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CREDIT AGREEMENT
by and among
NEW PLAN REALTY TRUST
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS AGENT
________________
$50,000,000
________________
Dated as of October 29, 1996
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CREDIT AGREEMENT, dated as of October 29, 1996, by and among NEW PLAN
REALTY TRUST a Massachusetts business trust (the "Borrower"), each lender
party hereto or which becomes a "Lender" pursuant to the provisions of
Sections 2.20 or 11.7 (each a "Lender" and, collectively, the "Lenders"), and
THE BANK OF NEW YORK, as agent (in such capacity, the "Agent").
I. DEFINITIONS
A. Defined Terms.
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following
meanings:
"ABR Advances": the Loans (or any portions thereof) at such time as
they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Accountants": Coopers & Lybrand (or any successor thereto), or
such other firm of certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the Required
Lenders.
"Advance": an ABR Advance, a Eurodollar Advance or a Competitive
Bid Advance, as the case may be.
"Affected Advance": as defined in Section 2.10.
"Affected Principal Amount": in the event that (i) the Borrower
shall fail for any reason to borrow or convert after it shall have notified
the Agent of its intent to do so in any instance in which it shall have
requested a Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall have
accepted one or more offers of Competitive Bid Advances under Section 2.5, an
amount equal to the principal amount of such Eurodollar Advance or
Competitive Bid Advance; (ii) a Eurodollar Advance or Competitive Bid Advance
shall terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such Euro-
dollar Advance or Competitive Bid Advance; and (iii) the Borrower shall
prepay or repay all or any part of the principal amount of a Eurodollar
Advance or Competitive Bid Advance prior to the last day of the Interest
Period applicable thereto, an amount equal to the principal amount of such
Eurodollar Advance or Competitive Bid Advance so prepaid or repaid.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, control of a Person
shall mean the power, direct or indirect, (i) to vote 5% or more of the secu-
rities having ordinary voting power for the election of directors of such
Person or (ii) to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Aggregate Commitments": on any date, the sum of the Commitments of
all Lenders on such date.
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Rate in effect on such date plus
1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Applicable Commitment Fee Percentage": with respect to the
Commitment Fee, at all times during which the applicable Pricing Level set
forth below is in effect, the applicable commitment fee percentage set forth
below next to such Pricing Level:
Applicable
Pricing Level Commitment Fee Percentage
Pricing Level I 0.125%
Pricing Level II 0.150%
Pricing Level III 0.175%
Pricing Level IV 0.250%
Pricing Level V 0.300%
Pricing Level VI 0.375%.
Changes in the Applicable Commitment Fee Percentage resulting from
a change in a Pricing Level shall become effective as of the opening of
business upon the date of any change in the Borrower's Senior Debt Rating,
as determined by S&P or Moody's, as the case may, which would affect the ap-
plicable Pricing Level.
"Applicable Lending Office": in respect of any Lender, (i) in the
case of such Lender's ABR Advances and Competitive Bid Advances, its Domestic
Lending Office and (ii) in the case of such Lender's Eurodollar Advances, its
Eurodollar Lending Office.
"Applicable Margin": with respect to the unpaid principal balance
of Eurodollar Advances, at all times during which the applicable Pricing
Level set forth below is in effect, the number of basis points set forth
below next to such Pricing Level:
Applicable Margin
Pricing Level (Basis Points)
Pricing Level I 45.0
Pricing Level II 50.0
Pricing Level III 60.0
Pricing Level IV 72.5
Pricing Level V 87.5
Pricing Level VI 125.0
Changes in the Applicable Margin resulting from a change in a
Pricing Level shall become effective as of the opening of business upon the
date of any change in the Senior Debt Rating of the Borrower, as determined
by S&P or Moody's, as the case may, which would affect the applicable Pricing
Level.
"Assignment and Acceptance Agreement": an assignment and acceptance
agreement executed by an assignor and an assignee pursuant to which such
assignor assigns to such assignee all or any portion of such assignor's Note
and Commitment, substantially in the form of Exhibit A.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": the chairman of the board, the president,
any vice president, the chief financial officer or any other duly authorized
officer (acceptable to the Agent) of the Borrower.
"Available Commitment Amount": on any day during the Revolving
Credit Period, an amount equal to the Total Commitment Amount at such time
minus the total Loans outstanding on such date.
"Benefited Lender": as defined in Section 11.9.
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically
(without notice) on the effective date of any change in such publicly
announced rate.
"Borrowing Date": any Business Day specified in a Borrowing Request
delivered pursuant to Section 2.4 or 2.5, as the case may be, as a date on
which the Borrower requests the Lenders to make Loans.
"Borrowing Request": a Conventional Borrowing Request or a
Competitive Bid Borrowing Request, as the case may be.
"Business Day": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law
or other governmental action to close and (ii) with respect to all notices
and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, any day which is a Business Day described in clause (i)
above and which is also a day on which dealings in foreign currency and
exchange and Eurodollar funding between banks may be carried on in London,
England.
"Capital Leases": leases which have been, or under GAAP are
required to be, capitalized.
"Change of Control": the occurrence of any one of the following
events:
(a) any Person becomes the owner of 20% or more of the Borrower's
common shares and thereafter individuals who were not trustees of the
Borrower on the date of execution of this Agreement are elected as trustees
pursuant to an arrangement or understanding with, or upon the request of or
nomination by, such Person and constitute at least two of the trustees of the
Borrower; or
(b) there occurs a change of control of the Borrower of a nature
that would be required to be reported in response to Item 1a of Form 8-K
filed pursuant to Section 13 or 15 under the Securities Exchange Act of 1934,
or in any other filing by the Borrower with the Securities and Exchange Com-
mission; or
(c) there occurs any solicitation of proxies by or on behalf of
any Person other than the trustees of the Borrower and thereafter individuals
who were not trustees of the Borrower prior to the commencement of such
solicitation are elected as trustees of the Borrower pursuant to an
arrangement or understanding with, or upon the request of or nomination by,
such Person and constitute at least two of the trustees of the Borrower; or
(d) the Borrower consolidates with, is acquired by, or merges into
or with any Person (other than a merger of a Subsidiary into the Borrower
where the Borrower is the surviving entity).
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's undertaking
during the Revolving Credit Period to make Revolving Credit Loans to the Bor-
rower, and as of the end of the Revolving Credit Period, such Lender's un-
dertaking to convert the outstanding principal amount of such Lender's Re-
volving Credit Loans on such date to a Term Loan of such Lender, in each case
subject to the terms and conditions hereof, in an aggregate outstanding
principal amount not exceeding such Lender's Commitment Amount.
"Commitment Amount": the amount set forth next to the name of such
Lender in Exhibit B under the heading "Commitments", as the same may be
reduced pursuant to Section 2.6 or increased pursuant to Section 2.20
"Commitment Fee": as defined in Section 3.1.
"Commitment Percentage": on any day, and as to any Lender, (i)
prior to the conversion of the Revolving Credit Loans to Term Loans, the
percentage determined on such day equal to such Lender's Commitment Amount
divided by the Total Commitment Amount, and (ii) after the conversion of the
Revolving Credit Loans to Term Loans, the percentage determined on such day
equal to the outstanding principal balance of such Lender's Term Loan on such
day divided by the aggregate outstanding principal balance of the Term Loans
of all Lenders on such day.
"Competitive Bid Advance": a Revolving Credit Loan advanced
pursuant to the provisions of Section 2.5
"Competitive Bid Borrowing": a borrowing pursuant to section 2.5
consisting of simultaneous Competitive Bid Advances from each Lender whose
offer to make a Competitive Bid Advance as part of such borrowing has been
accepted by the Borrower under the auction bidding procedure set forth in
section 2.5
"Competitive Bid Borrowing Request": a borrowing request in the
form of Exhibit C.
"Competitive Bid Ceiling": at any time, the difference between (i)
$25,000,000, and (ii) the principal balance of all Competitive Bid Advances
then outstanding.
"Compliance Certificate": a certificate substantially in the form
of Exhibit D.
"Consenting Lender": defined in Section 2.19
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidated EBIT": at any time of determination, the EBIT of the
Borrower and its Subsidiaries on a Consolidated basis, determined in
accordance with GAAP, for the immediately preceding four fiscal quarters of
the Borrower, or, in the event that the date of determination is a fiscal
quarter ending date, the fiscal quarter then ended and the immediately
preceding three fiscal quarters.
"Consolidated Indebtedness": at any time of determination, the
Indebtedness of the Borrower and its Subsidiaries at such time on a
Consolidated basis, determined in accordance with GAAP.
"Consolidating": the Borrower and its Subsidiaries taken
separately.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
whether arising from partnership or keep-well agreements, including, without
limitation, any obligation of such Person, whether contingent or not con-
tingent (a) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii)
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain net worth, solvency or other financial statement
condition of the primary obligor, (c) to purchase Property, securities or
services primarily for the purpose of assuring the beneficiary of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure, protect from loss or
hold harmless the beneficiary of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include the endorsement of instruments for deposit or collection in the
ordinary course of business. The term Contingent Obligation shall also
include the liability of a general partner in respect of the liabilities of
the partnership in which it is a general partner. The amount of any
Contingent Obligation of a Person shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as determined
by such Person in good faith.
"Conventional Advance": an ABR Advance and/or a Eurodollar Advance.
"Conventional Borrowing Request": a borrowing request in the form
of Exhibit E.
"Conversion Date": the date on which a Eurodollar Advance is
converted to an ABR Advance, or the date on which an ABR Advance is converted
to a Eurodollar Advance, or the date on which a Eurodollar Advance is
converted to a new Eurodollar Advance, all in accordance with Section 2.8
"Declaration of Trust": the Amended and Restated Declaration of
Trust of New Plan Realty Trust, dated as of January 15, 1996, by William
Newman, Arnold Laubich, Norman Gold, Melvin Newman, James Steuterman, Raymond
Bottorf, Dean Bernstein, John Wetzler and Gregory White, not personally, but
solely as Trustees of New Plan Realty Trust, as the same may be amended from
time to time.
"Default": any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"Defaulted Portion": defined in Section 2.21.
"Dollars" and "$": lawful currency of the United States of America.
"Domestic Lending Office": in respect of any Lender, initially, the
office or offices of such Lender designated as such on Schedule I;
thereafter, such other office of such Lender, through which it shall be
making or maintaining ABR Advances or Competitive Bid Advances, as reported
by such Lender to the Agent and the Borrower.
"EBIT": at any time of determination, in respect of any Person, for
any period, net income (or loss), calculated after deduction for income
taxes, determined in accordance with GAAP; plus the sum of, without
duplication: (i) interest expense (as determined in accordance with GAAP),
(ii) provision for income taxes. EBIT shall be adjusted on a consistent
basis to reflect the acquisition, sale, exchange and disposition of Property
during such period.
"Effective Date": October ___, 1996.
"Environmental Laws": any and all federal, state and local laws re-
lating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials
or pollutants or industrial hygiene and including, without limitation, (i)
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA Section9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976, as amended, 42 USCA Section6901 et seq.; (iii) the
Toxic Substance Control Act, as amended, 15 USCA Section2601 et seq.; (iv)
the Water Pollution Control Act, as amended, 33 USCA Section1251 et seq.; (v)
the Clean Air Act, as amended, 42 USCA Section7401 et seq.; (vi) the
Hazardous Material Transportation Act, as amended, 49 USCA Section1801 et
seq. and (viii) all rules, regulations judgments decrees injunctions and
restrictions thereunder and any analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate": any Person which is a member of any group of
organizations (i) described in Section 414(b) or (c) of the Code of which the
Borrower is a member, or (ii) solely for purposes of potential liability
under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the
Lien created under Section 302(f) of ERISA and Section 412(n) of the Code,
described in Section 414(m) or (o) of the Code of which the Borrower is a
member.
"ERISA Liabilities": without duplication, the aggregate of all
unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advances": collectively, the Loans (or any portions
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Lending Office": in respect of any Lender, initially,
the office, branch or affiliate of such Lender designated as such on Sched-
ule I (or, if no such office branch or affiliate is specified, its Domestic
Lending Office); thereafter, such other office, branch or affiliate of such
Lender through which it shall be making or maintaining Eurodollar Advances,
as reported by such Lender to the Agent and the Borrower.
"Eurodollar Rate": with respect to any Interest Period applicable
to any Eurodollar Advance, a rate of interest per annum, as determined by the
Agent, obtained by dividing (and then rounding to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, then to the next higher 1/16 of 1%):
(a) the rate, as reported by BNY to the Agent, quoted by BNY
to leading banks in the London interbank eurodollar market as the rate at
which BNY is offering Dollar deposits in an amount equal approximately to the
Eurodollar Advance of BNY to which such Interest Period shall apply for a
period equal to such Interest Period, as quoted at approximately 11:00 a.m.
two Business Days prior to the first day of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of
the Federal Reserve System and any other banking authority to which BNY and
other major United States money center banks are subject, in respect of
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Board of Governors of the Federal Reserve System). Such
reserve requirements shall include, without limitation, those imposed under
such Regulation D. Eurodollar Advances shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed to be subject to such
reserve requirements without benefit of credits for proration, exceptions or
offsets which may be available from time to time to any Lender under such
Regulation D. The Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in any such reserve requirement.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time or
any other condition has been satisfied.
"Exclusions": shall mean in the case of any sale or other
disposition of any Property of the Borrower, all sales and other commissions
and reasonable fees and expenses of professionals incurred in connection with
such sale or disposition and transfer taxes.
"Existing Credit Agreement" shall mean that certain Revolving
Credit Agreement dated as of December 30, 1993 among the Borrower, The Bank
of New York, as Agent, and the other Lenders signatory thereto, as the same
has been amended.
"Extension Request": defined in Section 2.19
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 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 (i) if the
day for which such rate is to be determined 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 (ii) if such rate is not so published for any day, the
Federal Funds Rate for such day shall be the average of the quotations for
such day on such transactions received by BNY as determined by BNY and
reported to the Agent.
"Financial Statements": as defined in Section 4.13.
"Fixed Rate Advance": A Eurodollar Advance or a Competitive Bid
Advance.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement 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, consistently applied.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government and any court or arbitrator.
"Hazardous Substance": any hazardous or toxic substance, material
or waste, including, but not limited to, (i) those substances, materials, and
wastes listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or material defined
as, or designated in, any Environmental Law as a "hazardous substance,"
"toxic substance," "hazardous material," "hazardous waste," "restricted
hazardous waste," "pollutant," "toxic pollutant" or words of similar import.
"Highest Lawful Rate": with respect to any Lender, the maximum rate
of interest, if any, that at any time or from time to time may be contracted
for, taken, charged or received by such Lender on its Note or which may be
owing to such Lender pursuant to this Agreement under the laws applicable to
such Lender and this Agreement.
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (a) indebtedness for borrowed money
(including, without limitation, indebtedness under this Agreement and the
Notes) or the deferred purchase price of Property (other than trade payables
incurred in the ordinary course of business), (b) indebtedness evidenced by
notes, bonds, debentures or similar instruments, (c) obligations with respect
to any conditional sale or title retention agreement, (d) indebtedness aris-
ing under acceptance facilities and the amount available to be drawn under
all letters of credit issued for the account of such Person and, without du-
plication, all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer's payment of such drafts,
(e) all liabilities secured by any Lien on any Property owned by such Person
even though such Person has not assumed or otherwise become liable for the
payment thereof (other than carriers', warehousemen's, mechanics',
repairmen's or other like non-consensual statutory Liens arising in the
ordinary course of business), (f) obligations under Capital Leases, (g)
Contingent Obligations and (h) ERISA Liabilities.
"Indemnified Person": as defined in Section 11.11.
"Intangible Assets": as of any date of determination thereof, the
net book value of all assets of the Borrower and its Subsidiaries on a
Consolidated basis (to the extent reflected in the Consolidated Balance Sheet
of the Borrower at such date) which would be treated as intangibles under
GAAP, including, without limitation, goodwill (whether representing the
excess cost over book value of assets acquired or otherwise), patents,
trademarks, trade names, franchises, copyrights, licenses, service marks,
rights with respect to the foregoing and deferred charges (including, without
limitation, unamortized debt discount and expense, organization costs and
research and development costs).
"Intellectual Property": all copyrights, trademarks, patents, trade
names and service names.
"Interest Coverage Ratio": at any time, the ratio of (i)
Consolidated EBIT to (ii) Interest Expense.
"Interest Expense": the sum of all interest (as determined in
accordance with GAAP) on Consolidated Indebtedness, for, as applicable, the
immediately preceding four fiscal quarters of the Borrower, or, in the event
that the date of determination is a fiscal quarter ending date, the fiscal
quarter then ended and the immediately preceding three fiscal quarters.
"Interest Payment Date": (i) as to any ABR Advance, the first day
of each month commencing on the first such day to occur after such ABR Ad-
vance is made or any Eurodollar Advance is converted to an ABR Advance, (ii)
as to any Eurodollar Advance in respect of which the Borrower has selected an
Interest Period of one, two or three months, the last day of such Interest
Period, (iii) as to any Eurodollar Advance in respect of which the Borrower
has selected an Interest Period of six months, the day which is three months
after the first day of such Interest Period and the last day of such Interest
Period, and (iv) as to any Competitive Bid Advance, the last day of the
Interest Period applicable thereto.
"Interest Period": (i) with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or Conversion Date with respect to such Eurodollar Advance and
ending one, two, three or six months thereafter, as selected by the Borrower
in its irrevocable Borrowing Request as provided in Section 2.4 or its
irrevocable notice of conversion as provided in Section 2.8, and (ii) with
respect to any Competitive Bid Advance, the period commencing on the
Borrowing Date with respect to such Competitive Bid Advance and ending on the
maturity date thereof specified in the Competitive Bid Borrowing Request with
respect thereto given pursuant to Section 2.5; provided, however, that all of
the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period pertaining to a Eurodollar Advance
would otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) if, with respect to the borrowing of any Loan or the
conversion of one Advance to another, the Borrower shall fail to give due
notice as provided in Section 2.4, 2.5 or 2.8, as the case may be, the
Borrower shall be deemed to have elected that such Loan or Advance shall be
made as an ABR Advance;
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corre-
sponding day in the calendar month at the end of such Interest Period) shall
end on the last Business Day of a calendar month;
(iv) with respect to any Interest Period applicable to a
Eurodollar Advance (i) selected during the Revolving Credit Period no such
Interest Period shall end after the Revolving Credit Termination Date, and
(ii) selected after any such election of the Term Loan, no such Interest
Period shall end after the Maturity Date;
(v) with respect to any Interest Period applicable to a
Competitive Bid Advance no such Interest Period shall end after the Revolving
Credit Termination Date.
(vi) the Borrower shall select Interest Periods so as not to
have more than seven different Interest Periods outstanding at any one time
with respect to Eurodollar Advances and three different Interest Periods out-
standing at any one time with respect to Competitive Bid Advances; and
(viii) no Interest Period pertaining to a Competitive Bid
Advance shall be shorter than 7 days or longer than 180 days.
