<Page>
EXHIBIT 10.1
REVOLVING CREDIT AGREEMENT
BY AND AMONG
NEW PLAN EXCEL REALTY TRUST, INC.,
THE LENDERS PARTY HERETO,
AND
FLEET NATIONAL BANK
AS ADMINISTRATIVE AGENT
DATED AS OF APRIL 26, 2002
FLEET SECURITIES, INC. AND BNY CAPITAL MARKETS, INC.
AS JOINT LEAD ARRANGERS
THE BANK OF NEW YORK AND BANK ONE, NA
AS CO-SYNDICATION AGENTS
WELLS FARGO BANK, NATIONAL ASSOCIATION AND BANK OF AMERICA, N.A.
AS CO-DOCUMENTATION AGENTS
AND
KEYBANK NATIONAL ASSOCIATION AND
CITICORP NORTH AMERICA, INC.
AS MANAGING AGENTS
<Page>
<Table>
1. DEFINITIONS.................................................................................1
1.1 Defined Terms......................................................................1
1.2 Other Definitional Provisions.....................................................23
2. AMOUNT AND TERMS OF LOANS..................................................................23
2.1 Revolving Credit Loans............................................................23
2.2 Notes.............................................................................26
2.3 Procedure for Revolving Credit Loan Borrowings Other than Competitive Advances....27
2.4 Competitive Advances..............................................................29
2.5 Letters of Credit.................................................................32
2.6 Repayment of Loans; Evidence of Debt..............................................36
2.7 Prepayments of the Loans..........................................................36
2.8 Conversions.......................................................................37
2.9 Interest Rate and Payment Dates...................................................38
2.10 Substituted Interest Rate.........................................................40
2.11 Taxes; Net Payments...............................................................40
2.12 Illegality........................................................................41
2.13 Increased Costs...................................................................41
2.14 Indemnification for Break Funding Losses..........................................42
2.15 Use of Proceeds...................................................................43
2.16 Capital Adequacy..................................................................43
2.17 Administrative Agent's Records....................................................44
2.18 Extension of Maturity Date........................................................45
2.19 Representative of Borrower........................................................45
3. FEES; PAYMENTS.............................................................................45
3.1 Facility Fee......................................................................45
3.2 Payments; Application of Payments.................................................46
4. REPRESENTATIONS AND WARRANTIES.............................................................47
4.1 Existence and Power...............................................................47
4.2 Authority.........................................................................47
4.3 Binding Agreement.................................................................47
4.4 Subsidiaries; DownREIT Partnerships...............................................48
4.5 Litigation........................................................................48
</Table>
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<Table>
4.6 Required Consents.................................................................48
4.7 No Conflicting Agreements.........................................................48
4.8 Compliance with Applicable Laws...................................................49
4.9 Taxes.............................................................................49
4.10 Governmental Regulations..........................................................49
4.11 Federal Reserve Regulations; Use of Loan Proceeds.................................49
4.12 Plans; Multiemployer Plans........................................................50
4.13 Financial Statements..............................................................50
4.14 Property..........................................................................50
4.15 Franchises, Intellectual Property, Etc............................................51
4.16 Environmental Matters.............................................................51
4.17 Labor Relations...................................................................52
4.18 [Intentionally Omitted.]..........................................................52
4.19 Solvency..........................................................................52
4.20 REIT Status.......................................................................53
4.21 Rent Roll and List of Unencumbered Assets.........................................53
4.22 Operation of Business.............................................................53
4.23 No Misrepresentation..............................................................53
5. CONDITIONS TO INITIAL LOANS................................................................53
5.1 Evidence of Action................................................................53
5.2 This Agreement....................................................................54
5.3 Notes.............................................................................54
5.4 Guaranty..........................................................................54
5.5 Litigation........................................................................54
5.6 Opinion of Counsel to the Borrower................................................55
5.7 Fees..............................................................................55
5.8 Fees and Expenses of Special Counsel..............................................55
6. CONDITIONS OF LENDING - ALL LOANS..........................................................55
6.1 Compliance........................................................................55
6.2 Loan Closings.....................................................................56
6.3 Requests..........................................................................56
6.4 Documentation and Proceedings.....................................................56
6.5 Required Acts and Conditions......................................................56
</Table>
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<Table>
6.6 Approval of Special Counsel.......................................................56
6.7 Supplemental Opinions.............................................................56
6.8 Other Documents...................................................................57
7. AFFIRMATIVE COVENANTS......................................................................57
7.1 Financial Statements..............................................................57
7.2 Certificates; Other Information...................................................58
7.3 Legal Existence...................................................................61
7.4 Taxes.............................................................................61
7.5 Insurance.........................................................................62
7.6 Payment of Indebtedness and Performance of Obligations............................62
7.7 Maintenance of Property; Environmental Investigations.............................62
7.8 Observance of Legal Requirements..................................................62
7.9 Inspection of Property; Books and Records; Discussions............................63
7.10 Licenses, Intellectual Property...................................................63
7.11 Additional Guarantors.............................................................63
7.12 REIT Status; Operation of Business................................................64
7.13 More Restrictive Agreements.......................................................64
7.14 Termination of Existing Credit Facilities.........................................65
8. NEGATIVE COVENANTS.........................................................................65
8.1 Liens.............................................................................65
8.2 Merger, Consolidation and Certain Dispositions of Property........................66
8.3 Investments, Loans, Etc...........................................................68
8.4 Business Changes..................................................................69
8.5 Amendments to Organizational Documents............................................69
8.6 [Intentionally Omitted.]..........................................................69
8.7 Sale and Leaseback................................................................70
8.8 Transactions with Affiliates......................................................70
8.9 Issuance of Additional Capital Stock by Subsidiary Guarantors.....................70
8.10 Hedging Agreements................................................................70
8.11 Restricted Payments...............................................................70
8.12 Unencumbered Assets Coverage Ratio................................................71
8.13 Fixed Charge Coverage Ratio.......................................................71
8.14 Minimum Tangible Net Worth........................................................71
</Table>
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<Table>
8.15 Maximum Total Indebtedness........................................................71
8.16 Indebtedness to Unencumbered Assets Ratio.........................................71
8.17 Maximum Book Value of Ancillary Assets............................................72
8.18 Development Activity..............................................................72
9. DEFAULT....................................................................................72
9.1 Events of Default.................................................................72
10. THE AGENT..................................................................................76
10.1 Appointment.......................................................................76
10.2 Delegation of Duties..............................................................76
10.3 Exculpatory Provisions............................................................76
10.4 Reliance by Administrative Agent..................................................77
10.5 Notice of Default.................................................................77
10.6 Non-Reliance on Administrative Agent and Other Lenders............................78
10.7 Indemnification...................................................................78
10.8 Administrative Agent in Its Individual Capacity...................................79
10.9 Successor Administrative Agent....................................................79
11. OTHER PROVISIONS...........................................................................80
11.1 Amendments and Waivers............................................................80
11.2 Notices...........................................................................81
11.3 No Waiver; Cumulative Remedies....................................................82
11.4 Survival of Representations and Warranties........................................82
11.5 Payment of Expenses and Taxes.....................................................82
11.6 Lending Offices...................................................................83
11.7 Successors and Assigns............................................................84
11.8 [Intentionally Omitted]...........................................................86
11.9 Counterparts......................................................................86
11.10 Adjustments; Set-off..............................................................86
11.11 Lenders' Representations..........................................................87
11.12 Indemnity.........................................................................87
11.13 Governing Law.....................................................................88
11.14 Headings Descriptive..............................................................88
11.15 Severability......................................................................88
11.16 Integration.......................................................................88
</Table>
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<Table>
11.17 Consent to Jurisdiction...........................................................88
11.18 Service of Process................................................................89
11.19 No Limitation on Service or Suit..................................................89
11.20 WAIVER OF TRIAL BY JURY...........................................................89
11.21 TERMINATION.......................................................................89
11.22 REPLACEMENT NOTES.................................................................90
</Table>
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LIST OF EXHIBITS AND SCHEDULES
EXHIBITS:
Exhibit A - Assignment and Assumption
Exhibit B - Borrowing Request
Exhibit C - Commitments and Domestic LIBOR Lending Offices
Exhibit D - Competitive Advance Note
Exhibit E - Competitive Bid
Exhibit F - Competitive Bid Request
Exhibit G - Compliance Certificate
Exhibit H - Guaranty
Exhibit I - Reserved
Exhibit J - Swing Loan Note
Exhibit K - Revolving Credit Note
Exhibit L - Letter of Credit Request
Exhibit M - Form of Notice of Conversion
SCHEDULES:
Schedule 4.4 - Subsidiaries (including Subsidiary Guarantors)
Schedule 4.5 - Litigation
Schedule 4.12 - Plans
Schedule 4.21 - List of Unencumbered Assets
<Page>
REVOLVING CREDIT AGREEMENT, dated as of April 26, 2002, by and among NEW
PLAN EXCEL REALTY TRUST, INC., a Maryland corporation (the "Borrower"), each
lender party hereto or which becomes a "Lender" pursuant to the provisions of
Section 11.7 (each a "Lender" and, collectively, the "Lenders"), and FLEET
NATIONAL BANK ("FNB"), as administrative agent (in such capacity, the
"Administrative Agent").
1. DEFINITIONS.
1.1 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:
"ABSOLUTE RATE BID": as defined in Section 2.4(b).
"ACCOUNTANTS": any of PricewaterhouseCoopers LLP; Deloitte & Touche LLP;
Ernst & Young LLP; KPMG LLP; or any successor to any of the foregoing; or such
other firm of certified public accountants selected by the Borrower and
satisfactory to the Administrative Agent.
"ADJUSTED CONSOLIDATED EBITDA": for any period, the sum of the Consolidated
EBITDA of Borrower and its Subsidiaries (less any straight-lining of rents
included therein) for such period less the Capital Expenditure Reserve.
"ADJUSTED CONSOLIDATED TOTAL ASSETS": on a consolidated basis for Borrower
and its Subsidiaries, Adjusted Consolidated Total Assets shall mean the sum
(without duplication) of the following:
(i) an amount equal to the sum of (x) the Adjusted
Consolidated EBITDA of Borrower for the four (4) fiscal quarters just ended
prior to the date of determination, divided by (y) 0.0975 (which is the
capitalization rate); plus
(ii) the book value of Land Assets, Redevelopment Assets, New
Construction Assets and Notes Receivable of Borrower and its Subsidiaries
(including, without limitation, all capitalized costs incurred in connection
therewith) on the last day of the fiscal quarter just ended; plus
(iii) to the extent not included pursuant to (ii) above,
Borrower's pro rata share of the book value of Land Assets, New Construction
Assets, Redevelopment Assets and Notes Receivable of Joint Ventures (including,
without limitation, all capitalized costs incurred in connection therewith) on
the last day of the fiscal quarter just ended; plus
(iv) the aggregate amount of the unpledged portion of (x) all
unrestricted cash and marketable securities of Borrower and its Subsidiaries
(including, without limitation, Investments described in Sections 8.3(a) through
8.3(f)) PLUS (y) all restricted cash held by any Person serving as a "qualified
intermediary" for purposes of an exchange pursuant to Section 1031 of the Code
on behalf of Borrower or any of its Subsidiaries.
<Page>
Adjusted Consolidated Total Assets shall be calculated on a pro forma basis
as if assets acquired during the relevant period were owned as of the beginning
of the relevant period, and all assets disposed of during the relevant period
were not owned during any portion of the relevant period. For purposes of
calculating the percentages set forth in Section 8.15, Adjusted Consolidated
Total Assets shall include an amount equal to the aggregate amount of the then
undrawn face amount of the Fleet Letter of Credit (as the same may be reduced
from time to time), provided, however, that upon the expiration, termination or
return of the Fleet Letter of Credit, an amount equal to the amount of the Fleet
Letter of Credit, shall no longer be included within the calculation of Adjusted
Consolidated Total Assets. To the extent that a New Construction Asset or
Redevelopment Asset becomes an Operating Property during the relevant period,
the Adjusted Consolidated EBITDA of such Operating Property during such period
and the following periods shall be annualized until such time as such Operating
Property has performed as an Operating Property for four (4) full fiscal
quarters.
"ADJUSTED NET OPERATING INCOME": for any period, the aggregate amount of
the Net Operating Income from each Unencumbered Asset during such period, less
the Capital Expense Reserve for such Unencumbered Asset during such period.
"ADVANCE": a Prime Rate Loan, a LIBOR Loan or a Competitive 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
Administrative Agent of its intent to do so in any instance in which it shall
have requested a LIBOR Loan on the Effective Date or pursuant to Section 2.3 or
2.8, or a Swing Loan pursuant to Section 2.1A, or shall have accepted one or
more offers of Competitive Advances under Section 2.4, an amount equal to the
principal amount of such LIBOR Loan, Swing Loan or Competitive Advance; (ii) a
LIBOR Loan, Swing Loan or Competitive 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 LIBOR Loan, Swing Loan or Competitive Advance;
or (iii) the Borrower shall prepay or repay all or any part of the principal
amount of a LIBOR Loan, Swing Loan or Competitive Advance prior to the last day
of the Interest Period applicable thereto (including, without limitation, any
mandatory prepayment or a prepayment resulting from acceleration or illegality),
an amount equal to the principal amount of such LIBOR Loan, Swing Loan or
Competitive 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 10% or more of the securities 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.
"AGREEMENT": this Revolving Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
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"AGREEMENT REGARDING FEES": that certain Agreement Regarding Fees dated of
even date herewith between FNB and the Borrower.
"ANCILLARY ASSETS": at any time (without duplication), (a) all Real
Property of the Borrower and its Subsidiaries which is (i) a mortgage, (ii) a
New Construction Asset, or (iii) any other Real Property other than an open air
shopping center (including single tenant retail properties) or a residential
apartment building or a residential apartment community (and appurtenant
amenities), and (b) all Investments of the Borrower and its Subsidiaries of the
type described in Section 8.3(h) and (q).
"APPLICABLE FACILITY FEE PERCENTAGE": at all times during which the
applicable Pricing Level set forth below is in effect, a rate per annum equal to
the following applicable percentage amount corresponding to such Pricing Level:
<Table>
<Caption>
Pricing Level Applicable Facility Fee Percentage
------------- ----------------------------------
Pricing Level I 0.125%
Pricing Level II 0.125%
Pricing Level III 0.20%
Pricing Level IV 0.20%
Pricing Level V 0.25%
</Table>
Changes in the Applicable Facility Fee Percentage resulting from a change
in a Pricing Level shall become effective as of the opening of business upon the
date of any changes in the Senior Debt Rating of the Borrower, as determined by
S&P or Moody's, as the case may be, which would affect the applicable Pricing
Level.
"APPLICABLE LENDING OFFICE": (i) in respect of any Lender, (A) in the case
of such Lender's Prime Rate Loans and Competitive Advances, its Domestic Lending
Office and (B) in the case of such Lender's LIBOR Loans, its LIBOR Lending
Office, and (ii) in respect of the Swing Loan Lender and the Issuing Lender, the
Domestic Lending Office of each thereof.
"APPLICABLE MARGIN": with respect to the unpaid principal balance of Prime
Rate Loans or LIBOR Loans, at all times during which the applicable Pricing
Level set forth below is in effect, and with respect to the participation fee
payable in respect of Letters of Credit pursuant to Section 2.5(e), the
respective percentage set forth below next to such Pricing Level:
<Table>
<Caption>
Libor Loans/
Pricing Level Letter of Credit Fee Prime Rate Loans
----------------- -------------------- ----------------
Pricing Level I 0.625% 0%
Pricing Level II 0.725% 0%
Pricing Level III 0.85% 0%
Pricing Level IV 1.00% 0%
Pricing Level V 1.25% 0.25%
</Table>
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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 be, which would affect the applicable Pricing Level.
"ASSIGNMENT AND ASSUMPTION AGREEMENT": an assignment and assumption
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 Notes
and Commitments, substantially in the form of EXHIBIT A, with such changes
thereto as shall be reasonably acceptable to the Administrative Agent.
"ASSIGNMENT FEE": as defined in Section 11.7(b).
"AUTHORIZED SIGNATORY": the chairman of the board, the chief executive
officer, the president, any executive vice president, the Chief Financial
Officer or any other duly authorized officer (acceptable to the Administrative
Agent) of the Borrower.
"AVAILABLE COMMITMENT AMOUNT": on any day, an amount equal to the Total
Commitment Amount at such time minus the total of all Competitive Advances
outstanding on such date.
"BENEFITED LENDER": as defined in Section 11.10.
"BORROWER'S INTEREST": for any period, (i) with respect to Unencumbered
Assets owned by a DownREIT Partnership, a fraction, expressed as a percentage,
the numerator of which is the Net Operating Income of such Unencumbered Assets
for such period, less any distributions required to be made to partners or
members of such DownREIT Partnership, other than the Borrower and its
Subsidiaries, and the denominator of which is the Net Operating Income of such
Unencumbered Assets for such period, and (ii) with respect to any Ancillary
Asset or Redevelopment Asset, the percentage of profits and losses with respect
thereto to which the Borrower or its Subsidiaries, directly or indirectly, may
be entitled to receive for such period.
"BORROWING DATE": any Business Day specified in a Borrowing Request
delivered pursuant to Sections 2.1, 2.1A or 2.3, or in a Competitive Bid Request
delivered pursuant Section 2.4, as the case may be, as a date on which the
Borrower requests the Lenders or the Swingline Lender to make Loans.
"BORROWING REQUEST": a borrowing request in the form of EXHIBIT B hereto.
"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 Boston, Massachusetts or New York City, New York, 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, LIBOR Loans, any day which is also a LIBOR
Business Day.
"CAPITAL LEASES": leases which have been, or under GAAP are required to be,
capitalized.
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"CAPITAL EXPENSE RESERVE": during any period, (i) with respect to each
Unencumbered Asset other than a residential apartment building or residential
apartment community, an amount equal to (A) a per annum rate of $.20 times (B)
the total Net Rentable Area of such Unencumbered Asset, and (ii) with respect to
each Unencumbered Asset that is a residential apartment building or residential
apartment community, an amount equal to (A) $150 times (B) the number of
apartment units in such residential apartment building or community (in each
case whether or not such reserves are actually established by the Borrower).
"CAPITAL EXPENDITURE RESERVE": during any period, (i) with respect to each
Unencumbered Asset other than a residential apartment building or residential
apartment community, an amount equal to (A) a per annum rate of $.10 times (B)
the total Net Rentable Area of such Unencumbered Asset, and (ii) with respect to
each Unencumbered Asset that is a residential apartment building or residential
apartment community, an amount equal to (A) $150 times (B) the number of
apartment units in such residential apartment building or community (in each
case whether or not such reserves are actually established by the Borrower).
"CHANGE OF CONTROL": the occurrence of any one of the following events:
(a) any Person or Persons acting as a group shall acquire direct or
indirect ownership of 30% or more of the Borrower's common Stock; or
(b) during any twelve month period on or after the Effective Date,
individuals who at the beginning of such period constituted the Board of
Directors of the Borrower (together with any new directors whose election by the
Board of Directors or whose nomination for election by the shareholders of the
Borrower was approved by a vote of at least a majority of the members of the
Board of Directors then in office who either were members of the Board of
Directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office; or
(c) 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 Commission; or
(d) the Borrower consolidates with, is acquired by, or merges into
or with any Person (other than a merger permitted by Section 8.2).
"CHIEF FINANCIAL OFFICER": at any time, the chief financial officer of the
Borrower, or if the Borrower does not have a chief financial officer at such
time, the officer designated by the Borrower as its principal financial officer
or such other officer of the Borrower that is acceptable to the Administrative
Agent.
"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.
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"COMMITMENT": in respect of any Lender, such Lender's undertaking to make
Loans (other than Swing Loans), or purchase participations in Letters of Credit
issued by the Issuing Lender or purchase participations in Swing Loans to the
Borrower, 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 C under the heading "Commitments" as such Lender's Commitment Amount,
as the same may be reduced pursuant to Section 2.3(g).
"COMMITMENT PERCENTAGE": on any day, and as to any Lender, the quotient of
(i) such Lender's Commitment Amount on such day, divided by (ii) the Commitments
of all Lenders on such day.
"COMPETITIVE ADVANCE": means an Advance made to Borrower by any Lender not
determined by that Lender's Commitment Percentage pursuant to Section 2.4.
"COMPETITIVE ADVANCE NOTE": means the promissory note made by Borrower in
favor of a Lender to evidence the Competitive Advances made by that Lender,
substantially in the form of EXHIBIT D, either as originally executed or as the
same may from time to time be supplemented, modified, amended, renewed, extended
or supplanted.
"COMPETITIVE BID": means a written bid to provide a Competitive Advance
substantially in the form of EXHIBIT E, signed by a Responsible Official of a
Lender and properly completed to provide all information required to be included
therein.
"COMPETITIVE BID REQUEST": means a written request submitted by Borrower to
the Administrative Agent to provide a Competitive Bid, substantially in the form
of EXHIBIT F signed by an Authorized Signatory of Borrower and properly
completed to provide all information required to be included therein.
"COMPLIANCE CERTIFICATE": a certificate substantially in the form of
EXHIBIT G.
"CONSOLIDATED": the Borrower and its Subsidiaries which are consolidated
for financial reporting purposes.
"CONSOLIDATED EBITDA": with respect to any period an amount equal to the
EBITDA of Borrower and its Subsidiaries for such period Consolidated in
accordance with GAAP.
"CONSOLIDATED FIXED CHARGES": during any period, the sum of each of the
following with respect to the Borrower and its Subsidiaries (without
duplication), determined on a Consolidated basis in accordance with GAAP: (i)
the aggregate amount of all interest expense, both expensed and capitalized
(including Consolidated Interest Expense) for such period, (ii) the aggregate of
all scheduled principal amounts that become payable during such period in
respect of any Indebtedness of the Borrower or its Subsidiaries (excluding
balloon payments at maturity) and (iii) the aggregate amount of all cash
dividends paid during such period in respect of preferred stock of the Borrower
or its Subsidiaries.
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<Page>
"CONSOLIDATED INTEREST EXPENSE": for any period, interest and fees accrued,
accreted or paid by the Borrower and its Subsidiaries during such period in
respect of Consolidated Total Indebtedness, determined in accordance with GAAP,
including (a) the amortization of debt discounts to the extent included in
interest expense in accordance with GAAP, (b) the amortization of all fees
(including fees with respect to Hedging Agreements entered into by the Borrower
or any of its Subsidiaries) payable in connection with the incurrence of any
Indebtedness to the extent included in interest expense in accordance with GAAP
and (c) the portion of any rents payable under capital leases allocable to
interest expense in accordance with GAAP.
"CONSOLIDATED TOTAL INDEBTEDNESS": as of any date, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries determined on a
Consolidated basis in accordance with GAAP, plus, if not otherwise required to
be reflected in the Borrower's Consolidated balance sheet (and without
duplication) (i) Contingent Obligations of the Borrower and its Subsidiaries on
such date which are required in accordance with GAAP to be disclosed in a
footnote to any such balance sheet, and (ii) any guarantee by the Borrower of
any Indebtedness of an unconsolidated Subsidiary or Joint Venture in which the
Borrower is a direct or indirect investor (to the full extent of the amount of
such guaranteed Indebtedness on such date); provided, however, that with respect
to Joint Ventures in which Borrower is a direct or indirect investor that are
not consolidated in the Borrower's Consolidated balance sheet, Consolidated
Total Indebtedness shall also include (x) the aggregate principal amount of all
Indebtedness of such Joint Ventures if such Indebtedness is recourse to the
Borrower or one of its Subsidiaries, and (y) Borrower's pro rata share of the
aggregate principal amount of all Indebtedness of such Joint Ventures if such
Indebtedness is Non-Recourse Indebtedness. Notwithstanding the foregoing,
unfunded portions of the Total Commitment Amount or of any other Indebtedness
(and any Contingent Obligations relating solely to such unfunded amounts) shall
not be included in Consolidated Total Indebtedness.
"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 contingent (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 (a) the endorsement of instruments for deposit or
collection in the ordinary course of business, or (b) guarantees or carve-outs
with respect to claims of the types referenced in (i)-(iv) of the definition of
Non-Recourse Exclusions until a claim is made with respect thereto, and then
shall be included only to the extent of the amount of such claim. 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,
but shall not include the liability of a
7
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member (managing or otherwise) of a limited liability company in respect of the
liabilities of such limited liability company to the extent not imposed by
agreement or by law. 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.
"CONVERSION DATE": the date on which a LIBOR Loan is converted to a Prime
Rate Loan, or the date on which a Prime Rate Loan is converted to a LIBOR Loan,
or the date on which a LIBOR Loan is converted to a new LIBOR Loan, all in
accordance with Section 2.8.
