1
EXHIBIT 10.30
FIRST AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 31, 1998
AMONG
EXCEL REALTY TRUST, INC.
AND
BANKBOSTON, N.A.
AND
THE OTHER BANKS WHICH ARE
A PARTY TO THIS AGREEMENT
AND
THE OTHER BANKS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
AND
BANKBOSTON, N.A.
AS AGENT
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TABLE OF CONTENTS
Section 1. DEFINITIONS AND RULES OF INTERPRETATION..........................................................................-1-
Section 1.1. Definitions...........................................................................................-1-
Section 1.2. Rules of Interpretation..............................................................................-15-
Section 2. THE REVOLVING CREDIT FACILITY...................................................................................-16-
Section 2.1. Commitment to Lend...................................................................................-16-
Section 2.2. Facility Fee.........................................................................................-16-
Section 2.3. Reduction and Termination of Commitment..............................................................-17-
Section 2.4. Notes................................................................................................-17-
Section 2.4A Swing Loan Commitments...............................................................................-18-
Section 2.5. Interest on Loans....................................................................................-20-
Section 2.6. Requests for Loans...................................................................................-20-
Section 2.7. Funds for Loans......................................................................................-21-
Section 3. REPAYMENT OF THE LOANS..........................................................................................-22-
Section 3.1. Stated Maturity......................................................................................-22-
Section 3.2. Mandatory Prepayments................................................................................-22-
Section 3.3. Optional Prepayments.................................................................................-22-
Section 3.4. Partial Prepayments..................................................................................-23-
Section 3.5. Effect of Prepayments................................................................................-23-
Section 3.6. Proceeds from Debt or Equity Offering................................................................-23-
Section 4. CERTAIN GENERAL PROVISIONS......................................................................................-23-
Section 4.1. Conversion Options...................................................................................-23-
Section 4.2. Closing Fee..........................................................................................-24-
Section 4.3. Agent's Fee..........................................................................................-24-
Section 4.4. Funds for Payments...................................................................................-24-
Section 4.5. Computations.........................................................................................-25-
Section 4.6. Inability to Determine LIBOR Rate....................................................................-25-
Section 4.7. Illegality...........................................................................................-26-
Section 4.8. Additional Interest..................................................................................-26-
Section 4.9. Additional Costs, Etc................................................................................-26-
Section 4.10. Capital Adequacy....................................................................................-27-
Section 4.11. Indemnity of Borrower...............................................................................-28-
Section 4.12. Interest on Overdue Amounts; Late Charge............................................................-28-
Section 4.13. Certificate..........................................................................................-28-
Section 4.14. Limitation on Interest..............................................................................-29-
Section 5. SECURITY........................................................................................................-29-
Section 6. REPRESENTATIONS AND WARRANTIES..................................................................................-29-
Section 6.1. Corporate Authority, Etc.............................................................................-29-
Section 6.2. Approvals............................................................................................-30-
Section 6.3. Title to Properties; Leases..........................................................................-30-
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Section 6.4. Financial Statements.................................................................................-31-
Section 6.5. No Material Changes..................................................................................-31-
Section 6.6. Franchises, Patents, Copyrights, Etc.................................................................-31-
Section 6.7. Litigation...........................................................................................-31-
Section 6.8. No Materially Adverse Contracts, Etc.................................................................-32-
Section 6.9. Compliance with Other Instruments, Laws, Etc.........................................................-32-
Section 6.10. Tax Status..........................................................................................-32-
Section 6.11. No Event of Default.................................................................................-32-
Section 6.12. Holding Company and Investment Company Acts.........................................................-32-
Section 6.13. Absence of U.C.C. Financing Statements, Etc.........................................................-33-
Section 6.14. Certain Transactions................................................................................-33-
Section 6.15. Employee Benefit Plans..............................................................................-33-
Section 6.16. Regulations U and X.................................................................................-33-
Section 6.17. Environmental Compliance............................................................................-34-
Section 6.18. Subsidiaries........................................................................................-35-
Section 6.19. Loan Documents and the Guarantors...................................................................-35-
Section 6.20. Property............................................................................................-36-
Section 6.21. Brokers.............................................................................................-36-
Section 6.22. Other Debt..........................................................................................-36-
Section 6.23. Solvency............................................................................................-36-
Section 6.24. The Partners and the Guarantors.....................................................................-37-
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER...........................................................................-37-
Section 7.1. Punctual Payment.....................................................................................-37-
Section 7.2. Maintenance of Office................................................................................-37-
Section 7.3. Records and Accounts.................................................................................-37-
Section 7.4. Financial Statements, Certificates and Information...................................................-37-
Section 7.5. Notices..............................................................................................-40-
Section 7.6. Existence; Maintenance of Properties.................................................................-41-
Section 7.7. Insurance............................................................................................-42-
Section 7.8. Taxes................................................................................................-42-
Section 7.9. Inspection of Properties and Books...................................................................-42-
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits..............................................-42-
Section 7.11. Use of Proceeds.....................................................................................-43-
Section 7.12. Further Assurances..................................................................................-43-
Section 7.13. Management; Business Operations.....................................................................-43-
Section 7.14. Unencumbered Operating Properties...................................................................-43-
Section 7.15. Limiting Agreements.................................................................................-44-
Section 7.16. Distributions of Income to the Borrower.............................................................-44-
Section 7.17. More Restrictive Agreements.........................................................................-45-
Section 7.18. Additional Guarantors...............................................................................-45-
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER......................................................................-46-
Section 8.1. Restrictions on Indebtedness.........................................................................-46-
Section 8.2. Restrictions on Liens, Etc...........................................................................-47-
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Section 8.3. Restrictions on Investments..........................................................................-48-
Section 8.4. Merger, Consolidation................................................................................-50-
Section 8.5. Sale and Leaseback...................................................................................-50-
Section 8.6. Compliance with Environmental Laws...................................................................-50-
Section 8.7. Distributions........................................................................................-51-
Section 8.8. Asset Sales..........................................................................................-52-
Section 8.9. Development Activity.................................................................................-52-
Section 8.10. Sources of Capital..................................................................................-53-
Section 8.11. Restriction on Prepayment of Indebtedness...........................................................-53-
Section 8.12. Interest in Guarantors.............................................................................-53-
Section 9. FINANCIAL COVENANTS OF THE BORROWER.............................................................................-53-
Section 9.1. Borrowing Base Covenant of the Borrower..............................................................-53-
Section 9.2. Liabilities to Assets Ratio..........................................................................-53-
Section 9.3. Interest Coverage....................................................................................-53-
Section 9.4. Fixed Charge Coverage................................................................................-54-
Section 9.5. Shareholders' Equity.................................................................................-54-
Section 9.6. Real Estate Assets...................................................................................-54-
Section 10. CLOSING CONDITIONS.............................................................................................-54-
Section 10.1. Loan Documents......................................................................................-54-
Section 10.2. Certified Copies of Organizational Documents........................................................-54-
Section 10.3. Bylaws; Resolutions.................................................................................-55-
Section 10.4. Incumbency Certificate; Authorized Signers..........................................................-55-
Section 10.5. Opinion of Counsel..................................................................................-55-
Section 10.6. Payment of Fees.....................................................................................-55-
Section 10.7. Performance; No Default.............................................................................-55-
Section 10.8. Representations and Warranties......................................................................-55-
Section 10.9. Proceedings and Documents...........................................................................-55-
Section 10.10. Compliance Certificate.............................................................................-56-
Section 10.11. Other..............................................................................................-56-
Section 11. CONDITIONS TO ALL BORROWINGS....................................................................................-56-
Section 11.1. Prior Conditions Satisfied..........................................................................-56-
Section 11.2. Representations True; No Default....................................................................-56-
Section 11.3. No Legal Impediment.................................................................................-56-
Section 11.4. Governmental Regulation.............................................................................-56-
Section 11.5. Proceedings and Documents...........................................................................-56-
Section 11.6. Borrowing Documents.................................................................................-57-
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC. ...............................................................-57-
Section 12.1. Events of Default and Acceleration..................................................................-57-
Section 12.2. Termination of Commitments..........................................................................-60-
Section 12.3. Remedies............................................................................................-60-
Section 12.4. Distribution of Proceeds............................................................................-61-
Section 13. SETOFF.........................................................................................................-61-
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Section 14. THE AGENT.......................................................................................................-62-
Section 14.1. Authorization.......................................................................................-62-
Section 14.2. Employees and Agents................................................................................-62-
Section 14.3. No Liability........................................................................................-62-
Section 14.4. No Representations..................................................................................-63-
Section 14.5. Payments............................................................................................-63-
Section 14.6. Holders of Notes....................................................................................-64-
Section 14.7. Indemnity...........................................................................................-64-
Section 14.8. Agent as Bank.......................................................................................-64-
Section 14.9. Resignation.........................................................................................-64-
Section 14.10. Duties in the Case of Enforcement..................................................................-65-
Section 15. EXPENSES.......................................................................................................-65-
Section 16. INDEMNIFICATION................................................................................................-66-
Section 17. SURVIVAL OF COVENANTS, ETC.....................................................................................-67-
Section 18. ASSIGNMENT AND PARTICIPATION...................................................................................-67-
Section 18.1. Conditions to Assignment by Banks...................................................................-67-
Section 18.2. Register............................................................................................-68-
Section 18.3. New Notes...........................................................................................-68-
Section 18.4. Participations......................................................................................-68-
Section 18.5. Pledge by Bank......................................................................................-69-
Section 18.6. No Assignment by Borrower...........................................................................-69-
Section 18.7. Disclosure..........................................................................................-69-
Section 19. NOTICES........................................................................................................-69-
Section 20. RELATIONSHIP...................................................................................................-70-
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.............................................................-70-
Section 22. HEADINGS.......................................................................................................-70-
Section 23. COUNTERPARTS...................................................................................................-71-
Section 24. ENTIRE AGREEMENT, ETC..........................................................................................-71-
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.................................................................-71-
Section 26. DEALINGS WITH THE BORROWER.....................................................................................-71-
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.............................................................................-72-
Section 28. SEVERABILITY...................................................................................................-72-
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Section 29. TIME OF THE ESSENCE............................................................................................-73-
Section 30. NO UNWRITTEN AGREEMENTS........................................................................................-73-
LIST OF EXHIBITS:
EXHIBIT A - Form of Revolving Credit Note
EXHIBIT B - Form of Swing Loan Note
EXHIBIT C - Form of Request for Loan
EXHIBIT D - Form of Compliance Certificate
LIST OF SCHEDULES:
SCHEDULE 1 - Banks and Commitments
SCHEDULE 1.1 - Initial Unencumbered Operating Properties
SCHEDULE 2 - Example of Calculation of Debt Service Coverage Amount
SCHEDULE 6.17 - Environmental Matters
SCHEDULE 6.18 - Subsidiaries of the Borrower and the Guarantors
SCHEDULE 8.1(h) - Existing Indebtedness
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FIRST AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of
the 31st day of March, 1998 by and among EXCEL REALTY TRUST, INC. (the
"Borrower"), a Maryland corporation having its principal place of business at
16955 Via Del Campo, Suite 110, San Diego, California 92127, BANKBOSTON, N.A., a
national bank organized under the laws of the United States of America
("BankBoston"), WELLS FARGO BANK, N.A. ("Wells Fargo"), DRESDNER BANK AG NEW
YORK AND GRAND CAYMAN BRANCHES ("Dresdner"), U. S. BANK NATIONAL ASSOCIATION,
formerly known as and doing business as First Bank National Association ("U.S.
Bank"), THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), KEYBANK NATIONAL
ASSOCIATION ("KeyBank") and PNC BANK, NATIONAL ASSOCIATION ("PNC") and the other
lending institutions which may become parties hereto pursuant to Section 18
(collectively, BankBoston (except when acting as the Agent), Wells Fargo,
Dresdner, U.S. Bank, First Chicago, KeyBank, PNC, and each other lending
institution which may become a party hereto shall be referred to as the "Banks,"
and individually as a "Bank"), and BANKBOSTON, N.A., as Agent for the Banks (the
"Agent").
RECITALS.
WHEREAS, Borrower, Agent and BankBoston entered into that certain
Revolving Credit Agreement dated as of June 12, 1997 (the "Original Credit
Agreement"); and
WHEREAS, Borrower has requested that Agent and the Banks increase the
"Total Commitment", as defined under the Original Credit Agreement, from
$150,000,000.00 to $250,000,000.00; and
WHEREAS, as a condition to such modification, Agent and the Banks have
required that Borrower amend and restate the Original Credit Agreement in its
entirety;
NOW, THEREFORE, in consideration of the recitals herein and the mutual
covenants contained herein, the parties hereto hereby covenant and agree as
follows:
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1. Definitions. The following terms shall have the meanings
set forth in this Section l or elsewhere in the provisions of this Agreement
referred to below:
Additional Guarantor. See Section 7.18.
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Affiliates. An Affiliate, as applied to any Person, shall mean any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means (a) the
possession, directly or indirectly, of the power to vote ten percent (10%) or
more of the stock, shares, voting trust certificates, beneficial interest,
partnership interests, member interests or other interests having voting power
for the election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise, or (b) the ownership
of (i) a general partnership interest, (ii) a managing member's interest in a
limited liability company or (iii) a limited partnership interest or preferred
stock (or other ownership interest) representing ten percent (10%) or more of
the outstanding limited partnership interests, preferred stock or other
ownership interests of such Person.
Agent. BankBoston, N.A. acting as agent for the Banks, its successors
and assigns.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time by notice to the Borrower and the Banks.
Agent's Special Counsel. Long Aldridge & Norman LLP or such other
counsel as may be approved by the Agent.
Agreement. This Revolving Credit Agreement, including the Schedules and
Exhibits hereto.
Agreement Regarding Fees. The Agreement Regarding Fees dated of even
date herewith between the Borrower and BKB.
Applicable Margin. On any date that the Implied Rating issued from time
to time by either of the Rating Agencies for the Borrower is an Investment Grade
Rating, the applicable margin set forth below based on the higher of the Implied
Ratings issued by either of the Rating Agencies and the type of the Loan:
Rating Base Rate Loans LIBOR Rate Loans
------ --------------- ----------------
A-/A3 or better 0% 0.95%
BBB+/Baa1 0% 1.00%
BBB/Baa2 0% 1.10%
BBB-/Baa3 0.25% 1.20%
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provided, however, that on any date the higher of the Implied Ratings for the
Borrower is not an Investment Grade Rating, or the Borrower has not obtained a
rating from either of the Rating Agencies, the Applicable Margin for Base Rate
Loans shall be 0.25% and the Applicable Margin for LIBOR Rate Loans shall be
1.35%. In the event of any change in an Implied Rating of the Borrower by the
Rating Agencies, or if the Borrower's Implied Rating shall cease at any time to
be an Investment Grade Rating by the Rating Agencies (but subject to the
provisions within the definition of the term "Investment Grade Rating"), such
change shall effect a change in the Applicable Margin on the first Business Day
after the Rating Notice Date. It is the intention of the parties that if the
Borrower shall only obtain an Investment Grade Rating from one of the Rating
Agencies without seeking an Investment Grade Rating from the other of the Rating
Agencies, the Borrower shall be entitled to the benefit of the rate reductions
described above; provided that if the Borrower shall have obtained an Investment
Grade Rating from both of the Rating Agencies, the higher of the two ratings (or
the loss of the Investment Grade Rating from the Rating Agencies thereafter),
shall control.
Asset Value. The Asset Value of the Unencumbered Operating Properties
shall be an amount equal to (a) the sum of (i) the aggregate Operating Cash Flow
from the Unencumbered Operating Properties for the preceding four (4) fiscal
quarters minus (ii) the aggregate Capital Improvement Reserve for the
Unencumbered Operating Properties, divided by (b) 0.10, except that the value of
certain of the initial Unencumbered Operating Properties shall be as set forth
on Schedule 1.1 hereto. In the event that the Borrower or a Guarantor shall not
have owned an Unencumbered Operating Property for the previous four fiscal
quarters, then for the purposes of performing such calculation, the Operating
Cash Flow with respect to such property shall be annualized in such manner as
the Agent shall reasonably determine.
Balance Sheet Date. December 31, 1997.
Banks. BKB, the other lending institutions party to this Agreement, and
any other Person who becomes an assignee of any rights of a Bank pursuant to
Section 18 (but not including any Participant, as defined in Section 18).
Base Rate. The higher of (a) annual rate of interest announced from time
to time by Agent at Agent's Head Office as its "base rate", and (b) one half of
one percent (0.5%) above the Federal Funds Effective Rate (rounded upwards, if
necessary, to the next one-eighth of one percent). Any change in the rate of
interest payable hereunder resulting from a change in the Base Rate shall become
effective as of the opening of business on the day on which such change in the
Base Rate becomes effective.
Base Rate Loans. Those Loans bearing interest calculated by reference to
the Base Rate.
BKB. BankBoston, N.A.
Borrower. As defined in the preamble hereto.
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Borrowing Base. The Borrowing Base shall be the amount which is the
lesser of (a) the maximum amount which, when added to the total outstanding
balance of all unsecured Indebtedness of the Borrower and its Subsidiaries
(including the Loans), would not cause the Asset Value of the Unencumbered
Operating Properties to be less than one hundred fifty percent (150%) of the
total outstanding balance of all unsecured Indebtedness of the Borrower and its
Subsidiaries (including the Loans) and (b) the maximum amount which, when added
to the total outstanding balance of all unsecured Indebtedness of the Borrower
and its Subsidiaries (including the Loans), would not exceed the Debt Service
Coverage Amount for the Unencumbered Operating Properties.
Business Day. Any day on which banking institutions located in the same
city and State as Agent's Head Office are located and are open for the
transaction of banking business and, in the case of LIBOR Rate Loans, which also
is a LIBOR Business Day.
Capital Improvement Reserve. With respect to an Unencumbered Operating
Property or any other improved Real Estate, a reserve in the amount of ten cents
($0.10) per annum multiplied by the average Net Rentable Area contained therein.
Capitalized Lease. A lease under which a Person is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with generally accepted accounting principles.
CERCLA. See Section 6.17(a).
Closing Date. The first date on which all of the conditions set forth in
Section 10 and Section 11 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Bank, the amount set forth on Schedule
1 hereto as the amount of such Bank's Commitment to make or maintain Loans
(other than Swing Loans) to the Borrower, as the same may be changed from time
to time in accordance with the terms of this Agreement.
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
Compliance Certificate. See Section 7.4(c).
Consolidated or combined. With reference to any term defined herein,
that term as applied to the accounts of a Person and its Subsidiaries,
consolidated or combined in accordance with generally accepted accounting
principles.
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Consolidated Operating Cash Flow. With respect to any period of a
Person, an amount equal to the Operating Cash Flow of such Person and its
Subsidiaries for such period consolidated in accordance with generally accepted
accounting principles.
Consolidated Total Assets. All assets of a Person and its Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that all real estate assets shall be valued as
hereinafter provided. The assets of a Person and its Subsidiaries on the
consolidated financial statements of such Person and its Subsidiaries shall be
adjusted to reflect such Person's allocable share of such asset, for the
relevant period or as of the date of determination, taking into account (a) the
relative proportion of each such item derived from assets directly owned by such
Person and from assets owned by its Subsidiaries, and (b) such Person's
respective ownership interest in its Subsidiaries. The value of all real estate
assets shall be an amount equal to (i) the sum of (A) the aggregate Operating
Cash Flow from such Real Estate for the preceding four (4) fiscal quarters minus
(B) the aggregate Capital Improvement Reserve for all of the Real Estate of such
Person and its Subsidiaries, divided by (ii) 0.10.
Consolidated Total Liabilities. All liabilities of a Person and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of such Person and its
Subsidiaries, whether or not so classified.
Construction Loan Guaranties. The maximum principal amount of the
Indebtedness of any Person for which the Borrower or any Subsidiary of Borrower
has guaranteed or otherwise become contingently liable if any material portion
of the proceeds of such Indebtedness is to be used to finance costs of
construction, acquisition of land for development or other development costs.
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 4.1.
Debt Offering. The issuance and sale by the Borrower or any Guarantor of
any debt securities of the Borrower or such Guarantor.
Debt Service. For any period, the sum of all interest (including
capitalized interest) and mandatory or scheduled principal payments due and
payable during such period excluding any balloon payments due upon maturity of
any indebtedness.
Debt Service Coverage Amount. At any time determined by Agent, an amount
equal to the maximum principal loan amount which, when bearing interest at a
rate per annum equal to the then-current annual yield on ten (10) year
obligations issued by the United States Treasury most recently prior to the date
of determination plus two and one-quarter percent (2.25%) and payable based on a
twenty-five year mortgage style amortization schedule (expressed as a
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mortgage constant percentage), could be paid by the monthly principal and
interest payment amount resulting from dividing (x) the quotient obtained by
dividing an amount equal to (i) the sum of the aggregate Operating Cash Flow
from the Unencumbered Operating Properties for the preceding four fiscal
quarters, minus the Capital Improvement Reserve for the Unencumbered Operating
Properties, by (ii) 1.50, by (y) 12. An example of the calculation of the Debt
Service Coverage Amount is set forth in Schedule 2 attached hereto. In the event
that the Borrower or a Guarantor shall have owned a property within the
Unencumbered Operating Properties for less than four consecutive fiscal
quarters, then for the purposes of performing such calculation, the Operating
Cash Flow with respect to such property shall be annualized in such manner as
the Agent shall reasonably determine.
Default. See Section 12.1.
Distribution. With respect to any Person, the declaration or payment of
any cash, cash flow, dividend or distribution on or in respect of any shares of
any class of stock or other beneficial interest of a Person, other than
dividends or distributions payable solely in equity securities of such Person;
the purchase, redemption, exchange or other retirement of any shares of any
class of stock or other beneficial interest of a Person, directly or indirectly
through a Subsidiary of such Person or otherwise; the return of capital by a
Person to its shareholders or partners as such; or any other distribution on or
in respect of any shares of any class of stock or other beneficial interest of a
Person.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which any Loan which is made prior to the Maturity Date is converted
or combined in accordance with Section 4.1.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 6.17(a).
