agent, such amount or amounts as shall be
sufficient to compensate such Lender for any loss, cost or expense that such
Lender reasonably determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional)
of a LIBOR Loan or 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 Base Rate Loan into a LIBOR Loan or Continue a LIBOR
Loan on the requested date of such Conversion or Continuation.
Not in limitation of the foregoing, such compensation shall include,
but shall not be limited to: (i) in the case of a LIBOR Loan, an amount equal to
the then present value of (A) the amount of interest that would have accrued on
such LIBOR Loan for the remainder of the Interest Period at the rate applicable
to such LIBOR Loan, less (B) the amount of interest that would accrue on the
same LIBOR Loan for the same period if the LIBO Rate were set on the date on
which such LIBOR Loan was repaid, prepaid or Converted or the date on which the
Borrower failed to borrow, Convert or Continue such LIBOR Loan, as applicable,
calculating present value by using as a discount rate the LIBO Rate quoted on
such date; and (ii) in the case of a Bid Rate Loan, the sum of such losses and
expenses as the Lender or Designated Lender who made such Bid Rate Loan may
reasonably incur by reason of such prepayment, including without limitation any
losses or expenses incurred in obtaining, liquidating or employing deposits from
third parties.
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), Section 5.2. or Section 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., Section 5.2. or 5.3.
that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's LIBOR Loans shall be applied instead to its Base Rate
Loans; and
(b) all Revolving Loans that would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be Converted
into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent)
that the circumstances specified in Section 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. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.11., 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.
ARTICLE VI. CONDITIONS
SECTION 6.1. Effectiveness.
The effectiveness of the amendment and restatement of the Existing
Regency Credit Agreement contemplated hereby, as well as the obligation of the
Lenders to make any Revolving Loans, of the Swingline Lender to make any
Swingline Loans, and of the Agent to issue Letters of Credit, to or for the
account of the Borrower in accordance with the terms hereof, are subject to the
condition precedent that the Borrower deliver to the Agent each of the
following, each of which shall be in form and substance satisfactory to the
Agent:
(a) counterparts of this Agreement executed by each of the parties
hereto;
(b) Revolving Notes and Bid Rate Notes executed by the Borrower,
payable to all Lenders or any Designated Lender, if applicable, and complying
with the terms of Section 2.12. and the Swingline Note executed by the Borrower,
payable to the Swingline Lender;
(c) the Guaranty executed by each "Guarantor" under the Existing Credit
Agreement and any other Subsidiary that would be required under Section 8.24.(a)
to become a party to the Guaranty as of the Effective Date;
(d) an opinion of Foley & Lardner, counsel to the Borrower and the
Guarantors, and addressed to the Agent and the Lenders in substantially the form
of Exhibit N-1;
(e) an opinion of Alston & Bird, LLP, counsel to the Agent, and
addressed to the Agent and the Lenders in substantially the form of Exhibit N-2;
(f) all of the documents and information required to be delivered under
Section 4.1. with respect to each of the Properties listed on Schedule 4.1. and
which have not previously been delivered to the Agent;
(g) an Unencumbered Pool Certificate dated the Agreement Date;
(h) the certificate of limited partnership of the Borrower certified as
of a recent date by the Secretary of State of the State of Delaware;
(i) a Certificate of Good Standing issued as of a recent date by the
Secretary of State of the State of Delaware 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 the Borrower is required to be so qualified;
(j) a certificate of incumbency signed by the Secretary or Assistant
Secretary of the general partner of the Borrower with respect to each of the
officers of the general partner of the Borrower authorized to execute and
deliver the Loan Documents to which the Borrower is a party;
(k) certified copies (certified by the Secretary or Assistant Secretary
of the general partner of the Borrower) of the partnership agreement of the
Borrower and of all necessary action taken by the Borrower (and any of the
partners of the Borrower) to authorize the execution, delivery and performance
of the Loan Documents to which it is a party;
(l) the articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational instrument
(if any) of each Guarantor certified as of a recent date by the Secretary of
State of the State of formation of such Guarantor;
(m) a Certificate of Good Standing or certificate of similar meaning
with respect to each Guarantor issued as of a recent date by the Secretary of
State of the State of formation of each such Guarantor and certificates of
qualification to transact business or other comparable certificates issued by
each Secretary of State (and any state department of taxation, as applicable) of
each state in which such Guarantor is required to be so qualified;
(n) a certificate of incumbency signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each Guarantor
with respect to each of the officers of such Guarantor authorized to execute and
deliver the Loan Documents to which such Guarantor is a party;
(o) copies certified by the Secretary or Assistant Secretary of each
Guarantor (or other individual performing similar functions) of (i) the by-laws
of such Guarantor, 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 (ii) all corporate, partnership, member or other necessary action
taken by such Guarantor to authorize the execution, delivery and performance of
the Loan Documents to which it is a party;
(p) all loan closing fees and any other fees then due and payable to
the Agent and the Lenders in connection with this Agreement;
(q) evidence of the assignment of an Investment Grade Rating by both
Moody's and S&P to the senior unsecured long term indebtedness of the Borrower;
(r) a pro forma Compliance Certificate dated as of the Agreement
Date calculated on a projected basis for the fiscal quarter
ending March 31, 1999;
(s) certified copies (certified by a senior executive officer of the
general partner of the Borrower) of the following documents and instruments
relating to the PRT Acquisition:
(i) the Merger Agreement and any amendments thereto; and
(ii) the Registration Statement on Form S-4, Registration No.
333-65491, as filed with the Securities and
Exchange Commission on October 9, 1998 by the Parent, as amended;
(t) a certificate of a senior executive officer of the Parent stating
that all conditions precedent to the consummation of the PRT Acquisition as set
forth in the Merger Agreement have been satisfied or waived in writing, together
with a copy of any such waiver;
(u) copies of all opinion letters delivered in connection with the
Merger Agreement and regarding the PRT Acquisition, either addressed to the
Agent and the Lenders or accompanied by reliance letters from the issuers of
such letters addressed to the Agent and the Lenders;
(v) evidence of the transfer of ownership from the Parent to the
Borrower of all Properties owned directly or indirectly by PRT and acquired by
the Parent pursuant to the PRT Acquisition other than (i) Properties owned by
Retail Property Partners Limited Partnership and (ii) the Properties identified
on Schedule 8.25.;
(w) evidence as to the termination of (i) the Existing PRT Credit
Agreement and (ii) that certain Credit Agreement dated as of December 7, 1998
(as amended, the "Bridge Facility"), among PRT, each of the financial
institutions a party thereto and Wells Fargo Bank, National Association, as
Agent and repayment in full of all obligations thereunder;
(x) a copy (certified by a senior executive officer of the general
partner of the Borrower) of the Indenture dated as of July 20, 1998 by and among
the Borrower, the Guarantors named therein and First Union National Bank, as
Trustee, relating to the Borrower's $100,000,000 Notes dues July 15, 2005,
together with all supplemental indentures executed and delivered in connection
therewith; and
(y) such other documents, instruments and agreements as the Agent or
any Lender may reasonably request.
SECTION 6.2. Conditions to All Loans and Letters of Credit.
The obligation of the Lenders to make any Revolving Loans, and of the
Swingline Lender to make any Swingline Loans, and of the Agent to issue Letters
of Credit is subject to the condition precedent that the following conditions be
satisfied in the judgment of the Agent:
(a) in the case of a Revolving Loan, timely receipt by the Agent of a
Notice of Borrowing, or in the case of a Swingline Loan, timely receipt by the
Swingline Lender of a Notice of Swingline Borrowing;
(b) the proposed use of proceeds of such Loan or Letter of Credit, as
the case may be, set forth in the Notice of Borrowing or Notice of Swingline
Borrowing, as the case may be, is consistent with the provisions of Section
8.14.;
(c) immediately before and after the making of such Loan or the
issuance of such Letter of Credit, no Default (including without limitation, the
existence of the condition described in Section 2.8.(f)) or Event of Default
shall have occurred and be continuing; and
(d) the representations and warranties of the Borrower and the
Guarantors contained in the Loan Documents shall be true in all material
respects on and as of the date of such Loan or issuance of such Letter of
Credit, as applicable, 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 permitted hereunder
and the other Loan Documents.
The delivery of each Notice of Borrowing and each Notice of Swingline Borrowing
and the making of each Loan and the issuance of each Letter of Credit shall
constitute a certification by the Borrower to the Agent and the Lenders that the
statements in the immediately preceding clauses (b) through (d) are true.
SECTION 6.3. Conditions to Conversion to Term Loans.
The right of the Borrower to convert Revolving Loans into Term Loans
under Section 2.11. 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 required under such
Section;
(b) immediately before and after such conversion, no Default (including
without limitation, the existence of the condition described in Section 2.8.(f))
or Event of Default shall have occurred and be continuing; and
(c) the representations and warranties of the Borrower contained in the
Loan Documents to which it 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 permitted
hereunder and the other 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 (b) and (c) are true.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and each Lender as
follows:
SECTION 7.1. Existence and Power.
Each of the Borrower, each Guarantor and its other Subsidiaries is a
corporation, partnership or other legal entity, duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, and
has all requisite power and authority and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted and is duly qualified and is in good standing, 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.
SECTION 7.2. Ownership Structure.
Part I of Schedule 7.2. is a complete and correct list of all
Subsidiaries of the Parent (including all Subsidiaries of the Borrower), setting
forth for each such Subsidiary, (a) the jurisdiction of organization of such
Subsidiary, (b) each Person holding ownership interests in such Subsidiary and
(c) the nature of the ownership interests held by each such Person and (d) the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in such Schedule (i) each of the Parent and its
Subsidiaries owns, free and clear of all Liens, and has the unencumbered right
to vote, all outstanding ownership interests in each Person shown to be held by
it on such Schedule, (ii) all of the issued and outstanding capital stock of
each such Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including,
without limitation, any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, any such Person. Part II of Schedule
7.2. correctly sets forth all Unconsolidated Affiliates and Preferred Stock
Entities of the Parent, including the correct legal name of such Person, the
type of legal entity which each such Person is, and all ownership interests in
such Person held directly or indirectly by the Parent.
SECTION 7.3. Authorization of Agreement, Notes, Loan Documents and Borrowings.
The Borrower and each Guarantor has the right and power, and has taken
all necessary action to authorize it, to borrow hereunder (in the case of the
Borrower) and to execute, deliver and perform this Agreement, the Notes and the
other Loan Documents to which it is a party in accordance with their respective
terms and to consummate the transactions contemplated hereby and thereby, as the
case may be. This Agreement, the Notes and each of the other Loan Documents to
which the Borrower or a Guarantor is a party have been duly executed and
delivered by such Loan Party and each is a legal, valid and binding obligation
of such Loan Party enforceable against such Loan Party 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
(other than the payment of principal) contained herein or therein may be limited
by equitable principles generally.
SECTION 7.4. Compliance of Agreement, Notes, Loan Documents and Borrowing with
Laws, etc.
The execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents to which the Borrower or any Guarantor is a party
in accordance with their respective terms and the borrowing of Loans hereunder
do not and will not, by the passage of time, the giving of notice or otherwise
(a) require any Governmental Approval or violate any Applicable Law relating to
the Borrower or any Guarantor the failure to possess or to comply with which
would have a Materially Adverse Effect; (b) conflict with, result in a breach of
or constitute a default under the articles of incorporation, bylaws, operating
agreement, partnership agreement or other organizational or constituent
documents of the Borrower or any Guarantor, or any indenture, agreement or other
instrument to which the Borrower or any Guarantor is a party or by which it or
any of its properties may be bound and the violation of which would have a
Materially Adverse Effect; or (c) 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 Guarantor other than Permitted Liens.
SECTION 7.5. Compliance with Law; Governmental Approvals.
Each of the Borrower and the Guarantors is in compliance with each
Governmental Approval applicable to it and in compliance with all other
Applicable Law relating to it, except for noncompliances which, and Governmental
Approvals the failure to possess which, would not, singly or in the aggregate,
cause a Default or Event of Default or have a Materially Adverse Effect and in
respect of which (if the Borrower has actual knowledge of such Applicable Law or
Governmental Approval) adequate reserves have been established on the books of
such Loan Party.
SECTION 7.6. Existing Indebtedness.
Other than the Indebtedness hereunder and as set forth on Schedule
7.6., neither the Borrower, any Guarantor nor any of its other Subsidiaries,
Preferred Stock Entities or any other Non-Guarantor Entity has any Indebtedness.
The Borrower, each Guarantor and each of the other Subsidiaries, Preferred Stock
Entities and Affiliates have performed and are in compliance with all of the
terms of such Indebtedness 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, a determination of materiality, the satisfaction
of any other condition or any combination of the foregoing, would constitute
such a default or event of default, exists with respect to any such
Indebtedness.
SECTION 7.7. Title to Properties; Liens.
Each of the Borrower, each Guarantor and its other Subsidiaries has
good, marketable and legal title to, or a valid leasehold interest in, its
respective assets. Each of the Unencumbered Pool Properties is free and clear of
all Liens except for Permitted Liens.
SECTION 7.8. Unencumbered Pool Properties.
Each of the Unencumbered Pool Properties qualifies as an Eligible Property.
SECTION 7.9. Leases.