"CREDIT PARTY": the Administrative Agent, the Lead Arranger, each Lender,
the Swing Loan Lender, the Issuing Lender, the Syndication Agent, the
Documentation Agent, the Managing Agent, and their successors and assigns.
"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.
"DEFAULTING LENDER": at any time, any Lender that, at such time, (i) has
failed to comply with any of its obligations to make a Loan, fund its share of
any payment made by the Issuing Lender pursuant to a Letter of Credit or acquire
a participation in any Swing Loan as required pursuant to Section 2.1A, 2.3, 2.4
or 2.5 of this Agreement, (ii) has failed to pay to the Administrative Agent or
any Lender an amount owed by such Lender pursuant to the terms of this Agreement
or any of the other Loan Documents, or (iii) has advised the Administrative
Agent that it does not intend to comply with its obligations under Section 2.1A,
2.3, 2.4 or 2.5 by reason of having been deemed insolvent or having become
subject to a bankruptcy or insolvency proceeding.
"DOCUMENTATION AGENT": Wells Fargo Bank National Association and Bank of
America, N.A., as co-documentation Agents.
"DOLLARS" and "$": lawful currency of the United States of America.
"DOMESTIC LENDING OFFICE": in respect of any Lender, the Swing Loan Lender
and the Issuing Lender, initially, the office or offices of such Lender, the
Swing Loan Lender and the Issuing Lender, designated as such on EXHIBIT C;
thereafter, such other office of such Lender, the Swing Loan Lender and the
Issuing Lender, through which it shall be making or maintaining Prime Rate
Loans, making Swing Loans or issuing Letters of Credit, as reported by such
Lender, the Swing Loan Lender and the Issuing Lender, to the Administrative
Agent and the Borrower.
"DOMESTIC REFERENCE LENDER": FNB or such other Lender as may become the
Administrative Agent hereunder.
"DOWNREIT PARTNERSHIP": Excel Realty Partners, L.P. and any other
partnership or limited liability company hereafter created by the Borrower for
the purpose of acquiring assets qualifying as "real estate assets" under Section
856(c) of the Code through the issuance of partnership or limited liability
company units in such partnership or limited liability company to
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third parties, provided that, in the case of each such entity (including Excel
Realty Partners, L.P.) (i) the Borrower or a wholly owned Subsidiary of the
Borrower is the sole general partner or managing member of such partnership or
limited liability company, as the case may be, and (ii) the Borrower or its
wholly owned Subsidiary shall be entitled to receive not less than 99% of the
net income and gains before depreciation, if any, from such partnership or
limited liability company after the limited partners or non-managing members of
such partnership or limited liability company receive a stipulated distribution.
Any partnership or limited liability company created after the Effective Date
must be approved by the Administrative Agent as a "DownREIT Partnership" for
purposes of being included in this definition.
"EBITDA": with respect to a Person or a Subsidiary of a Person (or any
asset of a Person or a Subsidiary of such Person) for any period, an amount
equal to the sum of (a) the net income (or loss) of such Person (or attributable
to such asset) for such period PLUS (b) depreciation and amortization, interest,
and any extraordinary or non-recurring losses or charges for impairment of real
estate deducted in calculating such net income MINUS (c) any extraordinary or
non-recurring gains included in calculating such net income, all as determined
in accordance with GAAP. EBITDA shall be calculated on a pro forma basis as if
assets acquired during the relevant period were owned as of the beginning of the
relevant period, and all assets disposed of during the relevant period were not
owned during any portion of the relevant period. Adjustments for unconsolidated
partnerships and Joint Ventures will be calculated to reflect EBITDA on the same
basis.
"EFFECTIVE DATE": the date on which the conditions specified in Section 5
are satisfied.
"ENVIRONMENTAL LAWS": any and all federal, state and local laws relating 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 Section 9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976, as amended, 42 USCA Section 6901 et seq.; (iii) the Toxic
Substance Control Act, as amended, 15 USCA Section 2601 et seq.; (iv) the Water
Pollution Control Act, as amended, 33 USCA Section 1251 et seq.; (v) the Clean
Air Act, as amended, 42 USCA Section 7401 et seq.; (vi) the Hazardous Material
Transportation Act, as amended, 49 USCA Section 1801 et seq. and (viii) all
rules, regulations, judgments, decrees, injunctions and restrictions thereunder
and any analogous state law.
"ENVIRONMENTAL RISK PROPERTY": any Real Property of the Borrower, a
Subsidiary or a DownREIT Partnership in respect of which, at any time:
(i) Hazardous Substances are (A) generated or manufactured
on, transported to or from, treated at, stored at or discharged from such Real
Property in violation of any Environmental Laws; (B) discharged into subsurface
waters under such Real Property in violation of any Environmental Laws; or (C)
discharged from such Real Property on or into property or waters (including
subsurface waters) adjacent to such Real Property in violation of any
Environmental Laws, and any of the foregoing events in (A), (B) or (C) has an
Adverse Environmental Impact; or
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(ii) there exists with respect to such Real Property (A) a
claim, demand, suit, action, proceeding, condition, report, directive, lien,
violation, or non-compliance concerning any 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 Environmental Laws, or (y) the presence of any Hazardous
Substance on such Real Property or the release of any Hazardous Substance into
the environment from such Real Property, or (B) any actual liability in
connection with the presence of any Hazardous Substance on such Real Property or
the release of any Hazardous Substance into the environment from such Real
Property, and any of the foregoing events in (A) or (B) has an Adverse
Environmental Impact.
For purposes of this definition, the term "ADVERSE ENVIRONMENTAL IMPACT" shall
mean any event described in clauses (A), (B) or (C) of paragraph (i) above or
clauses (A) or (B) of paragraph (ii) above which could reasonably be expected to
have a material adverse effect on (1) the value of such Real Property, (2) the
marketability of such Real Property, or (3) the ability to finance or refinance
such Real Property.
"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.
"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 specified in Section 9 has occurred or been satisfied.
"EXCLUDED SUBSIDIARY": (i) Excel Realty Partners, L.P., a Delaware limited
partnership, CA New Plan Floating Rate Partnership, L.P., a Delaware limited
partnership, and CA New Plan Fixed Rate Partnership, L.P., a Delaware limited
partnership, (ii) any Subsidiary all of the Real Property of which is encumbered
in favor of a Person other than Borrower or any of its Subsidiaries, (iii) any
Consolidated Joint Venture or any Subsidiary, the sole asset of which is an
interest as a partner, member or similar interest in an unconsolidated or
Consolidated Joint Venture, (iv) any Subsidiary that does not directly own any
Real Property, or (v) any Subsidiary which is established as a special purpose
entity to own Real Property or equity interests related thereto in a bankruptcy
remote manner to secure secured Indebtedness permitted by this Agreement.
"EXISTING CREDIT AGREEMENTS" shall mean (i) that certain Term Loan
Agreement dated as of May 9, 2001 among the Borrower, FNB as Administrative
Agent, and the lenders signatory
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thereto, as subsequently amended, and any restatements, consolidations,
replacements or refinancings of any thereof, and (ii) that certain Term Loan
Agreement dated as of March 1, 2002 among the Borrower, FNB as Administrative
Agent, and the lenders signatory thereto, as subsequently amended, and any
restatements, consolidations, replacements or refinancings of any thereof.
"EXISTING CREDIT FACILITIES" shall mean (i) that certain Credit Agreement
(Facility I) dated as of October 22, 2001 among the Borrower, The Bank of New
York, as Administrative Agent, and the lenders signatory thereto, as
subsequently amended, and (ii) that certain Credit Agreement (Facility II),
dated as of November 17, 1999, among the Borrower, The Bank of New York, as
Administrative Agent, and the lenders signatory thereto, as subsequently
amended.
"FACILITY FEE": as defined in Section 3.1.
"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 FNB as
determined by FNB and reported to the Administrative Agent.
"FINANCIAL STATEMENTS": as defined in Section 4.13.
"FIXED CHARGE COVERAGE RATIO": on any date of determination, for the period
of four (4) fiscal quarters just ended prior to the date of determination, the
ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Fixed
Charges for such period.
"FLEET LETTER OF CREDIT" shall mean that certain irrevocable standby letter
of credit issued by FNB for the benefit of Bank of America, N.A. for the account
of Borrower, dated September 13, 2001, in the face amount of $31,306,511.00, as
originally issued or as amended, modified, extended, renewed or supplemented.
"FNB": Fleet National Bank.
"FUNDS FROM OPERATIONS": with respect to any Person for any fiscal period,
the sum of (i) the net income of such Person for such fiscal period (computed in
accordance with GAAP), excluding gains (or losses) from debt restructuring and
sales of property, (ii) depreciation and amortization, and (iii) other non-cash
items, and after adjustments for unconsolidated partnerships and Joint Ventures.
Adjustments for unconsolidated partnerships and Joint Ventures will be
calculated to reflect funds from operations on the same basis.
"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
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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.
"GROUND LEASE": a ground lease in favor of the Borrower, a wholly owned
Subsidiary or a DownREIT Partnership which has an unexpired term of 30 years or
more (inclusive of any tenant-controlled renewal options) and which includes
within its terms those rights customarily required by mortgagees making a loan
secured by the interest of the holder of the leasehold estate demised pursuant
to such ground lease.
"GUARANTY": collectively, (i) a Guaranty, substantially in the form of
EXHIBIT H executed by each of the Subsidiary Guarantors identified on SCHEDULE
4.4 and delivered to the Administrative Agent for the benefit of the Lenders on
or prior to the Effective Date, and (ii) each additional Guaranty substantially
in the form of EXHIBIT H executed by each Required Additional Guarantor and
delivered to the Administrative Agent for the benefit of the Lenders after the
Effective Date.
"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.
"HEDGING AGREEMENT" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"HIGHEST LAWFUL RATE": with respect to any Lender and the Swing Loan
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 or the
Swing Loan Lender on its Note or which may be owing to such Lender or the Swing
Loan Lender pursuant to this Agreement under the laws applicable to such Lender
or the Swing Loan 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 arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and,
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without duplication, 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; provided, however, that the term
Indebtedness shall not include guarantees or carve-outs with respect to claims
of the types referenced in (i)-(iv) of the definition of Non-Recourse Exclusions
until a claim is made with respect thereto, and then shall be included only to
the extent of the amount of such claim.
"INDEMNIFIED PERSON": as defined in Section 11.12.
"INTELLECTUAL PROPERTY": all copyrights, trademarks, patents, trade names
and service names.
"INTEREST PAYMENT DATE": as to any Loan, the first day of each month,
commencing with the first day of the first month following the date hereof.
"INTEREST PERIOD": with respect to any LIBOR Loans requested by the
Borrower, the period commencing on, as the case may be, the Effective Date,
Borrowing Date or Conversion Date with respect to such LIBOR Loans and ending
one, two, three or six months thereafter, as selected by the Borrower in its
irrevocable Borrowing Request as provided in Section 2.3 or its irrevocable
notice of conversion as provided in Section 2.8 (provided that, notwithstanding
the foregoing, the Interest Period for all Swing Loans shall be seven (7) days);
provided, however, that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(a) if any Interest Period pertaining to a LIBOR Loan 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;
(b) if, with respect to the borrowing of any Loan as a LIBOR Loan
or the conversion of one Advance to another pursuant to Section 2.8, the
Borrower shall fail to give due notice as provided in Section 2.3 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 a Prime Rate Loan;
(c) any Interest Period pertaining to a LIBOR Loan that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(d) with respect to any Interest Period applicable to a LIBOR Loan,
no such Interest Period shall end after the Maturity Date; and
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(e) the Borrower shall select Interest Periods so as not to have
more than five (5) different Interest Periods outstanding at any one time with
respect to LIBOR Loans and four (4) different Interest Periods outstanding at
any one time with respect to Competitive Advances.
"INVESTMENTS": as defined in Section 8.3.
"ISSUING LENDER": FNB in its capacity as the Lender issuing the Letters of
Credit.
"JOINT VENTURE": an Investment by Borrower or any of its Subsidiaries with
third persons in joint ventures, general partnerships, limited partnerships,
limited liability companies or any other business association. Joint Ventures
include non-wholly owned Subsidiaries of Borrower.
"LAND ASSETS": any land of the Borrower or its Subsidiaries, or in which
the Borrower or any of its Subsidiaries has an interest (either directly or
indirectly, through a Joint Venture or otherwise) with respect to which the
commencement of grading, construction of improvements or infrastructure has not
yet commenced, and all unimproved land according to GAAP.
"LEAD ARRANGER": Fleet Securities, Inc. and BNY Capital Markets, Inc., as
joint lead arrangers.
"LETTER OF CREDIT": an irrevocable standby letter of credit in respect of
obligations of the Borrower incurred pursuant to contracts made or performances
undertaken or to be undertaken in the ordinary course of the Borrower's business
which is payable upon presentation of a sight draft and other documents
described in the Letter of Credit, if any, as originally issued pursuant to this
Agreement or as amended, modified, extended, renewed or supplemented.
"LETTER OF CREDIT EXPOSURE": at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time PLUS (b) the
aggregate amount of all unreimbursed drawings under Letters of Credit at such
time.
"LETTER OF CREDIT REQUEST": See Section 2.5(a).
"LIBOR": as applicable to any Interest Period for any LIBOR Loan, the rate
per annum (rounded upwards, if necessary, to the nearest 1/32nd of one percent)
as determined on the basis of the offered rates for deposits in Dollars, for the
period of time comparable to such Interest Period which appears on the Telerate
page 3750 as of 11:00 a.m. London time on the day that is two (2) LIBOR Business
Days preceding the first day of such Interest Period; provided, however, if the
rate described above does not appear on the Telerate system on any applicable
interest determination date, LIBOR shall be the rate (rounded upwards as
described above, if necessary) for deposits in Dollars for a period
substantially equal to the Interest Period on the Reuters Page "LIBO" (or such
other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London Time), on the day that is two
(2) LIBOR Business Days prior to the beginning of such Interest Period. If both
the Telerate and Reuters systems are unavailable, then the rate for that date
will be determined on the basis of the offered rates for deposits in Dollars for
a period of time comparable to such Interest Period which are offered by four
major banks in the London interbank market at approximately 11:00 a.m. London
time, on the day that is two (2) LIBOR Business Days preceding the first day of
such Interest Period as selected by Administrative Agent. The principal London
office of each of
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the four major London banks will be requested to provide a quotation of its U.S.
dollar deposit offered rate. If at least two such quotations are provided, the
rate for that date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided, the rate for that date will be determined on the
basis of the rates quoted for loans in Dollars to leading European banks for a
period of time comparable to such Interest Period offered by major banks in New
York City at approximately 11:00 a.m. (New York City time), on the day that is
two (2) LIBOR Business Days preceding the first day of such Interest Period. In
the event that Administrative Agent is unable to obtain any such quotation as
provided above, it will be deemed that LIBOR pursuant to a LIBOR Loan cannot be
determined and the provisions of Section 2.10 shall apply. In the event that the
Board of Governors of the Federal Reserve System shall impose a Reserve
Percentage with respect to LIBOR deposits of Administrative Agent, then for any
period during which such Reserve Percentage shall apply, LIBOR shall be equal to
the amount determined above divided by an amount equal to 1 minus the Reserve
Percentage.
"LIBOR BUSINESS DAY": any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London,
England.
"LIBOR LENDING OFFICE": initially, the office of each Lender designated as
such in EXHIBIT B hereto; thereafter, such other office of such Lender, if any,
that shall be making or maintaining LIBOR Loans.
"LIBOR LOANS": loans bearing interest calculated by reference to a LIBOR.
"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": an individual loan or the aggregate loans (including a
Revolving Credit Loan (or Loans), a Swing Loan (or Loans) and a Competitive
Advance (or Advances)), as the case may be, to be made by the Lenders hereunder.
All Loans shall be made in Dollars. Amounts drawn under a Letter of Credit shall
also be considered Loans as provided in Section 2.5.
"LOAN DOCUMENTS": collectively, this Agreement, the Guaranty (and each
Guaranty subsequently delivered pursuant to Section 7.11) and the Notes.
"MANAGING AGENT" KeyBank National Association and Citicorp of North
America, Inc., as managing agents.
"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 EFFECT": a material adverse effect on (i) the financial
condition, operations, business, or Properties of (A) the Borrower or (B) the
Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower
to perform any of its material obligations under
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the Loan Documents or (iii) the ability of the Administrative Agent and the
Lenders to enforce the Loan Documents.
"MATURITY DATE": the earlier of (i) April 25, 2005 (as such date may be
extended as provided in Section 2.18), or (ii) the date on which the Notes shall
become due and payable, whether by acceleration or otherwise.
"MAXIMUM COMPETITIVE ADVANCE": means, with respect to any Competitive Bid
made by a Lender, the amount set forth therein as the maximum Competitive
Advance which that Lender is willing to make in response to the related
Competitive Bid Request.
"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 OPERATING INCOME": for any period and with respect to all assets which
are Unencumbered Assets during such period, net income for such period,
determined in accordance with GAAP, attributable to Unencumbered Assets, plus
depreciation and amortization, interest expense and any extraordinary or
non-recurring losses deducted in calculating such net income, minus
extraordinary or non-recurring gains and payments (including rent insurance
proceeds and condemnation awards) included in such net income, minus any portion
of such net income attributable to rents paid by any tenant which is an
Affiliate of the Borrower, minus an amount (but not less than zero) equal to the
excess (if any) of (i) 3% of operating income for such period, over (ii)
management fees payable in respect of such Unencumbered Assets during such
period. For purposes of any calculation of Net Operating Income, real estate
taxes, ground rent and insurance, shall be included only at their stabilized,
recurring levels.
"NET RENTABLE AREA": with respect to any Real Property, the floor area of
any buildings, structures or improvements thereof (expressed in square feet)
available for leasing to tenants, as determined in accordance with the leases or
site plans or leasing plans for such Real Property, or if such leases or site
plans or leasing plans do not set forth the floor area demised thereunder (or if
such Real Property is not subject to a lease), then as determined by the
Borrower in accordance with an industry-accepted protocol approved by the
Administrative Agent.
"NEW CONSTRUCTION ASSET": any Property of the Borrower or its Subsidiaries,
or in which the Borrower or any of its Subsidiaries has an interest (either
directly or indirectly, through a Joint Venture or otherwise) (i) which is new
ground-up construction (but not including an expansion of an existing Property),
and (ii) for which a certificate of occupancy, whether temporary or permanent,
or the functional equivalent thereof, has not been issued with respect to such
construction or expansion (if required by law to occupy the same).
Notwithstanding the foregoing, any such new construction which shall have been a
New Construction Asset under the criteria of this definition shall no longer be
a New Construction Asset upon such time as (A) the same is an income-producing
Property in operating condition, and (B) at least 60% of the Net Rentable Area
(determined on an "as completed" basis) of such construction is initially leased
to tenants who have taken possession thereof.
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"NON-RECOURSE EXCLUSIONS": with respect to any Non-Recourse Indebtedness of
any Person, any usual and customary exclusions from the non-recourse limitations
governing such Indebtedness, including, without limitation, exclusions for
claims that (i) are based on fraud, intentional misrepresentation,
misapplication of funds, gross negligence or willful misconduct, (ii) result
from intentional mismanagement of or waste at the Real Property securing such
Non-Recourse Indebtedness, (iii) arise from the presence of Hazardous Substances
on the Real Property securing such Non-Recourse Indebtedness; or (iv) are the
result of any unpaid real estate taxes and assessments.
"NON-RECOURSE INDEBTEDNESS": at any time, Indebtedness of the Borrower, its
Subsidiaries or a Joint Venture at such time which is secured by one or more
parcels of Real Property or interests therein and which is not a general
obligation of the Borrower or such Subsidiary, the holder of such Indebtedness
having recourse solely to the parcels of Real Property, or interests therein,
securing such Indebtedness, the leases thereon and the rents, profits and equity
thereof (except for recourse against the general credit of the Borrower or its
Subsidiaries for any Non-Recourse Exclusions), provided that in calculating the
amount of Non-Recourse Indebtedness at any time, the amount of any Non-Recourse
Exclusions which are the subject of a final judgment shall not be included in
Non-Recourse Indebtedness.
"NOTE" and "NOTES": collectively, the Revolving Credit Notes, the Swing
Loan Note and the Competitive Advance Notes.
"NOTES RECEIVABLE": mortgage and notes receivable and reimbursement
agreements (to the extent obligations are payable under such reimbursement
agreements), including interest payments thereunder, of Borrower or any
Subsidiary in a Person (other than Borrower or its Subsidiaries).
"OPERATING PROPERTY": any Real Property which at any time (i) is an
income-producing property in operating condition and in respect of which no
material part thereof has been damaged by fire or other casualty (unless such
damage has been repaired) or condemned (unless such condemnation has been
restored), (ii) is a retail shopping center (including single tenant retail
properties) or is one of the properties included in the garden apartment
community portfolio sold by the Borrower to a private investor group comprised
of Houlihan-Parnes Realtors, LLC and C.L.K. Management Corp., which transaction
was completed on September 21, 2001, and (iii) for which a certificate of
occupancy, whether temporary or permanent, or the functional equivalent thereof,
has been issued for the operating portions of the improvements comprising the
same (if required by law to occupy the same) and are in full force and effect,
and "OPERATING PROPERTIES" means all such Operating Properties, collectively. An
Operating Property shall not include any Redevelopment Asset or any New
Construction Asset.
"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.
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"PERSON": an individual, a partnership, a corporation, a business trust, a
limited liability company, 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": one of the following five pricing levels, as applicable,
provided that if the ratings by S&P and Moody's in any such Pricing Level are
split by one equivalent rating level, the operative rating would be deemed to be
the higher of the two ratings, and if the ratings by S&P and Moody's in any such
Pricing Level are split by more than one equivalent rating level, the operative
rating would be deemed to be one rating level higher than the lower of the two
ratings, and provided, further, that during any period that the Borrower has no
Senior Debt Rating, Pricing Level V would be the applicable Pricing Level:
"PRICING LEVEL I": 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;
"PRICING LEVEL II": the Pricing Level which would be applicable for so long
as the Senior Debt Rating is equal to BBB+ by S&P or Baa1 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 equal to BBB by S&P or Baa2 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 equal to BBB- by S&P or Baa3 by Moody's and Pricing
Levels I, II and III are not applicable; and
"PRICING LEVEL V": the Pricing Level which would be applicable for so long
as the Senior Debt Rating is less than BBB- by S&P or Baa3 by Moody's and
Pricing Levels I, II, III and IV are not applicable.
"PRIME RATE": the greater of (a) the variable annual rate of interest
announced from time to time by Administrative Agent at Administrative Agent's
Domestic Lending Office as its "Prime Rate" or (b) one-half of one percent
(0.5%) above the Federal Funds Rate (rounded upwards, if necessary, to the next
one-eighth of one percent). The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer. Any
change in the rate of interest payable hereunder resulting from a change in the
Prime Rate shall become effective as of the opening of business on the day on
which such change in the Prime Rate becomes effective, without notice or demand
of any kind.
"PRIME RATE LOANS": those Loans bearing interest calculated by reference to
the Prime Rate.
"PROPERTY": all types of real, personal, tangible, intangible or mixed
property.
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"PROPOSED BID RATE": as applied to any Remaining Interest Period with
respect to a Lender's Competitive Advance, or the interest rate applicable to a
Swing Loan, the rate per annum that such Lender or Swing Loan Lender in good
faith would have quoted to the Borrower had the Borrower requested that such
Lender or Swing Loan Lender offer to make a Competitive Advance or Swing Loan 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; each such rate to be determined by such Lender or Swing
Loan Lender, as the case may be, in good faith in its sole discretion.
"REAL PROPERTY": all real Property, and all interests in real Property, now
or hereafter owned, leased or held by the Borrower or any Subsidiary of the
Borrower.
"REDEVELOPMENT ASSET": any Property of the Borrower or its Subsidiaries, or
in which the Borrower or any of its Subsidiaries has an interest (either
directly or indirectly, through a Joint Venture or otherwise) (i) which is not a
New Construction Asset, (ii) which is undergoing an expansion which will
increase the Net Rentable Area of such Property by 20,000 square feet or more
(provided that with respect to any Property which is under expansion, if the
balance thereof is a fully integrated, rentable property, then only the portion
of such Property that is under expansion shall be a Redevelopment Asset), and
(iii) for which a certificate of occupancy, whether temporary or permanent, or
the functional equivalent thereof, has not been issued with respect to such
construction or expansion (if required by law to occupy the same).
Notwithstanding the foregoing, any such expansion which shall have been a
Redevelopment Asset under the criteria of this definition shall no longer be a
Redevelopment Asset upon such time as (A) the same is an income-producing
Property in operating condition, and (B) at least 60% of the Net Rentable Area
(determined on an "as completed" basis) of such expansion is initially leased to
tenants who have taken possession thereof. A Property shall not be considered a
Redevelopment Asset solely because such Property is being restored to its prior
condition following a casualty or condemnation.