Equity Offering. The issuance and sale by the Borrower or any Guarantor
of any equity securities of the Borrower or such Guarantor.
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time and any rules and regulations promulgated
pursuant thereto.
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ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. Relative to any Interest Period for LIBOR
Rate Loans made by any Bank, the reserve percentage (expressed as a decimal)
equal to the actual aggregate reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account any
transactional adjustments or other scheduled changes in reserve requirements)
announced within Agent as the reserve percentage applicable to Agent as
specified under regulations issued from time to time by the Federal Reserve
Board. The Eurocurrency Reserve Rate shall be based on Regulation D of the
Federal Reserve Board or other regulations from time to time in effect
concerning reserves for "Eurocurrency Liabilities" from related institutions as
though Agent were in a net borrowing position. The Eurocurrency Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
the Eurocurrency Reserve Rate.
Event of Default. See Section 12.1.
Federal Funds Effective Rate. For any day, the rate per annum 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, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent.
Foreign Properties. Real Estate which is not located within the
contiguous 48 states of the continental United States.
Funds from Operations. With respect to any Person for any fiscal period,
the Net Income (or Deficit) of such Person computed in accordance with generally
accepted accounting principles, excluding financing costs and gains (or losses)
from debt restructuring and sales of property, plus depreciation and
amortization and other non-cash items.
Generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Person
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted
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accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantors. Collectively, each of the entities listed on Schedule 3
hereto and each Additional Guarantor.
Guaranty. Collectively, the Unconditional Guaranty of Payment and
Performance dated of even date herewith made by the Guarantors in favor of Agent
and the Banks, and each Unconditional Guaranty of Payment and Performance made
by each Additional Guarantor in favor of Agent and the Banks, as the same may be
modified or amended, such Guaranty to be in form and substance satisfactory to
the Agent.
Hazardous Substances. See Section 6.17(b).
Implied Rating. With respect to a Person, the most recent rating issued
from time to time by either of the Rating Agencies as is applicable to such
Person's senior unsecured long-term debt, or if no such senior unsecured
long-term debt is outstanding, then the most recent rating issued from time to
time by either of the Rating Agencies as would hypothetically be applicable to
such Person's senior unsecured long-term debt (i.e., an implied rating).
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, including in any event and whether or not so
classified: (a) all debt and similar monetary obligations, whether direct or
indirect (including, without limitation, any obligations evidenced by bonds,
debentures, notes or similar debt instruments and all subordinated debt); (b)
all liabilities secured by any mortgage, pledge, security interest, lien, charge
or other encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; (c) all
guarantees, endorsements and other contingent obligations whether direct or
indirect in respect of indebtedness of others (including Construction Loan
Guaranties), including any unconditional obligation to supply funds to or in any
manner to invest directly or indirectly in a Person other than in the ordinary
course of business, to purchase indebtedness, or to assure the owner of
indebtedness against loss through an agreement to purchase goods, supplies or
services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner, through indemnity or otherwise, and the
obligation to reimburse the issuer in respect of any letter of credit; (d) any
obligation as a lessee or obligor under a Capitalized Lease; (e) all obligations
with respect to letters of credit or similar instruments issued by a Person; and
(f) all indebtedness, obligations or other liabilities (other than interest
expense liability) under or with respect to (i)
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interest rate swap, collar, cap or similar agreements providing interest rate
protection and (ii) foreign currency exchange agreements. Notwithstanding the
foregoing, in the event that a Person has incurred Indebtedness with respect to
which another Person included within the consolidated financial statements of
the first Person is also liable (by reason of a guaranty or otherwise), such
Indebtedness shall only be counted once for the purposes of such consolidated
financial statements.
Interest Payment Date. As to each Loan, the first day of each calendar
month during the term of such Loan, and in addition with respect to each LIBOR
Rate Loan, the last day of the Interest Period relating thereto.
Interest Period. With respect to each LIBOR Rate Loan (a) initially, the
period commencing on the Drawdown Date of such Loan and ending one, two, three
or six months thereafter, and (b) thereafter, each period commencing on the day
following the last day of the next preceding Interest Period applicable to such
Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, that
Interest Period shall end and the next Interest Period shall commence on
the next preceding or succeeding LIBOR Business Day as determined
conclusively by the Reference Bank in accordance with the then current
bank practice in the applicable LIBOR interbank market;
(ii) if the Borrower shall fail to give notice as provided in
Section 4.1, the Borrower shall be deemed to have requested a conversion
of the affected LIBOR Rate Loan to a Base Rate Loan on the last day of
the then current Interest Period with respect thereto; and
(iii) no Interest Period relating to any LIBOR Rate Loan shall
extend beyond the Maturity Date.
Investment Grade Rating. With respect to any Person, an Implied Rating
equal to or more favorable than BBB- with respect to a rating issued by Standard
& Poors, a Division of The McGraw-Hill Companies, or Baa3 with respect to a
rating issued by Moody's Investors Service, Inc. If, at any time after a Person
obtains an Investment Grade Rating, (a) no Implied Rating for such Person's
senior unsecured long-term debt shall have been issued or confirmed in writing
by either of the Rating Agencies within the previous 365 days, or (b) the rating
system of either of the Rating Agencies (as opposed to the rating of a Person)
shall change, or (c) either of the Rating Agencies shall no longer perform the
functions of a securities rating agency, then the Borrower and the Agent shall
promptly negotiate in good faith to amend the reference to the specific ratings
in this definition for the determination of the Investment Grade Rating, and
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pending such amendment, the applicable rating in effect as of the date the event
described in this paragraph occurred shall continue to apply.
Investments. With respect to any Person, all shares of capital stock,
evidences of Indebtedness and other securities issued by any other Person, all
loans, advances, or extensions of credit to, or contributions to the capital of,
any other Person and all purchases of the securities or business or integral
part of the business of any other Person, all interests in real property, and
all other investments; provided, however, that the term "Investment" shall not
include (i) equipment, inventory and other tangible personal property acquired
in the ordinary course of business, or (ii) current trade and customer accounts
receivable for services rendered in the ordinary course of business and payable
in accordance with customary trade terms. In determining the aggregate amount of
Investments outstanding at any particular time: (a) there shall be included as
an Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (b) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (c) there shall not be deducted or increased in
respect of any Investment any amounts received as earnings on such Investment,
whether as dividends, interest or otherwise, except that accrued interest
included as provided in the foregoing clause (a) may be deducted when paid; and
(d) there shall not be deducted from the aggregate amount of Investments any
decrease in the value thereof.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in the London
interbank market.
LIBOR Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan,
the rate per annum equal to the quotient (rounded upwards to the nearest 1/16 of
one percent) of (a) the rate per annum as determined by the Reference Bank's
LIBOR Lending Office to be the rate at which Dollar deposits in immediately
available funds are offered to Reference Bank by leading banks in the Eurodollar
interbank market (based on Telerate quotes, page 3750, or such other page as
containing the same information as presently on page 3750, or if such
information is not available, in such other manner as Reference Bank shall
determine) two (2) LIBOR Business Days prior to the beginning of such Interest
Period for delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of the LIBOR
Rate Loan to which such Interest Period applies, divided by (b) a number equal
to 1.00 minus the Eurocurrency Reserve Rate.
LIBOR Rate Loans. Loans bearing interest calculated by reference to a
LIBOR Rate.
Liens. See Section 8.2.
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Loan Documents. This Agreement, the Notes, the Guaranty and all other
documents, instruments or agreements now or hereafter executed or delivered by
or on behalf of the Borrower or the Guarantor in connection with the Loans.
Loan Request. See Section 2.6.
Loans. The aggregate Loans (including Swing Loans) to be made by the
Banks hereunder.
Majority Banks. As of any date, the Bank or Banks whose aggregate
Commitment Percentage is equal to or greater than the required percentage, as
determined by the Banks, required to approve such matter, as disclosed by the
Agent to the Borrower from time to time.
Maturity Date. December 31, 1999 or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
Net Income (or Loss). With respect to any Person (or any asset of any
Person) for any fiscal period, the net income (or loss) of such Person (or
attributable to such asset), after deduction of all expenses, taxes and other
proper charges, determined in accordance with generally accepted accounting
principles.
Net Rentable Area. With respect to any Real Estate, the floor area of
any buildings, structures or improvements available for leasing to tenants
determined in accordance with the Rent Roll for such Real Estate, the manner of
such determination to be consistent for all Real Estate unless otherwise
approved by the Agent.
Notes. Collectively the Revolving Credit Notes and the Swing Loan Note.
Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Agent, individually or collectively, under
this Agreement or any of the other Loan Documents or in respect of any of the
Loans or the Notes, or other instruments at any time evidencing any of the
foregoing, whether existing on the date of this Agreement or arising or incurred
hereafter, direct or indirect, joint or several, absolute or contingent, matured
or unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise.
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Operating Cash Flow. With respect to any Person (or any asset of any
Person) for any period, an amount equal to the sum of (a) the Net Income of such
Person (or attributable to such asset) for such period plus (b) depreciation and
amortization, interest expense, and any extraordinary or non-recurring losses
deducted in calculating such Net Income plus (c) any write down of the value of
an asset minus (d) any extraordinary or nonrecurring gains included in
calculating such Net Income plus (e) losses on sales of real property of such
Person deducted in calculating such Net Income minus (f) gains on sales of real
property of such Person included in calculating such Net Income, all as
determined in accordance with generally accepted accounting principles.
Opportunity Properties. An Opportunity Property shall mean a parcel of
Real Estate owned by the Borrower, a Guarantor or any of their respective
Subsidiaries, or in which such Person owns an interest, which at the time such
interest is acquired (a) is used for purposes other than Retail Uses, or (b)
which has an occupancy rate of less than fifty percent (50%) based on tenants in
possession and paying rent and which have not been in default for more than
thirty (30) days, or (c) which is deemed by the Agent in its reasonable judgment
to have been acquired by such Person as an opportunity to refurbish, renovate or
lease a property which is not of institutional quality in order to obtain an
above-normal return on its investment.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, trust, limited
liability company, unincorporated association, business, or other legal entity,
and any government or any governmental agency or political subdivision thereof.
Preferred Distributions. For any period, the amount of any and all
Distributions due and payable to the holders of any form of preferred stock
(whether perpetual, convertible or otherwise) or other ownership or beneficial
interest in the Borrower, a Guarantor or any of their respective Subsidiaries
that entitles the holders thereof to preferential payment or distribution
priority with respect to dividends, assets or other payments over the holders of
any other stock or other ownership or beneficial interest in such Person.
Prospectus. The 10K of the Borrower dated December 31, 1996 and filed
with the SEC.
Rating Agencies. Standard & Poor's, a Division of The McGraw-Hill
Companies, and Moody's Investors Service, Inc.
Rating Notice. See Section 7.4(g).
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Rating Notice Date. The earlier of (a) the date a Rating Notice is
received by the Agent, or (b) the date the Agent, having received actual notice
of a change by one of the Rating Agencies of its Implied Rating, sends notice to
the Borrower of such change, provided that nothing contained herein shall imply
any obligation of the Agent to monitor such rating changes.
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower, a Guarantor or any of their respective Subsidiaries.
Record. The grid attached to any Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Reference Bank. The Agent.
Register. See Section 18.2.
REIT Status. The status of the Borrower as a real estate investment
trust as defined in Section 856(a) of the Code.
Release. See Section 6.17(c)(iii).
Rent Roll. A report prepared by the Borrower showing for any Real
Estate, its location, Net Rentable area, occupancy status, rent and other
information in substantially the form presented to the Banks prior to the date
hereof or in such other form as may have been approved by the Agent, such
approval not to be unreasonably withheld.
Retail Uses. Stores engaged in the sale of products directly to
consumers and shopping centers occupied primarily by such stores but which may
also include Service Retail Uses, movie cinemas, banks and office uses of the
type commonly located in shopping centers.
Revolving Credit Notes. See Section 2.4.
SEC. The federal Securities and Exchange Commission.
Service Retail Uses. Restaurants, health clubs, child care facilities,
automotive repair facilities, and other similar types of uses which Agent may
agree to designate as Service Retail Uses.
Shareholders' Equity. At any date, an amount equal to Consolidated Total
Assets of the Borrower minus Consolidated Total Liabilities of the Borrower.
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Short-term Investments. Investments described in subsections (a) through
(g), inclusive, of Section 8.3. For all purposes of this Agreement and the other
Loan Documents, the value of Eligible Short-term Investments at any time shall
be the current market value thereof determined in a manner reasonably
satisfactory to the Agent.
State. A state of the United States of America.
Swing Loan. See Section 2.4A.
Swing Loan Bank. BKB, in its capacity as Swing Loan Bank.
Swing Loan Commitment. The sum of $10,000,000.00, as the same may be
changed from time to time in accordance with the terms of this Agreement.
Swing Loan Note. See Section 2.4A.
Subsidiary. Any corporation, association, partnership, trust, or other
business entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes or controlling interests) of the outstanding Voting Interests, and any
other entity the accounts of which are consolidated with the accounts of the
designated parent.
Test Period. See Section 9.3.
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time.
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate
Loan.
Under Development. Any Real Estate shall be considered under development
until such time as (a) a certificate of occupancy has been obtained, (b)
seventy-five percent (75%) of the net leasable area is leased and occupied, and
(iii) the gross revenue from the operation of such Real Estate shall have been
not less than the operating costs for three (3) consecutive months.
Unencumbered Operating Properties. Unencumbered Operating Properties
shall mean Real Estate which is owned one hundred percent (100%) in fee simple
by the Borrower (except as provided below) and which satisfies all of the
following conditions:
(a) each of the Unencumbered Operating Properties shall be free and
clear of all Liens other than the Liens permitted in Section 8.2(i), (iii) and
(v);
(b) to the best of the Borrower's knowledge and belief, none of the
Unencumbered Operating Properties shall have any material title, survey,
environmental or other defects that
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would give rise to a materially adverse effect as to the value, use of or
ability to sell or refinance such property;
(c) each of the Unencumbered Operating Properties shall consist
solely of Real Estate (i) which is located within the contiguous 48 states of
the continental United States, (ii) which is an income producing operating
property utilized principally for Retail Uses and which is not an Opportunity
Property, (iii) which contains improvements that are in operating condition and
available for occupancy, and (iv) with respect to which valid certificates of
occupancy or the equivalent for all buildings thereon have been issued and are
in full force and effect; and
(d) the Unencumbered Operating Properties shall in the aggregate
have a maximum single-tenant concentration of twenty percent (20%) measured as a
percentage of gross revenue (which revenue shall be determined based on the base
or minimum rental per square foot payable by each tenant with straight line
adjustments in rent in accordance with generally accepted accounting
principles), excluding all percentage rent, reimbursements or other pass-through
expenses).
Notwithstanding anything herein to the contrary, a Guarantor or Additional
Guarantor may own Unencumbered Operating Properties provided that the Asset
Value of the Unencumbered Operating Properties owned by the Borrower may not in
the aggregate be less than sixty percent (60%) of the total Asset Value of the
Unencumbered Operating Properties; provided, that each such property shall
otherwise satisfy the foregoing conditions applicable to Unencumbered Operating
Properties, each and every covenant contained in, and each and every warranty
and representation made in, this Agreement with respect to Real Estate, and as
and when the Borrower shall acquire any additional Real Estate which satisfies
the requirements in this Agreement for an Unencumbered Operating Property, the
Borrower shall promptly substitute such Real Estate for any Unencumbered
Operating Properties which are owned by any such Guarantor or Additional
Guarantor.
The initial Unencumbered Operating Properties are described on Schedule 1.1
hereto, and the initial Asset Value of certain of the initial Unencumbered
Operating Properties shall be as set forth on Schedule 1.1 hereto.
Voting Interests. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage,
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
Section 1.2. Rules of Interpretation.
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(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles applied on
a consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have the
meanings assigned to them therein.
(i) Reference to a particular "Section ", refers to that
section of this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
Section 2. THE REVOLVING CREDIT FACILITY
Section 2.1. Commitment to Lend. Subject to the terms and conditions set
forth in this Agreement, each of the Banks severally agrees to lend to the
Borrower, and the Borrower may borrow (and repay and reborrow) from time to time
between the Closing Date and the Maturity Date upon notice by the Borrower to
the Agent given in accordance with Section 2.6, such sums as are requested by
the Borrower for the purposes set forth in Section 7.11 up to the lesser of (a)
a maximum aggregate principal amount outstanding (after giving effect to all
amounts requested) at any one time equal to such Bank's Commitment and (b) such
Bank's Commitment Percentage of the Borrowing Base, provided, that, in all
events no Default or Event of Default shall have occurred and be continuing; and
provided, further, that the outstanding principal amount of the Loans
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(after giving effect to all amounts requested) shall not at any time exceed the
Total Commitment. The Loans (other than Swing Loans) shall be made pro rata in
accordance with each Bank's Commitment Percentage. Each request for a Loan
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in Section 10 and Section 11, in the case of the
initial Loan, and Section 11, in the case of all other Loans, have been
satisfied on the date of such request. No Bank shall have any obligation to make
Loans to the Borrower in the maximum aggregate principal amount outstanding of
more than the principal face amount of its Note.
Section 2.2. Facility Fee. The Borrower agrees to pay to the Agent for
the account of the Banks in accordance with their respective Commitment
Percentages a facility fee calculated at the rate per annum as set forth below
on the daily amount by which the Total Commitment exceeds the outstanding
principal amount of Loans during each calendar quarter or portion thereof
commencing on the date hereof and ending on the Maturity Date. The facility fee
shall be calculated for each day based on the ratio (expressed as a percentage)
of (a) the daily amount of the outstanding principal amount of the Loans during
such quarter to (b) the Total Commitment at the rate of 0.15%. The facility fee
shall be payable quarterly in arrears on the first day of each calendar quarter
for the immediately preceding calendar quarter or portion thereof, and on any
earlier date on which the Commitments shall be reduced or shall terminate as
provided in Section 2.3, with a final payment on the Maturity Date.
Section 2.3. Reduction and Termination of Commitment. The Borrower shall
have the right at any time and from time to time upon five Business Days' prior
written notice to the Agent to reduce by $10,000,000 or an integral multiple of
$1,000,000 in excess thereof (provided that in no event shall the Total
Commitment be reduced to an amount less than $100,000,000.00) or to terminate
entirely the unborrowed portion of the Commitments, whereupon the Commitments of
the Banks shall be reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or, as the case
may be, terminated, any such termination or reduction to be without penalty
(unless such termination or reduction requires repayment of a LIBOR Rate Loan);
provided, however, that no such termination or reduction shall be permitted if,
after giving effect thereto, the Outstanding Loans would exceed the Commitments
of the Banks as so terminated or reduced. In the event that as a result of the
reduction or termination of the Commitments, the Commitment of the Swing Loan
Bank shall be reduced to an amount less than the Swing Loan Commitment, the
Swing Loan Commitment shall automatically and without further action of the
parties be reduced to an equal amount. Promptly after receiving any notice of
the Borrower delivered pursuant to this Section 2.3, the Agent will notify the
Banks of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrower shall pay to the Agent for the respective accounts of
the Banks the full amount of any facility fee under Section 2.2 then accrued on
the amount of the reduction. No reduction or termination of the Commitment or
Swing Loan Commitment may be reinstated.
Section 2.4. Notes. The Loans (other than Swing Loans) shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of Exhibit A hereto (collectively, the "Revolving Credit Notes"), dated the date
of this Agreement and completed with appropriate
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insertions. One Revolving Credit Note shall be payable to the order of each Bank
in the principal face amount equal to such Bank's Commitment and shall be
payable as set forth below. The Borrower irrevocably authorizes each Bank to
make or cause to be made, at or about the time of the Drawdown Date of any Loan
(other than Swing Loans) or at the time of receipt of any payment of principal
thereof, an appropriate notation on such Bank's Record reflecting the making of
such Loan or (as the case may be) the receipt of such payment. The outstanding
amount of the Loans (other than Swing Loans) set forth on such Bank's Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in so recording, any such
amount on such Bank's Record shall not limit or otherwise affect the obligations
of the Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
Section 2.4A Swing Loan Commitments.
(a) Subject to the terms and conditions set forth in this
Agreement, and if necessary to meet the Borrower's funding deadlines, Swing Loan
Bank agrees to lend to the Borrower (the "Swing Loans"), and the Borrower may
borrow (and repay and reborrow) from time to time between the Closing Date and
the date which is seven (7) Business Days prior to the Maturity Date upon notice
by the Borrower to the Swing Loan Bank given in accordance with this Section
2.4A, such sums as are requested by the Borrower for the purposes set forth in
Section 7.11 in an aggregate principal amount at any one time outstanding not
exceeding the Swing Loan Commitment; provided that at no time shall the
aggregate principal balance of Swing Loans then outstanding, when added to the
Swing Loan Bank's Commitment Percentage of all other Outstanding Loans (after
giving effect to all amounts requested), exceed the lesser of (i) such Bank's
Commitment and (ii) such Bank's Commitment Percentage of the Borrowing Base,
provided, further, that in all events no Default or Event of Default shall have
occurred and be continuing; and provided, further, that the outstanding
principal amount of the Loans (after giving effect to all amounts requested)
shall not at any time exceed the Total Commitment. Swing Loans shall constitute
"Loans" for all purposes hereunder, but shall not be considered the utilization
of a Bank's Commitment. The funding of a Swing Loan hereunder shall constitute a
representation and warranty by the Borrower that all of the conditions set forth
in Section 10 and Section 11, in the case of the initial Swing Loan, and Section
11, in the case of all other Swing Loans, have been satisfied on the date of
such funding.
(b) The Swing Loans shall be evidenced by a separate
promissory note of the Borrower in substantially the form of Exhibit B hereto
(the "Swing Loan Note"), dated the date of this Agreement and completed with
appropriate insertions. The Swing Loan Note shall be payable to the order of the
Swing Loan Bank in the principal face amount equal to the Swing Loan Commitment
and shall be payable as set forth below. The Borrower irrevocably authorizes the
Swing Loan Bank to make or cause to be made, at or about the time of the
Drawdown Date of any Swing Loan or at the time of receipt of any payment of
principal thereof, an appropriate notation on the Swing Loan Bank's Record
reflecting the making of such Swing Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Swing Loans set forth
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on the Swing Loan Bank's Record shall be prima facia evidence of the principal
amount thereof owing and unpaid to the Swing Loan Bank, but the failure to
record, or any error in so recording, any such amount on the Swing Loan Bank's
Record shall not limit or otherwise affect the obligations of the Borrower
hereunder or under the Swing Loan Note to make payments of principal of or
interest on any Swing Loan Note when due.
