1
EXHIBIT 10.26
================================================================================
CREDIT AGREEMENT
by and among
NEW PLAN REALTY TRUST
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS AGENT
----------------
$50,000,000
----------------
Dated as of November 21, 1997
================================================================================
2
CREDIT AGREEMENT, dated as of November 21, 1997, by and among NEW PLAN
REALTY TRUST a Massachusetts business trust (the "Borrower"), each lender party
hereto or which becomes a "Lender" pursuant to the provisions of Sections 2.20
or 11.7 (each a "Lender" and, collectively, the "Lenders"), and THE BANK OF NEW
YORK, as agent (in such capacity, the "Agent").
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:
"ABR Advances": the Loans (or any portions thereof) at such time
as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Accountants": Coopers & Lybrand (or any successor thereto), or
such other firm of certified public accountants of recognized national standing
selected by the Borrower and reasonably satisfactory to the Required Lenders.
"Advance": an ABR Advance, a Eurodollar Advance or a Competitive
Bid Advance, as the case may be.
"Affected Advance": as defined in Section 2.10.
"Affected Principal Amount": in the event that (i) the Borrower
shall fail for any reason to borrow or convert after it shall have notified the
Agent of its intent to do so in any instance in which it shall have requested a
Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall have accepted one or
more offers of Competitive Bid Advances under Section 2.5, an amount equal to
the principal amount of such Eurodollar Advance or Competitive Bid Advance; (ii)
a Eurodollar Advance or Competitive Bid Advance shall terminate for any reason
prior to the last day of the Interest Period applicable thereto, an amount equal
to the principal amount of such Eurodollar Advance or Competitive Bid Advance;
and (iii) the Borrower shall prepay or repay all or any part of the principal
amount of a Eurodollar Advance or Competitive Bid Advance prior to the last day
of the Interest Period applicable thereto, an amount equal to the principal
amount of such Eurodollar Advance or Competitive Bid Advance so prepaid or
repaid.
"Affiliate": as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, control of a Person shall
mean the power, direct or indirect, (i) to vote 5% or more of the securities
having ordinary voting power for the
3
election of directors of such Person or (ii) to direct or cause the direction of
the management and policies of such Person, whether by contract or otherwise.
"Aggregate Commitments": on any date, the sum of the Commitments
of all Lenders on such date.
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Rate in effect on such date plus
1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Applicable Facility Fee Percentage": with respect to the
Facility Fee, at all times during which the applicable Pricing Level set forth
below is in effect, the applicable commitment fee percentage set forth below
next to such Pricing Level:
Applicable
Pricing Level Facility Fee Percentage
------------- -----------------------
Pricing Level I 0.100%
Pricing Level I 0.125%
Pricing Level III 0.150%
Pricing Level IV 0.200%
Pricing Level V 0.250%
Pricing Level V 0.300%.
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 change in the Borrower's Senior Debt Rating, as determined
by S&P or Moody's, as the case may, which would affect the applicable Pricing
Level.
"Applicable Lending Office": in respect of any Lender, (i) in
the case of such Lender's ABR Advances and Competitive Bid Advances, its
Domestic Lending Office and (ii) in the case of such Lender's Eurodollar
Advances, its Eurodollar Lending Office.
"Applicable Margin": with respect to the unpaid principal
balance of Eurodollar Advances, at all times during which the applicable Pricing
Level set forth below is in effect, the percentage set forth below next to such
Pricing Level:
-2-
4
Pricing Level Applicable Margin
------------- -----------------
Pricing Level I 0.200%
Pricing Level II 0.250%
Pricing Level III 0.300%
Pricing Level IV 0.400%
Pricing Level V 0.500%
Pricing Level VI 0.700%
Changes in the Applicable Margin resulting from a change in a
Pricing Level shall become effective as of the opening of business upon the date
of any change in the Senior Debt Rating of the Borrower, as determined by S&P or
Moody's, as the case may, which would affect the applicable Pricing Level.
"Assignment and Acceptance Agreement": an assignment and
acceptance agreement executed by an assignor and an assignee pursuant to which
such assignor assigns to such assignee all or any portion of such assignor's
Note and Commitment, substantially in the form of Exhibit A.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": the chairman of the board, the
president, any vice president, the chief financial officer or any other duly
authorized officer (acceptable to the Agent) of the Borrower.
"Available Commitment Amount": on any day during the Revolving
Credit Period, an amount equal to the Total Commitment Amount at such time minus
the total of all Competitive Bid Borrowings outstanding on such date.
"Benefited Lender": as defined in Section 11.9.
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrowing Date": any Business Day specified in a Borrowing
Request delivered pursuant to Section 2.4 or 2.5, as the case may be, as a date
on which the Borrower requests the Lenders to make Loans.
"Borrowing Request": a Conventional Borrowing Request or a
Competitive Bid Borrowing Request, as the case may be.
-3-
5
"Business Day": for all purposes other than as set forth in
clause (ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) above
and which is also a day on which dealings in foreign currency and exchange and
Eurodollar funding between banks may be carried on in London, England.
"Capital Leases": leases which have been, or under GAAP are
required to be, capitalized.
"Change of Control": the occurrence of any one of the following
events:
(a) any Person becomes the owner of 20% or more of the
Borrower's common shares and thereafter individuals who were not trustees of the
Borrower on the date of execution of this Agreement are elected as trustees
pursuant to an arrangement or understanding with, or upon the request of or
nomination by, such Person and constitute at least two of the trustees of the
Borrower; or
(b) there occurs a change of control of the Borrower of a
nature that would be required to be reported in response to Item 1a of Form 8-K
filed pursuant to Section 13 or 15 under the Securities Exchange Act of 1934, or
in any other filing by the Borrower with the Securities and Exchange Commission;
or
(c) there occurs any solicitation of proxies by or on behalf
of any Person other than the trustees of the Borrower and thereafter individuals
who were not trustees of the Borrower prior to the commencement of such
solicitation are elected as trustees of the Borrower pursuant to an arrangement
or understanding with, or upon the request of or nomination by, such Person and
constitute at least two of the trustees of the Borrower; or
(d) the Borrower consolidates with, is acquired by, or
merges into or with any Person (other than a merger of a Subsidiary into the
Borrower where the Borrower is the surviving entity).
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's
undertaking during the Revolving Credit Period to make Revolving Credit Loans to
the Borrower, and as of the end of the Revolving Credit Period, such Lender's
undertaking to convert the
-4-
6
outstanding principal amount of such Lender's Revolving Credit Loans on such
date to a Term Loan of such Lender, in each case subject to the terms and
conditions hereof, in an aggregate outstanding principal amount not exceeding
such Lender's Commitment Amount.
"Commitment Amount": the amount set forth next to the name of
such Lender in Exhibit B under the heading "Commitments", as the same may be
reduced pursuant to Section 2.6 or increased pursuant to Section 2.20.
"Commitment Percentage": on any day, and as to any Lender, (i)
prior to the conversion of the Revolving Credit Loans to Term Loans, the
percentage determined on such day equal to such Lender's Commitment Amount
divided by the Total Commitment Amount, and (ii) after the conversion of the
Revolving Credit Loans to Term Loans, the percentage determined on such day
equal to the outstanding principal balance of such Lender's Term Loan on such
day divided by the aggregate outstanding principal balance of the Term Loans of
all Lenders on such day.
"Competitive Bid Advance": the Revolving Credit Loans (or any
portions thereof) at such time as they (or such portions) consist of Competitive
Bid Borrowings as provided for in Section 2.5.
"Competitive Bid Borrowing": a borrowing pursuant to section 2.5
consisting of simultaneous Competitive Bid Advances from each Lender whose offer
to make a Competitive Bid Advance as part of such borrowing has been accepted by
the Borrower under the auction bidding procedure set forth in section 2.5
"Competitive Bid Borrowing Request": a borrowing request in the
form of Exhibit C.
"Competitive Bid Ceiling": $25,000,000.
"Compliance Certificate": a certificate substantially in the
form of Exhibit D.
"Consenting Lender": defined in Section 2.19.
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidated EBIT": at any time of determination, the EBIT of
the Borrower and its Subsidiaries on a Consolidated basis, determined in
accordance with GAAP, for the immediately preceding four fiscal quarters of the
Borrower, or, in the event that the date of determination is a fiscal quarter
ending date, the fiscal quarter then ended and the immediately preceding three
fiscal quarters.
-5-
7
"Consolidated Indebtedness": at any time of determination, the
Indebtedness of the Borrower and its Subsidiaries at such time on a Consolidated
basis, determined in accordance with GAAP.
"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 the endorsement of instruments for deposit or
collection in the ordinary course of business. The term Contingent Obligation
shall also include the liability of a general partner in respect of the
liabilities of the partnership in which it is a general partner. The amount of
any Contingent Obligation of a Person shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
such Person in good faith.
"Conventional Advance": an ABR Advance and/or a Eurodollar
Advance.
"Conventional Borrowing Request": a borrowing request in the
form of Exhibit E.
"Conversion Date": the date on which a Eurodollar Advance is
converted to an ABR Advance, or the date on which an ABR Advance is converted to
a Eurodollar Advance, or the date on which a Eurodollar Advance is converted to
a new Eurodollar Advance, all in accordance with Section 2.8
"Declaration of Trust": the Amended and Restated Declaration of
Trust of New Plan Realty Trust, dated as of January 15, 1996, by William Newman,
Arnold Laubich, Norman Gold, Melvin Newman, James Steuterman, Raymond Bottorf,
Dean Bernstein, John Wetzler and Gregory White, not personally, but solely as
Trustees of New Plan Realty Trust, as the same may be amended from time to time.
-6-
8
"Default": any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"Defaulted Portion": defined in Section 2.21.
"Dollars" and "$": lawful currency of the United States of
America.
"Domestic Lending Office": in respect of any Lender, initially,
the office or offices of such Lender designated as such on Schedule I;
thereafter, such other office of such Lender, through which it shall be making
or maintaining ABR Advances or Competitive Bid Advances, as reported by such
Lender to the Agent and the Borrower.
"EBIT": at any time of determination, in respect of any Person,
for any period, net income (or loss), calculated after deduction for income
taxes, determined in accordance with GAAP; plus the sum of, without duplication:
(i) interest expense (as determined in accordance with GAAP), and (ii) provision
for income taxes. EBIT shall be adjusted on a consistent basis to reflect the
acquisition, sale, exchange and disposition of Property during such period.
"Effective Date": November 21, 1997.
"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.
"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
-7-
9
ERISA and Section 412(n) of the Code, described in Section 414(m) or (o) of the
Code of which the Borrower is a member.
"ERISA Liabilities": without duplication, the aggregate of all
unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advances": collectively, the Loans (or any portions
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Lending Office": in respect of any Lender,
initially, the office, branch or affiliate of such Lender designated as such on
Schedule I (or, if no such office branch or affiliate is specified, its Domestic
Lending Office); thereafter, such other office, branch or affiliate of such
Lender through which it shall be making or maintaining Eurodollar Advances, as
reported by such Lender to the Agent and the Borrower.
"Eurodollar Rate": with respect to each Eurodollar Advance and
as determined by the Agent, the rate of interest per annum (rounded, if
necessary, to the nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%,
then to the next higher 1/100 of 1%) equal to a fraction, the numerator of which
is the rate per annum quoted by BNY at approximately 11:00 A.M. (or as soon
thereafter as practicable) two Eurodollar Business Days prior to the first day
of such Interest Period to leading banks in the interbank eurodollar market as
the rate at which BNY is offering Dollar deposits in an amount approximately
equal to its Commitment Percentage of such Eurodollar Advance and having a
period to maturity approximately equal to the Interest Period applicable to such
Eurodollar Advance, and the denominator of which is an amount equal to 1.00
minus the aggregate of the then stated maximum rates during such Interest Period
of all reserve requirements (including marginal, emergency, supplemental and
special reserves), expressed as a decimal, established by the Board of Governors
of the Federal Reserve System and any other banking authority to which BNY and
other major United States money center banks are subject, in respect of
eurocurrency liabilities.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time or any
other condition has been satisfied.
"Exclusions": shall mean in the case of any sale or other
disposition of any Property of the Borrower, all sales and other commissions and
reasonable fees and expenses of professionals incurred by the Borrower in
connection with such sale or disposition, costs of title searches, recording
charges, title insurance premiums and transfer taxes.
-8-
10
"Existing Credit Agreement" shall mean that certain Revolving
Credit Agreement dated as of October 29, 1996 among the Borrower, The Bank of
New York, as Agent, and the other Lenders signatory thereto, as the same has
been amended.
"Extension Consideration Period": defined in Section 2.19.
"Extension Request": defined in Section 2.19.
"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 BNY as determined by BNY and reported to the Agent.
"Financial Statements": as defined in Section 4.13.
"Fixed Rate Advance": A Eurodollar Advance or a Competitive Bid
Advance.
"GAAP": generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator.
"Hazardous Substance": any hazardous or toxic substance,
material or waste, including, but not limited to, (i) those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance,
-9-
11
pollutant or material defined as, or designated in, any Environmental Law as a
"hazardous substance," "toxic substance," "hazardous material," "hazardous
waste," "restricted hazardous waste," "pollutant," "toxic pollutant" or words of
similar import.
"Highest Lawful Rate": with respect to any Lender, the maximum
rate of interest, if any, that at any time or from time to time may be
contracted for, taken, charged or received by such Lender on its Note or which
may be owing to such Lender pursuant to this Agreement under the laws applicable
to such Lender and this Agreement.
"Indebtedness": as to any Person, at a particular time, all
items which constitute, without duplication, (a) indebtedness for borrowed money
(including, without limitation, indebtedness under this Agreement and the Notes)
or the deferred purchase price of Property (other than trade payables incurred
in the ordinary course of business), (b) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (c) obligations with respect to any
conditional sale or title retention agreement, (d) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, 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.
"Indemnified Person": as defined in Section 11.11.
"Intangible Assets": as of any date of determination thereof,
the net book value of all assets of the Borrower and its Subsidiaries on a
Consolidated basis (to the extent reflected in the Consolidated Balance Sheet of
the Borrower at such date) which would be treated as intangibles under GAAP,
including, without limitation, goodwill (whether representing the excess cost
over book value of assets acquired or otherwise), patents, trademarks, trade
names, franchises, copyrights, licenses, service marks, rights with respect to
the foregoing and deferred charges (including, without limitation, unamortized
debt discount and expense, organization costs and research and development
costs).
"Intellectual Property": all copyrights, trademarks, patents,
trade names and service names.
"Interest Coverage Ratio": at any time, the ratio of (i)
Consolidated EBIT to (ii) Interest Expense.
-10-
12
"Interest Expense": the sum of all interest (as determined in
accordance with GAAP) on Consolidated Indebtedness, for, as applicable, the
immediately preceding four fiscal quarters of the Borrower, or, in the event
that the date of determination is a fiscal quarter ending date, the fiscal
quarter then ended and the immediately preceding three fiscal quarters.
"Interest Payment Date": (i) as to any ABR Advance, the first
day of each month commencing on the first such day to occur after such ABR
Advance is made or any Eurodollar Advance is converted to an ABR Advance, (ii)
as to any Eurodollar Advance in respect of which the Borrower has selected an
Interest Period of one, two or three months, the last day of such Interest
Period, (iii) as to any Eurodollar Advance in respect of which the Borrower has
selected an Interest Period of six months, the day which is three months after
the first day of such Interest Period and the last day of such Interest Period,
(iv) as to any Competitive Bid Advance in respect of which the Borrower has
selected an Interest Period of 90 days or less, the last day of the Interest
Period applicable thereto, and (v) as to any Competitive Bid Advance in respect
of which the Borrower has selected an Interest Period of more than 90 days, the
day which is 90 days after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period": (i) with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or Conversion Date with respect to such Eurodollar Advance and
ending one, two, three or six months thereafter, as selected by the Borrower in
its irrevocable Borrowing Request as provided in Section 2.4 or its irrevocable
notice of conversion as provided in Section 2.8, and (ii) with respect to any
Competitive Bid Advance, the period commencing on the Borrowing Date with
respect to such Competitive Bid Advance and ending on the maturity date thereof
specified in the Competitive Bid Borrowing Request with respect thereto given
pursuant to Section 2.5; provided, however, that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Advance would otherwise end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) if, with respect to the borrowing of any Loan or
the conversion of one Advance to another, the Borrower shall fail to
give due notice as provided in Section 2.4, 2.5 or 2.8, as the case may
be, the Borrower shall be deemed to have elected that such Loan or
Advance shall be made as an ABR Advance;
-11-
13
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month;
(iv) with respect to any Interest Period applicable
to a Eurodollar Advance (i) selected during the Revolving Credit Period,
no such Interest Period shall end after the Revolving Credit Termination
Date, and (ii) selected after any such election of the Term Loan, no
such Interest Period shall end after the Maturity Date;
(v) with respect to any Interest Period applicable
to a Competitive Bid Advance no such Interest Period shall end after the
Revolving Credit Termination Date.
(vi) the Borrower shall select Interest Periods so as
not to have more than seven different Interest Periods outstanding at
any one time with respect to Eurodollar Advances and three different
Interest Periods outstanding at any one time with respect to Competitive
Bid Advances; and
(vii) no Interest Period pertaining to a Competitive
Bid Advance shall be shorter than 7 days or longer than 180 days.
"Investments": as defined in Section 8.5.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
or preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan" and "Loans": Revolving Credit Loan (or Loans) or Term
Loan (or Loans), as the case may be.
