================================================================================
CREDIT AGREEMENT
among
BRANDYWINE REALTY TRUST
and
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
as Borrowers
and
CERTAIN SUBSIDIARIES OF THE BORROWERS,
as Guarantors
and
THE LENDERS IDENTIFIED HEREIN
and
JPMORGAN CHASE BANK,
as Administrative Agent, Swing Lender and Issuing Lender
and
BANK OF AMERICA, N.A.
as Syndication Agent and Issuing Lender
and
CITICORP NORTH AMERICA, INC.,
WELLS FARGO BANK, NATIONAL ASSOCIATION, and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents
DATED AS OF May 24, 2004
J.P. MORGAN SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers and Joint Bookrunners
================================================================================
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.........................................................1
1.1. Definitions...........................................................................1
1.2. Computation of Time Periods and Other Definition Provisions...........................22
1.3. Accounting Terms......................................................................22
1.4. Joint Venture Investments.............................................................23
SECTION 2. CREDIT FACILITY..........................................................................23
2.1. Revolving Loans.......................................................................23
2.2. Competitive Bid Option................................................................28
2.3. Letter of Credit Subfacility..........................................................32
2.4. Joint and Several Liability of the Borrowers..........................................37
2.5. Appointment of BOP....................................................................39
2.6. Non-Recourse..........................................................................39
2.7. Increase of Revolving Committed Amount................................................39
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT.............................40
3.1. Interest..............................................................................40
3.2. Place and Manner of Payments..........................................................41
3.3. Prepayments...........................................................................41
3.4. Fees..................................................................................42
3.5. Payment in full at Maturity; Extension of Maturity....................................43
3.6. Computations of Interest and Fees.....................................................44
3.7. Pro Rata Treatment....................................................................45
3.8. Sharing of Payments...................................................................45
3.9. Capital Adequacy......................................................................46
3.10. Inability To Determine Interest Rate.................................................47
3.11. Illegality...........................................................................47
3.12. Requirements of Law..................................................................47
3.13. Taxes................................................................................48
3.14. Compensation.........................................................................50
3.15. Mitigation; Mandatory Assignment.....................................................51
SECTION 4. GUARANTY.................................................................................52
4.1. Guaranty of Payment...................................................................52
4.2. Obligations Unconditional.............................................................52
4.3. Modifications.........................................................................53
4.4. Waiver of Rights......................................................................53
4.5. Reinstatement.........................................................................53
4.6. Remedies..............................................................................54
4.7. Limitation of Guaranty................................................................54
4.8. Rights of Contribution................................................................54
SECTION 5. CONDITIONS PRECEDENT.....................................................................54
5.1. Closing Conditions....................................................................54
5.2. Conditions to All Extensions of Credit................................................57
-2-
SECTION 6. REPRESENTATIONS AND WARRANTIES...........................................................58
6.1. Financial Condition...................................................................58
6.2. No Material Change....................................................................59
6.3. Organization and Good Standing........................................................59
6.4. Due Authorization.....................................................................59
6.5. No Conflicts..........................................................................59
6.6. Consents..............................................................................59
6.7. Enforceable Obligations...............................................................60
6.8. No Default............................................................................60
6.9. Ownership.............................................................................60
6.10. Indebtedness..........................................................................60
6.11. Litigation............................................................................60
6.12. Taxes.................................................................................60
6.13. Compliance with Law...................................................................60
6.14. Compliance with ERISA.................................................................61
6.15. Organization Structure/Subsidiaries...................................................62
6.16. Use of Proceeds; Margin Stock.........................................................62
6.17. Government Regulation.................................................................62
6.18. Environmental Matters.................................................................62
6.19. Solvency..............................................................................63
6.20. Investments...........................................................................64
6.21. Location of Properties................................................................64
6.22. Disclosure............................................................................64
6.23. Licenses, etc.........................................................................64
6.24. No Burdensome Restrictions............................................................64
6.25. Excluded Material Subsidiaries........................................................64
SECTION 7. AFFIRMATIVE COVENANTS....................................................................65
7.1. Information Covenants.................................................................65
7.2. Financial Covenants...................................................................69
7.3. Preservation of Existence.............................................................69
7.4. Books and Records.....................................................................69
7.5. Compliance with Law...................................................................70
7.6. Payment of Taxes and Other Indebtedness...............................................70
7.7. Insurance.............................................................................70
7.8. Maintenance of Assets.................................................................70
7.9. Performance of Obligations............................................................70
7.10. Use of Proceeds.......................................................................70
7.11. Audits/Inspections....................................................................71
7.12. Additional Credit Parties.............................................................71
7.13. Interest Rate Protection Agreements...................................................71
7.14. Construction..........................................................................71