"Investments": as defined in Section 8.5.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan" and "Loans": Revolving Loan (or Loans) or Term Loan (or
Loans), as the case may be.
"Loan Documents": collectively, this Agreement and the Notes.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
financial condition, operations or business, prospects or Property of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents
or (iii) the ability of the Agent and the Lenders to enforce the Loan Docu-
ments.
"Material Adverse Effect": a material adverse effect on (i) the
financial condition, operations or business, prospects or Property of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents
or (iii) the ability of the Agent and the Lenders to enforce the Loan Docu-
ments.
"Maturity Date": (i) if the Term Loan is not elected pursuant to
Section 2.2, the earlier of the Revolving Credit Termination Date or the date
on which the Notes shall become due and payable, whether by acceleration or
otherwise, and (ii) if the Term Loan is so elected, the earlier of the date
that is 364 days after the last day of the Revolving Credit Termination Date
or the date on which the Notes shall become due and payable, whether by
acceleration or otherwise.
"Moody's": Moody's Investors Services, Inc.
"Multiemployer Plan": a plan defined as such 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 Proceeds": shall mean in the case of any sale or other
disposition of any Property of the Borrower after a Threshold Event, the
excess of:
(x) the sum of all gross cash proceeds from such sale or
disposition and all sales or dispositions of the Borrower's
Property giving rise to such Threshold Event, whether paid directly
or indirectly, less the applicable Exclusions in connection there-
with, over
(y) the Threshold Amount.
"Net Proceeds Event": any sale or other disposition of any
Property of the Borrower, which, in any case, results in Net Proceeds,
provided that "Net Proceeds Event" shall not include the issuance of Stock or
debt or the sale of Stock or instruments convertible into Stock.
"Net Worth": as of any date of determination thereof, the Net
Worth of the Borrower and its Subsidiaries on a Consolidated basis, as
determined in accordance with GAAP.
"Nonconsenting Lender": defined in Section 2.19.
"Nonconsenting Lender Termination Date": defined in Section
2.19(c).
"Note" and "Notes": defined in Section 2.3.
"Participating Lender": defined in Section 2.5.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": an individual, a partnership, a corporation, a business
trust, a joint stock company, a trust, an unincorporated association, a joint
venture, a Governmental Authority or any other entity of whatever nature.
"Plan": any employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and which is covered by or
subject to the minimum funding standards of Title IV of ERISA, other than a
Multiemployer Plan.
"Pricing Level": Pricing Level I, Pricing Level II, Pricing Level
III, Pricing Level IV, Pricing Level V or Pricing Level VI, as applicable.
"Pricing Level I": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is greater than or equal to AA- by S&P or
Aa3 by Moody's;
"Pricing Level II": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A by S&P or
A2 by Moody's and Pricing Level I is not applicable;
"Pricing Level III": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A- by S&P
or A3 by Moody's and Pricing Levels I and II are not applicable;
"Pricing Level IV": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to BBB by S&P
or Baa2 by Moody's and Pricing Levels I, II and III are not applicable;
"Pricing Level V": the Pricing Level which would be applicable for
so long as the Senior Debt Rating is equal to BBB- by S&P and Baa3 by Moody's
and Pricing Levels I, II, III and IV are not applicable; and
"Pricing Level VI": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is less than or equal to BB+ by S&P or
Ba1 by Moody's and Pricing Levels I, II, III, IV and V are not applicable;
provided that during any period that the Borrower has no Senior Debt Rating,
Pricing Level IV would be the applicable Pricing Level.
"Property": all types of real, personal, tangible, intangible or
mixed Property.
"Proposed Bid Rate": as applied to any Remaining Interest Period
with respect to a Lender's Competitive Bid Advance, the rate per annum that
such Lender in good faith would have quoted to the Borrower had the Borrower
requested that such Lender offer to make a Competitive Bid Advance on the
first day of such Remaining Interest Period, assuming no Default or Event of
Default existed on such day and that the Borrower had the right to borrow
hereunder on such day; such rate to be determined by such Lender in good
faith in its sole discretion.
"Real Property": all real Property, and all interests in real
Property, owned, leased or held by the Borrower or any Subsidiary.
"Reallocated Commitment Percentage": defined in Section 2.19.
"REIT": a Person qualifying as a Real Estate Investment Trust
under sections 856-859 of the Code and the regulations and rulings of the
Internal Revenue Service issued thereunder.
"REIT Guidelines": collectively, the NASAA Statement of Policy
Regarding Real Estate Investment Trusts, as adopted by the North American
Securities Administrators Association, Inc., and all amendments thereto, and
all Federal and state laws and guidelines, including without, limitation all
"blue sky" laws, which regulate the business, operation and reporting
requirements of REITs generally and which are applicable to the Borrower.
"Remaining Interest Period": (i) in the event that the Borrower
shall fail for any reason to borrow a Loan in respect of which it shall have
requested a Eurodollar Advance or convert an Advance to a Eurodollar Advance
after it shall have notified the Agent of its intent to do so pursuant to
Section 2.4 or 2.8 or accepted one or more offers of Competitive Bid Advances
under Section 2.5, a period equal to the Interest Period that the Borrower
elected in respect of such Eurodollar Advance or Competitive Bid Advance; or
(ii) in the event that a Eurodollar Advance or Competitive Bid Advance shall
terminate for any reason prior to the last day of the Interest Period
applicable thereto, a period equal to the remaining portion of such Interest
Period if such Interest Period had not been so terminated; or (iii) in the
event that the Borrower shall prepay or repay all or any part of the
principal amount of a Eurodollar Advance or Competitive Bid Advance
(including any mandatory prepayment thereof) prior to the last day of the
Interest Period applicable thereto, a period equal to the period from and in-
cluding the date of such prepayment or repayment to but excluding the last
day of such Interest Period.
"Required Lenders": at any time when no Loans are outstanding or
there are Loans comprised of both Conventional Advances and Competitive Bid
Advances outstanding, Lenders having Commitments equal to at least 51% of the
Aggregate Commitments. At any time when Loans comprised of Conventional
Advances only are outstanding, Lenders holding Notes having an unpaid
principal balance equal to at least 51% of the aggregate Loans outstanding.
At any time when Loans comprised of Competitive Bid Advances only are out-
standing, Lenders having Commitments equal to at least 51% of the Aggregate
Commitments (whether used or unused).
"Revolving Credit Period": the period from the Effective Date
through the day preceding the Revolving Credit Expiration Date.
"Revolving Credit Expiration Date": the earlier of the Maturity
Date or the Revolving Credit Termination Date.
"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in Section 2.1.
"Revolving Credit Termination Date": the date that is 364 days
from the Effective Date, subject to extensions in accordance with Section
2.19.
"Senior Debt Rating": the senior unsecured non-credit-enhanced
debt rating of the Borrower as determined by S&P and/or Moody's from time to
time.
"Shareholder": as defined in the Declaration of Trust.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel
to BNY.
"S&P": Standard & Poor's Ratings Group.
"Stock": any and all shares, rights, interests, participations,
warrants or other equivalents (however designated) of corporate stock,
including, without limitation, so-called "phantom stock".
"Subsidiary": as to any Person, any corporation, association,
partnership, joint venture or other business entity of which such Person or
any Subsidiary of such Person, directly or indirectly, either (i) in respect
of a corporation, owns or controls more than 50% of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors or
similar managing body, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any contingency, or
(ii) in respect of an association, partnership, joint venture or other busi-
ness entity, is entitled to share in more than 50% of the profits and losses,
however determined.
"Substitute Lender": a Consenting Lender, one or more Affiliates
of a Consenting Lender or any other bank, insurance company, pension fund,
mutual fund or other financial institution.
"Tangible Net Worth": as of any date of determination thereof,
the remainder of (i) Net Worth, less (ii) Intangible Assets.
"Taxes": any present or future income, stamp or other taxes,
levies, imposts, duties, fees, assessments, deductions, withholdings, or
other charges of whatever nature, now or hereafter imposed, levied,
collected, withheld, or assessed by any Governmental Authority.
"Term Loan" and "Term Loans": as defined in Section 2.2.
"Term Loan Conversion Notice": a notice to the Agent in the
form of Exhibit F.
"Threshold Event": any sale or disposition of Property of the
Borrower which, when combined with all other such sales or dispositions
occurring during any fiscal year of the Borrower after the Effective Date,
results in gross cash proceeds for all such sales or dispositions for such
fiscal year, less applicable Exclusions in such fiscal year, over
$100,000,000 (the "Threshold Amount"). For purposes of this definition, the
term "gross cash proceeds" means all cash sales proceeds received from each
such sale or disposition, whether direct or indirect, of such Property.
"Total Capital" shall mean, on any date, the sum of (i) all long
term debt of the Borrower (inclusive of medium term notes) on such date, (ii)
the stockholders' equity in the Borrower on such date, as determined in
accordance with GAAP, (iii) the value of issued and outstanding preferred
stock of the Borrower on such date, and (iv) all Loans outstanding on such
date.
"Total Commitment Amount": on any day, the sum of the
Commitment Amounts of all Lenders on such day.
"Trust": as defined in the Declaration of Trust.
"Trustee": as defined in the Declaration of Trust.
"Trust Property": as defined in the Declaration of Trust.
"Undepreciated Real Estate Assets": as of any date the amount of
real estate assets of the Borrower and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis in
accordance with GAAP.
B. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the meanings
given such terms herein when used in the Loan Documents or any certificate,
opinion or other document made or delivered pursuant hereto or thereto,
unless otherwise defined therein.
(b) As used in the Loan Documents and in any certificate,
opinion or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in Section 1.1, and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
schedule and exhibit references contained herein shall refer to Sections
hereof or schedules or exhibits hereto unless otherwise expressly provided
herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to the
contrary, references to time shall refer to New York City time.
II. AMOUNT AND TERMS OF LOANS.
A. Revolving Credit Loans.
Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans (each a "Revolving Credit
Loan" and, as the context may require, collectively with all Revolving Credit
Loans of such Lender and with the Revolving Credit Loans of all other Lend-
ers, the "Revolving Credit Loans") to the Borrower from time to time during
the Revolving Credit Period, in an aggregate outstanding principal amount at
any one time outstanding not to exceed such Lender's Commitment. At no time
shall the aggregate outstanding principal amount of the Revolving Credit
Loans of all Lenders exceed the Total Commitment Amount. During the
Revolving Credit Period, the Borrower may borrow, prepay in whole or in part
and reborrow under the Commitments, all in accordance with the terms and
conditions of this Agreement. Subject to the provisions of Sections 2.4, 2.5
and 2.8, Revolving Credit Loans may be (a) ABR Advances, (b) Eurodollar
Advances, (c) Competitive Bid Advances or (d) any combination thereof.
B. Term Loans.
(a) Subject to the terms and conditions hereof (including,
without limitation, the terms and conditions of Section 2.19(e)), the
Borrower may elect to convert all Revolving Credit Loans of all Lenders
outstanding under this Agreement as of the Revolving Credit Termination Date
to Term Loans of such Lenders. Such election shall be made by the Borrower's
delivery to the Agent of a Term Loan Conversion Notice on any date that is at
least 3, but not more than 14, Business Days prior to the Revolving Credit
Termination Date. Upon receipt of such notice, the Agent shall promptly
deliver a copy of the notice to each Lender. Provided that no Event of
Default shall have occurred and be continuing on the Revolving Credit
Termination Date, the outstanding principal amount of each Lender's Revolving
Credit Loans shall be converted to a Term Loan of such Lender as of such date
and the Commitment of each Lender to make Revolving Credit Loans shall
expire.
(b) The Term Loans shall be due and payable on the Maturity
Date.
C. Notes.
The Loans made by each Lender shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit G, with ap-
propriate insertions therein as to date and principal amount (each, as en-
dorsed or modified from time to time, a "Note" and, collectively with the
Notes of all other Lenders, the "Notes"), payable to the order of such Lender
for the account of its Applicable Lending Office and representing the obliga-
tion of the Borrower to pay the lesser of (a) the original amount of the
Commitment of such Lender and (b) the aggregate unpaid principal balance of
all Loans made by such Lender (including Term Loans of the Lenders, if the
Borrower makes an election to convert the Revolving Credit Loans pursuant to
Section 2.2), with interest thereon as prescribed in Section 2.9. Each Note
shall bear interest from the date thereof on the unpaid principal balance
thereof at the applicable interest rate or rates per annum determined as pro-
vided in Section 2.9 and shall be stated to mature on the Maturity Date. The
(i) date and amount of each Loan made by a Lender, (ii) its character as an
ABR Advance, a Eurodollar Advance, a Competitive Bid Advance, or a combina-
tion thereof, (iii) the interest rate and Interest Period applicable to Eu-
rodollar Advances and Competitive Bid Advances, and (iv) each payment and
prepayment of the principal thereof, shall be recorded by such Lender on its
books and, prior to any transfer of its Note, endorsed by such Lender on the
schedule attached thereto or any continuation thereof, provided that the
failure of such Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower to make payment when due of any amount
owing under the Loan Documents. Interest on each Note shall be payable as
specified in Section 2.9. Upon receipt of each Lender's Note pursuant to Sec-
tion 5, the Agent shall mail such Note to such Lender.
D. Procedure for Revolving Credit Loan Borrowings Other than
Competitive Bid Borrowings.
(a) Except for Revolving Credit Loans which the Borrower
requests to be made as Competitive Bid Advances (as to which the provisions
of Section 2.5 shall control), the Borrower may borrow under the Commitments
on any Business Day during the Revolving Credit Period, provided, however,
that the Borrower shall notify the Agent (by telephone or telecopy) no later
than: 11:00 A.M., three Business Days prior to the requested Borrowing Date,
in the case of Eurodollar Advances, and 11:00 A.M., one Business Day prior to
the requested Borrowing Date, in the case of ABR Advances, specifying (A) the
aggregate principal amount to be borrowed under the Commitments, (B) the
requested Borrowing Date, (C) whether the borrowing is to consist of
Eurodollar Advances, ABR Advances, or a combination thereof, and (D) if the
borrowing is to consist of Eurodollar Advances, the length of the Interest
Period or Periods for such Eurodollar Advances (subject to the provisions of
the definition of Interest Period). Each such notice shall be irrevocable
and confirmed immediately by delivery to the Agent of a Borrowing Request.
Each borrowing of (i) ABR Advances shall be in an aggregate principal amount
equal to $1,000,000 or such amount plus a whole multiple of $100,000 in
excess thereof, or, if less, the Available Commitment Amount and (ii) Euro-
dollar Advances shall be in an aggregate principal amount equal to $1,000,000
or such amount plus a whole multiple of $100,000 in excess thereof. Upon
receipt of each notice of borrowing from the Borrower, the Agent shall
promptly notify each Lender of the contents thereof. Subject to its receipt
of the notice referred to in the preceding sentence, each Lender will make
the amount of its Commitment Percentage of each borrowing of Revolving Credit
Loans available to the Agent for the account of the Borrower at the office of
the Agent set forth in Section 11.2 not later than 11:30 A.M. on the relevant
Borrowing Date requested by the Borrower, in funds immediately available to
the Agent at such office. The amounts so made available to the Agent on such
Borrowing Date will then, subject to the satisfaction of the terms and condi-
tions of this Agreement, as determined by the Agent, be made available on
such date to the Borrower by the Agent at the office of the Agent specified
in Section 11.2 by crediting the account of the Borrower on the books of such
office with the aggregate of said amounts received by the Agent.
(b) Unless the Agent shall have received prior notice from a
Lender (by telephone or otherwise, such notice to be promptly confirmed by
telecopy or other writing) that such Lender will not make available to the
Agent such Lender's pro rata share of the Revolving Credit Loans requested by
the Borrower, the Agent may assume that such Lender has made such share
available to the Agent on the Borrowing Date in accordance with this Section,
provided that such Lender received notice of the proposed borrowing from the
Agent, and the Agent may, in reliance upon such assumption, make available to
the Borrower on the Borrowing Date a corresponding amount. If and to the
extent such Lender shall not have so made such pro rata share available to
the Agent, such Lender and the Borrower severally agree to pay to the Agent
forthwith on demand such corresponding amount (to the extent not previously
paid by the other), together with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount is
paid to the Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 2.9 for ABR Advances or
Eurodollar Advances, as set forth in the applicable Conventional Borrowing
Request, and, in the case of such Lender, the Federal Funds Rate in effect on
each such day (as determined by the Agent). Such payment by the Borrower,
however, shall be without prejudice to its rights against such Lender. If
such Lender shall pay to the Agent such corresponding amount, such amount so
paid shall constitute such Lender's Revolving Credit Loan as part of the
Revolving Credit Loans for purposes of this Agreement, which Revolving Credit
Loan shall be deemed to have been made by such Lender on the Borrowing Date
applicable to such Revolving Credit Loans, but without prejudice to the
Borrower's rights against such Lender.
E. Competitive Bid Advances During the Revolving Credit Period, and
Procedure for Competitive Bid Borrowings.
(a) Subject to the terms and conditions of this Agreement, each
Lender severally agrees that the Borrower may effect Competitive Bid
Borrowings under this section 2.5 from time to time on any Business Day dur-
ing the Revolving Credit Period in the manner set forth below, provided,
however, that at no time shall the outstanding principal balance of Com-
petitive Bid Advances outstanding hereunder exceed the lesser of (i) the
Competitive Bid Ceiling, and (ii) the Aggregate Commitments less the
outstanding principal balance of all Conventional Advances:
(i) The Borrower may request a Competitive Bid Borrowing under
this section 2.5 during the Revolving Credit Period by giving to the
Agent, not later than 10:00 a.m. at least three Business Days prior
to the date of the proposed Competitive Bid Borrowing, a Competitive
Bid Borrowing Request specifying the proposed date and aggregate
amount (which shall not be less than $5,000,000 or such amount plus a
whole multiple $100,000) of the proposed Competitive Bid Borrowing,
the proposed Interest Period for the Competitive Bid Advances to be
made as part of such Competitive Bid Borrowing (which Interest Period
shall not be later than the Revolving Credit Termination Date and
shall otherwise comply with the applicable provisions of the
definition of "Interest Period"), and such other terms to be
applicable to such Competitive Bid Borrowing as the Borrower may
specify. The Agent shall promptly notify (by telephone or otherwise,
to be promptly confirmed by telecopy or other writing) each Lender of
each Competitive Bid Borrowing Request received by it and the terms
contained in such Competitive Bid Borrowing Request.