Except as reflected on the most current rent rolls delivered to the
Agent, all tenant leases of any Unencumbered Pool Property are in full force and
effect and no default or event of default (or event or occurrence which upon
with the passage of time or the giving of notice, or both, will constitute a
default or event of default) exists or will exist thereunder as a result of the
consummation of the transactions contemplated by the Loan Documents.
SECTION 7.10. Material Contracts.
Schedule 7.10. is a true, correct and complete listing of all Material
Contracts. Each of the Borrower, each Guarantor and its other Subsidiaries that
are parties to any Material Contract has performed and is in compliance with all
of the terms of such Material Contract, and no default or event of default, or
event or condition which with the giving of notice, the lapse of time, a
determination of materiality, the satisfaction of any other condition or any
combination of the foregoing, would constitute such a default or event of
default, exists with respect to any such Material Contract.
SECTION 7.11. Margin Stock.
Neither the Borrower, any Guarantor 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 Regulations U and X, and no part
of the proceeds of any extension of credit hereunder will be used to buy or
carry any such "margin stock."
SECTION 7.12. Transactions with Affiliates.
Except as set forth on Schedule 7.12., neither the Borrower, any
Guarantor nor any other Subsidiary is a party to any transaction with any
Affiliate which is in violation of Section 8.20.
SECTION 7.13. Absence of Defaults.
Neither the Borrower nor any Guarantor is in default under its articles
of incorporation, bylaws, operating agreement, partnership agreement or other
organizational or constituent document, and no event has occurred, which has not
been remedied, cured or waived (a) which constitutes a Default or an Event of
Default; or (b) 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 Guarantor or any other Subsidiary under any Material Contract
(other than this Agreement or any other Loan Document) or judgment, decree or
order to which the Borrower, any Guarantor or any other Subsidiary is a party or
by which it or any of its properties may be bound.
SECTION 7.14. Financial Information.
The Borrower has furnished to each Lender copies of (a) the audited
consolidated balance sheet of the Parent and its Consolidated Subsidiaries as at
December 31, 1996 and December 31, 1997, and the audited consolidated related
statements of income, retained earnings and cash flow for the periods covered
thereby (the "Parent's Audited Statements"), (b) the unaudited consolidated
balance sheet of the Parent and its Consolidated Subsidiaries as at September
30, 1998 and the related unaudited consolidated statement of income, retained
earnings and cash flow for the nine-month period then ending (the "Parent's
Unaudited Statements", the Parent's Unaudited Statements and the Parent's
Audited Statements together referred to as the "Parent's Financial Statements")
and (c) the pro forma condensed consolidated balance sheet of the Parent and its
Consolidated Subsidiaries (giving effect to the PRT Acquisition) as at September
30, 1998, and the unaudited pro forma condensed consolidated related statements
of income, retained earnings and cash flow for the nine month period ending
September 30, 1998 (the "Combined Statements"), each certified by the President
or Chief Financial Officer of the Borrower to be, in his opinion, in compliance
with the next sentence. The balance sheets and statements (including in each
case related schedules and notes) contained in the Parent's Financial Statements
are complete and correct and present fairly, in accordance with GAAP
consistently applied throughout the periods involved, the consolidated financial
position of the Parent and its Consolidated Subsidiaries as at their respective
dates and the results of operations and the cash flow for such periods (subject,
in the case of quarterly financial statements, to normal year-end audit
adjustments and the absence of certain footnotes). The Combined Statements have
been prepared by the Parent and PRT, based on their respective financial
statements for such periods and at such date together with available information
and certain assumptions which the Parent believes to be reasonable, and give pro
forma effect to the PRT Acquisition under the pooling-of-interest method of
accounting. Each of the operating statements pertaining to each of the
Unencumbered Pool Properties delivered to the Agent was prepared in accordance
with GAAP and fairly presents the results of operations of such Unencumbered
Pool Property for the period then ended. Each of the projections, financial
plans and budgets delivered, or required to be delivered, to the Agent or any
Lender, whether prior to, on or after, the date hereof (a) has been, or will be,
as applicable, prepared for each Unencumbered Pool Property in light of the past
business and performance of such Unencumbered Pool Property and (b) represents
or will represent, as of the date thereof, the reasonable good faith estimates
of Borrower's financial performance. None of the Borrower, the Parent nor any of
its Consolidated 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. Since December 31, 1995, there has been no material
adverse change in the financial condition, operations, business or prospects of
the Parent or any of its Subsidiaries. Each of the Parent and its Subsidiaries
is Solvent.
SECTION 7.15. Litigation.
Except as set forth on Schedule 7.15., there are no actions, suits or
proceedings pending against, or to the knowledge of the Parent threatened
against or affecting, the Borrower, any Guarantor or any of its other
Subsidiaries before any court or arbitrator or any governmental body, agency or
official (a) which could reasonably be expected to have a Materially Adversely
Effect or (b) which in any manner draws into question the validity or
enforceability of any Loan Document.
SECTION 7.16. ERISA.
(a) Existing Plans. Except for Plans as set forth on Schedule 7.16.,
neither the Borrower nor any Guarantor maintains, nor has the Borrower or any
Guarantor at any time maintained, any Plan subject to the provisions of ERISA.
Neither the Borrower nor any Guarantor is, nor has at any time been, a member of
any ERISA Group with any Person that has at any time maintained any such Plan.
(b) ERISA and Internal Revenue Code Compliance and Liability. Each of
the Borrower and the Guarantors is in compliance with all applicable provisions
of ERISA and the regulations and published interpretations thereunder with
respect to all Plans except where failure to comply would not result in a
Materially Adverse Effect and except for any required amendments for which the
remedial amendment period as defined in Section 401(b) of the Code has not yet
expired. Each Plan that is intended to be qualified under Section 401(a) of the
Internal Revenue Code has been determined by the Internal Revenue Service to be
so qualified, and each trust related to such plan has been determined to be
exempt under Section 501(a) of the Internal Revenue Code. No material liability
has been incurred by the Borrower or any Guarantor which remains unsatisfied for
any taxes or penalties with respect to any Plan or any Multiemployer Plan.
(c) Funding. No Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Internal Revenue Code) been
incurred (without regard to any waiver granted under Section 412 of the Internal
Revenue Code), nor has any funding waiver from the IRS been received or
requested with respect to any Plan, nor has the Borrower or any Guarantor failed
to make any contributions or to pay any amounts due and owing as required by
Section 412 of the Internal Revenue Code, Section 302 of ERISA or the terms of
any Plan prior to the due dates of such contributions under Section 412 of the
Internal Revenue Code or Section 302 of ERISA, nor has there been any event
requiring any disclosure under Section 4041(c)(3)(C), 4063(a) or 4068(f) of
ERISA with respect to any Plan.
(d) Prohibited Transactions and Payments. Neither the Borrower nor any
Guarantor has: (1) engaged in a nonexempt prohibited transaction described in
Section 406 of ERISA or Section 4975 of the Internal Revenue Code; (2) incurred
any liability to the PBGC which remains outstanding other than the payment of
premiums and there are no prepayments which are due and unpaid; (3) failed to
make a required contribution or payment to a Multiemployer Plan; or (4) failed
to make a required installment or other required payment under Section 412 of
the Internal Revenue Code.
(e) No ERISA Termination Event. No Termination Event has occurred or is
reasonably expected to occur.
(f) ERISA Litigation. No material proceeding, claim, lawsuit and/or
investigation is existing or, to the best knowledge of the Borrower after due
inquiry, threatened concerning or involving any (1) employee welfare benefit
plan (as defined in Section 3(1) of ERISA) currently maintained or contributed
to by the Borrower, (2) Plan or (3) Multiemployer Plan.
SECTION 7.17. Environmental Matters.
Each of the Borrower, the Guarantors and the other Subsidiaries has
obtained all Governmental Approvals which are required under Environmental Laws
and is in compliance in all material respects with all terms and conditions of
such Governmental Approvals and all such Environmental Laws. The Parent is not
aware of, and has not received notice of, any past, present, or future events,
conditions, circumstances, activities, practices, incidents, actions, or plans
which, with respect to the Borrower, the Guarantors or any of the other
Subsidiaries, may interfere with or prevent compliance or continued compliance
with Environmental Laws, or may give rise to any common-law or legal liability,
or otherwise form the basis of any claim, action, demand, suit, proceeding,
hearing, study, or investigation, 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 pollutant, contaminant, chemical, or industrial, toxic, or
other 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 Parent's knowledge, threatened,
against the Borrower, any Guarantor or any other Subsidiary relating in any way
to Environmental Laws.
SECTION 7.18. Taxes.
All federal, state and other tax returns of the Borrower, the
Guarantors and the other Subsidiaries required by Applicable Law to be filed
have been duly filed, and all federal, state and other taxes, assessments and
other governmental charges or levies upon the Borrower, any Guarantor or any
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 8.3. None of the United States income tax
returns of the Borrower, any Guarantor or any other Subsidiary are under audit.
No tax liens have been filed and no claims are being asserted with respect to
any such taxes. All charges, accruals and reserves on the books of the Borrower,
each Guarantor and each other Subsidiary in respect of any taxes or other
governmental charges are in accordance with GAAP.
SECTION 7.19. Investment Company; Public Utility Holding Company.
Neither the Borrower, any Guarantor 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.
SECTION 7.20. Full Disclosure.
All written information furnished by or on behalf of the Borrower or
any Guarantor to the Agent and the Lenders for purposes of or in connection with
this Agreement and the other Loan Documents or any transaction contemplated
hereby is, and all such information hereafter furnished by or on behalf of the
Borrower or any Guarantor to the Agent or any of the Lenders will be true and
accurate in all material respects on the date as of which such information is
stated or certified and does not, and will not, fail to state any material facts
necessary to make the statements contained therein not misleading. The Parent
has disclosed to the Agent in writing any and all facts known to the Parent
which materially and adversely affect or may affect (to the extent the Parent
can now reasonably foresee), the business, operations or financial condition of
the Borrower, each Guarantor and each of the other Consolidated Subsidiaries, or
the ability of the Borrower or any Guarantor to perform its obligations under
the Loan Documents to which it is a party.
SECTION 7.21. Not Plan Assets.
Neither the assets of the Borrower nor any Guarantor constitute, nor
will constitute, plan assets, within the meaning of ERISA, the Internal Revenue
Code and the respective regulations promulgated thereunder, of any ERISA Plan or
Non-ERISA Plan. The execution, delivery and performance of this Agreement, and
the borrowing and repayment of amounts thereunder, do not and will not
constitute "prohibited transactions" under ERISA or the Internal Revenue Code.
SECTION 7.22. Business.
The Parent and its Consolidated Subsidiaries, are engaged in the
business of owning, managing and developing community and neighborhood shopping
centers and other activities incidental thereto.
SECTION 7.23. Title to Properties; Necessary Agreements, Licenses, Permits;
Adverse Contracts.
Each of the Borrower, the Guarantors and the other Subsidiaries (i) has
good and marketable title to its assets and properties except as disclosed in
the consolidated financial statements of the Parent delivered to the Agent and
the Lenders, (ii) is in compliance with all real and personal property leases
where the failure to so be in compliance would have a Materially Adverse Effect,
(iii) possess all necessary and appropriate agreements, contracts, franchise
arrangements, patents, trademarks, licenses, permits and other intellectual
property rights free from burdensome or undue restriction and (iv) has not
infringed upon or otherwise violated any trademark, patent, license or other
intellectual property agreement where such infringement would have a Materially
Adverse Effect. Neither the Borrower, any Guarantor nor any of the other
Subsidiaries has assumed liability under or is a party to nor is it or any of
its property subject to or bound by any forward purchase contract, futures
contract, covenant not to compete, unconditional purchase, take or pay or other
agreement which restricts its ability to conduct its business or, either
individually or in the aggregate, has a Materially Adverse Effect or could
reasonably be expected to have a Materially Adverse Effect.
SECTION 7.24. Non-Guarantor Entities.
Schedule 7.24. is as of the date hereof 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
Parent. No Non-Guarantor Entity satisfies any condition contained in clause (i)
or (ii) of Section 8.24.(a).
ARTICLE VIII. COVENANTS
The Borrower agrees that, so long as the Lenders have any Commitments
hereunder or any Obligation remains unpaid:
SECTION 8.1. Information.