7.15. Acquisitions and Sales................................................................71
-3-
SECTION 8. NEGATIVE COVENANTS.......................................................................72
8.1. Indebtedness..........................................................................72
8.2. Liens.................................................................................72
8.3. Nature of Business....................................................................72
8.4. Consolidation and Merger..............................................................72
8.5. Sale or Lease of Assets...............................................................73
8.6. Advances, Investments and Loans.......................................................73
8.7. Restricted Payments...................................................................73
8.8. Transactions with Affiliates..........................................................73
8.9. Fiscal Year; Organizational Documents.................................................74
8.10. Limitations..........................................................................74
8.11. Other Negative Pledges...............................................................74
SECTION 9. EVENTS OF DEFAULT........................................................................74
9.1. Events of Default.....................................................................74
9.2. Acceleration; Remedies................................................................77
9.3. Allocation of Payments After Event of Default.........................................77
SECTION 10. AGENCY PROVISIONS.......................................................................78
10.1. Appointment...........................................................................78
10.2. Delegation of Duties..................................................................79
10.3. Exculpatory Provisions................................................................79
10.4. Reliance on Communications............................................................79
10.5. Notice of Default.....................................................................80
10.6. Non-Reliance on Administrative Agent and Other Lenders................................80
10.7. Indemnification.......................................................................81
10.8. Administrative Agent in Its Individual Capacity.......................................81
10.9. Successor Agent.......................................................................81
SECTION 11. MISCELLANEOUS...........................................................................82
11.1. Notices..............................................................................82
11.2. Right of Set-Off.....................................................................82
11.3. Benefit of Agreement.................................................................83
11.4. No Waiver; Remedies Cumulative.......................................................86
11.5. Payment of Expenses; Indemnification.................................................86
11.6. Amendments, Waivers and Consents.....................................................87
11.7. Counterparts/Telecopy................................................................88
11.8. Headings.............................................................................88
11.9. Defaulting Lender....................................................................88
11.10. Survival of Indemnification and Representations and Warranties.......................88
11.11. Governing Law; Jurisdiction..........................................................89
11.12. Waiver of Jury Trial.................................................................89
11.13. Time.................................................................................89
11.14. Severability.........................................................................89
11.15. Entirety.............................................................................90
11.16. Binding Effect.......................................................................90
11.17. Confidentiality......................................................................90
11.18. Further Assurances...................................................................91
11.19. Release of Guarantors................................................................91
11.20. USA PATRIOT Act......................................................................91
-4-
SCHEDULES
Schedule EG Eligible Ground Leases
Schedule 1.1(a) Revolving Loan Commitment Percentages
Schedule 2.3(c) Existing Letters of Credit
Schedule 6.15 Organization Structure/Subsidiaries
Schedule 6.21 Properties
Schedule 6.25 Excluded Material Subsidiaries
Schedule 8.2 Existing Liens
Schedule 8.6 Excluded Investments
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(c) Form of Notice of Borrowing
Exhibit 2.1(f) Form of Notice of Continuation/Conversion
Exhibit 2.1(h) Form of Revolving Note
Exhibit 2.2(b) Form of Competitive Bid Quote Request
Exhibit 2.2(c) Form of Invitation for Competitive Bid Quotes
Exhibit 2.2(d)(ii) Form of Competitive Bid Quote
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment Agreement
Exhibit 11.3(e)-1 Form of Designation Agreement
Exhibit 11.3(e)-2 Form of Designated Bank Note
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (as amended, supplemented or otherwise modified
from time to time, this "CREDIT AGREEMENT") is entered into as of May 24, 2004
among BRANDYWINE REALTY TRUST ("BRT"), a Maryland real estate investment trust
and BRANDYWINE OPERATING PARTNERSHIP, L.P. ("BOP"), a Delaware limited
partnership (collectively, the "BORROWERS"), certain Subsidiaries of the
Borrowers, as Guarantors, the Lenders (as defined herein) and JPMORGAN CHASE
BANK, as Administrative Agent for the Lenders, Swing Lender and Issuing Lender.
RECITALS
WHEREAS, the Borrowers desire that the Lenders provide (i) a revolving
credit facility in an initial aggregate amount of up to $450 million with the
option to increase the aggregate amount to $600 million, (ii) swing loans and
(iii) competitive bid borrowings;
WHEREAS, the Guarantors have agreed to unconditionally guarantee all
the obligations of the Borrowers hereunder; and
WHEREAS, the Lenders party hereto have agreed to make the requested
revolving credit facility available to the Borrowers on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1. DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"ADJUSTED BASE RATE" means the Base Rate plus .25% per annum.
"ADJUSTED EURODOLLAR RATE" means the Eurodollar Rate plus the
Applicable Percentage.
"ADJUSTED NOI" means NOI less (a) an annual sum of $.50 per square foot
for all Properties and (b) all interest income of the Combined Parties for the
applicable period.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank or any successor
administrative agent appointed pursuant to Section 10.9.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation,
partnership, limited liability company or real estate investment trust if such
Person possesses, directly or indirectly, the power (i) to vote 10% or more of
the securities having ordinary voting power for the election of directors of
such corporation or real estate investment trust or to vote 10% or more of the
partnership or membership interests of such partnership or limited liability
company or (ii) to direct or cause direction of the management and policies of
such corporation, trust, limited liability company or partnership, whether
through the ownership of voting securities, as managing member or general
partner, by contract or otherwise.
-2-
"AGENCY SERVICES ADDRESS" means 1111 Fannin, 10th Floor, Houston, TX
77002 Attn: Loan and Agency, or such other address as may be identified by
written notice from the Administrative Agent to the Borrowers.
"AGENT-RELATED PERSONS" means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in the
case of JPMorgan Chase Bank in its capacity as Administrative Agent, J.P. Morgan
Securities Inc.), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"ANNUALIZED MODIFIED ADJUSTED NOI" means an amount equal to (a)
Adjusted NOI for the prior fiscal quarter for all Properties owned during such
entire fiscal quarter multiplied times four plus (b) Adjusted NOI for the number
of days owned for all Properties acquired during such fiscal quarter multiplied
by a fraction equal to 365 divided by the number of days such Property was owned
by a Combined Party.