(ii) Each Lender may, if, in its sole discretion, it elects so
to do, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at
a rate or rates of interest specified by such Lender in its sole
discretion, by notifying (by telephone or otherwise, to be promptly
confirmed by telecopy or other writing) the Agent, before 10:00 a.m.
two Business Days before the Borrowing Date of such proposed
Competitive Bid Borrowing of the minimum amount and maximum amount of
each Competitive Bid Advance which such Lender would be willing to
make as part of such proposed Competitive Bid Borrowing (which
amounts may, subject to the proviso to the first sentence of this
Section 2.5, exceed such Lender's Commitment), the rate or rates of
interest therefor and such Lender's applicable Lending Office with
respect to such Competitive Bid Advance. The Agent shall notify the
Borrower of all such offers before 10:30 a.m. two Business Days
before such proposed Borrowing Date, provided that if BNY in its ca-
pacity as a Lender shall in its sole discretion elect to make any
such offer, it shall notify the Borrower of such offer before 9:30
a.m. two Business Days before such proposed Borrowing Date. If any
Lender other than BNY shall fail to notify the Agent before 10:00
a.m., and if BNY in its capacity as a Lender shall fail to notify the
Borrower before 9:30 a.m. two Business Days before the proposed
Borrowing Date, that it elects to make such an offer, such Lender
shall be deemed to have elected not to make such an offer and such
Lender shall not be obligated to, and shall not, make any Competitive
Bid Advance as part of such Competitive Bid Borrowing. Any offer
submitted after the time required above shall be disregarded by the
Agent unless such offer is submitted to correct a manifest error in a
prior offer.
(iii) The Borrower shall, before 12:00 noon two Business Days
before the date of such proposed Competitive Bid Borrowing, either
(A) cancel such Competitive Bid Borrowing Request by notice
to the Agent to that effect, or
(B) in its sole discretion, irrevocably accept one or more
of the offers made by any Lender or Lenders pursuant to (ii) above,
in ascending order of the rates offered therefor, by giving notice to
the Agent of the amount of each Competitive Bid Advance (which amount
shall be equal to or greater than the minimum amount, and equal to or
less than the maximum amount, notified to the Borrower by the Agent
on behalf of such Lender for such Competitive Bid Advance pursuant to
(ii) above) to be made by each Lender as part of such Competitive Bid
Borrowing, and reject any remaining offers made by Lenders pursuant
to (ii) above, by giving the Agent notice to that effect, provided,
however, that the aggregate amount of such offers accepted by the
Borrower shall be equal at least to $5,000,000. If offers for Com-
petitive Bid Advances at the same interest rate are made by two or
more Lenders for a greater aggregate minimum principal amount than
the amount in respect of which offers for Competitive Bid Advances
are accepted by the Borrower at such interest rate, the principal
amount of Competitive Bid Advances accepted at such interest rate
shall be allocated by the Borrower among such Lenders as nearly as
possible in proportion to the respective minimum principal amounts
offered by such Lenders. No such Lender shall be obligated to make
such Competitive Bid Advance in a principal amount less than the
minimum amount offered by such Lender without consenting to such
lesser amount. If any Lender declines to make a Competitive Bid
Advance at such lesser amount, the Borrower shall be entitled in its
sole discretion to determine which of such offers at the same
interest rate it shall accept.
(iv) If the Borrower notifies the Agent that a Competitive Bid
Borrowing Request is cancelled pursuant to (iii)(A) above, the Agent
shall give prompt notice (by telephone or otherwise, to be promptly
confirmed by telecopy or other writing) thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to clause (iii)(B) above, the Agent
shall, as promptly as practicable on the second Business Day before
such proposed Borrowing Date, notify (A) each Lender that has made an
offer as described in clause (ii) above, of the date and aggregate
amount of such Competitive Bid Borrowing and whether any offer or
offers made by such Lender pursuant to clause (ii) above have been
accepted by the Borrower and (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing (a
"Participating Lender" with respect to such Competitive Bid
Borrowing), of the amount of each Loan to be made by such Lender as
part of such Competitive Bid Borrowing, together with a specification
of the interest rate and Interest Payment Date or Dates in respect of
each such Competitive Bid Advance. Each such Participating Lender
shall, before 11:30 A.M. on the date of such Competitive Bid
Borrowing make available for the account of its applicable Lending
Office to the Agent at its address specified in section 11.2 such
Lender's portion of such Competitive Bid Borrowing, in funds im-
mediately available to the Agent at such office. Upon satisfaction
of the applicable terms and conditions of this Agreement and after
receipt by the Agent of such amount from each such Participating
Lender, the Agent will make such amount available on such date to the
Borrower at the office of the Agent specified in section 11.2 by
crediting the account of the Borrower on the books of such office
with the aggregate of such amounts, in like funds as received by the
Agent. After each Competitive Bid Borrowing, if requested by any
Lender, the Agent shall within a reasonable time furnish to such
Lender such information in respect of such Competitive Bid Borrowing
as such Lender shall reasonably request. Unless the Agent shall have
received prior notice from a Participating Lender (by telephone or
otherwise, such notice to be promptly confirmed by telecopy or other
writing) that such Participating Lender will not make available such
Participating Lender's Competitive Bid Advance, the Agent may assume
that such Participating Lender has made such Participating Lender's
portion of such Competitive Bid Borrowing available to the Agent on
such Borrowing Date in accordance with this section, and the Agent
may, in reliance upon such assumption, make available to the Borrower
on such Borrowing Date a corresponding amount. If and to the extent
such Participating Lender shall not have made such portion available
to the Agent, such Participating Lender and the Borrower severally
agree to pay to the Agent forthwith on demand such corresponding
amount with interest thereon for each day from the date such amount
is made available to the Borrower until the date such amount is paid
to the Agent at a rate per annum equal to, in the case of the
Borrower, the rate of interest for such Competitive Bid Advance
accepted by the Borrower in its notice to the Agent under Section
2.5(a)(iii)(B), and, in the case of such Lender, the Federal Funds
Rate in effect on such day (as determined by the Agent). Such payment
by the Borrower, however, shall be without prejudice to its rights
against such Participating Lender. If such Participating Lender shall
pay to the Agent such corresponding amount, such amount so paid shall
constitute such Lender's Competitive Bid Advance as a part of such
Competitive Bid Advances for purposes of this Agreement, which
Competitive Bid Advance shall be deemed to have been made by such
Participating Lender on the Borrowing Date applicable thereto, but
without prejudice to the Borrower's rights against such Participating
Lender.
(b) Within the limits and on the conditions set forth in this
section 2.5, the Borrower may from time to time borrow under this section
2.5, repay pursuant to clause (c) below, and reborrow under this section 2.5.
(c) The Borrower shall repay to the Agent for the account of
each Participating Lender which has made a Competitive Bid Advance on the
last day of the Interest Period for such Competitive Bid Advance (such
Interest Period being that specified by the Borrower in the related Com-
petitive Bid Borrowing Request delivered pursuant to (a)(i), above) the then
unpaid principal amount of such Competitive Bid Advance.
(d) The Borrower shall pay interest on the unpaid principal
balance of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Participating Lender making such Competitive Bid Advance in
its notice with respect thereto delivered pursuant to (a)(ii) above payable
on the Interest Payment Date specified by the Borrower for such Competitive
Bid Advance in the related Competitive Bid Borrowing Request delivered pur-
suant to (a)(i), above.
(e) Each Competitive Bid Advance shall be subject to all of the
provisions of this Agreement generally, provided, however, that a Competitive
Bid Advance shall not reduce a Lender's obligation to fund its Commitment
Percentage of any ABR Advance or Eurodollar Advance.
(f) The provisions of this Section 2.5 shall be applicable only
if as of the date of a Competitive Bid Borrowing Request there is more than
one Lender.
(g) The Borrower shall pay to Agent for its own account a fee
of $400 at the time each Competitive Bid Borrowing Request is made.
F. Termination or Reduction of Aggregate Commitments.
(a) Voluntary Reductions. The Borrower shall have the right,
upon at least three Business Days' prior written notice to the Agent, at any
time to terminate the Aggregate Commitments or from time to time to perma-
nently reduce the Aggregate Commitments to an amount not less than the sum of
the aggregate principal balance of the Loans then outstanding (after giving
effect to any contemporaneous prepayment thereof), provided, however, that
any such reduction shall be in the amount of $1,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof.
(b) In General. Reductions of the Aggregate Commitments shall
be applied pro rata according to the Commitment of each Lender. Simulta-
neously with each reduction of the Aggregate Commitments under this Section,
the Borrower shall pay the Commitment Fee accrued on the amount by which the
Aggregate Commitments have been reduced and prepay the Loans by the amount,
if any, by which the aggregate unpaid principal balance of the Loans exceeds
the amount of the Aggregate Commitments as so reduced. If any prepayment is
made under this Section with respect to any Fixed Rate Advances, in whole or
in part, prior to the last day of the applicable Interest Period, the Bor-
rower agrees to indemnify the Lenders in accordance with Section 2.14.
G. Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the ABR Advances and Eurodollar Advances, in whole or in part, without
premium or penalty (other than any indemnification amounts, as provided for
in Section 2.14) at any time and from time to time by notifying the Agent in
writing at least one Business Day prior to the proposed prepayment date in
the case of Loans consisting of ABR Advances and at least three Business Days
prior to the proposed prepayment date in the case of Loans consisting of
Eurodollar Advances, specifying the Loans to be prepaid consisting of ABR
Advances, Eurodollar Advances or a combination thereof, the amount to be
prepaid and the date of prepayment. Such notice shall be irrevocable and the
amount specified in such notice shall be due and payable on the date
specified, together with accrued interest to the date of such payment on the
amount prepaid. Upon receipt of such notice, the Agent shall promptly notify
each Lender in respect thereof. Partial prepayments of the such ABR Advances
and/or Eurodollar Advances shall be in an aggregate principal amount of
$1,000,000 or such amount plus a whole multiple of $100,000 in excess
thereof, or, if less, the outstanding principal balance of thereof. After
giving effect to any partial prepayment with respect to Eurodollar Advances
which were made (whether as the result of a borrowing or a conversion) on the
same date and which had the same Interest Period, the outstanding principal
amount of such Eurodollar Advances shall exceed (subject to Section 2.8)
$1,000,000 or such amount plus a whole multiple of $100,000 in excess
thereof. Voluntary prepayments of Competitive Bid Advances are not
permitted.
(ba Mandatory Prepayments. Upon the occurrence of any Net
Proceeds Event, the Borrower shall promptly prepay the Loans by an amount
equal to the Net Proceeds from such Net Proceeds Event. Unless designated
otherwise in a notice to the Agent accompanying such prepayment, the Net
Proceeds shall be applied first to ABR Advances, next to Eurodollar Advances
(first to such Eurodollar Advances having the Interest Period next to occur)
and last to Competitive Bid Advances.
(c) In General. If any prepayment is made in respect of any
Fixed Rate Advance, in whole or in part, prior to the last day of the ap-
plicable Interest Period, the Borrower agrees to indemnify the Lenders in ac-
cordance with Section 2.14.
H. Conversions.
(a) The Borrower may elect from time to time to convert
Eurodollar Advances to ABR Advances by giving the Agent at least one Business
Day's prior irrevocable notice of such election, specifying the amount to be
so converted, provided, that any such conversion of Eurodollar Advances shall
only be made on the last day of the Interest Period applicable thereto. In
addition, the Borrower may elect from time to time to convert ABR Advances to
Eurodollar Advances or to convert Eurodollar Advances to new Eurodollar
Advances by giving the Agent at least three Business Days' prior irrevocable
notice of such election, specifying the amount to be so converted and the
initial Interest Period relating thereto, provided that any such conversion
of ABR Advances to Eurodollar Advances shall only be made on a Business Day
and any such conversion of Eurodollar Advances to new Eurodollar Advances
shall only be made on the last day of the Interest Period applicable to the
Eurodollar Advances which are to be converted to such new Eurodollar
Advances. The Agent shall promptly provide the Lenders with notice of any
such election. ABR Advances and Eurodollar Advances may be converted
pursuant to this Section in whole or in part, provided that conversions of
ABR Advances to Eurodollar Advances, or Eurodollar Advances to new Eurodollar
Advances, shall be in an aggregate principal amount of $1,000,000 or such
amount plus a whole multiple of $100,000 in excess thereof.
(b) Notwithstanding anything in this Section to the contrary,
no ABR Advance may be converted to a Eurodollar Advance, and no Eurodollar
Advance may be converted to a new Eurodollar Advance, if a Default or Event
of Default has occurred and is continuing either (i) at the time the Borrower
shall notify the Agent of its election to convert or (ii) on the requested
Conversion Date. In such event, such ABR Advance shall be automatically
continued as an ABR Advance or such Eurodollar Advance shall be automatically
converted to an ABR Advance on the last day of the Interest Period applicable
to such Eurodollar Advance. If an Event of Default shall have occurred and
be continuing, the Agent shall, at the request of the Required Lenders,
notify the Borrower (by telephone or otherwise) that all, or such lesser
amount as the Required Lenders shall designate, of the outstanding Eurodollar
Advances shall be automatically converted to ABR Advances, in which event
such Eurodollar Advances shall be automatically converted to ABR Advances on
the date such notice is given.
(c) Each conversion shall be effected by each Lender by
applying the proceeds of its new ABR Advance or Eurodollar Advance, as the
case may be, to its Advances (or portion thereof) being converted (it being
understood that such conversion shall not constitute a borrowing for purposes
of Sections 4, 5 or 6).
I. Interest Rate and Payment Dates.
(a) Prior to Maturity. Except as otherwise provided in Section
2.9(b), prior to maturity, the Loans shall bear interest on the outstanding
principal balance thereof at the applicable interest rate or rates per annum
set forth below:
ADVANCES RATE
Each ABR Advance Alternate Base Rate.
Each Eurodollar Eurodollar Rate for the
Advance applicable Interest Period plus the
Applicable Margin.
Competitive Bid the rate for the applicable
Advance Competitive Bid Advance determined pursuant
to Section 2.5.
(b) Event of Default. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of the
Loans shall bear interest at a rate per annum equal to 2% plus the rate which
would otherwise be applicable under Section 2.9(a), and any overdue interest
or other amount payable under the Loan Documents shall bear interest, whether
before or after the entry of any judgment thereon, at a rate per annum equal
to the Alternate Base Rate plus 2%. All such interest shall be payable on
demand.
(c) General. Interest on (i) ABR Advances to the extent based
on the BNY Rate shall be calculated on the basis of a 365 or 366-day year (as
the case may be), and (ii) ABR Advances to the extent based on the Federal
Funds Rate, Eurodollar Advances and Competitive Bid Advances shall be calcu-
lated on the basis of a 360-day year, in each case for the actual number of
days elapsed, including the first day but excluding the last. Except as
otherwise provided in Section 2.9(b), interest shall be payable in arrears on
each Interest Payment Date and upon payment (including prepayment) of the
Loans. Any change in the interest rate on the Loans resulting from a change
in the Alternate Base Rate or a Pricing Level shall become effective as of
the opening of business on the day on which such change shall become effec-
tive. The Agent shall, as soon as practicable, notify the Borrower and the
Lenders of the effective date and the amount of each such change in the
Alternate Base Rate or a Pricing Level, but any failure to so notify shall
not in any manner affect the obligation of the Borrower to pay interest on
the Loans in the amounts and on the dates required. Each determination of
the Alternate Base Rate, a Eurodollar Rate or a Pricing Level by the Agent
pursuant to this Agreement shall be conclusive and binding on the Borrower
and the Lenders absent manifest error. At no time shall the interest rate
payable on the Loans of any Lender, together with the Commitment Fee and all
other amounts payable under the Loan Documents, to the extent the same are
construed to constitute interest, exceed the Highest Lawful Rate. If
interest payable to a Lender on any date would exceed the maximum amount
permitted by the Highest Lawful Rate, such interest payment shall auto-
matically be reduced to such maximum permitted amount, and interest for any
subsequent period, to the extent less than the maximum amount permitted for
such period by the Highest Lawful Rate, shall be increased by the unpaid
amount of such reduction. Any interest actually received for any period in
excess of such maximum allowable amount for such period shall be deemed to
have been applied as a prepayment of the Loans. The Borrower acknowledges
that to the extent interest payable on ABR Advances is based on the BNY Rate,
such Rate is only one of the bases for computing interest on loans made by
the Lenders, and by basing interest payable on ABR Advances on the BNY Rate,
the Lenders have not committed to charge, and the Borrower has not in any way
bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.
J. Substituted Interest Rate.
In the event that (i) the Agent shall have reasonably determined
(which determination shall be conclusive and binding upon the Borrower) that
by reason of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate applicable pursuant to Section 2.9 or (ii) the Required Lenders shall
have notified the Agent that they have reasonably determined (which de-
termination shall be conclusive and binding on the Borrower) that the
applicable Eurodollar Rate will not adequately and fairly reflect the cost to
such Lenders of maintaining or funding loans bearing interest based on such
Eurodollar Rate, with respect to any portion of the Loans that the Borrower
has requested be made as Eurodollar Advances or Eurodollar Advances that will
result from the requested conversion of any portion of the Advances into
Eurodollar Advances (each, an "Affected Advance"), the Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise, to be
promptly confirmed in writing) of such determination, on or, to the extent
practicable, prior to the requested Borrowing Date or Conversion Date for
such Affected Advances. If the Agent shall give such notice, (a) any
Affected Advances shall be made as ABR Advances, (b) the Advances (or any
portion thereof) that were to have been converted to Affected Advances shall
be converted to or continued as ABR Advances and (c) any outstanding Affected
Advances shall be converted, on the last day of the then current Interest
Period with respect thereto, to ABR Advances. Until any notice under clauses
(i) or (ii), as the case may be, of this Section has been withdrawn by the
Agent (by notice to the Borrower promptly upon either (x) the Agent having
determined that such circumstances affecting the interbank eurodollar market
no longer exist and that adequate and reasonable means do exist for determin-
ing the Eurodollar Rate pursuant to Section 2.9 or (y) the Agent having been
notified by such Required Lenders that circumstances no longer render the
Advances (or any portion thereof) Affected Advances), no further Eurodollar
Advances shall be required to be made by the Lenders nor shall the Borrower
have the right to convert all or any portion of the Loans to Eurodollar Ad-
vances.
K. Taxes; Net Payments.
(a) All payments made by the Borrower under the Loan Documents
shall be made free and clear of, and without reduction for or on account of,
any taxes required by law to be withheld from any amounts payable under the
Loan Documents. A statement setting forth the calculations of any amounts
payable pursuant to this paragraph submitted by a Lender to the Borrower
shall be conclusive absent manifest error. The obligations of the Borrower
under this Section shall survive the termination of the Agreement and the
Aggregate Commitments and the payment of the Notes and all other amounts pay-
able under the Loan Documents.
(b) Each Lender which is a foreign corporation within the
meaning of Section 1442 of the Code shall deliver to the Borrower such
certificates, documents or other evidence as the Borrower may reasonably
require from time to time as are necessary to establish that such Lender is
not subject to withholding under Section 1441 or 1442 of the Code or as may
be necessary to establish, under any law imposing upon the Borrower
hereafter, an obligation to withhold any portion of the payments made by the
Borrower under the Loan Documents, that payments to the Agent on behalf of
such Lender are not subject to withholding.