(c) Each borrowing of Swing Loan shall be subject to the
limits for Base Rate Loans and LIBOR Rate Loans set forth in Section 2.6.
Borrower shall request a Swing Loan by delivering to the Swing Loan Bank a Loan
Request no later than 9:00 a.m. (Boston time) on the requested Drawdown Date
specifying the amount of the requested Swing Loan. The Loan Request shall also
contain the statements and certifications required by Section 2.6(i) and (ii).
Each such Loan Request shall be irrevocable and binding on the Borrower and
shall obligate the Borrower to accept such Swing Loan on the Drawdown Date.
Notwithstanding anything herein to the contrary, a Swing Loan shall either be a
Base Rate Loan or a LIBOR Rate Loan having an Interest Period of one month, and
in the event that the Borrower fails to specify whether it has selected a Base
Rate Loan or a LIBOR Rate Loan, the Borrower shall be deemed conclusively to
have selected a LIBOR Rate Loan with an Interest Period of one month.
Notwithstanding the foregoing, upon the date that the Banks shall be required to
fund the Loans pursuant to Section 2.4A(d) to refund such Swing Loan, the
interest rate shall be reset to a LIBOR Rate Loan with an Interest Period as
specified in the Loan Request given by the Borrower to the Agent in connection
with such Swing Loan, or if no Interest Period is specified, then as a Base Rate
Loan. The proceeds of the Swing Loan will be made available by the Swing Loan
Bank to the Borrower at the Agent's Head Office by crediting the account of the
Borrower at such office with such proceeds.
(d) The Swing Loan Bank shall within three (3) Business Days
after the Drawdown Date with respect to such Swing Loan, request each Bank,
including the Swing Loan Bank, to make a Loan pursuant to Section 2.1 in an
amount equal to such Bank's Commitment Percentage of the amount of the Swing
Loan outstanding on the date such notice is given. Borrower hereby irrevocably
authorizes and directs the Swing Loan Bank to so act on its behalf, and agrees
that any amount advanced to the Agent for the benefit of the Swing Loan Bank
pursuant to this Section 2.4A(d) shall be considered a Loan pursuant to Section
2.1. Unless any of the events described in paragraph (h), (i) or (j) of Section
12.1 shall have occurred (in which event the procedures of Section 2.4A(e) shall
apply), each Bank shall make the proceeds of its Loan available to the Swing
Loan Bank for the account of the Swing Loan Bank at the Agent's Head Office
prior to 12:00 noon (Boston time) in funds immediately available no later than
the third (3rd) Business Day after the date such notice is given just as if the
Banks were funding directly to the Borrower, so that thereafter such Obligations
shall be evidenced by the Revolving Credit Notes. The proceeds of such Loan
shall be immediately applied to repay the Swing Loans.
(e) If prior to the making of a Loan pursuant to Section
2.4A(d) by all of the Banks, one of the events described in Section 12.1(h), (i)
or (j) shall have occurred, each Bank will, on the date such Loan pursuant to
Section 2.4A(d) was to have been made, purchase an undivided participating
interest in the Swing Loan in an amount equal to its Commitment Percentage of
such Swing
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Loan. Each Bank will immediately transfer to the Swing Loan Bank in immediately
available funds the amount of its participation and upon receipt thereof the
Swing Loan Bank will deliver to such Bank a Swing Loan participation certificate
dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Bank has
received from any Bank such Bank's participating interest in a Swing Loan, the
Swing Loan Bank receives any payment on account thereof, the Swing Loan Bank
will distribute to such Bank its participating interest in such amount
(appropriately adjusted in the case of interest payments to reflect the period
of time during which such Bank's participating interest was outstanding and
funded); provided, however, that in the event that such payment received by the
Swing Loan Bank is required to be returned, such Bank will return to the Swing
Loan Bank any portion thereof previously distributed by the Swing Loan Bank to
it.
(g) Each Bank's obligation to fund a Loan as provided in
Section 2.4A(d) or to purchase participating interests pursuant to Section
2.4A(e) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Bank or the Borrower or Guarantors
may have against the Swing Loan Bank, the Borrower or Guarantors or anyone else
for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or Guarantors or any of their respective
Subsidiaries; (iv) any breach of this Agreement or any of the other Loan
Documents by the Borrower or Guarantors or any Bank; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. Any portions of a Swing Loan not so purchased or converted may be
treated by the Swing Loan Bank as a Loan which was not funded by the
non-purchasing Bank as contemplated by Section 2.7 and Section 12.4. Each Swing
Loan, once so sold or converted, shall cease to be a Swing Loan for the purposes
of this Agreement, but shall be a Loan made by each Bank under its Commitment.
Section 2.5. Interest on Loans
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on which such
Base Rate Loan is repaid or converted to a LIBOR Rate Loan at the rate per annum
equal to the sum of the Applicable Margin plus the Base Rate.
(b) Each LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to the sum of
the Applicable Margin plus the LIBOR Rate determined for such Interest Period.
(c) The Borrower promises to pay interest on each Loan in
arrears on each Interest Payment Date with respect thereto.
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(d) Base Rate Loans and LIBOR Rate Loans may be converted to
Loans of the other Type as provided in Section 4.1.
Section 2.6. Requests for Loans. Except with respect to the initial Loan
on the Closing Date and Swing Loans, the Borrower (a) shall notify the Agent of
a potential request for a Loan as soon as possible, and (b) shall give to the
Agent written notice in the form of Exhibit C hereto (or telephonic notice
confirmed in writing in the form of Exhibit C hereto) of each Loan requested
hereunder (a "Loan Request") no less than one (1) Business Day prior to the
proposed Drawdown Date with respect to Base Rate Loans and three (3) Business
Days prior to the proposed Drawdown Date with respect to LIBOR Rate Loans. Each
such notice shall specify with respect to the requested Loan the proposed
principal amount, Drawdown Date, Interest Period (if applicable) and Type. Each
such notice shall also contain (i) a statement as to the purpose for which such
advance shall be used (which purpose shall be in accordance with the terms of
Section 7.11), and (ii) a certification by the chief financial or chief
accounting officer of the Borrower that the Borrower and the Guarantors are and
will be in compliance with all covenants under the Loan Documents after giving
effect to the making of such Loan. Promptly upon receipt of any such notice, the
Agent shall notify each of the Banks thereof. Except as provided in this Section
2.6, each such Loan Request shall be irrevocable and binding on the Borrower and
shall obligate the Borrower to accept the Loan requested from the Banks on the
proposed Drawdown Date, provided that, in addition to the Borrower's other
remedies against any Bank which fails to advance its proportionate share of a
requested Loan, such Loan Request may be revoked by the Borrower by notice
received by the Agent no later than the Drawdown Date if any Bank fails to
advance its proportionate share of the requested Loan in accordance with the
terms of this Agreement, provided further that the Borrower shall be liable in
accordance with the terms of this Agreement to any Bank which is prepared to
advance its proportionate share of the requested Loan for any costs, expenses or
damages incurred by such Bank as a result of the Borrower's election to revoke
such Loan Request. Nothing herein shall prevent the Borrower from seeking
recourse against any Bank that fails to advance its proportionate share of a
requested Loan as required by this Agreement. The Borrower may without cost or
penalty revoke a Loan Request by delivering notice thereof to each of the Banks
no later than three (3) Business Days prior to the Drawdown Date. Each Loan
Request shall be (a) for a Base Rate Loan in a minimum aggregate amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof, or (b) for a
LIBOR Rate Loan in a minimum aggregate amount of $2,000,000 or an integral
multiple of $100,000 in excess thereof; provided, however, that there shall be
no more than six (6) LIBOR Rate Loans outstanding at any one time.
Section 2.7. Funds for Loans.
(a) Not later than 1:30 p.m. (Boston time) on the proposed
Drawdown Date of any Loans (other than Swing Loans), each of the Banks will make
available to the Agent, at the Agent's Head Office, in immediately available
funds, the amount of such Bank's Commitment Percentage of the amount of the
requested Loans which may be disbursed pursuant to Section 2.1.
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Upon receipt from each Bank of such amount, and upon receipt of the documents
required by Section 10 and Section 11 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Agent will make
available to the Borrower the aggregate amount of such Loans made available to
the Agent by the Banks by crediting such amount to the account of the Borrower
maintained at the Agent's Head Office. The failure or refusal of any Bank to
make available to the Agent at the aforesaid time and place on any Drawdown Date
the amount of its Commitment Percentage of the requested Loans shall not relieve
any other Bank from its several obligation hereunder to make available to the
Agent the amount of such other Bank's Commitment Percentage of any requested
Loans, including any additional Loans that may be requested subject to the terms
and conditions hereof to provide funds to replace those not advanced by the Bank
so failing or refusing, provided that the Borrower may by notice received by the
Agent no later than the Drawdown Date refuse to accept any Loan which is not
fully funded in accordance with the Borrower's Loan Request subject to the terms
of Section 2.6. In the event of any such failure or refusal, the Banks not so
failing or refusing shall be entitled to a priority position as against the Bank
or Banks so failing or refusing for such Loans as provided in Section 12.4.
(b) Unless Agent shall have been notified by any Bank prior
to the applicable Drawdown Date that such Bank will not make available to Agent
such Bank's pro rata share of a proposed Loan, Agent may in its discretion
assume that such Bank has made such Loan available to Agent in accordance with
the provisions of this Agreement and Agent may, if it chooses, in reliance upon
such assumption make such Loan available to Borrower, and such Bank shall be
liable to the Agent for the amount of such advance.
Section 3. REPAYMENT OF THE LOANS.
Section 3.1. Stated Maturity. The Borrower promises to pay on the
Maturity Date and there shall become absolutely due and payable on the Maturity
Date, all of the Loans outstanding on such date, together with any and all
accrued and unpaid interest thereon.
Section 3.2. Mandatory Prepayments.
(a) If at any time the aggregate outstanding principal
amount of the Loans exceeds the Total Commitment or the Borrowing Base, then the
Borrower shall immediately pay the amount of such excess to the Agent for the
respective accounts of the Banks for application to the Loans, except that the
amount of any Swing Loans shall be paid solely to the Swing Loan Bank.
(b) All of the Borrower's interest in the gross proceeds of
each and every sale or refinancing of real estate assets of the Borrower and its
Subsidiaries (whether held directly or indirectly), less all reasonable costs,
expenses and commissions paid to unrelated parties and less any Indebtedness
(other than the Obligations) secured by such asset to be satisfied as a part of
such sale or refinance and excluding any real property received in connection
with a like-kind
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exchange, shall be promptly paid by the Borrower to the Agent for the account of
the Banks as a prepayment of the Loans to the extent of the outstanding balance
of the Loans.
Section 3.3. Optional Prepayments. The Borrower shall have the right, at
its election, to prepay the outstanding amount of the Loans, as a whole or in
part, at any time without penalty or premium; provided, that the full or partial
prepayment of the outstanding amount of any LIBOR Rate Loans pursuant to this
Section 3.3 may be made only on the last day of the Interest Period relating
thereto except as otherwise required pursuant to Section 4.7. The Borrower shall
give the Agent, no later than 10:00 a.m., Boston time, at least three (3)
Business Days prior written notice of any prepayment pursuant to this Section
3.3 of any Base Rate Loans and at least four (4) LIBOR Business Days notice of
any proposed prepayment pursuant to this Section 3.3 of LIBOR Rate Loans, in
each case specifying the proposed date of payment of Loans and the principal
amount to be paid. Notwithstanding the foregoing, no prior notice shall be
required for the prepayment of any Swing Loan.
Section 3.4. Partial Prepayments. Each partial prepayment of the Loans
under Section 3.2 and Section 3.3 shall be in an integral multiple of $100,000,
shall be accompanied by the payment of accrued interest on the principal prepaid
to the date of payment and, after payment of such interest, shall be applied, in
the absence of instruction by the Borrower, first to the principal of any
Outstanding Swing Loans, and next to the principal of Base Rate Loans and then
to the principal of LIBOR Rate Loans.
Section 3.5. Effect of Prepayments. Amounts of the Loans prepaid under
Section 3.2 and Section 3.3 prior to the Maturity Date may be reborrowed as
provided in Section 2.
Section 3.6 Proceeds from Debt or Equity Offering. Unless otherwise
waived by the Majority Banks, the Borrower shall cause all gross proceeds of
each and every Debt Offering and Equity Offering, less all reasonable costs,
fees, expenses, underwriting commissions, fees and discounts incurred in
connection therewith, to be paid to the Agent for the account of the Banks as a
prepayment of the Loans within thirty (30) days of the date of such offering to
the extent of the outstanding balance of the Loans.
Section 4. CERTAIN GENERAL PROVISIONS.
Section 4.1. Conversion Options.
(a) The Borrower may elect from time to time to convert any
outstanding Loan to a Loan of another Type and such Loan shall thereafter bear
interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable; provided that
(i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the Borrower shall give the Agent at least three Business Days' prior
written notice of such election, and such conversion shall only be made on the
last day of the Interest Period with respect to such LIBOR Rate Loan; (ii) with
respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan, the
Borrower shall give the Agent at
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least four LIBOR Business Days' prior written notice of such election and the
Interest Period requested for such Loan, the principal amount of the Loan so
converted shall be in a minimum aggregate amount of $2,000,000 or an integral
multiple of $100,000 in excess thereof and, after giving effect to the making of
such Loan, there shall be no more than six (6) LIBOR Rate Loans outstanding at
any one time; and (iii) no Loan may be converted into a LIBOR Rate Loan when any
Default or Event of Default has occurred and is continuing. Promptly upon
receipt of any such Conversion Request, the Agent shall notify each of the Banks
thereof. All or any part of the outstanding Loans of any Type may be converted
as provided herein, provided that no partial conversion shall result in a Base
Rate Loan in an aggregate principal amount of less than $1,000,000 or a LIBOR
Rate Loan in an aggregate principal amount of less than $2,000,000 and that the
aggregate principal amount of each Loan shall be in an integral multiple of
$100,000. On the date on which such conversion is being made, each Bank shall
take such action as is necessary to transfer its Commitment Percentage of such
Loans to its Domestic Lending Office or its LIBOR Lending Office, as the case
may be. Each Conversion Request relating to the conversion of a Base Rate Loan
to a LIBOR Rate Loan shall be irrevocable by the Borrower.
(b) Any Loan may be continued as such Type upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the terms of Section 4.1; provided that no LIBOR Rate Loan may be
continued as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on the last
day of the Interest Period relating thereto ending during the continuance of any
Default or Event of Default.
(c) In the event that the Borrower does not notify the Agent
of its election hereunder with respect to any Loan, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
Section 4.2. Closing Fee. On the Closing Date, the Borrower shall pay to
BKB a facility and loan structuring fee pursuant to the Agreement Regarding
Fees, which fees shall be fully earned and non-refundable.
Section 4.3. Agent's Fee. The Borrower shall pay to the Agent, for the
Agent's own account, an annual Agent's fee as provided in the Agreement
Regarding Fees. The Agent's fee shall be payable quarterly in arrears on the
first day of each calendar quarter for the immediately preceding calendar
quarter or portion thereof. The Agent's fee shall also be paid upon the Maturity
Date or earlier termination of the Commitments. The Agent's fee for any partial
quarter shall be prorated.
Section 4.4. Funds for Payments.
(a) All payments of principal, interest, facility fees,
Agent's fees, closing fees, and any other amounts due hereunder or under any of
the other Loan Documents shall be made to the Agent, for the respective accounts
of the Banks and the Agent, as the case may be, at the
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Agent's Head Office, not later than 11:00 a.m. (Boston time) on the day when
due, in each case in immediately available funds. The Agent is hereby authorized
to charge the account of the Borrower with BKB, on the dates when the amount
thereof shall become due and payable, with the amounts of the principal of and
interest on the Loans and all fees, charges, expenses and other amounts owing to
the Agent and/or the Banks (including the Swing Loan Bank) under the Loan
Documents.
(b) All payments by the Borrower hereunder and under any of
the other Loan Documents shall be made without setoff or counterclaim and free
and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount payable
by it hereunder or under any of the other Loan Documents, the Borrower will pay
to the Agent, for the account of the Banks (including the Swing Loan Bank) or
(as the case may be) the Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Banks or the Agent to receive the
same net amount which the Banks or the Agent would have received on such due
date had no such obligation been imposed upon the Borrower. The Borrower will
deliver promptly to the Agent certificates or other valid vouchers for all taxes
or other charges deducted from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document.
(c) Each Bank organized under the laws of a jurisdiction
outside the United States, if requested in writing by the Borrower (but only so
long as such Bank remains lawfully able to do so), shall provide the Borrower
with such duly executed form(s) or statement(s) which may, from time to time, be
prescribed by law and, which, pursuant to applicable provisions of (i) an income
tax treaty between the United States and the country of residence of such Bank,
(ii) the Code, or (iii) any applicable rules or regulations in effect under (i)
or (ii) above, indicates the withholding status of such Bank; provided that
nothing herein (including without limitation the failure of inability to provide
such form or statement) shall relieve the Borrower of its obligations under
Section 4.4(b). In the event that the Borrower shall have delivered the
certificates or vouchers described above for any payments made by the Borrower
and such Bank receives a refund of any taxes paid by the Borrower pursuant to
Section 4.4(b), such Bank will pay to the Borrower the amount of such refund
promptly upon receipt thereof; provided that if at any time thereafter such Bank
is required to return such refund, the Borrower shall promptly repay to such
Bank the amount of such refund.
Section 4.5. Computations. All computations of interest on the Loans and
of other fees to the extent applicable shall be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to LIBOR Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall
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be extended to the next succeeding Business Day, and interest shall accrue
during such extension. The outstanding amount of the Loans as reflected on the
records of the Agent from time to time shall be considered prima facie evidence
of such amount.
Section 4.6. Inability to Determine LIBOR Rate. In the event that, prior
to the commencement of any Interest Period relating to any LIBOR Rate Loan, the
Agent shall determine in the exercise of its good faith business judgment that
adequate and reasonable methods do not exist for ascertaining the LIBOR Rate for
such Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Banks) to the Borrower and the Banks. In such event (a) any Loan Request with
respect to LIBOR Rate Loans shall be automatically withdrawn and shall be deemed
a request for Base Rate Loans, and (b) each LIBOR Rate Loan will automatically,
on the last day of the then current Interest Period thereof, become a Base Rate
Loan, and the obligations of the Banks to make LIBOR Rate Loans shall be
suspended until the Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall so notify the Borrower and
the Banks.
Section 4.7. Illegality. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the interpretation
or application thereof shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over a Bank or its LIBOR Lending
Office shall assert that it is unlawful, for any Bank to make or maintain LIBOR
Rate Loans, such Bank shall forthwith give notice of such circumstances to the
Agent and the Borrower and thereupon (a) the commitment of the Banks to make
LIBOR Rate Loans or convert Loans of another type to LIBOR Rate Loans shall
forthwith be suspended and (b) the LIBOR Rate Loans then outstanding shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law.
Section 4.8. Additional Interest. If any LIBOR Rate Loan or any portion
thereof is repaid or is converted to a Base Rate Loan for any reason on a date
which is prior to the last day of the Interest Period applicable to such LIBOR
Rate Loan, the Borrower will pay to the Agent upon demand for the account of the
Banks in accordance with their respective Commitment Percentages (or to the
Swing Loan Bank with respect to a Swing Loan), in addition to any amounts of
interest otherwise payable hereunder, any amounts required to compensate the
Banks for any losses, costs or expenses which may reasonably be incurred as a
result of such payment or conversion, including, without limitation, an amount
equal to daily interest for the unexpired portion of such Interest Period on the
LIBOR Rate Loan or portion thereof so repaid or converted at a per annum rate
equal to the excess, if any, of (a) the interest rate (including the Applicable
Margin) calculated on the basis of the LIBOR Rate applicable to such LIBOR Rate
Loan minus (b) the yield obtainable by the Agent upon the purchase of debt
securities customarily issued by the Treasury of the United States of America
which have a maturity date most closely approximating the last day of such
Interest Period (it being understood that the purchase of such securities shall
not be required in order for such amounts to be payable and that a Bank shall
not
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be obligated or required to have actually obtained funds at the LIBOR Rate or to
have actually reinvested such amount as described above).
Section 4.9. Additional Costs, Etc. Notwithstanding anything herein to
the contrary, if any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any governmental or other
regulatory body or official with appropriate jurisdiction charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment (including the Swing
Loan Commitment) or the Loans (other than taxes based upon or measured by the
income or profits of such Bank or the Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of the principal
of or the interest on any Loans or any other amounts payable to any Bank under
this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or letters of credit from, or
commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, such Bank's Commitment (including the Swing Loan Commitment), or any
class of loans or commitments of which any of the Loans or such Bank's
Commitment (including the Swing Loan Commitment) forms a part; and the result of
any of the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment (including the Swing Loan Commitment), or
(ii) to reduce the amount of principal, interest or
other amount payable to such Bank or the Agent hereunder on account of such
Bank's Commitment (including the Swing Loan Commitment) or any of the Loans, or
(iii) to require such Bank or the Agent to make any
payment or to forego any interest or other sum payable hereunder, the amount of
which payment or foregone
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interest or other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Bank or the Agent from the Borrower
hereunder,
then, and in each such case, the Borrower will, within fifteen (15) days of
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent such additional amounts as such Bank or the Agent shall determine
in good faith to be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or other sum. Each Bank
and the Agent in determining such amounts may use any reasonable averaging and
attribution methods, generally applied by such Bank or the Agent.