The Borrower and the Parent, as applicable will deliver to the Agent:
(a) Within 100 days after the end of each fiscal year of the Parent,
the audited consolidated balance sheet of the Parent and its Subsidiaries as at
the end of such fiscal year and the related audited consolidated statements of
income, retained earnings and cash flows of the Parent and its Subsidiaries for
such fiscal year, setting forth in comparative form the figures as at the end of
and for the previous fiscal year, all of which shall be certified by the chief
financial officer of the Parent in his or her opinion, to present fairly, in
accordance with GAAP, the financial position of the Parent and its Subsidiaries,
as applicable as at the date thereof and the result of operations for such
period and by independent certified public accountants of recognized national
standing acceptable to the Agent, whose certificate shall be in scope and
substance satisfactory to the Agent and who shall have authorized the Parent to
deliver such financial statements and certification thereof to the Agent and the
Lenders pursuant to this Agreement;
(b) 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 Parent, the
consolidated balance sheet of the Parent and its Subsidiaries as at the end of
such period and the related consolidated statements of income, retained earnings
and cash flows of the Parent 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 of the Parent in his or her opinion, to present fairly, in accordance
with GAAP, the consolidated financial position of the Parent and its
Subsidiaries as at the date thereof and the results of operations for such
period (subject to normal year-end audit adjustments);
(c) simultaneously with the delivery of each set of financial
statements referred to in the immediately preceding clauses (a) and (b), a
certificate of the chief financial officer of the Parent substantially in the
form of Exhibit Q (i) setting forth in reasonable detail the calculations
required to establish whether the Parent was in compliance with the requirements
of Sections 8.12., 8.23. and 8.27. and Article IX. on the date of such financial
statements, (ii) setting forth a schedule of all current Contingent Obligations
of the Parent, the Borrower, all Subsidiaries, all Preferred Stock Entities and
all Unconsolidated Affiliates and (iii) stating whether any Default or Event of
Default exists on the date of such certificate and, if any Default or Event of
Default then exists, setting forth the details thereof and the action which the
Parent and the Borrower are taking or proposes to take with respect thereto;
(d) as soon as available and in any event within 50 days after the end
of each fiscal quarter of the Borrower, (i) an Unencumbered Pool Certificate
setting forth the information to be contained therein as of the last day of such
fiscal quarter and (ii) a list of all Non-Guarantor Entities as of the last day
of such fiscal quarter, 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 Parent;
(e) simultaneously with the delivery of each set of financial
statements referred to in the immediately preceding clause (a), a statement of
the firm of independent public accountants which reported on such statements
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;
(f) simultaneously with the delivery of each set of financial
statements referred to in the immediately preceding clauses (a) and (b), a "Line
Availability and Debt Capacity" report, certified by the chief financial officer
of the Parent, substantially in the form of such report provided to the Agent as
of December 11, 1998;
(g) no later than November 1 of each calendar year, the annual plan of
the Parent and its Consolidated Subsidiaries which plan shall at least include
capital and operating expense budgets, projections of sources and applications
of funds, a projected balance sheet, profit and loss projections of the Parent
and its Consolidated Subsidiaries for each quarter of the next succeeding fiscal
year and a update copy of Schedule 7.6., all itemized in reasonable detail and
shall also set forth the pro forma calculations required (including any
assumptions, where appropriate) to establish whether or not the Parent, and when
appropriate its Consolidated Subsidiaries, will be in compliance with the
covenants contained in Sections 8.12. and 8.23. and Article IX. at the end of
each fiscal quarter of the next succeeding fiscal year;
(h) promptly upon receipt thereof, copies of all reports submitted to
the Borrower or the Parent or either the Borrower's general partner's or the
Parent's Board of Directors, as applicable, by the Borrower's or Parent's, as
applicable, independent public accountants, including without limitation, any
management report;
(i) within five days after any executive officer of either the Borrower
or the Parent obtains knowledge of any Default or Event of Default, a
certificate of the president or chief financial officer of the Borrower or
Parent, as applicable, setting forth the details thereof and the action which
the Borrower or Parent is taking or proposes to take with respect thereto;
(j) promptly upon the mailing thereof to the shareholders of the Parent
generally, copies of all financial statements, reports, offering memoranda and
proxy statements so mailed;
(k) within 10 days of the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) and all other periodic reports which the Parent shall file with the
Securities and Exchange Commission (or any Governmental Authority substituted
therefor) or any national securities exchange;
(l) promptly upon the release thereof, copies of all press releases of
the Borrower and the Parent and any of its Subsidiaries;
(m) promptly upon obtaining knowledge thereof, a description in
reasonable detail of any action, suit or proceeding commenced or threatened
against the Borrower, any Guarantor, any Subsidiary or any Unencumbered Pool
Property which is reasonably likely to have a Materially Adverse Effect;
(n) promptly upon the occurrence thereof, written notice of any
material change in the senior management of the Borrower or the Parent;
(o) promptly upon the occurrence thereof, a copy of any amendment to
the articles of incorporation, bylaws, operating agreement, partnership
agreement or other organizational or constituent document of the Parent, the
Borrower or any Guarantor;
(p) upon request by the Agent, all financial information maintained on
the Parent, the Borrower, any Guarantor and the individual real estate projects
owned by the Parent, the Borrower or any Guarantor, including, but not limited
to, property cash flow reports, property budgets, operating statements, leasing
status reports (both actual occupancy and leased occupancy), contingent
liability summary, note receivable summary, summary of cash and cash equivalents
and overhead and capital improvement budgets;
(q) within 10 days of the filing thereof, each federal or state income
tax return of the Parent, the Borrower, each Guarantor and each other
Subsidiary;
(r) written notice not later than public disclosure of any material
Investments, material acquisitions, dispositions, disposals, divestitures or
similar transactions involving Property, the raising of additional equity or the
incurring or repayment of material Indebtedness, by or with the Parent, the
Borrower, any Guarantor or any other Subsidiary;
(s) if, in connection with a request by the Borrower that a Property be
accepted as an Unencumbered Pool Property, the Borrower was unable to provide
any operating statement or occupancy report for the entire period called for
under clause (ii) or (iv) of Section 4.1.(a) because such information was not
reasonably available to the Borrower but such information does later become
available to the Borrower, the Borrower will promptly provide such reports to
the Agent and the Lenders;
(t) 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 and the Majority Lenders; and
(u) from time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding the business, assets, liabilities, financial condition,
results of operations or business prospects of the Parent, the Borrower, any
Guarantor or any other Subsidiary as the Agent or any Lender may reasonably
request.
SECTION 8.2. ERISA Reporting.
The Borrower shall deliver to the Agent as soon as possible, and in any
event within 10 Business Days after the Borrower knows that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan has
occurred or exists, a statement signed by the chief financial officer of the
Borrower setting forth details respecting such event or condition and the
action, if any, that the Borrower or its ERISA Affiliate proposes to take with
respect thereto (and a copy of any report or notice required to be filed with or
given to PBGC by the Borrower or an ERISA Affiliate with respect to such event
or condition):
(a) any reportable event, as defined in Section 4043(b) of ERISA and
the regulations issued thereunder, with respect to a Plan, as to which PBGC has
not by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event (provided that a failure
to meet the minimum funding standard of Section 412 of the Internal Revenue Code
or Section 302 of ERISA, including, without limitation, the failure to make on
or before its due date a required installment under Section 412(m) of the
Internal Revenue Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section 412(d) of
the Internal Revenue Code); and any request for a waiver under Section 412(d) of
the Internal Revenue Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice of intent
to terminate any Plan or any action taken by the Borrower or an ERISA Affiliate
to terminate any Plan;
(c) the institution by PBGC of proceedings under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Plan,
or the receipt by the Borrower or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with respect to such
Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer Plan by the
Borrower or any ERISA Affiliate that results in liability under Section 4201 or
4204 of ERISA (including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by the Borrower or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(e) the institution of a proceeding by a fiduciary of any Multiemployer
Plan against the Borrower or any ERISA Affiliate to enforce Section 515 of
ERISA, which proceeding is not dismissed within 30 days; and
(f) the adoption of an amendment to any Plan that, pursuant to Section
401 (a)(29) of the Internal Revenue Code or Section 307 of ERISA, would result
in the loss of tax-exempt status of the trust of which such Plan is a part if
the Borrower or an ERISA Affiliate fails to timely provide security to the Plan
in accordance with the provisions of said Sections.
SECTION 8.3. Payment of Obligations.
The Borrower and the Parent will pay and discharge, and will cause each
Guarantor and each other Subsidiary of the Parent to pay and discharge, at or
before maturity, all their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where the same may be
contested in good faith by appropriate proceedings unless the contest thereof
would have a Materially Adverse Effect, and will maintain, and will cause each
Guarantor and each other Subsidiary of the Parent to maintain, in accordance
with GAAP, appropriate reserves for the accrual of any of the same.
SECTION 8.4. Preservation of Existence and Similar Matters.
The Borrower and the Parent shall preserve and maintain, and cause each
Guarantor and each other Subsidiary of the Parent to preserve and maintain, its
respective existence, rights, franchises, licenses and privileges in the
jurisdiction of its 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 would have a Materially Adverse
Effect.
SECTION 8.5. Maintenance of Property.
The Borrower and the Parent shall, and shall cause each other Guarantor
and each other Subsidiary of the Parent to, (a) protect and preserve all of its
material properties, including without limitation, all Unencumbered Pool
Properties, and maintain in good repair, working order and condition all
tangible properties, and (b) from time to time make or cause to be made all
needed and appropriate repairs, renewals, replacements and additions to such
properties.
SECTION 8.6. Conduct of Business.
The Borrower and the Parent shall at all times carry on, and cause each
other Guarantor and each other Subsidiary of the Parent to carry on, its
respective businesses in the same fields as engaged in on the Agreement Date and
not enter, and not permit any other Guarantor or any other Subsidiary of the
Parent to enter, into any line of business not otherwise engaged in by such
Person as of the Agreement Date.
SECTION 8.7. Insurance.
The Borrower and the Parent shall maintain, and cause each other
Guarantor and each other Subsidiary of the Parent 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. Such insurance shall, in any event, include fire and
extended coverage, public liability, property damage, workers' compensation and
flood insurance (if required under Applicable Law). The Borrower and the Parent
shall from time to time deliver to the Agent or any Lender upon its request a
detailed list, together with copies of all policies of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
SECTION 8.8. Modifications to Material Contracts.
The Borrower and the Parent shall not enter into, or permit any other
Guarantor or any other Subsidiary of the Parent to enter into, any amendment or
modification to any Material Contract or default in the performance of any
obligations of the Parent, the Borrower, any other Guarantor or any other
Subsidiary of the Parent in any Material Contract or permit any Material
Contract to be canceled or terminated prior to its stated maturity.
SECTION 8.9. Environmental Laws.
The Borrower and the Parent shall comply, and cause all other
Guarantors and all other Subsidiaries of the Parent to comply, in all material
respects with all Environmental Laws. If the Parent, the Borrower, any other
Guarantor 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 the Parent, the Borrower,
any other Guarantor or any other Subsidiary alleging violations of any
Environmental Law or requiring the Parent, the Borrower, any other Guarantor or
any other Subsidiary to take any action in connection with the release of
Hazardous Materials or (c) receive any notice from a Governmental Authority or
private party alleging that the Parent, the Borrower, any other Guarantor or any
other Subsidiary 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, the Parent shall promptly provide the Agent with a copy of such notice
and in any event within 10 days after the receipt thereof by the Parent, the
Borrower, any other Guarantor or any other Subsidiary. The Borrower and the
Parent shall, and shall cause each other Guarantor 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. Compliance with Laws and Material Contracts.
The Borrower and the Parent will comply, and cause each other Guarantor
and each other Subsidiary to comply, with (a) all Applicable Laws, except where
the failure to so comply would not have a Materially Adverse Effect and (b) all
terms and conditions of all Material Contracts to which it is a party.
SECTION 8.11. Inspection of Property, Books and Records.
The Borrower and the Parent will keep, and will cause each other
Guarantor and each other Subsidiary of the Parent to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each other Guarantor and each other Subsidiary of the
Parent to permit, representatives of the Agent or any Lender to visit and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants in the Borrower's presence prior to an Event of
Default, all at such reasonable times during business hours and as often as may
reasonably be desired and with reasonable notice so long as no Event of Default
shall have occurred and be continuing.
SECTION 8.12. Indebtedness.
The Borrower and the Parent will not, and will not permit any other
Guarantor or any Subsidiary to, incur, assume or suffer to exist any
Indebtedness other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness set forth in Schedule 7.6.;
(c) Indebtedness represented by declared but unpaid dividends; and
(d) Secured Indebtedness and other Unsecured Indebtedness that is pari
passu with and is not subordinate in right of payment or otherwise to the Loans
and the other Obligations, so long as (i) no Default or Event of Default shall
have occurred and be continuing and (ii) the incurrence of such Secured
Indebtedness or other Unsecured Indebtedness would not cause the occurrence of a
Default or Event of Default, including without limitation, a Default or Event of
Default resulting from a violation of Section 9.2.
or 9.3.
SECTION 8.13. Consolidations, Mergers and Sales of Assets.
The Borrower and the Parent shall not, and shall not permit any other
Guarantor or any other Subsidiary of the Parent to, (a) enter into any
transaction of merger or consolidation; (b) liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution) or (c) convey, sell, lease,
sublease, transfer or otherwise dispose of, in one or a series of transactions,
any Unencumbered Pool Property or any interest therein, or all or any
substantial part of its business or assets, or the capital stock of or other
equity interests in any Subsidiary, except that (i) a Subsidiary may merge or
consolidate with the Borrower or a Wholly Owned Subsidiary of the Borrower and
(ii) a Subsidiary may sell, transfer or dispose of its assets to the Borrower or
a Wholly Owned Subsidiary. Further, the Borrower and the Parent shall not, and
shall not permit any Guarantor nor any other Subsidiary of the Parent to, enter
into any sale-leaseback transactions or other transaction by which the Parent,
the Borrower, any other Guarantor or any other Subsidiary shall remain liable as
lessee (or the economic equivalent thereof) of any real or personal property
that it has sold or leased to another Person.
SECTION 8.14. Use of Proceeds and Letters of Credit.