L. Illegality.
Notwithstanding any other provisions herein, if any law,
regulation, treaty or directive, or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Lender
to make or maintain its Eurodollar Advances as contemplated by this
Agreement, (i) the commitment of such Lender hereunder to make Eurodollar
Advances or convert ABR Advances to Eurodollar Advances shall forthwith be
suspended and (ii) such Lender's Loans then outstanding as Eurodollar
Advances affected hereby, if any, shall be converted automatically to ABR
Advances on the last day of the then current Interest Period applicable
thereto or within such earlier period as required by law. If the commitment
of any Lender with respect to Eurodollar Advances is suspended pursuant to
this Section and thereafter it is once again legal for such Lender to make or
maintain Eurodollar Advances, such Lender's commitment to make or maintain
Eurodollar Advances shall be reinstated and such Lender shall notify the
Agent and the Borrower of such event.
M. Increased Costs.
In the event that any law, regulation, treaty or directive
hereafter enacted, promulgated, approved or issued or any change in any
presently existing law, regulation, treaty or directive therein or in the
interpretation or application thereof by any Governmental Authority charged
with the administration thereof or compliance by any Lender (or any
corporation directly or indirectly owning or controlling such Lender) with
any request or directive from any central bank or other Governmental
Authority, agency or instrumentality:
(a) does or shall subject any Lender to any Taxes of any kind
whatsoever with respect to any Eurodollar Advances or its obligations under
this Agreement to make Eurodollar Advances, or change the basis of taxation
of payments to any Lender of principal, interest or any other amount payable
hereunder in respect of its Eurodollar Advances, including any Taxes required
to be withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, tax on the overall net income of
such Lender or its Applicable Lending Office for any of such Advances by the
jurisdiction in which such Lender is incorporated or has its principal office
or such Applicable Lending Office, including, in the case of Lenders
incorporated in any State of the United States such tax imposed by the United
States); or
(b) does or shall impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or
similar requirement against assets held by, or deposits of, or advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Lender in respect of its Eurodollar Advances which is not
otherwise included in the determination of the Eurodollar Rate;
and the result of any of the foregoing is to increase the cost to such Lender
of making, renewing, converting or maintaining its Eurodollar Advances or its
commitment to make such Eurodollar Advances, or to reduce any amount re-
ceivable hereunder in respect of its Eurodollar Advances, then, in any such
case, the Borrower shall pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such additional cost or
reduction in such amount receivable which such Lender deems to be material as
determined by such Lender; provided, however, that nothing in this Section
shall require the Borrower to indemnify the Lenders with respect to with-
holding Taxes for which the Borrower has no obligation under Section 2.11.
No failure by any Lender to demand compensation for any increased cost during
any Interest Period shall constitute a waiver of such Lender's right to
demand such compensation at any time. A statement setting forth the calcula-
tions of any additional amounts payable pursuant to the foregoing sentence
submitted by a Lender to the Borrower shall be conclusive absent manifest
error. The obligations of the Borrower under this Section shall survive the
termination of the Agreement and the Aggregate Commitments and the payment of
the Notes and all other amounts payable under the Loan Documents. To the
extent that any increased costs of the type referred to in this Section are
being incurred by a Lender and such costs can be eliminated or reduced by the
transfer of such Lender's Loans or Commitment to another of its branches, and
to the extent that such transfer is not inconsistent with such Lender's
internal policies of general application and only if, as determined by such
Lender in its sole discretion, the transfer of such Loan or Commitment, as
the case may be, would not otherwise adversely affect such Loan or such
Lender, the Borrower may request, and such Lender shall use reasonable
efforts to effect, such transfer.
N. Indemnification for Loss Relating to Eurodollar Advances.
Notwithstanding anything contained herein to the contrary, if
the Borrower shall fail to borrow or convert on a Borrowing Date or
Conversion Date after it shall have given notice to do so in which it shall
have requested a Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall
have accepted one or more offers of Competitive Bid Advances under Sec-
tion 2.5 or if a Eurodollar Advance or Competitive Bid Advance shall be
terminated for any reason prior to the last day of the Interest Period ap-
plicable thereto, or if, while a Eurodollar Advance or Competitive Bid
Advance is outstanding, any repayment or prepayment of such Eurodollar
Advance or Competitive Bid Advance is made for any reason (including, without
limitation, as a result of acceleration or illegality) on a date which is
prior to the last day of the Interest Period applicable thereto, the Borrower
agrees to indemnify each Lender against, and to pay on demand directly to
such Lender, any loss or expense suffered by such Lender as a result of such
failure to borrow or convert, termination or repayment, including, without
limitation, an amount, if greater than zero, equal to:
A x (B-C) x D
360
where:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate or rate which such Competitive Bid Advance
bears (in each case expressed as a decimal) to such Loan;
"C" equals the applicable Eurodollar Rate or Proposed Bid Rate (in each case
expressed as a decimal), as the case may be, in effect on or about the first
day of the applicable Remaining Interest Period, based on the applicable
rates offered or bid, as the case may be, on or about such date, for deposits
(or in the case of a Proposed Bid Rate, based on the rate such Lender would
have quoted) in an amount equal approximately to such Lender's pro rata share
of the Affected Principal Amount with an Interest Period equal approximately
to the applicable Remaining Interest Period, as determined by such Lender;
"D" equals the number of days from and including the first day of the
applicable Remaining Interest Period to but excluding the last day of such
Remaining Interest Period;
and any other out-of-pocket loss or expense (including any internal
processing charge customarily charged by such Lender) suffered by such Lender
in connection with such Eurodollar Advance or Competitive Bid Advance,
including, without limitation, in liquidating or employing deposits acquired
to fund or maintain the funding of its pro rata share of the Affected
Principal Amount, or redeploying funds prepaid or repaid, in amounts which
correspond to its pro rata share of the Affected Principal Amount. Each
determination by the Agent or a Lender pursuant to this Section shall be
conclusive and binding on the Borrower absent manifest error. The
obligations of the Borrower under this Section shall survive the termination
of the Agreement and the Aggregate Commitments and the payment of the Notes
and all other amounts payable under the Loan Documents.
O. Option to Fund.
Each Lender has indicated that, if the Borrower elects to borrow
or convert to Eurodollar Advances, or obtain a Competitive Bid Advance, such
Lender may wish to purchase one or more deposits in order to fund or maintain
its funding of such Loan during the Interest Period in question; it being
understood that the provisions of this Agreement relating to such funding are
included only for the purpose of determining the rate of interest to be paid
on such Loan. Each Lender shall be entitled to fund and maintain its funding
of all or any part of each Eurodollar Advance or Competitive Bid Advance made
by it in any manner it sees fit, but all determinations under Section 2.14
shall be made as if such Lender had actually funded and maintained its
funding of such Loan during the applicable Interest Period through the
purchase of deposits in an amount equal to such Loan and having a maturity
corresponding to such Interest Period. The obligations of the Borrower under
Sections 2.10, 2.11, 2.13 and 2.14 shall survive the termination of the
Agreement and the Aggregate Commitments and the payment of the Notes and all
other amounts payable under the Loan Documents.
P. Use of Proceeds.
The proceeds of Loans shall be used solely for general business
purposes, and such use shall conform to the provisions of Section 4.11.
Q. Capital Adequacy.
If (i) the enactment or promulgation of, or any change or
phasing in of, any United States or foreign law or regulation or in the
interpretation thereof by any Governmental Authority charged with the admin-
istration thereof, (ii) compliance with any directive or guideline from any
central bank or United States or foreign Governmental Authority (whether
having the force of law) promulgated or made after the date hereof, or (iii)
compliance with the Risk-Based Capital Guidelines of the Board of Governors
of the Federal Reserve System as set forth in 12 CFR Parts 208 and 225, or of
the Comptroller of the Currency, Department of the Treasury, as set forth in
12 CFR Part 3, or similar legislation, rules, guidelines, directives or
regulations under any applicable United States or foreign Governmental
Authority affects or would affect the amount of capital required to be
maintained by a Lender (or any lending office of such Lender) or any cor-
poration directly or indirectly owning or controlling such Lender or imposes
any restriction on or otherwise adversely affects such Lender (or any lending
office of such Lender) or any corporation directly or indirectly owning or
controlling such Lender and such Lender shall have reasonably determined that
such enactment, promulgation, change or compliance has the effect of reducing
the rate of return on such Lender's capital or the asset value to such Lender
of any Loan made by such Lender as a consequence, directly or indirectly, of
its obligations to make and maintain the funding of its Loans at a level
below that which such Lender could have achieved but for such enactment,
promulgation, change or compliance (after taking into account such Lender's
policies regarding capital adequacy) by an amount deemed by such Lender to be
material, then, upon demand by such Lender, the Borrower shall promptly pay
to such Lender such additional amount or amounts as shall be sufficient to
compensate such Lender for such reduction in such rate of return or asset
value. A certificate in reasonable detail as to such amounts submitted to
the Borrower and the Agent setting forth the determination of such amount or
amounts that will compensate such Lender for such reductions shall be
presumed correct absent manifest error. No failure by any Lender to demand
compensation for such amounts hereunder shall constitute a waiver of such
Lender's right to demand such compensation at any time. Such Lender shall,
however, use reasonable efforts to notify the Borrower of such claim within
90 days after the officer of such Lender having primary responsibility for
this Agreement has obtained knowledge of the events giving rise to such
claim. The obligations of the Borrower under this Section shall survive the
termination of the Agreement and the Aggregate Commitments and the payment of
the Notes and all other amounts payable under the Loan Documents.
R. Agent's Records.
The Agent's records with respect to the Loans, the interest
rates applicable thereto, each payment by the Borrower of principal and
interest on the Loans, and fees, expenses and any other amounts due and
payable in connection with this Agreement shall be presumptively correct
absent manifest error as to the amount of the Loans, and the amount of
principal and interest paid by the Borrower in respect of such Loans and as
to the other information relating to the Loans, and amounts paid and payable
by the Borrower hereunder and under the Notes. The Agent will when requested
by the Borrower advise the Borrower of the principal and interest outstanding
under the Loans as of the date of such request and the dates on which such
payments are due.
S. Extension of Revolving Credit Termination Date.
(a) Provided that no Default or Event of Default exists during
the periods set forth below, the Borrower may request one or more extensions
of the Revolving Credit Termination Date, each such extension to be for a
period of 364-days, by giving written notice of each such request (each, an
"Extension Request") to the Agent and each Lender during the period which is
not less than 45 nor more than 60 days prior to the then current Revolving
Credit Termination Date. Any extension of the Revolving Credit Termination
Date requested in accordance with the foregoing procedure shall be determined
as follows:
(i) If the Required Lenders do not consent to an Extension Request
within 30, but not less than 15, days from the date of such
Extension Request (by giving written notice thereof to the Bor-
rower and the Agent), the Revolving Credit Termination Date
shall not be extended.
(ii) If each Lender consents to an Extension Request within 30, but
not less than 15, days from the date of such Extension Request,
(by giving written notice thereof to the Borrower and the Agent)
the Revolving Credit Termination Date shall be amended such that
it shall end 364 days from the date of the then-current
Revolving Credit Termination Date. Upon receipt of such con-
sents from each Lender, the Agent will notify the Lenders of its
receipt of all such consents and the new Revolving Credit
Termination Date.
(iii) If Lenders (each a "Nonconsenting Lender" and collectively, the
Nonconsenting Lenders") having Commitments equal to 49% or less
of the Aggregate Commitments do not consent to an Extension
Request within 30, but not less than 15, days from the date of
such Extension Request, (by giving written notice thereof to the
Borrower and the Agent), the Borrower may elect to (i) withdraw
such Extension Request, (ii) effect an assignment of all or part
of the Nonconsenting Lenders' rights and obligations under the
Loan Documents, subject to, and in accordance with, the
provisions of Section 2.19(c), or (iii) terminate the Commitment
of each Nonconsenting Lender effective on the then current
Revolving Credit Termination Date with respect to such Non-
consenting Lender, and, on such date, pay to the Agent for dis-
tribution to such Nonconsenting Lender the outstanding principal
balance, if any, of the Note of such Nonconsenting Lender, to-
gether with any accrued and unpaid interest thereon to the date
of such payment, any accrued and unpaid Commitment Fee due to
such Lender, and any other amount due to such Lender under this
Agreement, whereupon (y) the then current Revolving Credit
Termination Date shall be extended as to all Lenders from whom
the Agent has received such consent (the "Consenting Lenders"),
and the terms of clause (ii) of this Section 2.19(a) shall apply
to such extension, and (z) each Nonconsenting Lender shall cease
to be a "Lender" for all purposes of this Agreement after the
then current Revolving Credit Termination Date applicable to
such Nonconsenting Lender (except with respect to its rights
hereunder to be reimbursed for costs and expenses, and to in-
demnification with respect to, matters attributable to events,
acts or conditions occurring prior to such assumption and pur-
chase) and shall no longer have any obligations hereunder.
(b) In the event the Borrower elects to terminate the Commitment
of the Nonconsenting Lender under Section 2.19(a)(iii) above, the Agent is
authorized and directed to amend Exhibit B, effective on the then current
Revolving Credit Termination Date, and promptly distribute a copy thereof to
the Borrower and the Consenting Lenders reflecting the new Commitment Amount
of each Consenting Lender. The new Commitment Percentage of each Consenting
Lender based on such new Commitment Amount (after giving effect to the ter-
mination of each Nonconsenting Lender's Commitment) is sometimes hereinafter
referred to as the "Reallocated Commitment Percentage." The Consenting
Lenders agree (subject to their receipt of any mandatory prepayment referred
to below), effective on the then current Revolving Credit Termination Date,
to assume their Reallocated Commitment Percentages of the Revolving Credit
Loans, provided, that if, after giving effect to such assumption, the out-
standing principal balance of the Consenting Lenders' Revolving Credit Loans
would exceed the Aggregate Commitments or any Lender's Commitment, then the
Borrower will pay to the Agent on the then current Revolving Credit Termi-
nation Date for distribution to the Consenting Lenders, an amount sufficient
to reduce the outstanding principal balance of the Revolving Credit Loans to
an amount which does not exceed the Aggregate Commitments and each Consenting
Lender's Commitment.
(c) In the event the Borrower elects to effect an assignment of
all or part of the Nonconsenting Lenders' rights and obligations under the
Loan Documents in accordance with clause (ii) of Section 2.19(a)(iii) above,
then, provided that there shall not exist and be continuing any Default or
Event of Default, the Borrower may, subject to the terms of this Section
2.19(c), obtain the agreement of a Substitute Lender to accept such an
assignment, and one or more Nonconsenting Lenders designated by the Borrower
(as hereinafter set forth) shall, subject to the terms of this Section
2.19(c), assign all or part of their rights and obligations in the Loan Docu-
ments to such Substitute Lender. The Borrower shall at least 15 days prior
to the Revolving Credit Termination Date on which the Commitments of such
Nonconsenting Lenders shall terminate (a "Nonconsenting Lender Termination
Date") notify the Agent and one or more of the Nonconsenting Lenders of a
Substitute Lender's agreement to accept such assignment from such
Nonconsenting Lenders. Such notice shall set forth (i) the name of the
Nonconsenting Lenders whose rights and obligations are to be assigned to said
Substitute Lender, (ii) the percentage interest of the Nonconsenting Lenders'
Commitments to be assigned to said Substitute Lender, and (iii) the amount of
the Revolving Credit Loans to be so assigned and their type (i.e. ABR
Advances, Eurodollar Advances and/or Competitive Bid Advances). Upon the
Agent's consent to such assignment (which consent or denial shall be given by
the Agent to the Borrower and applicable Nonconsenting Lenders within 5 days
after the Agent's receipt of the foregoing notice from the Borrower) such
Nonconsenting Lenders and the Substitute Lender shall enter into an
Assignment and Assumption Agreement substantially in the form of Exhibit A.
Upon such execution, delivery, acceptance and recording by the Agent, from
and after the effective date specified in such Assignment and Assumption
Agreement (which date shall not be later than the Nonconsenting Lender Termi-
nation Date), the Substitute Lender shall be a party hereto. The Commitment
of the Substitute Lender acquired pursuant to such Assignment and Assumption
Agreement shall be coterminous with the Commitments of each Consenting
Lender. The Borrower agrees upon written request of the Agent, and at the
Borrower's expense, to execute and deliver to such Substitute Lender a Note,
dated the effective date of such Assignment and Assumption Agreement, in an
aggregate principal amount equal to the Revolving Credit Loans assigned to,
and Commitments assumed by, the Substitute Lender, and the Agent shall amend
Exhibit B, effective on such date to reflect the Reallocated Commitment
Percentage of each Consenting Lender and such Substitute Lender and shall
promptly distribute a copy thereof to the Borrower, each Consenting Lender
and such Substitute Lender. At the request of the Borrower, the
Nonconsenting Lender whose Commitment has been assigned shall promptly after
the later to occur of such effective date and payment in full of all amounts
hereunder and under the Note return to the Borrower its Note or other
evidence that such Nonconsenting Lender has received full payment of such
amounts. The purchase price paid under each Assignment and Assumption
Agreement delivered pursuant to this Section 2.19(c) shall be the principal
amount of the Revolving Credit Loans assigned thereunder. On the effective
date of such Assignment and Assumption Agreement, the Borrower, the Substi-
tute Lender and the Nonconsenting Lender shall make appropriate adjustments
in the payment of interest, Commitment Fees and other amounts with respect to
the assigned Revolving Credit Loans, it being understood, however, that the
Nonconsenting Lender may require, as a condition to its execution and
delivery of the Assignment and Assumption Agreement, that it receive all ac-
crued and unpaid interest, Commitment Fees and other amounts due to it
(whether or not the same are then payable) on the effective date of such
Assignment and Assumption Agreement. To the extent that the Borrower does
not purchase all of the rights and obligations of the Nonconsenting Lenders
under the Loan Documents, then the Borrower will make the payment described
in clause (iii) of Section 2.19(a)(iii) with respect to the Revolving Credit
Loans and the interest, Commitment Fees and other amounts appurtenant thereto
which are not the subject of such Assignment and Assumption Agreement. Each
Nonconsenting Lender shall cease to be a "Lender" for all purposes of this
Agreement after the Nonconsenting Lender Termination Date applicable to such
Nonconsenting Lender (except with respect to its rights hereunder to be reim-
bursed for costs and expenses, and to indemnification with respect to,
matters attributable to events, acts or conditions occurring prior to such
assumption and purchase) and shall no longer have any obligations hereunder.
The Borrower agrees to hold each Nonconsenting Lender harmless from any loss
liability or claim incurred by or made against such Nonconsenting Lender in
connection with any assignment made by it pursuant to this Section 2.19(c)
(the obligations of the Borrower under the foregoing indemnity shall survive
the termination of the Agreement and the Aggregate Commitments and the pay-
ment of the Notes and all other amounts payable under the Loan Documents).
(d) Each Lender will use its best efforts to respond promptly
to any request for an extension of the Revolving Credit Termination Date,
provided that no Lender's failure to so respond shall create any claim
against it or have the effect of extending the Revolving Credit Termination
Date of such Lender's Commitment.