"Loan Documents": collectively, this Agreement and the Notes.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
financial condition, operations or business, prospects or Property of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform
-12-
14
its obligations under the Loan Documents or (iii) the ability of the Agent and
the Lenders to enforce the Loan Documents.
"Material Adverse Effect": a material adverse effect on (i) the
financial condition, operations or business, prospects or Property of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents or
(iii) the ability of the Agent and the Lenders to enforce the Loan Documents.
"Maturity Date": (i) if the Term Loan is not elected pursuant to
Section 2.2, the earlier of the Revolving Credit Termination Date or the date on
which the Notes shall become due and payable, whether by acceleration or
otherwise, and (ii) if the Term Loan is so elected, the earlier of the date that
is 364 days after the Revolving Credit Termination Date or the date on which the
Notes shall become due and payable, whether by acceleration or otherwise.
"Moody's": Moody's Investors Services, Inc.
"Multiemployer Plan": a plan defined as such Section 3(37) of
ERISA to which contributions have been made by the Borrower or any ERISA
Affiliate and which is covered by Title IV of ERISA.
"Net Proceeds": shall mean in the case of any sale or other
disposition of any Property of the Borrower after a Threshold Event, the excess
of:
(x) the sum of all gross cash proceeds from such sale or
disposition and all sales or dispositions of the Borrower's
Property giving rise to such Threshold Event, whether paid
directly or indirectly, less the applicable Exclusions in
connection therewith, over
(y) the Threshold Amount.
"Net Proceeds Event": any sale or other disposition of any
Property of the Borrower, which, in any case, results in Net Proceeds, provided
that "Net Proceeds Event" shall not include the issuance of Stock or debt or the
sale of Stock or instruments convertible into Stock.
"Net Worth": as of any date of determination thereof, the Net
Worth of the Borrower and its Subsidiaries on a Consolidated basis, as
determined in accordance with GAAP.
"Nonconsenting Lender": defined in Section 2.19.
"Nonconsenting Lender Termination Date": defined in Section
2.19(c).
-13-
15
"Note" and "Notes": defined in Section 2.3.
"Participating Lender": defined in Section 2.5.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": an individual, a partnership, a corporation, a
business trust, a joint stock company, a trust, an unincorporated association, a
joint venture, a Governmental Authority or any other entity of whatever nature.
"Plan": any employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and which is covered by or
subject to the minimum funding standards of Title IV of ERISA, other than a
Multiemployer Plan.
"Pricing Level": Pricing Level I, Pricing Level II, Pricing
Level III, Pricing Level IV, Pricing Level V or Pricing Level VI, as applicable.
"Pricing Level I": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to AA- by S&P or
Aa3 by Moody's;
"Pricing Level II": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A by S&P or A2
by Moody's and Pricing Level I is not applicable;
"Pricing Level III": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A- by S&P or
A3 by Moody's and Pricing Levels I and II are not applicable;
"Pricing Level IV": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to BBB by S&P or
Baa2 by Moody's and Pricing Levels I, II and III are not applicable;
"Pricing Level V": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is equal to BBB- by S&P and Baa3 by
Moody's and Pricing Levels I, II, III and IV are not applicable; and
"Pricing Level VI": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is less than or equal to BB+ by S&P or Ba1
by Moody's and Pricing Levels I, II, III, IV and V are not applicable;
-14-
16
provided that during any period that the Borrower has no Senior Debt Rating,
Pricing Level VI would be the applicable Pricing Level.
"Property": all types of real, personal, tangible, intangible or
mixed Property.
"Proposed Bid Rate": as applied to any Remaining Interest Period
with respect to a Lender's Competitive Bid Advance, the rate per annum that such
Lender in good faith would have quoted to the Borrower had the Borrower
requested that such Lender offer to make a Competitive Bid Advance on the first
day of such Remaining Interest Period, assuming no Default or Event of Default
existed on such day and that the Borrower had the right to borrow hereunder on
such day; such rate to be determined by such Lender in good faith in its sole
discretion.
"Real Property": all real Property, and all interests in real
Property, owned, leased or held by the Borrower or any Subsidiary.
"Reallocated Commitment Percentage": defined in Section 2.19.
"REIT": a Person qualifying as a Real Estate Investment Trust
under sections 856-859 of the Code and the regulations and rulings of the
Internal Revenue Service issued thereunder.
"REIT Guidelines": collectively, the NASAA Statement of Policy
Regarding Real Estate Investment Trusts, as adopted by the North American
Securities Administrators Association, Inc., and all amendments thereto, and all
Federal and state laws and guidelines, including without, limitation all "blue
sky" laws, which regulate the business, operation and reporting requirements of
REITs generally and which are applicable to the Borrower.
"Remaining Interest Period": (i) in the event that the Borrower
shall fail for any reason to borrow a Loan in respect of which it shall have
requested a Eurodollar Advance or convert an Advance to a Eurodollar Advance
after it shall have notified the Agent of its intent to do so pursuant to
Section 2.4 or 2.8 or accepted one or more offers of Competitive Bid Advances
under Section 2.5, a period equal to the Interest Period that the Borrower
elected in respect of such Eurodollar Advance or Competitive Bid Advance; or
(ii) in the event that a Eurodollar Advance or Competitive Bid Advance shall
terminate for any reason prior to the last day of the Interest Period applicable
thereto, a period equal to the remaining portion of such Interest Period if such
Interest Period had not been so terminated; or (iii) in the event that the
Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Advance or Competitive Bid Advance (including any mandatory
prepayment thereof) prior to the last day of the Interest Period applicable
-15-
17
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.
"Required Lenders": At any time that there is more than one
Lender (i) if no Loans are outstanding at such time or there are Loans comprised
of both Conventional Advances and Competitive Bid Advances, Lenders having
Commitments equal to at least 51% of the Aggregate Commitments; (ii) if Loans at
such time are comprised of Conventional Advances only, Lenders holding Notes
having an unpaid principal balance equal to at least 51% of the aggregate Loans
then outstanding; and (iii) if at such time Loans are comprised of Competitive
Bid Advances only, Lenders having Commitments equal to at least 51% of the
Aggregate Commitments (whether used or unused); provided that in addition to the
requirements in (i), (ii) or (iii), "Required Lenders" shall not be less than
two Lenders. If at any time there is only one Lender under this Agreement,
"Required Lenders" shall mean such Lender.
"Revolving Credit Period": the period from the Effective Date
through the day preceding the Revolving Credit Expiration Date.
"Revolving Credit Expiration Date": the earlier of the Maturity
Date or the Revolving Credit Termination Date.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined
in Section 2.1.
"Revolving Credit Termination Date": the date that is 364 days
from the Effective Date, subject to extensions in accordance with Section 2.19.
"Senior Debt Rating": the senior unsecured non-credit-enhanced
debt rating of the Borrower as determined by S&P and/or Moody's from time to
time.
"Shareholder": as defined in the Declaration of Trust.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel
to BNY.
"S&P": Standard & Poor's Ratings Group.
"Stock": any and all shares, rights, interests, participations,
warrants, 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, joint venture or other business entity of which such Person or any
Subsidiary of such
-16-
18
Person, directly or indirectly, either (i) in respect of a corporation, owns or
controls more than 50% of the outstanding Stock having ordinary voting power to
elect a majority of the board of directors or similar managing body,
irrespective of whether a class or classes shall or might have voting power by
reason of the happening of any contingency, or (ii) in respect of an
association, partnership, joint venture or other business entity, is entitled to
share in more than 50% of the profits and losses, however determined.
"Substitute Lender": a Consenting Lender, one or more Affiliates
of a Consenting Lender or any other bank, insurance company, pension fund,
mutual fund or other financial institution.
"Tangible Net Worth": as of any date of determination thereof,
the remainder of (i) Net Worth, less (ii) Intangible Assets.
"Taxes": any present or future income, stamp or other taxes,
levies, imposts, duties, fees, assessments, deductions, withholdings, or other
charges of whatever nature, now or hereafter imposed, levied, collected,
withheld, or assessed by any Governmental Authority.
"Term Loan" and "Term Loans": as defined in Section 2.2.
"Term Loan Conversion Notice": a notice to the Agent in the form
of Exhibit F.
"Threshold Event": any sale or disposition of Property of the
Borrower which, when combined with all other such sales or dispositions
occurring during any fiscal year of the Borrower after the Effective Date,
results in gross cash proceeds for all such sales or dispositions for such
fiscal year, less applicable Exclusions in such fiscal year, over $150,000,000
(the "Threshold Amount"). For purposes of this definition, the term "gross cash
proceeds" means all cash sales proceeds received from each such sale or
disposition, whether direct or indirect, of such Property.
"Total Capital" shall mean, on any date, the sum of (i) all long
term debt of the Borrower (inclusive of medium term notes) on such date, (ii)
the stockholders' equity in the Borrower on such date, as determined in
accordance with GAAP, (iii) the value of issued and outstanding preferred stock
of the Borrower on such date, and (iv) all Loans outstanding on such date.
"Total Commitment Amount": (i) on any day during a Revolving
Credit Period, the sum of the Commitment Amounts of all Lenders on such day, and
(ii) on any day after the conversion of the Revolving Credit Loans to Term
Loans, the sum of the Term Loans of all Lenders on such day.
"Trust": as defined in the Declaration of Trust.
-17-
19
"Trustee": as defined in the Declaration of Trust.
"Trust Property": as defined in the Declaration of Trust.
"Undepreciated Real Estate Assets": as of any date the amount of
real estate assets of the Borrower and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis in accordance
with GAAP.
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.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to the
contrary, references to time shall refer to New York City time.
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 during the Revolving
Credit Period, in an aggregate principal amount at any one time outstanding not
to exceed such Lender's Commitment Amount.
-18-
20
At no time shall the aggregate outstanding principal amount of the Revolving
Credit Loans of all Lenders exceed the Total Commitment Amount. During the
Revolving Credit Period, the Borrower may borrow, prepay in whole or in part and
reborrow under the Commitments, all in accordance with the terms and conditions
of this Agreement. Subject to the provisions of Sections 2.4, 2.5 and 2.8,
Revolving Credit Loans may be (a) ABR Advances, (b) Eurodollar Advances, (c)
Competitive Bid Advances or (d) any combination thereof.
2.2. Term Loans.
(a) Subject to the terms and conditions hereof (including,
without limitation, the terms and conditions of Section 2.19(e)), the Borrower
may elect to convert all Revolving Credit Loans of all Lenders outstanding under
this Agreement as of the Revolving Credit Termination Date to a single
non-revolving loan of each such Lender (each such loan being a "Term Loan," and
together with the Term Loans of all Lenders, the "Term Loans"). Such election
shall be made by the Borrower's delivery to the Agent of a Term Loan Conversion
Notice on any date that is at least 3, but not more than 14, Business Days prior
to the Revolving Credit Termination Date. Upon receipt of such notice, the Agent
shall promptly deliver a copy of the notice to each Lender. Provided that no
Event of Default shall have occurred and be continuing on the Revolving Credit
Termination Date, the outstanding principal amount of each Lender's Revolving
Credit Loans shall be converted to a Term Loan of such Lender as of such date
and the Commitment of each Lender to make Revolving Credit Loans shall expire.
Subject to the provisions of Sections 2.4 and 2.8, Term Loans may continue to be
maintained as (a) ABR Advances, (b) Eurodollar Advances, or (c) any combination
thereof.
(b) The Term Loans shall be due and payable on the Maturity
Date.
2.3. Notes.
The Loans made by each Lender shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit G, with appropriate
insertions therein as to date and principal amount (each, as endorsed or
modified from time to time, a "Note" and, collectively with the Notes of all
other Lenders, the "Notes"), payable to the order of such Lender for the account
of its Applicable Lending Office and representing the 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 Loans made by such Lender
(including Term Loans of the Lenders, if the Borrower makes an election to
convert the Revolving Credit Loans pursuant to Section 2.2), with interest
thereon as prescribed in Section 2.9. Each Note shall bear interest from the
date thereof on the unpaid principal balance thereof at the applicable interest
rate or rates per annum determined as provided in Section 2.9 and shall be
stated to mature on the
-19-
21
Maturity Date. The (i) date and amount of each Loan made by a Lender, (ii) its
character as an ABR Advance, a Eurodollar Advance, a Competitive Bid Advance, or
a combination thereof, (iii) the interest rate and Interest Period applicable to
Eurodollar Advances and Competitive Bid Advances, and (iv) each payment and
prepayment of the principal thereof, shall be recorded by such Lender on its
books and, prior to any transfer of its Note, endorsed by such Lender on the
schedule attached thereto or any continuation thereof, provided that the failure
of such Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower to make payment when due of any amount owing under
the Loan Documents. Interest on each Note shall be payable as specified in
Section 2.9. Upon receipt of each Lender's Note pursuant to Section 5, the Agent
shall mail such Note to such Lender.
2.4. Procedure for Revolving Credit Loan Borrowings Other than
Competitive Bid Borrowings.
(a) Except for Revolving Credit Loans which the Borrower has
requested be made as Competitive Bid Advances (as to which the provisions of
Section 2.5 shall control), the Borrower may borrow under the Commitments on any
Business Day during the Revolving Credit Period, provided, however, that the
Borrower shall notify the Agent (by telephone or telecopy) no later than 12:00
noon, two Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Advances, and 11:00 A.M., one Business Day prior to the requested
Borrowing Date, in the case of ABR Advances, specifying (A) the aggregate
principal amount to be borrowed under the Commitments, (B) the requested
Borrowing Date, (C) whether the borrowing is to consist of Eurodollar Advances,
ABR Advances, or a combination thereof, and (D) if the borrowing is to consist
of Eurodollar Advances, the length of the Interest Period or Periods for such
Eurodollar Advances (subject to the provisions of the definition of Interest
Period), and provided further that the aggregate amount advanced pursuant to
this Section 2.4 shall not at any time exceed the Available Commitment Amount.
Each such notice shall be irrevocable and confirmed immediately by delivery to
the Agent of a Borrowing Request. Each borrowing of (i) ABR Advances shall be in
an aggregate principal amount equal to $1,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof, or, if less, the Available Commitment
Amount and (ii) Eurodollar Advances shall be in an aggregate principal amount
equal to $1,000,000 or such amount plus a whole multiple of $100,000 in excess
thereof. Upon receipt of each notice of borrowing from the Borrower, the Agent
shall promptly notify each Lender of the contents thereof. Subject to its
receipt of the notice referred to in the preceding sentence, each Lender will
make the amount of its Commitment Percentage of each borrowing of Revolving
Credit Loans available to the Agent for the account of the Borrower at the
office of the Agent set forth in Section 11.2 not later than 12:30 P.M. on the
relevant Borrowing Date requested by the Borrower, if the requested borrowing is
a Eurodollar Advance, and 11:30 A.M. on such Borrowing Date, if the requested
borrowing is an ABR Advance, in either case in funds immediately
-20-
22
available to the Agent at such office. The amounts so made available to the
Agent on such Borrowing Date will then, subject to the satisfaction of the terms
and conditions of this Agreement, as determined by the Agent, be made available
on such date to the Borrower by the Agent at the office of the Agent specified
in Section 11.2 by crediting the account of the Borrower on the books of such
office with the aggregate of said amounts received by the Agent.
(b) Unless the Agent shall have received prior notice from a
Lender (by telephone or otherwise, such notice to be promptly confirmed by
telecopy or other writing) that such Lender will not make available to the Agent
such Lender's pro rata share of the Revolving Credit Loans requested by the
Borrower, the Agent may assume that such Lender has made such share available to
the Agent on the Borrowing Date in accordance with this Section, provided that
such Lender received notice of the proposed borrowing from the Agent, and the
Agent may, in reliance upon such assumption, make available to the Borrower on
the Borrowing Date a corresponding amount. If and to the extent such Lender
shall not have so made such pro rata share available to the Agent, such Lender
and the Borrower severally agree to pay to the Agent forthwith on demand such
corresponding amount (to the extent not previously paid by the other), together
with interest thereon for each day from the date such amount is made available
to the Borrower until the date such amount is paid to the Agent, at a rate per
annum equal to, in the case of the Borrower, the applicable interest rate set
forth in Section 2.9 for ABR Advances or Eurodollar Advances, as set forth in
the applicable Conventional Borrowing Request, and, in the case of such Lender,
the Federal Funds Rate in effect on each such day (as determined by the Agent).
Such payment by the Borrower, however, shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Agent such corresponding
amount, such amount so paid shall constitute such Lender's Revolving Credit Loan
as part of the Revolving Credit Loans for purposes of this Agreement, which
Revolving Credit Loan shall be deemed to have been made by such Lender on the
Borrowing Date applicable to such Revolving Credit Loans, but without prejudice
to the Borrower's rights against such Lender.
2.5. Competitive Bid Advances During the Revolving Credit Period, and
Procedure for Competitive Bid Borrowings.
(a) Subject to the terms and conditions of this Agreement,
each Lender severally agrees that the Borrower may effect Competitive Bid
Borrowings under this section 2.5 from time to time on any Business Day during
the Revolving Credit Period in the manner set forth below, provided, however,
that at no time shall the principal balance of all Competitive Bid Advances
outstanding hereunder exceed the lesser of (x) the Competitive Bid Ceiling, and
(y) the Aggregate Commitments less the outstanding principal balance of all
Conventional Advances.