The Borrower will only use the proceeds of the Loans for
pre-development costs, development costs, acquisitions, capital expenditures,
working capital and general corporate purposes, equity investments, repayment of
Indebtedness or scheduled amortization payments on Indebtedness, financing loans
to Subsidiaries, Unconsolidated Affiliates, Preferred Stock Entities and other
Affiliates of the Borrower for development activities, and for no other
purposes. The Borrower will not use any proceeds of the Loans for the purpose of
purchasing or carrying any "margin stock" within the meaning of Regulations U
and X. The Borrower will use the Letters of Credit only for the same purposes
for which it may use the proceeds of Loans. The Borrower shall use the proceeds
of the initial Revolving Loans made on the Effective Date to satisfy in full all
outstanding financial obligations owing by PRT under the Existing PRT Credit
Agreement and other Loan Documents (as defined in the Existing PRT Credit
Agreement) and the Bridge Facility and the other Loan Documents (as defined in
the Bridge Facility).
SECTION 8.15. Tenant Concentration.
Neither the Borrower nor the Parent shall permit the Adjusted Base
Rents from any single tenant (excluding Credit Tenants but including all
Affiliates of such tenant other than Credit Tenants), to exceed 15% of Adjusted
Base Rents from all Properties of the Parent and its Subsidiaries.
SECTION 8.16. Acquisitions.
The Borrower and the Parent shall not, and shall not permit any
Subsidiary to, make any Acquisition in which the consideration paid (whether by
way of payment of cash, issuance of capital stock, assumption of Indebtedness,
or otherwise) by the Borrower, the Parent or such Subsidiary equals or exceeds
35% of the sum of (a) total consolidated assets of the Parent plus (b)
consolidated accumulated depreciation of the Parent unless (i) no Default or
Event of Default shall have occurred and be continuing, (ii) the Parent shall
have given the Agent and the Lenders at least 30 days prior written notice of
such Acquisition and (iii) the Parent shall have delivered to the Agent and the
Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing
the Borrower's and Parent's continued compliance with the terms and conditions
of this Agreement and the other Loan Documents, including without limitation,
the financial covenants contained in Article IX., after giving effect to such
Acquisition.
SECTION 8.17. Exchange Listing.
The Parent shall cause its common stock to be listed for trading on
either the New York Stock Exchange or the American Stock Exchange.
SECTION 8.18. REIT Status.
Parent will at all times maintain its status as a REIT.
SECTION 8.19. Negative Pledge; Restriction on Distribution Rights.
The Borrower and Parent shall not, and shall not permit any other
Guarantor or other Subsidiary of the Parent, 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 Guarantor
owning any Unencumbered Pool Property, other than Permitted Liens; (b) enter
into or assume any agreement (other than the Loan Documents) prohibiting the
creation or assumption of any Lien upon its properties or assets, whether now
owned or hereafter acquired; or (c) create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary to: (i) pay dividends or make any other distribution
on any of such Subsidiary's capital stock or other equity interest owned by the
Parent or any other Subsidiary; (ii) pay any Indebtedness owed to the Parent or
any other Subsidiary; (iii) make loans or advances to the Parent or any other
Subsidiary; or (iv) transfer any of its property or assets to the Parent or any
other Subsidiary.
SECTION 8.20. Agreements with Affiliates.
The Borrower and the Parent shall not, and shall not permit any other
Guarantor or any other Subsidiary of the Parent to, enter into any transaction
requiring such Person to pay any amounts to or otherwise transfer property to,
or pay any management or other fees to, any Affiliate other than on terms and
conditions substantially as favorable to the Parent, the Borrower, such other
Guarantor or such other Subsidiary as would be obtainable at the time in a
comparable arm's-length transaction with a Person not an Affiliate.
SECTION 8.21. ERISA Exemptions.
The Borrower and the Parent shall not, and shall not permit any other
Guarantor 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, of
any ERISA Plan or any Non-ERISA Plan.
SECTION 8.22. Compliance with and Amendment of Charter or Bylaws.
The Borrower and the Parent will, and will cause each other Guarantor
to (a) comply with the terms of its articles of incorporation, bylaws, operating
agreement, partnership agreement or other organizational or constituent document
and (b) not amend, supplement, restate or otherwise materially modify its
articles of incorporation, by-laws, operating agreement, partnership agreement
or other organizational or constituent document without the prior written
consent of the Lenders whose combined Pro Rata Shares equal or exceed 51% except
as is required (i) under Applicable Laws or (ii) in order to maintain compliance
with Section 8.18.
SECTION 8.23. Distributions.
If no Event of Default shall have occurred and be continuing, none of
the Parent, the Borrower or any Subsidiary (other than Wholly Owned
Subsidiaries) shall directly or indirectly declare or make, or incur any
liability to make, any Restricted Payments other than (a)(i) distributions to
its shareholders, partners or members, as applicable, and (ii) payments made by
the Parent to purchase outstanding shares of the common stock of the Parent,
which distributions and payments in the aggregate shall not exceed 95% of Funds
From Operations as of the end of each fiscal quarter for the four fiscal quarter
period then ending; provided, however, that any payments made pursuant to clause
(ii) above shall not exceed 10% of Funds from Operations for such four quarter
period and (b) distributions of capital gains resulting from certain asset sales
to the extent necessary to maintain compliance with Section 8.18. If an Event of
Default under Section 10.1.(a) shall have occurred and be continuing as a result
of the Borrower's failure to pay any principal of or interest on any of the
Obligations, none of the Parent, the Borrower or any Subsidiary (other than
Wholly-Owned Subsidiaries) shall directly or indirectly declare or make, or
incur any liability to make, any Restricted Payments. If any other Event of
Default shall have occurred and be continuing, none of the Parent, the Borrower
or any Subsidiary (other than Wholly Owned Subsidiaries) shall directly or
indirectly declare or make, or incur any liability to make, any Restricted
Payments except that the Parent may make distributions to its shareholders in
the minimum amount necessary to maintain compliance with Section 8.18.
SECTION 8.24. New Guarantors.
(a) Generally. The Parent shall cause any Subsidiary 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 immediately
following subsection (b):
(i) any Subsidiary that Guarantees, or otherwise becomes
obligated in respect of, any Indebtedness of (1) the Parent; (2) the
Borrower; (3) any other Subsidiary of the Parent or the Borrower or (4)
any Non-Guarantor Entity; and
(ii) any other Subsidiary that can become a party to the
Guaranty without violating: (1) terms of its articles of incorporation,
bylaws, operating agreement, partnership agreement, declaration of
trust or other similar organizational document, which terms expressly
prohibit such Subsidiary from providing Guarantees of Indebtedness of
any other Person or otherwise incurring any Indebtedness or (2) any
fiduciary obligation owing by such Subsidiary to the holders of equity
interest in such Subsidiary and imposed under Applicable Law; provided,
however, the condition of this clause (ii) shall be deemed not to apply
to (A) Retail Property Partners Limited Partnership at any time prior
to June 30, 1999 nor (B) any Single Asset Subsidiary.
Any such Accession Agreement and the other items required under the immediately
following subsection (b) must be delivered to the Agent no later than 10 days
following the date on which any of the above conditions first applies to a
Subsidiary.
(b) Required Deliveries. Each Accession Agreement required to be
delivered by a New Guarantor under the immediately preceding subsection (a)
shall be accompanied by all of the following items, each in form and substance
satisfactory to the Agent:
(i) the articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of such New Guarantor certified as of a recent date
by the Secretary of State of the State of formation of such New
Guarantor;
(ii) a Certificate of Good Standing or certificate of similar
meaning with respect to such New Guarantor issued as of a recent date
by the Secretary of State of the State of formation of such New
Guarantor and certificates of qualification to transact business or
other comparable certificates issued by each Secretary of State (and
any state department of taxation, as applicable) of each state in which
such New Guarantor is required to be so qualified;
(iii) 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;
(iv) copies certified by the Secretary or Assistant Secretary
of New Guarantor (or other individual performing similar functions) of
(1) the by-laws of New Guarantor, 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 New
Guarantor to authorize the execution, delivery and performance of the
Loan Documents to which it is a party;
(v) an opinion of Foley & Lardner, counsel to Borrower,
addressed to the Agent and Lenders, and regarding, among other things,
the authority of such New Guarantor to execute, deliver and perform the
Guaranty, and such other matters as the Agent or its counsel may
request; and
(vi) such other documents and instruments as the Agent may
reasonably request.
SECTION 8.25. Acquisitions or Developments of Properties.
Neither the Parent nor any of its Subsidiaries other than the Borrower
and its Subsidiaries shall acquire or develop any Property directly or
indirectly through the Acquisition of a Subsidiary other than Properties
acquired or developed by the Parent and such Subsidiaries on or before December
31, 1997; provided, however, that (a) Delk Spectrum, L.P., a Subsidiary of the
Parent, may acquire and develop Properties after December 31, 1997 so long as
the aggregate value of such Properties is equal to or less than $13,000,000; (b)
Regency Office may acquire the Regency Office Properties; (c) the Parent may
acquire Preferred Stock (that is not Voting Stock) of PRT Development
Corporation, and its Wholly Owned Subsidiary Fountain Valley LLC (which only
owns the Property referred to as "Fountain Valley"), pursuant to the PRT
Acquisition; (d) the Parent may acquire a general partner interest in Retail
Property Partners Limited Partnership pursuant to the PRT Acquisition so long as
(i) the Parent transfers such interest to the Borrower (or Retail Property
Partners Limited Partnership merges with and into the Borrower) prior to June
30, 1999 and (ii) the Properties held by Retail Property Partners Limited
Partnership have an aggregate book value plus accumulated depreciation of no
more than $140,000,000; (e) the Parent may acquire PRT Sunnyside LLC as a
Subsidiary pursuant to the PRT Acquisition so long as the Parent transfers all
of its ownership interest in such Subsidiary to the Borrower prior to June 30,
1999 and (f) the Parent may acquire the Properties described on Schedule 8.25.
pursuant to the PRT Acquisition.
SECTION 8.26. Transfer of Properties to Borrower.
The Parent shall cause each of RRC General SPC, Inc., RRC Limited SPC,
Inc., RSP IV Criterion, Ltd., Regency Rosewood Temple Terrace, Ltd., Treasure
Coast Investors, Ltd., Landcom Regency Mandarin, Ltd., RRC FL SPC, Inc., RRC AL
SPC, Inc., and RRC MS SPC, Inc. to transfer all Properties owned by such
entities to the Borrower upon the earlier of the prepayment or the maturity of
the those certain Mortgage Pass-Through Certificates (Series 1993-1) issued by
RRC Lender, Inc. in the aggregate principal amount $51,000,000 pursuant to that
certain Trust Agreement dated as of November 5, 1993, between RRC Lender, Inc.,
as depositor and Banker's Trust Company, as Trustee (the foregoing transaction
referred to herein as the "Banker's Trust Securitized Loan") provided, however,
that the Parent may sell any of such Properties to a third party prior to the
maturity of the Banker's Trust Securitized Loan. The maturity date of the
Banker's Trust Securitized Loan shall not be extended beyond its current
maturity of November 5, 2000. Notwithstanding the foregoing, the Parent shall
not be required to transfer such Properties if this Agreement is amended, in
form and substance satisfactory to the Agent, to provide that the financial
covenants set forth in Article IX. be tested separately for the Borrower and its
Consolidated Subsidiaries and the Parent and its Consolidated Subsidiaries.
SECTION 8.27. Asset Value of Non-Guarantor Entities.
At no time shall the aggregate Asset Value of the Non-Guarantor
Entities obligated in respect of any Indebtedness other than Nonrecourse
Indebtedness exceed 10% of the Gross Asset Value of the Parent and its
Subsidiaries determined on a consolidated basis.
SECTION 8.28. Year 2000 Compliance.
The Borrower will take all action necessary to assure that the
Borrower's and its Subsidiaries' computer systems are able to operate and
effectively process data including dates on and after January 1, 2000. At the
request of the Agent, the Borrower will provide the Agent assurance acceptable
to the Agent of such "Year 2000" compatibility.
SECTION 8.29. Hedging Agreements.
The Borrower and the Parent shall not, and shall not permit any
Subsidiary of the Parent to, create, incur or suffer to exist any obligations in
respect of Hedging Agreements other than (a) Hedging Agreements existing on the
date hereof and described in Schedule 8.29.; (b) interest rate cap agreements
and (c) interest rate Hedging Agreements (excluding interest rate cap
agreements) entered into from time to time after the date hereof with
counterparties that are nationally recognized, investment grade financial
institutions in an aggregate notional amount not to exceed $635,000,000 at any
time outstanding; provided that, no Hedging Agreement otherwise permitted
hereunder may be speculative in nature.
Article IX. Financial Covenants
SECTION 9.1. Minimum Net Worth.
The Parent shall not at any time permit its Net Worth determined on a
consolidated basis to be less than :
(a) At any time prior to the Parent's delivery of the financial
statements described in Section 8.1.(b) for the fiscal quarter ending March 31,
1999, an amount equal to (i) 90% of the Net Worth of the Parent as of September
30, 1998 determined on a consolidated basis giving pro forma effect to the PRT
Acquisition plus (ii) 90% of the sum of (x) the amount of proceeds (net of
transaction costs) received by the Parent from the sale or issuance of shares,
options, warrants or other equity securities of any class or character of the
Parent after September 30, 1998 (excluding any such equity securities issued in
connection with the PRT Acquisition) which affect the Net Worth of the Parent
plus (y) any positive change in the Parent's Net Worth occurring upon the
issuance of any shares of the Parent in exchange for the limited partnership
units held by the limited partners of the Borrower; and
(b) At any time after the Parent's delivery of the financial statements
described in Section 8.1.(b) for the fiscal quarter ending March 31, 1999, an
amount equal to (i) 90% of the Net Worth of the Parent determined on a
consolidated basis as of the end of such fiscal quarter plus (ii) 90% of the sum
of (x) the amount of proceeds (net of transaction costs) received by the Parent
from the sale or issuance of shares, options, warrants or other equity
securities of any class or character of the Parent after March 31, 1999 which
affect the Net Worth of the Parent plus (y) any positive change in the Parent's
Net Worth occurring upon the issuance of any shares of the Parent in exchange
for the limited partnership units held by the limited partners of the Borrower.