Notwithstanding the foregoing, the Borrower shall have the right, in lieu of
making the payment referred to in this Section 4.9, to prepay the Loans and
terminate the Commitments within thirty (30) days of such demand and avoid the
payment of the amounts otherwise due under this Section 4.9, provided, however,
that the Borrower shall be required to pay together with such prepayment of the
Loans all other costs, damages and expenses otherwise due under Section 4.8 of
this Agreement.
Section 4.10. Capital Adequacy. If after the date hereof any Bank
determines that (a) the adoption of or change in any law, rule, regulation,
guideline, directive or request (whether or not having the force of law)
regarding capital requirements for banks or bank holding companies or any change
in the interpretation or application thereof by any governmental authority,
central bank or comparable agency charged with the administration thereof, or
(b) compliance by such Bank or its parent bank holding company with any
guideline, request or directive of any such entity regarding capital adequacy
(whether or not having the force of law), has the effect of reducing the return
on such Bank's or such holding company's capital as a consequence of such Bank's
commitment to make Loans hereunder to a level below that which such Bank or
holding company could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's or such holding company's then existing
policies with respect to capital adequacy and assuming the full utilization of
such entity's capital) by any amount deemed by such Bank to be material, then
such Bank may notify the Borrower thereof. The Borrower agrees to pay to such
Bank the amount of such reduction in the return on capital as and when such
reduction is determined, upon presentation by such Bank of a statement of the
amount setting forth the Bank's calculation thereof. In determining such amount,
such Bank may use any reasonable averaging and attribution methods.
Notwithstanding the foregoing, the Borrower shall have the right, in lieu of
making the payment referred to in this Section 4.10, to prepay the Loans and
terminate the Commitments within thirty (30) days of such demand and avoid the
payment of the amounts otherwise due under this Section 4.10, provided, however,
that the Borrower shall be required to pay together with such prepayment of the
Loans all other costs, damages and expenses otherwise due under Section 4.8 of
this Agreement.
Section 4.11. Indemnity of Borrower. The Borrower agrees to indemnify
each Bank and to hold each Bank harmless from and against any loss, cost or
expense that such Bank may sustain or incur as a consequence of (a) default by
the Borrower in payment of the principal amount of or any interest on any LIBOR
Rate Loans as and when due and payable, including any such loss or
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expense arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its LIBOR Rate Loans, or (b) default by the
Borrower in making a borrowing or conversion after the Borrower has given (or is
deemed to have given) a Loan Request or a Conversion Request.
Section 4.12. Interest on Overdue Amounts; Late Charge. Overdue
principal and (to the extent permitted by applicable law) interest on the Loans
and all other overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest payable on demand at a rate per annum which is
five percent (5.00%) per annum above the rate(s) of interest otherwise payable
from time to time under this Agreement until such amount shall be paid in full
(after as well as before judgment). In addition, the Borrower shall pay a late
charge equal to three percent (3%) of any amount of interest and/or principal
payable on the Loans or any other amounts payable hereunder or under the Loan
Documents, which is not paid within ten days of the date when due.
Section 4.13. Certificate. A certificate setting forth any amounts
payable pursuant to Section 4.8, Section 4.9, Section 4.10, Section 4.11 or
Section 4.12 and a brief explanation of such amounts which are due, submitted by
any Bank or the Agent to the Borrower, shall be conclusive in the absence of
manifest error.
Section 4.14. Limitation on Interest. Notwithstanding anything in this
Agreement to the contrary, all agreements between the Borrower and the Banks and
the Agent, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of
acceleration of the maturity of any of the Obligations or otherwise, shall the
interest contracted for, charged or received by the Banks exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Banks in excess of the maximum lawful
amount, the interest payable to the Banks shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance the Banks shall
ever receive anything of value deemed interest by applicable law in excess of
the maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal balance of the Obligations and to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations, such excess shall be refunded to the Borrower. All
interest paid or agreed to be paid to the Banks shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread throughout the
full period until payment in full of the principal of the Obligations (including
the period of any renewal or extension thereof) so that the interest thereon for
such full period shall not exceed the maximum amount permitted by applicable
law. This section shall control all agreements between the Borrower and the
Banks and the Agent.
Section 5. SECURITY.
The Banks have agreed to make the Loans to the Borrower on an unsecured
basis. Notwithstanding the foregoing, the Obligations shall be guaranteed by the
Guarantors pursuant to the Guaranty.
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Section 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent and the Banks as
follows:
Section 6.1. Corporate Authority, Etc.
(a) Incorporation; Good Standing. The Borrower is a Maryland
corporation duly organized pursuant to its Articles of Incorporation and
amendments thereto filed with the Secretary of the State of Maryland and is
validly existing and in good standing under the laws of Maryland. Each Guarantor
is a corporation, limited partnership, limited liability company or other form
of entity specified in Schedule 3 hereto pursuant to its organizational
agreements and is validly existing and in good standing under the laws of the
state of its organization set forth in Schedule 3 hereto. Each of the Borrower
and the Guarantors (i) has all requisite power to own its respective property
and conduct its respective business as now conducted and as presently
contemplated, and (ii) is in good standing as a foreign entity and is duly
authorized to do business in the jurisdictions where the Unencumbered Operating
Properties are located and in each other jurisdiction where a failure to be so
qualified in such other jurisdiction could have a materially adverse effect on
the business, assets or financial condition of such Person. The Borrower is a
real estate investment trust in full compliance with and entitled to the
benefits of Section 856 of the Code. The Guarantors are subsidiaries of the
Borrower. All of the capital stock of the Borrower has been issued in compliance
with all applicable laws.
(b) Subsidiaries. Each of the Subsidiaries of the Borrower
and the Guarantors (i) is a corporation, limited partnership, limited liability
company or trust duly organized under the laws of its State of organization and
is validly existing and in good standing under the laws thereof, (ii) has all
requisite power to own its property and conduct its business as now conducted
and as presently contemplated, and (iii) is in good standing and is duly
authorized to do business in each jurisdiction where a failure to be so
qualified could have a materially adverse effect on the business, assets or
financial condition of the Borrower, the Guarantors or such Subsidiary.
(c) Authorization. The execution, delivery and performance
of this Agreement and the other Loan Documents to which any of the Borrower or
the Guarantors are or are to become a party and the transactions contemplated
hereby and thereby (i) are within the authority of such Person, (ii) have been
duly authorized by all necessary proceedings on the part of such Person, (iii)
do not and will not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which such Person is
subject or any judgment, order, writ, injunction, license or permit applicable
to such Person, (iv) do not and will not conflict with or constitute a default
(whether with the passage of time or the giving of notice, or both) under any
provision of the articles of incorporation, partnership agreement, declaration
of trust or other charter documents or bylaws of, or any mortgage, indenture,
agreement, contract or other instrument binding upon, such Person or any of its
properties or to which such Person is
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subject, and (v) do not and will not result in or require the imposition of any
lien or other encumbrance on any of the properties, assets or rights of such
Person.
(d) Enforceability. The execution and delivery of this
Agreement and the other Loan Documents to which any of the Borrower or the
Guarantors are or are to become a party are valid and legally binding
obligations of such Person enforceable in accordance with the respective terms
and provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
Section 6.2. Approvals. The execution, delivery and performance by the
Borrower and the Guarantors of this Agreement and the other Loan Documents to
which such Person is a party and the transactions contemplated hereby and
thereby do not require the approval or consent of any Person or the
authorization, consent or approval of, or any license or permit issued by, or
any filing or registration with, or the giving of any notice to, any court,
department, board, commission or other governmental agency or authority other
than those already obtained.
Section 6.3. Title to Properties; Leases. The Borrower and its
Subsidiaries own all of the assets reflected in the consolidated balance sheet
of the Borrower as of the Balance Sheet Date or acquired since that date except
the minority interests reflected therein (except property and assets sold or
otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens. Without limiting the foregoing, the Borrower and its
Subsidiaries have good and marketable fee simple title to all real property
reasonably necessary for the operation of its business in whole, free from all
liens or encumbrances of any nature whatsoever, except for Permitted Liens. The
Borrower or one of its Subsidiaries, as the case may be, is the insured under
owner's policies of title insurance covering all real property owned by it, in
each case in an amount not less than the purchase price for such real property.
Section 6.4. Financial Statements. The Borrower has furnished to the
Agent: (a) the consolidated balance sheet of the Borrower and its Subsidiaries
as of the Balance Sheet Date and their related consolidated statements of
operations and cash flows for the period then ended certified by an officer of
the Borrower, (b) an unaudited statement of operating income for each of the
properties within the Unencumbered Operating Properties as of the Closing Date
for the fiscal quarter ended March 31, 1997 satisfactory in form to the Majority
Banks and certified by the chief financial officer of the Borrower, as fairly
presenting the operating income for such parcels for such periods, and (c)
certain other financial information relating to the Borrower, the Guarantors and
the Real Estate. Such balance sheet and statements have been prepared in
accordance with generally accepted accounting principles and fairly present the
financial condition of the Borrower and the Guarantors and their respective
Subsidiaries as of such dates and the results of the operations of the Borrower,
the Guarantors and their respective Subsidiaries
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for such periods. There are no liabilities, contingent or otherwise, of the
Borrower, the Guarantors or any of their respective Subsidiaries involving
material amounts not disclosed in said financial statements and the related
notes thereto.
Section 6.5. No Material Changes. Since the Balance Sheet Date, there
has occurred no materially adverse change in the financial condition or business
of the Borrower, the Guarantors and their respective Subsidiaries taken as a
whole as shown on or reflected in the consolidated balance sheet of the
Borrower, as of the Balance Sheet Date, or its consolidated statement of income
or cash flows for the fiscal year then ended, other than changes in the ordinary
course of business that have not had any materially adverse effect either
individually or in the aggregate on the business or financial condition of such
Person.
Section 6.6. Franchises, Patents, Copyrights, Etc. The Borrower, the
Guarantors and their respective Subsidiaries possess all franchises, patents,
copyrights, trademarks, trade names, service marks, licenses and permits, and
rights in respect of the foregoing, adequate for the conduct of their business
substantially as now conducted without known conflict with any rights of others.
Section 6.7. Litigation. There are no actions, suits, proceedings or
investigations of any kind pending or to the knowledge of such Person threatened
against the Borrower, the Guarantors or any of their respective Subsidiaries
before any court, tribunal, administrative agency or board, mediator or
arbitrator that, if adversely determined, might, either in any case or in the
aggregate, materially adversely affect the properties, assets, financial
condition or business of such Person or materially impair the right of such
Person to carry on business substantially as now conducted by it, or result in
any liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the balance sheet of such Person, or which
question the validity of this Agreement or any of the other Loan Documents, any
action taken or to be taken pursuant hereto or thereto or any lien or security
interest created or intended to be created pursuant hereto or thereto, or which
will adversely affect the ability of the Borrower or the Guarantors to pay and
perform the Obligations in the manner contemplated by this Agreement and the
other Loan Documents. There are no material judgments outstanding against or
affecting the Borrower, the Guarantors or any of their respective Subsidiaries
or any of their properties.
Section 6.8. No Materially Adverse Contracts, Etc. None of the Borrower,
the Guarantors or any of their respective Subsidiaries is subject to any
charter, corporate or other legal restriction, or any judgment, decree, order,
rule or regulation that has or is expected in the future to have a materially
adverse effect on the business, assets or financial condition of such Person.
None of the Borrower, the Guarantors or any of their respective Subsidiaries is
a party to any mortgage, indenture, contract, agreement or other instrument that
has or is expected, in the judgment of the officers or partners of such Person,
to have any materially adverse effect on the business, assets or financial
condition of any of them.
Section 6.9. Compliance with Other Instruments, Laws, Etc. None of the
Borrower, the Guarantors or any of their respective Subsidiaries is in violation
of any provision of its charter or
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other organizational documents, bylaws, or any agreement or instrument to which
it may be subject or by which it or any of its properties may be bound or any
decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could result in the imposition of substantial
penalties or materially and adversely affect the financial condition, properties
or business of such Person.
Section 6.10. Tax Status. The Borrower, the Guarantors and each of their
respective Subsidiaries (a) has made or filed all federal and state income and
all other tax returns, reports and declarations required by any jurisdiction to
which it is subject, except in such cases as a valid extension has been
obtained, (b) has paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations, except
those being contested in good faith and by appropriate proceedings and (c) has
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers or partners
of such Person know of no basis for any such claim.
Section 6.11. No Event of Default. No Default or Event of Default has
occurred and is continuing.
Section 6.12. Holding Company and Investment Company Acts. None of the
Borrower, the Guarantors or any of their respective Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935; nor is any of such Persons an "investment company", or an
"affiliated company" or a "principal underwriter" of an "investment company", as
such terms are defined in the Investment Company Act of 1940.
Section 6.13. Absence of U.C.C. Financing Statements, Etc. Except with
respect to Permitted Liens, there is no financing statement, security agreement,
chattel mortgage, real estate mortgage or other document filed or recorded with
any filing records, registry, or other public office, that purports to cover,
affect or give notice of any present or possible future lien on, or security
interest or security title in, any property of the Borrower, the Guarantors or
their respective Subsidiaries or rights thereunder.
Section 6.14. Certain Transactions. Except as set forth in the
Prospectus and other arms-length transactions on terms that would be acceptable
to an unaffiliated entity, none of the partners, officers, trustees, directors,
or employees of the Borrower, the Guarantors or any of their respective
Subsidiaries is a party to any transaction with the Borrower or any of its
Subsidiaries (other than for services as partners, employees, officers, trustees
and directors), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any
partner, officer, trustee, director or such employee or, to the knowledge of the
Borrower, any corporation, partnership, trust or other entity in which any
partner, officer, trustee,
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director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.
Section 6.15. Employee Benefit Plans. The Borrower and each ERISA
Affiliate has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.
Neither the Borrower nor any ERISA Affiliate has (a) sought a waiver of the
minimum funding standard under Section 412 of the Code in respect of any
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, (b) failed
to make any contribution or payment to any Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan, or made any amendment to any Employee Benefit
Plan, Multiemployer Plan or Guaranteed Pension Plan, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Code, or (c) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA.
None of the Unencumbered Operating Properties constitutes a "plan asset" of any
Employee Plan, Multiemployer Plan or Guaranteed Pension Plan.
Section 6.16. Regulations U and X. No portion of any Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of Governors
of the Federal Reserve System, 12 C.F.R. Parts 221 and 224. Neither the Borrower
nor any Guarantor is engaged, nor will it engage, principally or as one of its
important activities in the business of extending credit for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such terms are
used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
Section 6.17. Environmental Compliance. The Borrower has taken or caused
to be taken all commercially reasonable steps to investigate the past and
present conditions and usage of the Real Estate and the operations conducted
thereon and, based upon such investigation, makes the following representations
and warranties.
(a) With respect to the Unencumbered Operating Properties,
and to the best of the Borrower's knowledge with respect to any other Real
Estate, except as set forth in Schedule 6.17, none of the Borrower, the
Guarantors or their respective Subsidiaries or any operator of the Real Estate,
or any operations thereon is in violation, or alleged violation, of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any
state or local statute, regulation, ordinance, order or decree relating to the
environment
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(hereinafter "Environmental Laws"), which violation involves the Unencumbered
Operating Properties or other Real Estate and would have a material adverse
effect on the environment or the business, assets or financial condition of the
Borrower, the Guarantors or any of their respective Subsidiaries.
(b) Neither the Borrower, the Guarantors nor any of their
respective Subsidiaries has received notice from any third party including,
without limitation, any federal, state or local governmental authority, (i) that
it has been identified by the United States Environmental Protection Agency
("EPA") as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986);
(ii) that any hazardous waste, as defined by 42 U.S.C. Section 9601(5), any
hazardous substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) or any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Substances") which it has generated, transported
or disposed of have been found at any site at which a federal, state or local
agency or other third party has conducted or has ordered that the Borrower, the
Guarantors or any of their respective Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any Environmental
Law; or (iii) that it is or shall be a named party to any claim, action, cause
of action, complaint, or legal or administrative proceeding (in each case,
contingent or otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Substances.
(c) With respect to the Unencumbered Operating Properties,
and to the best of the Borrower's knowledge, with respect to any other Real
Estate, except as set forth in Schedule 6.17, or in the case of Real Estate
acquired after the date hereof, except as may be disclosed in writing to the
Agent upon the acquisition of the same: (i) no portion of the Real Estate has
been used for the handling, processing, storage or disposal of Hazardous
Substances except in accordance with applicable Environmental Laws, and no
underground tank or other underground storage receptacle for Hazardous
Substances is located on any portion of such Real Estate except for such tanks
as are monitored and maintained in accordance with applicable Environmental
Laws; (ii) in the course of any activities conducted by the Borrower, the
Guarantors or any of their respective Subsidiaries or the operators of any of
their properties, no Hazardous Substances have been generated or are being used
on the Real Estate of such Person except in the ordinary course of business and
in accordance with applicable Environmental Laws; (iii) there has been no past
or present releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (a "Release") or
threatened Release of Hazardous Substances on, upon, into or from such Real
Estate or on, upon, into or from the other properties of the Borrower, the
Guarantors or any of their respective Subsidiaries, which Release would have a
material adverse effect on the value of any of such Real Estate or adjacent
properties or the environment; (iv) there have been no Releases on, upon, from
or into any real property in the vicinity of any of such Real Estate which,
through soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, such Real Estate;
and (v) any Hazardous Substances that have been generated on any of such Real
Estate
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have been transported off-site only by carriers having an identification number
issued by the EPA or approved by a state or local environmental regulatory
authority having jurisdiction regarding the transportation of such substance and
treated or disposed of only by treatment or disposal facilities maintaining
valid permits as required under all applicable Environmental Laws, which
transporters and facilities have been and are, to the best of the Borrower's
knowledge operating in compliance with such permits and applicable Environmental
Laws. Upon the receipt by the Agent of any such disclosure, the Agent shall
promptly notify the Banks thereof.
(d) To the best of the Borrower's knowledge and belief,
neither the Borrower, the Guarantors, their respective Subsidiaries nor any Real
Estate of such Person is subject to any applicable Environmental Law requiring
the performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an environmental
disclosure document or statement by virtue of the transactions set forth herein
and contemplated hereby, or as a condition to the effectiveness of any other
transactions contemplated hereby.
Section 6.18. Subsidiaries. Schedule 6.18 sets forth all of the
Subsidiaries of the Borrower and the Guarantors. The form and jurisdiction of
organization of each of the Subsidiaries, the Borrower's or Guarantor's and each
other Person's ownership interest therein, and the Real Estate owned by such
Subsidiary is set forth in said Schedule 6.18.
Section 6.19. Loan Documents and the Guarantors. All of the
representations and warranties of the Borrower and the Guarantors made in this
Agreement and the other Loan Documents or any document or instrument delivered
to the Agent or the Banks pursuant to or in connection with any of such Loan
Documents are true and correct in all material respects, and neither the
Borrower nor the Guarantors has failed to disclose such information as is
necessary to make such representations and warranties not misleading.
Section 6.20. Property. All of the Borrower's, the Guarantors' and their
respective Subsidiaries' properties are in good repair and condition, subject to
ordinary wear and tear, other than with respect to deferred maintenance existing
as of the date of acquisition of such property as permitted in this Section
6.20. The Borrower further has completed or caused to be completed an
appropriate investigation of the environmental condition of each such property
as of the later of the date of the Borrower's, the Guarantors' or such
Subsidiaries' purchase thereof or the date upon which such property was last
security for Indebtedness of the Borrower, the Guarantors or such Subsidiary,
including preparation of a "Phase I" report and, if appropriate, a "Phase II"
report, in each case prepared by a recognized environmental engineer in
accordance with customary standards which discloses that such property is not in
violation of the representations and covenants set forth in this Agreement,
unless such violation has been disclosed in writing to the Agent and remediation
actions satisfactory to Agent are being taken. There are no unpaid or
outstanding real estate or other taxes or assessments on or against any property
of the Borrower, the Guarantors or any of their respective Subsidiaries which
are payable by such Person (except
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only real estate or other taxes or assessments, that are not yet due and
payable). Except as set forth in Schedule 6.20 hereto, there are no pending
eminent domain proceedings against any property of the Borrower, the Guarantors
or their respective Subsidiaries or any part thereof, and, to the knowledge of
the Borrower, no such proceedings are presently threatened or contemplated by
any taking authority which may individually or in the aggregate have any
materially adverse effect on the business or financial condition of the Borrower
or the Guarantors. None of the property of Borrower, the Guarantors or their
respective Subsidiaries is now damaged or injured as a result of any fire,
explosion, accident, flood or other casualty in any manner which individually or
in the aggregate would have any materially adverse effect on the business or
financial condition of the Borrower or the Guarantors.
Section 6.21. Brokers. Neither the Borrower nor any of its Subsidiaries
has engaged or otherwise dealt with any broker, finder or similar entity in
connection with this Agreement or the Loans contemplated hereunder.
Section 6.22. Other Debt. None of the Borrower, the Guarantors or any of
their respective Subsidiaries is in default in the payment of any other
Indebtedness or under any agreement, mortgage, deed of trust, security
agreement, financing agreement, indenture or lease to which any of them is a
party. The Borrower is not a party to or bound by any agreement, instrument or
indenture that may require the subordination in right or time of payment of any
of the Obligations to any other indebtedness or obligation of the Borrower.
Section 6.23. Solvency. As of the Closing Date and after giving effect
to the transactions contemplated by this Agreement and the other Loan Documents,
including all of the Loans made or to be made hereunder, neither the Borrower
nor any Guarantor is insolvent on a balance sheet basis such that the sum of
such Person's assets exceeds the sum of such Person's liabilities, the Borrower
and each Guarantor is able to pay its debts as they become due, and the Borrower
and each Guarantor has sufficient capital to carry on its business.
Section 6.24. The Partners and the Guarantors. Borrower is the sole
general partner of EH Properties, L.P. and owns a 99.825 % partnership interest
in such partnership. The Borrower owns all of the issued and outstanding shares
of Excel Realty-PA, Inc., Excel Realty Trust-ST, Inc. and Excel Realty-NE, Inc.