-21-
23
(i) The Borrower may request a Competitive Bid
Borrowing under this Section 2.5 during the Revolving Credit Period by
giving to the Agent, not later than 10:00 A.M. at least three Business
Days prior to the date of the proposed Competitive Bid Borrowing, a
Competitive Bid Borrowing Request specifying the proposed date and
aggregate amount (which shall not be less than $5,000,000 or such amount
plus a whole multiple of $100,000) of the proposed Competitive Bid
Borrowing, the proposed Interest Period for the Competitive Bid Advances
to be made as part of such Competitive Bid Borrowing (which Interest
Period shall not be later than the Revolving Credit Termination Date and
shall otherwise comply with the applicable provisions of the definition
of "Interest Period"), and such other terms to be applicable to such
Competitive Bid Borrowing as the Borrower may specify. The Agent shall
promptly notify (by telephone or otherwise, to be promptly confirmed by
telecopy or other writing) each Lender of each Competitive Bid Borrowing
Request received by it and the terms contained in such Competitive Bid
Borrowing Request.
(ii) Each Lender may, if, in its sole discretion, it
elects so to do, irrevocably offer to make one or more Competitive Bid
Advances to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in its
sole discretion, by notifying (by telephone or otherwise, to be promptly
confirmed by telecopy or other writing) the Agent, before 10:00 A.M. two
Business Days before the Borrowing Date of such proposed Competitive Bid
Borrowing of the minimum amount and maximum amount of each Competitive
Bid Advance which such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts may, subject to the
proviso to the first sentence of this Section 2.5, exceed such Lender's
Commitment), the rate or rates of interest therefor and such Lender's
applicable Lending Office with respect to such Competitive Bid Advance.
The Agent shall notify the Borrower of all such offers before 10:30 A.M.
two Business Days before such proposed Borrowing Date, provided that if
BNY in its capacity as a Lender shall in its sole discretion elect to
make any such offer, it shall notify the Borrower of such offer before
9:30 A.M. two Business Days before such proposed Borrowing Date. If any
Lender other than BNY shall fail to notify the Agent before 10:00 A.M.,
and if BNY in its capacity as a Lender shall fail to notify the Borrower
before 9:30 A.M. two Business Days before the proposed Borrowing Date,
that it elects to make such an offer, such Lender shall be deemed to
have elected not to make such an offer and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part of
such Competitive Bid Borrowing. Any offer submitted after the time
required above shall be disregarded by the Agent unless such offer is
submitted to correct a manifest error in a prior offer.
-22-
24
(iii) The Borrower shall, before 12:00 noon two
Business Days before the date of such proposed Competitive Bid
Borrowing, either
(A) cancel such Competitive Bid Borrowing
Request by notice to the Agent to that effect, or
(B) in its sole discretion, irrevocably
accept one or more of the offers made by any Lender or Lenders pursuant
to (ii) above, in ascending order of the rates offered therefor, by
giving notice to the Agent of the amount of each Competitive Bid Advance
(which amount shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the Borrower by
the Agent on behalf of such Lender for such Competitive Bid Advance
pursuant to (ii) above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made by
Lenders pursuant to (ii) above, by giving the Agent notice to that
effect, provided, however, that the aggregate amount of such offers
accepted by the Borrower shall be equal at least to $5,000,000. If
offers for Competitive Bid Advances at the same interest rate are made
by two or more Lenders for a greater aggregate minimum principal amount
than the amount in respect of which offers for Competitive Bid Advances
are accepted by the Borrower at such interest rate, the principal amount
of Competitive Bid Advances accepted at such interest rate shall be
allocated by the Borrower among such Lenders as nearly as possible in
proportion to the respective minimum principal amounts offered by such
Lenders. No such Lender shall be obligated to make such Competitive Bid
Advance in a principal amount less than the minimum amount offered by
such Lender without consenting to such lesser amount. If any Lender
declines to make a Competitive Bid Advance at such lesser amount, the
Borrower shall be entitled in its sole discretion to determine which of
such offers at the same interest rate it shall accept.
(iv) If the Borrower notifies the Agent that a
Competitive Bid Borrowing Request is cancelled pursuant to (iii)(A)
above, the Agent shall give prompt notice (by telephone or otherwise, to
be promptly confirmed by telecopy or other writing) thereof to the
Lenders and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to clause (iii)(B) above,
the Agent shall, as promptly as practicable on the second Business Day
before such proposed Borrowing Date, notify (A) each Lender that has
made an offer as described in clause (ii) above, of the date and
aggregate amount of such Competitive Bid Borrowing and whether any offer
or offers made by such Lender pursuant to clause (ii) above have been
accepted by the Borrower and (B) each Lender that is
-23-
25
to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing (a "Participating Lender" with respect to such Competitive Bid
Borrowing), of the amount of each Loan to be made by such Lender as part
of such Competitive Bid Borrowing, together with a specification of the
interest rate and Interest Payment Date or Dates in respect of each such
Competitive Bid Advance. Each such Participating Lender shall, before
11:30 A.M. on the date of such Competitive Bid Borrowing make available
for the account of its applicable Lending Office to the Agent at its
address specified in Section 11.2 such Lender's portion of such
Competitive Bid Borrowing, in funds immediately available to the Agent
at such office. Upon satisfaction of the applicable terms and conditions
of this Agreement and after receipt by the Agent of such amount from
each such Participating Lender, the Agent will make such amount
available on such date to the Borrower at the office of the Agent
specified in Section 11.2 by crediting the account of the Borrower on
the books of such office with the aggregate of such amounts, in like
funds as received by the Agent. After each Competitive Bid Borrowing, if
requested by any Lender, the Agent shall within a reasonable time
furnish to such Lender such information in respect of such Competitive
Bid Borrowing as such Lender shall reasonably request. Unless the Agent
shall have received prior notice from a Participating Lender (by
telephone or otherwise, such notice to be promptly confirmed by telecopy
or other writing) that such Participating Lender will not make available
such Participating Lender's Competitive Bid Advance, the Agent may
assume that such Participating Lender has made such Participating
Lender's portion of such Competitive Bid Borrowing available to the
Agent on such Borrowing Date in accordance with this Section, and the
Agent may, in reliance upon such assumption, make available to the
Borrower on such Borrowing Date a corresponding amount. If and to the
extent such Participating Lender shall not have made such portion
available to the Agent, such Participating Lender and the Borrower
severally agree to pay to the Agent forthwith on demand such
corresponding amount with interest thereon for each day from the date
such amount is made available to the Borrower until the date such amount
is paid to the Agent at a rate per annum equal to, in the case of the
Borrower, the rate of interest for such Competitive Bid Advance accepted
by the Borrower in its notice to the Agent under Section 2.5(a)(iii)(B),
and, in the case of such Lender, the Federal Funds Rate in effect on
such day (as determined by the Agent). Such payment by the Borrower,
however, shall be without prejudice to its rights against such
Participating Lender. If such Participating Lender shall pay to the
Agent such corresponding amount, such amount so paid shall constitute
such Lender's Competitive Bid Advance as a part of such Competitive Bid
Advances for purposes of this Agreement, which Competitive Bid Advance
shall be deemed to have been made by such Participating Lender on the
Borrowing Date applicable
-24-
26
thereto, but without prejudice to the Borrower's rights against such
Participating Lender.
(b) Within the limits and on the conditions set forth in
this Section 2.5, the Borrower may from time to time borrow under this Section
2.5, repay pursuant to clause (c) below, and reborrow under this Section 2.5.
(c) The Borrower shall repay to the Agent for the account of
each Participating Lender which has made a Competitive Bid Advance on the last
day of the Interest Period for such Competitive Bid Advance (such Interest
Period being that specified by the Borrower in the related Competitive Bid
Borrowing Request delivered pursuant to Section 2.5(a)(i), above) the then
unpaid principal amount of such Competitive Bid Advance.
(d) The Borrower shall pay interest on the unpaid principal
balance of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Participating Lender making such Competitive Bid Advance in its
notice with respect thereto delivered pursuant to Section 2.5(a)(ii) above
payable on the Interest Payment Date specified by the Borrower for such
Competitive Bid Advance in the related Competitive Bid Borrowing Request
delivered pursuant to Section 2.5(a)(i), above.
(e) Each Competitive Bid Advance shall be subject to all of
the provisions of this Agreement generally, provided, however, that a
Competitive Bid Advance shall not reduce a Lender's obligation to fund its
Commitment Percentage of any ABR Advance or Eurodollar Advance.
(f) The provisions of this Section 2.5 shall be applicable
only if as of the date of a Competitive Bid Borrowing Request there is more than
one Lender.
2.6. Termination or Reduction of Aggregate Commitments.
(a) Voluntary Reductions. The Borrower shall have the right,
upon at least three Business Days' prior written notice to the Agent, at any
time to terminate the Aggregate Commitments or from time to time to permanently
reduce the Aggregate Commitments to an amount not less than the sum of the
aggregate principal balance of the Loans then outstanding (after giving effect
to any contemporaneous prepayment thereof), provided, however, that any such
reduction shall be in the amount of $1,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof.
(b) In General. Reductions of the Aggregate Commitments
shall be applied pro rata according to the Commitment of each Lender.
Simultaneously with each
-25-
27
reduction of the Aggregate Commitments under this Section, the Borrower shall
pay the Facility Fee accrued on the amount by which the Aggregate Commitments
have been reduced and prepay the Loans by the amount, if any, by which the
aggregate unpaid principal balance of the Loans exceeds the amount of the
Aggregate Commitments as so reduced. If any prepayment is made under this
Section with respect to any Fixed Rate Advances, in whole or in part, prior to
the last day of the applicable Interest Period, the Borrower agrees to indemnify
the Lenders in accordance with Section 2.14.
2.7. Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the ABR Advances and Eurodollar Advances, in whole or in part, without
premium or penalty (other than any indemnification amounts, as provided for in
Section 2.14) at any time and from time to time by notifying the Agent in
writing at least one Business Day prior to the proposed prepayment date in the
case of Loans consisting of ABR Advances and at least three Business Days prior
to the proposed prepayment date in the case of Loans consisting of Eurodollar
Advances, specifying the Loans to be prepaid consisting of ABR Advances,
Eurodollar Advances or a combination thereof, the amount to be prepaid and the
date of prepayment. Such notice shall be irrevocable and the amount specified in
such notice shall be due and payable on the date specified, together with
accrued interest to the date of such payment on the amount prepaid. Upon receipt
of such notice, the Agent shall promptly notify each Lender in respect thereof.
Partial prepayments of ABR Advances and/or Eurodollar Advances shall be in an
aggregate principal amount of $1,000,000 or such amount plus a whole multiple of
$100,000 in excess thereof, or, if less, the outstanding principal balance of
thereof. After giving effect to any partial prepayment with respect to
Eurodollar Advances which were made (whether as the result of a borrowing or a
conversion) on the same date and which had the same Interest Period, the
outstanding principal amount of such Eurodollar Advances shall exceed (subject
to Section 2.8) $1,000,000 or such amount plus a whole multiple of $100,000 in
excess thereof. Voluntary prepayments of Competitive Bid Advances are not
permitted.
(b) Mandatory Prepayments. Upon the occurrence of any Net
Proceeds Event, the Borrower shall promptly prepay the Loans by an amount equal
to the Net Proceeds from such Net Proceeds Event. Unless designated otherwise in
a notice to the Agent accompanying such prepayment, the Net Proceeds shall be
applied first to ABR Advances, next to Eurodollar Advances (first to such
Eurodollar Advances having the Interest Period next to occur) and last to
Competitive Bid Advances.
(c) In General. If any prepayment is made in respect of any
Fixed Rate Advance, in whole or in part, prior to the last day of the applicable
Interest Period, the Borrower agrees to indemnify the Lenders in accordance with
Section 2.14.
-26-
28
2.8. Conversions.
(a) The Borrower may elect from time to time to convert
Eurodollar Advances to ABR Advances by giving the Agent at least one Business
Day's prior irrevocable notice of such election, specifying the amount to be so
converted, provided, that any such conversion of Eurodollar Advances shall only
be made on the last day of the Interest Period applicable thereto. In addition,
the Borrower may elect from time to time to convert ABR Advances to Eurodollar
Advances or to convert Eurodollar Advances to new Eurodollar Advances by giving
the Agent at least 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 ABR Advances to
Eurodollar Advances shall only be made on a Business Day and any such conversion
of Eurodollar Advances to new Eurodollar Advances shall only be made on the last
day of the Interest Period applicable to the Eurodollar Advances which are to be
converted to such new Eurodollar Advances. Each conversion notice must be
delivered to the Agent prior to 12:00 noon, in the case of conversions to
Eurodollar Advances, and 11:00 A.M., in the case of conversions to ABR Advances,
on the Business Day required by this Section for the delivery of such notices to
the Agent. The Agent shall promptly provide the Lenders with notice of any such
election. ABR Advances and Eurodollar Advances may be converted pursuant to this
Section in whole or in part, provided that conversions of ABR Advances to
Eurodollar Advances, or Eurodollar Advances to new Eurodollar Advances, shall be
in an aggregate principal amount of $1,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof.
(b) Notwithstanding anything in this Section to the
contrary, no ABR Advance may be converted to a Eurodollar Advance, and no
Eurodollar Advance may be converted to a new Eurodollar Advance, if a Default or
Event of Default has occurred and is continuing either (i) at the time the
Borrower shall notify the Agent of its election to convert or (ii) on the
requested Conversion Date. In such event, such ABR Advance shall be
automatically continued as an ABR Advance or such Eurodollar Advance shall be
automatically converted to an ABR Advance on the last day of the Interest Period
applicable to such Eurodollar Advance. If an Event of Default shall have
occurred and be continuing, the Agent shall, at the request of the Required
Lenders, notify the Borrower (by telephone or otherwise) that all, or such
lesser amount as the Required Lenders shall designate, of the outstanding
Eurodollar Advances shall be automatically converted to ABR Advances, in which
event such Eurodollar Advances shall be automatically converted to ABR Advances
on the date such notice is given.
(c) Each conversion shall be effected by each Lender by
applying the proceeds of its new ABR Advance or Eurodollar Advance, as the case
may be, to its Advances (or portion thereof) being converted (it being
understood that such conversion shall not constitute a borrowing for purposes of
Sections 4, 5 or 6).
-27-
29
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 ABR Advance Alternate Base Rate.
Each Eurodollar Eurodollar Rate for the applicable
Advance Interest Period plus the Applicable
Margin.
Competitive Bid the rate for the applicable
Advance Competitive Bid Advance determined
pursuant to Section 2.5.
(b) Event of Default. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of the
Loans shall bear interest at a rate per annum equal to 2% plus the rate which
would otherwise be applicable under Section 2.9(a), and any overdue interest or
other amount payable under the Loan Documents shall bear interest, whether
before or after the entry of any judgment thereon, at a rate per annum equal to
the Alternate Base Rate plus 2%. All such interest shall be payable on demand.
(c) General. Interest on (i) ABR Advances to the extent
based on the BNY Rate shall be calculated on the basis of a 365 or 366-day year
(as the case may be), and (ii) ABR Advances to the extent based on the Federal
Funds Rate, Eurodollar Advances and Competitive Bid Advances shall be 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. Except as otherwise
provided in Section 2.9(b), interest shall be payable in arrears on each
Interest Payment Date and upon payment (including prepayment) of the Loans. Any
change in the interest rate on the Loans resulting from a change in the
Alternate Base Rate or a Pricing Level shall become effective as of the opening
of business on the day on which such change shall become effective. The Agent
shall, as soon as practicable, notify the Borrower and the Lenders of the
effective date and the amount of each such change in the Alternate Base Rate or
a Pricing Level, but any failure to so notify shall not in any manner affect the
obligation of the Borrower to pay interest on the Loans in the amounts and on
the dates required. Each determination of the Alternate Base Rate, a Eurodollar
Rate or a Pricing Level by the Agent pursuant to this Agreement shall be
conclusive and binding on the Borrower and the Lenders absent manifest error. At
no time shall the interest rate payable on the Loans of any Lender,
-28-
30
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 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
to the extent interest payable on ABR Advances is based on the BNY Rate, such
Rate is only one of the bases for computing interest on loans made by the
Lenders, and by basing interest payable on ABR Advances on the BNY Rate, the
Lenders have not committed to charge, and the Borrower has not in any way
bargained for, interest based on a lower or the lowest rate at which the Lenders
may now or in the future make loans to other borrowers.
2.10. Substituted Interest Rate.
In the event that (i) the Agent shall have reasonably determined
(which determination shall be conclusive and binding upon the Borrower) that by
reason of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
applicable pursuant to Section 2.9 or (ii) the Required Lenders shall have
notified the Agent that they have reasonably determined (which determination
shall be conclusive and binding on the Borrower) that the applicable Eurodollar
Rate will not adequately and fairly reflect the cost to such Lenders of
maintaining or funding loans bearing interest based on such Eurodollar Rate,
with respect to any portion of the Loans that the Borrower has requested be made
as Eurodollar Advances or Eurodollar Advances that will result from the
requested conversion of any portion of the Advances into Eurodollar Advances
(each, an "Affected Advance"), the Agent shall promptly notify the Borrower and
the Lenders (by telephone or otherwise, to be promptly confirmed in writing) of
such determination, on or, to the extent practicable, prior to the requested
Borrowing Date or Conversion Date for such Affected Advances. If the Agent shall
give such notice, (a) any Affected Advances shall be made as ABR Advances, (b)
the Advances (or any portion thereof) that were to have been converted to
Affected Advances shall be converted to or continued as ABR Advances and (c) any
outstanding Affected Advances shall be converted, on the last day of the then
current Interest Period with respect thereto, to ABR Advances. Until any notice
under clauses (i) or (ii), as the case may be, of this Section has been
withdrawn by the Agent (by notice to the Borrower promptly upon either (x) the
Agent having determined that such circumstances affecting the interbank
eurodollar market no longer exist and that adequate and reasonable means do
exist for determining the Eurodollar Rate pursuant to Section 2.9 or (y) the
Agent having been notified by such Required
-29-
31
Lenders that circumstances no longer render the Advances (or any portion
thereof) Affected Advances), no further Eurodollar Advances shall be required to
be made by the Lenders nor shall the Borrower have the right to convert all or
any portion of the Loans to Eurodollar Advances.