(e) At any time prior to the then existing Revolving Credit
Termination Date, the Borrower may withdraw its Extension Request (i) elect
to convert the outstanding principal balance of all Revolving Credit Loans to
the Term Loans on such Revolving Credit Termination Date, subject to the
provisions of Section 2.2, or (ii) allow the Commitments to terminate on such
Revolving Credit Termination Date, in which case the Lenders shall thereafter
have no further obligations to the Borrower under this Agreement and all
Loans must be paid in full, together with all accrued and unpaid interest,
Commitment Fees and other amounts due hereunder. During any period that an
Extension Request has been made and not withdrawn by the Borrower, the
Borrower shall not be entitled to convert the Revolving Credit Loans to Term
Loans.
T. Commitment Increases.
(a) At any time and from time to time after the Effective Date
and during the Revolving Credit Period, subject to the prior written consent
of the Agent (which consent shall not be unreasonably withheld), and provided
that no Default shall have occurred and is continuing, the Total Commitment
Amount may be increased either by new Lenders establishing Commitments or by
one or more then existing Lenders increasing their Commitments (each such in-
crease by either means, a "Commitment Increase", and each new Lender or each
Lender increasing its Commitment, an "Additional Commitment Lender") provided
that no Commitment Increase shall become effective unless and until (i) the
Borrower, the Agent and the Additional Commitment Lender shall have executed
and delivered an agreement substantially in the form of Exhibit H (a "Com-
mitment Increase Supplement") with respect to such Commitment Increase, and
(ii) if, after giving effect thereto, the aggregate amount of the Commitments
would exceed $100,000,000, such Commitment Increase shall have been consented
to in writing by each of the other Lenders. On the effective date of any such
Commitment Increase (each an "Increase Effective Date"), the Additional
Commitment Lender shall pay to each other Lender the purchase price, as
determined in accordance with subsection (b) below, for an assignment of a
portion of such other Lender's advances outstanding at such time that, after
giving effect to such assignments, the aggregate amount of Revolving Credit
Loans of each Lender (including the Additional Commitment Lender) shall be
proportional. Upon payment of such purchase price, each other Lender shall
be deemed to have sold and made such an assignment to such Additional
Commitment Lender, and such Additional Commitment Lender shall be deemed to
have purchased and assumed such an assignment from each other Lender, on the
terms set forth in subsection (b) below. Upon the effectiveness of any
Commitment Increase, the Borrower shall issue a Note to the Additional
Commitment Lender (against surrender of its existing Note in the case of an
existing Lender), and to the existing Lenders if necessary, in the amount of
such Additional Commitment Lender's Commitment after giving effect to such
Commitment Increase. The Agent is hereby directed to amend Exhibit B hereto
on each Increase Effective Date to reflect the Total Commitment Amount and
the Commitment of each Lender as of such Increase Effective Date. As of the
Increase Effective Date, each Additional Commitment Lender shall be a
"Lender" hereunder, and shall have all of the rights and obligations of a
Lender hereunder.
(b) Each assignment of Revolving Credit Loans by any Lender (an
"Assigning Lender") to an Additional Commitment Lender pursuant to subsection
(a) of this Agreement shall be made on the following terms:
(i) The purchase price for the assignment shall be equal
to the aggregate principal amount of the Revolving Credit Loans assigned plus
the amount of accrued and unpaid interest thereon on the date of the
assignment. The purchase price shall be payable, not later than 12:00 noon
(New York City time) on the effective date of the applicable Commitment In-
crease, in U.S. Dollars in funds immediately available to the Assigning
Lender at such office of the Assigning Lender (or a commercial bank
designated by it) located in the United States as the Assigning Lender shall
specify to the Assignee.
(ii) The assignment shall consist of an equal percentage of
all Revolving Credit Loans of the Assigning Lender outstanding and shall
include all of the Assigning Lender's rights under this Agreement in respect
of the portion of the Revolving Credit Loans of the Assigning Lender as-
signed, including accrued interest thereon.
(iii) The assignment shall be without recourse to the
Assigning Lender. The Assigning Lender shall not be deemed to have made any
representation or warranty or to have assumed any responsibility with respect
to (a) any statements, warranties or representations made in or in connection
with the Agreement or any other instrument or document furnished pursuant
thereto or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement or any other instrument or document
furnished pursuant thereto, other than as set forth in clause (iv) below, or
(b) the financial condition of the Borrower or any of its Subsidiaries, or
the performance or observance by the Borrower or any of its Subsidiaries of
any of their respective obligations under the Agreement or any other
instrument or document furnished pursuant thereto.
(iv) The Assigning Lender shall, at the time of the as-
signment, be deemed to have represented and warranted that (a) it has full
power, authority and legal right to make the assignment and (b) it is the
legal and beneficial owner of the rights assigned and such rights are free
and clear of any lien or adverse claim, including any participation.
(v) The Additional Commitment Lender which is the assignee
of the Assigning Lender's interest shall, at the time of the assignment, be
deemed to have (a) represented and warranted that it has full power,
authority and legal right to purchase and assume the Assignment; (b)
confirmed that it has received a copy of this Agreement, together with copies
of the most recent financial statements and reports delivered pursuant to
Section 7.1 (a), (b) and (c) of this Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to purchase and assume the assignment; and (c) agreed that it will,
independently and without reliance upon the Assigning Lender, the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement.
(c) The Agent shall not require payment of a fee in connection
with any Commitment Increase.
U. Failure to Fund; Commitment Fee.
In the event that a Lender (i) shall fail or refuse to advance
its Commitment Percentage of each borrowing of Loans as required by the
provisions of either Sections 2.4 or 2.5, and (ii) shall not have notified
either the Agent or the Borrower (either orally or in writing) that it has
determined (which determination shall be made by such Lender reasonably and
in good faith) that it is not obligated by the terms of this Agreement to
make such advance (for example, by reason of the occurrence of a Default or
the failure of the Borrower to satisfy any other condition to such borrowing)
(such Lender's Commitment Percentage of such borrowing being the "Defaulted
Portion"), then for the period that such failure or refusal shall continue,
and such notice is not provided, the Commitment Fee shall not accrue on that
portion of such Lender's Commitment equal to the Defaulted Portion. Any such
reduction in the aggregate Commitment Fee shall reduce only the portion of
such aggregate Commitment Fee payable to the Lender who gave rise to such
Defaulted Portion, and shall not reduce the share of the Commitment Fee
payable to any other Lenders.
III. FEES; PAYMENTS
A. Commitment Fee.
Subject to the terms of Section 2.20, the Borrower agrees to pay
to the Agent, for the account of the Lenders in accordance with each Lender's
Commitment Percentage, a fee (the "Commitment Fee"), during the Revolving
Credit Period, equal to the Applicable Commitment Fee Percentage of the av-
erage daily Available Commitment Amount (including any increase thereto
pursuant to Section 2.20). The Commitment Fee shall be payable quarterly in
arrears on the last day of each March, June, September and December of each
year, commencing on the first such day following the Effective Date, and on
each optional reduction of the Total Commitment Amount, and ending on the
date that the Commitments shall expire or otherwise terminate. The Commit-
ment Fee (and the applicable Commitment Fee Percentage) shall be calculated
on the basis of a 360 day year for the actual number of days elapsed. Loans
which are Competitive Bid Rate Advances would not be deemed to be usage for
purposes of calculating the Commitment Fee.
ed Pro Rata Treatment and Application of Principal Payments.
Each payment, including each prepayment, of principal and
interest on the Loans and of the Commitment Fee shall be made by the Borrower
to the Agent at its office set forth in Section 11.2 in funds immediately
available to the Agent at such office by 12:00 noon on the due date for such
payment. Promptly upon receipt thereof by the Agent, the Agent shall remit,
in like funds as received, (i) to the Lenders who maintain any of their Loans
as ABR Advances or Eurodollar Advances, each such Lender's pro rata share of
such payments which are in respect of principal or interest due on such ABR
Advances or Eurodollar Advances; (ii) to the Lenders who maintain any of
their Revolving Credit Loans as Competitive Bid Advances, each such Lender's
pro rata share of such payments which are in respect principal or interest
due on such Competitive Bid Advances in accordance with Sections 2.5(c) and
(d) and (iii) in the case of Commitment Fees, to all Lenders pro rata accord-
ing each Lender's Commitment Percentage thereof (except as otherwise provided
in Section 2.21). The failure of the Borrower to make any such payment by
such time shall not constitute a default hereunder, provided that such
payment is made on such due date, but any such payment made after 12:00 noon
on such due date shall be deemed to have been made on the next Business Day
for the purpose of calculating interest on amounts outstanding on the Loans.
If any payment hereunder or under the Notes shall be due and payable on a day
which is not a Business Day, the due date thereof (except as otherwise pro-
vided in the definition of Interest Period) shall be extended to the next
Business Day and (except with respect to payments in respect of the
Commitment Fee) interest shall be payable at the applicable rate specified
herein during such extension. If any payment is made with respect to any
Eurodollar Advance or Competitive Bid Advance prior to the last day of the
applicable Interest Period, the Borrower shall indemnify each Lender in ac-
cordance with Section 2.14.
IV. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Agent and each Lender:
A. Subsidiaries.
The Borrower has only the Subsidiaries set forth on Schedule
4.1. The shares of each corporate Subsidiary are duly authorized, validly
issued, fully paid and nonassessable and are owned free and clear of any
Liens. The interest of the Borrower in each non-corporate Subsidiary is
owned free and clear of any Liens.
B. Existence and Power; Declaration of Trust.
(a) Each of the Borrower and its Subsidiaries is duly organized
or formed and validly existing in good standing under the laws of the
jurisdiction of its formation, has all requisite power and authority to own
its Property and to carry on its business as now conducted, and each is in
good standing and authorized to do business in each jurisdiction in which the
nature of the business conducted therein or the Property owned therein make
such qualification necessary, except where such failure to qualify could not
reasonably be expected to have a Material Adverse Effect.
(b) The Declaration of Trust is in full force and effect in
accordance with the terms thereof. As of the date hereof, there have been no
amendments to the Declaration of Trust.
C. Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents and to make the
borrowings contemplated thereby, to execute, deliver and carry out the terms
of the Notes and to incur the obligations provided for herein and therein,
all of which have been duly authorized by all proper and necessary action and
are in full compliance with the Declaration of Trust.
D. Binding Agreement.
(a) The Loan Documents constitute the valid and legally binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally.
(b) No provision of any applicable statute, law (including,
without limitation, any applicable usury or similar law), rule or regulation
of any Governmental Body will prevent the execution, delivery or performance
of, or affect the validity of, the Loan Documents.
E. Litigation.
(a) There are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority (whether or not purportedly
on behalf of the Borrower or any Subsidiary) pending or, to the knowledge of
the Borrower, threatened against the Borrower or any Subsidiary or any of
their respective Properties or rights, which (i) if adversely determined,
could reasonably be expected to have a Material Adverse Effect, (ii) call
into question the validity or enforceability of any of the Loan Documents, or
(iii) could reasonably be expected to result in the rescission, termination
or cancellation of any of the following (to the extent the same is material):
any franchise, right, license, permit or similar authorization held by the
Borrower or any Subsidiary.
(b) Schedule 4.5 sets forth all actions, suits or proceedings
at law or in equity or by or before any Governmental Authority (whether or
not purportedly on behalf of the Borrower or any Subsidiary) pending or, to
the knowledge of the Borrower, threatened against the Borrower, any
Subsidiary or any of their respective Properties or rights, which, if
adversely determined, could have a Material Adverse Effect.
F. Required Consents.
No consent, authorization or approval of, filing with, notice
to, or exemption by, stockholders, any Governmental Authority or any other
Person not obtained is required to authorize, or is required in connection
with the execution, delivery and performance of the Loan Documents or is
required as a condition to the validity or enforceability of the Loan
Documents.
G. No Conflicting Agreements.
Neither the Borrower nor any Subsidiary is in default under any
mortgage, indenture, contract or agreement to which it is a party or by which
it or any of its Property is bound, the effect of which default could
reasonably be expected to have a Material Adverse Effect. The execution, de-
livery or carrying out of the terms of the Loan Documents will not constitute
a default under, or result in the creation or imposition of, or obligation to
create, any Lien upon any Property of the Borrower or any Subsidiary pursuant
to the terms of any such mortgage, indenture, contract or agreement.
H. Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect. The Borrower and each Subsidiary is complying in
all material respects with all statutes, regulations, rules and orders
applicable to Borrower or such Subsidiary of all Governmental Authorities,
including, without limitation, Environmental Laws and ERISA, a violation of
which could reasonably be expected to have a Material Adverse Effect.
I. Taxes.
Each of the Borrower and its Subsidiaries has filed or caused to
be filed all tax returns required to be filed and has paid, or has filed
appropriate extensions and has made adequate provision for the payment of,
all taxes shown to be due and payable on said returns or in any assessments
made against it (other than those being contested as required under Section
7.4) which would be material to the Borrower or any Subsidiary, and no tax
Liens have been filed with respect thereto. The charges, accruals and re-
serves on the books of the Borrower and each Subsidiary with respect to all
federal, state, local and other taxes are, to the best knowledge of the
Borrower, adequate for the payment of all such taxes, and the Borrower knows
of no unpaid assessment which is due and payable against it or any Subsidiary
or any claims being asserted which could reasonably be expected to have a
Material Adverse Effect The Federal income tax returns of the Borrower and
each of its Subsidiaries consolidated in such returns have been examined by
and settled with the Internal Revenue Service, or, the statute of limitations
with respect thereto have run, for all years through July 31, 1989.
J. Governmental Regulations.
Neither the Borrower nor any Subsidiary is subject to regulation
under the Public Utility Holding Company Act of 1935, as amended, the Federal
Power Act or the Investment Company Act of 1940, as amended, and neither the
Borrower nor any Subsidiary is subject to any statute or regulation which
prohibits or restricts the incurrence of Indebtedness under the Loan
Documents, including, without limitation, statutes or regulations relative to
common or contract carriers or to the sale of electricity, gas, steam, water,
telephone, telegraph or other public utility services.
K. Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Subsidiary is engaged principally,
or as one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying any Margin Stock. No part of the
proceeds of the Loans will be used, directly or indirectly, for a purpose
which violates any law, rule or regulation of any Governmental Authority,
including, without limitation, the provisions of Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System, as amended. No part of
the proceeds of the Loans will be used, directly or indirectly, to purchase
or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock.
L. Plans; Multiemployer Plans.
Each of the Borrower and its ERISA Affiliates maintains or makes
contributions only to the Plans and Multiemployer Plans listed on Schedule
4.12. Each Plan, and, to the best knowledge of the Borrower, each
Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other applicable Federal or state law,
and no event or condition is occurring or exists concerning which the
Borrower would be under an obligation to furnish a report to the Agent and
each Lender as required by Section 7.2(d). As of December 31, 1992, each
Plan was "fully funded", which for purposes of this Section means that the
fair market value of the assets of such Plan is not less than the present
value of the accrued benefits of all participants in the Plan, computed on a
plan termination basis. To the best knowledge of the Borrower, no Plan has
ceased being fully funded.
M. Financial Statements.
The Borrower has heretofore delivered to the Agent and the
Lenders copies of the (i) audited Consolidated and Consolidating Balance
Sheet of the Borrower as of July 31, 1995, and the related Consolidated and
Consolidating Statements of Operations, Stockholders' Equity and Cash Flows
for the fiscal years of the Borrower then ended and (ii) the unaudited
Consolidated and Consolidating Balance Sheets of the Borrower as of October
31, 1995, January 31, 1996 and April 30, 1996 and the related Consolidated
and Consolidating Statements of Operations, Stockholders' Equity and Cash
Flows for the fiscal quarters then ended (with the related notes and
schedules, the "Financial Statements"). The Financial Statements fairly pre-
sent the Consolidated and Consolidating financial condition and results of
the operations of the Borrower and its Subsidiaries as of the dates and for
the periods indicated therein (subject, in the case of such unaudited
statements, to normal year-end adjustments) and have been prepared in
conformity with GAAP. Except as reflected in the Financial Statements or in
the notes thereto, neither the Borrower nor any Subsidiary has any obligation
or liability of any kind (whether fixed, accrued, contingent, unmatured or
otherwise) which, in accordance with GAAP, should have been shown on the
Financial Statements and was not. Since the date of the Financial
Statements, the Borrower and each Subsidiary has conducted its business only
in the ordinary course and there has been no Material Adverse Change.
N. Property.
Each of the Borrower and its Subsidiaries has good and
marketable title to all of its Property, title to which is material to the
Borrower or such Subsidiary, subject to no Liens, except Permitted Liens.
O. Franchises, Intellectual Property, Etc.
Each of the Borrower and its Subsidiaries possesses or has the
right to use all franchises, Intellectual Property, licenses and other rights
as are material and necessary for the conduct of its business, and with
respect to which it is in compliance, with no known conflict with the valid
rights of others which could reasonably be expected to have a Material
Adverse Effect. No event has occurred which permits or, to the best
knowledge of the Borrower, after notice or the lapse of time or both, or any
other condition, could reasonably be expected to permit, the revocation or
termination of any such franchise, Intellectual Property, license or other
right and which revocation or termination could reasonably be expected to
have a Material Adverse Effect.
P. Environmental Matters.
(a) The Borrower and each Subsidiary is in compliance in all
material respects with the requirements of all applicable Environmental Laws.
(b) No Hazardous Substances have been (i) generated or
manufactured on, transported to or from, treated at, stored at or discharged
from any Real Property in violation of any Environmental Laws; (ii)
discharged into subsurface waters under any Real Property in violation of any
Environmental Laws; or (iii) discharged from any Real Property on or into
property or waters (including subsurface waters) adjacent to any Real
Property in violation of any Environmental Laws, which such violation, in the
case of either (i), (ii) or (iii) could have, either individually or in the
aggregate, a Material Adverse Effect.
(c) Neither the Borrower nor any Subsidiary (i) has received
notice (written or oral) or otherwise learned of any claim, demand, suit,
action, proceeding, event, condition, report, directive, lien, violation,
non-compliance or investigation indicating or concerning any potential or
actual liability (including, without limitation, potential liability for
enforcement, investigatory costs, cleanup costs, government response costs,
removal costs, remedial costs, natural resources damages, property damages,
personal injuries or penalties) arising in connection with: (x) any
non-compliance with or violation of the requirements of any applicable Envi-
ronmental Laws, or (y) the presence of any Hazardous Substance on any Real
Property (or any Real Property previously owned by the Borrower or any
Subsidiary) or the release or threatened release of any Hazardous Substance
into the environment which could have, either individually or in the
aggregate, a Material Adverse Effect, (ii) has any threatened or actual li-
ability in connection with the presence of any Hazardous Substance on any
Real Property (or any Real Property previously owned by the Borrower or any
Subsidiary) or the release or threatened release of any Hazardous Substance
into the environment which could have, either individually or in the ag-
gregate, a Material Adverse Effect, (iii) has received notice of any federal
or state investigation evaluating whether any remedial action is needed to
respond to the presence of any Hazardous Substance on any Real Property (or
any Real Property previously owned by the Borrower or any Subsidiary) or a
release or threatened release of any Hazardous Substance into the environment
for which the Borrower or any Subsidiary is or may be liable the results of
which could have, either individually or in the aggregate, a Material Adverse
Effect, or (iv) has received notice that the Borrower or any Subsidiary is or
may be liable to any Person under any Environmental Law which liability could
have, either individually or in the aggregate, a Material Adverse Effect.