SECTION 9.2. Ratio of Total Liabilities to Gross Asset Value.
The Parent shall not at any time permit the ratio of Total Liabilities
of the Parent and its Subsidiaries determined on a consolidated basis to Gross
Asset Value of the Parent and its Subsidiaries determined on a consolidated
basis to exceed 0.525 to 1.00 at any time.
SECTION 9.3. Ratio of Secured Indebtedness to Gross Asset Value.
The Parent shall not at any time permit the ratio of Secured
Indebtedness of the Parent and its Subsidiaries determined on a consolidated
basis to Gross Asset Value of the Parent and its Subsidiaries determined on a
consolidated basis to exceed 0.35 to 1.00 at any time.
SECTION 9.4. Ratio of EBITDA to Interest Expense.
The Parent shall not permit the ratio of EBITDA of the Parent and its
Subsidiaries determined on a consolidated basis to Interest Expense of the
Parent and its Subsidiaries determined on a consolidated basis for any fiscal
quarter to be less than 2.0 to 1.0 at the end of such fiscal quarter.
SECTION 9.5. Ratio of EBITDA to Debt Service, Preferred Stock
Distributions and Reserve for Replacements.
The Parent shall not permit the ratio of (a) EBITDA of the Parent and
its Subsidiaries determined on a consolidated basis to (b) the sum of (i) Debt
Service of the Parent and its Subsidiaries determined on a consolidated basis
plus (ii) any distributions by the Parent or any Subsidiary to the holders of
Preferred Stock issued by the Parent or any such Subsidiary plus (iii) Reserve
for Replacements for all of the Properties of the Parent and its Consolidated
Subsidiaries for any fiscal quarter to be less than 1.75 to 1.00 for such fiscal
quarter.
SECTION 9.6. Unsecured Interest Expense Coverage.
The Parent shall not permit the ratio of Unencumbered NOI to Interest
Expense on Unsecured Indebtedness of the Parent 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.
SECTION 9.7. Permitted Investments.
(a) The Parent shall not make any Investment in or otherwise own, and
shall not permit the Borrower, any other Guarantor or any other Subsidiary to
make an Investment in or otherwise own, the following items which would cause
the aggregate value of such holdings of the Parent, the Borrower and the other
Subsidiaries to exceed the following percentages of the Parent's Gross Asset
Value:
(i) unimproved real estate, such that the aggregate book value
of all such unimproved real estate exceeds 10% of the Parent's Gross
Asset Value;
(ii) Common stock, preferred stock, other capital stock,
beneficial interest in trust, membership interest in limited liability
companies and other equity interests in Persons (other than
Subsidiaries and Unconsolidated Affiliates), such that the aggregate
value of such interests calculated on the basis of the lower of cost or
market, exceeds 5% of the Parent's Gross Asset Value;
(iii) Mortgages in favor of the Parent, the Borrower or any
other Subsidiary, such that the aggregate book value of Indebtedness
secured by such Mortgages exceeds 5% of the Parent's Gross Asset Value;
(iv) Investments in Unconsolidated Affiliates, such that the
aggregate value of such Investments exceeds 15% of the Parent's Gross
Asset Value. For purposes of this clause (iv), the "value" of any such
Investment in such a non-corporate Person shall equal (1) with respect
to any of such Person's Properties under construction, the Parent's
Ownership Share of the book value of Construction in Process for such
Property as of the date of determination and (2) with respect to any of
such Person's Properties which have been completed, the Parent's
Ownership Share of Capitalized EBITDA of such Person attributable to
such Properties; and
In addition to the foregoing limitations, the aggregate value of the
Investments subject to the limitations in the preceding clauses (i) through (iv)
shall not exceed 25% of the Parent's Gross Asset Value.
Additionally, the aggregate amount of the Construction Budgets for
Development Properties in which the Parent either has a direct or indirect
ownership interest shall not exceed 20% of the Parent's Gross Asset Value. If a
Development Property is owned by an Unconsolidated Affiliate of the Parent, the
Borrower or any Subsidiary, then the greater of (1) the product of (A) the
Parent's, the Borrower's or such Subsidiary's Ownership Share in such
Unconsolidated Affiliate and (B) the amount of the Construction Budget for such
Development Property or (2) the recourse obligations of the Parent, the Borrower
or such Subsidiary relating to the Indebtedness of such Unconsolidated
Affiliate, shall be used in calculating such investment limitation.
SECTION 9.8. Floating Rate Debt.
The Parent will not and will not permit any of its Subsidiaries to
incur, assume or suffer to exist any Unprotected Floating Rate Debt of the
Parent and its Subsidiaries determined on a consolidated basis in an aggregate
outstanding principal amount in excess of 25% of Gross Asset Value of the Parent
and its Subsidiaries determined on a consolidated basis at any time.
SECTION 9.9. Limitation on Non-Wholly Owned Subsidiaries, Preferred
Stock Entities and Unconsolidated Affiliates.
The Borrower shall not permit the sum of (a) the value of Investments
in Unconsolidated Affiliates plus (b) the Capitalized EBITDA of Consolidated
Subsidiaries which are not Wholly Owned Subsidiaries to exceed 25% of the Gross
Asset Value of the Parent and its Subsidiaries determined on a consolidated
basis as of the end of each fiscal quarter. For purposes of this section, the
"value" of an Investment in an Unconsolidated Affiliate shall equal (1) with
respect to any of such Unconsolidated Affiliate's Properties under construction,
the Parent's Ownership Share of the book value of Construction in Process for
such Property as of the date of determination and (2) with respect to any of
such Unconsolidated Affiliate's Properties which have been completed, the
Parent's Ownership Share of Capitalized EBITDA of such Unconsolidated Affiliate
attributable to such Properties
ARTICLE X. DEFAULTS
SECTION 10.1. Events of Default.
If one or more of the following events shall have occurred and be
continuing:
(a) Default in Payment. The Borrower shall fail to pay the principal
amount of any Loan or any Reimbursement Obligation when due or (ii) any interest
on any Loan or other Obligation, or any fees or other Obligations within 5
Business Days of the due date thereof;
(b) Default in Performance. The Parent or the Borrower shall fail to
observe or perform any covenant or agreement contained in Section 8.12., Section
8.13. or Section 8.19. on its part to be performed;
(c) Default in Performance-Cure. The Parent or the Borrower shall fail
to observe or perform any covenant or agreement contained in this Agreement
(other than those covered by the immediately preceding subsections (a) or (b))
for a period of 30 days after written notice thereof has been given to the
Borrower or the Parent by the Agent;
(d) Other Loan Documents. An Event of Default under and as defined in
any Loan Document shall occur and be continuing or the Parent or the Borrower
shall fail to observe or perform any covenant or agreement contained in any of
the Loan Documents to which it is a party and such failure shall continue beyond
any applicable period of grace;
(e) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of the Parent, the Borrower or any
other Guarantor 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 or made or deemed made by or on behalf of the Parent, the Borrower or
any other Guarantor 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.
(f) Indebtedness Cross-Default.
(i) The Parent, the Borrower, any other Guarantor or any other
Subsidiary shall fail to pay when due and payable the principal of, or
interest on, any Indebtedness (other than the Loans) or any Contingent
Obligations, which Indebtedness or Contingent Obligations have an
aggregate outstanding principal amount of $5,000,000 or more;
(ii) Any such Indebtedness or Contingent Obligations shall
have (x) been accelerated in accordance with the provisions of any
indenture, contract or instrument evidencing, providing for the
creation of or otherwise concerning such Indebtedness or (y) been
required to be prepaid prior to the stated maturity thereof; or
(iii) Any other event shall have occurred and be continuing
which, with or without the passage of time, the giving of notice, a
determination of materiality, the satisfaction of any condition or any
combination of the foregoing, would permit any holder or holders of
such Indebtedness or Contingent Obligations, any trustee or agent
acting on behalf of such holder or holders or any other Person, to
accelerate the maturity of any such Indebtedness or Contingent
Obligations or require any such Indebtedness or Contingent Obligations
to be prepaid prior to its stated maturity.
(g) Voluntary Bankruptcy Proceeding. The Parent, the Borrower, any
other Guarantor or any other Affiliates 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.
(h) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Parent, the Borrower, any other Guarantor or any other
Affiliates, 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 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 against the Parent, the Borrower, such Guarantor or such Affiliate
(including, but not limited to, an order for relief under such Bankruptcy Code
or such other federal bankruptcy laws) shall be entered.
(i) Change of Control/Change in Management.
(w) (A) If any Person (or two or more Persons acting in
concert) (other than the Stein Parties or US Realty) shall acquire
"beneficial ownership" within the meaning of Rule 13d-3 of the
Securities and Exchange Act of 1934, as amended, of the capital stock
or securities of the Parent representing 20% or more of the aggregate
voting power of all classes of capital stock and securities of the
Parent entitled to vote for the election of directors or (B) during any
twelve-month period (commencing both before and after the Agreement
Date), individuals who at the beginning of such period were directors
of the Parent shall cease for any reason (other than death or mental or
physical disability) to constitute a majority of the board of directors
of the Parent;
(x) If the Persons comprising the Stein Parties shall cease to
own, in the aggregate, at least 570,000 shares of the outstanding
common stock of the Parent (without regard to any dilution thereof);
(y) If US Realty shall cease to own at least 25% of the total
outstanding common stock of the Parent; or
(z) the general partner of the Borrower shall cease to be the
Parent;
(j) ERISA. The assets of the Parent, the Borrower or any other
Guarantor at any time constitute assets, within the meaning of ERISA, the
Internal Revenue Code and the respective regulations promulgated thereunder, of
any ERISA Plan or Non-ERISA Plan;
(k) Litigation. The Parent, the Borrower or any other Guarantor shall
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 this
Agreement, any Note or any other Loan Document.
(l) Judgment. A judgment or order for the payment of money (not
adequately covered by insurance as to which the insurance company has
acknowledged coverage in writing) shall be entered against the Parent, the
Borrower or any Subsidiary by any court or other tribunal which exceeds,
individually or together with all other such judgments or orders entered against
the Parent, the Borrower or such Subsidiary, $5,000,000 in amount (or which
could otherwise have a Materially Adverse Effect) and such judgment or order
shall continue for a period of 30 days without being stayed or dismissed through
appropriate appellate proceedings.
(m) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Parent, the Borrower or any
Subsidiary which exceeds, individually or together with all other such warrants,
writs, executions and processes, $5,000,000 in amount and such warrant, writ,
execution or process shall not be discharged, vacated, stayed or bonded for a
period of 30 days.
(n) Damage; Strike; Casualty. Any material damage to, or loss, theft or
destruction of, any Property, whether or not insured, or any strike, lockout,
labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than 30 consecutive days beyond the coverage
period of any applicable business interruption insurance, the cessation or
substantial curtailment of revenue producing activities of the Parent, the
Borrower, any other Guarantor or any other Subsidiary if any such event or
circumstance could reasonably be expected to have a Materially Adverse Effect.
(o) Guarantors. Any Guarantor shall fail to comply with any term,
covenant, condition or agreement contained in the Guaranty or any Guarantor
shall disavow, revoke or terminate or attempt to do any of the foregoing with
respect to the Guaranty.
SECTION 10.2. Remedies.
Upon the occurrence of an Event of Default, and in every such event,
the Agent shall, upon the direction of the Majority Lenders, (i) by notice to
the Borrower terminate the Commitments, which shall thereupon terminate, and
(ii) by notice to the Borrower declare the Loans and all other Obligations and
an amount equal to the Stated Amount of all Letters of Credit then outstanding
to be, and the Loans and all other Obligations and an amount equal to the Stated
Amount of all Letters of Credit then outstanding for deposit into the Collateral
Account shall thereupon become, immediately due and payable without presentment,
demand, protest or notice of intention to accelerate, all of which are hereby
waived by the Borrower. If the Agent has exercised any of the rights provided
under the preceding sentence, the Swingline Lender shall: (I) declare the
principal of, and accrued interest on, the Swingline Loans and the Swingline
Note at the time outstanding, and all of the other Obligations owing to the
Swingline Lender, to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived by the Borrower and (II)
terminate the Swingline Commitment and the obligation of the Swingline Lender to
make Swingline Loans. Notwithstanding the foregoing, upon the occurrence of any
of the Events of Default specified in Section 10.1.(g) or (h) above, without any
notice to the Borrower or any other act by the Agent, the Commitments and the
Swingline Commitment shall thereupon immediately and automatically terminate and
the Loans and all other Obligations and an amount equal to the Stated Amount of
all Letters of Credit then outstanding for deposit into the Collateral Account
shall become immediately due and payable without presentment, demand, protest,
notice of intention to accelerate or notice of acceleration, or other notice of
any kind, all of which are hereby waived by the Borrower. Upon the occurrence
and during the continuance of a Default under Section 10.1.(h) or Section
10.1.(i)(y), the right of the Borrower to request Revolving Loans and Swingline
Loans shall be suspended.