"APPLICABLE PERCENTAGE" means:
(a) if (i) BRT does not have at least two Unsecured Senior
Debt Ratings in effect and (ii) BOP does not have at least two
Unsecured Senior Debt Ratings in effect, the appropriate applicable
percentages corresponding to the Pricing Level in effect based upon the
Leverage Ratio as of the most recent Calculation Date as shown below:
--------------------- ---------------------------------------- --------------------------------
Pricing Level Leverage Applicable Percentage for
Ratio Eurodollar Loans
--------------------- ---------------------------------------- --------------------------------
I < .35 to 1.0 0.90%
--------------------- ---------------------------------------- --------------------------------
II > .35 to 1.0 but < .45 to 1.0 1.05%
--------------------- ---------------------------------------- --------------------------------
III > .45 to 1.0 but < .50 to 1.0 1.10%
--------------------- ---------------------------------------- --------------------------------
IV > .50 to 1.0 1.35%
--------------------- ---------------------------------------- --------------------------------
(b) if either (i) BRT has at least two Unsecured Senior Debt
Ratings in effect or (ii) BOP has at least two Unsecured Senior Debt
Ratings in effect, the appropriate applicable percentages corresponding
to the Pricing Level based upon the lowest Unsecured Senior Debt
Ratings of (A) BRT, if BRT has at least two Unsecured Senior Debt
Ratings in effect and BOP does not, (B) BOP, if BOP has at least two
Unsecured Senior Debt Ratings in effect and BRT does not or (C) if both
BRT and BOP have at least two Unsecured Senior Debt Ratings in effect,
the Borrower with the lowest Unsecured Senior Debt Rating, in each case
as of the most recent Calculation Date in the table below; provided
that if either or both of BOP or BRT has three Unsecured Senior Debt
Ratings in effect, the appropriate applicable percentages shall
correspond to the Pricing Level based on the lower Unsecured Senior
Debt Rating of the two highest Unsecured Senior Debt Ratings of the
applicable Borrower under clauses (A), (B) and (C) above:
-3-
--------------------- ---------------------------------------- -------------------------------
Pricing Level Unsecured Senior Debt Rating Applicable Percentage for
Eurodollar Loans
--------------------- ---------------------------------------- -------------------------------
I BBB+ or better from S&P, 0.65%
Baa1 or better from Moody's, or
BBB+ or better from Fitch
--------------------- ---------------------------------------- -------------------------------
II BBB from S&P or 0.65%
Baa2 from Moody's or
BBB from Fitch
--------------------- ---------------------------------------- -------------------------------
III BBB- from S&P 0.90%
Baa3 from Moody's or
BBB- from Fitch
--------------------- ---------------------------------------- -------------------------------
IV < BBB- from S&P 1.20%
< Baa3 from Moody's or
< BBB- from Fitch
--------------------- ---------------------------------------- -------------------------------
The Applicable Percentage for Revolving Loans shall be determined and
adjusted on the date (each a "CALCULATION DATE") (i) if the Applicable
Percentage is determined pursuant to clause (a) above, five Business Days after
the date on which the Borrowers provide the officer's certificate in accordance
with the provisions of Section 7.1(c); provided that if the Borrowers fail to
provide the officer's certificate required by Section 7.1(c) on or before the
date required by Section 7.1(c), the Applicable Percentage for Revolving Loans
from such date shall be based on Pricing Level III in clause (a) above until
such time that an appropriate officer's certificate is provided whereupon the
Pricing Level shall be determined by the then current Leverage Ratio or (ii) if
the Applicable Percentage is determined pursuant to clause (b) above, the date
BRT or BOP obtains an Unsecured Senior Debt Rating from at least two of S&P,
Moody's or Fitch or the date there is a change in any Unsecured Senior Debt
Rating of BRT or BOP that would cause a change in the Applicable Percentage
pursuant to clause (b) above, in each case promptly after the Administrative
Agent receives notice regarding such Unsecured Senior Debt Rating. Each
Applicable Percentage shall be effective from one Calculation Date until the
next Calculation Date. Any adjustment in the Applicable Percentage shall be
applicable both to new Revolving Loans made and to all existing Revolving Loans.
The Borrowers shall promptly deliver to the Administrative Agent, at
the address set forth on Schedule 11.1 and at the Agency Services Address,
information regarding any change in the Unsecured Senior Debt Rating or Leverage
Ratio that would change the existing Pricing Level for the Applicable Percentage
as set forth above.
"ARRANGERS" means J.P. Morgan Securities Inc. and Banc of America
Securities LLC collectively, in their capacity as joint lead arrangers and joint
bookrunners.
"BANKRUPTCY CODE" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BASE RATE" means, for any day, the rate per annum equal to the greater
of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1% or (b) the
Prime Rate in effect on such day. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate, respectively.
-4-
"BASE RATE LOAN" means a Loan bearing interest based on a rate
determined by reference to the Base Rate.
"BOP" means Brandywine Operating Partnership, L.P., a Delaware limited
partnership, together with any successors and permitted assigns.
"BORROWERS" means BRT and BOP and "BORROWER" means either one of them.
"BRT" means Brandywine Realty Trust, a Maryland real estate investment
trust, together with any successors and permitted assigns.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required by law
or other governmental action to close in New York, New York; provided that in
the case of Eurodollar Loans, such day is also a day on which dealings between
banks are carried on in Dollar deposits in the London interbank market.
"CALCULATION DATE" has the meaning set forth in the definition of
Applicable Percentage in this Section 1.1.
"CAPITAL EXPENDITURES" means all expenditures of the Borrowers and
their Subsidiaries which, in accordance with GAAP, would be classified as
capital expenditures, including, without limitation, Capital Leases.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on a
balance sheet of that Person.
"CAPITAL PERCENTAGE" means, with respect to the interest of a Credit
Party or one of its Subsidiaries in another Person, the percentage interest of
such Person based on the aggregate amount of net capital contributed by such
Credit Party or such Subsidiary in such Person at the time of determination
relative to all capital contributions made in such Person at such time of
determination.
"CAPITALIZATION RATE" means 9.25%.
"CASH EQUIVALENTS" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) Dollar denominated time and
demand deposits and certificates of deposit of (i) any Lender or any of its
Affiliates, (ii) any domestic commercial bank having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody's is at
least P-1 or the equivalent thereof (any such bank being an "Approved Bank"),
in each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or any variable rate notes
issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition,
-5-
(d) repurchase agreements with a bank or trust company (including any of the
Lenders) or securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which a Credit Party shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with GAAP
as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by financial
institutions having capital of at least $500,000,000 and the portfolios of which
are limited to investments of the character described in the foregoing
subdivisions (a) through (d).
"CHANGE OF CONTROL" means any of the following events:
(a) any "person" or "group" (within the meaning of Section 13(d) or
14(d) of the Exchange Act) has become, directly or indirectly, the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time or the occurrence of any
contingency), by way of merger, consolidation or otherwise, of 20% or more of
the voting power of BRT on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options and other
securities of BRT convertible into or exercisable for voting power of BRT
(whether or not such securities are then currently convertible or exercisable);
or
(b) during any period of up to twelve (12) consecutive months
commencing on or after the Closing Date, individuals who were trustees of BRT at
the beginning of such period (the "CONTINUING TRUSTEES"), plus any new trustees
whose election or appointment was approved by a majority of the Continuing
Trustees then in office, shall cease for any reason to constitute a majority of
the Board of Trustees of BRT; or
(c) BRT fails to directly own at least 75% of the aggregate ownership
interests in BOP (giving effect to any convertible interests with respect
thereto).