(d) To the best of the Borrower's knowledge, no Real Property
is located in an area identified by the Secretary of Housing and Urban
Development as an area having special flood hazards.
Q. Labor Relations.
Neither the Borrower nor any Subsidiary is a party to any
collective bargaining agreement, other than the collective bargaining
agreement covering fewer than 10 employees at the Roosevelt Mall Shopping
Center in Philadelphia, Pennsylvania, and, to the best knowledge of the
Borrower, no petition has been filed or proceedings instituted by any
employee or group of employees with any labor relations board seeking rec-
ognition of a bargaining representative with respect to the Borrower or such
Subsidiary. There are no material controversies pending between the Borrower
or any Subsidiary and any of their respective employees, which could
reasonably be expected to have a Material Adverse Effect.
R. Burdensome Obligations.
Neither the Borrower nor any Subsidiary is a party to or bound
by any franchise, agreement, deed, lease or other instrument, or subject to
any corporate restriction which, in the opinion of the management of the
Borrower or such Subsidiary, is so unusual or burdensome, in the context of
its business, as in the foreseeable future might materially and adversely
affect or impair the revenue or cash flow of the Borrower or such Subsidiary
or the ability of the Borrower or such Subsidiary to perform its obligations
under the Loan Documents. The Borrower does not presently anticipate that
future expenditures by the Borrower or any Subsidiary needed to meet the
provisions of federal or state statutes, orders, rules or regulations will be
so burdensome as to result in a Material Adverse Effect.
S. REIT Status.
(a) The Borrower (i) has made an election pursuant to Section
856 of the Code to qualify as a REIT, (ii) has satisfied and continues to
satisfy all of the requirements under SectionSection 856-859 of the Code and
the regulations and rulings issued thereunder which must be satisfied for the
Borrower to maintain its status as a REIT, and (iii) is in full compliance
with all Code sections applicable to REITs generally and the regulations and
rulings issued thereunder.
(b) The Borrower is in compliance with all REIT Guidelines.
T. No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary in connection with the transactions contemplated hereby, contains
or will contain a mis statement of material fact, or, to the best knowledge
of the Borrower, omits or will omit to state a material fact required to be
stated in order to make the statements herein or therein contained not
misleading in the light of the circumstances under which made.
V. CONDITIONS TO FIRST LOANS
In addition to the conditions precedent set forth in Section 6,
the obligation of each Lender to make its first Loan shall be subject to the
fulfillment of the following conditions precedent:
A. Evidence of Action.
(a) The Agent shall have received a certificate, dated the
first Borrowing Date, of the Secretary or Assistant Secretary of the Borrower
(i) attaching a true and complete copy of the resolutions of its Trustees and
of all documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Agent) taken by it to authorize the Loan
Documents and the transactions contemplated thereby, (ii) attaching a true
and complete copy of its Declaration of Trust, (iii) setting forth the
incumbency of its officer or officers who may sign the Loan Documents,
including therein a signature specimen of such officer or officers, and (iv)
attaching a certificate of said Secretary or Assistant Secretary to the ef-
fect that the Declaration of Trust is a true and complete copy thereof, is in
full force and effect and has not been amended or modified.
(b) The Agent shall have received certificates of good standing
from the Secretaries of State for the Commonwealth of Massachusetts, and each
other jurisdiction in which the Borrower is qualified to do business,
provided that such Secretaries issue such certificates with respect to the
Borrower.
B. This Agreement.
The Agent shall have received counterparts of this Agreement
signed by each of the parties hereto (or receipt by the Agent from a party
hereto of a facsimile signature page signed by such party which shall have
agreed to promptly provide the Agent with originally executed counterparts
hereof).
C. Notes.
The Agent shall have received the Notes, duly executed by an
Authorized Signatory of the Borrower.
D. Litigation.
There shall be no injunction, writ, preliminary restraining
order or other order of any nature issued by any Governmental Authority in
any respect affecting the transactions provided for herein and no action or
proceeding by or before any Governmental Authority shall have been commenced
and be pending or, to the knowledge of the Borrower, threatened, seeking to
prevent or delay the transactions contemplated by the Loan Documents or chal-
lenging any other terms and provisions hereof or thereof or seeking any
damages in connection therewith and the Agent shall have received a cer-
tificate of an Authorized Signatory of the Borrower to the foregoing effects.
E. Opinion of Counsel to the Borrower.
The Agent shall have received an opinion of (i) Hofheimer,
Gartlir & Gross, outside counsel to the Borrower, and (ii) Steven F. Siegel,
in-house counsel to the Borrower, each addressed to the Agent, the Lenders
and Special Counsel, and each dated the first Borrowing Date, in the form of
Exhibit I.
F. Opinion of Special Counsel.
The Agent shall have received an opinion of Special Counsel,
addressed to the Agent and the Lenders and dated the first Borrowing Date and
substantially in the form of Exhibit J.
G. Fees.
The Commitment Fee and all fees payable to the Agent shall have
been paid.
H. Fees and Expenses of Special Counsel.
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been
paid.
I. Termination of Existing Loan Agreement.
On the Effective Date, all loans outstanding under the Existing
Loan Agreement, together with all interest, fees, breakage costs and other
amounts outstanding thereunder, shall have been paid to the lenders
thereunder in full and the obligations of such lenders under the Existing
Loan Agreement shall have been terminated.
VI. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Revolving Credit Loan or
convert its Revolving Credit Loans to Term Loans is subject to the satisfac-
tion of the following conditions precedent as of the date of such Loan:
A. Compliance.
On each Borrowing Date and after giving effect to the Loans to
be made or created (a) the Borrower shall be in compliance with all of the
terms, covenants and conditions thereof, (b) there shall exist no Default or
Event of Default, (c) the representations and warranties contained in the
Loan Documents shall be true and correct with the same effect as though such
representations and warranties had been made on such Borrowing Date and (d)
the aggregate outstanding principal balance of the Loans will not exceed the
Aggregate Commitments. Each borrowing by the Borrower shall constitute a
certification by the Borrower as of the date of such borrowing that each of
the foregoing matters is true and correct in all respects.
B. Loan Closings.
All documents required by the provisions of the Loan Documents
to be executed or delivered to the Agent on or before the applicable
Borrowing Date shall have been executed and shall have been delivered at the
office of the Agent set forth in Section 11.2 on or before such Borrowing
Date.
C. Borrowing Request; Term Loan Conversion Notice.
With respect to each borrowing of a Revolving Credit Loan, the
Agent shall have received a Conventional Borrowing Request or a Competitive
Rate Borrowing Request, as the case may be, duly executed by an Authorized
Signatory of the Borrower. With respect to the conversion of Revolving
Credit Loans to Term Loans pursuant to Section 2.2, the Agent shall have
timely received a Term Loan Conversion Notice from the Borrower.
D. Documentation and Proceedings.
All Trust matters and legal proceedings and all documents and
papers in connection with the transactions contemplated by the Loan Documents
shall be reasonably satisfactory in form and substance to the Agent and the
Agent shall have received all information and copies of all documents which
the Agent or the Required Lenders may reasonably have requested in connection
therewith, such documents (where appropriate) to be certified by an
Authorized Signatory of the Borrower or proper Governmental Authorities.
E. Required Acts and Conditions.
All acts, conditions and things (including, without limitation,
the obtaining of any necessary regulatory approvals and the making of any
filings, recordings or registrations) required to be done, performed and to
have happened on or prior to such Borrowing Date and which are necessary for
the continued effectiveness of the Loan Documents, shall have been done and
performed and shall have happened in due compliance with all applicable laws.
F. Approval of Special Counsel.
All legal matters in connection with the making of each Loan
shall be reasonably satisfactory to Special Counsel.
G. Supplemental Opinions.
If reasonably requested by the Agent with respect to the ap-
plicable Borrowing Date, there shall have been delivered to the Agent
favorable supplementary opinions of counsel to the Borrower, addressed to the
Agent and the Lenders and dated such Borrowing Date, covering such matters
incident to the transactions contemplated herein as the Agent may reasonably
request.
H. Other Documents.
The Agent shall have received such other documents as the Agent
or the Lenders shall reasonably request.
VII. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender or the Agent, the Borrower shall:
A. Financial Statements.
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Agent and each Lender:
(a) As soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of its Consolidated
and Consolidating Balance Sheet[s] as at the end of such fiscal year,
together with the related Consolidated and Consolidating Statements of Opera-
tions, Stockholders' Equity and Cash Flows as of and through the end of such
fiscal year, setting forth in each case in comparative form the figures for
the preceding fiscal year. The Consolidated Balance Sheets and Consolidated
Statements of Operations, Stockholders' Equity and Cash Flows shall be au-
dited and certified without qualification by the Accountants, which cer-
tification shall (i) state that the examination by such Accountants in
connection with such Consolidated financial statements has been made in
accordance with generally accepted auditing standards and, accordingly,
includes the examination, on a test basis, of evidence supporting the amounts
and disclosures in such financial statements, and (ii) include the opinion of
such Accountants that such Consolidated financial statements present fairly,
in all material respects, the Consolidated financial position of the Borrower
and its Subsidiaries, as of the date of such financial statements, and the
Consolidated results of their operations and their cash flows for each of the
years identified therein in conformity with GAAP (subject to any change in
the requirements of GAAP).
(b) As soon as available, but in any event within 60 days
after the end of the first three fiscal quarters of the Borrower a copy of
the Consolidated and Consolidating balance sheet[s] of the Borrower as at the
end of each such quarterly period, together with the related Consolidated and
Consolidating Statements of Operations and Cash Flows for the elapsed portion
of the fiscal year through such date, setting forth in each case in
comparative form the figures for the corresponding periods of the preceding
fiscal year, certified by the Chief Financial Officer of the Borrower (or
such other officer acceptable to the Agent), as being complete and correct in
all material respects and as presenting fairly the Consolidated and
Consolidating financial condition and the Consolidated and Consolidating
results of operations of the Borrower and its Subsidiaries.
(c) Within 60 days after the end of each of the first
three fiscal quarters of the Borrower (120 days after the end of the last
fiscal quarter of the Borrower), a Compliance Certificate, certified by the
Chief Financial Officer of the Borrower (or such other officer as shall be
acceptable to the Agent) setting forth in reasonable detail the computations
demonstrating the Borrower's compliance with the provisions of Sections
8.4(e), 8.14, 8.15, 8.16 and 8.17.
(d) Such other information as the Agent or any Lender may
reasonably request from time to time.
B. Certificates; Other Information.
Furnish to the Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any Subsidiary is declared or shall become due and payable prior
to its stated maturity, or called and not paid when due, or (ii) a default
shall have occurred under any note (other than the Notes) or the holder of
any such note, or other evidence of Indebtedness, certificate or security
evidencing any such Indebtedness or any obligee with respect to any other
Indebtedness of the Borrower or any Subsidiary has the right to declare any
such Indebtedness due and payable prior to its stated maturity, and, in the
case of either (i) or (ii), the Indebtedness that is the subject of (i) or
(ii) is, in the aggregate, $100,000 or more;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other document naming the Borrower or any
Subsidiary a party to any proceeding before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect or which calls
into question the validity or enforceability of any of the Loan Documents,
and include with such notice a copy of such citation, summons, subpoena,
order to show cause or other document, (ii) any lapse or other termination of
any material Intellectual Property, license, permit, franchise or other
authorization issued to the Borrower or any Subsidiary by any Person or
Governmental Authority, and (iii) any refusal by any Person or Governmental
Authority to renew or extend any such material Intellectual Property,
license, permit, franchise or other authorization, which lapse, termination,
refusal or dispute could reasonably be expected to have a Material Adverse
Effect;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material which the
Borrower or any Subsidiary may now or hereafter be required to file with or
deliver to any securities exchange or the Securities and Exchange Commission,
or any other Governmental Authority succeeding to the functions thereof and
(ii) material news releases by the Borrower and annual reports relating to
the Borrower or any Subsidiary (including any annual reports required
pursuant to the REIT Guidelines;
(d) As soon as possible, and in any event within ten days
after the Borrower knows or has reason to know that any of the events or
conditions enumerated below with respect to any Plan or Multiemployer Plan
has occurred or exists, a statement signed by the Chief Financial Officer of
the Borrower (or such other officer as shall be acceptable to the Agent),
setting forth details respecting such event or condition and the action, if
any, which the Borrower or an ERISA Affiliate proposes to take with respect
thereto; provided, however, that if such event or condition is required to be
reported or noticed to the PBGC, such statement, together with a copy of the
relevant report or notice to the PBGC, shall be furnished promptly and in any
event not later than ten days after it is reported or noticed to the PBGC:
(i) any reportable event, as defined in Section 4043(b) of
ERISA with respect to a Plan, as to which the PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty days of the occurrence of such event (provided that a failure to meet
the minimum funding standard of Section 412 of the Code or of 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 Code or Section
302(e) of ERISA or the disqualification of such Plan for purposes of Section
4043(b)(1) of ERISA, shall be a reportable event regardless of the issuance
of any waivers in accordance with Section 412(d) of the Code) and any request
for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by the Borrower or
any ERISA Affiliate to terminate any Plan;
(iii) the institution by the 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 the PBGC with respect to such Multiemployer Plan;
(iv) 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 of 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;
(v) 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 with thirty days from
its commencement;
(vi) the adoption of an amendment to any Plan pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA that would result in
the loss of the tax-exempt status of the trust of which such Plan is a part
or the Borrower or any ERISA Affiliate fails to timely provide security to
such Plan in accordance with the provisions of said Sections; and
(vii) any event or circumstance exists which may reasonably
be expected to constitute grounds for the incurrence of liability by the
Borrower or any ERISA Affiliate under Title IV of ERISA or under Sections
412(c)(11) or 412(n) of the Code with respect to any employee benefit plan;
(e) Promptly after the request of the Agent or any Lender
therefor, copies of each annual report filed pursuant to Section 104 of ERISA
with respect to each Plan (including, to the extent required by Section 104
of ERISA, the related financial and actuarial statements and opinions and
other supporting statements, certifications, schedules and information
referred to in Section 103 of ERISA) and each annual report filed with
respect to each Plan under Section 4065 of ERISA; provided, however, that in
the case of a Multiemployer Plan, such annual reports shall be furnished only
if they are available to the Borrower or any ERISA Affiliate;
(f) Prompt written notice of any order, notice, claim or
proceeding received by, or brought against, the Borrower or any Subsidiary,
or with respect to any of the Real Property, under any Environmental Law;
(g) Promptly after the scheduling of any Net Proceeds
Event, notice of the date on which said Net Proceeds Event is scheduled to
occur, together with a statement identifying the Property which is the
subject of said Net Proceeds Event and setting forth the gross proceeds in
connection with said Net Proceeds Event and the items and amounts deducted
from such gross proceeds in determining the Net Proceeds, and such other
information as the Agent or any Lender shall reasonably request with respect
to such Net Proceeds Event;
(h) Promptly after becoming aware of any change in any of
the information delivered pursuant to Section 7.2(g), notice of such change,
together with a statement describing in reasonable detail the changes and the
reasons therefor;
(i) In the event that the Agent shall have a reasonable
basis for believing that Hazardous Substances may be on, at, under or around
any Real Property in violation of any applicable Environmental Law which
individually or in the aggregate could have a Material Adverse Effect,
conduct and complete (at the Borrower's expense) all investigations, studies,
samplings and testings relative to such Hazardous Substances as the Agent may
reasonably request;
(j) Promptly after the same are received by the Borrower,
copies of all management letters and similar reports provided to the Borrower
by the Accountants;
(k) Prompt written notice if there shall occur and be con-
tinuing a Default or an Event of Default; and
(l) Such other information as the Agent or any Lender
shall reasonably request from time to time.
C. Legal Existence.
Maintain its status as a Massachusetts business trust in good
standing in the Commonwealth of Massachusetts and in each other jurisdiction
in which the failure so to do could reasonably be expected to have a Material
Adverse Effect.
D. Taxes.
Pay and discharge when due, and cause each Subsidiary so to do,
all Taxes, assessments and governmental charges, license fees and levies
upon, or with respect to the Borrower or such Subsidiary and all Taxes upon
the income, profits and Property of the Borrower and its Subsidiaries, which
if unpaid, could reasonably be expected to have a Material Adverse Effect or
become a Lien on the Property of the Borrower or such Subsidiary (other than
a Permitted Lien), unless and to the extent only that such Taxes, as-
sessments, charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and provided that the Borrower shall give the Agent prompt notice
of such contest and that such reserve or other appropriate provision as shall
be required by the Accountants in accordance with GAAP shall have been made
therefor.
E. Insurance.
(a) Maintain, and cause each Subsidiary to maintain, insurance
on its Property against such risks and in such amounts as is customarily
maintained by Persons engaged in similar businesses and owning similar Prop-
erties in the same general areas in which the Borrower or the relevant
Subsidiary operates, and file with the Agent within 10 days after request
therefor a detailed list of such insurance then in effect, stating the names
of the carriers thereof, the policy numbers, the insureds thereunder, the
amounts of insurance, dates of expiration thereof, and the Property and risks
covered thereby, together with a certificate of the Chief Financial Officer
(or such other officer as shall be acceptable to the Agent) of the Borrower
certifying that in the opinion of such officer such insurance is adequate in
nature and amount, complies with the obligations of the Borrower under this
Section, and is in full force and effect.
(b) Concurrent Insurance. Neither the Borrower nor any
Subsidiary shall take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained pur-
suant to subsection (a) above unless the Agent has approved the carrier and
the form and content of the insurance policy, including, without limitation,
naming the Agent as an additional insured and sole loss payee thereunder.
F. Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary to pay and
discharge, all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise which, if unpaid, might (i) have a
Material Adverse Effect, or (ii) become a Lien upon Property of the Borrower
or any Subsidiary other than a Permitted Lien, unless and to the extent only
that the validity of such Indebtedness, obligation or claim shall be con-
tested in good faith and by appropriate proceedings diligently conducted by
it, and provided that the Borrower shall give the Agent prompt notice of any
such contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
G. Condition of Property.
In all material respects, at all times, maintain, protect and
keep in good repair, working order and condition (ordinary wear and tear
excepted), and cause each Subsidiary so to do, all Property necessary to the
operation of the Borrower's or such Subsidiary's business.
H. Observance of Legal Requirements.
Observe and comply in all respects, and cause each Subsidiary so
to do, with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be ap-
plicable to it, including, without limitation, ERISA and all Environmental
Laws, a violation of which could reasonably be expected to have a Material
Adverse Effect, except such thereof as shall be contested in good faith and
by appropriate proceedings diligently conducted by it, provided that the Bor-
rower shall give the Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required by the Ac-
countants in accordance with GAAP shall have been made therefor.
I. Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities and permit representatives of the Agent and any Lender during
normal business hours and on reasonable prior notice to visit its offices, to
inspect any of its Property and to examine and make copies or abstracts from
any of its books and records as often as may reasonably be desired, and to
discuss the business, operations, prospects, licenses, Property and financial
condition of the Borrower or and its Subsidiaries with the officers thereof
and the Accountants.
J. Licenses, Intellectual Property.
Maintain, and cause each Subsidiary to maintain, in full force
and effect, all material licenses, franchises, Intellectual Property,
permits, licenses, authorizations and other rights as are necessary for the
conduct of its business.
K. REIT Status.
Maintain its status under the Code and the REIT Guidelines as a
REIT.
VIII. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender or the Agent, the Borrower shall not, directly or
indirectly:
A. Liens.
Create, incur, assume or suffer to exist any Lien upon any of
its Property, whether now owned or hereafter acquired, or permit any
Subsidiary so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent
or which are being contested in accordance with Section 7.4, provided that
enforcement of such Liens is stayed pending such contest, (ii) Liens in con-
nection with workers' compensation, unemployment insurance or other social
security obligations (but not ERISA), (iii) deposits or pledges to secure
bids, tenders, contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds and other obligations
of like nature arising in the ordinary course of business, (iv) zoning
ordinances, easements, rights of way, minor defects, irregularities, and
other similar restrictions affecting real Property which do not adversely af-
fect the value of such real Property or the financial condition of the
Borrower or such Subsidiary or impair its use for the operation of the
business of the Borrower or such Subsidiary, (v) statutory Liens arising by
operation of law such as mechanics', materialmen's, carriers', warehousemen's
liens incurred in the ordinary course of business which are not delinquent or
which are being contested in accordance with Section 7.4, provided that
enforcement of such Liens is stayed pending such contest, (vi) Liens arising
out of judgments or decrees which are being contested in accordance with
Section 7.4, provided that enforcement of such Liens is stayed pending such
contest, (vii) mortgages on Real Property of the Borrower, provided that the
existence of such mortgages, and the indebtedness secured thereby, does not
violate any other provision of this Agreement), (viii) Liens on other
Property of the Borrower not included in clauses (i) through (viii) of this
Section which do not in the aggregate exceed $2,000,000.
B. Merger, Consolidation and Certain Dispositions of Property.
(a) Consolidate with, be acquired by, or merge into or with any
Person, or sell, lease or otherwise dispose of all or substantially all of
its Property, or permit any Subsidiary so to do (other than a merger of a
Subsidiary into the Borrower where the Borrower is the surviving entity), or
(b) Sell, lease or dispose of any of its Property except in an
arm's length transaction in the ordinary course of its business for the fair
market value thereof.
C. Contingent Obligations.
Assume, guarantee, endorse, contingently agree to purchase or
perform, or otherwise become liable upon any Contingent Obligation or permit
any Subsidiary so to do, other than a guarantee by the Borrower of an
obligation of a Subsidiary of the Borrower (but only to the extent that if
the Borrower had entered into such obligation directly, the Borrower would
not be in violation of any of the terms of this Agreement), except the
Contingent Obligations of the Borrower or any Subsidiary existing on the date
hereof as set forth on Schedule 8.3.
D. Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or
advance to, or enter into any arrangement for the purpose of providing funds
or credit to, or make any other investment, whether by way of capital
contribution, time deposit or otherwise, in or with any Person, or permit any
Subsidiary so to do, (all of which are sometimes referred to herein as
"Investments") except:
(a) Investments in short-term domestic and eurodollar time
deposits with any Lender, or any other commercial bank, trust company or
national banking association incorporated under the laws of the United States
or any State thereof and having undivided capital, surplus and undivided
profits exceeding $500,000,000 and a long term debt rating of A or A2, as
determined, respectively, by S&P and Moody's;
(b) Investments in short-term direct obligations of the
United States of America or agencies thereof whose obligations are guaranteed
by the United States of America;
(c) Investments existing on the date hereof as set forth
on Schedule 8.4;
(d) normal business banking accounts and short-term
certificates of deposit and time deposits in, or issued by, federally insured
institutions in amounts not exceeding the limits of such insurance;
(e) Investments consisting of loans to employees of the
Borrower, provided that all such loans in the aggregate do not at any time
exceed $6,200,000 in the aggregate; and
(f) Investments permitted under Section 856-859 of the
Code.
E. Business and Name Changes.
Change the nature of the business of the Borrower as conducted
on the Effective Date, or alter or modify its name, structure or status.
F. Subsidiaries.
Create or acquire any other Subsidiary, or permit any Subsidiary
so to do, except in the ordinary course of business (as conducted on the
Effective Date).
G. Declaration of Trust.
Amend or otherwise modify its Declaration of Trust in any way
which would adversely affect the interests of the Agent and the Lenders under
any of the Loan Documents, or permit any Subsidiary to amend its
organizational documents in a manner which could have the same result.
H. ERISA.
Adopt or become obligated to contribute to any Plan or
Multiemployer Plan, or permit any ERISA Affiliate so to do, other than those
set forth on Schedule 4.12.
I. Prepayments of Indebtedness.
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness or permit any Subsidiary so to do except (i) Indebtedness under
the Loan Documents (unless such prepayment is restricted by the Loan
Documents), and (ii) Indebtedness secured by a mortgage on Real Property,
provided that (x) such prepayment does not otherwise result in a Default
under this Agreement and (y) the Borrower complies with the provisions of
Section 2.7(b) in connection with such prepayment, if applicable.
J. Sale and Leaseback.
Enter into any arrangement with any Person providing for the
leasing by it of Property which has been or is to be sold or transferred by
it to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property or its rental
obligations, or permit any Subsidiary so to do.
K. Fiscal Year.
Change its fiscal year from that in effect on the Effective
Date, or permit any Subsidiary so to do.
L. Transactions with Affiliates.
Become a party to any transaction with an Affiliate unless its
Board of Directors shall have determined that the terms and conditions
relating thereto are as favorable to it as those which would be obtainable at
the time in a comparable arms-length transaction with a Person other than an
Affiliate, or permit any Subsidiary so to do.
M. Issuance of Additional Capital Stock by Subsidiaries.
Permit any Subsidiary to issue any additional Stock or other
equity interest of such Subsidiary.
N. Interest Coverage Ratio.
Permit the Interest Coverage Ratio to be less than 2.0:1.0 at
any time.
O. Minimum Tangible Net Worth.
Permit the Tangible Net Worth of the Borrower and its
Subsidiaries on a Consolidated basis at any time to be less than
$550,000,000.
P. Maximum Total Indebtedness.
Permit either (i) the total indebtedness of the Borrower, as
determined in accordance with GAAP, at any time to be more than 50% of Total
Capital at such time, or (ii) the indebtedness of the Borrower secured by
mortgages on Real Property owned by the Borrower at any time to exceed 40% of
Total Capital at such time.
Q. Minimum Unencumbered Assets.
Permit the Undepreciated Real Estate Assets at any time to be
less than the total of all unsecured Indebtedness of the Borrower at such
time.
IX. DEFAULT
A. Events of Default.
The following shall each constitute an "Event of Default"
hereunder:
(a) The failure of the Borrower to pay any installment of
principal on any Note on the date when due and payable; or
(b) The failure of the Borrower to pay any installment of
interest or any other fees or expenses payable under any Loan Document within
five Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner
inconsistent with or in violation of Section 2.16; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Sections 7.3, 7.11 or 8; or
(e) The failure to observe or perform any other term,
covenant, or agreement contained in any Loan Document and such failure shall
have continued unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
(f) Any representation or warranty of the Borrower (or of
any officer of the Borrower on its behalf) made in any Loan Document to which
it is a party or in any certificate, report, opinion (other than an opinion
of counsel) or other document delivered or to be delivered pursuant thereto,
shall prove to have been incorrect or misleading (whether because of mis-
statement or omission) in any material respect when made; or
(g) Any obligation of the Borrower (other than its
obligations under the Notes) or any Subsidiary, whether as principal, guaran-
tor, surety or other obligor, for the payment of any Indebtedness shall (i)
become or shall be declared to be due and payable prior to the expressed
maturity thereof, or (ii) shall not be paid when due or within any grace
period for the payment thereof, or (iii) shall be subject, by the holder of
the obligation evidencing such Indebtedness, to acceleration prior to the
expressed maturity thereof, and the sum of all such Indebtedness which is the
subject of clauses (i) - (iii) inclusive exceeds $4,000,000;
(h) The Borrower or any Subsidiary shall be in default
under any other material agreement and the applicable grace period or cure
period, if any, with respect thereto shall have expired; or
(i) The Borrower or any Subsidiary shall (i) suspend or
discontinue its business, (ii) make an assignment for the benefit of
creditors, (iii) generally not be paying its debts as such debts become due,
(iv) admit in writing its inability to pay its debts as they become due, (v)
file a voluntary petition in bankruptcy, (vi) become insolvent (however such
insolvency shall be evidenced), (vii) file any petition or answer seeking for
itself any reorganization, arrangement, composition, readjustment of debt,
liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, (viii) petition or apply to
any tribunal for any receiver, custodian or any trustee for any substantial
part of its Property, (ix) be the subject of any such proceeding filed
against it which remains undismissed for a period of 60 days, (x) file any
answer admitting or not contesting the material allegations of any such
petition filed against it or any order, judgment or decree approving such
petition in any such proceeding, (xi) seek, approve, consent to, or acquiesce
in any such proceeding, or in the appointment of any trustee, receiver,
custodian, liquidator, or fiscal agent for it, or any substantial part of its
Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains in effect for 60
days, (xii) take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dissolution of the Borrower or
such Subsidiary; or
(j) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any Subsidiary bankrupt or insol-
vent, (ii) approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of the
Borrower or any Subsidiary under the United States bankruptcy laws or any
other applicable Federal or state law, (iii) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Borrower or any Subsidiary or of any substantial part of the
Property thereof, (iv) ordering the winding up or liquidation of the affairs
of the Borrower or any Subsidiary, and any such decree or order continues un-
stayed and in effect for a period of 60 days; or
(k) Judgments or decrees against the Borrower or any
Subsidiary aggregating in excess of $500,000 shall remain unpaid, unstayed on
appeal, undischarged, unbonded or undismissed for a period of 30 days; or
(l) Any Loan Document shall cease, for any reason, to be
in full force and effect, or the Borrower shall so assert in writing or shall
disavow any of its obligations thereunder; or
(m) An event or condition specified in Section 7.2(d)
shall occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Borrower shall be reasonably likely to incur a liability to a
Plan, a Multiemployer Plan, the PBGC, or any combination thereof which would
constitute, in the reasonable opinion of the Required Lenders, a Material
Adverse Effect; or
(n) There shall occur a Material Adverse Change; or
(o) There shall occur a Change in Control.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified in clause (i) or (j) above, the Aggregate Commitments shall
immediately and automatically terminate and the Loans, all accrued and unpaid
interest thereon, and all other amounts owing under the Loan Documents shall
immediately become due and payable, and the Agent may, and upon the direction
of the Required Lenders shall, exercise any and all remedies and other rights
provided in the Loan Documents, and (b) if such event is any other Event of
Default, any or all of the following actions may be taken: (i) with the con-
sent of the Required Lenders, the Agent may, and upon the direction of the
Required Lenders shall, by notice to the Borrower, declare the Aggregate Com-
mitments to be terminated forthwith, whereupon the Aggregate Commitments
shall immediately terminate, and (ii) with the consent of the Required
Lenders, the Agent may, and upon the direction of the Required Lenders shall,
by notice of default to the Borrower, declare the Loans, all accrued and
unpaid interest thereon and all other amounts owing under the Loan Documents
to be due and payable forthwith, whereupon the same shall immediately become
due and payable, and the Agent may, and upon the direction of the Required
Lenders shall, exercise any and all remedies and other rights provided pursu-
ant to the Loan Documents. Except as otherwise provided in this Section,
presentment, demand, protest and all other notices of any kind are hereby ex-
pressly waived. The Borrower hereby further expressly waives and covenants
not to assert any appraisement, valuation, stay, extension, redemption or
similar laws, now or at any time hereafter in force which might delay,
prevent or otherwise impede the performance or enforcement of any Loan Docu-
ment.
In the event that the Aggregate Commitments shall have been
terminated or the Notes shall have been declared due and payable pursuant to
the provisions of this Section, any funds received by the Agent and the
Lenders from or on behalf of the Borrower shall be applied by the Agent and
the Lenders in liquidation of the Loans and the obligations of the Borrower
under the Loan Documents in the following manner and order: (i) first, to the
payment of interest on and then the principal portion of any Loans which the
Agent may have advanced on behalf of any Lender for which the Agent has not
then been reimbursed by such Lender or the Borrower; (ii) second, to the
payment of any fees or expenses due the Agent from the Borrower, (iii) third,
to reimburse the Agent and the Lenders for any expenses (to the extent not
paid pursuant to clause (ii) due from the Borrower pursuant to the provisions
of Section 11.5; (iv) fourth, to the payment of accrued Commitment Fees, and
all other fees, expenses and amounts due under the Loan Documents (other than
principal and interest on the Notes); (v) fifth, to the payment of interest
due on the Notes; (vi) sixth, to the payment of principal outstanding on the
Notes; and (vii) seventh, to the payment of any other amounts owing to the
Agent and the Lenders under any Loan Document.
X. THE AGENT
A. Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Agent of such Lender under the Loan Documents and each such Lender hereby
irrevocably authorizes BNY, as the Agent for such Lender, to take such action
on its behalf under the provisions of the Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in any Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the
Loan Documents or otherwise exist against the Agent.
B. Delegation of Duties.
The Agent may execute any of its duties under the Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to rely upon
the advice of counsel concerning all matters pertaining to such duties.
C. Exculpatory Provisions.
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except for its own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by the
Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, the Loan Documents
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any of the Loan Documents or for any failure of the Borrower
or any other Person to perform its obligations thereunder. The Agent shall
not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, the Loan Documents, or to inspect the properties, books or
records of the Borrower. The Agent shall not be under any liability or re-
sponsibility whatsoever, as Agent, to the Borrower or any other Person as a
consequence of any failure or delay in performance, or any breach, by any
Lender of any of its obligations under any of the Loan Documents.
D. Reliance by Agent.
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent may treat
each Lender, or the Person designated in the last notice filed with it under
this Section, as the holder of all of the interests of such Lender in its
Loans and in its Note until written notice of transfer, signed by such Lender
(or the Person designated in the last notice filed with the Agent) and by the
Person designated in such written notice of transfer, in form and substance
satisfactory to the Agent, shall have been filed with the Agent. The Agent
shall not be under any duty to examine or pass upon the validity,
effectiveness or genuineness of the Loan Documents or any instrument,
document or communication furnished pursuant thereto or in connection there-
with, and the Agent shall be entitled to assume that the same are valid, ef-
fective and genuine, have been signed or sent by the proper parties and are
what they purport to be. The Agent shall be fully justified in failing or
refusing to take any action under the Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems ap-
propriate. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance with a request
or direction of the Required Lenders, and such request or direction and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
E. Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agent has received
written notice thereof from a Lender or the Borrower. In the event that the
Agent receives such a notice, the Agent shall promptly give notice thereof to
the Lenders. The Agent shall take such action with respect to such Default
or Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem to be in the best interests of the Lenders.
F. Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Agent nor
any of its respective officers, directors, employees, agents, attorneys-
in-fact or affiliates has made any representations or warranties to it and
that no act by the Agent hereinafter, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Agent to any Lender. Each Lender represents to the Agent that it has, in-
dependently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made
its own evaluation of and investigation into the business, operations,
Property, financial and other condition and creditworthiness of the Borrower
and made its own decision to enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action under any Loan
Document, and to make such investigation as it deems necessary to inform
itself as to the business, operations, Property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, Property, financial and other condition or creditwor-
thiness of the Borrower which may come into the possession of the Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
G. Indemnification.
Each Lender agrees to indemnify and reimburse the Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), pro rata according
to its Commitment, from and against any and all liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever including, without
limitation, any amounts paid to the Lenders (through the Agent) by the
Borrower pursuant to the terms of the Loan Documents, that are subsequently
rescinded or avoided, or must otherwise be restored or returned) which may at
any time (including, without limitation, at any time following the payment of
the Notes) be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of the Loan Documents or any other documents
contemplated by or referred to therein or the transactions contemplated
thereby or any action taken or omitted to be taken by the Agent under or in
connection with any of the foregoing; provided, however, that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting solely from the gross negligence or
willful misconduct of the Agent. The agreements in this Section shall
survive the payment of all amounts payable under the Loan Documents.
H. Agent in Its Individual Capacity.
BNY and its respective affiliates may make loans to, accept
deposits from, issue letters of credit for the account of, and generally en-
gage in any kind of business with, the Borrower as though BNY was not Agent
hereunder. With respect to the Commitment made or renewed by BNY and the
Note issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it was not the
Agent, and the terms "Lender" and "Lenders" shall in each case include BNY.
I. Successor Agent.
If at any time the Agent deems it advisable, in its sole
discretion, it may submit to each of the Lenders a written notice of its
resignation as Agent under this Agreement, such resignation to be effective
upon the earlier of (i) the written acceptance of the duties of the Agent
under the Loan Documents by a successor Agent and (ii) on the 30th day after
the date of such notice. Upon any such resignation, the Required Lenders
shall have the right to appoint from among the Lenders a successor Agent. If
no successor Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 30 days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which successor Agent shall
be a commercial bank organized under the laws of the United States of America
or any State thereof and having a combined capital and surplus of at least
$100,000,000. The Borrower shall have the right to approve any such
successor Agent, which approval shall not be unreasonably withheld or
delayed. Upon the acceptance of any appointment as Agent hereunder by a suc-
cessor Agent and the approval of such successor Agent by the Borrower in
accordance with the terms of this Section, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent's rights,
powers, privileges and duties as Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as
shall be necessary to effect such appointment. After any retiring Agent's
resignation hereunder as Agent, the provisions of the Loan Documents shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under the Loan Documents. If at any time hereunder there
shall not be a duly appointed and acting Agent, the Borrower agrees to make
each payment due under the Loan Documents directly to the Lenders entitled
thereto during such time.
XI. OTHER PROVISIONS.
A. Amendments and Waivers.
With the written consent of the Required Lenders, the Agent and
the Borrower may, from time to time, enter into written amendments,
supplements or modifications of the Loan Documents and, with the consent of
the Required Lenders, the Agent on behalf of the Lenders may execute and
deliver to any such parties a written instrument waiving or a consent to a
departure from, on such terms and conditions as the Agent may specify in such
instrument, any of the requirements of the Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such
amendment, supplement, modification, waiver or consent shall (i) change the
Commitments of any Lender or the Total Commitment Amount, (ii) extend the
Revolving Credit Termination Date (other than as provided for in Section
2.19); (iii) decrease the rate, or extend the time of payment, of interest
of, or change or forgive the principal amount of, or change the requirement
that payments and prepayments of principal of, and payments of interest on,
the Notes be made pro rata to the Lenders on the basis of the outstanding
principal amount of the Loans, (iv) amend the definition of "Required
Lender"), or (v) change the provisions of Sections 2.9, 2.12, 2.13, 2.14,
2.19, 2.20, 3.1 or 11.1 without the consent of all of the Lenders; and pro-
vided further that no such amendment, supplement, modification, waiver or
consent shall amend, modify, waive or consent to a departure from any provi-
sion of Section 10 or otherwise change any of the rights or obligations of
the Agent under the Loan Documents without the written consent of the Agent.