2.11. Taxes; Net Payments.
(a) All payments made by the Borrower under the Loan
Documents shall be made free and clear of, and without reduction for or on
account of, any taxes required by law to be withheld from any amounts payable
under the Loan Documents. A statement setting forth the calculations of any
amounts payable pursuant to this paragraph submitted by a Lender to the Borrower
shall be conclusive absent manifest error. The obligations of the Borrower under
this Section shall survive the termination of the Agreement and the Aggregate
Commitments and the payment of the Notes and all other amounts 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 imposing upon the Borrower hereafter, an obligation to
withhold any portion of the payments made by the Borrower under the Loan
Documents, that payments to the Agent on behalf of such Lender are not subject
to withholding.
2.12. Illegality.
Notwithstanding any other provisions herein, if any law,
regulation, treaty or directive, or any change therein or in the interpretation
or application thereof, shall make it unlawful for any Lender to make or
maintain its Eurodollar Advances as contemplated by this Agreement, (i) the
commitment of such Lender hereunder to make Eurodollar Advances or convert ABR
Advances to Eurodollar Advances shall forthwith be suspended and (ii) such
Lender's Loans then outstanding as Eurodollar Advances affected hereby, if any,
shall be converted automatically to ABR Advances on the last day of the then
current Interest Period applicable thereto or within such earlier period as
required by law. If the commitment of any Lender with respect to Eurodollar
Advances is suspended pursuant to this Section and thereafter it is once again
legal for such Lender to make or maintain Eurodollar Advances, such Lender's
commitment to make or maintain Eurodollar Advances shall be reinstated and such
Lender shall notify the Agent and the Borrower of such event.
-30-
32
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 Lender (or any corporation
directly or indirectly owning or controlling such Lender) with any request or
directive from any central bank or other Governmental Authority, agency or
instrumentality:
(a) does or shall subject any Lender to any Taxes of any
kind whatsoever with respect to any Eurodollar Advances or its obligations under
this Agreement to make Eurodollar Advances, or change the basis of taxation of
payments to any Lender of principal, interest or any other amount payable
hereunder in respect of its Eurodollar Advances, including any Taxes required to
be withheld from any amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, tax on the overall net income of such
Lender or its Applicable Lending Office for any of such Advances by the
jurisdiction in which such Lender is incorporated or has its principal office or
such Applicable Lending Office, including, in the case of Lenders incorporated
in any State of the United States such tax imposed by the United States); or
(b) does or shall impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Lender in respect of its Eurodollar Advances which is not otherwise
included in the determination of the Eurodollar Rate;
and the result of any of the foregoing is to increase the cost to such Lender of
making, renewing, converting or maintaining its Eurodollar Advances or its
commitment to make such Eurodollar Advances, or to reduce any amount receivable
hereunder in respect of its Eurodollar Advances, then, in any such case, the
Borrower shall pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such additional cost or reduction in
such amount receivable which such Lender deems to be material as determined by
such Lender; provided, however, that nothing in this Section shall require the
Borrower to indemnify the Lenders with respect to withholding Taxes for which
the Borrower has no obligation under Section 2.11. No failure by any Lender to
demand compensation for any increased cost during any Interest Period shall
constitute a waiver of such Lender's right to demand such compensation at any
time. A statement setting forth the calculations of any additional amounts
payable pursuant to the foregoing sentence submitted by a Lender to the Borrower
shall be conclusive absent manifest error. The obligations of the Borrower under
this Section shall survive the termination of the Agreement and the Aggregate
Commitments and the payment of the Notes and all other amounts payable under the
Loan Documents. To the extent that any increased costs of
-31-
33
the type referred to in this Section are being incurred by a Lender and such
costs can be eliminated or reduced by the transfer of such Lender's Loans or
Commitment to another of its branches, and to the extent that such transfer is
not inconsistent with such Lender's internal policies of general application and
only if, as determined by such Lender in its sole discretion, the transfer of
such Loan or Commitment, as the case may be, would not otherwise adversely
affect such Loan or such Lender, the Borrower may request, and such Lender shall
use reasonable efforts to effect, such transfer.
2.14. Indemnification for Loss Relating to Eurodollar Advances and
Competitive Bid Advances.
Notwithstanding anything contained herein to the contrary, if
the Borrower shall fail to borrow or convert on a Borrowing Date or Conversion
Date after it shall have given notice to do so in which it shall have requested
a Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall have accepted one
or more offers of Competitive Bid Advances under Section 2.5 or if a Eurodollar
Advance or Competitive Bid Advance shall be terminated for any reason prior to
the last day of the Interest Period applicable thereto, or if, while a
Eurodollar Advance or Competitive Bid Advance is outstanding, any repayment or
prepayment of such Eurodollar Advance or Competitive Bid Advance is made for any
reason (including, without limitation, as a result of acceleration or
illegality) on a date which is prior to the last day of the Interest Period
applicable thereto, the Borrower agrees to indemnify each Lender against, and to
pay on demand directly to such Lender, any loss or expense suffered by such
Lender as a result of such failure to borrow or convert, termination or
repayment, including, without limitation, an amount, if greater than zero, equal
to:
A x (B-C) x D
---
360
where:
"A" equals such Lender's pro rata share of the Affected Principal
Amount;
"B" equals the Eurodollar Rate or rate which such Competitive Bid
Advance bears (in each case expressed as a decimal) to such Loan;
"C" equals the applicable Eurodollar Rate or Proposed Bid Rate (in each
case expressed as a decimal), as the case may be, in effect on or about
the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on or about such
date, for deposits (or in the case of a Proposed Bid Rate, based on the
rate such Lender would have quoted) in an
-32-
34
amount equal approximately to such Lender's pro rata share of the
Affected Principal Amount with an Interest Period equal approximately to
the applicable Remaining Interest Period, as determined by such Lender;
"D" equals the number of days from and including the first day of the
applicable Remaining Interest Period to but excluding the last day of
such Remaining Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in connection
with such Eurodollar Advance or Competitive Bid Advance, including, without
limitation, in liquidating or employing deposits acquired to fund or maintain
the funding of its pro rata share of the Affected Principal Amount, or
redeploying funds prepaid or repaid, in amounts which correspond to its pro rata
share of the Affected Principal Amount. Each determination by the Agent or a
Lender pursuant to this Section shall be conclusive and binding on the Borrower
absent manifest error. The obligations of the Borrower under this Section shall
survive the termination of the Agreement and the Aggregate Commitments and the
payment of the Notes and all other amounts payable under the Loan Documents.
2.15. Option to Fund.
Each Lender has indicated that, if the Borrower elects to borrow
or convert to Eurodollar Advances, or obtain a Competitive Bid Advance, such
Lender may wish to purchase one or more deposits in order to fund or maintain
its funding of such Loan during the Interest Period in question; it being
understood that the provisions of this Agreement relating to such funding are
included only for the purpose of determining the rate of interest to be paid on
such Loan. Each Lender shall be entitled to fund and maintain its funding of all
or any part of each Eurodollar Advance or Competitive Bid Advance made by it in
any manner it sees fit, but all determinations under Section 2.14 shall be made
as if such Lender had actually funded and maintained its funding of such Loan
during the applicable Interest Period through the purchase of deposits in an
amount equal to such Loan and having a maturity corresponding to such Interest
Period. The obligations of the Borrower under Sections 2.10, 2.11, 2.13 and 2.14
shall survive the termination of the Agreement and the Aggregate Commitments and
the payment of the Notes and all other amounts payable under the Loan Documents.
2.16. Use of Proceeds.
The proceeds of Loans shall be used solely for general business
purposes, and such use shall conform to the provisions of Section 4.11.
-33-
35
2.17. Capital Adequacy.
If (i) the enactment or promulgation of, or any change or
phasing in of, any United States or foreign law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration thereof, (ii) compliance with any directive or guideline from any
central bank or United States or foreign Governmental Authority (whether having
the force of law) promulgated or made after the date hereof, or (iii) compliance
with the Risk-Based Capital Guidelines of the Board of Governors of the Federal
Reserve System as set forth in 12 CFR Parts 208 and 225, or of the Comptroller
of the Currency, Department of the Treasury, as set forth in 12 CFR Part 3, or
similar legislation, rules, guidelines, directives or regulations under any
applicable United States or foreign Governmental Authority affects or would
affect the amount of capital required to be maintained by a Lender (or any
lending office of such Lender) or any corporation directly or indirectly owning
or controlling such Lender or imposes any restriction on or otherwise adversely
affects such Lender (or any lending office of such Lender) or any corporation
directly or indirectly owning or controlling such Lender and such Lender shall
have reasonably determined that such enactment, promulgation, change or
compliance has the effect of reducing the rate of return on such Lender's
capital or the asset value to such Lender of any Loan made by such Lender as a
consequence, directly or indirectly, of its obligations to make and maintain the
funding of its Loans at a level below that which such Lender could have achieved
but for such enactment, promulgation, change or compliance (after taking into
account such Lender's policies regarding capital adequacy) by an amount deemed
by such Lender to be material, then, upon demand by such Lender, the Borrower
shall promptly pay to such Lender such additional amount or amounts as shall be
sufficient to compensate such Lender for such reduction in such rate of return
or asset value. A certificate in reasonable detail as to such amounts submitted
to the Borrower and the Agent setting forth the determination of such amount or
amounts that will compensate such Lender for such reductions shall be presumed
correct absent manifest error. No failure by any Lender to demand compensation
for such amounts hereunder shall constitute a waiver of such Lender's right to
demand such compensation at any time. Such Lender shall, however, use reasonable
efforts to notify the Borrower of such claim within 90 days after the officer of
such Lender having primary responsibility for this Agreement has obtained
knowledge of the events giving rise to such claim. The obligations of the
Borrower under this Section shall survive the termination of the Agreement and
the Aggregate Commitments and the payment of the Notes and all other amounts
payable under the Loan Documents.
2.18. Agent's Records.
The Agent's records with respect to the Loans, the interest
rates applicable thereto, each payment by the Borrower of principal and interest
on the Loans, and fees, expenses and any other amounts due and payable in
connection with this Agreement shall be presumptively correct absent manifest
error as to the amount of the Loans, and the
-34-
36
amount of principal and interest paid by the Borrower in respect of such Loans
and as to the other information relating to the Loans, and amounts paid and
payable by the Borrower hereunder and under the Notes. The Agent will when
requested by the Borrower advise the Borrower of the principal and interest
outstanding under the Loans as of the date of such request and the dates on
which such payments are due.
2.19. Extension of Revolving Credit Termination Date.
(a) Provided that no Default or Event of Default exists
during the periods set forth below, the Borrower may request one or more
extensions of the Revolving Credit Termination Date, each such extension to be
for a period of 364-days. The Borrower shall give notice of each such request to
the Agent (each, an "Extension Request") at least 30 days prior to the then
current Revolving Credit Termination Date (the Lenders being under no obligation
to consider any request delivered after such date). Any extension of the
Revolving Credit Termination Date requested in accordance with the foregoing
procedure shall be determined as follows:
(i) (i) If all of the Lenders consent to an
Extension Request within 30, but not less than 15, days from the date of
such Extension Request (such period being the "Extension Consideration
Period") the Revolving Credit Termination Date shall be extended as
provided above. Upon receipt of such consents from each Lender, the
Agent will notify the Lenders of its receipt of all such consents and
the new Revolving Credit Termination Date.
(ii) If fewer than all Lenders, but at least the
Required Lenders, consent to an Extension Request, by giving written
notice thereof to the Borrower and the Agent during the Extension
Consideration Period, the Borrower may elect to (i) withdraw such
Extension Request, (ii) effect an assignment of all or part of the
rights and obligations under the Loan Documents of each Lender who did
not consent to such Extension Request (each a "Nonconsenting Lender" and
collectively, the "Nonconsenting Lenders"), subject to, and in
accordance with, the provisions of Section 2.19(c), or (iii) terminate
the Commitment of each Nonconsenting Lender effective on the then
current Revolving Credit Termination Date with respect to such
Nonconsenting Lender, and, on such date, pay to the Agent for
distribution to such Nonconsenting Lender the outstanding principal
balance, if any, of the Note of such Nonconsenting Lender, together with
any accrued and unpaid interest thereon to the date of such payment, any
accrued and unpaid Facility Fee due to such Lender, and any other amount
due to such Lender under this Agreement, whereupon (y) the then current
Revolving Credit Termination Date shall be extended as to all Lenders
from whom the Agent has received such consent (the "Consenting
Lenders"), and the Agent will notify the Consenting Lenders of the new
Revolving Credit Termination Date and the new Total Commitment Amount,
and (z) each Nonconsenting Lender shall cease to be
-35-
37
a "Lender" for all purposes of this Agreement after the then current
Revolving Credit Termination Date applicable to such Nonconsenting
Lender (except with respect to its rights hereunder to be reimbursed for
costs and expenses, and to indemnification with respect to, matters
attributable to events, acts or conditions occurring prior to such
assumption and purchase) and shall no longer have any obligations
hereunder.
(iii) If Lenders comprising at least the Required
Lenders do not consent to an Extension Request, by giving written notice
thereof to the Borrower during the Extension Consideration Period, the
Revolving Credit Termination Date shall not be extended.
(b) In the event the Borrower elects to terminate the
Commitment of the Nonconsenting Lender under Section 2.19(a)(ii) above, the
Agent is authorized and directed to amend Exhibit B, effective on the then
current Revolving Credit Termination Date, and promptly distribute a copy
thereof to the Borrower and the Consenting Lenders reflecting the Commitment
Amount of each Consenting Lender and the new Total Commitment Amount. The new
Commitment Percentage of each Consenting Lender based on such new Total
Commitment Amount (after giving effect to the termination of each Nonconsenting
Lender's Commitment) is sometimes hereinafter referred to as the "Reallocated
Commitment Percentage." The Consenting Lenders agree (subject to their receipt
of any mandatory prepayment referred to below), effective on the then current
Revolving Credit Termination Date, to assume their Reallocated Commitment
Percentages of the Revolving Credit Loans, provided, that if, after giving
effect to such assumption, the outstanding principal balance of the Consenting
Lenders' Revolving Credit Loans would exceed the Total Commitment Amount or any
Lender's Commitment Amount, then the Borrower will pay to the Agent on the then
current Revolving Credit Termination Date for distribution to the Consenting
Lenders, an amount sufficient to reduce the outstanding principal balance of the
Revolving Credit Loans to an amount which does not exceed the Total Commitment
Amount and each Consenting Lender's Commitment Amount.
(c) In the event the Borrower elects to effect an assignment
of all or part of the Nonconsenting Lenders' rights and obligations under the
Loan Documents in accordance with Section 2.19(a)(ii) above, then, provided that
there shall not exist and be continuing any Default or Event of Default, the
Borrower may, subject to the terms of this Section 2.19(c), obtain the agreement
of a Substitute Lender to accept such an assignment, and one or more
Nonconsenting Lenders designated by the Borrower (as hereinafter set forth)
shall, subject to the terms of this Section 2.19(c), assign all or part of their
rights and obligations in the Loan Documents to such Substitute Lender. The
Borrower shall at least 15 days prior to the Revolving Credit Termination Date
on which the Commitments of such Nonconsenting Lenders shall terminate (a
"Nonconsenting Lender Termination Date") notify the Agent and one or more of the
Nonconsenting
-36-
38
Lenders of a Substitute Lender's agreement to accept such assignment from such
Nonconsenting Lenders. Such notice shall set forth (i) the name of the
Nonconsenting Lenders whose rights and obligations are to be assigned to said
Substitute Lender, (ii) the percentage interest of the Nonconsenting Lenders'
Commitments to be assigned to said Substitute Lender, and (iii) the amount of
the Revolving Credit Loans to be so assigned and their type (i.e. ABR Advances,
Eurodollar Advances and/or Competitive Bid Advances). Upon the Agent's consent
to such assignment (which consent or denial shall be given by the Agent to the
Borrower and applicable Nonconsenting Lenders within 5 days after the Agent's
receipt of the foregoing notice from the Borrower) such Nonconsenting Lenders
and the Substitute Lender shall enter into an Assignment and Assumption
Agreement substantially in the form of Exhibit A. Upon such execution, delivery,
acceptance and recording by the Agent, from and after the effective date
specified in such Assignment and Assumption Agreement (which date shall not be
later than the Nonconsenting Lender Termination Date), the Substitute Lender
shall be a party hereto. The Commitment of the Substitute Lender acquired
pursuant to such Assignment and Assumption Agreement shall be coterminous with
the Commitments of each Consenting Lender. The Borrower agrees upon written
request of the Agent, and at the Borrower's expense, to execute and deliver to
such Substitute Lender a Note, dated the effective date of such Assignment and
Assumption Agreement, in an aggregate principal amount equal to the Revolving
Credit Loans assigned to, and Commitments assumed by, the Substitute Lender, and
the Agent shall amend Exhibit B, effective on such date to reflect the
Commitment of each Consenting Lender, the new Commitment of each Substitute
Lender and the new Total Commitment Amount and shall promptly distribute a copy
thereof to the Borrower, each Consenting Lender and such Substitute Lender.