SECTION 10.3. Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and the
maturity of the Notes 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 by the Agent in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect of
fees and expenses due under Section 12.3.;
(b) payments of interest on Swingline Loans;
(c) payments of interest on all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(d) payments of principal of Swingline Loans;
(e) payments of principal of all other Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(f) amounts to be deposited into the Collateral Account;
(g) amounts due to the Agent and the Lenders pursuant to
Sections 11.8. and 12.5.;
(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 10.4. 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.
SECTION 10.5. Recission of Acceleration by Majority Lenders.
If at any time after acceleration of the maturity of the Loans and the
other Obligations, the Borrower shall pay all arrears of interest and all
payments on account of principal of the Obligations which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by Applicable Law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Defaults (other than nonpayment of
principal of and accrued interest on the Obligations due and payable solely by
virtue of acceleration) shall be remedied or waived to the satisfaction of the
Majority Lenders, then by written notice to the Borrower, the Majority Lenders
may elect, in the sole discretion of such Majority Lenders, to rescind and annul
the acceleration and its consequences. The provisions of the preceding sentence
are intended merely to bind all of the Lenders to a decision which may be made
at the election of the Majority Lenders, and are not intended to benefit the
Borrower and do not give the Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are satisfied.
SECTION 10.6. 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 Lenders as provided herein, a security interest in
all of the Borrower's right, title and interest in and to the Collateral Account
and the balances from time to time in the Collateral Account (including the
investments and reinvestments therein provided for below). The balances from
time to time in the 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
Collateral Account shall be subject to withdrawal only as provided in this
Section.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Agent in such investments 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. The Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the 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 Collateral
Account.
(c) If an Event of Default shall have occurred and be continuing, the
Agent may (and, if instructed by the Majority 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 Collateral
Account and apply or cause to be applied such proceeds and any other balances in
the Collateral Account to the payment of any of the Letter of Credit Liabilities
then due and payable.
(d) When all of the Obligations shall have been indefeasibly paid in
full and no Letters of Credit remain outstanding, the Agent shall promptly
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, the balances remaining in the 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 Collateral Account and investments and reinvestments of
funds therein.
ARTICLE XI. THE AGENT
SECTION 11.1. Appointment and Authorization.
Each Lender irrevocably appoints and authorizes the Agent to take such
action as the contractual representative on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Agent by the terms
thereof, together with all such powers as are reasonably incidental thereto. The
Borrower shall be entitled to rely conclusively upon a written notice or written
response from the Agent as being made pursuant to the requisite concurrence or
consent of the Lenders necessary to take such action without investigation or
otherwise contacting the Lenders hereunder. Nothing herein shall be construed to
deem the Agent a trustee for any Lender nor to impose on the Agent duties or
obligations other than those expressly provided for herein. Not in limitation of
the foregoing, each Lender agrees the Agent has no fiduciary obligations to such
Lender under this Agreement, any other Loan Document or otherwise. At the
request of a Lender, the Agent will forward to each Lender copies or, where
appropriate, originals of the documents delivered to the Agent pursuant to
Section 6.1. The Agent shall deliver to each Lender, promptly upon receipt
thereof by the Agent, copies of each of the financial statements, certificates,
notices and other documents delivered to the Agent pursuant to Sections 8.1.(a)
through (t). 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 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 the
Notes), 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 Majority Lenders, and such instructions shall be binding upon all the
Lenders and all holders of Notes; provided, however, that 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. 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 obtained knowledge of such
Default or Event of Default in the manner provided for under Section 11.5. In
the event that the Agent has actual knowledge of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders.
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 Majority Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Majority 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. 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 Majority Lenders have so directed the Agent to exercise such
right or remedy.
SECTION 11.2. The Agent and Affiliates.
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 "the Lender" or "the
Lenders" shall, unless otherwise expressly indicated, include Wells Fargo in
each case in its individual capacity. Wells Fargo and its affiliates and the
other Lenders and their respective affiliates may each accept deposits from,
maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with
the Borrower and any Affiliate of the Borrower as if Wells Fargo or such Lender
were any other bank and without any duty to account therefor to the other
Lenders.
SECTION 11.3. Collateral Matters.
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 Majority Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Majority 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.
SECTION 11.4. Approvals of the 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 thing as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where such
matter or thing may be inspected, or shall otherwise describe the matter or
issue to be resolved, (c) shall include, if reasonably requested by such Lender
and to the extent not previously provided to such Lender, written materials and
a summary of all oral information provided to the Agent by the Borrower in
respect of the matter or issue to be resolved, and (d) shall include the Agent's
recommended course of action or determination in respect thereof. Unless a
Lender shall give written notice to the Agent that it objects to the
recommendation or determination of the Agent (together with a written
explanation of the reasons behind such objection) within 10 Business Days (or
such lesser period as may be required under the Loan Documents for the Agent to
respond), such Lender shall be deemed to have conclusively approved of or
consented to such recommendation or determination.
SECTION 11.5. 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 becomes aware of any Default or
Event of Default, it shall promptly send to the Agent such "notice of default."
Further, if the Agent receives such a "notice of default", the Agent shall give
prompt notice thereof to the Lenders.
SECTION 11.6. Consultation with Experts.
The Agent may consult with legal counsel (who may be counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 11.7. Liability of the Agent.
Neither the Agent nor any of its affiliates nor any of their respective
directors, officers, the Agents or employees shall be liable for any action
taken or not taken by the Agent in connection with any of the Loan Documents in
the absence of its own gross negligence or willful misconduct. Neither the Agent
nor any of its affiliates nor any of their respective directors, officers, the
Agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (a) any statement, warranty or representation made in
connection with any of the Loan Documents, or any borrowing hereunder, (b) the
performance or observance of any of the covenants or agreements of the Borrower
or a Guarantor, (c) the satisfaction of any condition specified in Article VI.,
or (d) the validity, effectiveness or genuineness of any of the Loan Documents
or any other instrument or writing furnished in connection herewith or
therewith. The Agent shall not incur any liability by acting in reliance upon
any notice, consent, certificate, statement, or other writing (which may be a
bank wire, telex or similar writing) believed by it to be genuine or to be
signed by the proper party or parties.
SECTION 11.8. Indemnification of the Agent.
The Lenders agree to indemnify the Agent (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so) in
accordance with the Lenders' respective Pro Rata Shares, 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 any way relating to or arising out of the Loan Documents or any
action taken or omitted by the Agent under the Loan Documents; provided,
however, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (i) to the extent arising from the Agent's gross
negligence or willful misconduct or (ii) if the Agent fails to follow the
written direction of the Majority Lenders unless such failure is pursuant to the
Agent's good faith reliance on 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 promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) reasonably incurred by the Agent
in connection with the preparation, execution, administration, or enforcement
of, or legal advice with respect to the rights or responsibilities of the
parties under, the Loan Documents, to the extent that the Agent is not
reimbursed for such expenses by the Borrower. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder
or under the other Loan Documents and the termination of this Agreement.
SECTION 11.9. Credit Decision.
Each Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or other
affiliates has made any representations or warranties to such Lender and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Borrower or Guarantors, shall be deemed to constitute any 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, and based on the financial statements of the Borrower or
Guarantors and its affiliates, 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, 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 expressly required to be furnished to the Lenders by the Agent
hereunder, 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
Guarantor or any other Affiliate which may come into possession of the Agent or
any of its officers, directors, employees, the 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 11.10. Successor Agent.
The Agent may resign at any time by giving 30 days' prior written
notice thereof, to the Lenders and the Borrower. The Agent may be removed as the
Agent under the Loan Documents for good cause upon 30 days' prior written notice
to the Agent by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Lenders, and shall
have accepted such appointment, within 30 days after the current Agent's giving
of notice of resignation or the Majority Lenders' removal of the current Agent,
then the current Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be a Lender, if any Lender shall be willing to serve. Any successor
Agent must be a bank whose debt obligations (or whose parent's debt obligations)
are rated not less than investment grade or its equivalent by a Rating Agency
and which has total assets in excess of $10,000,000,000. Upon the acceptance of
its appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the current Agent, and the current Agent shall be discharged from its duties and
obligations hereunder. After any current Agent's resignation hereunder as Agent,
the provisions of this Article shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent. Notwithstanding
anything contained herein to the contrary, the Agent may assign its rights and
duties hereunder to any of its affiliates by giving the Borrower and each Lender
prior written notice thereof.
SECTION 11.11. Approvals and Other Actions by Majority Lenders.
Each of the following shall require the approval of, or may be taken at
the request of, the Majority Lenders:
(a) Approval of Eligible Properties as Unencumbered Pool Properties as
provided in Section 4.1.(c);
(b) Termination of the Commitments and acceleration of the Obligations
upon the occurrence of an Event of Default as provided in Section
10.2.;
(c) Recission of acceleration of any of the Obligations as provided in
Section 10.5.;
(d) Removing the Agent for good cause and approving of its replacement
as provided in Section 11.10.; and
(e) Except as specifically provided otherwise in Section 12.7., 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.
SECTION 11.12. Documentation, Syndication and Managing Agents.
None of the Documentation Agent, the Syndication Agent or the Managing
Agents (each in such capacity, a "Titled Agent") assumes any 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
Lenders. The titles of "Documentation Agent", "Syndication Agent" and "Managing
Agent" are solely honorific and imply no fiduciary responsibility on the part of
the Titled Agents to the Agent, the Borrower or any Lender and the use of such
titles does not impose on the Titled Agents any duties or obligations greater
than those of any other Lender or entitle the Titled Agents to any rights other
than those to which any other Lender is entitled.
ARTICLE XII. MISCELLANEOUS
SECTION 12.1. Notices.
All notices, requests and other communications to any party under the
Loan Documents shall be in writing (including bank wire, facsimile transmission
or similar writing) and shall be given to such party as follows:
If to the Borrower:
Regency Realty Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Attention: Chief Financial Officer
Telecopier: (904) 634-3428
Telephone: (904) 356-7000
If to a Lender or the Agent:
To such Lender's or the Agent's Lending Office
or as to each party at such other address as such party shall designate in a
written notice to the other parties. Each such notice, request or other
communication shall be effective (a) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (b) if given by any other means (including facsimile),
when delivered at the applicable address provided for in this Section; provided
that notices to the Agent under Article II., and any notice of a change of
address for notices, shall not be effective until received. In addition to the
Agent's Lending Office, the Borrower shall send copies of the information
described in Section 8.1. to the following address of the Agent:
Wells Fargo Bank, National Association
Real Estate Group
Koll Center
2030 Main Street, Suite 800
Irvine, California 92714
Attention: Ms. Rita Swayne
SECTION 12.2. No Waivers.
No failure or delay by the Agent or any Lender in exercising any right,
power or privilege under any Loan Document shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided in the Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 12.3. Expenses.
The Borrower will pay on demand all present and future reasonable
expenses of:
(a) the Agent in connection with the negotiation, preparation,
execution and delivery (including reasonable out-of-pocket costs and expenses
incurred in connection with the assignment of Commitments pursuant to Section
12.8.) of this Agreement, the Notes and each of the other Loan Documents,
whenever the same shall be executed and delivered, including appraisers' fees,
search fees, recording fees and the reasonable fees and disbursements of: (i)
Alston & Bird LLP, counsel for the Agent, and (ii) each local counsel retained
by the Agent;
(b) the Agent in connection with the negotiation, preparation,
execution and delivery of any waiver, amendment or consent by the Agent or any
Lender relating to this Agreement, the Notes or any of the other Loan Documents
or sales of participations in any Lender's Commitment, including the reasonable
fees and disbursements of counsel to the Agent;
(c) the Agent and each of the Lenders in connection with any
restructuring, refinancing or "workout" of the transactions contemplated by this
Agreement, the Notes and the other Loan Documents, including the reasonable fees
and disbursements of counsel to the Agent actually incurred;
(d) the Agent and each of the Lenders, after the occurrence of a
Default or Event of Default, in connection with the collection or enforcement of
the obligations of the Borrower under this Agreement, the Notes or any other
Loan Document, including the reasonable fees and disbursements of counsel to the
Agent or to any Lender actually incurred if such collection or enforcement is
done by or through an attorney;
(e) subject to any limitation contained in Section 12.5., the Agent and
each of the Lenders in connection with prosecuting or defending any claim in any
way arising out of, related to, or connected with this Agreement, the Notes or
any of the other Loan Documents, including the reasonable fees and disbursements
of counsel to the Agent or any Lender actually incurred and of experts and other
consultants retained by the Agent or any Lender in connection therewith;
(f) the Agent and each of the Lenders, after the occurrence of a
Default or Event of Default, in connection with the exercise by the Agent or any
Lender of any right or remedy granted to it under this Agreement, the Notes or
any of the other Loan Documents including the reasonable fees and disbursements
of counsel to the Agent or any Lender actually incurred;
(g) the Agent in connection with costs and expenses incurred by the
Agent in gaining possession of, maintaining, appraising, selling, preparing for
sale and advertising to sell any collateral security, whether or not a sale is
consummated; and
(h) the Agent and each of the Lenders, to the extent not already
covered by any of the preceding subsections, in connection with any bankruptcy
or other proceeding of the type described in Sections 10.1.(g) or (h), and the
reasonable fees and disbursements of counsel to the Agent and any Lender
actually incurred in connection with the representation of the Agent or such
Lender in any matter relating to or arising out of any such proceeding,
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 Agent or such Lender and (iii) the negotiation and preparation
of any plan of reorganization of the Borrower, whether proposed by the Borrower,
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 12.4. Stamp, Intangible and Recording Taxes.