"CLOSING DATE" means the date hereof.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations issued
thereunder, in each case as in effect from time to time. References to sections
of the Code shall be construed also to refer to any successor sections.
"COMMITMENT" or "COMMITMENTS" means (a) with respect to each Lender,
the Revolving Loan Commitment Percentage of such Lender multiplied by the
Revolving Committed Amount and (b) with respect to the Issuing Lenders, the LOC
Commitment, individually or collectively, as applicable.
"COMMITTED LOANS" means Revolving Loans and Swing Loans.
"COMBINED PARTIES" means the Credit Parties and their Subsidiaries and
all joint ventures or partnerships to which a Credit Party or one of its
Subsidiaries is a party.
-6-
"COMPETITIVE BID LENDER" means, as to each Competitive Bid Loan, the
Lender funding such Competitive Bid Loan.
"COMPETITIVE BID LOAN" means a loan made or to be made by a Lender
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 3.10).
"COMPETITIVE BID MARGIN" has the meaning set forth in Section
2.2(d)(ii)(C).
"COMPETITIVE BID QUOTE" means an offer by a Lender to make a
Competitive Bid Loan in accordance with Section 2.2(d).
"COMPETITIVE BID QUOTE REQUEST" has the meaning set forth in Section
2.2(a).
"CONSTRUCTION-IN-PROCESS" means a Property on which construction of
improvements (excluding tenant improvements and excluding work prior to erection
of the structure of the building) has commenced and is proceeding to completion
in the ordinary course but has not yet been completed (as such completion shall
be evidenced by a temporary or permanent certificate of occupancy permitting use
of such Property by the general public). Any such Property shall be treated as
Construction-in-Process until the earlier of (i) 12 months from the date of
completion (as evidenced by a certificate of occupancy permitting use of such
Property by the general public) or (ii) such Property achieves an 85% occupancy
rate (determined on the basis of tenants paying rent).
"CONTINUING TRUSTEES" has the meaning set forth in the definition of
Change of Control.
"CREDIT DOCUMENTS" means this Credit Agreement, the Notes, any Notice
of Borrowing, any Competitive Bid Quote Request, any Notice of
Continuation/Conversion and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
"CREDIT EXPOSURE" has the meaning set forth in the definition of
Required Lenders in this Section 1.1.
"CREDIT PARTIES" means the Borrowers and the Guarantors and "CREDIT
PARTY" means any one of them.
"DEBT PAYMENTS" means, for any period, for the Combined Parties, the
sum of (a) Interest Expense for such period plus (b) all payments of principal
and any required prepayments on Funded Debt of the Combined Parties (other than
balloon payments) for such period, ending on the date of determination
(including the principal component of payments due on Capital Leases during the
applicable period ending on the date of determination).
"DEFAULT" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" means, at any time, any Lender that, (a) has failed
to make a Loan or purchase a Participation Interest required pursuant to the
terms of this Credit Agreement (but only for so long as such Loan is not made or
such Participation Interest is not purchased), (b) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender pursuant to the
terms of this Credit Agreement (but only for so long as such amount has not been
repaid) or (c) has been deemed insolvent or has become subject to a bankruptcy
or insolvency proceeding or to a receiver, trustee or similar official.
-7-
"DESIGNATED BANK" means a special purpose corporation that (i) shall
have become a party to this Credit Agreement pursuant to Section 11.3(e) and
(ii) is not otherwise a Lender.
"DESIGNATED BANK NOTES" means promissory notes of the Borrowers,
substantially in the form of Exhibit 11.3(e)-2 hereto, evidencing the obligation
of the Borrowers to repay Competitive Bid Loans made by Designated Banks, as the
same may be amended, supplemented, modified or restated from time to time, and
"Designated Bank Note" means any one of such promissory notes issued under
Section 11.3(e) hereof.
"DESIGNATING LENDER" shall have the meaning set forth in Section
11.3(e) hereof.
"DESIGNATION AGREEMENT" means a designation agreement in substantially
the form of Exhibit 11.3(e)-1 attached hereto, entered into by a Lender and a
Designated Bank and accepted by the Administrative Agent.
"DOLLARS" and "$" each means the lawful currency of the United States
of America.
"EFFECTIVE DATE" means the date, as specified by the Administrative
Agent, on which the conditions set forth in Section 5.1 shall have been
fulfilled (or waived in the sole discretion of the Lenders) and on which the
initial Loans shall have been made and/or the initial Letters of Credit shall
have been issued.
"ELIGIBLE ASSIGNEE" means (a) any Lender or any Affiliate of a Lender;
(b) a commercial bank having total assets in excess of $5,000,000,000; (c) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development; or (d) a finance company or other financial
institution reasonably acceptable to the Administrative Agent, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $500,000,000 or is otherwise acceptable to the
Administrative Agent. Neither a Borrower nor any Affiliate of the Borrowers
shall qualify as an Eligible Assignee.
"ELIGIBLE GROUND LEASE" means a ground lease that (a) has a minimum
remaining term of twenty-five (25) years, including tenant controlled options,
as of any date of determination, (b) has customary notice rights, default cure
rights, bankruptcy new lease rights and other customary provisions for the
benefit of a leasehold mortgagee or has equivalent protection for a leasehold
permanent mortgagee by a subordination to such leasehold permanent mortgagee of
the landlord's fee interest, and (c) is otherwise acceptable for non-recourse
leasehold mortgage financing under customary prudent lending requirements. The
Eligible Ground Leases as of the date of this Credit Agreement are listed on
SCHEDULE EG.
"ELIGIBLE LAND" means undeveloped land which is zoned for office or
industrial use and which is not subject to a building moratorium or other
restriction on construction.
"ENVIRONMENTAL CLAIM" means any investigation, written notice,
violation, written demand, written allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, proceeding, or written
claim whether administrative, judicial or private in nature arising (a) pursuant
to, or in connection with, an actual or alleged violation of any Environmental
Law, (b) in connection with any Hazardous Material, (c) from any assessment,
abatement, removal, remedial, corrective, or other response action in connection
with an Environmental Law or other order of a Governmental Authority or (d) from
any actual or alleged damage, injury, threat, or harm to health, safety, natural
resources, or the environment.