At the request of the Borrower, the Nonconsenting Lender whose Commitment has
been assigned shall promptly after the later to occur of such effective date and
payment in full of all amounts hereunder and under the Note return to the
Borrower its Note or other evidence that such Nonconsenting Lender has received
full payment of such amounts. The purchase price paid under each Assignment and
Assumption Agreement delivered pursuant to this Section 2.19(c) shall be the
principal amount of the Revolving Credit Loans assigned thereunder. On the
effective date of such Assignment and Assumption Agreement, the Borrower, the
Substitute Lender and the Nonconsenting Lender shall make appropriate
adjustments in the payment of interest, Facility Fees and other amounts with
respect to the assigned Revolving Credit Loans, it being understood, however,
that the Nonconsenting Lender may require, as a condition to its execution and
delivery of the Assignment and Assumption Agreement, that it receive all accrued
and unpaid interest, Facility Fees and other amounts due to it (whether or not
the same are then payable) on the effective date of such Assignment and
Assumption Agreement. To the extent that the Borrower does not purchase all of
the rights and obligations of the Nonconsenting Lenders under the Loan
Documents, then the Borrower will make the payment described in clause (iii) of
Section 2.19(a)(ii) with respect to the Revolving Credit Loans and the
-37-
39
interest, Facility Fees and other amounts appurtenant thereto which are not the
subject of such Assignment and Assumption Agreement. Each Nonconsenting Lender
shall cease to be a "Lender" for all purposes of this Agreement after the
Nonconsenting Lender Termination Date applicable to such Nonconsenting Lender
(except with respect to its rights hereunder to be reimbursed for costs and
expenses, and to indemnification with respect to, matters attributable to
events, acts or conditions occurring prior to such assumption and purchase) and
shall no longer have any obligations hereunder. The Borrower agrees to hold each
Nonconsenting Lender harmless from any loss liability or claim incurred by or
made against such Nonconsenting Lender in connection with any assignment made by
it pursuant to this Section 2.19(c) (the obligations of the Borrower under the
foregoing indemnity shall survive the termination of the Agreement and the
Aggregate Commitments and the payment of the Notes and all other amounts payable
under the Loan Documents).
(d) Each Lender will use its best efforts to respond
promptly to any request for an extension of the Revolving Credit Termination
Date, provided that no Lender's failure to so respond shall create any claim
against it or have the effect of extending the Revolving Credit Termination Date
of such Lender's Commitment.
(e) At any time prior to the then existing Revolving Credit
Termination Date, the Borrower may withdraw its Extension Request and may (i)
elect to convert the outstanding principal balance of all Revolving Credit Loans
to the Term Loans on such Revolving Credit Termination Date, subject to the
provisions of Section 2.2, or (ii) allow the Commitments to terminate on such
Revolving Credit Termination Date, in which case the Lenders shall thereafter
have no further obligations to the Borrower under this Agreement and all Loans
must be paid in full, together with all accrued and unpaid interest, Facility
Fees and other amounts due hereunder. During any period that an Extension
Request has been made and not withdrawn by the Borrower, the Borrower shall not
be entitled to convert the Revolving Credit Loans to Term Loans.
2.20. Commitment Increases.
(a) At any time and from time to time after the Effective
Date and during the Revolving Credit Period, subject to the prior written
consent of the Agent (which consent shall not be unreasonably withheld), and
provided that no Default shall have occurred and is continuing, the Total
Commitment Amount may be increased either by new Lenders establishing
Commitments or by one or more then existing Lenders increasing their Commitments
(each such increase by either means, a "Commitment Increase", and each new
Lender or each Lender increasing its Commitment, an "Additional Commitment
Lender") provided that no Commitment Increase shall become effective unless and
until (i) the Borrower, the Agent and the Additional Commitment Lender shall
have executed and delivered an agreement substantially in the form of Exhibit H
(a "Commitment Increase Supplement") with respect to such Commitment
-38-
40
Increase, and (ii) if, after giving effect thereto, the aggregate amount of the
Commitments would exceed $100,000,000, such Commitment Increase shall have been
consented to in writing by each of the other Lenders. On the effective date of
any such Commitment Increase (each an "Increase Effective Date"), the Additional
Commitment Lender shall pay to each other Lender the purchase price, as
determined in accordance with subsection (b) below, for an assignment of a
portion of such other Lender's advances outstanding at such time that, after
giving effect to such assignments, the aggregate amount of Revolving Credit
Loans of each Lender (including the Additional Commitment Lender) shall be
proportional. Upon payment of such purchase price, each other Lender shall be
deemed to have sold and made such an assignment to such Additional Commitment
Lender, and such Additional Commitment Lender shall be deemed to have purchased
and assumed such an assignment from each other Lender, on the terms set forth in
subsection (b) below. Upon the effectiveness of any Commitment Increase, the
Borrower shall issue a Note to the Additional Commitment Lender (against
surrender of its existing Note in the case of an existing Lender), and to the
existing Lenders if necessary, in the amount of such Additional Commitment
Lender's Commitment after giving effect to such Commitment Increase. The Agent
is hereby directed to amend Exhibit B hereto on each Increase Effective Date to
reflect the Total Commitment Amount and the Commitment of each Lender as of such
Increase Effective Date. As of the Increase Effective Date, each Additional
Commitment Lender shall be a "Lender" hereunder, and shall have all of the
rights and obligations of a Lender hereunder.
(b) Each assignment of Revolving Credit Loans by any Lender
(an "Assigning Lender") to an Additional Commitment Lender pursuant to
subsection (a) of this Agreement shall be made on the following terms:
(i) The purchase price for the assignment shall be
equal to the aggregate principal amount of the Revolving Credit Loans
assigned plus the amount of accrued and unpaid interest thereon on the
date of the assignment. The purchase price shall be payable, not later
than 12:00 noon (New York City time) on the effective date of the
applicable Commitment Increase, in U.S. Dollars in funds immediately
available to the Assigning Lender at such office of the Assigning Lender
(or a commercial bank designated by it) located in the United States as
the Assigning Lender shall specify to the Assignee.
(ii) The assignment shall consist of an equal
percentage of all Revolving Credit Loans of the Assigning Lender
outstanding and shall include all of the Assigning Lender's rights under
this Agreement in respect of the portion of the Revolving Credit Loans
of the Assigning Lender assigned, including accrued interest thereon.
(iii) The assignment shall be without recourse to the
Assigning Lender. The Assigning Lender shall not be deemed to have made
any
-39-
41
representation or warranty or to have assumed any responsibility with
respect to (a) any statements, warranties or representations made in or
in connection with the Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Agreement or
any other instrument or document furnished pursuant thereto, other than
as set forth in clause (iv) below, or (b) the financial condition of the
Borrower or any of its Subsidiaries, or the performance or observance by
the Borrower or any of its Subsidiaries of any of their respective
obligations under the Agreement or any other instrument or document
furnished pursuant thereto.
(iv) The Assigning Lender shall, at the time of the
assignment, be deemed to have represented and warranted that (a) it has
full power, authority and legal right to make the assignment and (b) it
is the legal and beneficial owner of the rights assigned and such rights
are free and clear of any lien or adverse claim, including any
participation.
(v) The Additional Commitment Lender which is the
assignee of the Assigning Lender's interest shall, at the time of the
assignment, be deemed to have (a) represented and warranted that it has
full power, authority and legal right to purchase and assume the
Assignment; (b) confirmed that it has received a copy of this Agreement,
together with copies of the most recent financial statements and reports
delivered pursuant to Section 7.1 (a), (b) and (c) of this Agreement and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to purchase and assume the
assignment; and (c) agreed that it will, independently and without
reliance upon the Assigning Lender, the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
2.21. Failure to Fund; Facility Fee.
In the event that a Lender (i) shall fail or refuse to advance
its Commitment Percentage of each borrowing of Loans as required by the
provisions of either Sections 2.4 or 2.5, and (ii) shall not have notified
either the Agent or the Borrower (either orally or in writing) that it has
determined (which determination shall be made by such Lender reasonably and in
good faith) that it is not obligated by the terms of this Agreement to make such
advance (for example, by reason of the occurrence of a Default or the failure of
the Borrower to satisfy any other condition to such borrowing) (such Lender's
Commitment Percentage of such borrowing being the "Defaulted Portion"), then for
the period that such failure or refusal shall continue, and such notice is not
provided, the Facility Fee shall not accrue on that portion of such Lender's
Commitment equal to the Defaulted Portion. Any such reduction in the aggregate
Facility Fee shall reduce only the portion of such aggregate Facility Fee
payable to the Lender who gave rise to such
-40-
42
Defaulted Portion, and shall not reduce the share of the Facility Fee payable to
any other Lenders.
3. FEES; PAYMENTS
3.1. Facility Fee.
Subject to the provisions of Section 2.21, the Borrower agrees
to pay to the Agent, for the account of the Lenders in accordance with each
Lender's Commitment Percentage, a fee (the "Facility Fee"), during the Revolving
Credit Period and any period that one or more Term Loans is outstanding, equal
to the Applicable Facility Fee Percentage of the average daily Total Commitment
Amount (including any increase thereto pursuant to Section 2.20). The Facility
Fee shall be payable quarterly in arrears on the last day of each March, June,
September and December of each year, commencing on the first such day following
the Effective Date, on each optional reduction of the Total Commitment Amount,
and on the date that the Commitments shall expire or otherwise terminate. 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.
3.2. Pro Rata Treatment and Application of Principal Payments.
Each payment, including each prepayment, of principal and
interest on the Loans and of the Facility Fee shall be made by the Borrower to
the Agent at its office set forth in Section 11.2 in funds immediately available
to the Agent at such office by 12:00 noon on the due date for such payment.
Promptly upon receipt thereof by the Agent, the Agent shall remit, in like funds
as received, (i) to the Lenders who maintain any of their Loans as ABR Advances
or Eurodollar Advances, each such Lender's pro rata share of such payments which
are in respect of principal or interest due on such ABR Advances or Eurodollar
Advances; (ii) to the Lenders who maintain any of their Revolving Credit Loans
as Competitive Bid Advances, each such Lender's pro rata share of such payments
which are in respect principal or interest due on such Competitive Bid Advances
in accordance with Sections 2.5(c) and (d) and (iii) in the case of Facility
Fees, to all Lenders pro rata according each Lender's Commitment Percentage
thereof (except as otherwise provided in Section 2.21). The failure of the
Borrower to make any such payment by such time shall not constitute a default
hereunder, provided that such payment is made on such due date, but any such
payment made after 12:00 noon on such due date shall be deemed to have been made
on the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans. If any payment hereunder or under the Notes shall be
due and payable on a day which is not a Business Day, the due date thereof
(except as otherwise provided in the definition of Interest Period) shall be
-41-
43
extended to the next Business Day and (except with respect to payments in
respect of the Facility Fee) interest shall be payable at the applicable rate
specified herein during such extension. If any payment is made with respect to
any Eurodollar Advance or Competitive Bid Advance prior to the last day of the
applicable Interest Period, the Borrower shall indemnify each Lender in
accordance with Section 2.14.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to make the Loans the Borrower makes the following representations
and warranties to the Agent and each Lender:
4.1. Subsidiaries.
The Borrower has only the Subsidiaries set forth on Schedule
4.1. The shares of each corporate Subsidiary are duly authorized, validly
issued, fully paid and nonassessable and are owned free and clear of any Liens.
The interest of the Borrower in each non-corporate Subsidiary is owned free and
clear of any Liens.
4.2. Existence and Power; Declaration of Trust.
(a) Each of the Borrower and its Subsidiaries is duly
organized or formed and validly existing in good standing under the laws of the
jurisdiction of its formation, has all requisite power and authority to own its
Property and to carry on its business as now conducted, and each is in good
standing and authorized to do business in each jurisdiction in which the nature
of the business conducted therein or the Property owned therein make such
qualification necessary, except where such failure to qualify could not
reasonably be expected to have a Material Adverse Effect.
(b) The Declaration of Trust is in full force and effect in
accordance with the terms thereof. As of the date hereof, there have been no
amendments to the Declaration of Trust.
4.3. Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents and to make the
borrowings contemplated thereby, to execute, deliver and carry out the terms of
the Notes and to incur the obligations provided for herein and therein, all of
which have been duly authorized by all proper and necessary action and are in
full compliance with the Declaration of Trust.
-42-
44
4.4. Binding Agreement.
(a) The Loan Documents constitute the valid and legally
binding obligations of the Borrower, enforceable in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally.
(b) No provision of any applicable statute, law (including,
without limitation, any applicable usury or similar law), rule or regulation of
any Governmental Body will prevent the execution, delivery or performance of, or
affect the validity of, the Loan Documents.
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) pending or, to the knowledge of the
Borrower, threatened against the Borrower or any Subsidiary or any of their
respective Properties or rights, which (i) if adversely determined, could
reasonably be expected to have a Material Adverse Effect, (ii) call into
question the validity or enforceability of any of the Loan Documents, or (iii)
could reasonably be expected to result in the rescission, termination or
cancellation of any of the following (to the extent the same is material): any
franchise, right, license, permit or similar authorization held by the Borrower
or any Subsidiary.
(b) Schedule 4.5 sets forth all actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether or not purportedly on behalf of the Borrower or any Subsidiary) pending
or, to the knowledge of the Borrower, threatened against the Borrower, any
Subsidiary or any of their respective Properties or rights, which, if adversely
determined, could have a Material Adverse Effect.
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 authorize, or is required in connection with
the execution, delivery and performance of the Loan Documents or is required as
a condition to the validity or enforceability of the Loan Documents.
4.7. No Conflicting Agreements.
Neither the Borrower nor any Subsidiary is in default under any
mortgage, indenture, contract or agreement to which it is a party or by which it
or any of its Property is bound, the effect of which default could reasonably be
expected to have a Material
-43-
45
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 pursuant to the terms of any such mortgage,
indenture, contract or agreement.
4.8. Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect. The Borrower and each Subsidiary is complying in all
material respects with all statutes, regulations, rules and orders applicable to
Borrower or such Subsidiary of all Governmental Authorities, including, without
limitation, Environmental Laws and ERISA, a violation of which could reasonably
be expected to have a Material Adverse Effect.
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 required under Section 7.4)
which would be material to the Borrower or any Subsidiary, and no tax Liens have
been filed with respect thereto. The charges, accruals and reserves on the books
of the Borrower and each Subsidiary with respect to all federal, state, local
and other taxes are, to the best knowledge of the Borrower, adequate for the
payment of all such taxes, and the Borrower knows of no unpaid assessment which
is due and payable against it or any Subsidiary or any claims being asserted
which could reasonably be expected to have a Material Adverse Effect The Federal
income tax returns of the Borrower and each of its Subsidiaries consolidated in
such returns have been examined by and settled with the Internal Revenue
Service, or, the statute of limitations with respect thereto have run, for all
years through July 31, 1989.
4.10. Governmental Regulations.
Neither the Borrower nor any Subsidiary is subject to regulation
under the Public Utility Holding Company Act of 1935, as amended, the Federal
Power Act or the Investment Company Act of 1940, as amended, and neither the
Borrower nor any Subsidiary is subject to any statute or regulation which
prohibits or restricts the incurrence of Indebtedness under the Loan Documents,
including, without limitation, statutes or regulations relative to common or
contract carriers or to the sale of electricity, gas, steam, water, telephone,
telegraph or other public utility services.
-44-
46
4.11. Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Subsidiary is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock. No part of the proceeds
of the Loans will be used, directly or indirectly, for a purpose which violates
any law, rule or regulation of any Governmental Authority, including, without
limitation, the provisions of Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System, as amended. No part of the proceeds of the Loans
will be used, directly or indirectly, to purchase or carry Margin Stock or to
extend credit to others for the purpose of purchasing or carrying Margin Stock.
4.12. Plans; Multiemployer Plans.
Each of the Borrower and its ERISA Affiliates maintains or makes
contributions only to the Plans and Multiemployer Plans listed on Schedule 4.12.
Each Plan, and, to the best knowledge of the Borrower, each Multiemployer Plan,
is in compliance in all material respects with, and has been administered in all
material respects in compliance with, the applicable provisions of ERISA, the
Code and any other applicable Federal or state law, and no event or condition is
occurring or exists concerning which the Borrower would be under an obligation
to furnish a report to the Agent and each Lender as required by Section 7.2(d).
As of December 31, 1992, each Plan was "fully funded", which for purposes of
this Section means that the fair market value of the assets of such Plan is not
less than the present value of the accrued benefits of all participants in the
Plan, computed on a plan termination basis. To the best knowledge of the
Borrower, no Plan has ceased being fully funded.
4.13. Financial Statements.
The Borrower has heretofore delivered to the Agent and the
Lenders copies of the audited Consolidated Balance Sheet of the Borrower as of
July 31, 1997, and the related Consolidated Statements of Operations,
Stockholders' Equity and Cash Flows for the fiscal years of the Borrower then
ended (with the related notes and schedules, the "Financial Statements"). The
Financial Statements fairly present the Consolidated financial condition and
results of the operations of the Borrower and its Subsidiaries as of the dates
and for the periods indicated therein (subject, in the case of such unaudited
statements, to normal year-end adjustments) and have been prepared in conformity
with GAAP. Except as reflected in the Financial Statements or in the notes
thereto, neither the Borrower nor any Subsidiary has any obligation or liability
of any kind (whether fixed, accrued, contingent, unmatured or otherwise) which,
in accordance with GAAP, should have been shown on the Financial Statements and
was not. Since the date of the Financial Statements, the Borrower and each
Subsidiary has conducted its business only in the ordinary course and there has
been no Material Adverse Change.