The Borrower will pay any and all stamp, intangible, registration,
recordation and similar taxes, fees or charges and shall indemnify the Agent and
each Lender against any and all liabilities with respect to or resulting from
any delay in the payment or omission to pay any such taxes, fees or charges,
which may be payable or determined to be payable in connection with the
execution, delivery, recording, performance or enforcement of this Agreement,
the Notes and any of the other Loan Documents or the perfection of any rights or
Liens thereunder.
SECTION 12.5. Indemnification.
The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent and each of the Lenders and their respective directors,
officers, the Agents and employees from and against (a) any and all losses,
claims, damages, liabilities, deficiencies, judgments or expenses incurred by
any of them (except to the extent that it results from their own gross
negligence or willful misconduct) arising out of or by reason of any litigation,
investigations, claims or proceedings which arise out of or are in any way
related to: (i) this Agreement or the transactions contemplated thereby; (ii)
the making of Loans or issuance of Letters of Credit; (iii) any actual or
proposed use by the Borrower of the proceeds of the Loans or of Letters of
Credit; or (iv) the Agent's or the Lenders' entering into this Agreement, the
other Loan Documents or any other agreements and documents relating hereto,
including, without limitation, amounts paid in settlement, court costs and the
reasonable fees and disbursements of counsel incurred in connection with any
such litigation, investigation, claim or proceeding or any advice rendered in
connection with any of the foregoing and (b) any such losses, claims, damages,
liabilities, deficiencies, judgments or expenses incurred in connection with any
remedial or other similar action taken by the Borrower, the Agent or any of the
Lenders in connection with the required compliance by the Borrower or any of the
Subsidiaries, or any of their respective properties, with any federal, state or
local Environmental Laws or other material environmental rules, regulations,
orders, directions, ordinances, criteria or guidelines. If and to the extent
that the obligations of the Borrower hereunder are unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under Applicable Law. The
Borrower's obligations hereunder shall survive any termination of this Agreement
and the other Loan Documents and the payment in full of the Obligations, and are
in addition to, and not in substitution of, any other of its other obligations
set forth in this Agreement and the other Loan Documents.
SECTION 12.6. Setoff.
In addition to any rights now or hereafter granted under Applicable Law
and not by way of limitation of any such rights, each Lender is hereby
authorized by the Borrower, at any time or from time to time upon the occurrence
and during the continuance of an Event of Default but subject to the Agent's
prior written consent, without notice to the Borrower or to any other Person,
any such notice being hereby expressly waived, to set-off and to appropriate and
to apply any and all deposits (general or special, including, but not limited
to, indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by such Lender
or any Affiliate of such Lender, to or for the credit or the account of the
Borrower against and on account of any of the Obligations then due and owing.
The Borrower agrees, to the fullest extent it may effectively do so under
Applicable Law, that any holder of a participation in a Note, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of setoff
or counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 12.7. Amendments.
Any consent or approval required or permitted by this Agreement or in
any other Loan Document (other than any agreement evidencing the fees referred
to in Section 3.1.(e)) to be given by the Lenders may be given, and the
performance or observance by the Borrower of any terms of any such Loan Document
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 Majority Lenders. Any provision
of this Agreement or of any other Loan Document (other than any agreement
evidencing the fees referred to in Section 3.1.(e)) may be amended or otherwise
modified with, but only with, the written consent of the Borrower and the
Majority Lenders. Any provision of any agreement evidencing the fees referred to
in Section 3.1.(e) may be amended or otherwise modified only in writing by the
Agent and the Borrower, and the performance or observance by the Borrower of any
terms of any such agreement may be waived only with the written consent of the
Agent. Notwithstanding the foregoing, none of the following may be amended or
otherwise modified, nor may compliance by the Borrower, as applicable thereunder
or with respect thereto be waived, without the written consent of all the
Lenders and the Borrower:
(a) the principal amount of any Loan (including forgiveness of any
amount of principal);
(b) the rates of interest on the Loans and the amount of any
interest payable on the Loans (including the forgiveness of
any accrued but unpaid interest);
(c) the dates on which any principal or interest payable by the
Borrower under any Loan Document is due;
(d) the provisions of the first sentence of Section 2.1.(a), Section 2.2.
(a), Section 2.8.(f), Section 9.2. and this Section;
(e) the Revolving Credit Termination Date;
(f) the Termination Date;
(g) the obligations of a Guarantor under the Guaranty, including
the release of a Guarantor therefrom (except as specifically
permitted in the last sentence of Section 4.2.);
(h) the definition of Commitment, Majority Lenders (or any minimum
requirement necessary for the Lenders or Majority Lenders to
take action hereunder), Pro Rata Share, Commitment and Maximum
Loan Availability and Unencumbered Pool Value (and the
definitions used in either such definition and the percentages
and rates used in the calculation thereof); and
(i) the amount and payment date of any fees.
Further, no amendment, waiver or consent unless in writing and signed by the
Agent, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Agent under this Agreement or any of
the other Loan Documents. Any amendment, waiver or consent relating to Section
2.3. or the obligations of the Swingline Lender under this Agreement or any
other Loan Document shall, in addition to the Lenders required hereinabove to
take such action, require the written consent of the Swingline Lender. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon. No course of dealing or delay or omission on the part
of any Lender or the Agent in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. 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 12.8. 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 assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all the Lenders.
(b) 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. Except as otherwise provided
in Section 12.6., 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 Participant may not grant to any other Person any
participating interest in such Participant's interest and that such Lender shall
retain the sole right and responsibility to enforce the obligations of the
Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided,
however, such Lender may agree with the Participant that it will not, without
the consent of the Participant, agree to (i) increase such Lender's Commitment,
(ii) extend the date fixed for the payment of principal on the Loans or portions
thereof owing to such Lender, or (iii) reduce the rate at which interest is
payable thereon. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Lender may with the prior written consent of the Agent and the
Borrower (which consent, in each case, shall not be unreasonably withheld) at
any time assign to one or more Eligible Assignees (each an "Assignee") all or a
portion of its rights and obligations under this Agreement and the Notes;
provided, however, (i) no such consent by Borrower shall be required (x) if a
Default or Event of Default shall have occurred and be continuing or (y) in the
case of an assignment to another Lender or an affiliate of another Lender; (ii)
any partial assignment shall be in an amount at least equal to $10,000,000 and
after giving effect to such assignment the assigning Lender retains a
Commitment, or if the Commitments have been terminated, holds Notes having an
aggregate outstanding principal balance, of at least $10,000,000; (iii) after
giving effect to any such assignment by the Agent, the Agent in its capacity as
a Lender shall retain a Commitment, or if the Commitments have been terminated,
hold Notes having an aggregate outstanding principal balance, greater than or
equal to the Commitment of each other Lender (other than any Lender whose
Commitment has increased as a result of a merger or combination with another
Lender) 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
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 (c), the transferor
Lender, the Agent and the Borrower shall make appropriate arrangements so that
new Notes are issued to the Assignee and such transferor Lender, as appropriate.
In connection with any such assignment, the transferor Lender shall pay to the
Agent an administrative fee for processing such assignment in the amount of
$3,000.
(d) Any Lender (each, a "Designating Lender") may at any time while the
Borrower has been assigned an Investment Grade Rating from either S&P or Moody's
designate one Designated Lender to fund Bid Rate Loans on behalf of such
Designating Lender subject to the terms of this subsection (d) and the
provisions in the immediately preceding subsections (b) and (c) 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 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 11.8. 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 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
$2,000.
(e) 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.
(f) A Lender may furnish any information concerning the Borrower or any
of its Subsidiaries in the possession of such Lender from time to time to
Assignees and Participants (including prospective Assignees and Participants).
(g) 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, the Parent or any of their respective affiliates or Subsidiaries.
SECTION 12.9. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF GEORGIA.
SECTION 12.10. Litigation.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND THAT A TRIAL BY JURY COULD
RESULT IN SIGNIFICANT DELAY AND EXPENSE. ACCORDINGLY, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF LENDERS, THE AGENT AND THE BORROWER HEREBY
WAIVES 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 THE BORROWER
ARISING OUT OF THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR IN
CONNECTION WITH THE COLLATERAL OR ANY LIEN OR BY REASON OF ANY OTHER CAUSE OR
DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF LENDERS OF
ANY KIND OR NATURE.
(b) THE BORROWER, THE AGENT AND EACH LENDER EACH HEREBY AGREES THAT THE
FEDERAL DISTRICT COURT OF THE NORTHERN DISTRICT OF GEORGIA OR, AT THE OPTION OF
THE AGENT, ANY STATE COURT LOCATED IN FULTON COUNTY, GEORGIA, SHALL HAVE
NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
OR AMONG THE BORROWER, THE AGENT OR ANY OF LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY
MATTER ARISING HEREFROM OR THEREFROM OR THE COLLATERAL. THE BORROWER EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS. 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. further, the Borrower irrevocably
waives, to the fullest extent permitted by APPLICABLE law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
(c) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND
WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE
THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE
OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS AGREEMENT.
SECTION 12.11. 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 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 they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
required by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required by any Governmental Authority or representative thereof or pursuant to
legal process; (d) to the Agent's or such Lender's independent auditors and
other professional advisors (provided they shall be notified of the confidential
nature of the information); and (e) after the happening and during the
continuance of an Event of Default, to any other Person, in connection with the
exercise by the Agent or the Lenders of rights hereunder or under any of the
other Loan Documents.
SECTION 12.12. Counterparts; Integration.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement, together with the
other Loan Documents, constitutes the entire agreement and understanding among
the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 12.13. Invalid Provisions.
Any provision of this Agreement or any other Loan Document held by a
court of competent jurisdiction to be illegal, invalid or unenforceable shall
not invalidate the remaining provisions of such Loan Document which shall remain
in full force and effect and the effect thereof shall be confined to the
provision held invalid or illegal.
SECTION 12.14. No Novation.
This Agreement and the other Loan Documents are being amended and
restated in their entirety for the convenience of the parties hereto. This
Agreement and the other Loan Documents merely amend, modify and restate the
indebtedness, liabilities and obligations evidenced hereby and thereby and do
not constitute, and it is the express intent of the parties hereto that this
Agreement and the other Loan Documents do not effect, a novation of the existing
indebtedness, liabilities and obligations incurred by the Borrower and the other
Loan Parties pursuant to the Existing Credit Agreement. Such indebtedness,
liabilities and obligations continue to remain outstanding and are amended and
modified only to the extent this Agreement and the other Loan Documents amend
and modify the Existing Credit Agreement and the original Loan Documents
executed and delivered in connection therewith.
[Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
REGENCY REALTY CORPORATION
By:
Name:
Title:
STATE OF GEORGIA
COUNTY OF
BEFORE ME, a Notary Public in and for said County, personally appeared
, known to me to be a person who, as ____________________________ of Regency
Realty Corporation, on its own behalf and as the general partner of Regency
Centers, L.P., the entity which executed the foregoing Amended and Restated
Credit Agreement, signed the same, and acknowledged to me that he did so sign
said instrument in the name and upon behalf of said corporation as an officer of
said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed
my official seal, this ____ day of February, 1999.
Notary Public
My Commission Expires:
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Agent, as the Swingline Lender
and as a Lender
By:
Name:
Title:
Lending Office (all Types of Loans):
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Telecopier: (404) 435-2262
Telephone: (404) 435-3800
Commitment Amount:
$100,000,000
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
FIRST UNION NATIONAL BANK
By:
Name:
Title:
Lending Office (all Types of Loans):
First Union National Bank
REIT Banking Unit
One First Union Center
Charlotte, North Carolina 28288-0166
Attention: John A. Schissel
Telecopier: (704) 383-6205
Telephone: (704) 383-1967
Commitment Amount:
$100,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
WACHOVIA BANK, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans):
Wachovia Bank, N.A.
191 Peachtree Street, N.E., 30th Floor
Atlanta, Georgia 30303
Attention: Cathy A. Casey
Telecopier: (404) 332-4066
Telephone: (404) 332-5649
Commitment Amount:
$85,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
COMMERZBANK AG, ATLANTA AGENCY
By:
Name:
Title:
By:
Name:
Title:
Lending Office (all Types of Loans)
Commerzbank AG, Atlanta Agency
2 World Financial Center
New York, New York 10281
Attention: David Schwartz/ Christine Finkel
Telecopier: (212) 266-7565
Telephone: (212) 266-7632 / 7375
Commitment Amount:
$50,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
Lending Office (all Types of Loans):
PNC Bank, National Association
One PNC Plaza, 19th Floor
249 Fifth Avenue
Mail Stop- PI-POPP-19-2
Pittsburgh, Pennsylvania 15222
Attention: Jan Dotchin
Telecopier: (412) 768-5754
Telephone: (412) 762-3986
Commitment Amount:
$50,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
AMSOUTH BANK
By:
Name:
Title:
Lending Office (all Types of Loans):
AmSouth Bank
1900 5th Avenue North
AmSouth-Sonat Tower, 9th Floor
Birmingham, Alabama 35203
Attention: Buddy Sharbel
Telecopier: (205) 326-4075
Telephone: (205) 581-7647
Commitment Amount:
$40,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
CHASE BANK OF TEXAS, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans):
Chase Bank of Texas, N.A.