-8-
"ENVIRONMENTAL LAWS" means any current or future legal requirement of
any Governmental Authority pertaining to (a) the protection of health, safety,
and the indoor or outdoor environment, (b) the conservation, management, or use
of natural resources and wildlife, (c) the protection or use of surface water
and groundwater or (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure to, any
hazardous or toxic substance or material or (e) pollution (including any release
to land surface water and groundwater) and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. 9601 et seq., Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of
1984, 42 U.S.C. 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 U.S.C. 1251 et seq., Clean Air Act of 1966, as
amended, 42 U.S.C. 7401 et seq., Toxic Substances Control Act of 1976, 15 U.S.C.
2601 et seq., Hazardous Materials Transportation Act, 49 U.S.C. App. 1801 et
seq., Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et
seq., Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq., Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., National
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., Safe Drinking Water
Act of 1974, as amended, 42 U.S.C. 300(f) et seq., any analogous implementing or
successor law, and any amendment, rule, regulation, order, or directive issued
thereunder.
"EQUITY ISSUANCE" means any issuance by a Credit Party to any Person
(other than another Credit Party) of shares of its capital stock, preferred
stock, common or preferred shares of beneficial interest, partnership or
membership interests or other equity interests, including pursuant to the
exercise of options or warrants or pursuant to the conversion of any debt
securities to equity; provided that the definition of Equity Issuance as used
herein shall not include (a) issuances of equity to employees or trustees of a
Credit Party to the extent such issuances do not exceed $1,000,000 in any one
instance or $5,000,000, in the aggregate, during the term of this Credit
Agreement or (b) issuances of common stock or common or preferred shares of
beneficial interests the proceeds of which are used for the sole purpose of
conversion or redemption of convertible preferred stock or perpetual preferred
stock or preferred shares of beneficial interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA AFFILIATE" means an entity, whether or not incorporated, which
is under common control with a Borrower or any of its Subsidiaries within the
meaning of Section 4001(a)(14) of ERISA, or is a member of a group which
includes a Credit Party or any Subsidiary of a Credit Party and which is treated
as a single employer under subsections (b) or (c) of Section 414 of the Code.
"ERISA EVENT" means (i) with respect to any Plan, the occurrence of a
Reportable Event or the substantial cessation of operations (within the meaning
of Section 4062(e) of ERISA); (ii) the withdrawal of a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate from a Multiple Employer
Plan during a plan year in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (iii) the distribution of a notice of intent to terminate or the
-9-
actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA;
(iv) the institution of proceedings to terminate or the actual termination of a
Plan by the PBGC under Section 4042 of ERISA; (v) any event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan; (vi) the complete or
partial withdrawal of a Credit Party, any Subsidiary of a Credit Party or any
ERISA Affiliate from a Multiemployer Plan; (vii) the conditions for imposition
of a lien under Section 302(f) of ERISA exist with respect to any Plan; or
(viii) the adoption of an amendment to any Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA.
"EURODOLLAR LOAN" means a Revolving Loan bearing interest based on a
rate determined by reference to the Adjusted Eurodollar Rate.
"EURODOLLAR RATE" means, for the Interest Period for each Eurodollar
Loan or Competitive Bid Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate as determined
on the basis of the offered rates for deposits in Dollars, for the period of
time comparable to such Interest Period that appears on the Dow Jones Market
Service (formerly known as Telerate) page 3750 as of 11:00 a.m. London time on
the day that is two (2) Business Days preceding the first day of such Interest
Period; provided, however, if the rate described above does not appear on the
Dow Jones Market Service on any applicable interest determination date, the
Eurodollar Rate shall be the rate (rounded upwards to the nearest one-hundred
thousandth of one percent, if necessary) for deposits in Dollars for a period
substantially equal to the Interest Period on the Reuters Page "LIBO" (or such
other page as may replace the LIBO Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London Time), on the day that is two
(2) Business Days prior to the beginning of such Interest Period. If both the
Dow Jones Market Service and Reuters systems are unavailable, then the rate for
that date will be determined on the basis of the offered rates for deposits in
Dollars for a period of time comparable to such Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the day that is two (2) Business Days preceding the
first day of such Interest Period as selected by Administrative Agent. The
principal London office of each of the four major London banks will be requested
to provide a quotation of its U.S. dollar deposit offered rate. If at least two
such quotations are provided, the rate for that date will be the arithmetic mean
of the quotations. If fewer than two quotations are provided, the rate for that
date will be determined on the basis of the rates quoted for loans in Dollars to
leading European banks for a period of time comparable to such Interest Period
offered by major banks in New York City at approximately 11:00 a.m. (New York
City time), on the day that is two (2) Business Days preceding the first day of
such Interest Period. In the event that Administrative Agent is unable to obtain
any such quotation as provided above, it will be deemed that the Eurodollar Rate
for a Eurodollar Loan or a Competitive Bid Loan cannot be determined and the
provisions of Section 3.10 shall apply. In the event that the Board of Governors
of the Federal Reserve System shall impose a Eurodollar Reserve Percentage with
respect to Eurodollar deposits of the Person serving as the Administrative
Agent, then for any period during which such Eurodollar Reserve Percentage shall
apply, the Eurodollar Rate shall be equal to the amount determined above divided
by an amount equal to 1 minus the Eurodollar Reserve Percentage.
-10-
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time under Regulation D
as the maximum reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable with respect
to Eurodollar liabilities as that term is defined in Regulation D (or against
any other category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Loans is determined) with respect to member
banks of the Federal Reserve System, whether or not any Lender has any
Eurodollar liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurodollar liabilities and as
such shall be deemed subject to reserve requirements without benefits of credits
for proration, exceptions or offsets that may be available from time to time to
a Lender. The Adjusted Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" means any of the events or circumstances described
in Section 9.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
modified, succeeded or replaced from time to time, and the rules and regulations
promulgated thereunder.
"EXCLUDED MATERIAL SUBSIDIARIES" means the Material Subsidiaries set
forth on Schedule 6.25.
"EXISTING CREDIT AGREEMENT" means the Third Amended and Restated Credit
Agreement dated as of June 29, 2001 among the Borrowers, certain Subsidiaries of
the Borrowers, the lenders named therein, and Bank of America, N.A., as
administrative agent.