-45-
47
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.
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 as
are material and necessary for the conduct of its business, and with respect to
which it is in compliance, with no known conflict with the valid rights of
others which could reasonably be expected to have a Material Adverse Effect. No
event has occurred which permits or, to the best knowledge of the Borrower,
after notice or the lapse of time or both, or any other condition, could
reasonably be expected to permit, the revocation or termination of any such
franchise, Intellectual Property, license or other right and which revocation or
termination could reasonably be expected to have a Material Adverse Effect.
4.16. Environmental Matters.
(a) The Borrower and each Subsidiary is in compliance in all
material respects with the requirements of all applicable Environmental Laws.
(b) No Hazardous Substances have been (i) generated or
manufactured on, transported to or from, treated at, stored at or discharged
from any Real Property in violation of any Environmental Laws; (ii) discharged
into subsurface waters under any Real Property in violation of any Environmental
Laws; or (iii) discharged from any Real Property on or into property or waters
(including subsurface waters) adjacent to any Real Property in violation of any
Environmental Laws, which such violation, in the case of either (i), (ii) or
(iii) could have, either individually or in the aggregate, a Material Adverse
Effect.
(c) Neither the Borrower nor any Subsidiary (i) has received
notice (written or oral) or otherwise learned of any claim, demand, suit,
action, proceeding, event, condition, report, directive, lien, violation,
non-compliance or investigation indicating or concerning any potential or actual
liability (including, without limitation, potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal costs,
remedial costs, natural resources damages, property damages, personal injuries
or penalties) arising in connection with: (x) any non-compliance with or
violation of the requirements of any applicable 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) or the release or threatened
release of any Hazardous Substance into the environment which could have,
-46-
48
either individually or in the aggregate, 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) or the release or threatened release of any
Hazardous Substance into the environment which could have, either individually
or in the aggregate, a Material Adverse Effect, (iii) has received notice of any
federal or state investigation evaluating whether any remedial action is needed
to respond to the presence of any Hazardous Substance on any Real Property (or
any Real Property previously owned by the Borrower or any Subsidiary) or a
release or threatened release of any Hazardous Substance into the environment
for which the Borrower or any Subsidiary is or may be liable the results of
which could have, either individually or in the aggregate, a Material Adverse
Effect, or (iv) has received notice that the Borrower or any Subsidiary is or
may be liable to any Person under any Environmental Law which liability could
have, either individually or in the aggregate, a Material Adverse Effect.
(d) To the best of the Borrower's knowledge, no Real
Property is located in an area identified by the Secretary of Housing and Urban
Development as an area having special flood hazards, 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 Subsidiary is a party to any
collective bargaining agreement, other than the collective bargaining agreement
covering fewer than 10 employees at the Roosevelt Mall Shopping Center in
Philadelphia, Pennsylvania, and, to the best knowledge of the Borrower, no
petition has been filed or proceedings instituted by any employee or group of
employees with any labor relations board seeking 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. Burdensome Obligations.
Neither the Borrower nor any Subsidiary is a party to or bound
by any franchise, agreement, deed, lease or other instrument, or subject to any
corporate restriction which, in the opinion of the management of the Borrower or
such Subsidiary, is so unusual or burdensome, in the context of its business, as
in the foreseeable future might materially and adversely affect or impair the
revenue or cash flow of the Borrower or such Subsidiary or the ability of the
Borrower or such Subsidiary to perform its
-47-
49
obligations under the Loan Documents. The Borrower does not presently anticipate
that future expenditures by the Borrower or any Subsidiary needed to meet the
provisions of federal or state statutes, orders, rules or regulations will be so
burdensome as to result in a Material Adverse Effect.
4.19. REIT Status.
(a) The Borrower (i) has made an election pursuant to
Section 856 of the Code to qualify as a REIT, (ii) has satisfied and continues
to satisfy all of the requirements under 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 full compliance with
all Code sections applicable to REITs generally and the regulations and rulings
issued thereunder.
(b) The Borrower is in compliance with all REIT Guidelines.
4.20. No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary in connection with the transactions contemplated hereby, contains or
will contain a 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 FIRST LOANS
In addition to the conditions precedent set forth in Section 6,
the obligation of each Lender to make its first Loan shall be subject to the
fulfillment of the following conditions precedent:
5.1. Evidence of Action.
(a) The Agent shall have received a certificate, dated the
first Borrowing Date, of the Secretary or Assistant Secretary of the Borrower
(i) attaching a true and complete copy of the resolutions of its Trustees and of
all documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Agent) taken by it to authorize the Loan
Documents and the transactions contemplated thereby, (ii) attaching a true and
complete copy of its Declaration of Trust, (iii) setting forth the incumbency of
its officer or officers who may sign the Loan Documents, including therein a
signature specimen of such officer or officers, and (iv) attaching a certificate
of said Secretary or Assistant Secretary to the effect that the Declaration of
Trust is a true
-48-
50
and complete copy thereof, is in full force and effect and has not been amended
or modified.
(b) The Agent shall have received certificates of good
standing from the Secretaries of State for the Commonwealth of Massachusetts,
and each other jurisdiction in which the Borrower is qualified to do business,
provided that such Secretaries issue such certificates with respect to the
Borrower.
5.2. This Agreement.
The Agent shall have received counterparts of this Agreement
signed by each of the parties hereto (or receipt by the Agent from a party
hereto of a facsimile signature page signed by such party which shall have
agreed to promptly provide the Agent with originally executed counterparts
hereof).
5.3. Notes.
The Agent shall have received the Notes, duly executed by an
Authorized Signatory of the Borrower.
5.4. 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 Agent shall have received a certificate of an
Authorized Signatory of the Borrower to the foregoing effects.
5.5. Opinion of Counsel to the Borrower.
The Agent shall have received an opinion of (i) Hofheimer
Gartlir & Gross, LLP, outside counsel to the Borrower, and (ii) Steven F.
Siegel, in-house counsel to the Borrower, each addressed to the Agent, the
Lenders and Special Counsel, and each dated the first Borrowing Date, in the
form of Exhibit I.
5.6. Opinion of Special Counsel.
The Agent shall have received an opinion of Special Counsel,
addressed to the Agent and the Lenders and dated the first Borrowing Date and
substantially in the form of Exhibit J.
-49-
51
5.7. Fees.
The Facility Fees and all fees payable to the Agent 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.
5.9. Termination of Existing Credit Agreement.
On the Effective Date, all loans outstanding under the Existing
Credit Agreement, together with all interest, fees, breakage costs and other
amounts outstanding thereunder, shall have been paid to the lenders thereunder
in full and the obligations of such lenders under the Existing Credit Agreement
shall have been terminated.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Revolving Credit Loan or
convert its Revolving Credit Loans to Term Loans is subject to the satisfaction
of the following conditions precedent as of the date of such Loan:
6.1. Compliance.
On each Borrowing Date and after giving effect to the Loans to
be made or created (a) the Borrower shall be in compliance with all of the
terms, covenants and conditions thereof, (b) there shall exist no Default or
Event of Default, (c) the representations and warranties contained in the Loan
Documents shall be true and correct with the same effect as though such
representations and warranties had been made on such Borrowing Date and (d) the
aggregate outstanding principal balance of the Loans will not exceed the
Aggregate Commitments. Each borrowing by the Borrower shall constitute a
certification by the Borrower as of the date of such borrowing that each of the
foregoing matters is true and correct in all respects.
6.2. Loan Closings.
All documents required by the provisions of the Loan Documents
to be executed or delivered to the Agent on or before the applicable Borrowing
Date shall have been executed and shall have been delivered at the office of the
Agent set forth in Section 11.2 on or before such Borrowing Date.
-50-
52
6.3. Borrowing Request; Term Loan Conversion Notice.
With respect to each borrowing of a Revolving Credit Loan, the
Agent shall have received a Conventional Borrowing Request or a Competitive Rate
Borrowing Request, as the case may be, duly executed by an Authorized Signatory
of the Borrower. With respect to the conversion of Revolving Credit Loans to
Term Loans pursuant to Section 2.2, the Agent shall have timely received a Term
Loan Conversion Notice from the Borrower.
6.4. Documentation and Proceedings.
All Trust matters and legal proceedings and all documents and
papers in connection with the transactions contemplated by the Loan Documents
shall be reasonably satisfactory in form and substance to the Agent and the
Agent shall have received all information and copies of all documents which the
Agent or the Required Lenders may reasonably have requested in connection
therewith, such documents (where appropriate) to be certified by an Authorized
Signatory of the Borrower or proper Governmental Authorities.
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, performed and to have
happened on or prior to such Borrowing Date and which are necessary for the
continued effectiveness of the Loan Documents, shall have been done and
performed and shall have happened in due compliance with all applicable laws.
6.6. Approval of Special Counsel.
All legal matters in connection with the making of each Loan
shall be reasonably satisfactory to Special Counsel.
6.7. Supplemental Opinions.
If reasonably requested by the Agent with respect to the
applicable Borrowing Date, there shall have been delivered to the Agent
favorable supplementary opinions of counsel to the Borrower, addressed to the
Agent and the Lenders and dated such Borrowing Date, covering such matters
incident to the transactions contemplated herein as the Agent may reasonably
request.
-51-
53
6.8. Other Documents.
The Agent shall have received such other documents as the Agent
or the Lenders shall reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Agent, the Borrower shall:
7.1. Financial Statements.
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Agent and each Lender:
(a) As soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of its Consolidated
Balance Sheet[s] as at the end of such fiscal year, together with the related
Consolidated Statements of Operations, Stockholders' Equity and Cash Flows as of
and through the end of such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year. The Consolidated
Balance Sheets and Consolidated Statements of Operations, Stockholders' Equity
and Cash Flows shall be 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 financial statements, and (ii) include the opinion of
such Accountants that such Consolidated financial statements present fairly, in
all material respects, the Consolidated financial position of the Borrower and
its Subsidiaries, as of the date of such financial statements, and the
Consolidated results of their operations and their cash flows for each of the
years identified therein in conformity with GAAP (subject to any change in the
requirements of GAAP).
(b) As soon as available, but in any event within 60 days
after the end of the first three fiscal quarters of the Borrower a copy of the
Consolidated balance sheet[s] of the Borrower as at the end of each such
quarterly period, together with the related Consolidated Statements of
Operations and Cash Flows for the elapsed portion of the fiscal year through
such date, setting forth in each case in comparative form the figures for the
corresponding periods of the preceding fiscal year, certified by the Chief
Financial Officer of the Borrower (or such other officer acceptable to the
Agent), as being complete and correct in all material respects and as presenting
fairly the Consolidated
-52-
54
financial condition and the Consolidated results of operations of the Borrower
and its Subsidiaries.
(c) Within 60 days after the end of each of the first three
fiscal quarters of the Borrower (120 days after the end of the last fiscal
quarter of the Borrower), a Compliance Certificate, certified by the Chief
Financial Officer of the Borrower (or such other officer as shall be acceptable
to the Agent) setting forth in reasonable detail the computations demonstrating
the Borrower's compliance with the provisions of Sections 8.4(e), 8.14, 8.15,
8.16 and 8.17.
(d) Such other information as the Agent or any Lender may
reasonably request from time to time.
7.2. Certificates; Other Information.
Furnish to the Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any Subsidiary is declared or shall become due and payable prior to
its stated maturity, or called and not paid when due, or (ii) a default shall
have occurred under any note (other than the Notes) or the holder of any such
note, or other evidence of Indebtedness, certificate or security evidencing any
such Indebtedness or any obligee with respect to any other Indebtedness of the
Borrower or any Subsidiary has the right to declare any such Indebtedness due
and payable prior to its stated maturity, and, in the case of either (i) or
(ii), the Indebtedness that is the subject of (i) or (ii) is, in the aggregate,
$100,000 or more;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other document naming the Borrower or any
Subsidiary a party to any proceeding before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect or which calls
into question the validity or enforceability of any of the Loan Documents, and
include with such notice a copy of such citation, summons, subpoena, order to
show cause or other document, (ii) any lapse or other termination of any
material Intellectual Property, license, permit, franchise or other
authorization issued to the Borrower or any Subsidiary by any Person or
Governmental Authority, and (iii) any refusal by any Person or Governmental
Authority to renew or extend any such material Intellectual Property, license,
permit, franchise or other authorization, which lapse, termination, refusal or
dispute could reasonably be expected to have a Material Adverse Effect;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material which the
Borrower or any Subsidiary may now or hereafter be required to file with or
deliver to any securities
-53-
55
exchange or the Securities and Exchange Commission, or any other Governmental
Authority succeeding to the functions thereof and (ii) material news releases by
the Borrower and annual reports relating to the Borrower or any Subsidiary
(including any annual reports required pursuant to the REIT Guidelines;
(d) As soon as possible, and in any event within ten days
after the Borrower knows or has reason to know that any of the events or
conditions enumerated below with respect to any Plan or Multiemployer Plan has
occurred or exists, a statement signed by the Chief Financial Officer of the
Borrower (or such other officer as shall be acceptable to the Agent), setting
forth details respecting such event or condition and the action, if any, which
the Borrower or an ERISA Affiliate proposes to take with respect thereto;
provided, however, that if such event or condition is required to be reported or
noticed to the PBGC, such statement, together with a copy of the relevant report
or notice to the PBGC, shall be furnished promptly and in any event not later
than ten days after it is reported or noticed to the PBGC:
(i) any reportable event, as defined in Section
4043(b) of ERISA with respect to a Plan, as to which the PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty days of the occurrence of such event (provided
that a failure to meet the minimum funding standard of Section 412 of
the Code or of Section 302 of ERISA, including, without limitation, the
failure to make, on or before its due date, a required installment under
Section 412(m) of the Code or Section 302(e) of ERISA or the
disqualification of such Plan for purposes of Section 4043(b)(1) of
ERISA, shall be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code) and any request
for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken by the
Borrower or any ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Borrower or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that results
in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt of the Borrower or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in reorganization or
-54-
56
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends
to terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary
of any Multiemployer Plan against the Borrower or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed with
thirty days from its commencement;
(vi) the adoption of an amendment to any Plan
pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA that
would result in the loss of the tax-exempt status of the trust of which
such Plan is a part or the Borrower or any ERISA Affiliate fails to
timely provide security to such Plan in accordance with the provisions
of said Sections; and
(vii) any event or circumstance exists which may
reasonably be expected to constitute grounds for the incurrence of
liability by the Borrower or any ERISA Affiliate under Title IV of ERISA
or under Sections 412(c)(11) or 412(n) of the Code with respect to any
employee benefit plan;
(e) Promptly after the request of the Agent or any Lender
therefor, copies of each annual report filed pursuant to Section 104 of ERISA
with respect to each Plan (including, to the extent required by Section 104 of
ERISA, the related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information referred to in
Section 103 of ERISA) and each annual report filed with respect to each Plan
under Section 4065 of ERISA; provided, however, that in the case of a
Multiemployer Plan, such annual reports shall be furnished only if they are
available to the Borrower or any ERISA Affiliate;
(f) Prompt written notice of any order, notice, claim or
proceeding received by, or brought against, the Borrower or any Subsidiary, or
with respect to any of the Real Property, under any Environmental Law;
(g) Promptly after the scheduling of any Net Proceeds Event,
notice of the date on which said Net Proceeds Event is scheduled to occur,
together with a statement identifying the Property which is the subject of said
Net Proceeds Event and setting forth the gross proceeds in connection with said
Net Proceeds Event and the items and amounts deducted from such gross proceeds
in determining the Net Proceeds, and such other information as the Agent or any
Lender shall reasonably request with respect to such Net Proceeds Event;
(h) Promptly after becoming aware of any change in any of
the information delivered pursuant to Section 7.2(g), notice of such change,
together with a statement describing in reasonable detail the changes and the
reasons therefor;
-55-
57
(i) In the event that the Agent shall have a reasonable
basis for believing that Hazardous Substances may be on, at, under or around any
Real Property in violation of any applicable Environmental Law which
individually or in the aggregate could have a Material Adverse Effect, conduct
and complete (at the Borrower's expense) all investigations, studies, samplings
and testings relative to such Hazardous Substances as the Agent may reasonably
request;
(j) Promptly after the same are received by the Borrower,
copies of all management letters and similar reports provided to the Borrower by
the Accountants;
(k) Prompt written notice if there shall occur and be
continuing a Default or an Event of Default; and
(l) Such other information as the Agent or any Lender shall
reasonably request from time to time.
7.3. Legal Existence.
Maintain its status as a Massachusetts business trust in good
standing in the Commonwealth of Massachusetts and in each other jurisdiction in
which the failure so to do could reasonably be expected to have a Material
Adverse Effect.