"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.
"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
LIBOR Loan or a Swing Loan or to convert an Advance to a LIBOR Loan after it
shall have notified the Administrative Agent of its intent to do so with respect
to the Loans to be made pursuant to Sections 2.1A, 2.3 or 2.8 or accepted one or
more Competitive Advances under Section 2.4 or with respect to a conversion
pursuant to Section 2.8, a period equal to the Interest Period that the Borrower
elected in respect of such LIBOR Loan, Swing Loan or Competitive Advance; or
(ii) in the event that a LIBOR Loan, Swing Loan or Competitive 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
LIBOR Loan, Swing Loan or Competitive Advance (including, without limitation,
any mandatory prepayment or a prepayment resulting from acceleration or
illegality) prior to the last day of the Interest Period applicable thereto, a
period equal to the period from and including the date of such prepayment or
repayment to but excluding the last day of such Interest Period.
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"RENT ROLL": a schedule prepared by the Borrower from time to time
identifying (i) the Real Property owned by the Borrower or its Subsidiaries and
stating whether such items of Real Property are Unencumbered Assets at such
time, (ii) the annual base rent payable under each lease of Real Property owned
by the Borrower or any of its Subsidiaries, (iii) the commencement and
termination dates of the term of each such lease, (iv) any renewal options with
respect to such lease, (v) the Net Rentable Area of the space demised under each
such lease and (vi) such other information as the Administrative Agent may
reasonably require.
"REQUIRED ADDITIONAL GUARANTORS": any Subsidiary required to execute and
deliver a Guaranty pursuant to Section 7.11(a).
"REQUIRED LENDERS": means Lenders whose aggregate Commitment Percentage
equals or exceeds sixty percent (60%), notwithstanding any termination of the
Total Commitment (in which case the Commitment Percentage immediately preceding
such termination shall be utilized).
"RESERVE PERCENTAGE": for any day with respect to a LIBOR Loan, the maximum
rate (expressed as a decimal) at which any lender subject thereto would be
required to maintain reserves (including, without limitation, all base,
supplemental, marginal and other reserves) under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D or any successor or similar regulation), if
such liabilities were outstanding. The Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Percentage.
"RESPONSIBLE OFFICIAL": means (a) when used with reference to a Person
other than an individual, any corporate officer of such Person, general partner
or managing member of such Person, corporate officer of a corporate general
partner or managing member of such Person, or corporate officer of a corporate
general partner of a partnership that is a general partner of such Person or
corporate managing member of a limited liability company that is a managing
member of such Person, or any other responsible official thereof duly acting on
behalf thereof, and (b) when used with reference to a Person who is an
individual, such Person.
"RESTRICTED PAYMENT": as to any Person, any dividend or other distribution
by such Person (whether in cash, securities or other property) with respect to
any shares of any class of equity securities or beneficial interests of such
Person, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
shares or beneficial interests or any option, warrant or other right to acquire
any such shares or beneficial interests.
"REVOLVING CREDIT LOAN" and "REVOLVING CREDIT LOANS": as defined in Section
2.1.
"REVOLVING CREDIT NOTE" and "REVOLVING CREDIT NOTES": as defined in Section
2.2.
"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.
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"SPECIAL COUNSEL": Long Aldridge & Norman LLP, special counsel to FNB.
"S&P": Standard & Poor's Ratings Group.
"STOCK": any and all shares, rights, interests, participations, warrants,
depositary receipts or other equivalents (however designated) of corporate
stock, including, without limitation, so-called "phantom stock," preferred stock
and common stock.
"SUBSIDIARY": as to any Person, any corporation, association, partnership,
limited liability company, joint venture or other business entity (A) which is
required pursuant to GAAP to be consolidated with such Person for financial
reporting purposes, and (B) of which 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, limited
liability company, joint venture or other business entity (other than a
corporation which is provided for in (i) above), is entitled to share, either
directly or indirectly through an entity described in clause (i) above, in more
than 50% of the profits and losses, however determined (without taking into
account returns of capital to such Person as an equity investor or payment of
fees to such Person for services rendered to such entity).
"SUBSIDIARY GUARANTOR": the Subsidiaries of the Borrower listed on SCHEDULE
4.4 and designated thereon as a Subsidiary Guarantor, each Required Additional
Guarantor, and their successors and assigns; and "Subsidiary Guarantors" shall
mean all such guarantors, collectively.
"SUPERMAJORITY LENDERS": the Lender or Lenders whose aggregate Commitment
Percentage exceeds sixty-six and two-thirds percent (66.67%), notwithstanding
any termination of the Total Commitment (in which case the Commitment Percentage
immediately preceding such termination shall be utilized).
"SWING LOANS": as defined in Section 2.1A.
"SWING LOAN LENDER": FNB, in its capacity as Swing Loan Lender.
"SWING LOAN COMMITMENT": the sum of $10,000,000.00, as the same may be
changed from time to time in accordance with the terms of this Agreement.
"SWING LOAN NOTE": as defined in Section 2.1A.
"SYNDICATION AGENT": The Bank of New York and Bank One, NA, as
co-syndication agents.
"TANGIBLE NET WORTH": as of any date of determination thereof with respect
to the Borrower and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP, the remainder of (i) the amounts which would, in
conformity with GAAP, be included under "shareholder's equity" (or any like
caption) on a Consolidated balance sheet of the Borrower and its Subsidiaries as
at such date, minus (ii) 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
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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).
"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.
"TOTAL COMMITMENT AMOUNT": on any day, the sum of the Commitment Amounts of
all Lenders on such day.
"UNENCUMBERED ASSET": any Operating Property which Borrower desires to have
treated as an Unencumbered Asset and which at any time (i) is wholly owned in
fee simple by the Borrower, a direct or indirect wholly owned Subsidiary of the
Borrower or a DownREIT Partnership (or is the subject of a Ground Lease), (ii)
is free and clear of all Liens, including any Liens on any direct or indirect
interest of Borrower or any Subsidiary therein (other than Liens permitted under
clauses (i), (ii), (iii), (iv), (v) (vi), (viii) and (ix) of Section 8.1), (iii)
does not have applicable to it (or to any such Ground Lease) any restriction on
the pledge, transfer, mortgage or assignment of such Operating Property or
Ground Lease (including any restriction imposed by the organizational documents
of any such Subsidiary or DownREIT Partnership, but excluding any requirement in
a Ground Lease that such Ground Lease be assumed upon the assignment thereof),
(iv) if owned by any such Subsidiary or DownREIT Partnership, the Stock,
partnership interests or membership interests, as the case may be, of such
Subsidiary or DownREIT Partnership that are owned by the Borrower or any
Subsidiary are not subject to any pledge or security interest in favor of any
Person other than the Borrower or a Subsidiary Guarantor, (v) is not an
Environmental Risk Property; (vi) does not have, to the best of the Borrower's
knowledge, any title, survey, or other defect which could reasonably be expected
to materially and adversely affect the value, use, financeability or
marketability thereof, and (vii) is located within the contiguous 48 states of
the continental United States; and "UNENCUMBERED ASSETS" mean all such
Unencumbered Assets, collectively. The Unencumbered Assets (X) which are retail
shopping centers shall on an aggregate basis have an occupancy level of tenants
in possession and operating and which are paying base, minimum or similar
regularly scheduled fixed payments of rent (but not pass-throughs of common area
maintenance charges, operating expenses, taxes, insurance and similar charges)
in accordance with the terms of their leases of at least eighty percent (80%) of
the Net Rentable Area within such Unencumbered Assets based on bona fide
arms-length tenant leases requiring current rental payments, and (Y) which are
residential apartments shall on an aggregate basis have an occupancy level of
tenants in possession and which are paying rent in accordance with the terms of
their leases of at least eighty percent (80%) of the number of apartment units
in such residential apartments within such Unencumbered Assets based on bona
fide arm's-length tenant leases requiring current rental payments.
"UNENCUMBERED ASSETS COVERAGE RATIO": on any date of determination the
ratio of (i) the sum of all Adjusted Net Operating Income for all Unencumbered
Assets of the Borrower and its Subsidiaries on a Consolidated basis, plus
(without duplication) the Borrower's Interest in all
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Adjusted Net Operating Income for all Unencumbered Assets owned by a DownREIT
Partnership, in each case, for the period of four (4) fiscal quarters just ended
prior to the date of determination, to (ii) the portion of the Consolidated
Interest Expense (which excludes interest on unsecured Indebtedness of Joint
Ventures that are not Subsidiaries) consisting of interest on all unsecured
Indebtedness of the Borrower and its Subsidiaries for such period.
"UNENCUMBERED ASSET VALUE": as of any date the quotient of (i) an amount
equal to the Adjusted Net Operating Income for all Unencumbered Assets in the
aggregate for the four fiscal quarters of the Borrower most recently ending as
of such date, divided by (ii) 10%. For purposes of any determination of
Unencumbered Asset Value, the following limitations and methodology shall apply:
(A) the Adjusted Net Operating Income of any Unencumbered Asset owned by a
DownREIT Partnership shall be based on the Borrower's Interest in the Adjusted
Net Operating Income for each such Unencumbered Asset for the four fiscal
quarters having ended as of such date; (B) in the event more than 15% of the
gross base rents payable under all leases for Properties of the Borrower, its
Subsidiaries or a DownREIT Partnership (including the Borrower's Interest in any
Property) shall be payable by one tenant and its Subsidiaries, then Unencumbered
Asset Value shall be reduced by the percentage amount of such excess multiplied
by the Unencumbered Asset Value attributable to the Properties leased or
controlled by such tenant and its Subsidiaries, and (C) in the event that the
Borrower or a Subsidiary of the Borrower shall not have owned an Unencumbered
Asset for the entire previous four fiscal quarters, then for the purposes of
determining the Unencumbered Asset Value with respect to such Unencumbered
Asset, the Adjusted Net Operating Income for such Unencumbered Asset shall be
annualized in a manner reasonably satisfactory to the Administrative Agent,
provided, however, that to the extent that a New Construction Asset or
Redevelopment Asset becomes an Operating Property during the relevant period,
the Adjusted Net Operating Income of such Operating Property during such period
and the following periods shall be annualized until such time as such Operating
Property has performed as an Operating Property for four (4) full fiscal
quarters.
1.2 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.
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(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 Boston, Massachusetts time.
2. AMOUNT AND TERMS OF LOANS.
2.1 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
Lenders, the "REVOLVING CREDIT LOANS") to the Borrower from time to time between
the Effective Date and the Maturity Date, in an aggregate principal amount,
together with such Lender's share of the Letter of Credit Exposure and Swing
Loans outstanding at such time, not to exceed at any time (exclusive of any
Competitive Advances of such Lender at such time) such Lender's Commitment
Amount for the purposes set forth in Section 2.15. The Revolving Credit Loans
shall be made pro rata in accordance with each Lender's Commitment Percentage.
The acceptance by Borrower of the Revolving Credit Loans hereunder shall
constitute a representation and warranty that all of the conditions set forth in
Sections 5 (with respect to Revolving Credit Loans made on the Effective Date)
and 6 (with respect to all other Revolving Credit Loans) have been satisfied. At
no time shall the aggregate outstanding principal amount of the Revolving Credit
Loans of all Lenders (including the amount of Competitive Advances) plus the
Letter of Credit Exposure plus the aggregate principal amount of all Swing Loans
exceed the Total Commitment Amount. Between the Effective Date and the Maturity
Date, the Borrower may borrow, prepay in whole or in part and reborrow under the
Commitments at any time and from time to time, all in accordance with the terms
and conditions of this Agreement. Subject to the provisions of Sections 2.3, 2.4
and 2.8, Revolving Credit Loans may be (a) Prime Rate Loans, (b) LIBOR Loans,
(c) Competitive Advances or (d) any combination thereof.
2.1A SWING LOAN COMMITMENT.
(a) Subject to the terms and conditions set forth in this
Agreement, Swing Loan Lender agrees to lend to the Borrower, and the Borrower
may borrow (and repay and reborrow) from time to time between the Effective Date
and the date which is seven (7) Business Days prior to the Maturity Date upon
notice by the Borrower to the Swing Loan Lender given in accordance with this
Section 2.1A, such sums as are requested by the Borrower for the purposes set
forth in Section 2.15 in an aggregate principal amount at any one time
outstanding not exceeding the Swing Loan Commitment (the "Swing Loans");
PROVIDED that (i) at no time shall the aggregate principal balance of Swing
Loans then outstanding, when added to the Swing Loan Lender's Commitment
Percentage of all other outstanding Loans (after giving effect to the Letter of
Credit Exposure), exceed such Lender's Commitment; (ii) in all events no Default
or Event of Default shall have occurred and be continuing; (iii) the outstanding
principal amount of the Loans (after giving effect to the Letter of Credit
Exposure) shall not at any time exceed the Total
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Commitment Amount; (iv) no Swing Loan shall be used to repay a Swing Loan; and
(v) no Lender shall be in default of its obligations under this Agreement. Swing
Loans shall constitute "Loans" for all purposes hereunder, but shall not be
considered the utilization of a Lender's Commitment. The funding of a Swing Loan
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in Sections 5 (with respect to any Swing Loans
made on the Effective Date) and Section 6 (with respect to all other Swing
Loans) have been satisfied on the date of such funding.
(b) The Swing Loans shall be evidenced by a separate promissory
note of the Borrower in substantially the form of EXHIBIT J hereto (the "Swing
Loan Note"), dated the date of this Agreement and completed with appropriate
insertions. The Swing Loan Note shall be payable to the order of the Swing Loan
Lender in such amount as may be outstanding from time to time thereunder and
shall be payable as set forth below. The Borrower irrevocably authorizes the
Swing Loan Lender to make or cause to be made, at or about the time of the
Borrowing Date of any Swing Loan or at the time of receipt of any payment of
principal thereof, an appropriate notation on the Swing Loan Lender's record
reflecting the making of such Swing Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Swing Loans set forth on the Swing
Loan Lender's record shall be PRIMA FACIE evidence of the principal amount
thereof owing and unpaid to the Swing Loan Lender, but the failure to record, or
any error in so recording, any such amount on the Swing Loan Lender's record
shall not limit or otherwise affect the obligations of the Borrower hereunder or
under the Swing Loan Note to make payments of principal of or interest on any
Swing Loan Note when due.
(c) Each borrowing of a Swing Loan shall be subject to the limits
and restrictions for Prime Rate Loans and LIBOR Loans set forth in this
Agreement. Borrower shall request a Swing Loan by delivering to the Swing Loan
Lender a Borrowing Request (or a telephonic request confirmed promptly by hand
delivery or telecopy to the Swing Loan Lender of a written Borrowing Request
signed by Borrower) no later than 12:00 p.m. (Massachusetts time) on the
requested Borrowing Date specifying the amount of the requested Swing Loan. The
Borrowing Request shall also contain the statements and certifications required
by Section 2.3(b)(i)-(v). Each such Borrowing Request shall be irrevocable and
binding on the Borrower and shall obligate the Borrower to accept such Swing
Loan on the Borrowing Date. Notwithstanding anything herein to the contrary, a
Swing Loan shall either be a Prime Rate Loan or, if the Borrower has requested a
LIBOR Loan (of any interest period) in the Borrowing Request delivered in
connection with such Swing Loan, a LIBOR Loan having an Interest Period of seven
(7) days (regardless of the Interest Period so requested), and in the event that
the Borrower fails to specify whether it has selected a Prime Rate Loan or a
LIBOR Loan, the Borrower shall be deemed conclusively to have selected a Prime
Rate Loan. If the Borrower requests a LIBOR Loan in the Borrowing Request
delivered in connection with such Swing Loan, then upon the date that the
Lenders shall be required to fund the Loans pursuant to Section 2.1A(d) to
refund such Swing Loan, the interest rate shall be reset to correspond to the
rate applicable to a LIBOR Loan with an Interest Period as specified in the
Borrowing Request given by the Borrower to the Administrative Agent in
connection with such Swing Loan (such Interest Period to commence on the date of
such funding of Loans by the Lenders to fund such Swing Loan), or if no Interest
Period is so specified, then as a Prime Rate Loan. The proceeds of the Swing
Loan will be made available by the Swing Loan Lender to the Borrower at the
office of the Administrative Agent specified in Section 11.2 by crediting the
account of the Borrower at
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such office with such proceeds. Each Swing Loan shall be deemed a LIBOR Loan or
Prime Rate Loan, as applicable, for purposes of this Agreement.
(d) The Swing Loan Lender shall within three (3) days after the
Borrowing Date with respect to such Swing Loan, request each Lender, including
the Swing Loan Lender, to make a Revolving Credit Loan pursuant to Section 2.1
in an amount equal to such Lender's Commitment Percentage of the amount of the
Swing Loan outstanding on the date such notice is given, unless the Borrower has
advised Administrative Agent in the Borrowing Request for such Swing Loan that
Borrower shall repay such Swing Loan in full on the date that is seven (7) days
after the making of such Swing Loan. Borrower hereby irrevocably authorizes and
directs the Swing Loan Lender to so act on its behalf, and agrees that any
amount advanced to the Administrative Agent for the benefit of the Swing Loan
Lender pursuant to this Section 2.1A(d) shall be considered a Loan pursuant to
Section 2.1. Unless any of the events described in paragraph (h) or (i) of
Section 9.1 shall have occurred (in which event the procedures of Section
2.1A(e) shall apply), each Lender shall make the proceeds of its Loan available
to the Swing Loan Lender for the account of the Swing Loan Lender at the office
of the Administrative Agent specified in Section 11.2 prior to 1:30 p.m.
(Massachusetts time) in funds immediately available on the date that is seven
(7) days after the making of such Swing Loan just as if the Lenders were funding
directly to the Borrower, so that thereafter such obligations of Borrower with
respect to such Swing Loan shall be evidenced by the Revolving Credit Notes. The
proceeds of such Loan shall be immediately applied to repay the Swing Loans.
Administrative Agent may, at its option, also request that the Lenders make a
Loan as provided herein in the event that the Borrower fails to repay a Swing
Loan on its maturity date after having indicated that it would so repay such
Swing Loan. Until such Loans pursuant to Section 2.1 are made pursuant to this
paragraph, interest shall accrue under the Swing Loan only.
(e) If prior to the making of a Loan pursuant to Section 2.1A(d) by
all of the Lenders, one of the events described in Section 9.1(h) or (i) shall
have occurred, each Lender will, on the date such Loan pursuant to Section
2.1A(d) was to have been made, purchase an undivided participating interest in
the Swing Loan in an amount equal to its Commitment Percentage of such Swing
Loan. Each Lender will, on the date such Loan pursuant to Section 2.1A(d) was to
have been made, transfer to the Swing Loan Lender in immediately available funds
the amount of its participation and upon receipt thereof the Swing Loan Lender
will deliver to such Lender a Swing Loan participation certificate dated the
date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Lender has received
from any Lender such Lender's participating interest in a Swing Loan, the Swing
Loan Lender receives any payment on account thereof, the Swing Loan Lender will
promptly distribute to such Lender its participating interest in such amount
(appropriately adjusted in the case of interest payments to reflect the period
of time during which such Lender's participating interest was outstanding and
funded); PROVIDED, HOWEVER, that in the event that such payment received by the
Swing Loan Lender is required to be returned, such Lender will return to the
Swing Loan Lender any portion thereof previously distributed by the Swing Loan
Lender to it.
(g) Each Lender's obligation to fund a Loan as provided in Section
2.1A(d) or to purchase participating interests pursuant to Section 2.1A(e) shall
be absolute and
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unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any setoff, counterclaim, recoupment, defense or other right
which such Lender or the Borrower or any Guarantor may have against the Swing
Loan Lender, the Borrower or any Guarantor or anyone else for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default arising after the relevant Swing Loan was advanced by the Swing Loan
Lender; (iii) any adverse change in the condition (financial or otherwise) of
the Borrower or any Guarantor or any of their respective Subsidiaries; (iv) any
breach of this Agreement or any of the other Loan Documents by the Borrower or
any Guarantor or any Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. Any portions of a
Swing Loan not so purchased or converted may be treated by the Swing Loan Lender
as a Loan which was not funded by the non-purchasing Lender as contemplated in
Section 9.1. Each Swing Loan, once so sold or converted, shall cease to be a
Swing Loan for the purposes of this Agreement, but shall be a Loan made by each
Lender under its Commitment.
2.2 NOTES.
(a) REVOLVING CREDIT NOTES. The Loans (other than the Swing Loans
and Competitive Advances) of each Lender shall be evidenced by a promissory note
of the Borrower, substantially in the form of EXHIBIT K, with appropriate
insertions therein as to date and principal amount (each, as endorsed or
modified from time to time, a "REVOLVING CREDIT NOTE" and, collectively with the
Revolving Credit Notes of all other Lenders, the "REVOLVING CREDIT NOTES"),
payable to the order of such Lender for the account of its Applicable Lending
Office in the initial principal face amount equal to the original amount of the
Commitment of such Lender and representing the obligation 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 Revolving Credit Loans of such
Lender and such Lender's share of any payments made by the Issuing Lender
pursuant to any Letters of Credit and such Lender's pro rata percentage of the
aggregate principal amount of all Swing Loans based on its Commitment
Percentage, plus interest and other amounts due and owing to the Lenders under
the Loan Documents. No Lender shall have any obligation to make Loans to the
Borrower of more than the principal face amount of its Revolving Credit Note.
(b) THE REVOLVING CREDIT NOTES GENERALLY. Each Revolving Credit
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
provided in Section 2.9 and shall be stated to mature on the Maturity Date. The
following information shall be recorded by each Lender on its books: (i) the
date and amount of each Loan of such Lender; (ii) its character as a Prime Rate
Loan, a LIBOR Loan or a combination thereof; (iii) the interest rate and
Interest Period applicable to LIBOR Loans; and (iv) each payment and prepayment
of the principal 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.
2.3 PROCEDURE FOR REVOLVING CREDIT LOAN BORROWINGS OTHER THAN
COMPETITIVE ADVANCES.
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(a) REVOLVING CREDIT LOANS. Except for (i) Revolving Credit Loans
which the Borrower has requested to be made as Competitive Advances (as to which
the provisions of Section 2.4 shall apply), and (ii) Revolving Credit Loans
which the Borrower has requested to be made as Swing Loans (as to which
provisions of Section 2.1A shall apply), and subject to the limitations set
forth in Sections 2.1 and 2.3(c), the Borrower may borrow under the Commitments
on any Business Day between the Effective Date and the Maturity Date by
providing notice thereof in accordance with Section 2.3(b).
(b) BORROWING REQUESTS. To request Revolving Credit Loans pursuant
to Section 2.3(a), the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a LIBOR Loan, not later than 12:00 noon,
Massachusetts time, two (2) Business Days before the date of the proposed
borrowing of Revolving Credit Loans or (b) in the case of a Prime Rate Loan, not
later than 12:00 noon, Massachusetts time, one Business Day before the date of
such proposed advance. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information: (i) the aggregate amount of the requested borrowing of Revolving
Credit Loans; (ii) the date of such borrowing of Revolving Credit Loans, which
shall be a Business Day; (iii) whether the requested Revolving Credit Loan is to
be a Prime Rate Loan or a LIBOR Loan; (iv) in the case of a LIBOR Loan, the
initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and (v) the
location and number of the Borrower's account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.3(d).
(c) LIMITS ON ADVANCES. Each borrowing of (i) Prime Rate Loans
shall be in a minimum 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) LIBOR Loans shall be in an aggregate
principal amount equal to $5,000,000 or such amount plus a whole multiple of
$100,000 in excess thereof, or, if less, the Available Commitment Amount.
(d) FUNDING OF REVOLVING CREDIT LOANS. Upon receipt of each
Borrowing Request from the Borrower, the Administrative 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 pursuant to
this Section available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent set forth in Section 11.2 not
later than 1:30 P.M. on the relevant Borrowing Date requested by the Borrower in
funds immediately available to the Administrative Agent at such office. The
amounts so made available to the Administrative Agent on the Borrowing Date will
then, subject to the satisfaction of the terms and conditions of this Agreement,
as determined by the Administrative Agent, be made available on such date to the
Borrower by the Administrative Agent at the office of the Administrative 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 Administrative
Agent, provided that Revolving Credit Loans made to finance the reimbursement of
a payment made by the Issuing Lender pursuant to a Letter of Credit as provided
in Section 2.5 shall be remitted by the Administrative Agent to the Issuing
Lender.
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(e) EFFECT OF INCOMPLETE BORROWING REQUEST. If no election is made
as to the whether the Revolving Credit Loans shall be Prime Rate Loans or LIBOR
Loans, then the requested Revolving Credit Loans shall be Prime Rate Loans. If
no Interest Period is specified with respect to any requested borrowing of LIBOR
Loans, then the Borrower shall be deemed to have selected an Interest Period of
one month's duration.