NC Properties #1 Inc. and NC Properties #2 Inc. are the sole partners of Excel
Realty Trust-NC, and Borrower owns all of the issued and outstanding stock of NC
Properties #1 Inc. and NC Properties #2 Inc. TX Properties #1 Inc. and TX
Properties #2 Inc. are the sole partners of Excel Realty Trust-TX, L.P., and
Borrower owns all of the issued and outstanding stock of TX Properties #1 Inc.
and TX Properties #2 Inc.
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans:
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Section 7.1. Punctual Payment. The Borrower will duly and punctually pay
or cause to be paid the principal and interest on the Loans and all interest and
fees provided for in this Agreement, all in accordance with the terms of this
Agreement and the Notes as well as all other sums owing pursuant to the Loan
Documents.
Section 7.2. Maintenance of Office. The Borrower will maintain its chief
executive office at 16955 Via Del Campo, Suite 110, San Diego, California 92127
or at such other place in the United States of America as the Borrower shall
designate upon prior written notice to the Agent and the Banks, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents may be given or made.
Section 7.3. Records and Accounts. The Borrower will (a) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with
generally accepted accounting principles and (b) maintain adequate accounts for
all taxes (including income taxes), depreciation, depletion and amortization of
its properties and the properties of its Subsidiaries, contingencies and other
reserves. Neither the Borrower nor its Subsidiaries shall, without the prior
written consent of the Majority Banks, make any material change to the
accounting procedures used by such Person in preparing the financial statements
and other information described Section 6.4. The Borrower shall not, without the
prior written consent of the Majority Banks, change its fiscal year.
Section 7.4. Financial Statements, Certificates and Information. The
Borrower will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than
90 days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet of the Borrower and its Subsidiaries at the end of
such year, and the related audited consolidated statements of income, changes in
shareholder's equity and cash flows for such year, each setting forth in
comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by an auditor's report prepared
without qualification by Coopers & Lybrand or by another "Big Six" accounting
firm, the Form 10-K filed with the SEC (unless the SEC has approved an
extension, in which event the Borrower will deliver to the Agent and each of the
Banks a copy of the Form 10-K simultaneously with delivery to the SEC), and any
other information the Banks may need to complete a financial analysis of the
Borrower and its Subsidiaries, together with a written statement from such
accountants to the effect that they have read a copy of this Agreement and the
Guaranty, and that, in making the examination necessary to said certification,
they have obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default or Event
of Default they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to the Agent or the
Banks for failure to obtain knowledge of any Default or Event of Default;
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(b) as soon as practicable, but in any event not later than
45 days after the end of each of the first three fiscal quarters of the
Borrower, (i) copies of Form 10-Q filed with the SEC (unless the SEC has
approved an extension in which event the Borrower will deliver such copies of
the Form 10-Q to the Agent and each of the Banks simultaneously with delivery to
the SEC), or in the event that the Borrower is not required to file a Form 10-Q,
then (ii) copies of the unaudited consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such quarter, and the related unaudited
consolidated statements of income, changes in shareholder's equity and cash
flows for the portion of the Borrower's fiscal year then elapsed, all in
reasonable detail and prepared in accordance with generally accepted accounting
principles, together with a certification by the principal financial or
accounting officer of the Borrower that the information contained in such
financial statements fairly presents the financial position of the Borrower and
its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above and within thirty (30)
days of the filing by the Borrower of a Form 8-K with the SEC, or the filing
with the SEC of any other document amending any other filing made by the
Borrower, a statement (a "Compliance Certificate") certified by the principal
financial or accounting officer of the Borrower in the form of Exhibit D hereto
(or in such other form as the Agent may approve from time to time) setting forth
in reasonable detail computations evidencing compliance with the covenants
contained in Section 9 and the other covenants described therein, and (if
applicable) reconciliations to reflect changes in generally accepted accounting
principles since the Balance Sheet Date. The Compliance Certificate shall also
be accompanied by the following:
(i) copies of a consolidated statement of cash flow
for such fiscal quarter for the Borrower and its Subsidiaries, prepared
on a basis consistent with the statement furnished pursuant to Section
6.4, together with a certification by the chief financial or chief
accounting officer of the Borrower that the information contained in
such statement fairly presents the Operating Cash Flow of the Borrower
and its Subsidiaries for such period;
(ii) a summary Rent Roll with respect to the
Unencumbered Operating Properties in form reasonably satisfactory to the
Majority Banks;
(iii) a list setting forth the following information
with respect to each new Subsidiary of the Borrower: (A) the name and
structure of the Subsidiary, (B) a description of the property owned by
such Subsidiary, and (C) such other information as the Agent may
reasonably request;
(iv) a statement (A) listing the Real Estate owned by
the Borrower and its Subsidiaries (or in which the Borrower or its
Subsidiaries owns an interest) and stating the location thereof, the
date acquired and the acquisition cost, (B) listing the Indebtedness of
the Borrower and its Subsidiaries (excluding Indebtedness of the type
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described in Section 8.1(b)-(e)), which statement shall include, without
limitation, a statement of the current outstanding amount of such
Indebtedness and unfunded amounts available under any such facilities,
the holder thereof, the maturity date and any extension options, the
interest rate, the collateral provided for such Indebtedness and whether
such Indebtedness is recourse or non-recourse, and (C) listing the
properties of the Borrower and its Subsidiaries which are under
"development" (as used in Section 8.9) and providing a brief summary of
the status of such development; and
(v) a list of the Unencumbered Operating Properties
and the certification of the chief financial or chief accounting officer
of the Borrower that the Unencumbered Operating Properties comply with
the terms of Sections 6.17, 6.20 and 7.14;
(d) concurrently with the delivery of the financial
statements described in subsection (b) above, a certificate signed by the
President or Chief Financial Officer of the Borrower to the effect that, having
read this Agreement, and based upon an examination which they deem sufficient to
enable them to make an informed statement, there does not exist any Default or
Event of Default, or if such Default or Event of Default has occurred,
specifying the facts with respect thereto;
(e) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the SEC or sent to the
stockholders of the Borrower;
(f) promptly after they are filed with the Internal Revenue
Service, copies of all annual federal income tax returns and amendments thereto
of each of the Borrower and Guarantors;
(g) not later than five (5) Business Days after the Borrower
receives notice of the same from either Rating Agency or otherwise learns of the
same, notice of the issuance of any change in the rating by either Rating Agency
in respect of any debt of the Borrower (including any change in an Implied
Rating), together with the details thereof, and of any announcement by such
Rating Agency that any such rating is "under review" or that any such rating has
been placed on a watch list or that any similar action has been taken by such
Rating Agency (collectively a "Rating Notice"); and
(h) from time to time such other financial data and
information in the possession of the Borrower or its respective Subsidiaries
(including without limitation auditors' management letters, evidence of payment
of taxes, property inspection and environmental reports and information as to
zoning and other legal and regulatory changes affecting any of such Persons) as
the Agent may reasonably request.
Section 7.5. Notices.
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(a) Defaults. The Borrower will promptly notify the Agent in
writing of the occurrence of any Default or Event of Default. If any Person
shall give any notice or take any other action in respect of a claimed default
(whether or not constituting an Event of Default) under this Agreement or under
any note, evidence of indebtedness, indenture or other obligation to which or
with respect to which the Borrower, the Guarantors or any of their respective
Subsidiaries is a party or obligor, whether as principal or surety, and such
default would permit the holder of such note or obligation or other evidence of
indebtedness to accelerate the maturity thereof or the existence of which
claimed default might become an Event of Default under Section 12.1(g), the
Borrower shall forthwith give written notice thereof to the Agent and each of
the Banks, describing the notice or action and the nature of the claimed
default.
(b) Environmental Events. The Borrower will promptly give
notice to the Agent (i) upon the Borrower or the Guarantors obtaining knowledge
of any potential or known Release, or threat of Release, of any Hazardous
Substances at or from any Real Estate; (ii) of any violation of any
Environmental Law that the Borrower, the Guarantors or any of their respective
Subsidiaries reports in writing or is reportable by such Person in writing (or
for which any written report supplemental to any oral report is made) to any
federal, state or local environmental agency; and (iii) upon becoming aware
thereof, of any inquiry, proceeding, investigation, or other action, including a
notice from any agency of potential environmental liability, of any federal,
state or local environmental agency or board, that in either case involves any
Real Estate or has the potential to materially affect the assets, liabilities,
financial conditions or operations of such Person.
(c) Notice of Litigation and Judgments. The Borrower will
give notice to the Agent in writing within 15 days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting the Borrower, the Guarantors or any of their respective
Subsidiaries or to which any of such Persons is or is to become a party
involving an uninsured claim against such Person that could reasonably be
expected to have a materially adverse effect on the Borrower or the Guarantors
and stating the nature and status of such litigation or proceedings. The
Borrower will give notice to the Agent, in writing, in form and detail
satisfactory to the Agent and each of the Banks, within ten days of any judgment
not covered by insurance, whether final or otherwise, against the Borrower, the
Guarantors, any of their respective Subsidiaries in an amount in excess of
$5,000,000.00.
(d) Notice of Proposed Sales, Encumbrances, Refinance or
Transfer. The Borrower will give notice to the Agent of any proposed or
completed sale, encumbrance, refinance or transfer of any Unencumbered Operating
Property within any fiscal quarter of the Borrower, such notice to be submitted
together with the Compliance Certificate provided or required to be provided to
the Banks under Section 7.4 with respect to such fiscal quarter. The Compliance
Certificate shall with respect to any proposed or completed sale, encumbrance,
refinance or transfer be adjusted in the best good-faith estimate of the
Borrower to give effect to such
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sale, encumbrance, refinance or transfer and demonstrate that no Default or
Event of Default with respect to the covenants referred to therein shall exist
after giving effect to such sale, encumbrance, refinance or transfer.
Notwithstanding the foregoing, in the event of any sale, encumbrance, refinance
or transfer of any Unencumbered Operating Property involving an aggregate amount
in excess of $25,000,000.00 , the Borrower shall promptly give notice to the
Agent of such transaction, which notice shall be accompanied by a certification
of the chief financial officer of the Borrower that no Default or Event of
Default shall exist after giving affect to such event.
(e) Notification of Banks. Promptly after receiving any
notice under this Section 7.5, the Agent will forward a copy thereof to each of
the Banks, together with copies of any certificates or other written information
that accompanied such notice.
Section 7.6. Existence; Maintenance of Properties.
(a) The Borrower will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
Maryland corporation. The Borrower will cause each of its Subsidiaries to do or
cause to be done all things necessary to preserve and keep in full force and
effect its legal existence. The Borrower will do or cause to be done all things
necessary to preserve and keep in full force all of its rights and franchises
and those of its Subsidiaries. The Borrower will, and will cause each of its
Subsidiaries to, continue to engage primarily in the businesses now conducted by
it and in related businesses.
(b) Irrespective of whether proceeds of the Loans are
available for such purpose, the Borrower (i) will cause all of its properties
and those of the Guarantors and their respective Subsidiaries used or useful in
the conduct of its business or the business of such Persons to be maintained and
kept in good condition, repair and working order (ordinary wear and tear
excepted) and supplied with all necessary equipment, and (ii) will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof in all cases in which the failure so to do would have a material adverse
effect on the condition of its properties or on the financial condition, assets
or operations of the Borrower, the Guarantors or their respective Subsidiaries.
(c) The common stock of the Borrower shall at all times be
listed for trading and be traded on the New York Stock Exchange.
Section 7.7. Insurance. The Borrower will, at its expense, procure and
maintain or cause to be procured and maintained insurance covering the Borrower,
the Guarantors, their respective Subsidiaries and their respective properties in
such amounts and against such risks and casualties as are customary for
properties of similar character and location, due regard being given to the type
of improvements thereon, their construction, location, use and occupancy.
Section 7.8. Taxes. The Borrower, the Guarantors and their respective
Subsidiaries will duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and upon the Real Estate,
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sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that if
unpaid might by law become a lien or charge upon any of its property; provided
that any such tax, assessment, charge, levy or claim need not be paid if the
validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if such Person shall have set aside on its books
adequate reserves with respect thereto; and provided, further, that forthwith
upon the commencement of proceedings to foreclose any lien that may have
attached as security therefor, such Person either (i) will provide a bond issued
by a surety reasonably acceptable to the Agent and sufficient to stay all such
proceedings or (ii) if no such bond is provided, will pay each such tax,
assessment, charge, levy or claim. The Borrower shall certify annually to the
Agent that this Section 7.8 has been satisfied with respect to the Unencumbered
Operating Properties.
Section 7.9. Inspection of Properties and Books. The Borrower shall
permit the Banks, through the Agent or any representative designated by the
Agent, at the Bank's expense to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, to examine the books of account of the
Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of the Borrower and
its Subsidiaries with, and to be advised as to the same by, its officers, all at
such reasonable times and intervals as the Agent or any Bank may reasonably
request; provided that if an Event of Default shall have occurred, Borrower
shall be responsible for the expense of such visits and inspections. The Banks
shall use good faith efforts to coordinate such visits and inspections so as to
minimize the interference with and disruption to the Borrower's normal business
operations.
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits.
The Borrower will comply with, and will cause the Guarantors and each of their
respective Subsidiaries to comply in all respects with (i) all applicable laws,
ordinances, regulations and requirements now or hereafter in effect wherever its
business is conducted, including all Environmental Laws, (ii) the provisions of
its corporate charter, partnership agreement or declaration of trust, as the
case may be, and other charter documents and bylaws, (iii) all mortgages,
indentures, contracts, agreements and instruments to which it is a party or by
which it or any of its properties may be bound, (iv) all applicable decrees,
orders, and judgments, and (v) all licenses and permits required by applicable
laws and regulations for the conduct of its business or the ownership, use or
operation of its properties. If at any time while any Loan or Note is
outstanding or the Banks have any obligation to make Loans hereunder, any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower may fulfill any of its obligations hereunder, the Borrower
will immediately take or cause to be taken all steps necessary to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Banks with evidence thereof.
Section 7.11. Use of Proceeds. The Borrower will use the proceeds of the
Loans solely to provide short-term financing (a) subject to the limitations in
Section 8.3 and Section 9.6, for the acquisition by the Borrower of fee
interests in Real Estate which is utilized principally for Retail Uses,
undeveloped or non-income producing land which is zoned for Retail Uses, or
Opportunity
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Properties (including reasonable transaction costs related thereto), (b) for the
development by the Borrower of properties as permitted by Section 8.9, (c) for
working capital purposes of the Borrower (including without limitation the
payment of Distributions and Preferred Distributions), and (d) for such other
purposes of the Borrower as the Majority Banks in their discretion from time to
time may agree to in writing. Notwithstanding anything herein to the contrary,
the amount of Loans outstanding at any time which has been advanced for the
purpose described in Section 7.11(c) shall not exceed $50,000,000.00. Any
repayment of a principal portion of the Loans at a time when any amount of Loans
has been advanced for the purpose described in Section 7.11(c) shall be first
allocated for the purposes of this Section 7.11 to reduce the amount advanced
for the purpose described in Section 7.11(c).
Section 7.12. Further Assurances. The Borrower will cooperate with, and
will cause each of the Guarantors and their respective Subsidiaries to cooperate
with the Agent and the Banks and execute such further instruments and documents
as the Banks or the Agent shall reasonably request to carry out to their
satisfaction the transactions contemplated by this Agreement and the other Loan
Documents.
Section 7.13. Management; Business Operations. The Borrower shall cause
all Unencumbered Operating Properties at all times to be managed by the Borrower
and no change shall occur in such management without the prior written approval
of the Majority Banks. The Borrower, the Guarantors and their respective
Subsidiaries shall operate their respective businesses as described in the
Prospectus and in compliance with the terms and conditions of this Agreement and
the Loan Documents. The Borrower shall at all time comply with all requirements
of applicable laws necessary to maintain REIT Status on a self-directed and
self-maintained basis.
Section 7.14. Unencumbered Operating Properties.
(a) The Borrower shall (subject to the caveat set forth in
the definition of Unencumbered Operating Properties) at all times own
Unencumbered Operating Properties which satisfy all of the following conditions:
(i) the Unencumbered Operating Properties shall
consist solely of Real Estate which has an aggregate occupancy level of
tenants in possession and operating and which are no more that thirty
(30) days in default (on a portfolio basis) of at least eighty-five
percent (85%) for the previous fiscal quarter of the Borrower based on
bona fide arms-length tenant leases requiring current rental payments;
and
(ii) no more than twenty-five percent (25%) of the
Asset Value of the Unencumbered Operating Properties may be located in
any one metropolitan statistical area.
(b) In the event that all or any material portion of a
property within the Unencumbered Operating Properties shall be damaged or taken
by condemnation, then such
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property shall no longer be a part of the Unencumbered Operating Properties
unless and until any damage to such Real Estate is repaired or restored, such
Real Estate becomes fully operational and the Agent shall receive evidence
satisfactory to the Agent of the value and Operating Cash Flow of such Real
Estate following such repair or restoration.
Section 7.15. Limiting Agreements.
(a) Neither Borrower, any Guarantor nor any of their
respective Subsidiaries shall enter into, any agreement, instrument or
transaction which has or may have the effect of prohibiting or limiting
Borrower's or any Guarantor's ability to pledge to Agent the Unencumbered
Operating Properties which are owned by the Borrower or such Guarantor as
security for the Loans; provided that such Persons may enter into an agreement
which has the effect of limiting Borrower's or Guarantor's ability to pledge the
Unencumbered Operating Properties solely as a result of the operation of a
financial covenant which is no more restrictive against such Persons than those
financial covenants contained in the Loan Documents. Borrower shall take, and
shall cause the Guarantors and their respective Subsidiaries to take, such
actions as are necessary to preserve the right and ability of Borrower and the
Guarantors to pledge the Unencumbered Operating Properties as security for the
Loans without any such pledge after the date hereof causing or permitting the
acceleration (after the giving of notice or the passage of time, or otherwise)
of any other Indebtedness of Borrower, the Guarantors or any of their respective
Subsidiaries.
(b) Borrower shall, upon demand, provide to the Agent such
evidence as the Agent may reasonably require to evidence compliance with this
Section 7.15, which evidence shall include, without limitation, copies of any
agreements or instruments which would in any way restrict or limit the
Borrower's or any Guarantor's ability to pledge assets as security for
Indebtedness, or which provide for the occurrence of a default (after the giving
of notice or the passage of time, or otherwise) if assets are pledged in the
future as security for Indebtedness of the Borrower or any of its Subsidiaries.
Section 7.16. Distributions of Income to the Borrower. The Borrower
shall cause all of its Subsidiaries to promptly distribute to the Borrower (but
not less frequently than once each fiscal quarter of the Borrower, unless
otherwise approved by the Agent), whether in the form of dividends,
distributions or otherwise, all profits, proceeds or other income relating to or
arising from its Subsidiaries' use, operation, financing, refinancing, sale or
other disposition of their respective assets and properties after (a) the
payment by each Subsidiary of its Debt Service and operating expenses for such
quarter and (b) the establishment of reasonable reserves for the payment of
operating expenses not paid on at least a quarterly basis and capital
improvements to be made to such Subsidiary's assets and properties approved by
such Subsidiary in the ordinary course of business consistent with its past
practices.
Section 7.17. More Restrictive Agreements. Without limiting the terms of
Section 8.1, should the Borrower or any Guarantor enter into or modify any
agreements or documents pertaining to any existing or future Indebtedness, Debt
Offering or Equity Offering, which agreements or documents include covenants
(whether affirmative or negative), warranties, representations,
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defaults or events of default (or any other provision which may have the same
practical effect as any of the foregoing) which are individually or in the
aggregate more restrictive against the Borrower, any Guarantor or their
respective Subsidiaries than those set forth herein or in any of the other Loan
Documents, the Borrower shall promptly notify the Agent and, if requested by
Majority Banks, the Borrower, the Agent and the Majority Banks shall (and, if
applicable, the Borrower shall cause the Guarantors to) promptly amend this
Agreement and the other Loan Documents to include some or all or such more
restrictive provisions as determined by the Majority Banks in their sole
discretion.
Section 7.18. Additional Guarantors. In the event that any Subsidiary of
the Borrower that is not a Guarantor owns Real Estate which would otherwise
qualify as an Unencumbered Operating Property and the Borrower desires for the
same to become an Unencumbered Operating Property, then such property may become
an Unencumbered Operating Property but only in the event that all of the terms
and conditions of this Section 7.18 are satisfied:
(a) The Borrower (i) shall be and shall remain the general
partner, managing member, controlling shareholder or similar controlling entity
of such Subsidiary (each such entity is hereinafter referred to as an
"Additional Guarantor"), (ii) shall own and shall continue to own a controlling
interest of the legal, beneficial and voting interests of such Additional
Guarantor and (iii) shall have control over all major (including the decision to
sell or encumber such Person's assets) and other day-to-day decisions with
respect to the operation of such Additional Guarantor;
(b) The organizational agreements of such Subsidiary or such
other resolutions or consents satisfactory to Agent shall specifically authorize
the Borrower to guaranty on behalf of such Subsidiary the Obligations and to
pledge the assets of such Subsidiary as security for the Obligations and the
Borrower shall certify to the Agent that applicable law does not preclude such
Subsidiary from executing such guaranty or pledging its assets to secure the
Obligations;
(c) All representations in the Loan Documents made by or
with respect to Borrower or Guarantors and their Subsidiaries in the Loan
Documents shall be true and correct with respect to such Additional Guarantor;
(d) All covenants and agreements herein of the Borrower and
the Guarantors and their Subsidiaries shall be true and correct with respect to
such Additional Guarantor;
(e) No Default or Event of Default shall exist or might
exist in the event that such Subsidiary becomes an Additional Guarantor or
acquires such assets;
(f) Such Additional Guarantor executes and delivers to Agent
a Guaranty;
(g) All of the conditions set forth in Section 10 applicable
to Guarantors or Loan Documents executed by Guarantors shall have been
satisfied; and
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(h) The Real Estate assets acquired or owned by such
Additional Guarantor shall qualify as Unencumbered Operating Properties
hereunder, and such assets, when taken together with the other Real Estate
assets owned by the Guarantors, shall not cause the Borrower to be in violation
of the sixty percent (60%) limitation on the ownership of Unencumbered Operating
Properties by entities other than the Borrower.