"EXISTING LETTERS OF CREDIT" means the letters of credit described on
Schedule 2.3(c).
"EXTENSION OF CREDIT" means, as to any Lender, the making of a Loan by
such Lender (or a participation therein by a Lender) or the issuance of, or
participation in, a Letter of Credit by such Lender.
"FACILITY FEES" means the fees payable to the Lenders pursuant to
Section 3.4(a).
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, at the discretion of the Administrative Agent, to the nearest 1/100th of
1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day and (b) if no such rate is
so published on such next preceding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the Administrative Agent on such
day on such transactions as determined by the Administrative Agent.
"FEE LETTER" means that certain letter agreement, dated as of March 5,
2004 between the Administrative Agent and BRT, as amended, modified,
supplemented or replaced from time to time.
"FITCH" means Fitch Inc. or any successor or assignee of the business
of such company in the business of rating securities.
-11-
"FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio of (a)
Adjusted NOI for such period to (b) the sum of Debt Payments for such period
plus all dividends on preferred shares of beneficial interest of BRT or
preferred operating partnership units of BOP (not owned by BRT) for such period
plus any letter of credit fees for such period.
"FUNDED DEBT" means, without duplication, the sum of (a) all
Indebtedness of the Combined Parties for borrowed money, (b) all purchase money
Indebtedness of the Combined Parties, (c) the principal portion of all
obligations of the Combined Parties under Capital Leases, (d) all obligations,
contingent or otherwise, relative to the face amount of all letters of credit
(other than letters of credit supporting trade payables in the ordinary course
of business), whether or not drawn, and banker's acceptances issued for the
account or upon the application of a Combined Party (it being understood that,
to the extent an undrawn letter of credit supports another obligation
constituting Indebtedness, in calculating aggregated Funded Debt only such other
obligation shall be included), (e) all Guaranty Obligations of the Combined
Parties with respect to the indebtedness of another Person of the types
described in this definition, (f) all indebtedness of another Person of the
types described in this definition that is secured by a Lien on any property of
the Combined Parties whether or not such indebtedness has been assumed by a
Combined Party, (g) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product of a Combined Party where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an operating
lease in accordance with GAAP, (h) all obligations of the Combined Parties in
respect of interest rate protection agreements, foreign currency exchange
agreements or other interest or exchange rate or commodity price hedging
agreements and (i) all take out loan commitments to the extent such take out
commitment is not supported by a financial commitment from a third party
containing standard terms and conditions; provided that, for purposes of
calculating the Leverage Ratio, the Secured Debt Ratio, the Unsecured Debt
limitation and the Unencumbered Cash Flow Ratio, to the extent Funded Debt
includes Indebtedness in respect of Construction-in-Process, the amount of such
Funded Debt shall be deemed to be the total construction costs incurred for the
Construction-in-Process as of such date. The calculation of Funded Debt of the
Combined Parties shall be subject to Section 1.4.
"FUNDS FROM OPERATIONS", when used with respect to any Person, shall
have the meaning given to such term in, and shall be calculated in accordance
with, standards promulgated by the National Association of Real Estate
Investment Trusts in effect from time to time.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"GOVERNMENTAL AUTHORITY" means any Federal, state, local or provincial
court or governmental agency, authority, instrumentality or regulatory body.
"GUARANTORS" means (a) the Material Subsidiaries of the Borrowers as of
the Closing Date, other than the Excluded Material Subsidiaries, and (b) such
other Persons who may from time to time execute a Joinder Agreement (or
otherwise consent in writing to becoming a Guarantor hereunder), as required by
Section 7.12 or otherwise, in each case together with their successors and
assigns; in each case unless released as a Guarantor pursuant to Section 8.5(b)
or Section 11.19.
"GUARANTY" means the guaranty of payment provided by the Guarantors
pursuant to Section 4.
-12-
"GUARANTY OBLIGATIONS" means, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) guaranteeing or
intended to guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any obligation,
whether or not contingent, (a) to purchase any such Indebtedness or other
obligation or any property constituting security therefor, (b) to advance or
provide funds or other support for the payment or purchase of such Indebtedness
or obligation or to maintain working capital, solvency or other balance sheet
condition of such other Person (including, without limitation, maintenance
agreements, comfort letters, take or pay arrangements, put agreements or similar
agreements or arrangements) for the benefit of the holder of Indebtedness of
such other Person, (c) to lease or purchase property, securities or services
primarily for the purpose of assuring the owner of such Indebtedness or (d) to
otherwise assure or hold harmless the owner of such Indebtedness or obligation
against loss in respect thereof. The amount of any Guaranty Obligation hereunder
shall (subject to any limitations set forth therein) be deemed to be an amount
equal to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty Obligation is
made. It is understood and agreed that for purposes of any "completion guaranty"
provided by a Credit Party or one of its Subsidiaries, the amount of
Indebtedness associated with such completion guaranty shall be none unless such
completion guaranty is enforced (or written notice of the intent to enforce such
completion guaranty has been received) at which time the Indebtedness associated
with such completion guaranty shall equal the remaining cost to complete the
project plus ten percent until such time as a certificate of occupancy is
issued.
"HAZARDOUS MATERIALS" means any substance, material or waste defined or
regulated in or under any Environmental Laws.
"INCENTIVE STOCK PLAN" means the BRT 1997 Long-Term Incentive Plan, as
amended from time to time, and any other equity incentive plan hereafter
established by BRT or one of its Subsidiaries pursuant to which awards of equity
interests in BRT or such Subsidiary may be made to employees of BRT or one of
its Subsidiaries.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
purchased by such Person to the extent of the value of such property (other than
customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations, other
than intercompany items, of such Person issued or assumed as the deferred
purchase price of property or services purchased by such Person which would
appear as liabilities on a balance sheet of such Person, (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable out of
the proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (f) all
Guaranty Obligations of such Person, (g) the principal portion of all
obligations of such Person under (i) Capital Leases and (ii) any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product of such Person where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP, (h) all obligations of such Person in
respect of interest rate protection agreements, foreign currency exchange
agreements, or other interest or exchange rate or commodity price hedging
agreements, (i) the maximum amount of all performance and standby letters of
-13-
credit issued or bankers' acceptances facilities created for the account or upon
the application of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), (j) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date; provided that Indebtedness shall
not include preferred stock which carries a defined term if its conversion or
redemption occurs solely through the issuance of additional equity or from the
proceeds of an equity offering, (k) all obligations evidenced by take out
commitments, (l) the aggregate amount of uncollected accounts receivables of
such Person subject at such time to a sale of receivables (or similar
transaction) regardless of whether such transaction is effected without recourse
to such Person or in a manner that would not be reflected on the balance sheet
of such Person in accordance with GAAP and (m) all obligations of such Person to
repurchase any securities which repurchase obligation is related to the issuance
thereof, including, without limitation, obligations commonly known as residual
equity appreciation potential shares or forward equity purchase contracts.