(f) ADMINISTRATIVE AGENT'S ASSUMPTION. Unless the Administrative
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 Administrative Agent such Lender's pro
rata share of the Loans (including, without limitation, Revolving Credit Loans,
Swing Loans and Competitive Advances), the Administrative Agent may assume that
such Lender has made such share available to the Administrative Agent on the
Borrowing Date in accordance with this Section, provided that such Lender
received notice of the proposed borrowing from the Administrative Agent, and the
Administrative 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
Administrative Agent, such Lender and the Borrower severally agree to pay to the
Administrative 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 Administrative 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 Prime Rate Loans or LIBOR Loans, as initially requested by
Borrower, and, in the case of such Lender, the Federal Funds Rate in effect on
each such day (as determined by the Administrative Agent). Such payment by the
Borrower, however, shall be without prejudice to its rights against such Lender.
If such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Loan as part of the Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by such
Lender on the Borrowing Date applicable to such Loans, but without prejudice to
the Borrower's rights against such Lender.
(g) VOLUNTARY REDUCTION OR TERMINATION OF COMMITMENTS.
(i) The Borrower shall have the right, upon at least three
Business Days' prior written notice to the Administrative Agent, at any time to
terminate the Commitments or from time to time to permanently reduce the
Commitments, provided that (i) the Total Commitment Amount shall not be reduced
below an amount equal to the sum of the aggregate principal balance of the Loans
PLUS the Letter of Credit Exposure PLUS the aggregate principal amount of all
Swing Loans (in each case after giving effect to any contemporaneous prepayment
of the Loans) then outstanding thereunder, and (ii) any such reduction of the
Commitments shall be in the minimum amount of $5,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof. In the event that the Total
Commitment Amount is reduced below the Swing Loan Commitment, the Swing Loan
Commitment shall be reduced to an amount equal to the Total Commitment Amount,
as reduced.
(ii) Reductions of the Commitments shall be applied pro rata
according to the Commitments of each Lender, as the case may be. Simultaneously
with each reduction or termination of the Commitments under this Section, the
Borrower shall prepay the
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Loans outstanding thereunder by the amount, if any, by which the aggregate
unpaid principal balance of such Loans PLUS the Letter of Credit Exposure
exceeds the amount of the Commitments, as so reduced. Simultaneously with a
termination of the Commitments under this Section, the Borrower shall pay the
Facility Fee accrued (but not yet paid). If any prepayment is made under this
Section with respect to any LIBOR Loans, in whole or in part, prior to the last
day of the applicable Interest Period, the Borrower agrees to indemnify the
Lenders in accordance with Section 2.14. No reduction or termination of the
Commitments may be reinstated.
2.4 COMPETITIVE ADVANCES.
(a) Subject to the terms and conditions hereof, at any time and
from time to time from the Effective Date through the Maturity Date, and
provided that no Default or Event of Default shall have occurred and be
continuing, each Lender may in its sole and absolute discretion make Competitive
Advances to Borrower in such principal amounts as Borrower may request pursuant
to a Competitive Bid Request that do not result in (i) the aggregate principal
amount outstanding under the Competitive Advance Notes (after giving effect to
all amounts requested thereunder) being in excess of the LESSER OF (A)
$150,000,000 or (B) an amount equal to 42.86% of the Total Commitment Amount,
and (ii) the aggregate principal amount outstanding under the Notes (after
giving effect to all amounts requested thereunder) PLUS the Letter of Credit
Exposure being in excess of the Total Commitment Amount. A Lender lending to the
Borrower pursuant to this Section 2.4 shall remain obligated to make Loans in
accordance with its Commitment Percentage as provided in Section 2.1.
(b) Borrower shall request Competitive Advances by submitting a
duly completed Competitive Bid Request to the Administrative Agent, which
Competitive Bid Request shall specify the relevant date, amount and maturity for
the proposed Competitive Advance and shall state whether a Competitive Bid is
requested on the basis of a fixed interest rate (a "Absolute Rate Bid") or on
the basis of a margin over LIBOR (a "LIBOR Margin Bid") and which shall be
accompanied by payment of a nonrefundable $2500 competitive bid request fee for
the account of the Administrative Agent. If a LIBOR Margin Bid is requested, the
maturity date shall be one of the Interest Periods, and any such advance shall
be a LIBOR Loan. The proposed funding date shall be a Business Day. The
Administrative Agent shall incur no liability whatsoever hereunder in acting
upon any Competitive Bid Request purportedly made by an Authorized Signatory of
Borrower, which hereby agrees to indemnify the Administrative Agent from any
loss, cost, expense or liability as a result of so acting. The Competitive Bid
Request must be received by the Administrative Agent not later than 12:00 noon
Massachusetts time on a Business Day that is at least five (5) Business Days
prior to the date of the proposed Competitive Advance.
(c) Unless the Administrative Agent otherwise agrees, in its sole
and absolute discretion, no Competitive Bid Request shall be made by Borrower if
Borrower has within the current calendar month submitted five (5) or more
Competitive Bid Requests.
(d) Each Competitive Bid Request must be made for a Competitive
Advance of at least $5,000,000 and shall be in an integral multiple of
$1,000,000.
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(e) No Competitive Bid Request shall be made for a Competitive
Advance with a maturity of less than 7 days or more than 180 days, or with a
maturity date subsequent to the Maturity Date. The Borrower may request offers
to make Competitive Advances for up to four (4) Interest Periods in a single
Competitive Bid Request, provided that in no event shall Borrower be permitted
to have more than four (4) different Interest Periods outstanding at any one
time with respect to all Competitive Advances.
(f) The Administrative Agent shall, promptly after receipt of a
Competitive Bid Request, provide the Lenders a copy thereof by telecopier. Any
Lender may, by written notice to the Administrative Agent, advise the
Administrative Agent that it elects not to be so notified of Competitive Bid
Requests, in which case the Administrative Agent shall not notify such Lender of
the Competitive Bid Request.
(g) Each Lender receiving a Competitive Bid Request may, in its
sole and absolute discretion, make or not make a Competitive Bid responsive to
the Competitive Bid Request. Each Competitive Bid shall be submitted so as to be
received by the Administrative Agent not later than 12:00 noon (or, in the case
of the Domestic Reference Lender, not later than 11:00 a.m.) Massachusetts time
on the date which is four (4) Business Days prior to the requested Competitive
Advance. Any Competitive Bid received by the Administrative Agent after 12:00
noon (or 11:00 a.m. in the case of the Domestic Reference Lender) on such date
shall be disregarded for purposes of this Agreement. The Administrative Agent
shall incur no liability whatsoever hereunder in acting upon any Competitive Bid
purportedly made by a Responsible Official of a Lender, each of which hereby
agrees to indemnify the Administrative Agent from any loss, cost, expense or
liability as a result of so acting with respect to that Lender.
(h) Each Competitive Bid shall specify the fixed interest rate or
the margin over LIBOR, as applicable, for the offered Maximum Competitive
Advance set forth in the Competitive Bid. The Maximum Competitive Advance
offered by a Lender in a Competitive Bid shall not exceed the Competitive
Advance requested and may be less than the Competitive Advance requested by
Borrower in the Competitive Bid Request, but shall be an integral multiple of
$1,000,000. Any Competitive Bid which offers an interest rate OTHER THAN a fixed
interest rate or a margin over LIBOR, is in a form other than as set forth in
EXHIBIT E or which otherwise contains any term, condition, qualification or
provision not contained in the Competitive Bid Request (including without
limitation a requirement of a minimum advance) or is received after the time set
forth in Section 2.4(g) shall be disregarded for purposes of this Agreement. A
Competitive Bid once submitted to the Administrative Agent shall, subject to the
terms of Sections 2.12 and Section 6, be irrevocable until 12:00 noon
Massachusetts time on the date which is two (2) Business Days prior to the
requested Competitive Advance set forth in the related Competitive Bid Request,
and shall expire by its terms at such time unless accepted by Borrower on or
prior thereto.
(i) Promptly after 12:00 noon Massachusetts time on the date which
is four (4) Business Days prior to the date of the proposed Competitive Advance,
the Administrative Agent shall notify Borrower of the names of the Lenders
providing Competitive Bids to the Administrative Agent at or before 12:00 noon
on that date (or 11:45 a.m. in the case of the Domestic Reference Lender) and
satisfying the conditions of this Section 2.4 and the
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Maximum Competitive Advance and fixed interest rate or margin over LIBOR set
forth by each such Lender in its Competitive Bid.
(j) Borrower may, in its sole and absolute discretion, reject any
or all of the Competitive Bids. If Borrower accepts any Competitive Bid, by
telephone or in writing (provided that any acceptance by telephone shall be
confirmed promptly by hand delivery or telecopy of such acceptance signed by
Borrower), the following shall apply: (i) Borrower must accept all Absolute Rate
Bids at all lower fixed interest rates before accepting any portion of a
Absolute Rate Bid at a higher fixed interest rate, (ii) Borrower must accept all
LIBOR Margin Bids at all lower margins over LIBOR before accepting any portion
of a LIBOR Margin Bid at a higher margin over LIBOR, (iii) if two or more
Lenders have submitted a Competitive Bid at the same fixed interest rate or
margin, then Borrowers must accept either all of such Competitive Bids or accept
such Competitive Bids in the same proportion as the Maximum Competitive Advance
of each Lender bears to the aggregate Maximum Competitive Advances of all such
Lenders, (iv) Borrower may not accept Competitive Bids for an aggregate amount
in excess of the requested Competitive Advance set forth in the Competitive Bid
Request, and (v) the principal amount of the Competitive Bids accepted must be
at least $5,000,000 and shall be in an integral multiple of $1,000,000.
Acceptance by Borrower of a LIBOR Margin Bid or Absolute Rate Bid must be made
prior to 12:00 noon Massachusetts time on the date which is two (2) Business
Days prior to the requested Competitive Advance. Acceptance of a Competitive Bid
by Borrower shall be accomplished by telephonic or written notification thereof
to the Administrative Agent (provided that any acceptance by telephone shall be
confirmed promptly by hand delivery or telecopy of such acceptance signed by
Borrower) and shall be irrevocable upon such notification. The Administrative
Agent shall promptly notify each of the Lenders whose Competitive Bid has been
accepted by Borrower by telephone, which notification shall promptly be
confirmed in writing delivered in person or by telecopier to such Lenders. Any
Competitive Bid not accepted or rejected by Borrower by 12:00 noon Massachusetts
time, on the date which is two (2) Business Days prior to the proposed
Competitive Advance, shall be deemed rejected.
(k) In the case of a LIBOR Margin Bid, the Administrative Agent
shall determine LIBOR on the date which is two (2) Business Days prior to the
date of the proposed Competitive Advance, and shall promptly thereafter notify
Borrower and the Lenders whose LIBOR Margin Bids were accepted by Borrower of
such LIBOR rate.
(l) A Lender whose Competitive Bid has been accepted by Borrower
shall make the Competitive Advance in accordance with the Competitive Bid
Request and with its Competitive Bid, subject to the applicable conditions set
forth in this Agreement, by making funds immediately available to the
Administrative Agent at the office of the Administrative Agent set forth in
Section 11.2 in the amount of such Competitive Advance not later than 1:00 p.m.,
Massachusetts time, on the date set forth in the Competitive Bid Request. The
Administrative Agent shall then promptly make available to the Borrower the
aggregate amount of the Competitive Advances made available to the
Administrative Agent by crediting such amount in immediately available funds to
the account of the Borrower on the books of such office of Administrative Agent.
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(m) The Administrative Agent shall notify Borrower and the Lenders
promptly after any Competitive Advance is made of the amounts and maturity of
such Competitive Advances and the identity of the Lenders making such
Competitive Advances.
(n) The Competitive Advances made by a Lender shall be evidenced by
that Lender's Competitive Advance Note.
(o) Each Competitive Advance shall be subject to all of the
provisions of this Agreement generally, provided, however, that a Competitive
Advance shall not reduce a Lender's obligation to fund its Commitment Percentage
of any Loan. No Competitive Advance may be prepaid without the prior written
consent of the affected Lender.
2.5 LETTERS OF CREDIT.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Effective Date through the
day that is thirty (30) days prior to the Maturity Date, the Issuing Lender
shall issue such Letters of Credit as the Borrower may request upon the delivery
of a written request in the form of EXHIBIT L hereto (a "Letter of Credit
Request") to the Issuing Lender, PROVIDED that (i) no Default or Event of
Default shall have occurred and be continuing, (ii) upon issuance of such Letter
of Credit, the outstanding Letters of Credit (including Letters of Credit
accepted but unpaid) shall not exceed Thirty-Five Million and No/100 Dollars
($35,000,000.00), (iii) in no event shall the amount of the Loans outstanding
and the amount of Letters of Credit outstanding (after giving effect to the
Letter of Credit Exposure) exceed the Total Commitment Amount, (iv) the
conditions set forth in Sections 5 and 6 shall have been satisfied, and (v) in
no event shall any amount drawn under a Letter of Credit be available for
reinstatement or a subsequent drawing under such Letter of Credit. Each Letter
of Credit Request shall be executed by an Authorized Signatory of the Borrower.
The Issuing Lender shall be entitled to conclusively rely on such Person's
authority to request a Letter of Credit on behalf of such Borrower. The Issuing
Lender shall have no duty to verify the authenticity of any signature appearing
on a Letter of Credit Request. The Borrower assumes all risks with respect to
the use of the Letters of Credit. Unless the Issuing Lender and the Required
Lenders otherwise consent, the term of any Letter of Credit shall not exceed a
period of time commencing on the issuance of the Letter of Credit and ending on
the date which is fifteen (15) days prior to the Maturity Date (but in any event
the term shall not extend beyond the Maturity Date). The amount available to be
drawn under any Letter of Credit shall reduce on a dollar for dollar basis the
amount available to be drawn under the Total Commitment Amount as a Loan.
(b) Each Letter of Credit Request shall be submitted to the Issuing
Lender at least five (5) Business Days prior to the date upon which the
requested Letter of Credit is to be issued. Following the receipt of a Letter of
Credit Request, the Issuing Lender shall promptly notify each of the Lenders of
the Letter of Credit Request. Each such Letter of Credit Request shall contain
(i) a statement as to the purpose for which such Letter of Credit shall be used
(which purpose shall be in accordance with the terms of Section 2.15 of this
Agreement), and (ii) a certification by an Authorized Signatory of the Borrower
that the Borrower is and will be in compliance with all covenants under the Loan
Documents after giving effect to the issuance of such Letter of Credit. The
Borrower shall further deliver to the Issuing Lender such additional
applications and documents as the Issuing Lender may require, in conformity with
the then
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standard practices of its letter of credit department, in connection with the
issuance of such Letter of Credit; provided that in the event of any conflict,
the terms of this Agreement shall control.
(c) The Issuing Lender shall, if it approves of the content of the
Letter of Credit Request, and subject to the conditions set forth in this
Agreement, issue the Letter of Credit on or before five (5) Business Days
following receipt of the documents last due pursuant to Section 2.5(b). Each
Letter of Credit shall be in form and substance satisfactory to the Issuing
Lender in its sole discretion. Upon issuance of a Letter of Credit, the Issuing
Lender shall provide copies of each Letter of Credit to the Lenders.
(d) Upon the issuance of a Letter of Credit, each Lender shall be
deemed to have purchased a participation therein from Issuing Lender in an
amount equal to its respective Commitment Percentage of the amount of such
Letter of Credit. No Lender's obligation to participate in a Letter of Credit
shall be affected by any other Lender's failure to perform as required herein
with respect to such Letter of Credit or any other Letter of Credit.
(e) Upon the issuance of each Letter of Credit, the Borrower shall
pay to the Issuing Lender (i) for its own account, a Letter of Credit fee
calculated at the rate of one-eighth of one percent (0.125%) per annum of the
amount available to be drawn under such Letter of Credit (which annual fee shall
not be less than $500.00 in any event), and (ii) for the accounts of the Lenders
in accordance with their respective percentage shares of participation in such
Letter of Credit, a Letter of Credit fee calculated at the rate equal to the
Applicable Margin on the amount available to be drawn under such Letter of
Credit (calculated on the basis of a 360-day year). Such fees shall be payable
in quarterly installments in advance with respect to each Letter of Credit
commencing on its date of issuance and continuing on each quarter or portion
thereof thereafter, as applicable, or on any earlier date on which the
Commitments shall terminate and on the expiration or return of any Letter of
Credit. All such fees shall be deemed earned when paid and shall not be
refundable under any circumstances. In addition, the Borrower shall pay to
Issuing Lender for its own account within five (5) days of demand of Issuing
Lender the standard issuance, documentation and service charges for Letters of
Credit issued from time to time by Issuing Lender, such charges not to exceed
$500.00.
(f) In the event that any amount is drawn under a Letter of Credit
by the beneficiary thereof, the Borrower shall reimburse the Issuing Lender by
having such amount drawn treated as an outstanding Prime Rate Loan under this
Agreement and the Administrative Agent shall promptly notify each Lender by
telex, telecopy, telegram, telephone (confirmed in writing) or other similar
means of transmission, and each Lender shall promptly and unconditionally pay to
the Administrative Agent, for the Issuing Lender's own account, an amount equal
to such Lender's Commitment Percentage of such Letter of Credit (to the extent
of the amount drawn). If and to the extent any Lender shall not make such amount
available on the Business Day on which such draw occurs, such Lender agrees to
pay such amount to the Administrative Agent forthwith on demand, together with
interest thereon, for each day from the date on which such draw occurred until
the date on which such amount is paid to the Administrative Agent, at the
Federal Funds Effective Rate until three (3) days after the date on which the
Administrative Agent gives notice of such draw and at the Federal Funds
Effective Rate plus 1% for each day thereafter. Further, such Lender shall be
deemed to have assigned any and all payments made of principal and interest on
its Loans, amounts due with respect to its
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participations in Letters of Credit and any other amounts due to it hereunder to
the Administrative Agent to fund the amount of any drawn Letter of Credit which
such Lender was required to fund pursuant to this Section 2.5(f) until such
amount has been funded (as a result of such assignment or otherwise). In the
event of any such failure or refusal, the Lenders not so failing or refusing
shall be entitled to a priority position for such amounts as provided in Section
9.1. The failure of any Lender to make funds available to the Administrative
Agent in such amount shall not relieve any other Lender of its obligation
hereunder to make funds available to the Administrative Agent pursuant to this
Section 2.5(f).
(g) If after the issuance of a Letter of Credit pursuant to Section
2.5(c) by the Issuing Lender, but prior to the funding of any portion thereof by
a Lender pursuant to Section 2.5(f), one of the events described in Section
9.1(h) or (i) shall have occurred, each Lender will, on the date such Loan
pursuant to Section 2.5(f) was to have been made, transfer to the Issuing Lender
in immediately available funds the amount of its participation based on that
Loan that it was to have made on such date and upon receipt thereof the Issuing
Lender will deliver to such Lender a Letter of Credit participation certificate
dated the date of receipt of such funds and in such amount.
(h) Whenever at any time after the Issuing Lender has received from
any Lender such Lender's payment of funds under a Letter of Credit and
thereafter the Issuing Lender receives any payment on account thereof, then the
Issuing Lender will distribute to such Lender its participating interest in such
amount (appropriately adjusted in the case of interest payments to reflect the
period of time during which such Lender's participating interest was outstanding
and funded); PROVIDED, HOWEVER, that in the event that such payment received by
the Issuing Lender is required to be returned, such Lender will return to the
Issuing Lender any portion thereof previously distributed by the Issuing Lender
to it.
(i) The issuance of any supplement, modification, amendment,
renewal or extension to or of any Letter of Credit shall be treated in all
respects the same as the issuance of a new Letter of Credit.
(j) The obligations of the Borrower to the Lenders under this
Agreement with respect to Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be paid and performed strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever, including, without
limitation, the following circumstances: (i) any improper use which may be made
of any Letter of Credit or any improper acts or omissions of any beneficiary or
transferee of any Letter of Credit in connection therewith; (ii) the existence
of any claim, set-off, defense or any right which the Borrower may have at any
time against any beneficiary or any transferee of any Letter of Credit (or
persons or entities for whom any such beneficiary or any such transferee may be
acting) or the Lenders (other than the defense of payment to the Lenders in
accordance with the terms of this Agreement) or any other person, whether in
connection with any Letter of Credit, this Agreement, any other Loan Document,
or any unrelated transaction; (iii) any statement or any other documents
presented under any Letter of Credit proving to be insufficient, forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever; (iv) any breach of any agreement between
Borrower and any beneficiary or transferee of any Letter of Credit; (v) any
irregularity in the transaction with respect to which any Letter of Credit is
issued, including any fraud by the beneficiary or any
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transferee of such Letter of Credit; (vi) payment by the Issuing Lender under
any Letter of Credit against presentation of a sight draft or a certificate
which does not comply with the terms of such Letter of Credit, provided that
such payment shall not have constituted gross negligence or willful misconduct
on the part of the Issuing Lender, and (vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, provided that such
other circumstances or happenings shall not have been the result of gross
negligence or willful misconduct on the part of the Issuing Lender.
(k) Borrower assumes all risks of the acts, omissions, or misuse of
any Letter of Credit by the beneficiary thereof. Neither Administrative Agent,
Issuing Lender nor any Lender will be responsible for (i) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any Letter of Credit or
any document submitted by any party in connection with the issuance of any
Letter of Credit, even if such document should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) failure
of any beneficiary of any Letter of Credit to comply fully with the conditions
required in order to demand payment under a Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document or draft required by or from a beneficiary in order to make a
disbursement under a Letter of Credit or the proceeds thereof; (vii) the
misapplication by the beneficiary of any Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) any consequences arising from
causes beyond the control of Administrative Agent or any Lender. None of the
foregoing will affect, impair or prevent the vesting of any of the rights or
powers granted to Administrative Agent, Issuing Lender or the Lenders hereunder.
In furtherance and extension and not in limitation or derogation of any of the
foregoing, any act taken or omitted to be taken by Administrative Agent, Issuing
Lender or the other Lenders in good faith will be binding on Borrower and will
not put Administrative Agent, Issuing Lender or the other Lenders under any
resulting liability to Borrower.
2.6 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) PROMISE TO PAY. The Borrower hereby unconditionally promises to
pay to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan on the Maturity Date; provided, however, that
Swing Loans shall be paid pursuant to Section 2.1A and Competitive Advances
shall be paid pursuant to Section 2.4
(b) LENDERS' ACCOUNTS. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the debt of the
Borrower to such Lender resulting from each Loan made by such Lender, including
the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) ADMINISTRATIVE AGENT'S ACCOUNTS. The Administrative Agent shall
maintain accounts in which it shall record (i) the amount of each Loan,
Competitive Advance and payment made by the Issuing Lender pursuant to a Letter
of Credit made hereunder, the type
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of Advance thereof and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iii) the amount of any other sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender's share thereof.
(d) ENTRIES MADE IN ACCOUNTS. The entries made in the accounts
maintained pursuant to paragraphs (b) and (c) of this Section shall, to the
extent not inconsistent with any entries made in any Note and absent manifest
error, be prima facie evidence of the existence and amounts of the obligations
recorded therein, provided that the failure of any Lender, the Swing Loan Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans of
any payment made by the Issuing Lender pursuant to a Letter of Credit in
accordance with the terms of this Agreement.
(e) LOANS EVIDENCED BY NOTES. The Loans and interest thereon shall
at all times (including after assignment pursuant to Section 11.7) be
represented by one or more Notes in like form payable to the order of the payee
named therein and its registered assigns.
2.7 PREPAYMENTS OF THE LOANS.
(a) VOLUNTARY PREPAYMENTS. The Borrower may, at its option, prepay
the Prime Rate Loans and LIBOR Loans, 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 Administrative Agent in
writing at least one Business Day prior to the proposed prepayment date in the
case of Loans consisting of Prime Rate Loans and at least three Business Days
prior to the proposed prepayment date in the case of Loans consisting of LIBOR
Loans, specifying the Loans to be prepaid consisting of Prime Rate Loans, LIBOR
Loans 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 Administrative Agent shall promptly notify each Lender in respect
thereof. Partial prepayments of Prime Rate Loans and/or LIBOR Loans shall be in
an aggregate minimum principal amount of $500,000 or such amount plus a whole
multiple of $500,000 in excess thereof, or, if less, the outstanding principal
balance thereof. After giving effect to any partial prepayment with respect to
LIBOR Loans which were converted on the same date and which had the same
Interest Period, the outstanding principal amount of such LIBOR Loans shall be
at least (subject to Section 2.8(a)) $1,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof. Any Loans prepaid may be reborrowed as
provided in Section 2.1, 2.1A and 2.4. Notwithstanding the foregoing, no prior
notice shall be required for the prepayment of any Swing Loan.