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any of the Banks has any obligation to make any Loans:
Section 8.1. Restrictions on Indebtedness. The Borrower will not, and
will not permit any of its Subsidiaries to, create, incur, assume, guarantee or
be or remain liable, contingently or otherwise, with respect to any Indebtedness
other than:
(a) Indebtedness to the Banks arising under any of the Loan
Documents;
(b) current liabilities of the Borrower and its Subsidiaries
incurred in the ordinary course of business but not incurred through (i) the
borrowing of money, or (ii) the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection with
normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and supplies to
the extent that payment therefor shall not at the time be required to be made in
accordance with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the Borrower shall
at the time in good faith be prosecuting an appeal or proceedings for review and
in respect of which a stay of execution shall have been obtained pending such
appeal or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary course
of business;
(f) Indebtedness in respect of reverse repurchase agreements
having a term of not more than 180 days with respect to Investments described in
Section 8.3(d) or (e);
(g) subject to the provisions of Section 9, secured
Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding
principal amount not exceeding forty percent (40%) of the Borrower's
Consolidated Total Assets;
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(h) subject to the provisions of Section 9, secured or
unsecured recourse Indebtedness (including letters of credit issued by the
Borrower or its Subsidiaries) of the Borrower and its Subsidiaries (excluding
Construction Loan Guaranties, but only for so long as such obligations remain
contingent or no event has occurred which would result in the Borrower or its
Subsidiary having liability thereunder), provided that (i) the aggregate
outstanding principal amount of such Indebtedness (excluding the Obligations)
shall not exceed fifty percent (50%) of the Borrower's Consolidated Total
Assets, and (ii) with respect to any Indebtedness of the Borrower and its
Subsidiaries of the type described in clauses (a) and (b) of the definition of
"Indebtedness" (other than existing Indebtedness of the Borrower and its
Subsidiaries described on Schedule 8.1(h) hereto) (A) at the time such
Indebtedness is issued the scheduled maturity date of such Indebtedness is not
sooner than 180 days after the Maturity Date (after giving effect to any
extension of the Maturity Date which may have been requested by the Borrower
prior to the issuance of such Indebtedness or approved by the Banks, whether or
not the same has become effective), and (B) any covenants (whether affirmative
or negative), restrictions or defaults or events of default imposed upon the
Borrower or its Subsidiaries in connection with such Indebtedness shall not
individually or in the aggregate be more restrictive against the Borrower than
the covenants (whether affirmative or negative), restrictions or defaults or
events of default imposed pursuant to this Agreement or the other Loan
Documents, and provided further that neither the Borrower nor any of its
Subsidiaries shall incur any of the Indebtedness described in this Section
8.1(h) unless it shall have provided to the Banks (1) prior written notice of
the proposed issuance of such Indebtedness, a statement that no Default or Event
of Default exists and a certificate that the Borrower will be in compliance with
its covenants referred to therein after giving effect to such incurrence, (2)
evidence reasonably satisfactory to the Agent that the Rating Agencies have been
advised of the issuance of such Indebtedness within five (5) days of such
issuance, and (3) upon the request of Agent, evidence that the annual rating
maintenance fee has been paid to the Rating Agencies; and
(i) Indebtedness of the Borrower and its Subsidiaries in
respect of Construction Loan Guaranties in an aggregate amount not exceeding ten
percent (10%) of Borrower's Consolidated Total Assets.
Section 8.2. Restrictions on Liens, Etc. The Borrower will not, and will
not permit its Subsidiaries to, (a) create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, negative pledge,
charge, restriction or other security interest of any kind upon any of its
property or assets of any character whether now owned or hereafter acquired, or
upon the income or profits therefrom; (b) transfer any of its property or assets
or the income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (c) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (d) suffer to exist
for a period of more than 30 days after the same shall have been incurred any
Indebtedness or claim or demand against it that if unpaid might by law or upon
bankruptcy or insolvency, or otherwise, be given any priority whatsoever over
its general
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creditors, subject to Borrower's rights pursuant to Section 7.8; (e) assign,
pledge or encumber any accounts, contract rights, general intangibles, chattel
paper or instruments, with or without recourse; or (f) incur or maintain any
obligation to any holder of Indebtedness of the Borrower or such Subsidiary
which prohibits the creation or maintenance of any lien securing the Obligations
(collectively "Liens"); provided that the Borrower and any Subsidiary of the
Borrower may create or incur or suffer to be created or incurred or to exist:
(i) liens on properties to secure taxes, assessments
and other governmental charges or claims for labor, material or supplies
in respect of obligations not overdue;
(ii) liens on properties in respect of judgments,
awards or indebtedness, the Indebtedness with respect to which is
permitted by Section 8.1(d) or Section 8.1(g);
(iii) encumbrances on properties consisting of
easements, rights of way, zoning restrictions, restrictions on the use
of real property, landlord's or lessor's liens under leases to which the
Borrower or any Subsidiary of the Borrower is a party, and other minor
non-monetary liens or encumbrances none of which interferes materially
with the use of the property affected in the ordinary conduct of the
business of the Borrower or its Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse effect on the
business of the Borrower individually or of the Borrower and its
Subsidiaries on a consolidated basis;
(iv) liens on Real Estate and Short-term Investments
securing Indebtedness permitted by Section 8.1(g) or Section 8.1(h); and
(v) liens in favor of the Agent and the Banks as
security for the Obligations.
Section 8.3. Restrictions on Investments. The Borrower will not, and
will not permit its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the
United States of America that mature within one (1) year from the date of
purchase by the Borrower or its Subsidiary;
(b) marketable direct obligations of any of the following:
Federal Home Loan Mortgage Corporation, Student Loan Marketing Association,
Federal Home Loan Banks, Federal National Mortgage Association, Government
National Mortgage Association, Bank for Cooperatives, Federal Intermediate
Credit Banks, Federal Financing Banks, Export-Import Bank of the United States,
Federal Land Banks, or any other agency or instrumentality of the United States
of America;
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(c) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $100,000,000; provided, however, that the aggregate amount at any time
so invested with any single bank having total assets of less than $1,000,000,000
will not exceed $2,500,000;
(d) securities commonly known as "commercial paper" issued
by a corporation organized and existing under the laws of the United States of
America or any State which at the time of purchase are rated by Moody's
Investors Service, Inc. or by Standard & Poor's Corporation at not less than "P
1" if then rated by Moody's Investors Service, Inc., and not less than "A 1", if
then rated by Standard & Poor's Corporation;
(e) mortgage-backed securities guaranteed by the Government
National Mortgage Association, the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation and other mortgage-backed bonds which at
the time of purchase are rated by Moody's Investors Service, Inc. or by Standard
& Poor's Corporation at not less than "Aa" if then rated by Moody's Investors
Service, Inc. and not less than "AA" if then rated by Standard & Poor's
Corporation;
(f) repurchase agreements having a term not greater than 90
days and fully secured by securities described in the foregoing subsection (a),
(b) or (e) with banks described in the foregoing subsection (c) or with
financial institutions or other corporations having total assets in excess of
$500,000,000;
(g) shares of so-called "money market funds" registered with
the SEC under the Investment Company Act of 1940 which maintain a level
per-share value, invest principally in investments described in the foregoing
subsections (a) through (f) and have total assets in excess of $50,000,000;
(h) Subject to the provisions of Section 9.6 hereof,
investments in fee interests in Real Estate utilized principally for Retail Uses
including earnest money deposits relating thereto and transaction costs;
(i) Investments in Affiliates of the Borrower the accounts
of which are not consolidated with the accounts of Borrower or other entities
the accounts of which are not consolidated with the accounts of Borrower and
Investments in mortgages and notes receivables (including notes receivable from
Subsidiaries and Affiliates), provided that in no event shall such Investments
(including the principal amount payable pursuant to such notes) exceed twenty
percent (20%) of the Borrower's Consolidated Total Assets. Investments described
in Section 8.3(i) shall not be included for the purpose of the foregoing limit.
For the purposes hereof, notes receivable from Subsidiaries and Affiliates shall
be valued at face value subject to impairment;
(j) Investments in mortgages and notes receivables from
Subsidiaries that are wholly-owned by the Borrower;
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(k) Investments in Subsidiaries of the Borrower;
(l) Subject to the provisions of Section 9.6 hereof,
investments in undeveloped or non-income producing land and Opportunity
Properties;
(m) Investments in any common or preferred stock issued by
the Borrower which has been repurchased by the Borrower or any of its
Subsidiaries, provided that in no event shall such Investments exceed two
percent (2%) of the market capitalization of the Borrower; and
(n) Any other Investment deemed appropriate by the Borrower,
provided that in no event shall such Investments exceed $5,000,000.00.
Section 8.4. Merger, Consolidation. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger, consolidation
or other business combination, or agree to effect any asset acquisition, stock
acquisition (except as otherwise provided herein) or other acquisition without
the prior written consent of the Majority Banks, which consent shall not be
unreasonably withheld, except (i) the merger or consolidation of one or more of
the Subsidiaries of the Borrower with and into the Borrower and (ii) the merger
or consolidation of two or more Subsidiaries of the Borrower.
Section 8.5. Sale and Leaseback. The Borrower will not, and will not
permit its Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby the Borrower or any Subsidiary thereof shall sell or transfer any Real
Estate owned by it in order that then or thereafter such Person shall lease back
such Real Estate; provided that the foregoing limitation shall not apply with
respect to the administrative office of the Borrower.
Section 8.6. Compliance with Environmental Laws. The Borrower will not,
and will not permit the Guarantors or any of their respective Subsidiaries to,
do any of the following: (a) use any of the Real Estate or any portion thereof
as a facility for the handling, processing, storage or disposal of Hazardous
Substances, except for Hazardous Substances used in the ordinary course of
business in the operation of properties for Retail Uses and in compliance with
all applicable Environmental Laws, (b) cause or permit to be located on any of
the Real Estate any underground tank or other underground storage receptacle for
Hazardous Substances except in full compliance with Environmental Laws, (c)
generate any Hazardous Substances on any of the Real Estate except in full
compliance with Environmental Laws, (d) conduct any activity at any Real Estate
or use any Real Estate in any manner so as to cause a Release of Hazardous
Substances on, upon or into the Real Estate or any surrounding properties or any
threatened Release of Hazardous Substances which might give rise to liability
under CERCLA or any other Environmental Law, or (e) directly or indirectly
transport or arrange for the transport of any Hazardous Substances (except in
compliance with all Environmental Laws).
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The Borrower shall:
(i) in the event of any change in Environmental Laws
governing the assessment, release or removal of Hazardous Substances,
which change would lead a prudent lender to require additional testing
to avail itself of any statutory insurance or limited liability, take
all action (including, without limitation, the conducting of engineering
tests at the sole expense of the Borrower) to confirm that no Hazardous
Substances are or ever were Released or disposed of on the Real Estate;
and
(ii) if any Release or disposal of Hazardous
Substances shall occur or shall have occurred on the Real Estate of the
Borrower, the Guarantors or any of their respective Subsidiaries
(including without limitation any such Release or disposal occurring
prior to the acquisition of such Real Estate by such Person) cause the
prompt containment and removal of such Hazardous Substances and
remediation of such Real Estate in full compliance with all applicable
laws and regulations; provided, that the Borrower shall be deemed to be
in compliance with Environmental Laws for the purpose of this clause
(ii) so long as it or a responsible third party with sufficient
financial resources is taking reasonable action to remediate or manage
any event of noncompliance to the satisfaction of the Majority Banks and
no action shall have been commenced by any enforcement agency. The
Majority Banks may engage their own environmental engineer to review the
environmental assessments and the Borrower's compliance with the
covenants contained herein.
At any time after an Event of Default shall have occurred hereunder, or,
whether or not an Event of Default shall have occurred, at any time that the
Agent or the Majority Banks shall have reasonable grounds to believe that a
Release or threatened Release of Hazardous Substances may have occurred,
relating to any Real Estate, or that any of the Real Estate is not in compliance
with the Environmental Laws, the Agent may at its election (and will at the
request of the Majority Banks) obtain such environmental assessments of such
Real Estate prepared by an environmental engineer as may be necessary or
advisable for the purpose of evaluating or confirming (i) whether any Hazardous
Substances are present in the soil or water at or adjacent to such Real Estate
and (ii) whether the use and operation of such Real Estate comply with all
Environmental Laws. Environmental assessments may include detailed visual
inspections of such Real Estate including, without limitation, any and all
storage areas, storage tanks, drains, dry wells and leaching areas, and the
taking of soil samples, as well as such other investigations or analyses as are
necessary or appropriate for a complete determination of the compliance of such
Real Estate and the use and operation thereof with all applicable Environmental
Laws. All such environmental assessments shall be at the sole cost and expense
of the Borrower.
Section 8.7. Distributions. The Borrower shall not make any
Distributions which would cause it to violate any of the following covenants:
(a) The Borrower shall not pay any Distribution to the
shareholders of the Borrower if such Distribution is in excess of the amount
which, when added to the amount of all
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other Distributions paid in the same fiscal quarter and the preceding three (3)
fiscal quarters, would exceed ninety percent (90%) of its Funds from Operations
for the four consecutive fiscal quarters ending prior to the quarter in which
such Distribution is paid or such greater amount as the Majority Banks may
approve as a result of gains on the sale of assets of the Borrower; and
(b) In the event that an Event of Default shall have
occurred and be continuing, the Borrower shall make no Distributions other than
Distribution in an amount equal to the lesser of (i) the aggregate amount
permitted pursuant to Section 8.7 (a) for such period, and (ii) the minimum
Distributions required under the Code to maintain the REIT Status of the
Borrower, as evidenced by a certification of the principal financial or
accounting officer of the Borrower containing calculations in reasonable detail
satisfactory in form and substance to Agent; provided, however, the Majority
Banks may in their sole discretion permit the Borrower to make the Distributions
described in Section 8.7(b)(ii) in the event that such Distributions are greater
than the Distributions described in Section 8.7(b)(i).
Section 8.8. Asset Sales. Neither the Borrower nor any Subsidiary
thereof shall sell, transfer or otherwise dispose of any Real Estate or any of
the Unencumbered Operating Properties in excess of $25,000,000.00 (except as the
result of a condemnation or casualty and except for the granting of Permitted
Liens, as applicable) unless there shall have been delivered to the Banks a
statement that no Default or Event of Default exists or will exist and a
certification that the Borrower will be in compliance with its covenants
referred to therein after giving effect to such sale, transfer or other
disposition.
Section 8.9. Development Activity. Neither the Borrower nor any
Subsidiary thereof shall engage, directly or indirectly, in the development of
Real Estate or otherwise except for the development of Real Estate to be used
principally for Retail Uses, provided that the aggregate cost of acquisition and
development of such properties Under Development (assuming the full cost of
developing such property) at any time shall not exceed twenty percent (20%) of
the Borrower's Consolidated Total Assets. For the purpose of this Section 8.9
only, Consolidated Total Assets shall be determined by subtracting the costs
incurred to date of any project Under Development and adding thereto the
estimated full cost of developing such project. For purposes of this Section
8.9, the term "development" shall include new construction or the substantial
renovation of improvements to real property, but shall not include the addition
of amenities or other related facilities to existing Real Estate which is
already used principally for Retail Uses. Without limiting the foregoing, the
Borrower acknowledges that for the purposes of this Agreement, except for any
rights pursuant to option agreements that do not obligate the Borrower or any
Subsidiary to act pursuant thereto or pursuant to other agreements that limit
the recourse of the other party thereto upon a default or breach by Borrower or
any Subsidiary thereunder to a reasonable earnest money deposit as liquidated
damages, (a) any interest by the Borrower or any Subsidiary in a property which
is proposed to be developed, or any interest therein pursuant to which the
Borrower or any Subsidiary has the right to approve site plans or other plans
and specifications or pursuant to which such parties' obligations are
conditioned upon the achievement of certain leasing levels, (b) any agreement by
the Borrower or any Subsidiary
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which obligates such party to contribute or otherwise advance funds in
connection with or upon completion of the development of a property, or (c) any
acquisition of a property which is proposed to be developed or which is under
development and lease-up at the time such agreement is entered into, shall be
considered a "development" for the purposes of this Section 8.9. Notwithstanding
the foregoing, but except as otherwise approved by the Agent, neither the
Borrower, any Guarantor nor any Subsidiary of Borrower shall commence any
development unless at least seventy percent (70%) of the gross leasable area of
said project, including all anchors, is subject to a fully executed lease
pursuant to which such tenants are unconditionally committed to take occupancy
upon completion of such construction. Nothing herein shall prohibit the Borrower
or any Subsidiary thereof from entering into an agreement to acquire Real Estate
which has been developed and initially leased by another Person.
Section 8.10. Sources of Capital. The Borrower shall, at all times that
the Borrower or any of its Subsidiaries is engaging in any development as
provided in Section 8.9 or has entered into any agreement to provide funds with
respect to a development, maintain or have identified available sources of
capital equal to the total cost to acquire and complete such developments and to
satisfy such funding obligations, which sources of capital shall be acceptable
to the Agent in its reasonable discretion. Amounts available to be disbursed for
such purposes pursuant to this Agreement may be considered as a source of
capital for the purposes of this Section 8.10.
Section 8.11. Restriction on Prepayment of Indebtedness. Neither
Borrower nor any of its Subsidiaries shall prepay, redeem or purchase the
principal amount, in whole or in part, of any Indebtedness other than the
Obligations after the occurrence of any Event of Default; provided, however,
that this Section 8.11 shall not prohibit the prepayment of Indebtedness which
is financed solely from the proceeds of a new loan which would otherwise be
permitted by the terms of Section 8.1.
Section 8.12. Interest in Guarantors. The Borrower will not, directly or
indirectly, make or permit to be made, by voluntary or involuntary means, any
sale, assignment, transfer, disposition, mortgage, pledge, hypothecation or
encumbrance of its interest in any Guarantor or any dilution of its interest in
any Guarantor.
Section 9. FINANCIAL COVENANTS OF THE BORROWER.
Section 9.1. Borrowing Base Covenant of the Borrower. The Borrower
covenants and agrees that, so long as any Loan or Note is outstanding or any
Bank has any obligation to make any Loans, the Borrower will not permit the
outstanding principal balance of the Loans as of the date of determination to be
greater than the Borrowing Base as determined as of the same date.
Section 9.2. Liabilities to Assets Ratio. The Borrower will not permit
the ratio of the Consolidated Total Liabilities of the Borrower and its
Subsidiaries to the Consolidated Total Assets of the Borrower and its
Subsidiaries to exceed 0.50 to 1.
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Section 9.3. Interest Coverage. The Borrower will not permit the sum
equal to (a) the Consolidated Operating Cash Flow of the Borrower and its
Subsidiaries for any period of four consecutive fiscal quarters (treated as a
single accounting period) (the "Test Period") minus (b) the Capital Improvement
Reserve for all Real Estate of the Borrower and its Subsidiaries for the Test
Period to be less than two (2) times the interest expense (including capitalized
interest) of the Borrower and its Subsidiaries for the Test Period. In the event
that the Borrower and its Subsidiaries shall not have any of the foregoing
components for four (4) consecutive fiscal quarters, then such components shall
be annualized in such manner as the Majority Banks shall reasonably determine.
Section 9.4. Fixed Charge Coverage. The Borrower will not permit the
ratio of the Consolidated Operating Cash Flow of the Borrower and its
Subsidiaries for the Test Period to be less than 1.75 times the sum of (a) the
Debt Service of the Borrower and its Subsidiaries plus (b) the aggregate Capital
Improvement Reserve for all of the Real Estate of the Borrower and its
Subsidiaries for the Test Period. In the event that the Borrower and its
Subsidiaries shall not have any of the foregoing components for four (4)
consecutive fiscal quarters, then such components shall be annualized in such
manner as the Majority Banks shall reasonably determine.
Section 9.5. Shareholders' Equity. The Borrower will not permit the
Shareholders' Equity to be less than the sum of (a) $350,000,000.00 plus (b)
ninety percent (90%) of the net proceeds from any Equity Offering of the
Borrower made after the Closing Date.
Section 9.6. Real Estate Assets. The Borrower shall not permit its
direct or indirect interest in (a) undeveloped or non-income producing land
purchased for speculative purposes (whether through fee simple ownership,
Subsidiaries, Affiliates, partnership, limited liability company or joint
venture interests, mortgages or otherwise), determined based on undepreciated
cost, to exceed five percent (5%) of the Borrowers' Consolidated Total Assets
unless otherwise approved by the Agent (provided that such land shall be zoned
for Retail Uses and all necessary infrastructure (including roadways and
utilities necessary for the use and enjoyment of such property when developed)
shall be available at the boundaries of the property), and (b) Opportunity
Properties, determined based on undepreciated cost, to exceed fifteen percent
(15%) of the Borrower's Consolidated Total Assets.
Section 10. CLOSING CONDITIONS.
The obligations of the Agent and the Banks to make the initial Loans
shall be subject to the satisfaction of the following conditions precedent on or
prior to June 12, 1997:
Section 10.1. Loan Documents. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to the Majority
Banks. The Agent shall have received a fully
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executed copy of each such document, except that each Bank shall have received a
fully executed counterpart of its Note.
Section 10.2. Certified Copies of Organizational Documents. The Agent
shall have received from the Borrower a copy, certified as of a recent date by
the appropriate officer of each State in which the Borrower and the Guarantors,
as applicable, is organized or in which the Unencumbered Operating Properties
are located and by a duly authorized officer of such Person to be true and
complete, of (a) the corporate charter of the Borrower and the Guarantors, as
applicable, or (b) its qualification to do business, as applicable, as in effect
on such date of certification.
Section 10.3. Bylaws; Resolutions. All action on the part of the
Borrower and the Guarantors, as applicable, necessary for the valid execution,
delivery and performance by such Person of this Agreement and the other Loan
Documents to which such Person is or is to become a party shall have been duly
and effectively taken, and evidence thereof satisfactory to the Agent shall have
been provided to the Agent. The Agent shall have received from the Borrower and
the Guarantors true copies of their respective bylaws and the resolutions
adopted by their respective boards of directors authorizing the transactions
described herein, each certified by its secretary as of a recent date to be true
and complete.