Subject to Section 1.4, the Indebtedness of any Person shall include the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is legally obligated or has a reasonable expectation of being liable with
respect thereto.
"INITIAL REVOLVING LOAN MATURITY DATE" means May 24, 2007.
"INTEREST COVERAGE RATIO" means, for any period, the ratio of (a)
Adjusted NOI for such period to (b) Interest Expense for such period.
"INTEREST EXPENSE" means, for any period, with respect to the Combined
Parties, all net interest expense, whether paid or accrued (including that
portion applicable to Capital Leases in accordance with GAAP) plus capitalized
interest.
"INTEREST PAYMENT DATE" means (a) as to Base Rate Loans, the last
Business Day of each month and the Revolving Loan Maturity Date, (b) as to any
Eurodollar Loan having an Interest Period of three months or less or as to any
Competitive Bid Loan, the last day of such Interest Period and the Revolving
Loan Maturity Date, and (c) as to any Eurodollar Loan having an Interest Period
longer than three months, the day which is three months after the first day of
such Interest Period, the last day of such Interest Period, and the Revolving
Loan Maturity Date.
"INTEREST PERIOD" means, (i) as to Eurodollar Loans, a period of one,
two, three or six months' duration as the Borrowers may elect or (ii) as to
Competitive Bid Loans, a period of one, two or three months' duration as the
Borrowers may elect, commencing, in each case, on the date of the borrowing
(including, as applicable, continuations and conversions thereof); provided,
however, (a) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (b) no Interest Period
shall extend beyond the Revolving Loan Maturity Date, (c) where an Interest
Period begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such Interest Period
shall end on the last Business Day of such calendar month, and (d) no Interest
Period shall extend beyond the Initial Revolving Loan Maturity Date unless the
Revolving Loan Maturity Date has been extended pursuant to Section 3.5(b).
"INVESTMENT" in any Person means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of
assets, shares of capital stock, bonds, notes, debentures, partnership
interests, membership interests, joint ventures or other ownership interests or
other securities of such other Person or (b) any deposit with, or advance, loan
or other extension of credit to, such Person (other than deposits made in
connection with the purchase of equipment or other assets in the ordinary course
of business) or (c) any other capital contribution to or investment in such
Person, including, without limitation, any Guaranty Obligation (including any
support for a letter of credit issued on behalf of such Person) incurred for the
benefit of such Person.
-14-
"INVESTMENT GRADE RATING" means an Unsecured Senior Debt Rating of (a)
BBB- or better from S&P, (b) Baa3 or better from Moody's or (c) BBB- or better
from Fitch, as applicable.
"INVITATION FOR COMPETITIVE BID QUOTES" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit 2.2(c).
"ISSUING LENDER" means JPMorgan Chase Bank, Bank of America, N.A., any
successor Person serving as Administrative Agent and/or any other Lender
designated by the Administrative Agent.
"ISSUING LENDER FEES" has the meaning set forth in Section 3.4(b)(ii).
"JOINDER AGREEMENT" means a Joinder Agreement substantially in the form
of Exhibit 7.12.
"LENDER" means (a) the Person serving as the Administrative Agent and
any of the financial institutions party to this Credit Agreement, or any other
Person which may provide an additional Commitment and become a party to this
Credit Agreement or becomes an assignee of any rights to a Lender pursuant to
Section 11.3, together with their successors and permitted assigns and (b) each
Designated Bank; provided, however, that the term "Lender" shall exclude each
Designated Bank when used in reference to a Committed Loan, the Commitments or
terms relating to the Committed Loans and the Commitments and shall further
exclude each Designated Bank for all other purposes hereunder except that any
Designated Bank which funds a Competitive Bid Loan shall, subject to Section
11.3(e)), have the rights (including the rights given to a Lender contained in
Section 11.5 and otherwise in Section 11) and obligations of a Lender associated
with holding such Competitive Bid Loan.
"LETTER OF CREDIT" means a letter of credit issued for the account of a
Credit Party by an Issuing Lender pursuant to Section 2.3 or any Existing Letter
of Credit, as such letter of credit may be amended, modified, extended, renewed
or replaced.
"LETTER OF CREDIT FEES" has the meaning set forth in Section 3.4(b)(i).
"LEVERAGE RATIO" means the ratio of (a) Funded Debt to (b) the sum (the
"TOTAL ASSET VALUE") of (i) Property Value plus (ii) all unrestricted cash of
the Combined Parties plus (iii) all Cash Equivalents of the Combined Parties
plus (iv) all unrestricted tenant security deposits held by the Combined Parties
plus (v) the aggregate of all amounts of the Combined Parties incurred and paid
with respect to Construction-in-Process and Eligible Land, which credit will be
limited to 20% of Total Asset Value in the aggregate and 15% of Total Asset
Value for any single project or parcel, plus (vi) all notes receivable of the
Combined Parties, which credit will be limited to 5% of Total Asset Value, plus
(vii) all investments of the Combined Parties in (based on the actual cash
investment in), directly or indirectly, entities (other than Combined Parties)
holding real estate assets, which credit will be limited to 2.5% of Total Asset
Value.
-15-
"LIBOR AUCTION" means a solicitation of Competitive Bid Quotes setting
forth Competitive Bid Margins based on the Eurodollar Rate pursuant to Section
2.2.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation, any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, and any lease in the nature thereof.