(b) MANDATORY PREPAYMENTS. If not sooner paid, the principal
Indebtedness evidenced by the Notes shall be payable as follows:
(i) the amount, if any, by which the principal Indebtedness
evidenced by the Revolving Credit Notes (after giving effect to all amounts
disbursed thereunder) PLUS the Letter of Credit Exposure PLUS the aggregate
amount of Swing Loans outstanding, at any time exceeds the Total Commitment
Amount shall be payable immediately;
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(ii) the amount, if any, by which the principal Indebtedness
evidenced by the Notes (after giving effect to all amounts disbursed thereunder)
PLUS the Letter of Credit Exposure PLUS the aggregate amount of Swing Loans
outstanding, at any time exceeds the Total Commitment Amount shall be payable
immediately;
(iii) the principal Indebtedness evidenced by each Competitive
Advance Note shall be payable on the maturity date of each Competitive Advance
in the amount of such Competitive Advance; and
(iv) the principal Indebtedness evidenced by the Notes shall
in any event be payable on the Maturity Date.
Upon the occurrence of an event described in Section 2.7(b)(i) or (ii) above,
Borrower shall immediately upon demand from Administrative Agent pay the amount
of such excess to the Administrative Agent first for the account of Swing Loan
Lender for application to outstanding Swing Loans and second for the respective
accounts of the Lenders for application first to Prime Rate Loans and then to
LIBOR Loans
(c) IN GENERAL. If any prepayment is made in respect of any
Advance, in whole or in part, prior to the last day of the applicable Interest
Period, the Borrower agrees to indemnify the Lenders in accordance with Section
2.14.
(d) PARTIAL PREPAYMENTS. Each partial prepayment of the Loans
(other than Prime Rate Loans) under Section 2.7(a) shall be accompanied by the
payment of accrued interest on the principal prepaid to the date of payment and,
after payment of such interest, shall be applied, in the absence of instruction
by the Borrower, first to the principal of any outstanding Swing Loans, and then
to the Lenders in accordance with the provisions of Section 3.2.
2.8 CONVERSIONS.
(a) CONVERSION ELECTIONS. The Borrower may elect from time to time
to convert LIBOR Loans to Prime Rate Loans by giving the Administrative 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 LIBOR Loans
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 Prime Rate Loans
to LIBOR Loans or to convert LIBOR Loans to new LIBOR Loans by giving the
Administrative Agent at least two 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 Prime Rate Loans
to LIBOR Loans shall only be made on a Business Day and any such conversion of
LIBOR Loans to new LIBOR Loans shall only be made on the last day of the
Interest Period applicable to the LIBOR Loans which are to be converted to such
new LIBOR Loans. Each such notice shall be in the form of EXHIBIT M and must be
delivered to the Administrative Agent prior to 12:00 noon on the Business Day
required by this Section for the delivery of such notices to the Administrative
Agent. The Administrative Agent shall promptly provide the Lenders with notice
of any such election. Prime Rate Loans and LIBOR Loans may be converted pursuant
to this Section in whole or in part, provided that conversions of Prime Rate
Loans to LIBOR Loans, or LIBOR Loans to new LIBOR Loans, shall
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be in an aggregate principal amount of $5,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof. This Section shall not apply to
Competitive Advances or Swing Loans, which may not be converted or continued
beyond the Interest Period applicable thereto.
(b) EFFECT ON CONVERSIONS IF AN EVENT OF DEFAULT. Notwithstanding
anything in this Section to the contrary, no Prime Rate Loan may be converted to
a LIBOR Loan, and no LIBOR Loan may be converted to a new LIBOR Loan, if a
Default or Event of Default has occurred and is continuing either (i) at the
time the Borrower shall notify the Administrative Agent of its election to
convert or (ii) on the requested Conversion Date. In such event, such Prime Rate
Loan shall be automatically continued as a Prime Rate Loan or such LIBOR Loan
shall be automatically converted to a Prime Rate Loan on the last day of the
Interest Period applicable to such LIBOR Loan.
(c) CONVERSION NOT A BORROWING. Each conversion shall be effected
by each Lender by applying the proceeds of its new Prime Rate Loan or LIBOR
Loan, 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).
2.9 INTEREST RATE AND PAYMENT DATES.
(a) PRIOR TO MATURITY. Except as otherwise provided in Section
2.9(b), prior to the Maturity Date, 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 Prime Rate Loan Prime Rate plus the Applicable Margin.
Each LIBOR Loan LIBOR for the applicable Interest Period
plus the Applicable Margin.
Each Competitive Advance The rate for the applicable Competitive
Advance determined pursuant to Section
2.4.
Swing Loans The rate for the applicable Swing Loan
determined pursuant to Section 2.1A.
(b) EVENT OF DEFAULT. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of (a) the
LIBOR Rate Loans and any overdue interest with respect thereto shall bear
interest, whether before or after the entry of any judgment thereon, at a rate
per annum equal to LIBOR for the applicable Interest Period plus the Applicable
Margin plus 2% (b) the Prime Rate Loans and any overdue interest with respect
thereto 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 Prime Rate plus 2%.
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(c) INTEREST PAYMENT DATES. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan, provided that
(i) interest accrued pursuant to paragraph (b) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
LIBOR Loans prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.
(d) GENERAL. Interest on (i) Prime Rate Loans shall be calculated
on the basis of a 365-day year and (ii) LIBOR Loans shall be calculated 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. Any change in the interest rate
on the Loans resulting from a change in the Prime Rate or a Pricing Level shall
become effective as of the opening of business on the day on which such change
shall become effective. The Administrative 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 Prime 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
Prime Rate, a LIBOR or a Pricing Level by the Administrative 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 (including Swing Loan Lender), together with the Facility 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 (including Swing Loan Lender) on any date would exceed the
maximum amount permitted by the Highest Lawful Rate, such interest payment shall
automatically 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 the Prime Rate is only
one of the bases for computing interest on loans made by the Lenders, and by
basing interest payable on Prime Rate Loans on the Prime 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.
2.10 SUBSTITUTED INTEREST RATE.
In the event that (i) the Administrative 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 adequate and reasonable means do not exist for ascertaining the LIBOR
applicable pursuant to Section 2.9 or (ii) the Required Lenders shall have
notified the Administrative Agent that they have reasonably determined (which
determination shall be conclusive and binding on the Borrower) that the
applicable LIBOR will not adequately and fairly reflect the cost to such Lenders
of maintaining or funding loans bearing interest based on such LIBOR, with
respect to any portion of the Loans that the Borrower has requested be made as
LIBOR Loans or LIBOR Loans that will result from the requested conversion of any
portion of the Advances into LIBOR Loans (each, an "Affected Advance"),
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the Administrative 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
Administrative Agent shall give such notice, (a) any Affected Advances shall be
made as Prime Rate Loans, (b) the Advances (or any portion thereof) that were to
have been converted to Affected Advances shall be converted to or continued as
Prime Rate Loans and (c) any outstanding Affected Advances shall be converted,
on the last day of the then current Interest Period with respect thereto, to
Prime Rate Loans. Until any notice under clauses (i) or (ii), as the case may
be, of this Section has been withdrawn by the Administrative Agent (by notice to
the Borrower promptly upon either (x) the Administrative Agent having determined
that such circumstances affecting the LIBOR market no longer exist and that
adequate and reasonable means do exist for determining the LIBOR pursuant to
Section 2.9 or (y) the Administrative Agent having been notified by such
Required Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances), no further LIBOR Loans 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 LIBOR Loans.
2.11 TAXES; NET PAYMENTS.
(a) All payments made by the Borrower or any Subsidiary Guarantor
under the Loan Documents shall be made free and clear of, and without reduction
for or on account of, any taxes, levies, imposts, deductions, charges or
withholdings 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 this Agreement and the Commitments and
the payment of the Notes and all other amounts payable 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 hereafter imposing upon the Borrower, an obligation to
withhold any portion of the payments made by the Borrower under the Loan
Documents, that payments to the Administrative Agent on behalf of such Lender
are not subject to withholding.
2.12 ILLEGALITY.
Notwithstanding any other provisions herein, if any law, regulation, treaty
or directive hereafter enacted, promulgated, approved or issued, or any change
in any presently existing law, regulation, treaty or directive, or in the
interpretation or application thereof, shall make it unlawful for any Credit
Party to make or maintain its LIBOR Loans as contemplated by this Agreement,
such Credit Party shall so notify the Administrative Agent and the
Administrative Agent shall forthwith give notice thereof to the other Credit
Parties and the Borrower, whereupon (i) the commitment of such Credit Party
hereunder to make LIBOR Loans or convert Prime Rate Loans to LIBOR Loans shall
forthwith be suspended and (ii) such Credit Party's Loans then outstanding as
LIBOR Loans affected hereby, if any, shall be converted
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automatically to Prime Rate Loans 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 Credit Party with respect to LIBOR Loans is suspended
pursuant to this Section and thereafter it is once again legal for such Credit
Party to make or maintain LIBOR Loans, such Credit Party's commitment to make or
maintain LIBOR Loans shall be reinstated and such Credit Party shall notify the
Administrative Agent and the Borrower of such event. Notwithstanding the
foregoing, to the extent that the conditions giving rise to the notice
requirement set forth in this Section can be eliminated by the transfer of such
Credit Party's Loans or Commitment to another of its branches, and to the extent
that such transfer is not inconsistent with such Credit Party's internal
policies of general application and only if, as determined by such Credit Party
in its sole discretion, the transfer of such Loan or Commitment, as the case may
be, would not otherwise adversely affect such Loans or such Credit Party, the
Borrower may request, and such Credit Party shall use reasonable efforts to
effect, such transfer.
2.13 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 Credit Party (or any corporation
directly or indirectly owning or controlling such Credit Party) with any request
or directive, whether or not having the force of law, from any central bank or
other Governmental Authority, agency or instrumentality:
(a) does or shall subject any Credit Party to any Taxes of any kind
whatsoever with respect to any LIBOR Loans or any Letter of Credit or
participation therein or its obligations under this Agreement to make LIBOR
Loans, issue Letters of Credit or participate therein, or change the basis of
taxation of payments to any Credit Party of principal, interest or any other
amount payable hereunder in respect of its LIBOR Loans or Letters of Credit or
participations therein, including any Taxes required to be withheld from any
amounts payable under the Loan Documents (except for (i) imposition of, or
change in the rate of, tax on the overall net income of such Credit Party or its
Applicable Lending Office for any of such Advances by any jurisdiction,
including, in the case of Credit Parties incorporated in any State of the United
States, such tax imposed by the United States and (ii) any franchise,
unincorporated business or gains taxes); 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 Credit Party in respect of its LIBOR Loans or Letters of Credit or
participations therein, which, in the case of LIBOR Loans, is not otherwise
included in the determination of the LIBOR;
and the result of any of the foregoing is to increase the cost to such Credit
Party of making, issuing, renewing, converting or maintaining its LIBOR Loans,
issuing Letters of Credit or participating therein, or its commitment to make
such LIBOR Loans, issue Letters of Credit or participate therein, or to reduce
any amount receivable hereunder in respect of its LIBOR Loans,
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Letters of Credit or participation therein, then, in any such case, the Borrower
shall pay such Credit Party, upon its demand, any additional amounts necessary
to compensate such Credit Party for such additional cost or reduction in such
amount receivable which such Credit Party deems to be material as reasonably
determined by such Credit Party; provided, however, that nothing in this Section
shall require the Borrower to indemnify the Credit Parties with respect to
withholding Taxes for which the Borrower has no obligation under Section 2.11.
No failure by any Credit Party to demand compensation for any increased cost
during any Interest Period shall constitute a waiver of such Credit Party's
right to demand such compensation at any time. A statement setting forth the
calculations of any additional amounts payable pursuant to the foregoing
sentence submitted by a Credit Party to the Borrower shall be conclusive absent
manifest error. The obligations of the Borrower under this Section shall survive
the termination of this Agreement and any of the Commitments or the payment of
the Notes and all other amounts payable under the Loan Documents for a period of
one hundred eighty (180) days and shall thereafter terminate forever. Failure to
demand compensation pursuant to this Section shall not constitute a waiver of
such Credit Party's right to demand such compensation. To the extent that any
increased costs of the type referred to in this Section are being incurred by a
Credit Party and such costs can be eliminated or reduced by the transfer of such
Credit Party's Loans or Commitment to another of its branches, and to the extent
that such transfer is not inconsistent with such Credit Party's internal
policies of general application and only if, as determined by such Credit Party
in its sole discretion, the transfer of such Loan or Commitment, as the case may
be, would not otherwise materially adversely affect such Loan or such Credit
Party, the Borrower may request, and such Lender shall use reasonable efforts to
effect, such transfer.
2.14 INDEMNIFICATION FOR BREAK FUNDING LOSSES.
Notwithstanding anything contained herein to the contrary, if (i) the
Borrower shall fail to borrow on the Borrowing Date, if it shall have requested
a LIBOR Loan, or shall fail to convert on a Conversion Date, after it shall have
given notice to do so in which it shall have requested a LIBOR Loan pursuant to
Section 2.3 or 2.8, (ii) the Borrower shall fail to borrow after having accepted
one or more offers of Competitive Advances under Section 2.4, or (iii) a LIBOR
Loan or Competitive Advance shall be terminated or prepaid for any reason prior
to the last day of the Interest Period applicable thereto (including, without
limitation, any mandatory prepayment or a prepayment resulting from acceleration
or illegality), the Borrower agrees to indemnify each Credit Party against, and
to pay on demand directly to such Credit Party, any loss or expense suffered by
such Credit Party as a result of such failure to borrow or convert, or such
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 Credit Party's pro rata share of the Affected
Principal Amount;
"B" equals the applicable LIBOR or the rate which such Competitive
Advance bears to such Loan, as the case may be;
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"C" equals the applicable LIBOR 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 Credit Party would have quoted) in an amount
equal approximately to such Credit Party'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 Credit Party;
"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 Credit Party) suffered by such Credit Party
in connection with such LIBOR Loan or Competitive 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. A statement setting forth the
calculations of any amounts payable pursuant to this Section submitted by a
Credit Party to the Borrower shall be conclusive and binding on the Borrower
absent manifest error. The obligations of the Borrower under this Section shall
survive the termination of this Agreement and the Commitments and the payment of
the Notes and all other amounts payable under the Loan Documents.
2.15 USE OF PROCEEDS.
The proceeds of Loans and the issuances of Letters of Credit shall be used
solely for (i) re-financing the Existing Credit Facilities; and (ii) general
business purposes, including, without limitation, working capital.
2.16 CAPITAL ADEQUACY.
If (i) after the date hereof, 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
administration thereof, (ii) compliance with any directive or guideline from any
central bank or United States or foreign Governmental Authority (whether or not
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 Credit Party
(or any lending office of such Credit Party) or any corporation directly or
indirectly owning or controlling such Credit Party or imposes any restriction on
or otherwise adversely affects such Credit Party (or any lending office of such
Credit Party) or any corporation directly or indirectly owning or controlling
such Credit Party and such Credit Party shall have reasonably determined that
such enactment, promulgation, change or compliance has the effect of reducing
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the rate of return on such Credit Party's capital or the asset value to such
Credit Party of any Loan made by such Credit Party, or Letter of Credit issued
by such Credit Party (or participation therein) as a consequence, directly or
indirectly, of its obligations to make and maintain the funding of its Loans or
issue Letters of Credit or participate therein at a level below that which such
Credit Party could have achieved but for such enactment, promulgation, change or
compliance (after taking into account such Credit Party's policies regarding
capital adequacy) by an amount deemed by such Credit Party to be material, then,
upon demand by such Credit Party, the Borrower shall promptly pay to such Credit
Party such additional amount or amounts as shall be sufficient to compensate
such Credit Party 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 Administrative Agent setting forth the determination of such amount or
amounts that will compensate such Credit Party for such reductions shall be
presumed correct absent manifest error. No failure by any Credit Party to demand
compensation for such amounts hereunder shall constitute a waiver of such Credit
Party's right to demand such compensation at any time. Such Credit Party shall,
however, use reasonable efforts to notify the Borrower of such claim within 90
days after the officer of such Credit Party 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 this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.
2.17 ADMINISTRATIVE AGENT'S RECORDS.
The Administrative 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 Administrative 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.
2.18 EXTENSION OF MATURITY DATE. The Borrower shall have the one-time
right and option to extend the Maturity Date to April 25, 2006, upon
satisfaction of the following conditions precedent, which must be satisfied
prior to the effectiveness of any extension of the Maturity Date:
(a) EXTENSION REQUEST. The Borrower shall deliver written notice of
such request (the "Extension Request") to the Administrative Agent not later
than the date which is ninety (90) days prior to the Maturity Date (as
determined without regard to such extension).
(b) PAYMENT OF EXTENSION FEE. The Borrower shall pay to the
Administrative Agent for the PRO RATA accounts of the Lenders in accordance with
their respective Commitments an extension fee in an amount equal to twelve and
one-half (12.5) basis points on the Total Commitment Amount in effect on the
Maturity Date (as determined without regard to such extension), which fee shall,
when paid, be fully earned and non-refundable under any circumstances.
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(c) NO DEFAULT. On the date the Extension Request is given and on
the Maturity Date (as determined without regard to such extension) there shall
exist no Default or Event of Default.
(d) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrower and the Subsidiary Guarantors in the Loan
Documents or otherwise made by or on behalf of the Borrower and the Subsidiary
Guarantors in connection therewith or after the date thereof shall have been
true and correct in all material respects when made and shall also be true and
correct in all material respects on the Maturity Date (as determined without
regard to such extension) other than for changes in the ordinary course of
business permitted by this Agreement that have not had a Material Adverse
Effect.
2.19 REPRESENTATIVE OF BORROWER. Borrower hereby appoints each of the
Authorized Signatories as its agent, attorney-in-fact and representative for the
purpose of making Borrowing Requests, Competitive Bid Requests, acceptance of
Competitive Bids, Letter of Credit Requests, payment and prepayment of Loans and
Competitive Advances, the giving and receipt of notices by and to Borrower under
this Agreement and all other purposes incidental to any of the foregoing.
Borrower agrees that any action taken by any such Authorized Signatory as the
agent, attorney-in-fact and representative of Borrower shall be binding on
Borrower to the same extent as if directly taken by Borrower.
3. FEES; PAYMENTS.
3.1 FACILITY FEE.
(a) The Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders in accordance with each Lender's Commitment Percentage,
an annual fee (the "FACILITY FEE"), from the Effective Date through the Maturity
Date, computed as follows: while any Loans are outstanding, an amount,
determined periodically as hereinafter set forth, equal to the product of (i)
the Applicable Facility Fee Percentage times (ii) the average daily Total
Commitment Amount. The Facility Fee shall be payable in quarterly installments
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, on any
termination of the Total Commitment Amount, and on the Maturity Date. The
Facility Fee (and the Applicable Facility Fee Percentage) shall be calculated on
the basis of a 360 day year for the actual number of days elapsed without regard
to the amount of Loans outstanding during any period for which the Facility Fee
is computed.
(b) The Borrower agrees to pay to FNB and Lead Arranger on the
Effective Date a commitment and loan structuring fee (the "FNB Fee"), as
provided in the Agreement Regarding Fees. FNB shall pay to the other Lenders a
commitment and loan structuring fee in accordance with their separate agreement.
(c) The Borrower agrees to pay any other fees payable to any Credit
Party under any separate agreement at the times so agreed upon in such separate
agreements.
(d) The FNB Fee shall be paid on the date due, in immediately
available funds, to FNB. All fees and other amounts payable under paragraph (a)
of this Section shall be
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paid on the dates due, in immediately available funds, to the Administrative
Agent for distribution, in the case of the Facility Fee and participation fees
described therein, and other fees and amounts payable under this Section shall
be payable directly to the Credit Party to whom such fees and other amounts are
payable. The FNB Fee, the Facility Fee and all other fees and amounts paid shall
not be refundable under any circumstances.
3.2 PAYMENTS; APPLICATION OF PAYMENTS.
Each payment, including each prepayment, of principal and interest on the
Loans and the Facility Fee, the FNB Fee, the Administrative Agent's fees, Letter
of Credit fees and any other amounts due hereunder shall be made by the Borrower
to the Administrative Agent or FNB, as applicable, without set-off, deduction or
counterclaim, at its office set forth in Section 11.2 in funds immediately
available to the Administrative Agent at such office by 12:00 noon on the due
date for such payment. Promptly upon receipt thereof by the Administrative
Agent, the Administrative Agent shall remit, in like funds as received, (i) to
the Lenders who maintain any of their Loans as Prime Rate Loans or LIBOR Loans,
each such Lender's pro rata share of such payments which are in respect of
principal or interest due on such Prime Rate Loans or LIBOR Loans, (ii) to the
Lenders who maintain any of their Revolving Credit Loans as Competitive
Advances, each such Lender's pro rata share of such payments which are in
respect of principal or interest due on such Competitive Advances in accordance
with Section 2.4, (iii) in the case of the Facility Fee, to all Lenders pro rata
in accordance with each Lenders Commitment Percentage thereof, (iv) in the case
of Swing Loan fees, to the Swing Loan Lender, and (v) in the case of Letter of
Credit fees, to the Issuing Lender and the Lenders as provided in Section 2.5.
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 provided in the definition of Interest Period)
shall be extended to the next Business Day and interest shall be payable at the
applicable rate specified herein during such extension. If any payment is made
with respect to any LIBOR Loans or Competitive Advances prior to the last day of
the applicable Interest Period, the Borrower shall indemnify each Lender in
accordance with Section 2.14.
4. REPRESENTATIONS AND WARRANTIES.
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:
4.1 EXISTENCE AND POWER.
(a) The Borrower (i) is a Maryland corporation duly organized and
validly existing and in good standing under the laws of Maryland, (ii) has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and (iii) 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
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where such failure to qualify could not reasonably be expected to have a
Material Adverse Effect.
(b) Each Subsidiary of the Borrower (including each Subsidiary
Guarantor) (i) is a corporation, partnership, limited liability company, real
estate investment trust or business trust, is validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and (ii) is in good standing and authorized to do business in
each other 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.
4.2 AUTHORITY.
The Borrower has full legal power and authority to enter into, execute,
deliver and perform the terms of the Loan Documents to which it is a party 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
corporate action.
4.3 BINDING AGREEMENT.
(a) The Loan Documents to which the Borrower is a party 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) The execution, delivery and performance by the Borrower of the
Loan Documents to which it is a party do not violate the provisions of any
applicable statute, law (including, without limitation, any applicable usury or
similar law), rule or regulation of any Governmental Authority.
4.4 SUBSIDIARIES; DOWNREIT PARTNERSHIPS.
As of the Effective Date, the Borrower has only the Subsidiaries set forth
on SCHEDULE 4.4. SCHEDULE 4.4 sets forth the name of, and the ownership interest
of the Borrower in, each Subsidiary of the Borrower and identifies each
Subsidiary that is a Subsidiary Guarantor, in each case as of the Effective
Date. The shares of each corporate Subsidiary of the Borrower that are owned by
the Borrower 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 (other than Liens
applicable to a partner under the terms of any partnership agreement, or those
applicable to a member under the terms of any limited liability company
operating agreement, to secure the Borrower's obligation to make capital
contributions or similar payments thereunder). As of the Effective Date, the
only DownREIT Partnership is Excel Realty Partners, L.P. As of the Effective
Date, there is no Subsidiary of the Borrower (other than ERT Development
Corporation) that is a guarantor of any unsecured Indebtedness of Borrower
(other than the Loans) that is not also a Subsidiary Guarantor.
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4.5 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 of the Borrower) pending or, to the knowledge
of the Borrower, threatened against the Borrower or any Subsidiary of the
Borrower 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 franchise, right, license, permit or similar
authorization held by the Borrower or any Subsidiary of the Borrower, which
rescission, termination or cancellation could reasonably be expected to have a
Material Adverse Effect.
(b) As of the date hereof, SCHEDULE 4.5 sets forth all actions,
suits and 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 of the Borrower) pending or, to the knowledge of the Borrower,
threatened against the Borrower, any Subsidiary of the Borrower or any of their
respective Properties or rights which, if adversely determined, could have a
Material Adverse Effect.
4.6 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 be obtained by the Borrower to authorize, or is required
in connection with the execution, delivery and performance of the Loan Documents
or is required to be obtained by the Borrower as a condition to the validity or
enforceability of the Loan Documents.
4.7 NO CONFLICTING AGREEMENTS.
Neither the Borrower nor any Subsidiary of the Borrower is in default
beyond any applicable grace or cure period 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, delivery 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 of the Borrower pursuant to the terms
of any such mortgage, indenture, contract or agreement.