707 Travis, 6th Floor North
Houston, Texas 77572
Attention: Kent Kaiser
Telecopier: (713) 216-7713
Telephone: (713) 216-8699
Commitment Amount:
$35,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
SOUTHTRUST BANK, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans):
SouthTrust Bank, N.A.
420 North 20th Street, 11th Floor
Birmingham, Alabama 35203
Attention: Sam Boroughs- Corporate Banking
Telecopier: (205) 254-8270
Telephone: (205) 254-5039
Commitment Amount:
$35,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
SUNTRUST BANK, ATLANTA
By:
Name:
Title:
Lending Office (all Types of Loans):
SunTrust Bank, Atlanta
Real Estate Finance MC 081
P.O. Box 4418, 50 Hurt Plaza, Suite 700
Atlanta, Georgia 30303
Attention: John Neill
Telecopier: (404) 827-6774
Telephone: (404) 588-8248
Commitment Amount:
$30,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
ING (U.S.) CAPITAL LLC
By:
Name:
Title:
Lending Office (all Types of Loans):
ING Barings
55 E. 52nd Street, 35th Floor
New York, New York 10055
Attention: Wendy Spears/ Layne Poma
Telecopier: (212) 409-5853
Telephone: (212) 409-1854 / 1760
Commitment Amount:
$25,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
LASALLE NATIONAL BANK
By:
Name:
Title:
Lending Office (all Types of Loans):
LaSalle National Bank
135 S. LaSalle Street, Suite 1225
Chicago, Illinois 60603
Attention: Peter Margolin
Telecopier: (312) 904-6691
Telephone: (312) 904-8509
Commitment Amount:
$25,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
STAR BANK, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans):
Star Bank, N.A.
425 Walnut Street, 10th Floor, ML #9205
Cincinnati, Ohio 45202
Attention: Glenn Baumann
Telecopier: (513) 632-5590
Telephone: (513) 632-4473
Commitment Amount:
$25,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
BANK ONE, ARIZONA, NA, a national banking association
By:
Name:
Lending Office (all Types of Loans):
Bank One, Arizona, NA
201 N. Central Avenue, 19th Floor
Phoenix, Arizona 85004
Attention: Todd Popovich
Telecopier: (602) 221-4435
Telephone: (602) 221-2375
Commitment Amount:
$20,000,000
[Signature Page to Amended and Restated Credit Agreement dated as of
February 26, 1999 with Regency Centers, L.P.]
MELLON BANK, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans)
Mellon Bank, N.A.
One Mellon Bank Center, Room 2940
Pittsburgh, Pennsylvania 15258-0001
Attention: Theresa Sicuro
Telecopier: (412) 234-4146
Telephone: (412) 234-6757
Commitment Amount:
$15,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
February 26, 1999
among
REGENCY CENTERS, L.P.,
as the Borrower,
REgency realty corpoRation,
as the Parent,
The financial institutions party hereto and their assignees under Section 12.8.
hereof,as the Lenders,
FIRST UNION NATIONAL BANK,
as Syndication Agent,
WACHOVIA BANK, N.A.,
as Documentation Agent,
Each of
COMMERZBANK AKTIENGESELLSCHAFT, ATLANTA AGENCY
and
pnc bank, national Association,
as a Managing Agent,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Administrative Agent
- v -
ATL01/10397815v9 A&B Draft 02/24/99
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS........................................................2
SECTION 1.1. Definitions.................................................2
SECTION 1.2. General; References to Time................................25
ARTICLE II. CREDIT FACILITY..................................................25
SECTION 2.1. Revolving Loans............................................25
SECTION 2.2. Bid Rate Loans.............................................27
SECTION 2.3. Swingline Loans............................................30
SECTION 2.4. Number of Interest Periods.................................32
SECTION 2.5. Continuation...............................................32
SECTION 2.6. Conversion.................................................33
SECTION 2.7. Interest Rate..............................................33
SECTION 2.8. Repayment of Loans.........................................34
SECTION 2.9. Voluntary Reductions of the Commitments....................35
SECTION 2.10. Extension of Revolving Credit Termination Date............36
SECTION 2.11. Term Loan Conversion......................................37
SECTION 2.12. Notes.....................................................37
SECTION 2.13. Option to Replace Lenders.................................37
SECTION 2.14. Amount Limitations........................................38
SECTION 2.15. Letters of Credit.........................................38
ARTICLE III. GENERAL LOAN PROVISIONS.........................................43
SECTION 3.1. Fees.......................................................43
SECTION 3.2. Computation of Interest and Fees...........................44
SECTION 3.3. Pro Rata Treatment.........................................44
SECTION 3.4. Sharing of Payments, Etc...................................45
SECTION 3.5. Defaulting Lenders.........................................45
SECTION 3.6. Purchase of Defaulting Lender's Pro Rata Share.............46
SECTION 3.7. Usury......................................................46
SECTION 3.8. Agreement Regarding Interest and Charges...................47
SECTION 3.9. Statements of Account......................................47
SECTION 3.10. Reliance..................................................47
SECTION 3.11. Taxes.....................................................48
ARTICLE IV. UNENCUMBERED POOL PROPERTIES.....................................49
SECTION 4.1. Acceptance of Unencumbered Pool Properties..................49
SECTION 4.2. Termination of Designation as Unencumbered
Pool Property....................................... ..52
SECTION 4.3. Additional Requirements of Unencumbered Pool Properties....53
ARTICLE V. YIELD PROTECTION, ETC........................................... ..53
SECTION 5.1. Additional Costs; Capital Adequacy.........................53
SECTION 5.2. Suspension of LIBOR Loans..................................54
SECTION 5.3. Illegality............................................. ...55
SECTION 5.4. Compensation.............................................. 55
SECTION 5.5. Treatment of Affected Loans.............................. .56
SECTION 5.6. Change of Lending Office...................................56
ARTICLE VI. CONDITIONS.......................................................56
SECTION 6.1. Effectiveness..............................................56
SECTION 6.2. Conditions to All Loans and Letters of Credit..............59
SECTION 6.3. Conditions to Conversion to Term Loans.....................60
ARTICLE VII. REPRESENTATIONS AND WARRANTIES..................................60
SECTION 7.1. Existence and Power........................................60
SECTION 7.2. Ownership Structure..................... ..................60
SECTION 7.3. Authorization of Agreement, Notes, Loan Documents and
Borrowings................................................61
SECTION 7.4. Compliance of Agreement, Notes, Loan Documents and Borrowing
with Laws, etc.............................................61
SECTION 7.5. Compliance with Law; Governmental Approvals................61
SECTION 7.6. Existing Indebtedness......................................62
SECTION 7.7. Title to Properties; Liens.................................62
SECTION 7.8. Unencumbered Pool Properties...............................62
SECTION 7.9. Leases.....................................................62
SECTION 7.10. Material Contracts........................................62
SECTION 7.11. Margin Stock..............................................63
SECTION 7.12. Transactions with Affiliates..............................63
SECTION 7.13. Absence of Defaults......................................63
SECTION 7.14. Financial Information.....................................63
SECTION 7.15. Litigation................................................64
SECTION 7.16. ERISA.....................................................64
SECTION 7.17. Environmental Matters.....................................65
SECTION 7.18. Taxes.....................................................66
SECTION 7.19. Investment Company; Public Utility Holding Company........66
SECTION 7.20. Full Disclosure...........................................66
SECTION 7.21. Not Plan Assets...........................................66
SECTION 7.22. Business..................................................67
SECTION 7.23. Title to Properties; Necessary Agreements, Licenses,
Permits; Adverse Contracts...............................67
SECTION 7.24. Non-Guarantor Entities................... ................67
ARTICLE VIII. COVENANTS......................................................67
SECTION 8.1. Information................................................67
SECTION 8.2. ERISA Reporting............................................70
SECTION 8.4. Preservation of Existence and Similar Matters..............71
SECTION 8.5. Maintenance of Property....................................72
SECTION 8.6. Conduct of Business........................................72
SECTION 8.7. Insurance..................................................72
SECTION 8.8. Modifications to Material Contracts........................72
SECTION 8.9. Environmental Laws.........................................72
SECTION 8.10. Compliance with Laws and Material Contracts...............73
SECTION 8.11. Inspection of Property, Books and Records.................73
SECTION 8.12. Indebtedness..............................................73
SECTION 8.13. Consolidations, Mergers and Sales of Assets...............74
SECTION 8.14. Use of Proceeds and Letters of Credit.....................74
SECTION 8.15. Tenant Concentration.......................................74
SECTION 8.16. Acquisitions...............................................74
SECTION 8.17. Exchange Listing..........................................75
SECTION 8.18. REIT Status...............................................75
SECTION 8.19. Negative Pledge; Restriction on Distribution Rights.......75
SECTION 8.20. Agreements with Affiliates................................75
SECTION 8.21. ERISA Exemptions..........................................75
SECTION 8.22. Compliance with and Amendment of Charter or Bylaws........76
SECTION 8.23. Distributions.............................................76
SECTION 8.24. New Guarantors............................................76
SECTION 8.25. Acquisitions or Developments of Properties................78
SECTION 8.26. Transfer of Properties to Borrower........................78
SECTION 8.27. Asset Value of Non-Guarantor Entities.....................79
SECTION 8.28. Year 2000 Compliance......................................79
SECTION 8.29. Hedging Agreements........................................79
Article IX. Financial Covenants..............................................79
SECTION 9.1. Minimum Net Worth..........................................79
SECTION 9.2. Ratio of Total Liabilities to Gross Asset Value............80
SECTION 9.3. Ratio of Secured Indebtedness to Gross Asset Value.........80
SECTION 9.4. Ratio of EBITDA to Interest Expense........................80
SECTION 9.5. Ratio of EBITDA to Debt Service, Preferred Stock
Distributions and Reserve for Replacements.................80
SECTION 9.6. Unsecured Interest Expense Coverage........................80
SECTION 9.7. Permitted Investments......................................80
SECTION 9.8. Floating Rate Debt.........................................81
SECTION 9.9. Limitation on Non-Wholly Owned Subsidiaries,
Preferred Stock Entities and Unconsolidated Affiliates.....82
ARTICLE X. DEFAULTS..........................................................82
SECTION 10.1. Events of Default.........................................82
SECTION 10.2. Remedies..................................................85
SECTION 10.3. Allocation of Proceeds....................................85
SECTION 10.4. Rights Cumulative.........................................86
SECTION 10.5. Recission of Acceleration by Majority Lenders.............86
SECTION 10.6. Collateral Account........................................87
ARTICLE XI. THE AGENT........................................................87
SECTION 11.1. Appointment and Authorization.........................87
SECTION 11.2. The Agent and Affiliates..............................88
SECTION 11.3. Collateral Matters....................................89
SECTION 11.4. Approvals of the Lenders..............................89
SECTION 11.5. Notice of Defaults....................................89
SECTION 11.6. Consultation with Experts.............................89
SECTION 11.7. Liability of the Agent................................90
SECTION 11.8. Indemnification of the Agent..........................90
SECTION 11.9. Credit Decision.......................................90
SECTION 11.10. Successor Agent......................................91
SECTION 11.11. Approvals and Other Actions by Majority Lenders......91
SECTION 11.12. Documentation, Syndication and Managing Agents.......92
ARTICLE XII. MISCELLANEOUS...................................................92
SECTION 12.1. Notices...............................................92
SECTION 12.2. No Waivers............................................93
SECTION 12.3. Expenses..............................................93
SECTION 12.4. Stamp, Intangible and Recording Taxes.................94
SECTION 12.5. Indemnification.......................................94
SECTION 12.6. Setoff................................................95
SECTION 12.7. Amendments............................................95
SECTION 12.8. Successors and Assigns................................97
SECTION 12.9. Governing Law.........................................99
SECTION 12.10. Litigation...........................................99
SECTION 12.11. Confidentiality.....................................100
SECTION 12.12. Counterparts; Integration...........................101
SECTION 12.13. Invalid Provisions..................................101
SECTION 12.14. No Novation.........................................101
Exhibit A Form of Assignment and Acceptance Agreement
Exhibit B Form of Designation Agreement
Exhibit C Form of Revolving Note
Exhibit D Form of Bid Rate Note
Exhibit E Form of Swingline Note
Exhibit F Form of Notice of Borrowing
Exhibit G Form of Notice of Continuation
Exhibit H Form of Notice of Conversion
Exhibit I Form of Bid Rate Quote Request
Exhibit J Form of Bid Rate Quote
Exhibit K Form of Bid Rate Quote Acceptance
Exhibit L Form of Notice of Swingline Borrowing
Exhibit M Form of Extension Request
Exhibit N Form of Opinion of Borrower's Counsel
Exhibit O Form of Guaranty
Exhibit P Form of Unencumbered Pool Certificate
Exhibit Q Form of Compliance Certificate
Exhibit R Form of Property Certificate
Schedule 4.1. Unencumbered Pool Properties
Schedule 7.2. Ownership Structure
Schedule 7.6. Existing Indebtedness
Schedule 7.10. Material Contracts
Schedule 7.12. Transactions with Affiliates
Schedule 7.15. Litigation
Schedule 7.16. ERISA
Schedule 7.24. Non-Guarantor Entities
Schedule 8.25. Acquisition or Development of Properties
Schedule 8.29. Hedging Agreements