Any such amendment, supplement, modification, waiver or consent shall apply
equally to each of the Lenders and shall be binding upon the parties to the
applicable agreement, the Lenders, the Agent and all future holders of the
Notes. In the case of any waiver, the parties to the applicable agreement,
the Lenders and the Agent shall be restored to their former position and
rights under the Loan Documents, and any Default or Event of Default waived
shall not extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
B. Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made
when delivered by hand, or if sent by certified mail (return receipt
requested), when the return receipt is signed on behalf of the party to whom
such notice is given, or in the case of telecopier notice, when sent, or if
sent by overnight nationwide commercial courier, when deposited with said
courier, and in any case addressed as follows in the case of the Borrower or
the Agent, and at the Domestic Lending Office in the case of each Lender, or
to such other addresses as to which the Agent may be hereafter notified by
the respective parties hereto or any future holders of the Notes:
The Borrower:
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein,
Vice President
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
with a copy to:
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq.,
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
and an additional copy to:
Hofheimer, Gartlir, & Gross
633 Third Avenue
New York, New York 10017
Attention: Donald M. Weisberg, Esq.
Telephone: (212) 818-9000
Telecopy: (212) 661-3132
The Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Patricia Clancy
Agency Function Administrator
Telephone: (212) 635-4695
Telecopy: (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
One Wall Street
New York, New York 10286
Attention: Andrea Stuart,
Vice President
Telephone: (212) 635-4672
Telecopy: (212) 635-7904,
except that any notice, request or demand by the Borrower to or upon the
Agent or the Lenders pursuant to Sections 2.4, 2.5 or 2.8 shall not be
effective until received. Any party to a Loan Document may rely on
signatures of the parties thereto which are transmitted by telecopier or
other electronic means as fully as if originally signed.
C. No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege under any Loan Document preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges under the Loan Documents are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
D. Survival of Representations and Warranties.
All representations and warranties made under the Loan Documents
and in any document, certificate or statement delivered pursuant hereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents. After the termination of this Agreement in accordance with its
terms, without any extension thereof, the payment in full of all obligations
of the Borrower under the Loan Documents and the expiration of any
obligations of the Borrower hereunder which survive the termination of this
Agreement, the Borrower shall have no liability to the Lenders under such
representations and warranties, except that the foregoing shall not apply
with respect to any claim, action or proceeding made or brought under any
such representations or warranties prior to such termination or payment.
E. Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made (i) to pay or reimburse the
Agent for all its out-of-pocket costs and expenses reasonably incurred in
connection with the development, preparation and execution of, the Loan
Documents, the syndication of the loan transaction evidenced by this
Agreement (whether or not such syndication is completed) and any amendment,
supplement or modification hereto (whether or not executed), any documents
prepared in connection therewith and the consummation of the transactions
contemplated thereby, including, without limitation, the reasonable fees and
disbursements of Special Counsel, (ii) to pay or reimburse the Agent and the
Lenders for all of their respective costs and expenses, including, without
limitation, reasonable fees and disbursements of counsel, incurred in con-
nection with (x) any Default or Event of Default and any enforcement or
collection proceedings resulting therefrom or in connection with the ne-
gotiation of any restructuring or "work-out" (whether consummated or not) of
the obligations of the Borrower under any of the Loan Documents and (y) the
enforcement of this Section, (iii) to pay, indemnify, and hold each Lender
and the Agent harmless from and against, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under
or in respect of, the Loan Documents and any such other documents, and (iv)
to pay, indemnify and hold each Lender and the Agent and each of their
respective officers, directors, employees, affiliates, agents, controlling
persons and attorneys (as used in this Section, each an "indemnified person")
harmless from and against any and all other liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including, without
limitation, reasonable counsel fees and disbursements) with respect to any
claim, investigation or proceeding relating to this Agreement or the Loan
documents, including the enforcement and performance of the Loan Documents
and the use of the proceeds of the Loans (all the foregoing, collectively,
the "indemnified liabilities"), whether or not any such indemnified person is
a party to this Agreement or the Loan Documents, and to reimburse each
indemnified person for all legal and other expenses incurred in connection
with investigating or defending any indemnified liabilities, and, if and to
the extent that the foregoing indemnity may be unenforceable for any reason,
the Borrower agrees to make the maximum payment permitted or not prohibited
under applicable law; provided, however, that the Borrower shall have no
obligation hereunder to pay indemnified liabilities to the Agent or any
Lender arising from (A) the gross negligence or willful misconduct of the
Agent or such Lender or (B) disputes solely between the Lenders and which are
not related to any act or failure to act on the part of the Borrower or the
failure of the Borrower to perform any of its obligations under this
Agreement or the Loan Documents.
Notwithstanding the foregoing, the fees and expenses referred to in
clause (iv) of the preceding paragraph would not be payable by the Borrower
if (x) any such enforcement action brought by the Agent or a Lender were dis-
missed, with prejudice, on the pleadings or pursuant to a motion made by the
Borrower for summary judgment, and (y) if the Agent or such Lender, as the
case may be, appealed such dismissal, such dismissal were affirmed and the
time for any further appeals had expired. The obligations of the Borrower
under this Section shall survive the termination of the Agreement and the Ag-
gregate Commitments and the payment of the Notes and all other amounts pay-
able under the Loan Documents.
F. Lending Offices.
Each Lender shall have the right at any time and from time to
time to transfer its Loans to a different office, provided that such Lender
shall promptly notify the Agent and the Borrower of any such change of of-
fice. Such office shall thereupon become such Lender's Domestic Lending Of-
fice or Eurodollar Lending Office, as the case may be, provided, however,
that no such Lender shall be entitled to receive any greater amount under
Sections 2.11, 2.13 or 2.14 as a result of a transfer of any such Loans to a
different office of such Lender than it would be entitled to immediately
prior thereto unless such claim would have arisen even if such transfer had
not occurred.
G. Successors and Assigns.
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Agent, all future holders of the
Notes and their respective successors and assigns, except that the Borrower
may not assign, delegate or transfer any of its rights or obligations under
the Loan Documents without the prior written consent of the Agent and each
Lender.
(b) Each Lender shall have the right at any time, upon written
notice to the Agent of its intent to do so, to sell, assign, transfer or
negotiate all or any part of such Lender's rights and/or obligations under
the Loan Documents to one or more of its Affiliates, to one or more of the
other Lenders (or to Affiliates of such other Lenders) or, with the prior
written consent of the Borrower and the Agent (which consent, from either of
them, shall not be unreasonably withheld and shall not be required from the
Borrower upon the occurrence and during the continuance of an Event of
Default), to sell, assign, transfer or negotiate all or any part of such
Lender's rights and obligations under the Loan Documents to any other bank,
insurance company, pension fund, mutual fund or other financial institution,
provided that there shall be paid to the Agent by the assigning Lender a fee
(the "Assignment Fee") of $2,500. For each assignment, the parties to such
assignment shall execute and deliver to the Agent for its acceptance and
recording an Assignment and Acceptance Agreement. Upon such execution,
delivery, acceptance and recording by the Agent, from and after the effective
date specified in such Assignment and Acceptance Agreement, the assignee
thereunder shall be a party hereto and, to the extent provided in such As-
signment and Acceptance Agreement, the assignor Lender thereunder shall be
released from its obligations under the Loan Documents. The Borrower agrees
upon written request of the Agent and at the Borrower's expense to execute
and deliver (1) to such assignee, a Note, dated the effective date of such
Assignment and Acceptance Agreement, in an aggregate principal amount equal
to the Loans assigned to, and Commitments assumed by, such assignee and (2)
to such assignor Lender, a Note, dated the effective date of such Assignment
and Acceptance Agreement, in an aggregate principal amount equal to the bal-
ance of such assignor Lender's Loans and Commitment, if any, and each as-
signor Lender shall cancel and return to the Borrower its existing Note.
Upon any such sale, assignment or other transfer, the Commitment Amounts set
forth in Exhibit B shall be adjusted accordingly by the Agent and a new
Exhibit B shall be distributed by the Agent to the Borrower and each Lender.
(c) Each Lender may grant participations in all or any part of
its Loans, its Note and its Commitment to one or more banks, insurance com-
panies, financial institutions, pension funds or mutual funds, provided that
(i) such Lender's obligations under the Loan Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties to the Loan Documents for the performance of such obligations, (iii)
the Borrower, the Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents, (iv) no sub-participations shall be
permitted and (v) the voting rights of any holder of any participation shall
be limited to decisions that only do any of the following: (A) subject the
participant to any additional obligation, (B) reduce the principal of, or
interest on the Notes or any fees or other amounts payable hereunder, and (C)
postpone any date fixed for the payment of principal of, or interest on the
Notes or any fees or other amounts payable hereunder. The Borrower ac-
knowledges and agrees that any such participant shall for purposes of
Sections 2.10, 2.11, 2.12, 2.13, 2.14, 2.15 and 2.17 be deemed to be a
"Lender"; provided, however, the Borrower shall not, at any time, be
obligated to pay any participant in any interest of any Lender hereunder any
sum in excess of the sum which the Borrower would have been obligated to pay
to such Lender in respect of such interest had such Lender not sold such
participation.
(d) If any (i) assignment is made pursuant to subsection (b) or
(ii) any participation is granted pursuant to subsection (c), shall be made
to any Person that is organized under the laws of any jurisdiction other than
the United States of America or any State thereof, such Person shall furnish
such certificates, documents or other evidence to the Borrower and the Agent,
in the case of clause (i) and to the Borrower and the Lender which sold such
participation in the case of clause (ii), as shall be required by Section
2.11(b) to evidence such Person's exemption from U.S. withholding taxes with
respect to any payments under or pursuant to the Loan Documents because such
Person is eligible for the benefits of a tax treaty which provides for a zero
% rate of tax on any payments under the Loan Documents or because any such
payments to such Person are effectively connected with the conduct by such
Person of a trade or business in the United States.
(e) No Lender shall, as between and among the Borrower, the
Agent and such Lender, be relieved of any of its obligations under the Loan
Documents as a result of any sale, assignment, transfer or negotiation of, or
granting of participations in, all or any part of its Loans, its Commitment
or its Note, except that a Lender shall be relieved of its obligations to the
extent of any such sale, assignment, transfer, or negotiation of all or any
part of its Loans, its Commitment or its Note pursuant to subsection (b)
above.
(f) Notwithstanding anything to the contrary contained in this
Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
H. Counterparts.
Each Loan Document (other than the Notes) may be executed by one
or more of the parties thereto on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same document. It shall not be necessary in making proof of any Loan
Document to produce or account for more than one counterpart signed by the
party to be charged. A telecopied counterpart of any Loan Document or to any
document evidencing, and of any an amendment, modification, consent or waiver
to or of any Loan Document shall be deemed to be an originally executed
counterpart. A set of the copies of the Loan Documents signed by all the
parties thereto shall be deposited with each of the Borrower and the Agent.
Any party to a Loan Document may rely upon the signatures of any other party
thereto which are transmitted by telecopier or other electronic means to the
same extent as if originally signed.
I. Adjustments; Set-off.
(a) If any Lender (a "Benefited Lender") shall at any time
receive any payment of all or any part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involun-
tarily, by set-off, pursuant to events or proceedings of the nature referred
to in Section 9.1 (i) or (j), or otherwise) in a greater proportion than any
such payment to and collateral received by any other Lender in respect of
such other Lender's Loans, or interest thereon, such Benefited Lender shall
purchase for cash from each of the other Lenders such portion of each such
other Lender's Loans, and shall provide each of such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders,
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefited Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans may exercise all
rights of payment (including, without limitation, rights of set-off, to the
extent not prohibited by law) with respect to such portion as fully as if
such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the
acceleration of the obligations owing in connection with the Loan Documents,
or at any time upon the occurrence and during the continuance of an Event of
Default, under Section 9.1(a) or (b), each Lender shall have the right,
without prior notice to the Borrower, any such notice being expressly waived
by the Borrower to the extent not prohibited by applicable law, to set-off
and apply against any indebtedness, whether matured or unmatured, of the
Borrower to such Lender, any amount owing from such Lender to the Borrower,
at, or at any time after, the happening of any of the above-mentioned events.
To the extent not prohibited by applicable law, the aforesaid right of set-
off may be exercised by such Lender against the Borrower or against any
trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor
of the Borrower, or against anyone else claiming through or against the
Borrower or such trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receivers, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off
shall not have been exercised by such Lender prior to the making, filing or
issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or war-
rant. Each Lender agrees promptly to notify the Borrower and the Agent after
any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
J. Lenders' Representations.
Each Lender represents to the Agent that, in acquiring its Note,
it is acquiring the same for its own account for the purpose of investment
and not with a view to selling the same in connection with any distribution
thereof, provided that the disposition of each Lender's own Property shall at
all times be and remain within its control.
K. Indemnity.
The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and their respective affiliates, directors, officers, employees,
affiliates, agents, controlling persons and attorneys (each an "Indemnified
Person") from and against any loss, cost, liability, damage or expense (in-
cluding the reasonable fees and disbursements of counsel of such Indemnified
Person, including all local counsel hired by any such counsel) incurred by
such Indemnified Person in investigating, preparing for, defending against,
or providing evidence, producing documents or taking any other action in re-
spect of, any commenced or threatened litigation, administrative proceeding
or investigation under any federal securities or tax laws or any other
statute of any jurisdiction, or any regulation, or at common law or
otherwise, which is alleged to arise out of or is based upon (i) any untrue
statement of any material fact by the Borrower in any document or schedule
executed or filed with any Governmental Authority by or on behalf of the
Borrower; (ii) any omission to state any material fact required to be stated
in such document or schedule, or necessary to make the statements made
therein, in light of the circumstances under which made, not misleading; or
(iii) any acts, practices or omissions of the Borrower or its agents relating
to the use of the proceeds of any or all borrowings made by the Borrower
which are alleged to be in violation of Section 2.16, or in violation of any
federal securities or tax laws or of any other statute, regulation or other
law of any jurisdiction applicable thereto, whether such Indemnified Person
is a party thereto. The indemnity set forth herein shall be in addition to
any other obligations, liabilities or other indemnifications of the Borrower
to each Indemnified Person under the Loan Documents or at common law or
otherwise, and shall survive any termination of the Loan Documents, the
expiration of the Commitments and the payment of all indebtedness of the
Borrower under the Loan Documents, provided that the Borrower shall have no
obligation under this Section to an Indemnified Person with respect to any of
the foregoing to the extent found in a final judgment of a court having
jurisdiction to have resulted primarily out of the gross negligence or wilful
misconduct of such Indemnified Person or arising solely from claims between
one such Indemnified Person and another such Indemnified Person.
L. Governing Law.
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York, without regard to
principles of conflict of laws.
M. Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
N. Severability.
Every provision of the Loan Documents is intended to be sever-
able, and if any term or provision thereof shall be invalid, illegal or
unenforceable for any reason, the validity, legality and enforceability of
the remaining provisions thereof shall not be affected or impaired thereby,
and any invalidity, illegality or unenforceability in any jurisdiction shall
not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.
O. Integration.
All exhibits to a Loan Document shall be deemed to be a part
thereof. The Loan Documents embody the entire agreement and understanding
among the Borrower, the Agent and the Lenders with respect to the subject
matter thereof and supersede all prior agreements and understandings among
the Borrower, the Agent and the Lenders with respect to the subject matter
thereof.
P. Consent to Jurisdiction.
The Borrower hereby irrevocably submits to the jurisdiction of
any New York State or Federal court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents.
The Borrower hereby irrevocably waives, to the fullest extent permitted or
not prohibited by law, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding brought in
such a court and any claim that any such suit, action or proceeding brought
in such a court has been brought in an inconvenient forum. The Borrower
hereby agrees that a final judgment in any such suit, action or proceeding
brought in such a court, after all appropriate appeals, shall be conclusive
and binding upon it.
Q. Service of Process.
The Borrower hereby agrees that process may be served against it
in any suit, action or proceeding referred to in Section 11.16 by sending the
same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower. The Borrower hereby
agrees that any such service (i) shall be deemed in every respect effective
service of process upon it in any such suit, action, or proceeding, and (ii)
shall to the fullest extent enforceable by law, be taken and held to be valid
personal service upon and personal delivery to it.
R. No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of the Agent or any
Lender to serve process in any manner permitted by law or limit the right of
the Agent or any Lender to bring proceedings against the Borrower in the
courts of any jurisdiction or jurisdictions in which the Borrower may be
served.
S. WAIVER OF TRIAL BY JURY.
THE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE
BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE AGENT, OR
THE LENDERS, OR COUNSEL TO THE AGENT OR THE LENDERS, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT
OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THE BORROWER ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF
THIS SECTION.
T. Termination
After the termination of this agreement in accordance with its
terms, without any extension thereof, and the payment in full of all
obligations of the Borrower under the Loan Documents (including without
limitation, all principal, interest, Commitment Fees and other amounts
payable hereunder and under the Notes), the obligations of the Borrower
hereunder (other than those which are stated herein to survive any
termination of this Agreement) shall terminate, except that the foregoing
shall not apply with respect to any claim, action or proceeding made or
brought under any other provision of the Loan Documents prior to such
termination or payment. At the request of the Borrower, the Lender whose
obligations under the Notes have been fully paid shall promptly return to the
Borrower its Note or other evidence that such Lender has received full
payment of such obligations.
U. Limited Recourse Obligations
This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed and
delivered on behalf of the Borrower by the trustees or officers thereof in
their representative capacity under the Declaration of Trust, and not indi-
vidually, and bind only the trust estate of the Borrower, and no trustee,
officer, employee, agent or shareholder of the Borrower shall be bound or
held to any personal liability or responsibility in connection with the
agreements, obligations and undertakings of the Borrower hereunder, and any
person or entity dealing with the Borrower in connection therewith shall look
only to the trust estate for the payment of any claim or for the performance
of any agreement, obligation or undertaking thereunder. The Agent and each
Lender hereby acknowledge and agree that each agreement and other document
executed by the Borrower in accordance with or in respect of this transaction
shall be deemed and treated to include in all respects and for all purposes
the foregoing exculpatory provision.
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
NEW PLAN REALTY TRUST
By:/s/ Dean Bernstein
______________________________
Dean Bernstein
Vice President
THE BANK OF NEW YORK,
as Agent and a Lender
By:/s/ Andrea H. Stuart
_______________________________
Andrea H. Stuart
Vice President
FLEET NATIONAL BANK
as a Lender
By:/s/ Claudia Piper Pynchon
_________________________________
Claudia Piper Pynchon
Vice President
CORESTATES BANK NA
as a Lender
By:/s/ Mark A. Duffy
________________________________
Mark A. Duffy
Vice President