4.8 COMPLIANCE WITH APPLICABLE LAWS.
Neither the Borrower nor any Subsidiary of the Borrower 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 of the Borrower is in
compliance in all material respects with all statutes, regulations, rules and
orders applicable to Borrower or such Subsidiary of all Governmental
Authorities, including, without limitation, (i) Environmental Laws and ERISA, a
violation of which could
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reasonably be expected to have a Material Adverse Effect and (ii) Sections
856-860 of the Code, compliance with which is required to preserve the
Borrower's status as a REIT.
4.9 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 permitted under Section 7.4) in which the
failure to pay could reasonably be expected to have a Material Adverse Effect,
and no tax Liens have been filed with respect thereto. The charges, accruals and
reserves on the books of the Borrower and each Subsidiary of the Borrower 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 of its
Subsidiaries or any claims being asserted which could reasonably be expected to
have a Material Adverse Effect.
4.10 GOVERNMENTAL REGULATIONS.
Neither the Borrower nor any Subsidiary of the Borrower is subject to
regulation under the Public Utility Holding Company Act of 1935, as amended, the
Federal Power Act, as amended, or the Investment Company Act of 1940, as
amended, and neither the Borrower nor any Subsidiary of the Borrower 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.
4.11 FEDERAL RESERVE REGULATIONS; USE OF LOAN PROCEEDS.
Neither the Borrower nor any Subsidiary of the Borrower 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 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.
4.12 PLANS; MULTIEMPLOYER PLANS.
As of the Effective Date, 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 Administrative Agent and each
Lender as required by Section 7.2(d). As of December 31, 2001, each Plan was
"fully funded", which for purposes of this
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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.
4.13 FINANCIAL STATEMENTS.
The Borrower has heretofore delivered to the Administrative Agent and the
Lenders (i) copies of the audited Consolidated Balance Sheet of the Borrower and
its Consolidated Subsidiaries as of December 31, 2001, and the Consolidated
Statements of Operations, Stockholders' Equity and Cash Flows for the Borrower
and its Consolidated Subsidiaries for the nine months ended December 31, 2001
and (ii) the Consolidated Statements of Income and Cash Flows for the Borrower
and its Consolidated Subsidiaries for the nine months ending December 31, 2001,
certified by its Chief Financial Officer (collectively, with the related notes
and schedules, the "FINANCIAL STATEMENTS"). The Financial Statements fairly
present in all material respects the Consolidated financial condition and
results of the operations of the Borrower and its Consolidated Subsidiaries as
of the dates and for the periods indicated therein 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 of the Borrower has any
obligation or liability of any kind (whether fixed, accrued, contingent,
unmatured or otherwise) involving material amounts which, in accordance with
GAAP, should have been shown on the Financial Statements and was not. Since
December 31, 2001 there has been no material adverse change in the financial
condition or business of the Borrower and its Subsidiaries taken as a whole.
4.14 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. There are no unpaid or
outstanding real estate or similar taxes or assessments on or against any Real
Property other than (i) real estate or other taxes or assessments that are not
yet due and payable, and (ii) such taxes as the Borrower or any Subsidiary of
the Borrower is contesting in good faith or which individually or in the
aggregate could not reasonably be expected to have a Materially Adverse Effect.
There are no pending eminent domain proceedings against any Real Property, and,
to the knowledge of the Borrower, no such proceedings are presently threatened
or contemplated by any Governmental Authority against any Real Property, which
pending, threatened or contemplated proceedings individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. None
of the Real Property is now damaged as a result of any fire, explosion,
accident, flood or other casualty which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
4.15 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, in each case
that are material and necessary for the conduct of its business, 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
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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.
4.16 ENVIRONMENTAL MATTERS.
(a) The Borrower and each of its Subsidiaries is in compliance with
the requirements of all applicable Environmental Laws except for such
non-compliance which could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(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 violation, in the case of any of (i), (ii) or (iii)
could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries (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 Environmental 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 of the Borrower) or the
release or threatened release of any Hazardous Substance into the environment
which, in either case, could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (ii) has any
threatened or actual liability 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 of the Borrower) or the release or threatened release
of any Hazardous Substance into the environment which, in either case, could,
either individually or in the aggregate, reasonably be expected to have 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 of the Borrower) or a release
or threatened release of any Hazardous Substance into the environment for which
the Borrower or any Subsidiary of the Borrower is or may be liable the results
of which could, in either case, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iv) has received
notice that the Borrower or any Subsidiary of the Borrower is or may be liable
to any Person under any Environmental Law which liability could, either
individually or in the aggregate, reasonably be expected to have 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
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flood hazards, or if any such Real Property is located in such a special flood
hazard area, then the Borrower has obtained all insurance that is required to be
maintained by law or which is customarily maintained by Persons engaged in
similar businesses and owning similar Properties in the same general areas in
which the Borrower operates.
4.17 LABOR RELATIONS.
Neither the Borrower nor any of its Subsidiaries 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 recognition 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.
4.18 [INTENTIONALLY OMITTED.]
4.19 SOLVENCY.
On the Effective Date and immediately following the making of each Loan
(assuming for the purposes of this paragraph that the Letter of Credit Exposure
is included as a part of the Loans), and after giving effect to the application
of the proceeds of such Loan: (a) the fair value of the assets of the Borrower
and its Subsidiaries, taken as a whole, at a fair valuation, will exceed the
debts and liabilities, including Contingent Obligations, of the Borrower and its
Subsidiaries, taken as a whole; (b) the present fair saleable value of the
Property of the Borrower and its Subsidiaries, taken as a whole, will be greater
than the amount that will be required to pay the probable liability of the debts
and other liabilities, subordinated, contingent or otherwise of the Borrower and
its Subsidiaries, as such debts and other liabilities become absolute and
mature; (c) the Borrower and its Subsidiaries, taken as a whole, will be able to
pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and mature; and (d) the Borrower and its
Subsidiaries, taken as a whole, will not have unreasonably small capital with
which to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted hereafter.
4.20 REIT STATUS.
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 Sections 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 compliance in all material respects with all
Code sections applicable to REITs generally and the regulations and rulings
issued thereunder.
4.21 LIST OF UNENCUMBERED ASSETS.
A list of all the Unencumbered Assets as of the date of this Agreement is
attached hereto as SCHEDULE 4.21.
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4.22 OPERATION OF BUSINESS.
The Borrower is a self-advised, and self-managed REIT.
4.23 NO MISREPRESENTATION.
No representation or warranty contained herein and no certificate or report
furnished or to be furnished by the Borrower or any Subsidiary of the Borrower
in connection with the transactions contemplated hereby, contains or will
contain a misstatement 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.
5. CONDITIONS TO INITIAL LOANS.
In addition to the conditions precedent set forth in Section 6, the
obligation of each Lender to make its initial Loan, or the Swing Loan Lender to
make the initial Swing Loan or the Issuing Lender to issue the initial Letter of
Credit shall be subject to the fulfillment of the following conditions
precedent:
5.1 EVIDENCE OF ACTION.
(a) The Administrative Agent shall have received a certificate,
dated the Effective Date, of the Secretary or Assistant Secretary of the
Borrower substantially in the form of EXHIBIT O (i) attaching a true and
complete copy of the resolutions of its Board of Directors authorizing the
execution and delivery of the Loan Documents by the Borrower and the performance
of the Borrower's obligations thereunder, and of all other documents evidencing
other necessary action (in form and substance reasonably satisfactory to the
Administrative Agent) taken by it to authorize the Loan Documents and the
transactions contemplated thereby, (ii) attaching a true and complete copy of
its articles of incorporation and by-laws, (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) certifying that said
corporate charter and by-laws are true and complete copies thereof, are in full
force and effect and have not been amended or modified.
(b) The Administrative Agent shall have received a certificate,
dated the Effective Date, of the Secretary or Assistant Secretary of each
Subsidiary Guarantor substantially in the form of EXHIBIT P (i) attaching a true
and complete copy of the resolutions of its Board of Directors or Trustees, as
the case may be, authorizing its execution and delivery of the Guaranty and the
performance of its obligations thereunder, and of all other documents evidencing
other necessary action (in form and substance reasonably satisfactory to the
Administrative Agent) taken by it to authorize the Guaranty and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its articles of
incorporation or corporate charter or declaration of trust and, if applicable,
by-laws, (iii) setting forth the incumbency of its officer or officers who may
sign the Guaranty, including therein a signature specimen of such officer or
officers, and (iv) certifying that said articles of incorporation, corporate
charter or declaration of trust and, if applicable, by-laws, are true and
complete copies thereof, is in full force and effect and has not been amended or
modified.
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(c) The Administrative Agent shall have received certificates of
good standing for the Borrower from the Maryland State Department of Assessments
and Taxation and for each Subsidiary Guarantor from the Secretary of State for
the State in which such Subsidiary Guarantor is incorporated, and for the
Borrower from each jurisdiction other than Maryland in which the Borrower is
qualified to do business, provided that such Secretaries issue such certificates
with respect to the Borrower.
5.2 THIS AGREEMENT.
The Administrative Agent shall have received counterparts of this Agreement
signed by each of the parties hereto (or receipt by the Administrative Agent
from a party hereto of a facsimile signature page signed by such party which
shall have agreed to promptly provide the Administrative Agent with originally
executed counterparts hereof).
5.3 NOTES.
The Administrative Agent shall have received, for the benefit of each
Lender and the Swing Loan Lender, as the case may be, a Revolving Credit Note
and Competitive Advance Note in favor of each Lender, and the Swing Loan Note in
favor of Swing Loan Lender, each of the Notes, duly executed by an Authorized
Signatory of the Borrower.
5.4 GUARANTY.
The Administrative Agent shall have received counterparts of the Guaranty
signed by each of the Subsidiary Guarantors (or receipt by the Administrative
Agent from a party hereto of a facsimile signature page signed by such party
which shall have agreed to promptly provide the Administrative Agent with
originally executed counterparts thereof).
5.5 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 challenging any other terms
and provisions hereof or thereof or seeking any damages in connection therewith
and the Administrative Agent shall have received a certificate of an Authorized
Signatory of the Borrower to the foregoing effects.
5.6 OPINION OF COUNSEL TO THE BORROWER.
The Administrative Agent shall have received an opinion of (i) Hogan &
Hartson, L.L.P., outside counsel to the Borrower, and (ii) Steven F. Siegel,
Esq., in-house counsel to the Borrower, and (iii) counsel to each Subsidiary
Guarantor, each addressed to the Administrative Agent and the Lenders, and each
dated the Effective Date, and each in form and substance satisfactory to
Administrative Agent, covering such matters as Administrative Agent may
reasonably request.
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5.7 FEES.
The Facility Fee, to the extent then due and payable, the FNB Fee and all
other fees payable to the Administrative Agent, the Lead Arranger, the Lenders,
the Swing Loan Lender and the Issuing Lender shall have been paid.
5.8 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.
6. CONDITIONS OF LENDING - ALL LOANS.
The obligation of each Lender to make any Loan or of the Swing Loan Lender
to make a Swing Loan or an Issuing Lender to issue any Letters of Credit is
subject to the satisfaction of the following conditions precedent as of the date
of such Loan or issuance of such Letter of Credit:
6.1 COMPLIANCE.
On each Borrowing Date and after giving effect to the Loans to be
made or created, and after the issuance of any Letter of Credit, (a) the
Borrower shall be in compliance with all of the terms, covenants and conditions
hereof, (b) there shall not exist and be continuing any 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 (except for representations
and warranties that speak as of a specific date, which need only be true and
correct as of such date), (d) the aggregate outstanding principal balance of the
Loans PLUS the Letter of Credit Exposure plus the aggregate principal amount of
all Swing Loans shall not exceed the Total Commitment Amount, and (e) the
aggregate outstanding principal balance of the Swing Loans shall not exceed the
Swing Loan Commitment. Each notice requesting a Revolving Credit Loan, a
Competitive Advance, a Swing Loan or a Letter of Credit shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof
that each of the foregoing matters is true and correct in all respects.
6.2 LOAN CLOSINGS.
All documents required by the provisions of the Loan Documents to be
executed or delivered to the Administrative Agent on or before the applicable
Borrowing Date or prior to the issuance of a Letter of Credit shall have been
executed and shall have been delivered at the office of the Administrative Agent
set forth in Section 11.2 on or before such Borrowing Date or prior to the
issuance of a Letter of Credit.
6.3 REQUESTS.
With respect to each borrowing of a Loan or issuance of a Letter of
Credit, the Administrative Agent shall have timely received a Borrowing Request,
a Competitive Bid
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Request or Letter of Credit Request, as the case may be, duly executed by an
Authorized Signatory of the Borrower and otherwise in compliance with the terms
of this Agreement.
6.4 DOCUMENTATION AND PROCEEDINGS.
All corporate 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 Administrative
Agent and the Administrative Agent shall have received all information and
copies of all documents which the Administrative 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.
6.5 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 or performed by the Borrower
and to have happened on or prior to such Borrowing Date or prior to the issuance
of a Letter of Credit and which are necessary for the continued effectiveness of
the Loan Documents, shall have been done or performed and shall have happened in
due compliance with all applicable laws.
6.6 APPROVAL OF SPECIAL COUNSEL.
All legal matters in connection with the making of each Loan and
issuance of each Letter of Credit shall be reasonably satisfactory to Special
Counsel.
6.7 SUPPLEMENTAL OPINIONS.
If reasonably requested by the Administrative Agent with respect to
the applicable Borrowing Date or issuance of a Letter of Credit, there shall
have been delivered to the Administrative Agent favorable supplementary opinions
of counsel to the Borrower, addressed to the Administrative Agent and the
Lenders and dated such Borrowing Date or date of issuance of such Letter of
Credit, covering such matters incident to the transactions contemplated herein
as the Administrative Agent may reasonably request.
6.8 OTHER DOCUMENTS.
The Administrative Agent shall have received such other documents
and information with respect to the Borrower and its Subsidiaries or the
transactions contemplated hereby as the Administrative Agent or the Lenders
shall reasonably request.
7. AFFIRMATIVE COVENANTS.
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid or there exists any Letter of Credit Exposure, or any other amount is
owing under any Loan Document to any Lender or the Administrative Agent, or any
Lender has any obligation to make any Loans, or
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the Swing Loan Lender has any obligation to make any Swing Loans or the Issuing
Lender has any obligation to issue any Letters of Credit, the Borrower shall:
7.1 FINANCIAL STATEMENTS.
Maintain a standard system of accounting in accordance with GAAP, and
furnish or cause to be furnished to the Administrative Agent and each Lender:
(a) ANNUAL STATEMENTS. 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 Balance Sheet as at the end of such fiscal year, together with the
related Consolidated Statements of Income, 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 Income, Stockholders' Equity and
Cash Flows shall be audited and certified without qualification by the
Accountants, which certification 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 Consolidated 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 Consolidated 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) ANNUAL OPERATING STATEMENTS AND RENT ROLL. As soon as
available, but in any event within 90 days after the end of each fiscal year of
the Borrower, copies of (i) the operating statements (in a form reasonably
satisfactory to the Administrative Agent) for all Real Property of the Borrower,
and (ii) a Rent Roll, each of which shall be certified by the Chief Financial
Officer to be true, correct and complete in all material respects.
(c) QUARTERLY STATEMENTS. 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 unaudited Consolidated Balance Sheet of the Borrower as at the end
of each such quarterly period, together with the related unaudited Consolidated
Statements of Income and Cash Flows for the elapsed portion of the fiscal year
through the end of such period, 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 as being true, correct and complete in
all material respects and as presenting fairly the Consolidated financial
condition and the Consolidated results of operations of the Borrower and its
Subsidiaries.
(d) QUARTERLY INFORMATION REGARDING UNENCUMBERED ASSETS. As soon as
available, but in any event 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 list of all the Unencumbered Assets owned by the
Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership as of the last day of such fiscal quarter setting forth the
following information with respect to each such Unencumbered Asset as of such
date: (i) asset
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type (i.e., retail shopping center or residential apartment building); (ii)
location; (iii) percentage of the Unencumbered Asset owned by the Borrower, any
wholly owned Subsidiary of the Borrower and each DownREIT Partnership; and (iv)
the Net Operating Income for such Unencumbered Asset during such fiscal quarter.
(e) COMPLIANCE CERTIFICATE. 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, setting forth in reasonable detail the computations
demonstrating the Borrower's compliance with the provisions of Sections 8.12,
8.13, 8.14, 8.15, 8.16, 8.17 and 8.18.
(f) RENT ROLL. Upon the request of the Administrative Agent, a Rent
Roll.
(g) OTHER INFORMATION. Such other information as the Administrative
Agent or any Lender may reasonably request from time to time.
7.2 CERTIFICATES; OTHER INFORMATION.
Furnish to the Administrative Agent and each Lender:
(a) DEFAULTS UNDER OTHER INDEBTEDNESS. Prompt written notice if:
(i) any Indebtedness of the Borrower or any Subsidiary of the Borrower is
declared or shall become due and payable prior to its stated maturity, or called
and not paid when due, or (ii) a default that extends beyond any applicable
notice or grace period 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 of the Borrower 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, $15,000,000 or more;
(b) ACTION OF GOVERNMENTAL AUTHORITIES. Prompt written notice of:
(i) receipt of any citation, summons, subpoena, order to show cause or other
document naming the Borrower or any Subsidiary of the Borrower 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 Intellectual Property, license, permit,
franchise or other authorization issued to the Borrower or any Subsidiary of the
Borrower by any Person or Governmental Authority, which lapse or termination
could reasonably be expected to have a Material Adverse Effect; 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 refusal could reasonably be expected to have a Material
Adverse Effect;
(c) SEC OR OTHER GOVERNMENTAL REPORTS AND FILINGS. Promptly upon
becoming available, copies of all regular, periodic or special reports which the
Borrower or any Subsidiary of the Borrower 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
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Authority succeeding to the functions thereof, pursuant to the Securities
Exchange Act of 1934, as amended.
(d) ERISA INFORMATION. Promptly, and in any event within ten
Business 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
setting forth details with respect to 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 within 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
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(vii) any event or circumstance exists which may reasonably be
expected to constitute grounds for the incurrence of material 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) ERISA REPORTS. Promptly after the request of the Administrative
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) NOTICE OF SALES OR TRANSFERS. Quarterly, on each date that a
Compliance Certificate is to be delivered pursuant to Section 7.1(e), a list of
all sales or transfers of any Unencumbered Assets that occurred during such
quarter; provided that, if during any fiscal quarter of the Borrower any sale or
transfer of an Unencumbered Asset, which combined with all other such sales or
transfers of Unencumbered Assets during such fiscal quarter, would exceed
$100,000,000 in the aggregate, then the Borrower shall promptly provide such
list and a certification of the Chief Financial Officer as to the Borrower's
compliance with Sections 8.12 and 8.16;
(g) CASUALTIES OR CONDEMNATIONS. Prompt written notice of any
casualty or condemnation of any Real Property, if such casualty or condemnation
could reasonably be expected to have a Material Adverse Effect;
(h) ENVIRONMENTAL LAW NOTICES. Prompt written notice of any order,
notice, claim or proceeding received by, or brought against, the Borrower or any
Subsidiary of the Borrower, or with respect to any of the Real Property, under
any Environmental Law, which could reasonably be expected to have a Material
Adverse Effect;
(i) MANAGEMENT LETTERS AND REPORTS. If requested by the
Administrative Agent, promptly thereafter, copies of all material management
letters and similar material reports provided to the Borrower by the
Accountants;
(j) NEW SUBSIDIARY GUARANTORS. Notice of any Subsidiary (i) as to
which Borrower is adding as a Subsidiary Guarantor in the event that the
Borrower and the then current Subsidiary Guarantors contribute less than 80% of
Adjusted Net Operating Income (as further described in Section 7.11(a)) as of
the end of any fiscal quarter of Borrower, or (ii) that has become a guarantor
under any existing or future unsecured Indebtedness of Borrower (as further
described in Section 7.11(a)), such notice to be delivered to the Administrative
Agent concurrently with the delivery of the Compliance Certificate with respect
to such quarter;
(k) CHANGES IN NAME OR FISCAL YEAR. Prompt written notice of (i)
any change in the Borrower's name, with copies of all filings with respect to
such name change attached thereto, and (ii) any change in its fiscal year from
that in effect on the Effective Date.
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(l) DEFAULTS OR EVENTS OF DEFAULT. Prompt written notice if there
shall occur and be continuing a Default or an Event of Default; and
(m) OTHER INFORMATION. Such other information as the Administrative
Agent or any Lender shall reasonably request from time to time.
7.3 LEGAL EXISTENCE.
(a) BORROWER'S LEGAL EXISTENCE. Maintain its status as a Maryland
corporation in good standing in the State of Maryland and in each other
jurisdiction in which the failure so to do could reasonably be expected to have
a Material Adverse Effect.
(b) LEGAL EXISTENCE OF SUBSIDIARIES. Cause each Subsidiary of the
Borrower to maintain its status as a real estate investment trust, business
trust, corporation, limited liability company or partnership, as the case may
be, in good standing in its state of formation and in each other jurisdiction in
which the failure so to do could reasonably be expected to have a Material
Adverse Effect; provided, that Borrower may cause any Subsidiary (other than a
Subsidiary Guarantor, except as allowed by Section 8.2) to be liquidated or
dissolved.
7.4 TAXES.
Pay and discharge when due, and cause each Subsidiary of the Borrower 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, unless
and to the extent only that such Taxes, assessments, governmental charges,
license fees and levies shall be contested in good faith and by appropriate
proceedings diligently conducted by the Borrower or such Subsidiary and such
contest has the effect of staying the collection of any Lien from any Property
of the Borrower or its Subsidiaries arising from such non-payment, and provided
that the Borrower shall give the Administrative Agent prompt notice of such
contest and that such reserve or other appropriate provision as shall be
required in accordance with GAAP (as determined by the Accountants) shall have
been made therefor.
7.5 INSURANCE.
Maintain, and cause each Subsidiary of the Borrower 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
Properties in the same general areas in which the Borrower or the relevant
Subsidiary operates, and file with the Administrative Agent within 10 Business
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 certifying that in the opinion of such officer such insurance
complies with the obligations of the Borrower under this Section, and is in full
force and effect.
7.6 PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF OBLIGATIONS.
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Pay and discharge when due, and cause each Subsidiary of the Borrower to
pay and discharge, all lawful Indebtedness, obligations and claims for labor,
materials and supplies or otherwise which, if unpaid, could reasonably be
expected to have a Material Adverse Effect, unless such Indebtedness shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Borrower or such Subsidiary and such contest has the effect of staying the
collection of any Lien from any Property of the Borrower or its Subsidiaries
arising from such non-payment, and provided that the Borrower shall give the
Administrative Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required in accordance with GAAP (as
determined by the Accountants) shall have been made therefor.
7.7 MAINTENANCE OF PROPERTY; ENVIRONMENTAL INVESTIGATIONS.
(a) 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 of the Borrower so to do, all Property
necessary to the operation of the Borrower's or such Subsidiary's business.
(b) In the event that the Administrative 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 reasonably be expected to have a Material
Adverse Effect, promptly conduct and complete (at the Borrower's expense) all
investigations, studies, samplings and testings relative to such Hazardous
Substances as the Administrative Agent may reasonably request.
7.8 OBSERVANCE OF LEGAL REQUIREMENTS.
(a) Observe and comply in all respects, and cause each Subsidiary
of the Borrower 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 applicable to it, except (i) where noncompliance with any of the
foregoing (individually or in the aggregate) could not reasonably be expected to
have a Material Adverse Effect, or (ii) such thereof as shall be contested in
good faith and by appropriate proceedings diligently conducted by it and such
contest has the effect of staying the collection of any Lien from any Property
of the Borrower or its Subsidiaries arising from such noncompliance, and
provided that the Borrower shall give the Administrative Agent prompt notice of
any contest with respect to clause (ii) to the extent that noncompliance could
reasonably be expected to have a Material Adverse Effect and that such reserve
or other appropriate provision as shall be required in accordance with GAAP (as
determined by the Accountants) shall have been made therefor.
(b) Use and operate all of its facilities and property in
compliance with all Environmental Laws and cause each of its Subsidiaries so to
do, and keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith and cause each of its Subsidiaries so to do, and handle all
Hazardous Materials in compliance with all applicable Environmental Laws and
cause each
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of its Subsidiaries so to do, except where noncompliance with any of the
foregoing (individually or in the aggregate) could not reasonably be expected to
have a Material Adverse Effect.
7.9 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 Administrative 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 required under the
circumstances, 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. Borrower may have a representative
accompany Administrative Agent or any Lender on any such visit, inspection or
discussion.
7.10 LICENSES, INTELLECTUAL PROPERTY.
Maintain, and cause each Subsidiary of the Borrower to maintain, in full
force and effect, all licenses, franchises, Intellectual Property, permits,
authorizations and other rights as are necessary for the conduct of its
business, the loss of which could reasonably be expected to have a Material
Adverse Effect.