7.4. Taxes.
Pay and discharge when due, and cause each Subsidiary so to do,
all Taxes, assessments and governmental charges, license fees and levies upon,
or with respect to the Borrower or such Subsidiary and all Taxes upon the
income, profits and Property of the Borrower and its Subsidiaries, which if
unpaid, could reasonably be expected to have a Material Adverse Effect or become
a Lien on the Property of the Borrower or such Subsidiary (other than a
Permitted Lien), unless and to the extent only that such Taxes, assessments,
charges, license fees and levies shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary
and provided that the Borrower shall give the Agent prompt notice of such
contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
7.5. Insurance.
(a) Maintain, and cause each Subsidiary to maintain,
insurance on its Property against such risks and in such amounts as is
customarily maintained by Persons engaged in similar businesses and owning
similar Properties in the same general areas in which the Borrower or the
relevant Subsidiary operates, and file with the Agent within 10 days after
request therefor a detailed list of such insurance then in effect, stating the
names of the carriers thereof, the policy numbers, the insureds thereunder, the
amounts of
-56-
58
insurance, dates of expiration thereof, and the Property and risks covered
thereby, together with a certificate of the Chief Financial Officer (or such
other officer as shall be acceptable to the Agent) of the Borrower certifying
that in the opinion of such officer such insurance is adequate in nature and
amount, complies with the obligations of the Borrower under this Section, and is
in full force and effect.
(b) Concurrent Insurance. Neither the Borrower nor any
Subsidiary shall take out separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained pursuant to subsection
(a) above unless the Agent has approved the carrier and the form and content of
the insurance policy, including, without limitation, naming the Agent as an
additional insured and sole loss payee thereunder.
7.6. Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary to pay and
discharge, all lawful Indebtedness, obligations and claims for labor, materials
and supplies or otherwise which, if unpaid, might (i) have a Material Adverse
Effect, or (ii) become a Lien upon Property of the Borrower or any Subsidiary
other than a Permitted Lien, unless and to the extent only that the validity of
such Indebtedness, obligation or claim shall be contested in good faith and by
appropriate proceedings diligently conducted by it, and provided that the
Borrower shall give the Agent prompt notice of any such contest and that such
reserve or other appropriate provision as shall be required by the Accountants
in accordance with GAAP shall have been made therefor.
7.7. Condition of Property.
In all material respects, at all times, maintain, protect and
keep in good repair, working order and condition (ordinary wear and tear
excepted), and cause each Subsidiary so to do, all Property necessary to the
operation of the Borrower's or such Subsidiary's business.
7.8. Observance of Legal Requirements.
Observe and comply in all respects, and cause each Subsidiary so
to do, with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be
applicable to it, including, without limitation, ERISA and all Environmental
Laws, a violation of which could reasonably be expected to have a Material
Adverse Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by it, provided that the Borrower
shall give the Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required by the Accountants in
accordance with GAAP shall have been made therefor.
-57-
59
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 Agent and any Lender during normal business
hours and on reasonable prior notice to visit its offices, to inspect any of its
Property and to examine and make copies or abstracts from any of its books and
records as often as may reasonably be desired, and to discuss the business,
operations, prospects, licenses, Property and financial condition of the
Borrower or and its Subsidiaries with the officers thereof and the Accountants.
7.10. Licenses, Intellectual Property.
Maintain, and cause each Subsidiary to maintain, in full force
and effect, all material licenses, franchises, Intellectual Property, permits,
licenses, authorizations and other rights as are necessary for the conduct of
its business.
7.11. REIT Status.
Maintain its status under the Code and the REIT Guidelines as a
REIT.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any
Loan remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Agent, the Borrower shall not, directly or
indirectly:
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
so to do, except (i) Liens for Taxes, assessments or similar charges incurred in
the ordinary course of business which are not delinquent or which are being
contested in accordance with Section 7.4, provided that enforcement of such
Liens is stayed pending such contest, (ii) Liens in connection with workers'
compensation, unemployment insurance or other social security obligations (but
not ERISA), (iii) deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds and other obligations of like nature arising in the ordinary
course of business, (iv) zoning ordinances, easements, rights of way, minor
defects, irregularities, and other similar restrictions affecting real Property
which do not adversely affect the value of such real Property or the financial
condition of the Borrower or such Subsidiary or impair its use for the operation
of the business of the Borrower or such
-58-
60
Subsidiary, (v) statutory Liens arising by operation of law such as mechanics',
materialmen's, carriers', warehousemen's liens incurred in the ordinary course
of business which are not delinquent or which are being contested in accordance
with Section 7.4, provided that enforcement of such Liens is stayed pending such
contest, (vi) Liens arising out of judgments or decrees which are being
contested in accordance with Section 7.4, provided that enforcement of such
Liens is stayed pending such contest, (vii) mortgages on Real Property of the
Borrower, provided that the existence of such mortgages, and the indebtedness
secured thereby, does not violate any other provision of this Agreement), (viii)
Liens on other Property of the Borrower not included in clauses (i) through
(viii) of this Section which do not in the aggregate exceed $3,000,000.
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, or permit any Subsidiary so to do (other than a merger of a
Subsidiary into the Borrower where the Borrower is the surviving entity), or
(b) Sell, lease or dispose of any of its Property except in
an arm's length transaction in the ordinary course of its business for the fair
market value thereof.
8.3. Contingent Obligations.
Assume, guarantee, endorse, contingently agree to purchase or
perform, or otherwise become liable upon any Contingent Obligation or permit any
Subsidiary so to do, other than a guarantee by the Borrower of an obligation of
a Subsidiary of the Borrower (but only to the extent that if the Borrower had
entered into such obligation directly, the Borrower would not be in violation of
any of the terms of this Agreement), except the Contingent Obligations of the
Borrower or any Subsidiary existing on the date hereof as set forth on Schedule
8.3.
8.4. Investments, Loans, Etc.
At any time, purchase or otherwise acquire, hold or invest in
the Stock of, or any other interest in, any Person, or make any loan or advance
to, or enter into any arrangement for the purpose of providing funds or credit
to, or make any other investment, whether by way of capital contribution, time
deposit or otherwise, in or with any Person, or permit any Subsidiary so to do,
(all of which are sometimes referred to herein as "Investments") except:
(a) Investments in short-term domestic and eurodollar time
deposits with any Lender, or any other commercial bank, trust company or
national banking association incorporated under the laws of the United States or
any State thereof and
-59-
61
having undivided capital, surplus and undivided profits exceeding $500,000,000
and a long term debt rating of A or A2, as determined, respectively, by S&P and
Moody's;
(b) Investments in short-term direct obligations of the
United States of America or agencies thereof whose obligations are guaranteed by
the United States of America;
(c) Investments existing on the date hereof as set forth on
Schedule 8.4;
(d) normal business banking accounts and short-term
certificates of deposit and time deposits in, or issued by, federally insured
institutions in amounts not exceeding the limits of such insurance;
(e) Investments consisting of loans to employees of the
Borrower, provided that all such loans in the aggregate do not at any time
exceed $10,000,000 in the aggregate; and
(f) Investments permitted under Sections 856-859 of the
Code.
8.5. Business and Name Changes.
Change the nature of the business of the Borrower as conducted
on the Effective Date, or alter or modify its name, structure or status.
8.6. Subsidiaries.
Create or acquire any other Subsidiary, or permit any Subsidiary
so to do, except in the ordinary course of business (as conducted on the
Effective Date).
8.7. Declaration of Trust.
Amend or otherwise modify its Declaration of Trust in any way
which would adversely affect the interests of the Agent and the Lenders under
any of the Loan Documents, other than as contemplated under that certain Notice
of Annual Meeting of Shareholders, dated October 22, 1997, or permit any
Subsidiary to amend its organizational documents in a manner which could have
the same result.
8.8. ERISA.
Adopt or become obligated to contribute to any Plan or
Multiemployer Plan, or permit any ERISA Affiliate so to do, other than those set
forth on Schedule 4.12.
-60-
62
8.9. Prepayments of Indebtedness.
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness or permit any Subsidiary so to do except (i) Indebtedness under the
Loan Documents (unless such prepayment is restricted by the Loan Documents), and
(ii) Indebtedness secured by a mortgage on Real Property, provided that (x) such
prepayment does not otherwise result in a Default under this Agreement and (y)
the Borrower complies with the provisions of Section 2.7(b) in connection with
such prepayment, if applicable.
8.10. Sale and Leaseback.
Enter into any arrangement with any Person providing for the
leasing by it of Property which has been or is to be sold or transferred by it
to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property or its rental
obligations, or permit any Subsidiary so to do.
8.11. Fiscal Year.
Change its fiscal year from that in effect on the Effective
Date, or permit any Subsidiary so to do.
8.12. Transactions with Affiliates.
Become a party to any transaction with an Affiliate unless its
Board of Directors shall have determined that the terms and conditions relating
thereto are as favorable to it as those which would be obtainable at the time in
a comparable arms-length transaction with a Person other than an Affiliate, or
permit any Subsidiary so to do.
8.13. Issuance of Additional Capital Stock by Subsidiaries.
Permit any Subsidiary to issue any additional Stock or other
equity interest of such Subsidiary.
8.14. Interest Coverage Ratio.
Permit the Interest Coverage Ratio to be less than 2.0:1.0 at
any time.
8.15. Minimum Tangible Net Worth.
Permit the Tangible Net Worth of the Borrower and its
Subsidiaries on a Consolidated basis at any time to be less than $550,000,000.
-61-
63
8.16. Maximum Total Indebtedness.
Permit either (i) the total indebtedness of the Borrower, as
determined in accordance with GAAP, at any time to be more than 50% of Total
Capital at such time, or (ii) the indebtedness of the Borrower secured by
mortgages on Real Property owned by the Borrower at any time to exceed 40% of
Total Capital at such time.
8.17. Minimum Unencumbered Assets.
Permit the Undepreciated Real Estate Assets at any time to be
less than the total of all unsecured Indebtedness of the Borrower at such time.
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 or any other fees or expenses payable under any Loan Document within
five Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner
inconsistent with or in violation of Section 2.16; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Sections 7.3, 7.11 or 8; or
(e) The failure to observe or perform any other term,
covenant, or agreement contained in any Loan Document and such failure shall
have continued unremedied for a period of 30 days after the Borrower shall have
obtained knowledge thereof; or
(f) Any representation or warranty of the Borrower (or of
any officer of the Borrower on its behalf) made in any Loan Document to which it
is a party or in any certificate, report, opinion (other than an opinion of
counsel) or other document delivered or to be delivered pursuant thereto, shall
prove to have been incorrect or misleading (whether because of 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, whether as principal, guarantor,
surety or other obligor, for
-62-
64
the payment of any Indebtedness shall (i) become or shall be declared to be due
and payable prior to the expressed maturity thereof, or (ii) shall not be paid
when due or within any grace period for the payment thereof, or (iii) shall be
subject, by the holder of the obligation evidencing such Indebtedness, to
acceleration prior to the expressed maturity thereof, and the sum of all such
Indebtedness which is the subject of clauses (i) - (iii) inclusive exceeds
$4,000,000;
(h) The Borrower or any Subsidiary shall be in default under
any other material agreement and the applicable grace period or cure period, if
any, with respect thereto shall have expired; or
(i) The Borrower or any Subsidiary shall (i) suspend or
discontinue its business, (ii) make an assignment for the benefit of creditors,
(iii) generally not be paying its debts as such debts become due, (iv) admit in
writing its inability to pay its debts as they become due, (v) file a voluntary
petition in bankruptcy, (vi) become insolvent (however such insolvency shall be
evidenced), (vii) file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of debt, liquidation or
dissolution or similar relief under any present or future statute, law or
regulation of any jurisdiction, (viii) petition or apply to any tribunal for any
receiver, custodian or any trustee for any substantial part of its Property,
(ix) be the subject of any such proceeding filed against it which remains
undismissed for a period of 60 days, (x) file any answer admitting or not
contesting the material allegations of any such petition filed against it or any
order, judgment or decree approving such petition in any such proceeding, (xi)
seek, approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, custodian, liquidator, or fiscal agent for
it, or any substantial part of its Property, or an order is entered appointing
any such trustee, receiver, custodian, liquidator or fiscal agent and such order
remains in effect for 60 days, (xii) take any formal action for the purpose of
effecting any of the foregoing or looking to the liquidation or dissolution of
the Borrower or such Subsidiary; or
(j) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower or any Subsidiary bankrupt or 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, (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; or
-63-
65
(k) Judgments or decrees against the Borrower or any
Subsidiary aggregating in excess of $500,000 shall remain unpaid, unstayed on
appeal, undischarged, unbonded or undismissed for a period of 30 days; or
(l) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the Borrower shall so assert in writing or shall
disavow any of its obligations thereunder; or
(m) An event or condition specified in Section 7.2(d) shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a result
of such event or condition, together with all other such events or conditions,
the Borrower shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan, the PBGC, or any combination thereof which would constitute,
in the reasonable opinion of the Required Lenders, a Material Adverse Effect; or
(n) There shall occur a Material Adverse Change; or
(o) There shall occur a Change in Control.
Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (a) if such event is an Event of
Default specified in clause (i) or (j) above, the Aggregate Commitments shall
immediately and automatically terminate and the Loans, all accrued and unpaid
interest thereon, and all other amounts owing under the Loan Documents shall
immediately become due and payable, and the Agent may, and upon the direction of
the Required Lenders shall, exercise any and all remedies and other rights
provided in the Loan Documents, and (b) if such event is any other Event of
Default, any or all of the following actions may be taken: (i) with the consent
of the Required Lenders, the Agent may, and upon the direction of the Required
Lenders shall, by notice to the Borrower, declare the Aggregate Commitments to
be terminated forthwith, whereupon the Aggregate Commitments shall immediately
terminate, and (ii) with the consent of the Required Lenders, the Agent may, and
upon the direction of the Required Lenders shall, by notice of default to the
Borrower, declare the Loans, all accrued and unpaid interest thereon and all
other amounts owing under the Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable, and the Agent may,
and upon the direction of the Required Lenders shall, exercise any and all
remedies and other rights provided 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.
-64-
66
In the event that the Aggregate Commitments shall have been
terminated or the Notes shall have been declared due and payable pursuant to the
provisions of this Section, any funds received by the Agent and the Lenders from
or on behalf of the Borrower shall be applied by the Agent and the Lenders in
liquidation of the Loans and the obligations of the Borrower under the Loan
Documents in the following manner and order: (i) first, to the payment of
interest on and then the principal portion of any Loans which the Agent may have
advanced on behalf of any Lender for which the Agent has not then been
reimbursed by such Lender or the Borrower; (ii) second, to the payment of any
fees or expenses due the Agent from the Borrower, (iii) third, to reimburse the
Agent and the Lenders for any expenses (to the extent not paid pursuant to
clause (ii) due from the Borrower pursuant to the provisions of Section 11.5;
(iv) fourth, to the payment of accrued Facility Fees, and all other fees,
expenses and amounts due under the Loan Documents (other than principal and
interest on the Notes); (v) fifth, to the payment of interest due on the Notes;
(vi) sixth, to the payment of principal outstanding on the Notes; and (vii)
seventh, to the payment of any other amounts owing to the Agent and the Lenders
under any Loan Document.
10. THE AGENT
10.1. Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Agent of such Lender under the Loan Documents and each such Lender hereby
irrevocably authorizes BNY, as the Agent for such Lender, to take such action on
its behalf under the provisions of the Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of the Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
any Loan Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents or otherwise
exist against the Agent.
10.2. Delegation of Duties.
The Agent may execute any of its duties under the Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to rely upon the
advice of counsel concerning all matters pertaining to such duties.
10.3. Exculpatory Provisions.
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to
-65-
67
be taken by it or such Person under or in connection with the Loan Documents
(except for its own gross negligence or willful misconduct), or (ii) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in the Loan Documents or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agent under or
in connection with, the Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the Loan
Documents or for any failure of the Borrower or any other Person to perform its
obligations thereunder. The Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, the Loan Documents, or to inspect
the properties, books or records of the Borrower. The Agent shall not be under
any liability or responsibility whatsoever, as Agent, to the Borrower or any
other Person as a consequence of any failure or delay in performance, or any
breach, by any Lender of any of its obligations under any of the Loan Documents.
10.4. Reliance by Agent.
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Agent. The Agent may treat each Lender, or the Person
designated in the last notice filed with it under this Section, as the holder of
all of the interests of such Lender in its Loans and in its Note until written
notice of transfer, signed by such Lender (or the Person designated in the last
notice filed with the Agent) and by the Person designated in such written notice
of transfer, in form and substance satisfactory to the Agent, shall have been
filed with the Agent. The Agent shall not be under any duty to examine or pass
upon the validity, effectiveness or genuineness of the Loan Documents or any
instrument, document or communication furnished pursuant thereto or in
connection therewith, and the 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 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. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance with a request or
direction of the Required Lenders, and such request or direction and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Notes.
-66-
68
10.5. Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agent has received
written notice thereof from a Lender or the Borrower. In the event that the
Agent receives such a notice, the Agent shall promptly give notice thereof to
the Lenders. The Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem to be in the best interests of the Lenders.
10.6. Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Agent nor
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it and that no act
by the Agent hereinafter, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the Agent to any
Lender. Each Lender represents to the Agent that it has, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and made its own decision to
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, evaluations and decisions in taking or
not taking action under any Loan Document, and to make such investigation as it
deems necessary to inform itself as to the business, operations, Property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, Property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of the Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7. Indemnification.
Each Lender agrees to indemnify and reimburse the Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), pro rata according to
its Commitment, from and against any and all liabilities, obligations, claims,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever including,
-67-
69
without limitation, any amounts paid to the Lenders (through the Agent) by the
Borrower pursuant to the terms of the Loan Documents, that are subsequently
rescinded or avoided, or must otherwise be restored or returned) which may at
any time (including, without limitation, at any time following the payment of
the Notes) be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of the Loan Documents or any other documents
contemplated by or referred to therein or the transactions contemplated thereby
or any action taken or omitted to be taken by the Agent under or in connection
with any of the foregoing; provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting solely from the gross negligence or willful misconduct of the
Agent. The agreements in this Section shall survive the payment of all amounts
payable under the Loan Documents.