Section 10.4. Incumbency Certificate; Authorized Signers. The Agent
shall have received from the Borrower and the Guarantors an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized partner
or officer of such Person and giving the name and bearing a specimen signature
of each individual who shall be authorized to sign, in the name and on behalf of
such Person, each of the Loan Documents to which such Person is or is to become
a party. The Agent shall have also received from the Borrower a certificate,
dated as of the Closing Date, signed by a duly authorized officer of the
Borrower and giving the name of and specimen signature of each individual who
shall be authorized to make Loan and Conversion Requests and to give notices and
to take other action on behalf of the Borrower under the Loan Documents.
Section 10.5. Opinion of Counsel. The Agent shall have received a
favorable opinion addressed to the Banks and the Agent and dated as of the
Closing Date, in form and substance satisfactory to the Agent, from counsel of
the Borrower and the Guarantors, as to such matters as the Agent shall
reasonably request.
Section 10.6. Payment of Fees. The Borrower shall have paid to the Agent
the fees required to be paid as of the Closing Date pursuant to Section 4.2.
Section 10.7. Performance; No Default. The Borrower shall have performed
and complied with all terms and conditions herein required to be performed or
complied with by it on or prior to the Closing Date, and on the Closing Date
there shall exist no Default or Event of Default.
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Section 10.8. Representations and Warranties. The representations and
warranties made by the Borrower and the Guarantors in the Loan Documents or
otherwise made by or on behalf of the Borrower, the Guarantors or any
Subsidiaries thereof in connection therewith or after the date thereof shall
have been true and correct in all material respects when made and shall also be
true and correct in all material respects on the Closing Date.
Section 10.9. Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory to the Agent and the Agent's Special
Counsel in form and substance, and the Agent shall have received all information
and such counterpart originals or certified copies of such documents and such
other certificates, opinions or documents as the Agent and the Agent's Special
Counsel may reasonably require.
Section 10.10. Compliance Certificate. A Compliance Certificate dated as
of the date of the Closing Date demonstrating compliance with each of the
covenants calculated therein as of the most recent fiscal quarter end for which
the Borrower has provided financial statements under Section 6.4 adjusted in the
best good faith estimate of the Borrower dated as of the date of the Closing
Date shall have been delivered to the Agent.
Section 10.11. Other. The Agent shall have reviewed such other
documents, instruments, certificates, opinions, assurances, consents and
approvals as the Agent or the Agent's Special Counsel may reasonably have
requested.
Section 11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, whether on or after the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
Section 11.1. Prior Conditions Satisfied. All conditions set forth in
Section 10 shall continue to be satisfied as of the date upon which any Loan is
to be made.
Section 11.2. Representations True; No Default. Each of the
representations and warranties made by or on behalf of the Borrower or the
Guarantors contained in this Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were made and shall also
be true at and as of the time of the making of such Loan, with the same effect
as if made at and as of that time (except to the extent of changes resulting
from transactions contemplated or permitted by this Agreement and the other Loan
Documents and changes occurring in the ordinary course of business that singly
or in the aggregate are not materially adverse, and except to the extent that
such representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
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Section 11.3. No Legal Impediment. There shall be no law or regulations
thereunder or interpretations thereof that in the reasonable opinion of any Bank
would make it illegal for such Bank to make such Loan.
Section 11.4. Governmental Regulation. Each Bank shall have received
such statements in substance and form reasonably satisfactory to such Bank as
such Bank shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
Section 11.5. Proceedings and Documents. All proceedings in connection
with the Loan shall be satisfactory in substance and in form to the Agent, and
the Agent shall have received all information and such counterpart originals or
certified or other copies of such documents as the Agent may reasonably request.
Section 11.6. Borrowing Documents. In the case of any request for a
Loan, the Agent shall have received a copy of the request for a Loan required by
Section 2.6 in the form of Exhibit C hereto, fully completed.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 12.1. Events of Default and Acceleration. If any of the
following events ("Events of Default" or, if the giving of notice or the lapse
of time or both is required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Loans when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the Loans
or any other sums due hereunder or under any of the other Loan Documents, when
the same shall become due and payable, whether at the stated date of maturity or
any accelerated date of maturity or at any other date fixed for payment, and
such failure is not cured within five (5) days following receipt of written
notice of such default, provided, however, that no such cure period shall apply
to any payments due upon the maturity of the Notes;
(c) the Borrower shall fail to comply with any covenant
contained in Section 7.4(e), Section 7.14 or Section 7.15;
(d) the Borrower shall fail to comply with any covenant
contained in Section 9, and such failure shall continue for thirty (30) days
after written notice thereof shall have been given to the Borrower by the Agent;
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(e) any of the Borrower, the Guarantors or any of their
respective Subsidiaries shall fail to perform any other term, covenant or
agreement contained herein or in any of the other Loan Documents (other than
those specified above in this Section 12), and such failure is not cured within
thirty (30) days following receipt of written notice of such default, provided,
that the provisions of this Section 12.1(e) shall not pertain to any default
excluded from any provision of cure of defaults contained in any other of the
Loan Documents.
(f) any representation or warranty made by or on behalf of
the Borrower, the Guarantors or any of their respective Subsidiaries in this
Agreement or any other Loan Document, or in any report, certificate, financial
statement, request for a Loan, or in any other document or instrument delivered
pursuant to or in connection with this Agreement, any advance of a Loan or any
of the other Loan Documents shall prove to have been false or misleading in any
respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrower, the Guarantors or any of their
respective Subsidiaries shall fail to pay at maturity, or within any applicable
period of grace, any recourse obligation for borrowed money or credit received
or other Indebtedness, or fail to observe or perform any material term, covenant
or agreement contained in any agreement by which it is bound, evidencing or
securing any such borrowed money or credit received or other Indebtedness for
such period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof;
(h) any of the Borrower, the Guarantors or any of their
respective Subsidiaries, (i) shall make an assignment for the benefit of
creditors, or admit in writing its general inability to pay or generally fail to
pay its debts as they mature or become due, or shall petition or apply for the
appointment of a trustee or other custodian, liquidator or receiver of any such
Person or of any substantial part of the assets of any thereof, (ii) shall
commence any case or other proceeding relating to any such Person under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter
in effect, or (iii) shall take any action to authorize or in furtherance of any
of the foregoing;
(i) a petition or application shall be filed for the
appointment of a trustee or other custodian, liquidator or receiver of any of
the Borrower, the Guarantors or any of their respective Subsidiaries or any
substantial part of the assets of any thereof, or a case or other proceeding
shall be commenced against any such Person under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, and any such Person
shall indicate its approval thereof, consent thereto or acquiescence therein or
such petition, application, case or proceeding shall not have been dismissed
within 60 days following the filing or commencement thereof;
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(j) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating any of the Borrower,
the Guarantors or any of their respective Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or order
for relief is entered in respect of any such Person, in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than 60 days, whether or not consecutive, any uninsured
final judgment against any of the Borrower, the Guarantors or any of their
respective Subsidiaries that, with other outstanding uninsured final judgments,
undischarged, against such Persons exceeds in the aggregate $5,000,000.00;
(l) if any of the Loan Documents shall be canceled,
terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Banks, or any action at law, suit in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on behalf
of any of the Borrower, the Guarantors or any of their respective holders of
Voting Interests, or any court or any other governmental or regulatory authority
or agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;
(m) any dissolution, termination, partial or complete
liquidation, merger or consolidation of any of the Borrower, the Guarantors or
any sale, transfer or other disposition of the assets of any of the Borrower,
the Guarantors other than as permitted under the terms of this Agreement or the
other Loan Documents;
(n) any suit or proceeding shall be filed against any of the
Borrower, or the Guarantors or any of their respective assets which in the good
faith business judgment of the Majority Banks after giving consideration to the
likelihood of success of such suit or proceeding and the availability of
insurance to cover any judgment with respect thereto and based on the
information available to them, if adversely determined, would have a materially
adverse affect on the ability of the Borrower or a Guarantor to perform each and
every one of its obligations under and by virtue of the Loan Documents;
(o) any of the Borrower or the Guarantors shall be indicted
for a federal crime, a punishment for which could include the forfeiture of the
Borrower or the Guarantor;
(p) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could be
expected to result in liability of any of the Borrower, the Guarantors or any of
their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
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aggregate amount exceeding $1,000,000 and such event in the circumstances
occurring reasonably could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan; or a trustee shall have been appointed by the United States District Court
to administer such Plan; or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
(q) any of the Guarantors denies that such Guarantor has any
liability or obligation under the Guaranty, or shall notify the Agent or any of
the Banks of such Guarantor's intention to attempt to cancel or terminate the
Guaranty, or shall fail to observe or comply with any term, covenant, condition
or agreement under the Guaranty;
(r) Gary Sabin shall, in the aggregate, own directly or
indirectly less than two percent (2.0%) of the issued and outstanding shares of
the capital stock of the Borrower, except as such ownership may be diluted to a
percentage approved by Agent as a result of an Equity Offering of the Borrower;
(s) Gary Sabin shall cease to be the Chairman and Chief
Executive Officer of, or Richard B. Muir shall cease to be the Chief Operating
Officer of, the Borrower and a competent and experienced successor for such
Person shall not be approved by the Majority Banks within six (6) months of such
event, such approval not to be unreasonably withheld; or
(t) any Event of Default as defined in any of the other Loan
Documents, shall occur;
then, and in any such event, the Agent may, and upon the request of the Majority
Banks shall, by notice in writing to the Borrower declare all amounts owing with
respect to this Agreement, the Notes and the other Loan Documents to be, and
they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that in the event of any Event
of Default specified in Section 12.1(h), Section 12.1(i) or Section 12.1(j), all
such amounts shall become immediately due and payable automatically and without
any requirement of notice from any of the Banks or the Agent. The Borrower and
any other Person shall be entitled to conclusively rely on a statement from the
Agent that it has the authority to act for and bind the Banks pursuant to this
Agreement and the other Loan Documents.
Notwithstanding the provisions of subsections (d) and (e) of Section
12.1, the cure periods provided therein shall not be allowed and the occurrence
of a Default thereunder immediately shall constitute an Event of Default for all
purposes of this Agreement and the other Loan Documents if, within the period of
twelve months immediately preceding the occurrence of such Default, there shall
have occurred two periods of cure or portions thereof under any one or more than
one of said subsections.
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Section 12.2. Termination of Commitments. If any one or more Events of
Default specified in Section 12.1(h), Section 12.1(i) or Section 12.1(j) shall
occur, then immediately and without any action on the part of the Agent or any
Bank any unused portion of the credit hereunder shall terminate and the Banks
shall be relieved of all obligations to make Loans to the Borrower. If any other
Event of Default shall have occurred, the Agent, upon the election of the
Majority Banks, may by notice to the Borrower terminate the obligation to make
Loans to the Borrower. No termination under this Section 12.2 shall relieve the
Borrower of its obligations to the Banks arising under this Agreement or the
other Loan Documents.
Section 12.3. Remedies. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, the Agent on
behalf of the Banks, may, with the consent of the Majority Banks but not
otherwise, proceed to protect and enforce their rights and remedies under this
Agreement, the Notes or any of the other Loan Documents by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations are
evidenced, including to the full extent permitted by applicable law the
obtaining of the ex parte appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right. No remedy herein conferred upon
the Agent or the holder of any Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law. In the event that all or any
portion of the Obligations is collected by or through an attorney-at-law, the
Borrower shall pay all costs of collection including, but not limited to,
reasonable attorney's fees not to exceed fifteen percent (15%) of such portion
of the Obligations.
Section 12.4. Distribution of Proceeds. In the event that, following the
occurrence or during the continuance of any Event of Default, any monies are
received in connection with the enforcement of any of the Loan Documents, or
otherwise with respect to the realization upon any of the assets of the Borrower
or any other Person liable with respect to the Obligations, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent in connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the rights,
remedies, powers and privileges of the Agent under this Agreement or any of the
other Loan Documents or in support of any provision of adequate indemnity to the
Agent against any taxes or liens which by law shall have, or may have, priority
over the rights of the Agent to such monies;
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(b) Second, to all other Obligations in such order or
preference as the Majority Banks shall determine; provided, however, that (i)
Swing Loans shall be repaid first, (ii) distributions in respect of such other
Obligations shall be made pari passu among Obligations with respect to the
Agent's fee payable pursuant to Section 4.3 and all other Obligations, (iii) in
the event that any Bank shall have wrongfully failed or refused to make an
advance under Section 2.7 and such failure or refusal shall be continuing,
advances made by other Banks during the pendency of such failure or refusal
shall be entitled to be repaid as to principal and accrued interest in priority
to the other Obligations described in this subsection (b), and (iv) Obligations
owing to the Banks with respect to each type of Obligation such as interest,
principal, fees and expenses (but excluding Swing Loans), shall be made among
the Banks pro rata; and provided, further that the Majority Banks may in their
discretion make proper allowance to take into account any Obligations not then
due and payable; and
(c) Third, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
Section 13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch of where
such deposits are held) or other sums credited by or due from any of the Banks
to the Borrower or the Guarantors and any securities or other property of the
Borrower or the Guarantors in the possession of such Bank may be applied to or
set off against the payment of Obligations of such Person and any and all other
liabilities, direct, or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, of such Person to such Bank. Each of the
Banks agrees with each other Bank that if such Bank shall receive from any of
the Borrower or the Guarantors, whether by voluntary payment, exercise of the
right of setoff, or otherwise, and shall retain and apply to the payment of the
Note or Notes held by such Bank (but excluding the Swing Loan Note) any amount
in excess of its ratable portion of the payments received by all of the Banks
with respect to the Notes held by all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with respect to such excess,
either by way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes held by
it its proportionate payment as contemplated by this Agreement; provided that if
all or any part of such excess payment is thereafter recovered from such Bank,
such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
Section 14. THE AGENT.
Section 14.1. Authorization. The Agent is authorized to take such action
on behalf of each of the Banks and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents delegated to
the Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed
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herein or therein shall be implied to have been assumed by the Agent. The
obligations of Agent hereunder are primarily administrative in nature, and
nothing contained in this Agreement or any of the other Loan Documents shall be
construed to constitute the Agent as a trustee for any Bank or to create an
agency or fiduciary relationship. The Borrower and any other Person shall be
entitled to conclusively rely on a statement from the Agent that it has the
authority to act for and bind the Banks pursuant to this Agreement and the other
Loan Documents.
Section 14.2. Employees and Agents. The Agent may exercise its powers
and execute its duties by or through employees or agents and shall be entitled
to take, and to rely on, advice of counsel concerning all matters pertaining to
its rights and duties under this Agreement and the other Loan Documents. The
Agent may utilize the services of such Persons as the Agent may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrower.
Section 14.3. No Liability. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent, or employee thereof, shall be liable to any
of the Banks for any waiver, consent or approval given or any action taken, or
omitted to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be responsible
for the consequences of any oversight or error of judgment whatsoever, except
that the Agent or such other Person, as the case may be, may be liable for
losses due to its willful misconduct or gross negligence.
Section 14.4. No Representations. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any of
the other Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower or the Guarantors or any of their respective Subsidiaries, or be
bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any other of the Loan
Documents. The Agent shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrower or the Guarantors or
any holder of any of the Notes shall have been duly authorized or is true,
accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the creditworthiness or financial
condition of the Borrower, the Guarantors or any of their respective
Subsidiaries, or the value of any assets of such Persons. Each Bank acknowledges
that it has, independently and without reliance upon the Agent or any other
Bank, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, based upon such information and
documents as it deems appropriate at the time, continue to make its own
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credit analysis and decisions in taking or not taking action under this
Agreement and the other Loan Documents.
Section 14.5. Payments.
(a) A payment by the Borrower or the Guarantors to the Agent
hereunder or under any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees to distribute to each
Bank not later than one Business Day after the Agent's receipt of good funds,
determined in accordance with the Agent's customary practices, such Bank's pro
rata share of payments received by the Agent for the account of the Banks except
as otherwise expressly provided herein or in any of the other Loan Documents.
(b) If in the opinion of the Agent the distribution of any
amount received by it in such capacity hereunder, under the Notes or under any
of the other Loan Documents might involve it in liability, it may refrain from
making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the Agent
is to be repaid, each Person to whom any such distribution shall have been made
shall either repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in
this Agreement or any of the other Loan Documents, any Bank that fails (i) to
make available to the Agent its pro rata share of any Loan or (ii) to comply
with the provisions of Section 13 with respect to making dispositions and
arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Banks, in each case as, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a "Delinquent Bank") and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A Delinquent Bank shall be deemed to
have assigned any and all payments due to it from the Borrower and the
Guarantors, whether on account of outstanding Loans, interest, fees or
otherwise, to the remaining nondelinquent Banks for application to, and
reduction of, their respective pro rata shares of all outstanding Loans. The
Delinquent Bank hereby authorizes the Agent to distribute such payments to the
nondelinquent Banks in proportion to their respective pro rata shares of all
outstanding Loans. A Delinquent Bank shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned payments to
all outstanding Loans of the nondelinquent Banks or as a result of other
payments by the Delinquent Banks to the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans have returned to those in
effect immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
Section 14.6. Holders of Notes. Subject to the terms of Article 18, the
Agent may deem and treat the payee of any Note as the absolute owner or
purchaser thereof for all purposes hereof
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until it shall have been furnished in writing with a different name by such
payee or by a subsequent holder, assignee or transferee.
Section 14.7. Indemnity. The Banks ratably agree hereby to indemnify and
hold harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by Section 15), and liabilities of every nature and character arising
out of or related to this Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
the Agent's actions taken hereunder or thereunder, except to the extent that any
of the same shall be directly caused by the Agent's willful misconduct or gross
negligence.
Section 14.8. Agent as Bank. In its individual capacity, BKB shall have
the same obligations and the same rights, powers and privileges in respect to
its Commitment and the Loans made by it, and as the holder of any of the Notes
as it would have were it not also the Agent.
Section 14.9. Resignation. The Agent may resign at any time by giving 60
days' prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint as a successor
Agent any Bank or any other bank whose senior debt obligations are rated not
less than "A" or its equivalent by Moody's Investors Service, Inc. or not less
than "A" or its equivalent by Standard & Poor's Corporation and which has a net
worth of not less than $500,000,000. Unless a Default or Event of Default shall
have occurred and be continuing, such successor Agent shall be reasonably
acceptable to the Borrower. If no successor Agent shall have been so appointed
by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent, which shall be any
Bank or a bank whose debt obligations are rated not less than "A" or its
equivalent by Moody's Investors Service, Inc. or not less than "A" or its
equivalent by Standard & Poor's Corporation and which has a net worth of not
less than $500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder as Agent. After any retiring Agent's resignation, the
provisions of this Agreement and the other Loan Documents shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Agent.
Section 14.10. Duties in the Case of Enforcement. In case one or more
Events of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent shall, if (a) so
requested by the Majority Banks and (b) the Banks have provided to the Agent
such additional indemnities and assurances against expenses and liabilities as
the Agent may reasonably request, proceed to exercise all or any legal and
equitable and other rights or remedies as it may have. The Majority Banks may
direct the Agent in writing as to the method and the extent of any such
exercise, the Banks hereby agreeing to indemnify and hold the
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Agent harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
Section 15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein, (b) any taxes (including any interest and
penalties in respect thereto) payable by the Agent or any of the Banks (other
than taxes based upon the Agent's or any Bank's gross or net income), including
any recording, mortgage, documentary or intangibles taxes in connection with the
Loan Documents, or other taxes payable on or with respect to the transactions
contemplated by this Agreement, including any such taxes payable by the Agent or
any of the Banks after the Closing Date (the Borrower hereby agreeing to
indemnify the Agent and each Bank with respect thereto), (c) all reasonable
internal charges of the Agent (determined in good faith and in accordance with
the Agent's internal policies applicable generally to its customers) for
commercial finance exams and engineering and environmental reviews and the
reasonable fees, expenses and disbursements of the counsel to the Agent incurred
in connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein (excluding, however, the
preparation of agreements evidencing participations granted under Section 18.4),
each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder, (d) the reasonable fees, expenses and disbursements
of the Agent incurred by the Agent in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, and the making of each advance hereunder, (e) all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent and the fees and costs of
appraisers, engineers, investment bankers or other experts retained by any Bank
or the Agent) incurred by any Bank or the Agent in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents against
the Borrower or the Guarantors or the administration thereof after the
occurrence of a Default or Event of Default and (ii) any litigation, proceeding
or dispute whether arising hereunder or otherwise, in any way related to the
Agent's or any of the Bank's relationship with the Borrower or the Guarantors,
(f) all reasonable actual fees, expenses and disbursements (including reasonable
attorney's fees and costs) incurred by BKB in connection with the syndication of
interests in the Loan by BKB, and (g) all reasonable fees, expenses and
disbursements of any Bank or the Agent incurred in connection with U.C.C.
searches, U.C.C. filings, title rundowns or title searches The covenants of this
Section 15 shall survive payment or satisfaction of payment of amounts owing
with respect to the Notes.
Section 16. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent and the
Banks and each director, officer, employee, agent and Person who controls the
Agent or any Bank from and
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against any and all claims, actions and suits, whether groundless or otherwise,
and from and against any and all liabilities, losses, damages and expenses of
every nature and character arising out of or relating to this Agreement or any
of the other Loan Documents or the transactions contemplated hereby and thereby
including, without limitation, (a) any brokerage, leasing, finders or similar
fees, (b) any condition of the Real Estate, (c) any actual or proposed use by
the Borrower of the proceeds of any of the Loans, (d) any actual or alleged
infringement of any patent, copyright, trademark, service mark or similar right
of the Borrower, the Guarantors or any of their respective Subsidiaries, (e) the
Borrower and the Guarantors entering into or performing this Agreement or any of
the other Loan Documents, (f) any actual or alleged violation of any law,
ordinance, code, order, rule, regulation, approval, consent, permit or license
relating to the Real Estate, or (g) with respect to the Borrower, the Guarantors
and their respective Subsidiaries and their respective properties and assets,
the violation of any Environmental Law, the Release or threatened Release of any
Hazardous Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding;
provided, however, that the Borrower shall not be obligated under this Section
16 to indemnify any Person for liabilities arising from such Person's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction after the exhaustion of all applicable appeal periods. The Agent or
a Bank, as applicable, shall promptly notify the Borrower after the Agent or
such Bank obtains actual knowledge of the claim to be indemnified pursuant to
this Section 16; provided, that any failure or delay in providing such notice
shall not relieve the Borrower of its obligations under this Section 16 except
to the extent that the Borrower is actually prejudiced thereby. In litigation,
or the preparation therefor, the Banks and the Agent shall be entitled to select
a single law firm as their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of the Borrower
under this Section 16 are unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The provisions of this
Section 16 shall survive the repayment of the Loans and the termination of the
obligations of the Banks hereunder.