7.11 ADDITIONAL GUARANTORS.
At any time after the date hereof, in the event that, during any fiscal
quarter of Borrower, Borrower and the Subsidiary Guarantors do not own
Unencumbered Assets which contribute at least eighty percent (80%) of the
Adjusted Net Operating Income for all Unencumbered Assets of the Borrower and
its Subsidiaries on a Consolidated basis, then, at the time that Borrower is to
provide the Compliance Certificate with respect to such quarter to
Administrative Agent, Borrower shall cause such Subsidiaries of Borrower, as
designated by the Borrower and approved by Administrative Agent (such approval
not to be unreasonably withheld), to execute and deliver a Guaranty to the
Administrative Agent, for the benefit of the Lenders, duly executed by such
Subsidiaries (together with certificates and attachments of a nature similar to
those described in Section 5.1(b) and (c) with respect to such Subsidiaries and
an opinion of counsel of a nature similar to those in the form required pursuant
to Section 5.6 (iii)) so that Borrower and the Subsidiary Guarantors will again
own Unencumbered Assets which contribute at least 80% of the Adjusted Net
Operating Income for all Unencumbered Assets of the Borrower and its
Subsidiaries on a Consolidated basis. Additionally, in the event that any
Subsidiary of the Borrower, whether presently existing or hereafter formed or
acquired, which is not a Subsidiary Guarantor at such time, shall after the date
hereof become a guarantor under any existing or future unsecured Indebtedness of
Borrower, then promptly after the Administrative Agent's request therefor,
Borrower shall cause such Subsidiary to execute and deliver a Guaranty to the
Administrative Agent, for the benefit of the Lenders, duly executed by such
Subsidiaries (together with certificates and attachments of a nature similar to
those described in Section 5.1(b) and (c) with respect to such Subsidiaries and
an opinion of counsel of a nature similar to those in the form required pursuant
to Section 5.6 (iii)). Notwithstanding the foregoing, the foregoing
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Adjusted Net Operating Income for all Unencumbered Assets threshold of this
Section shall not be applicable from and after the occurrence of, and during the
continuance of, (i) an Event of Default, or (ii) a reduction by S&P of its
Senior Debt Rating below BBB- or a reduction by Moody's of its Senior Debt
Rating below Baa3 (it being understood that at such time, the Administrative
Agent can require any Subsidiary of the Borrower (other than an Excluded
Subsidiary) which has not executed a Guaranty to immediately comply with
requirements of this Section).
7.12 REIT STATUS; OPERATION OF BUSINESS.
(a) Maintain its status under Sections 856 ET SEQ. of the Code as a
REIT.
(b) Carry on all business operations of the Borrower as a
self-advised, self-managed REIT.
(c) Manage, or cause one or more of its Subsidiaries at all times
to manage, at least 90% of all Properties of the Borrower and its Subsidiaries.
(d) Cause the common stock of Borrower at all times to be listed
for trading and to be traded on the New York Stock Exchange, the American Stock
Exchange or another nationally recognized stock exchange.
7.13 MORE RESTRICTIVE AGREEMENTS.
Should Borrower or any Subsidiary Guarantor after the date hereof enter
into any agreement or modify any existing agreement (a "More Restrictive
Agreement") relating to any unsecured Indebtedness of Borrower or any Subsidiary
Guarantor that includes negative covenants or default provisions (or any other
provision which may have the same practical effect) which are more restrictive
against Borrower or any Subsidiary Guarantor than those set forth in Section 8,
Section 9.1(g) or Section 9.1(j) of this Agreement (the "Original Provisions"),
the Borrower shall promptly notify the Administrative Agent and, if requested by
the Required Lenders, the Borrower, the Administrative Agent, and the Required
Lenders shall (and if applicable, the Borrower shall cause any Subsidiary
Guarantor to) promptly amend this Agreement and the other Loan Documents to
include some or all of such more restrictive provisions as determined by the
Required Lenders in their sole discretion. The Borrower and each Subsidiary
Guarantor agree to deliver to the Administrative Agent copies of any agreements
or documents (or modifications thereof) pertaining to any such Indebtedness as
the Administrative Agent from time to time may request. Notwithstanding the
foregoing, any amendments to provisions contained in this Agreement and the
other Loan Documents made pursuant to this Section 7.13 shall only be effective
for such period of time as the applicable More Restrictive Agreement is in full
force and effect (or continues to be more restrictive), and upon the termination
of the effectiveness of such More Restrictive Agreement (or upon such More
Restrictive Agreement becoming less restrictive than the corresponding Original
Provision), the provisions affected by such amendment shall return to the
applicable Original Provisions.
7.14 TERMINATION OF EXISTING CREDIT FACILITIES. On the Effective Date,
the Borrower shall qualify for, and shall request a Loan for the purpose of
paying all loans outstanding under
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the Existing Credit Facilities, together with all interest, fees, breakage costs
and other amounts outstanding thereunder, and shall terminate any commitment or
right to borrow under the Existing Credit Facilities.
8. NEGATIVE COVENANTS.
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, or there exists any Letter of Credit Exposure, or any other amount is
owing under any Loan Document to any Lender or the Administrative Agent, or any
Lender has any obligation to make any Loans or the Issuing Lender has any
obligation to issue any Letters of Credit, the Borrower shall not, directly or
indirectly:
8.1 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 of the
Borrower so to do, except the following "Permitted Liens": (i) Liens for Taxes,
assessments or similar charges incurred in the ordinary course of business which
are not delinquent or the existence of which do not otherwise violate the
covenants in Section 7.4, (ii) Liens in connection with workers' compensation,
unemployment insurance or other social security obligations (but not ERISA and
other types of statutory obligation incurred in the ordinary course of
business), (iii) Liens, deposits or pledges to secure bids, tenders, contracts
(other than contracts for the payment of money), leases, statutory obligations,
surety or appeal bonds, performance bonds, completion bonds or other obligations
of like nature arising in the ordinary course of business, (iv) zoning
ordinances, easements, rights of way, use restrictions, exclusive use
limitations in any lease of Real Property, reciprocal easement agreements, minor
defects, irregularities, and other restrictions, charges or encumbrances
affecting Real Property (whether or not recorded), which do not materially
adversely affect the value of such Real Property or materially 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 the existence of which do not otherwise violate the
covenants in Section 7.6, (vi) Liens arising out of judgments or decrees which
are being contested in accordance with Section 7.8 or the existence of which do
not otherwise violate the covenants in Section 7.8 or result in a default
pursuant to Section 9.1(j), (vii) mortgages and related financing statements and
security agreements on Real Property, provided that the existence of such
mortgages, and the indebtedness secured thereby, does not cause the Borrower to
be in violation of Section 8.15 or 8.16, (viii) Liens in favor of the Borrower
or any Subsidiary Guarantor, provided that the Indebtedness secured by any such
Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interests of
lessees and lessors under leases of real or personal property made in the
ordinary course of business which could not reasonably be expected (individually
or in the aggregate) to have a Material Adverse Effect, (x) Liens on the
interests of Borrower or any Subsidiary of Borrower in a Joint Venture, provided
that the existence of such Liens, and the indebtedness secured thereby, does not
cause the Borrower to be in violation of Section 8.15, (xi) Liens under Capital
Leases, provided that the existence of such Capital Lease, and the indebtedness
secured thereby, does not cause the Borrower to be in violation of Section 8.15,
and (xii) Liens not otherwise permitted by clauses (i) through (xi) of this
Section which do not in the aggregate exceed, in principal amount, $15,000,000.
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8.2 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 (in one transaction or a series of transactions), or permit any
Subsidiary Guarantor so to do, or liquidate or dissolve, except (i) the merger
or consolidation of any Subsidiary Guarantor of the Borrower into or with the
Borrower, (ii) the merger or consolidation of any two or more Subsidiary
Guarantors (including any Subsidiaries that become Subsidiary Guarantors upon
the consummation of such a transaction with a Subsidiary Guarantor), (iii) the
merger or consolidation of the Borrower or a Subsidiary Guarantor with any other
Person, provided that (A) the Borrower or such Subsidiary Guarantor is the
surviving entity in such merger or consolidation, or contemporaneously with the
consummation of such transaction the surviving entity becomes a Subsidiary
Guarantor, (B) the total book value of the assets of the entity which is merged
into or consolidated with the Borrower or such Subsidiary Guarantor is less than
35% of the total book value of the assets of the Borrower and its Subsidiaries
on a Consolidated basis immediately following such merger or consolidation, (C)
immediately prior to such merger or consolidation the Borrower shall have
provided to the Administrative Agent a Compliance Certificate prepared on a
pro-forma basis (and adjusted in the best good faith estimate of the Borrower,
based on the advice of the Accountants, to give effect to such merger or
consolidation) demonstrating that after giving effect to such merger or
consolidation, no Default shall exist with respect to any of the covenants set
forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16, 8.17 and 8.18 and (D) after
giving effect to such merger or consolidation, no Event of Default shall then
exist, or (iv) the merger or consolidation of a Subsidiary Guarantor with any
other Person in which such other Person shall be the surviving entity, the
liquidation or dissolution of a Subsidiary Guarantor, or the sale, lease or
other disposition by a Subsidiary Guarantor of all or substantially all of its
Property, so long as, after giving effect to such transaction, (x) no Default or
Event of Default shall then exist, (y) such transaction does not violate Section
8.2(b) and (z) Borrower and/or the Subsidiary Guarantors (including any new
Subsidiary Guarantors provided by the Borrower pursuant to Section 7.11(a) in
connection with such transaction) own Unencumbered Assets which contribute at
least 80% of the Adjusted Net Operating Income for all Unencumbered Assets of
the Borrower and its Subsidiaries on a Consolidated basis. In the event that a
Subsidiary Guarantor shall engage in a transaction permitted by Section
8.2(a)(iv) (other than a lease of all or substantially all of its assets), then
such Subsidiary Guarantor shall be released by Administrative Agent from
liability under the Subsidiary Guaranty, provided that the Borrower shall
deliver to Administrative Agent evidence satisfactory to Administrative Agent
that (X) the Borrower will be in compliance with all covenants of this Agreement
after giving effect to such transaction, (Y) if such transaction involves the
sale or disposition by a Subsidiary Guarantor of all or substantially all of its
Property, such Subsidiary Guarantor shall be legally dissolved after its release
from the Subsidiary Guaranty (provided further that a Subsidiary Guarantor that
has transferred substantially all of its assets may be released from its
liability under the Subsidiary Guaranty without dissolving upon the approval of
the Administrative Agent, which approval may be withheld in its sole discretion)
and (Z) the net cash proceeds from such sale or disposition are being
distributed to Borrower as part of such dissolution. Nothing in this Section
8.2(a) shall in any way restrict the activities of a Subsidiary that is not a
Subsidiary Guarantor.
(b) Except as expressly permitted by Section 8.2(a), sell,
transfer, contribute, master lease or dispose of any of its Property, either
directly or indirectly, or permit any
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Subsidiary Guarantor so to do, except that if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred and be
continuing, (i) any Subsidiary Guarantor may sell, transfer, contribute, master
lease or otherwise dispose of its assets to the Borrower or to any other
Subsidiary Guarantor, (ii) the Borrower may sell, transfer, contribute, master
lease or otherwise dispose of its assets to any Subsidiary Guarantor, (iii) in
connection with any transaction pursuant to which a Real Property asset of
Borrower or any Subsidiary Guarantor is or will be encumbered with a mortgage
(as permitted under Section 8.1(vii)), the Borrower or any Subsidiary Guarantor
may transfer such asset to any Subsidiary, (iv) Borrower or any Subsidiary
Guarantor of Borrower may sell, transfer, contribute or dispose of worn-out or
obsolete Property, (v) Borrower or any Subsidiary Guarantor may sell, transfer,
contribute, master lease or otherwise dispose of any of its assets to any
Subsidiary, so long as, after giving effect to such transaction, Borrower and/or
the Subsidiary Guarantors (including any new Subsidiary Guarantors provided by
the Borrower pursuant to Section 7.11(a) in connection with such transaction)
own Unencumbered Assets which contribute at least 80% of the Adjusted Net
Operating Income for all Unencumbered Assets of the Borrower and its
Subsidiaries on a Consolidated basis, and (vi) the Borrower or any Subsidiary of
the Borrower may sell, transfer, contribute, master lease or otherwise dispose
of Property in an arm's length transaction (or, if the transaction involves an
Affiliate of the Borrower, if the transaction complies with Section 8.8),
including, without limitation, a disposition of Property pursuant to a merger or
consolidation (so long as such merger or consolidation is not prohibited by
Section 8.2(a)), provided, however, that for any fiscal year of the Borrower,
any sale, transfer, master lease, contribution or other disposition of Property
in reliance on this clause (vi) which when combined with all other sales,
transfers, master leases, contributions or dispositions of Property in reliance
on this clause (vi) made in such fiscal year shall not exceed 25% of the total
book value of all Property of the Borrower and its Subsidiaries determined as of
the date of each such transaction. Nothing in this Section 8.2(b) (other than
clause (vi)) shall in any way restrict the activities of a Subsidiary that is
not a Subsidiary Guarantor.
8.3 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 acquiring, holding or investing in or
loaning or advancing 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 of the Borrower so to do, (all of which are sometimes referred to
herein as "INVESTMENTS", it being understood, without limitation, that the
provision by Borrower or any Subsidiary of guarantees and/or letters of credit
to other Persons shall not constitute Investments but shall instead constitute
Indebtedness) except the following (to the extent that maintaining any thereof
would not at any time violate the requirements of Section 856(c) of the Code):
(a) demand deposits, certificates of deposit, bankers acceptances
and 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;
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(b) short-term direct obligations of the United States of America
or agencies thereof whose obligations are guaranteed by the United States of
America;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States or any
State thereof which at the time of purchase are rated by S&P or Moody's at not
less than "A1" or "P1," respectively;
(d) mortgage-backed securities guaranteed by the Governmental
National Mortgage Association, the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation and other mortgage-backed bonds which at
the time of purchase are rated by S&P or Moody's at not less than "Aa" or "AA,"
respectively;
(e) repurchase agreements having a term not greater than 90 days
and fully secured by securities described in the foregoing paragraph (b) or (d)
with banks described in the foregoing paragraph (a) or with financial
institutions or other corporations having total assets in excess of $50,000,000;
(f) shares of "money market funds" registered with the SEC under
the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in the investments described in one or more of the foregoing
paragraphs (a) through (e) and have total assets of in excess of $50,000,000;
(g) Real Property;
(h) Subject to Section 8.17, equity investments in any Person
(other than Subsidiaries) and Notes Receivable investments;
(i) Investments (debt or equity) in Subsidiaries of the Borrower;
(j) investments in respect of (1) equipment, inventory and other
tangible personal property or intangible property acquired in the ordinary
course of business, (2) current trade and customer accounts receivable for
services rendered in the ordinary course of business, (3) advances to employees
for travel expenses other company-related expenses, and (4) prepaid expenses
made in the ordinary course of business;
(k) Hedging Agreements made in connection with any Indebtedness;
(l) repurchases of any common or preferred stock or other equity
interests (or securities convertible into such interests) in the Borrower that
have been previously issued by the Borrower which do not exceed, in any calendar
year, (1) 10% of the aggregate outstanding shares of common and preferred stock
and other equity interests in Borrower as of the date hereof, in any
combination, plus (2) 10% of the aggregate of any additional shares of common
and preferred stock and other equity interests in Borrower issued after the date
hereof, in any combination;
(m) redemptions of preferred stock of the Borrower in accordance
with the terms thereof;
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(n) redemptions for cash or common Stock of the Borrower of units
of limited partner interests or limited liability company interests in a
DownREIT Partnership;
(o) loans or advances to employees of the Borrower, provided that
all such loans in the aggregate do not at any time exceed $25,000,000 in the
aggregate;
(p) Capital Leases; and
(q) subject to Section 8.17, any other Investments not included in
paragraphs (a) through (p) deemed appropriate by the Borrower (provided that in
no event shall Investments made in reliance upon the exception set forth in this
paragraph (q) exceed $75,000,000 in any fiscal year of Borrower).
8.4 BUSINESS CHANGES.
Change in any material respect the nature of the business of the Borrower
or its Subsidiaries as conducted on the Effective Date.
8.5 AMENDMENTS TO ORGANIZATIONAL DOCUMENTS.
Amend or otherwise modify its corporate charter or by-laws in any way
(other than in connection with the issuance or classification of preferred stock
of the Borrower) which would adversely affect the interests of the
Administrative Agent and the Lenders under any of the Loan Documents, or permit
any Subsidiary of the Borrower to amend its organizational documents in a manner
which could have the same result.
8.6 [INTENTIONALLY OMITTED.]
8.7 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 of the Borrower so to do, except for sale and leasing transactions
described herein for which the combined selling price of all Property subject to
all such transactions does not exceed $100,000,000 in any fiscal year of
Borrower.
8.8 TRANSACTIONS WITH AFFILIATES.
Become a party to any transaction in an amount that exceeds $100,000 with
an Affiliate unless the terms and conditions relating thereto (i) have been
approved by a majority of the disinterested directors of the Borrower, (ii) have
been approved by a majority of votes cast by the stockholders of the Borrower,
or (iii) are upon fair and reasonable terms, no less favorable to the Borrower
or its Subsidiaries than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate of the Borrower or its Subsidiary, or
permit any Subsidiary of the Borrower so to do.
8.9 ISSUANCE OF ADDITIONAL CAPITAL STOCK BY SUBSIDIARY GUARANTORS.
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Permit any Subsidiary Guarantor to issue any additional Stock or other
equity interest of such Subsidiary Guarantor, other than the issuance of
partnership or limited liability company units in a DownREIT Partnership which
is a Subsidiary Guarantor, provided that such units are issued in consideration
of the contribution to the DownREIT Partnership of assets qualifying as "real
estate assets" under Section 856(c) of the Code.
8.10 HEDGING AGREEMENTS.
Enter into, or permit any of its Subsidiaries to enter into, any Hedging
Agreement, other than Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate interest rate risks to which the Borrower or any
Subsidiary of the Borrower is exposed in the conduct of its business or the
management of its liabilities.
8.11 RESTRICTED PAYMENTS.
Permit the Borrower to make Restricted Payments, except that:
(i) except as set forth in clause (ii) below, the Borrower
may declare and pay dividends payable with respect to its equity securities in
any fiscal quarter of the Borrower if after giving effect to such dividend, such
dividend, when added to the amount of all other such dividends paid in the same
fiscal quarter and the preceding three (3) fiscal quarters, would not exceed the
greater of (A) ninety-five percent (95%) of its Funds from Operations for the
four fiscal quarters ending prior to the quarter in which such dividend is paid
or (B) the minimum amount of such dividends required under the Code to enable
the Borrower to continue to maintain its status under the Code as a REIT, as
evidenced (in the case of clause (B)) by a certification of Chief Financial
Officer containing calculations in reasonable detail satisfactory in form and
substance to Administrative Agent;
(ii) if an Event of Default under Section 9.1(a) or (b) has
occurred and is continuing, the Borrower may declare and pay dividends with
respect to its equity securities which shall not exceed the minimum amount of
such dividends required under the Code to enable the Borrower to continue to
maintain its status under the Code as a REIT, as evidenced by a certification of
Chief Financial Officer containing calculations in reasonable detail reasonably
satisfactory in form and substance to Administrative Agent;
(iii) the Borrower may effect Stock repurchases to the extent
permitted by Sections 8.3(l) or 8.3(m);
(iv) the Borrower may effect "cashless exercises" of options
granted under the Borrower's stock option plans;
(v) the Borrower may distribute rights or equity securities
under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends (or effect
Stock splits or reverse Stock splits) with respect to its equity securities
payable solely in additional shares of its equity securities.
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8.12 UNENCUMBERED ASSETS COVERAGE RATIO.
Permit the Unencumbered Assets Coverage Ratio to be less than 2.0:1.0 at
any time.
8.13 FIXED CHARGE COVERAGE RATIO.
Permit the Fixed Charge Coverage Ratio to be less than 1.75:1.0 at any
time.
8.14 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 the sum of (i) $1,250,000,000,
plus (ii) 80% of the aggregate net proceeds received by the Borrower from and
after the Effective Date in connection with the issuance of any capital stock of
the Borrower.
8.15 MAXIMUM TOTAL INDEBTEDNESS.
(a) Permit at any time Consolidated Total Indebtedness to be more
than 55% of Adjusted Consolidated Total Assets at such time; or
(b) Permit at any time the Consolidated Total Indebtedness secured
by mortgages on Real Property owned by the Borrower and its Subsidiaries at such
time to exceed 40% of Adjusted Consolidated Total Assets at such time.
8.16 INDEBTEDNESS TO UNENCUMBERED ASSETS RATIO.
Permit at any time the portion of the Consolidated Total Indebtedness
(which shall exclude Indebtedness of Joint Ventures that are not Subsidiaries)
consisting of Consolidated unsecured Indebtedness of the Borrower and its
Subsidiaries at such time to be more than 55% of Unencumbered Asset Value at
such time.
8.17 MAXIMUM BOOK VALUE OF ANCILLARY ASSETS.
Permit the book value of the Ancillary Assets at any time to be more than
25% of the Adjusted Consolidated Total Assets of the Borrower and its
Subsidiaries on a Consolidated basis at such time. For purposes of this Section
8.17 the book value of any Ancillary Asset not owned 100%, directly or
indirectly, by the Borrower or any of its Subsidiaries shall be adjusted by
multiplying the same by the Borrower's Interest in such Ancillary Asset during
the fiscal quarter of the Borrower ending as of any date of determination of
such book value.
8.18 DEVELOPMENT ACTIVITY.
Engage, directly or indirectly, or permit any Subsidiary or Joint Venture
to engage, in the ground-up development of Real Property except for the
ground-up development of New Construction Assets to be used principally as a
retail shopping center, provided that the book value of New Construction Assets
by Borrower and its Subsidiaries and Joint Ventures shall not at any time exceed
fifteen percent (15%) of the Borrower's Adjusted Consolidated Total Assets. For
purposes of this Section 8.18 the book value of any New Construction Assets not
owned
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100%, directly or indirectly, by the Borrower or any of its Subsidiaries shall
be adjusted by multiplying the same by the Borrower's Interest in such New
Construction Asset during the fiscal quarter of the Borrower ending as of any
date of determination of such book value.
9. DEFAULT.
9.1 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,
any reimbursement obligations under the Letters of Credit (other than
obligations included in Section 9.1(a)), or any other fees, expenses or other
charges 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 2.15; or
(d) The failure of the Borrower to observe or perform any covenant
or agreement contained in Section 7.12(a), 7.12(b), or 8 (other than Sections
8.1, 8.3, 8.5, 8.7, 8.8 and 8.10 as to which the provisions of paragraph (e)
below shall apply); 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 notice thereof from the Administrative
Agent to the Borrower, provided that if Borrower shall have exercised reasonable
diligence to cure such failure and such failure cannot be cured within such 30
day period despite such reasonable diligence, Borrower shall have the right to
cure such failure within 90 days after the date of such notice from
Administrative Agent provided Borrower diligently and continuously pursues the
completion of such cure; 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 misstatement 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 of the Borrower, whether as principal,
guarantor, 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 (after the expiration
of any applicable notice and cure periods) prior to the expressed maturity
thereof, and the sum of all such Indebtedness which is the subject of paragraphs
(i) - (iii) inclusive exceeds (A) at any time, in the case of
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Indebtedness other than Non-Recourse Indebtedness, $15,000,000, and (B) in any
calendar year, in the case of Non-Recourse Indebtedness, $50,000,000 in the
aggregate during such year; or
(h) The Borrower or any Subsidiary of the Borrower shall (i)
suspend or discontinue its business (except as permitted by Section 7.3 or 8.2),
(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, or (xii) take any formal action for the purpose of
effecting any of the foregoing; provided that the events described in this
Section 9.1(h) as to any Subsidiary of the Borrower that is not a Subsidiary
Guarantor shall not constitute an Event of Default unless the aggregate book
value of Borrower's direct or indirect equity Investment in all such
Subsidiaries exceeds $50,000,000; or
(i) 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 insolvent,
(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, or (iv)
ordering the winding up or liquidation of the affairs of the Borrower or any
Subsidiary, and any such decree or order continues unstayed and in effect for a
period of 60 days; provided that the events described in this Section 9.1(i) as
to any Subsidiary of the Borrower that is not a Subsidiary Guarantor shall not
constitute an Event of Default unless the aggregate book value of Borrower's
direct or indirect equity Investment in all such Subsidiaries exceeds
$50,000,000; or
(j) Judgments or decrees against the Borrower or any Subsidiary of
the Borrower not covered by insurance aggregating in excess of $15,000,000 shall
not be paid, stayed on appeal, discharged, bonded or dismissed for a period of
45 days; or
(k) 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
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(l) 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, equal to or in excess
of $15,000,000 individually or in the aggregate; or
(m) There shall occur a Change of Control; or
(n) If any Loan Document (i) is determined by any court or
Governmental Authority to be illegal, invalid or unenforceable in accordance
with its terms, or (ii) shall be canceled, terminated, revoked or rescinded
other than in accordance with its terms or with the written consent or approval
of the Lenders; or
(o) (i) Any Subsidiary Guarantor shall fail to comply in any
material respect with any covenant made by it in the Guaranty or if at any time
any representation or warranty made by any Subsidiary Guarantor in the Guaranty
or in any other document, statement or writing made to the Administrative Agent,
the Lead Arranger or the Lenders shall prove to have been incorrect or
misleading in any material respect when made, or (ii) if a default by any
Subsidiary Guarantor shall occur under the Guaranty after the expiration of any
applicable notice and grace period; or (iii) if any Subsidiary Guarantor shall
revoke or attempt to revoke, contest, commence any action or raise any defense
(other than the defense of payment) against its obligations under the Guaranty;
or
(p) There shall occur and be continuing an Event of Default under
and as defined in the Existing Credit Agreements.