10.8. Agent in Its Individual Capacity.
BNY and its respective affiliates may make loans to, accept
deposits from, issue letters of credit for the account of, and generally engage
in any kind of business with, the Borrower as though BNY was not Agent
hereunder. With respect to the Commitment made or renewed by BNY and the Note
issued to BNY, BNY shall have the same rights and powers under the Loan
Documents as any Lender and may exercise the same as though it was not the
Agent, and the terms "Lender" and "Lenders" shall in each case include BNY.
10.9. Successor Agent.
If at any time the Agent deems it advisable, in its sole
discretion, it may submit to each of the Lenders a written notice of its
resignation as Agent under this Agreement, such resignation to be effective upon
the earlier of (i) the written acceptance of the duties of the Agent under the
Loan Documents by a successor Agent and (ii) on the 30th day after the date of
such notice. Upon any such resignation, the Required Lenders shall have the
right to appoint from among the Lenders a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders and accepted such
appointment in writing within 30 days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which successor Agent shall be a commercial bank
organized under the laws of the United States of America or any State thereof
and having a combined capital and surplus of at least $100,000,000. The Borrower
shall have the right to approve any such successor Agent, which approval shall
not be unreasonably withheld or delayed. Upon the acceptance of any appointment
as Agent hereunder by a successor Agent and the approval of such successor Agent
by the Borrower in accordance with the terms of this Section, such successor
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent's rights,
powers, privileges and duties as Agent under the Loan Documents shall be
terminated.
-68-
70
The Borrower and the Lenders shall execute such documents as shall be necessary
to effect such appointment. After any retiring Agent's resignation hereunder as
Agent, the provisions of the Loan Documents shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under the Loan
Documents. If at any time hereunder there shall not be a duly appointed and
acting Agent, the Borrower agrees to make each payment due under the Loan
Documents directly to the Lenders entitled thereto during such time.
11. OTHER PROVISIONS.
11.1. Amendments and Waivers.
With the written consent of the Required Lenders, the Agent and
the Borrower may, from time to time, enter into written amendments, supplements
or modifications of the Loan Documents and, with the consent of the Required
Lenders, the Agent on behalf of the Lenders may execute and deliver to any such
parties a written instrument waiving or a consent to a departure from, on such
terms and conditions as the Agent may specify in such instrument, any of the
requirements of the Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such amendment, supplement,
modification, waiver or consent shall, without the consent of all of the
Lenders: (i) change the Commitments of any Lender or the Total Commitment
Amount, (ii) extend the Revolving Credit Termination Date (other than as
provided for in Section 2.19); (iii) decrease the rate, or extend the time of
payment, of interest of, or change or forgive the principal amount of, or change
the requirement that payments and prepayments of principal of, and payments of
interest on, the Notes be made pro rata to the Lenders on the basis of the
outstanding principal amount of the Loans, (iv) amend the definition of
"Required Lender", or (v) change the provisions of Sections 2.9, 2.12, 2.13,
2.14, 2.19, 2.20, 3.1 or 11.1; 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 Agent under the Loan Documents without the
written consent of the Agent. Any such amendment, supplement, modification,
waiver or consent shall apply equally to each of the Lenders and shall be
binding upon the parties to the applicable agreement, the Lenders, the Agent and
all future holders of the Notes. In the case of any waiver, the parties to the
applicable agreement, the Lenders and the Agent shall be restored to their
former position and rights under the Loan Documents, and any Default or Event of
Default waived shall not extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
-69-
71
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, or if sent by overnight
nationwide commercial courier, when deposited with said courier, and in any case
addressed as follows in the case of the Borrower or the Agent, and at the
Domestic Lending Office in the case of each Lender, or to such other addresses
as to which the Agent may be hereafter notified by the respective parties hereto
or any future holders of the Notes:
The Borrower:
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein,
Vice President
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
with a copy to:
New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq.,
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
and an additional copy to:
Hofheimer Gartlir & Gross, LLP
633 Third Avenue
New York, New York 10017
Attention: Donald M. Weisberg, Esq.
Telephone: (212) 818-9000
Telecopy: (212) 661-3132
The Agent:
The Bank of New York
-70-
72
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Michael Pizarro
Agency Function Administrator
Telephone: (212) 635-4695
Telecopy: (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
One Wall Street
New York, New York 10286
Attention: Andrea Stuart,
Vice President
Telephone: (212) 635-4672
Telecopy: (212) 635-7904,
except that any notice, request or demand by the Borrower to or upon the Agent
or the Lenders pursuant to Sections 2.4, 2.5 or 2.8 shall not be effective until
received. Any party to a Loan Document may rely on signatures of the parties
thereto which are transmitted by telecopier or other electronic means as fully
as if originally signed.
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.
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
-71-
73
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 the
Agent for all its out-of-pocket costs and expenses reasonably incurred in
connection with the development, preparation and execution of, the Loan
Documents, the syndication of the loan transaction evidenced by this Agreement
(whether or not such syndication is completed) and any amendment, supplement or
modification hereto (whether or not executed), any documents prepared in
connection therewith and the consummation of the transactions contemplated
thereby, including, without limitation, the reasonable fees and disbursements of
Special Counsel, (ii) to pay or reimburse the Agent and the Lenders for all of
their respective costs and expenses, including, without limitation, reasonable
fees and disbursements of counsel, incurred in connection with (x) any Default
or Event of Default and any enforcement or collection proceedings resulting
therefrom 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 Lender and the Agent harmless from and against, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Loan Documents and any such other
documents, and (iv) to pay, indemnify and hold each Lender and the Agent and
each of their respective officers, directors, employees, affiliates, agents,
controlling persons and attorneys (as used in this Section, each an "indemnified
person") harmless from and against any and all other liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever (including, without
limitation, reasonable counsel fees and disbursements) with respect to any
claim, investigation or proceeding relating to this Agreement or the Loan
documents, including the enforcement and performance of the Loan Documents and
the use of the proceeds of the Loans (all the foregoing, collectively, the
"indemnified liabilities"), whether or not any such indemnified person is a
party to this Agreement or the Loan Documents, and to reimburse each indemnified
person for all legal and other expenses incurred in connection with
investigating or defending any indemnified liabilities, and, if and to the
extent that the foregoing indemnity may be unenforceable for any reason, the
Borrower agrees to make the maximum payment permitted or not prohibited under
applicable law; provided, however, that the Borrower shall have no
-72-
74
obligation hereunder to pay indemnified liabilities to the Agent or any Lender
arising from (A) the gross negligence or willful misconduct of the Agent or such
Lender or (B) disputes solely between the Lenders and which are not related to
any act or failure to act on the part of the Borrower or the failure of the
Borrower to perform any of its obligations under this Agreement or the Loan
Documents.
Notwithstanding the foregoing, the fees and expenses referred to
in clause (iv) of the preceding paragraph would not be payable by the Borrower
if (x) any such enforcement action brought by the Agent or a Lender were
dismissed, with prejudice, on the pleadings or pursuant to a motion made by the
Borrower for summary judgment, and (y) if the Agent or such Lender, as the case
may be, appealed such dismissal, such dismissal were affirmed and the time for
any further appeals had expired. The obligations of the Borrower under this
Section shall survive the termination of the Agreement and the Aggregate
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 Agent and the Borrower of any such change of office.
Such office shall thereupon become such Lender's Domestic Lending Office or
Eurodollar Lending Office, as the case may be, provided, however, that no such
Lender shall be entitled to receive any greater amount under Sections 2.11, 2.13
or 2.14 as a result of a transfer of any such Loans to a different office of
such Lender than it would be entitled to immediately prior thereto unless such
claim would have arisen even if such transfer had not occurred.
11.7. Successors and Assigns.
(a) The Loan Documents shall be binding upon and inure to
the benefit of the Borrower, the Lenders, the Agent, all future holders of the
Notes and their respective successors and assigns, except that the Borrower may
not assign, delegate or transfer any of its rights or obligations under the Loan
Documents without the prior written consent of the Agent and each Lender.
(b) Each Lender shall have the right at any time, upon
written notice to the Agent of its intent to do so, to sell, assign, transfer or
negotiate all or any part of such Lender's rights and/or obligations under the
Loan Documents to one or more of its Affiliates, to one or more of the other
Lenders (or to Affiliates of such other Lenders) or, with the prior written
consent of the Borrower and the Agent (which consent, from either of them, shall
not be unreasonably withheld and shall not be required from the Borrower upon
the occurrence and during the continuance of an Event of Default), to sell,
assign, transfer or negotiate all or any part of such Lender's rights and
obligations under the Loan
-73-
75
Documents to any other bank, insurance company, pension fund, mutual fund or
other financial institution, provided that there shall be paid to the Agent by
the assigning Lender a fee (the "Assignment Fee") of $3,500. For each
assignment, the parties to such assignment shall execute and deliver to the
Agent for its acceptance and recording an Assignment and Acceptance Agreement.
Upon such execution, delivery, acceptance and recording by the Agent, from and
after the effective date specified in such Assignment and Acceptance Agreement,
the assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance Agreement, the assignor Lender thereunder shall
be released from its obligations under the Loan Documents. The Borrower agrees
upon written request of the Agent and at the Borrower's expense to execute and
deliver (1) to such assignee, a Note, dated the effective date of such
Assignment and Acceptance Agreement, in an aggregate principal amount equal to
the Loans assigned to, and Commitments assumed by, such assignee and (2) to such
assignor Lender, a Note, dated the effective date of such Assignment and
Acceptance Agreement, in an aggregate principal amount equal to the 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 B
shall be adjusted accordingly by the Agent and a new Exhibit B shall be
distributed by the Agent to the Borrower and each Lender.
(c) Each Lender may grant participations in all or any part
of its Loans, its Note and its Commitment to one or more banks, insurance
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
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents, (iv) no sub-participations shall be permitted and (v) the voting
rights of any holder of any participation shall be limited to decisions that
only do any of the following: (A) subject the participant to any additional
obligation, (B) reduce the principal of, or interest on the Notes or any fees or
other amounts payable hereunder, and (C) postpone any date fixed for the payment
of principal of, or interest on the Notes or any fees or other amounts payable
hereunder. The Borrower 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 2.17 be deemed
to be a "Lender"; provided, however, the Borrower shall not, at any time, be
obligated to pay any participant in any interest of any Lender hereunder any sum
in excess of the sum which the Borrower would have been obligated to pay to such
Lender in respect of such interest had such Lender not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b)
or (ii) any participation is granted pursuant to subsection (c), shall be made
to any Person that is
-74-
76
organized under the laws of any jurisdiction other than the United States of
America or any State thereof, such Person shall furnish such certificates,
documents or other evidence to the Borrower and the Agent, in the case of clause
(i) and to the Borrower and the Lender which sold such participation in the case
of clause (ii), as shall be required by Section 2.11(b) to evidence such
Person's exemption from U.S. withholding taxes with respect to any payments
under or pursuant to the Loan Documents because such Person is eligible for the
benefits of a tax treaty which provides for a zero % rate of tax on any payments
under the Loan Documents or because any such payments to such Person are
effectively connected with the conduct by such Person of a trade or business in
the United States.
(e) No Lender shall, as between and among the Borrower, the
Agent and such Lender, be relieved of any of its obligations under the Loan
Documents as a result of any sale, assignment, transfer or negotiation of, or
granting of participations in, all or any part of its Loans, its Commitment or
its Note, except that a Lender shall be relieved of its obligations to the
extent of any such sale, assignment, transfer, or negotiation of all or any part
of its Loans, its Commitment or its Note pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in
this Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
11.8. Counterparts.
Each Loan Document (other than the Notes) may be executed by one
or more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. A telecopied counterpart of any Loan Document or to any document
evidencing, and of any an amendment, modification, consent or waiver to or of
any Loan Document shall be deemed to be an originally executed counterpart. A
set of the copies of the Loan Documents signed by all the parties thereto shall
be deposited with each of the Borrower and the Agent. Any party to a Loan
Document may rely upon the signatures of any other party thereto which are
transmitted by telecopier or other electronic means to the same extent as if
originally signed.
11.9. Adjustments; Set-off.
(a) If any Lender (a "Benefited Lender") shall at any time
receive any payment of all or any part of its Loans, or interest thereon, or
receive any collateral in
-75-
77
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 9.1 (i) or (j), or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender in respect of such other Lender's Loans, or
interest thereon, such Benefited Lender shall purchase for cash from each of the
other Lenders such portion of each such other Lender's Loans, and shall provide
each of such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefited Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders, provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans may exercise all rights
of payment (including, without limitation, rights of set-off, to the extent not
prohibited by law) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the acceleration
of the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default, under
Section 9.1(a) or (b), each Lender shall have the right, without prior notice to
the Borrower, any such notice being expressly waived by the Borrower to the
extent not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of the Borrower to such Lender, any
amount owing from such Lender to the Borrower, at, or at any time after, the
happening of any of the above-mentioned events. To the extent not prohibited by
applicable law, the aforesaid right of set-off may be exercised by such Lender
against the Borrower or against any trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of the Borrower, or against anyone else claiming
through or against the Borrower or such trustee in bankruptcy, custodian, debtor
in possession, assignee for the benefit of creditors, receivers, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Borrower and the Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
11.10. Lenders' Representations.
Each Lender represents to the Agent that, in acquiring its Note,
it is acquiring the same for its own account for the purpose of investment and
not with a view
-76-
78
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.
11.11. Indemnity.
The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and their respective affiliates, directors, officers, employees,
affiliates, agents, controlling persons and attorneys (each an "Indemnified
Person") from and against any loss, cost, liability, damage or expense
(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
2.16, or in violation of any federal securities or tax laws or of any other
statute, regulation or other law of any jurisdiction applicable thereto, whether
such Indemnified Person is a party thereto. The indemnity set forth herein shall
be in addition to any other obligations, liabilities or other indemnifications
of the Borrower to each Indemnified Person under the Loan Documents or at common
law or otherwise, and shall survive any termination of the Loan Documents, the
expiration of the Commitments and the payment of all indebtedness of the
Borrower under the Loan Documents, provided that the Borrower shall have no
obligation under this Section to an Indemnified Person with respect to any of
the foregoing to the extent found in a final judgment of a court having
jurisdiction to have resulted primarily out of the gross negligence or wilful
misconduct of such Indemnified Person or arising solely from claims between one
such Indemnified Person and another such Indemnified Person.
11.12. 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.
-77-
79
11.13. Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.14. 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.
11.15. Integration.
All exhibits to a Loan Document shall be deemed to be a part
thereof. The Loan Documents embody the entire agreement and understanding among
the Borrower, the Agent and the Lenders with respect to the subject matter
thereof and supersede all prior agreements and understandings among the
Borrower, the Agent and the Lenders with respect to the subject matter thereof.
11.16. Consent to Jurisdiction.
The Borrower hereby irrevocably submits to the jurisdiction of
any New York State or Federal court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents. The
Borrower hereby irrevocably waives, to the fullest extent permitted or not
prohibited by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. The Borrower hereby agrees that
a final judgment in any such suit, action or proceeding brought in such a court,
after all appropriate appeals, shall be conclusive and binding upon it.
11.17. Service of Process.
The Borrower hereby agrees that process may be served against it
in any suit, action or proceeding referred to in Section 11.16 by sending the
same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower. The Borrower hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
-78-
80
11.18. No Limitation on Service or Suit.
Nothing in the Loan Documents or any modification, waiver,
consent or amendment thereto shall affect the right of the Agent or any Lender
to serve process in any manner permitted by law or limit the right of the Agent
or any Lender to bring proceedings against the Borrower in the courts of any
jurisdiction or jurisdictions in which the Borrower may be served.
11.19. WAIVER OF TRIAL BY JURY.
THE AGENT, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY
CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE AGENT, OR THE LENDERS, OR
COUNSEL TO THE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE BORROWER
ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.20. 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, the Lender whose
obligations under the Notes have been fully paid shall promptly return to the
Borrower its Note or other evidence that such Lender has received full payment
of such obligations.
11.21. Limited Recourse Obligations
This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed and
delivered on behalf of the Borrower by the trustees or officers thereof in their
representative capacity
-79-
81
under the Declaration of Trust, and not individually, and bind only the trust
estate of the Borrower, and no trustee, officer, employee, agent or shareholder
of the Borrower shall be bound or held to any personal liability or
responsibility in connection with the agreements, obligations and undertakings
of the Borrower hereunder, and any person or entity dealing with the Borrower in
connection therewith shall look only to the trust estate for the payment of any
claim or for the performance of any agreement, obligation or undertaking
thereunder. The Agent and each Lender hereby acknowledge and agree that each
agreement and other document executed by the Borrower in accordance with or in
respect of this transaction shall be deemed and treated to include in all
respects and for all purposes the foregoing exculpatory provision.
-80-
82
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
-------------------------------------
Dean Bernstein
Vice President
THE BANK OF NEW YORK,
as Agent and a Lender
By: /s/ Andrea H. Stuart
-------------------------------------
Andrea H. Stuart
Vice President
FLEET NATIONAL BANK
as a Lender
By: /s/ Thomas Hanold
-------------------------------------
Thomas Hanold
Vice President