Section 17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower, the Guarantors or any of their
respective Subsidiaries pursuant hereto or thereto shall be deemed to have been
relied upon by the Banks and the Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Banks of any of the Loans, as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Agreement or the Notes or
any of the other Loan Documents remains outstanding or any Bank has any
obligation to make any Loans. The indemnification
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obligations of the Borrower provided herein and the other Loan Documents shall
survive the full repayment of amounts due and the termination of the obligations
of the Banks hereunder and thereunder to the extent provided herein and therein.
All statements contained in any certificate or other paper delivered to any Bank
or the Agent at any time by or on behalf of the Borrower, the Guarantors or any
of their respective Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by such Person hereunder.
Section 18. ASSIGNMENT AND PARTICIPATION.
Section 18.1. Conditions to Assignment by Banks. Except as provided
herein, each Bank may assign to one or more banks or other entities all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment Percentage and Commitment and the same
portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent shall have given its prior written consent to such
assignment, which consent shall not be unreasonably withheld or delayed
(provided that such consent shall not be required for any assignment to another
Bank, to a bank which is under common control with the assigning Bank or to a
wholly-owned Subsidiary of such Bank provided that such assignee shall remain a
wholly-owned Subsidiary of such Bank), (b) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Agreement, (c) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as hereinafter
defined), a notice of such assignment, together with any Notes subject to such
assignment, (d) in no event shall any voting, consent or approval rights of a
Bank be assigned to any Person controlling, controlled by or under common
control with, or which is not otherwise free from influence or control by, the
Borrower, or the Guarantors, which rights shall instead be allocated pro rata
among the other remaining Banks, (e) such assignee shall have a net worth as of
the date of such assignment of not less than $500,000,000, and (f) such assignee
shall acquire an interest in the Loans of not less than $10,000,000. Upon such
execution, delivery, acceptance and recording, of such notice of assignment, (i)
the assignee thereunder shall be a party hereto and all other Loan Documents
executed by the Banks and, to the extent provided in such assignment, have the
rights and obligations of a Bank hereunder, (ii) the assigning Bank shall, to
the extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in Section 18.2, be released from its obligations
under this Agreement, and (iii) the Agent may unilaterally amend Schedule 1 to
reflect such assignment. In connection with each assignment, the assignee shall
represent and warrant to the Agent, the assignor and each other Bank as to
whether such assignee is controlling, controlled by, under common control with
or is not otherwise free from influence or control by, the Borrower and the
Guarantors.
Section 18.2. Register. The Agent shall maintain a copy of each
assignment delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentages of, and principal amount of the Loans owing to the Banks from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Banks may treat each Person
whose name is
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recorded in the Register as a Bank hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower and the Banks at
any reasonable time and from time to time upon reasonable prior notice. Upon
each such recordation, the assigning Bank agrees to pay to the Agent a
registration fee in the sum of $2,000.
Section 18.3. New Notes. Upon its receipt of an assignment executed by
the parties to such assignment, together with each Note subject to such
assignment, the Agent shall (a) record the information contained therein in the
Register, and (b) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five Business Days after receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for each surrendered Note, a new Note to the order of such
assignee in an amount equal to the amount assumed by such assignee pursuant to
such assignment and, if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Bank in an
amount equal to the amount retained by it hereunder, and shall cause the
Guarantors to deliver to the Agent an acknowledgment in form and substance
satisfactory to the Agent to the effect that the Guaranty extends to and is
applicable to each new Note. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such assignment and shall otherwise be in
substantially the form of the assigned Notes. The surrendered Notes shall be
canceled and returned to the Borrower.
Section 18.4. Participations. Each Bank may sell participations to one
or more banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
any such sale or participation shall not affect the rights and duties of the
selling Bank hereunder to the Borrower, (b) such sale and participation shall
not entitle such participant to any rights or privileges under this Agreement or
the Loan Documents (including, without limitation, the right to approve waivers,
amendments or modifications), (c) such participant shall have no direct rights
against the Borrower or the Guarantors except the rights granted to the Banks
pursuant to Section 13, (d) such sale is effected in accordance with all
applicable laws, and (e) such participant shall not be a Person controlling,
controlled by or under common control with, or which is not otherwise free from
influence or control by, the Borrower or the Guarantors. Any Bank which sells a
participation shall promptly notify the Agent of such sale and the identity of
the purchaser of such interest.
Section 18.5. Pledge by Bank. Any Bank may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or any
portion of its Note) to any of the twelve Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
the enforcement thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents.
Section 18.6. No Assignment by Borrower. The Borrower shall not assign
or transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks.
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Section 18.7. Disclosure. The Borrower agrees that in addition to
disclosures made in accordance with standard banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
Section 19. NOTICES.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Agreement (hereinafter in this Section 19 referred to as
"Notice"), but specifically excluding to the maximum extent permitted by law any
notices of the institution or commencement of foreclosure proceedings, must be
in writing and shall be deemed to have been properly given or served by personal
delivery or by sending same by overnight courier or by depositing same in the
United States Mail, postpaid and registered or certified, return receipt
requested, or as expressly permitted herein, by telegraph, telecopy, telefax or
telex, and addressed as follows:
If to the Agent or any Bank, at the address set forth on the signature
page for the Agent or such Bank; and
If to the Borrower:
Excel Realty Trust, Inc.
16955 Via Del Campo
Suite 110
San Diego, California 92127
Attn: Chief Financial Officer
Facsimile: 619/485-8530
and to each other Bank which may hereafter become a party to this Agreement at
such address as may be designated by such Bank. Each Notice shall be effective
upon being personally delivered or upon being sent by overnight courier or upon
being deposited in the United States Mail as aforesaid. The time period in which
a response to such Notice must be given or any action taken with respect thereto
(if any), however, shall commence to run from the date of receipt if personally
delivered or sent by overnight courier, or if so deposited in the United States
Mail, the earlier of three (3) Business Days following such deposit or the date
of receipt as disclosed on the return receipt. Rejection or other refusal to
accept or the inability to deliver because of changed address for which no
notice was given shall be deemed to be receipt of the Notice sent. By giving at
least fifteen (15) days prior Notice thereof, the Borrower, a Bank or Agent
shall have the right from time to time and at any time during the term of this
Agreement to change their respective addresses and each shall have the right to
specify as its address any other address within the United States of America.
Section 20. RELATIONSHIP.
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The relationship between each Bank and the Borrower is solely that of a
lender and borrower, and nothing contained herein or in any of the other Loan
Documents shall in any manner be construed as making the parties hereto
partners, joint venturers or any other relationship other than lender and
borrower.
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN
SECTION 19. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
Section 22. HEADINGS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
Section 23. COUNTERPARTS.
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
Section 24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated, except as provided
in Section 27.
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Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE BORROWER, THE AGENT AND THE BANKS HEREBY WAIVES ITS RIGHT TO
A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE BORROWER
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION 25. BORROWER ACKNOWLEDGES THAT IT HAS
HAD AN OPPORTUNITY TO REVIEW THIS SECTION 25 WITH ITS LEGAL COUNSEL AND THAT
BORROWER AGREES TO THE FOREGOING AS ITS FREE, KNOWING AND VOLUNTARY ACT.
Section 26. DEALINGS WITH THE BORROWER.
The Banks and their affiliates may accept deposits from, extend credit
to and generally engage in any kind of banking, trust or other business with the
Borrower, the Guarantors, their respective Subsidiaries, or any of their
affiliates regardless of the capacity of the Bank hereunder.
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement may be given, and any term of
this Agreement or of any other instrument related hereto or mentioned herein may
be amended, and the performance or observance by the Borrower of any terms of
this Agreement or such other instrument or the continuance of any Default or
Event of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Majority Banks. Notwithstanding the foregoing, none of the following may
occur without the written consent of each Bank: a change in the rate of interest
on and the term of the Notes; a change in the amount of the Commitments of the
Banks; a forgiveness, reduction or waiver of the principal of any unpaid Loan or
any interest thereon or fee payable under the Loan
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Documents; a change in the amount of any fee payable to a Bank hereunder; the
postponement of any date fixed for any payment of principal of or interest on
the Loan; an extension of the Maturity Date; a change in the manner of
distribution of any payments to the Banks or the Agent; the release of the
Borrower or the Guarantors except as otherwise provided herein; an amendment of
the definition of Majority Banks or of any requirement for consent by all of the
Banks; any modification to require a Bank to fund a pro rata share of a request
for an advance of the Loan made by the Borrower other than based on its
Commitment Percentage; an amendment to this Section 27; an amendment of the
definition of Majority Banks; or an amendment of any provision of this Agreement
or the Loan Documents which requires the approval of all of the Banks or the
Majority Banks to require a lesser number of Banks to approve such action. The
amount of the Agent's fee payable for the Agent's account and the provisions of
Section 14 may not be amended without the written consent of the Agent. There
shall be no amendment, modification or waiver of any provision in the Loan
Documents with respect to Swing Loans without the consent of the Swing Loan
Bank. The Borrower agrees to enter into such modifications or amendments of this
Agreement or the other Loan Documents as reasonably may be requested by BKB in
connection with the syndication of the Loan, provided that no such amendment or
modification materially affects or increases any of the obligations of the
Borrower hereunder. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of dealing or
delay or omission on the part of the Agent or any Bank in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.
Section 28. SEVERABILITY.
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
Section 29. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant,
agreement and obligation of the Borrower under this Agreement and the other Loan
Documents.
Section 30. NO UNWRITTEN AGREEMENTS.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
a sealed instrument as of the date first set forth above.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Richard B. Muir
------------------------------------
Richard B. Muir,
Executive Vice President
[CORPORATE SEAL]
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BANKBOSTON, N.A.,
individually and as Agent
By: /s/ Jeffrey L. Warwick
------------------------------------
Jeffrey L. Warwick, Director
BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
With a copy to:
BankBoston, N.A.
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Daniel P. Stegemoeller
Facsimile: 770/390-8434
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WELLS FARGO BANK, N.A.
By: /s/ Jeffrey Reed
------------------------------------
Its: Senior Vice President
Wells Fargo Bank, N.A.
401 B Street, Suite 304
San Diego, CA 92101
Attn: Mr. Jeffrey Reed
Facsimile: 619/699-3105
Telephone: 619/699-3174
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84
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Beverly G. Cason /s/ John W. Sweeney
-----------------------------------------
Its: Vice President Assistant Vice President
Dresdner Bank AG New York and
Grand Cayman Branches
Suite 1700
333 South Grand Avenue
Los Angeles, CA 90071
Attn: Sidney Jordan
Facsimile: 213/630-5420
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U.S. BANK NATIONAL ASSOCIATION,
formerly known as and doing business as
First Bank National Association
By: /s/ Stephen P. Bailey
------------------------------------
Its: Vice President
U.S. Bank National Association,
formerly known as and doing business
as First Bank National Association
601 Second Avenue South
Minneapolis, MN 55402-4302
Attn: Jonathan Banyard
Facsimile: 612/973-1721
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Michael A. Parisi
------------------------------------
Its: Corporate Banking Officer
The First National Bank of Chicago
One First National Plaza, Suite 0151
Chicago, Illinois 60670
Attn: Michael Parisi
Facsimile: 312/732-1117
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87
KEYBANK NATIONAL ASSOCIATION
By: /s/ Laird Fairchild
------------------------------------
Its: Vice President
KeyBank National Association
127 Public Square
Cleveland, OH 44114-1306
Attn: Laird Fairchild
Facsimile: 216/689-4997
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Paul Jamiolkowski
------------------------------------
Its: Real Estate Officer
PNC Bank, National Association
One PNC Plaza
249 5th Avenue
Pittsburgh, PA 15222
Attn: Paul Jamiolkowski
Facsimile: 412-768-3928
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EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$______________ As of March 31, 1998
FOR VALUE RECEIVED, the undersigned EXCEL REALTY TRUST, INC., a Maryland
corporation, hereby promises to pay to ______________________________ or order,
in accordance with the terms of that certain First Amended and Restated
Revolving Credit Agreement dated as of March 31, 1998 (the "Credit Agreement"),
as from time to time in effect, among the undersigned, BANKBOSTON, N.A., for
itself and as Agent, and such other Banks as may be from time to time named
therein, to the extent not sooner paid, on or before the Maturity Date the
principal sum of ________________________________________________________
DOLLARS ($______________), or such amount as may be advanced by the payee hereof
under the Credit Agreement (but excluding Swing Loans made pursuant to Sections
2.4A(a) through (c) of the Credit Agreement) with daily interest from the date
hereof, computed as provided in the Credit Agreement, on the principal amount
hereof from time to time unpaid, at a rate per annum on each portion of the
principal amount which shall at all times be equal to the rate of interest
applicable to such portion in accordance with the Credit Agreement, and with
interest on overdue principal and, to the extent permitted by applicable law, on
overdue installments of interest and late charges at the rates provided in the
Credit Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Credit Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, 100 Federal Street, Boston, Massachusetts 02110.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Credit Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the maturity date stated above and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Credit Agreement, and may
be prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the Borrower and the Banks and the Agent, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of acceleration of the maturity of any of the
Obligations or otherwise, shall the interest contracted for, charged or received
by the Banks exceed the maximum amount permissible under applicable law. If,
from any circumstance whatsoever, interest would otherwise be payable to the
Banks in excess of the maximum lawful amount, the interest payable to the Banks
shall be reduced to the maximum amount permitted under applicable law; and if
from any circumstance the Banks shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
90
principal balance of the Obligations and to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations,
such excess shall be refunded to the Borrower. All interest paid or agreed to be
paid to the Banks shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal of the Obligations (including the period of any
renewal or extension thereof) so that the interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law. This paragraph
shall control all agreements between the Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the laws
of the Commonwealth of Massachusetts (without giving effect to the conflict of
laws rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without notice.
IN WITNESS WHEREOF the undersigned has by its duly authorized officer
executed this Note under seal as of the day and year first above written.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By:______________________________
Name:_________________________
Title:________________________
[CORPORATE SEAL]
91
EXHIBIT B
FORM OF SWING LOAN NOTE
$______________ As of March 31, 1998
FOR VALUE RECEIVED, the undersigned EXCEL REALTY TRUST, INC., a Maryland
corporation, hereby promises to pay to ______________________________ or order,
in accordance with the terms of that certain First Amended and Restated
Revolving Credit Agreement dated as of March 31, 1998 (the "Credit Agreement"),
as from time to time in effect, among the undersigned, BANKBOSTON, N.A., for
itself and as Agent, and such other Banks as may be from time to time named
therein, to the extent not sooner paid, on or before the Maturity Date the
principal sum of _____________________________________________________________
DOLLARS ($______________), or such amount as may be advanced by the payee hereof
under the Credit Agreement as Swing Loans with daily interest from the date
hereof, computed as provided in the Credit Agreement, on the principal amount
hereof from time to time unpaid, at a rate per annum on each portion of the
principal amount which shall at all times be equal to the rate of interest
applicable to such portion in accordance with the Credit Agreement, and with
interest on overdue principal and, to the extent permitted by applicable law, on
overdue installments of interest and late charges at the rates provided in the
Credit Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Credit Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, 100 Federal Street, Boston, Massachusetts 02110.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Credit Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the maturity date stated above and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Credit Agreement, and may
be prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the Borrower and the Banks and the Agent, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of acceleration of the maturity of any of the
Obligations or otherwise, shall the interest contracted for, charged or received
by the Banks exceed the maximum amount permissible under applicable law. If,
from any circumstance whatsoever, interest would otherwise be payable to the
Banks in excess of the maximum lawful amount, the interest payable to the Banks
shall be reduced to the maximum amount permitted under applicable law; and if
from any circumstance the Banks shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
92
principal balance of the Obligations and to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations,
such excess shall be refunded to the Borrower. All interest paid or agreed to be
paid to the Banks shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal of the Obligations (including the period of any
renewal or extension thereof) so that the interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law. This paragraph
shall control all agreements between the Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts (without giving effect to the conflict
of laws rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without notice.
IN WITNESS WHEREOF the undersigned has by its duly authorized officer
executed this Note under seal as of the day and year first above written.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By:______________________________
Name:_________________________
Title:________________________
[CORPORATE SEAL]
93
EXHIBIT C
FORM OF REQUEST FOR LOAN
BankBoston, N.A., as Agent 115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Daniel Stegemoeller and Sandra Wheeler
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.6 of the First Amended and
Restated Revolving Credit Agreement dated as of March 31, 1998, as from time to
time in effect (the "Credit Agreement"), among Excel Realty Trust, Inc. (the
"Borrower"), BankBoston, N.A., for itself and as Agent and the other Banks from
time to time party thereto, the Borrower hereby requests and certifies as
follows:
1. Loan. The Borrower hereby requests a [Loan under Section 2.1]
[Swing Loan under Section 2.4A] of the Credit Agreement [strike inapplicable
language]:
Principal Amount: $
LIBOR or Base Rate:
Drawdown Date: , 19
Interest Period:
by credit to the general account of the Borrower with the Agent at the Agent's
Head Office.
[IF THE REQUESTED LOAN IS A SWING LOAN AND THE BORROWER DESIRES
FOR SUCH LOAN TO BE A LIBOR RATE LOAN FOLLOWING ITS CONVERSION AS PROVIDED IN
SECTION 2.4A(D), SPECIFY THE INTEREST PERIOD FOLLOWING
CONVERSION:____________________]
2. Use of Proceeds. Such Loan shall be used for the following
purposes permitted by Section 7.11 of the Credit Agreement:
[Describe]
3. No Default. The undersigned chief financial or chief accounting
officer of the Borrower certifies that the Borrower is and will be in compliance
with all covenants under the Loan Documents after giving effect to the making of
the Loan requested hereby.
94
4. Representations True. Each of the representations and warranties
made by or on behalf of the Borrower, the Guarantors and their respective
Subsidiaries contained in the Credit Agreement, in the other Loan Documents or
in any document or instrument delivered pursuant to or in connection with the
Credit Agreement was true as of the date as of which it was made and shall also
be true at and as of the Drawdown Date for the Loan requested hereby, with the
same effect as if made at and as of such Drawdown Date (except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
and except to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default has occurred
and is continuing.
5. Other Conditions. All other conditions to the making of the Loan
requested hereby set forth in Section 11 of the Credit Agreement have been
satisfied.
6. Drawdown Date. Except to the extent, if any, specified by notice
actually received by the Agent prior to the Drawdown Date specified above, the
foregoing representations and warranties shall be deemed to have been made by
the Borrower on and as of such Drawdown Date.
7. Definitions. Terms defined in the Credit Agreement are used
herein with the meanings so defined.
IN WITNESS WHEREOF, we have hereunto set our hands this _____ day of
_______________, 199___.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By:______________________________
Chief Financial or Chief Accounting
Officer
95
EXHIBIT D
FORM OF
COMPLIANCE CERTIFICATE
BankBoston, N.A.,
for itself and as Agent
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Daniel Stegemoeller and Sandra Wheeler
[INSERT NAMES AND ADDRESSES
OF OTHER BANKS]
Ladies and Gentlemen:
Reference is made to the First Amended and Restated Revolving Credit
Agreement dated as of March 31, 1998 (the "Credit Agreement") by and among Excel
Realty Trust, Inc. (the "Borrower"), BankBoston, N.A., for itself and as Agent,
and the other Banks from time to time party thereto. Terms defined in the Credit
Agreement and not otherwise defined herein are used herein as defined in the
Credit Agreement.
Pursuant to the Credit Agreement, the Borrower is furnishing to you
herewith (or have most recently furnished to you) the financial statements of
the Borrower and its respective Subsidiaries for the fiscal period ended
_______________ (the "Balance Sheet Date"). Such financial statements have been
prepared in accordance with generally accepted accounting principles and present
fairly the financial position of the Borrower and the Subsidiaries covered
thereby at the date thereof and the results of their operations for the periods
covered thereby, subject in the case of interim statements only to normal
year-end audit adjustments.
This certificate is submitted in compliance with requirements of Section
7.4(c), Section 7.5(d) and Section 10.10 of the Credit Agreement. If this
certificate is provided under a provision other than Section 7.4(c), the
calculations provided below are made using the financial statements of the
Borrower and its respective Subsidiaries as of the Balance Sheet Date adjusted
in the best good-faith estimate of the Borrower to give effect to the making of
a Loan, extension of the Maturity Date, acquisition or disposition of property
or other event that occasions the preparation of this certificate; and the
nature of such event and the Borrower's estimate of its effects are set forth in
reasonable detail in an attachment hereto. The undersigned officer is the chief
financial or chief accounting officer of the Borrower.
The undersigned officer has caused the provisions of the Credit
Agreement and the Guaranty to be reviewed and have no knowledge of any Default
or Event of Default. (Note: If the signer does have knowledge of any Default or
Event of Default, the form of certificate should be
96
revised to specify the Default or Event of Default, the nature thereof and the
actions taken, being taken or proposed to be taken by the Borrower with respect
thereto.) The Borrower is providing the information set forth in the schedule
attached hereto to demonstrate compliance as of the date hereof with the
covenants described therein.
IN WITNESS WHEREOF, the undersigned hereunto set its hand this ___ day
of ________________, 199__.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By:___________________________________________
Chief Financial or Chief Accounting Officer