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 (h) or (i) above, the 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 Administrative 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 consent of the Required
Lenders, Administrative Agent may, and upon the direction of the Required
Lenders shall, by notice to the Borrower, declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate, and
(ii) with the consent of the Required Lenders, the Administrative 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
Administrative Agent may, and upon the direction of the Required Lenders shall,
exercise any and all remedies and other rights provided pursuant to the Loan
Documents. Except as otherwise provided in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly 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 Document. Notwithstanding anything
contained herein
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to the contrary, if demanded by Administrative Agent or the Required Lenders in
their sole and absolute discretion after the occurrence of an Event of Default,
Borrower will deposit with and pledge to Administrative Agent cash in an amount
equal to the amount of all undrawn Letters of Credit. Such amounts will be
pledged to and held by Administrative Agent for the benefit of the Lenders as
security for any amounts that become payable under the Letters of Credit and all
other obligations hereunder. Upon any draws under Letters of Credit, at
Administrative Agent's sole discretion, Administrative Agent may apply any such
amounts to the repayment of amounts drawn thereunder and upon the expiration of
the Letters of Credit any remaining amounts will be applied to the payment of
all other obligations of Borrower under the Loan Documents or if there are no
such outstanding obligations and Lenders have no further obligation to make
Loans or issue Letters of Credit or if such excess no longer exists, such
proceeds deposited by Borrower will be released to Borrower.
In the event that the 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 Administrative Agent and the Lenders from or
on behalf of the Borrower shall be applied by the Administrative 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
Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower; (ii) second, to reimburse the Administrative Agent and the Lenders for
any expenses due from the Borrower pursuant to the provisions of Section 11.5;
(iii) third, to the payment of all other fees, expenses and amounts due under
the Loan Documents (other than principal and interest on the Notes); provided,
however, that distributions in respect of such fees and expenses due to the
Administrative Agent from the Borrower shall be made pari passu with respect to
the payment of any other fees, expenses or amounts due the Lenders from the
Borrower; (iv) fourth, to the payment of interest due on the Swing Note; (v)
fifth, to the payment of principal outstanding on the Swing Note; (vi) sixth, to
the payment of interest due on the Notes; (vii) seventh, to the payment of
principal outstanding on the Notes; and (viii) eighth, to the payment of any
other amounts owing to the Administrative Agent, the Lead Arranger and the
Lenders under any Loan Document or other document or agreement entered into in
connection with the transactions contemplated thereby. In the event that any
Lender shall have wrongfully failed or refused to make an advance under Section
2.1, 2.1A, 2.3, 2.4 or 2.5 and such failure or refusal shall be continuing,
advances made by the other Lenders during the pendency of such failure or
refusal shall be entitled to be repaid as to principal and accrued interest in
priority to the other obligations described in subsections (ii) - (viii) in the
preceding sentence.
10. THE AGENT.
10.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints FNB as the
Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes FNB, as the Administrative 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 Administrative Agent by the terms of the Loan
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Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in any Loan Document,
the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth therein, or any fiduciary or trustee 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 Administrative Agent.
10.2 DELEGATION OF DUTIES.
The Administrative 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.
10.3 EXCULPATORY PROVISIONS.
Neither the Administrative 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 Credit
Parties 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 Administrative 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 Administrative
Agent shall not be under any obligation to any Credit Party 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 or any of its Subsidiaries. The Administrative Agent
shall not be under any liability or responsibility whatsoever, as Administrative
Agent, to the Borrower or any other Person as a consequence of any failure or
delay in performance, or any breach, by any Credit Party of any of its
obligations under any of the Loan Documents.
10.4 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative 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 reasonably
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 Administrative Agent. The
Administrative 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 Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent. The Administrative
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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 therewith, and the
Administrative Agent shall be entitled to assume that the same are valid,
effective and genuine, have been signed or sent by the proper parties and are
what they purport to be. The Administrative 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
appropriate or as set forth herein. The Administrative 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.
10.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
the Administrative Agent for the account of the Lenders, unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative 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 Administrative Agent shall have
received such directions, the Administrative 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.
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter, including any review of the affairs of the
Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative 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 its
Subsidiaries and made its own decision to enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative 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 and its Subsidiaries. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, Property,
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financial and other condition or creditworthiness of the Borrower and its
Subsidiaries which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7 INDEMNIFICATION.
Each Lender agrees to indemnify and reimburse the Administrative 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 Administrative Agent) by the Borrower, any
Subsidiary Guarantor 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
Administrative 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 Administrative 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, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting
solely from the gross negligence or willful misconduct of the Administrative
Agent. The agreements in this Section shall survive the payment of all amounts
payable under the Loan Documents.
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
FNB and its affiliates may make loans to, accept deposits from, issue
letters of credit for the account of, and generally engage in any kind of
business with, the Borrower and its Subsidiaries as though FNB was not
Administrative Agent hereunder. With respect to the Commitment made or renewed
by FNB and the Note issued to FNB, FNB 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 Administrative Agent, and the terms "Lender" and "Lenders" shall in
each case include FNB.
10.9 SUCCESSOR ADMINISTRATIVE AGENT.
If at any time the Administrative Agent deems it advisable, in its sole
discretion, it may submit to each of the Lenders a written notice of its
resignation as Administrative Agent under this Agreement, such resignation to be
effective upon the earlier of (i) the written acceptance of the duties of the
Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 60th day after the date of such notice. Upon any such
notice of resignation, the Required Lenders shall have the right to appoint from
among the Lenders a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 45 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent shall, in consultation with the Borrower, appoint a
successor Administrative Agent on behalf of
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the Lenders prior to the end of the 60th day from such notice from among any of
the Lenders who shall have at such time agreed to act as the successor
Administrative Agent and shall have at such time a Commitment of at least
$10,000,000 (an "APPROVED SUCCESSOR"). If no Lender has a Commitment of at least
$10,000,000 (or no Lender whose Commitment is at least $10,000,000 shall agree
to accept such appointment), then the retiring Administrative Agent shall, in
consultation with the Borrower (unless an Event of Default has occurred and is
continuing), appoint any other Lender or any other 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 as a successor
Administrative Agent. Any appointment of a successor Administrative Agent shall
be subject to the approval of the Borrower, which approval shall not be
unreasonably withheld or delayed, and shall be given in any event prior to the
end of the 60th day from the date of the retiring Administrative Agent's notice
of resignation, provided that during any period in which there exists and is
continuing an Event of Default, no approval from the Borrower to the appointment
of an Approved Successor shall be required. Upon the acceptance of an
appointment as Administrative Agent hereunder by a successor Administrative
Agent and any required approval of such successor Administrative Agent by the
Borrower in accordance with the terms of this Section, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent's rights, powers, privileges and duties as
Administrative 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 Administrative Agent's resignation
hereunder as Administrative 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 Administrative Agent under the Loan Documents. The Supermajority Lenders
may remove the Administrative Agent from its capacity as administrative agent in
the event of the Administrative Agent's willful misconduct or gross negligence.
The Commitment of the Lender then acting as Administrative Agent, if the
Administrative Agent is being removed due to willful misconduct or gross
negligence pursuant to this Section 10.9, shall be disregarded in determining
the Supermajority Lenders. Such removal shall be in accordance with the
Intercreditor Agreement of even date herewith among the Administrative Agent and
the Lenders which provides, among other things, that any successor
Administrative Agent must satisfy the conditions for a successor Administrative
Agent contained above in this Section 10.9.
11. OTHER PROVISIONS.
11.1 AMENDMENTS AND WAIVERS.
With the written consent of the Required Lenders, the Administrative 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 Administrative 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 Administrative 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, without the
consent of all of the Lenders: (i) increase the Commitment of any Lender or the
Total Commitment Amount or decrease the Commitment of any Lender other than a
pro rata reduction of the Total Commitment in
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accordance with the terms of this Agreement; (ii) extend the Maturity Date;
(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 on, 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 definitions of "Required Lender" or "Supermajority
Lenders", (v) amend the definitions of "Applicable Facility Fee Percentage" or
"Applicable Margin", (vi) release any Subsidiary Guarantor from its obligations
under a Guaranty except as provided in Section 8.2, or (vii) change the
provisions of Section 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16, 3.1 or
11.1; and provided further that no such amendment, supplement, modification,
waiver or consent shall amend, modify, waive or consent to a departure from any
provision of Section 10 or otherwise change any of the rights or obligations of
the Administrative Agent under the Loan Documents without the written consent of
the Administrative Agent. The Administrative Agent shall cause a copy of each
written request for such an amendment, supplement or modification delivered by
the Borrower to it to be delivered to each Lender. 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 Administrative Agent and all future holders of the Notes. In the
case of any waiver, the parties to the applicable agreement, the Lenders and the
Administrative 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. Notwithstanding anything contained herein to the contrary,
there shall be no amendment, modification or waiver of any provisions in the
Loan Documents with respect to Swing Loans, Competitive Advances or Letters of
Credit without the consent of the Swing Loan Lender, or any Lender then holding
a Competitive Advance, or Issuing Lender, respectively. The Administrative Agent
and the Lenders acknowledge and agree that certain rights among the
Administrative Agent and the Lenders, including, without limitation, deemed
approval rights with respect to waivers and amendments, are governed by and set
forth in that certain Intercreditor Agreement dated of even date herewith among
the Lenders and the Administrative Agent.
11.2 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 with a confirmation received, or if sent by
overnight nationwide commercial courier, the Business Day following the date
such notice is deposited with said courier, and in any case addressed as follows
in the case of the Borrower or the Administrative Agent, and at the Domestic
Lending Office in the case of each Lender, or to such other addresses as to
which the Administrative Agent may be hereafter notified by the respective
parties hereto or any future holders of the Notes:
The Borrower:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas; 12th Floor
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New York, New York 10036
Attention: John B. Roche,
Chief Financial Officer
Telephone: (212) 869-3000
Telecopy: (212) 869-3989
with a copy to:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq., General Counsel
Telephone: (212) 869-3000
Telecopy: (212) 869-7460
The Administrative Agent:
Fleet National Bank
100 Federal Street
Boston, Massachusetts 02110
Attention: Real Estate Division
with a copy to:
Fleet National Bank
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attention: William Lamb, Vice President
Telephone: (770) 390-6547
Telecopy: (770) 390-8434
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Section 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.
11.3 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.
11.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
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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.
11.5 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 FNB,
Administrative Agent and Lead Arranger for all of their reasonable out-of-pocket
costs and expenses reasonably incurred in connection with the development,
preparation, negotiation 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 each Credit Party for all of its respective reasonable costs
and expenses, including, without limitation, reasonable fees and disbursements
of counsel, reasonably incurred in connection with (x) any Default or Event of
Default and any enforcement or collection proceedings resulting therefrom
(including, without limitation, any reasonable costs incurred after the entry of
judgment in an attempt to collect money due in the judgment) or in connection
with the negotiation 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 Credit
Party 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 Credit Party 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 from any
third party 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 reasonable
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
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the Borrower shall have no obligation hereunder to pay indemnified liabilities
to any Credit Party arising from (A) the gross negligence or willful misconduct
of such Credit Party or (B) disputes solely between the Credit Parties 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 shall not be payable by the Borrower if (x) any
such enforcement action brought by such Credit Party is dismissed, with
prejudice, on the pleadings or pursuant to a motion made by the Borrower for
summary judgment, and (y) if such Credit Party appeals such dismissal, such
dismissal is affirmed and the time for any further appeals has expired. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.
11.6 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 Administrative Agent and the Borrower of any such change of
office. Such office shall thereupon become such Lender's Domestic Lending Office
or LIBOR Lending Office, as the case may be; provided, however, that no such
Lender shall be entitled to receive any greater amount under Section 2.13, 2.14
or 2.16 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.
11.7 SUCCESSORS AND ASSIGNS.
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative 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
Administrative Agent and all of the Lenders.
(b) Each Lender shall have the right at any time, upon written
notice to the Administrative 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 Administrative Agent (which consent,
from each of them, shall not be unreasonably withheld or delayed 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 (a) any such bank, insurance company, pension fund, mutual fund or
other financial institution shall have a net worth as of the date of such sale,
assignment, transfer or negotiation of not less than $500,000,000, unless
otherwise approved by the Administrative Agent, (b) unless otherwise approved by
the Administrative Agent and the Borrower (which
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consent from Borrower shall not be unreasonably withheld or delayed and shall
not be required from Borrower upon the occurrence and during the continuance of
an Event of Default), such assignee shall acquire an interest in the Loans of
not less than $5,000,000 unless such assignee is acquiring all of the assigning
Lender's Commitment, (c) such sale, assignment, transfer or registration is
subject to the terms of the intercreditor agreement dated of even date herewith
among the Lenders and the Administrative Agent, (d) in no event shall any
voting, consent or approval rights of a Lender be assigned to any Person
controlling, controlled by or under common control with, or which is not
otherwise free from influence or control by, the Borrower or any Subsidiary
Guarantor or any Affiliate thereof, which rights shall instead be allocated pro
rata among the other remaining Lenders, and (e) there shall be paid to the
Administrative Agent by the assigning Lender a fee (the "Assignment Fee") of
$3,500. For each assignment, the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance and recording an
Assignment and Assumption Agreement. Upon such execution, delivery, acceptance
and recording by the Administrative Agent, from and after the effective date
specified in such Assignment and Assumption Agreement, the assignee thereunder
shall be a party hereto and, to the extent provided in such Assignment and
Assumption Agreement, the assignor Lender thereunder shall be released from its
obligations under the Loan Documents. The Borrower agrees upon written request
of the Administrative 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
Assumption 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 Assumption
Agreement, in an aggregate principal amount equal to the balance of such
assignor Lender's Loans and Commitment, if any, and each assignor 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 C
shall be adjusted accordingly by the Administrative Agent and a new EXHIBIT C
shall be distributed by the Administrative Agent to the Borrower and each
Lender. In connection with such assignment, the assignor may assign all or any
portion of its Competitive Advance Note and the Competitive Advances at the time
owing to it, which, if so assigned, shall be assigned in such proportion as the
assignor and assignee agree, but in no event shall the assignee acquire an
interest in the Competitive Advances of the assignor of less than $5,000,000.00;
provided, however, that in the event such assignor assigns all of its
Commitment, such assignor shall assign all of its Competitive Advance Note and
Competitive Advances, if any, in connection therewith. In the event that a
portion of a Competitive Advance is assigned to such assignee, the Borrower
shall upon the request of such assignee execute and deliver to such assignee a
Competitive Advance Note, dated the effective date of such assignment and which
shall otherwise be in substantially the form of the Competitive Advance Notes.
(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 companies,
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
Administrative 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
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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 acknowledges
and agrees that any such participant shall for purposes of Sections 2.10, 2.11,
2.12, 2.13, 2.14, 2.15 and 2.16 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 made pursuant to paragraph (b) above or
(ii) any participation granted pursuant to paragraph (c) above 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 Administrative
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
percent 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
Administrative 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
paragraph (b) above. In the event that a Lender that is also a Syndication
Agent, Documentation Agent or Managing Agent assigns all of its Commitment,
contemporaneously with the effectiveness of such assignment, such Lender shall
no longer serve in such capacity as Syndication Agent, Documentation Agent or
Managing Agent, as applicable.
(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.
11.8 [INTENTIONALLY OMITTED].
11.9 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
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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 Administrative 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.
11.10 ADJUSTMENTS; SET-OFF.
(a) If any Lender, including Swing Loan Lender (a "Benefited
Lender"), shall at any time receive any payment of all or any part of its Loans
or participation in payments made by the Issuing Lender pursuant to a Letter of
Credit or Swing Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 9.1(h) or (i), 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 participation in
payments made by the Issuing Lender pursuant to a Letter of Credit or Swing
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
participation in payments made by the Issuing Lender pursuant to a Letter of
Credit or Swing 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 or participations in payments by the Issuing Lender
pursuant to a Letter of Credit or Swing 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 warrant.
Each Lender agrees promptly to notify the Borrower and
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the Administrative 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.
11.11 LENDERS' REPRESENTATIONS.
Each Lender represents to the Administrative 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.
11.12 INDEMNITY.
The Borrower agrees to indemnify and hold harmless each Credit Party and
its affiliates, directors, officers, employees, affiliates, agents, controlling
persons and attorneys (each an "INDEMNIFIED PERSON") from and against any loss,
reasonable cost, liability, damage or reasonable expense (including 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 respect
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
2.15, 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
or not 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 willful misconduct of such Indemnified Person or arising solely
from claims between one such Indemnified Person and another such Indemnified
Person.
11.13 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.
11.14 HEADINGS DESCRIPTIVE.
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Section headings have been inserted in the Loan Documents for convenience
only and shall not be construed to be a part thereof.
11.15 SEVERABILITY.
Every provision of the Loan Documents is intended to be severable, 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.
11.16 INTEGRATION.
All exhibits to a Loan Document shall be deemed to be a part thereof and
shall be deemed a proper disclosure in all relevant provisions of the Loan
Documents. The Loan Documents embody the entire agreement and understanding
among the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter thereof and supersede all prior agreements and understandings
among the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter thereof.
11.17 CONSENT TO JURISDICTION.
The Borrower and each of the Credit Parties hereby irrevocably submit 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 and each of the Credit Parties hereby irrevocably
waive, to the fullest extent permitted or not prohibited by law, any objection
which any of them 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 parties intend that Section 5-1402 of the New York
General Obligations Law shall apply to this Section 11.17.
11.18 SERVICE OF PROCESS.
The Borrower hereby agrees that process may be served against it in any
suit, action or proceeding referred to in Section 11.17 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.
11.19 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 Administrative Agent or any
Lender to serve process in any manner permitted by law or limit the right of the
Administrative Agent or any Lender to bring
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proceedings against the Borrower in the courts of any jurisdiction or
jurisdictions in which the Borrower may be served.
11.20 WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM 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 ADMINISTRATIVE
AGENT, THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE 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
ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.21 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, Facility 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, each Lender
whose obligations under the Notes have been fully paid shall promptly return to
the Borrower its Note marked "paid" or shall deliver other evidence that such
Lender has received full payment of such obligations.
11.22 REPLACEMENT NOTES.
Upon receipt of evidence reasonably satisfactory to the Borrower of the
loss, theft, destruction or mutilation of any Note, and in the case of any such
loss, theft or destruction, upon delivery by the relevant Lender of an indemnity
agreement reasonably satisfactory to the Borrower or, in the case of any such
mutilation, upon surrender and cancellation of the applicable Note, the Borrower
will execute and deliver, in lieu thereof, a replacement Note, identical in form
and substance to the applicable Note and dated as of the date of the applicable
Note and upon such execution and delivery all references in the Loan Documents
to such Note shall be deemed to refer to such replacement Note.
[SIGNATURES ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have caused this 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 EXCEL REALTY TRUST, INC.
By: /s/ John B. Roche
--------------------------------
John B. Roche,
Chief Financial Officer
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FLEET NATIONAL BANK, a national
banking association, individually and
as Administrative Agent
By: /s/ Bill Lamb
--------------------------------
William Lamb
Vice President
Fleet National Bank
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: William Lamb
Facsimile: 770/390-8434
and
Fleet National Bank
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
Facsimile: 617/434-7108
Signature Page to New Plan $350MM Revolving Credit Agreement
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CITICORP NORTH AMERICA, INC.,
individually and as Co-Managing Agent
By: /s/ David Bouton
--------------------------------
David Bouton
Vice President
Citicorp North America, Inc.
390 Greenwich Street
1st Floor
New York, New York 10022
Attn: Mr. Michael Chlopak
Facsimile: (212) 723-8380
and
Citicorp North America, Inc.
2 Penns Way
Suite 200
New Castle, Delaware 19720
Attn: Ms. Lizanne Bradley
Facsimile: (302) 894-6120
Signature Page to New Plan $350MM Revolving Credit Agreement
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BANK OF AMERICA, N.A., individually
and as Co-Documentation Agent
By: /s/ Michael Edwards
--------------------------------
Michael Edwards
Managing Director
Bank of America, N.A.
231 South LaSalle St., 12th Floor
Chicago, Illinois 60697
Attn: Mr. Jeffrey Kahl
Facsimile: (312) 974-4970
Signature Page to New Plan $350MM Revolving Credit Agreement
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BANK ONE, NA, individually and as
Co-Syndication Agent
By: /s/ James Krcmarik
--------------------------------
James Krcmarik
Associate Director
Capital Markets
Bank One, NA
Mail Code IL1-0315
1 Bank One Plaza
14th Floor
Chicago, Illinois 60670
Attn: Ms. Patricia Leung
Facsimile: (312) 732-5939
Signature Page to New Plan $350MM Revolving Credit Agreement
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KEYBANK NATIONAL ASSOCIATION, a
national banking association,
individually and as Co-Managing Agent
By: /s/ John C. Scott
--------------------------------
John C. Scott
Assistant Vice-President
KeyBank National Association
127 Public Square, 8th Floor
Cleveland, Ohio 44114
Attn: Mr. John C. Scott
Facsimile: (216) 689-4997
and
KeyBank National Association
127 Public Square, 8th Floor
Cleveland, Ohio 44114
Attn: Ms. Florentine G. Djulvezan
Facsimile: (216) 689-3566
Signature Page to New Plan $350MM Revolving Credit Agreement
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THE BANK OF NEW YORK, individually
and as Co-Syndication Agent
By: /s/ Rick Laudisi
--------------------------------
Name: Rick Laudisi
-------------------------
Title: Vice President
------------------------
Bank of New York
One Wall Street
New York, New York 10286
Attn: Mr. Rick Laudisi
Facsimile: (212) 809-9526
Signature Page to New Plan $350MM Revolving Credit Agreement
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WELLS FARGO BANK, N.A., individually
and as Co-Documentation Agent
By: /s/ Christopher B. Wilson
--------------------------------
Christopher B. Wilson
Vice President
Wells Fargo Bank, N.A.
40 West 57th Street
22nd Floor
New York, New York 10019
Attn: Christopher Wilson
Facsimile: 212/581-0979
Signature Page to New Plan $350MM Revolving Credit Agreement
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CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By: /s/ Ming-Hsien Lin
--------------------------------
Ming-Hsien Lin
Vice President and General Manager
Chang Hwa Commercial Bank,
Ltd., New York Branch
c/o JP Morgan
4 Chase MetroTech Center
20th Floor
Brooklyn, New York 11245
Attn: Han Li
Facsimile: 718/242-7159
Signature Page to New Plan $350MM Revolving Credit Agreement
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SUNTRUST BANK
By: /s/ Nancy B. Richards
--------------------------------
Nancy B. Richards
Vice President
SunTrust Bank
Real Estate Finance Group
8245 Boone Boulevard
Suite 820
Vienna, Virginia 22182
Attn: Nancy B. Richards
Facsimile: 703/902-9245
Signature Page to New Plan $350MM Revolving Credit Agreement
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ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Joel Eisenberg
--------------------------------
Name: Joel Eisenberg
Title: Vice President
By: /s/ Marc G. Cooper
--------------------------------
Name: Marc G. Cooper
Title: Vice President
Israel Discount Bank of New York
511 Fifth Avenue
New York, New York 10017
Attn: Marc Cooper
Facsimile: 212/551-8717
and
Israel Discount Bank of New York
511 Fifth Avenue
New York, New York 10017
Attn: Laury Quiles
Facsimile: 212/551-8872
Signature Page to New Plan $350MM Revolving Credit Agreement
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Thomas Nastarowicz
--------------------------------
Thomas Nastarowicz
Vice President
PNC Bank, National Association
Two Tower Center Blvd.
18th Floor
East Brunswick, New Jersey
Attn: Thomas Nastarowicz
Signature Page to New Plan $350MM Revolving Credit Agreement