"LOAN" or "LOANS" means the Revolving Loans (or a portion of any
Revolving Loan), the Swing Loans, and the Competitive Bid Loans, individually or
collectively, as applicable.
"LOC COMMITMENT" means the commitment of the Issuing Lenders to issue
Letters of Credit for the account of any Credit Party or any of its Subsidiaries
in an aggregate face amount any time outstanding (together with the amounts of
any unreimbursed drawings thereon) of up to the LOC Committed Amount.
"LOC COMMITTED AMOUNT" means $65,000,000.
"LOC DOCUMENTS" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
the parties concerned or at risk or (b) any collateral security for such
obligations.
"LOC OBLIGATIONS" means, at any time, the sum, without duplication, of
(a) the maximum amount which is, or at any time thereafter may become, available
to be drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus (b) the
aggregate amount of all drawings under Letters of Credit honored by an Issuing
Lender but not theretofore reimbursed.
"LOC PARTICIPANTS" means the Lenders.
"MANDATORY BORROWING" has the meaning set forth in Section 2.3(e).
"MARKET FUNDED DEBT PAYMENTS" means the scheduled debt payments that
would have been due during a twelve month period with respect to the Unsecured
Debt of the Combined Parties as of the last day of the prior fiscal quarter
assuming a principal mortgage amortization of 25 years and assuming the Market
Interest Rate as in effect on the date that the Market Funded Debt Payments are
calculated.
"MARKET INTEREST RATE" means an interest rate equal to the greater of
(a) the prior 30 day average of the most recent seven year U.S. Treasury Note
plus 1.75% per annum or (b) the actual average interest rate on the Loans for
the preceding twelve (12) months.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, condition (financial or otherwise) or prospects of
BRT, BOP or the Credit Parties and their Subsidiaries taken as a whole, (b) the
ability of a Borrower to perform its respective obligations under this Credit
Agreement or any of the other Credit Documents, (c) the ability of a Guarantor
to perform its respective obligations under this Credit Agreement or any of the
other Credit Documents, unless the Guarantor subject to such material adverse
effect could be immediately released as a Guarantor in compliance with Section
8.5(b), or (d) the validity or enforceability of this Credit Agreement, any of
the other Credit Documents, or the rights and remedies of the Lenders hereunder
or thereunder taken as a whole.
-16-
"MATERIAL SUBSIDIARY" means a Subsidiary of a Credit Party in which
such Credit Party owns, directly or indirectly, more than 65% of the capital
stock, partnership interests, membership interests or other equity interests;
provided that with respect to a Subsidiary of a Credit Party that is not a
corporation and whose ownership interest is not otherwise specified, such
percentage interest shall be the Capital Percentage of such Credit Party in such
Subsidiary.
"MOODY'S" means Moody's Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating securities.
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer plan as
defined in Section 3(37) or Section 4001(a)(3) of ERISA.
"MULTIPLE EMPLOYER PLAN" means a Plan (other than a Multiemployer Plan)
in which a Credit Party, a Subsidiary of a Credit Party or any ERISA Affiliate
and at least one employer other than a Credit Party, a Subsidiary of a Credit
Party or any ERISA Affiliate are contributing sponsors.
"NET CASH PROCEEDS" means, with respect to an Equity Issuance, the
gross cash proceeds received from such Equity Issuance minus actual transaction
costs and discounts of issuance payable to third parties in connection
therewith.
"NET INCOME" means, for any period, the net income for such period of
the Combined Parties, as determined in accordance with GAAP.
"NET WORTH" means, as of any date, the net worth of Credit Parties and
their Subsidiaries on a consolidated basis, as determined in accordance with
GAAP.
"NOI" means, for any period, an amount equal to (a) Net Income for such
period (excluding the effect of any extraordinary or other non-recurring gains
or losses or other non-cash losses outside the ordinary course of business) plus
(b) an amount which in the determination of Net Income for such period has been
deducted for (i) proceeds to minority interests, (ii) income taxes, (iii)
depreciation and amortization and (iv) Interest Expense, less (c) 3% of the
total real estate revenue of the Combined Parties as a property management
expense.
"NON-EXCLUDED TAXES" has the meaning set forth in Section 3.13.
"NOTE" or "NOTES" means the Revolving Notes, any promissory notes
issued to the Lenders to evidence Competitive Bid Loans made by Lenders, the
Designated Bank Notes, and any promissory notes issued to the Swing Lender,
individually or collectively, as appropriate.
"NOTICE OF BORROWING" means a request by the Borrowers for a Committed
Loan, in the form of Exhibit 2.1(c).
-17-
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning set forth in
Section 2.2(f).
"NOTICE OF CONTINUATION/CONVERSION" means a request by the Borrowers to
continue an existing Eurodollar Loan to a new Interest Period or to convert a
Eurodollar Loan to a Base Rate Loan or to convert a Base Rate Loan to a
Eurodollar Loan, in the form of Exhibit 2.1(f).
"OBLIGATIONS" means, without duplication, all of the obligations,
liabilities and indebtedness of the Credit Parties to the Lenders and the
Administrative Agent, whenever arising, under this Credit Agreement, the Notes
or any of the other Credit Documents to which a Credit Party is a party,
including without limitation the outstanding principal amount of the Loans.
"PARTICIPATION INTEREST" means the Extension of Credit by a Lender by
way of a purchase of a participation in any Loans as provided in Sections 2.1(b)
or 3.8, or in any Letters of Credit or LOC Obligations as provided in Section
2.3.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"PERMITTED INVESTMENTS" means, subject in all cases to Sections 7.10,
7.15 and 8.5(b), Investments which are (a) cash or Cash Equivalents, (b)
accounts receivable created, acquired or made in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms, (c)
Investments by one Credit Party in another Credit Party, (d) earnest money and
similar deposits in respect of Properties made in the ordinary course of
business, (e) the acquisition of new Properties; provided that the Credit
Parties may not invest in undeveloped land in excess of 5% of Total Asset Value,
in the aggregate, except for Eligible Land, (f) Investments (other than
Investments in subclause (g) below) in Subsidiaries which are not Credit Parties
and Investments in joint ventures (whether or not Subsidiaries) not to exceed,
in the aggregate at any one time, 15% of Total Asset Value, (g) Investments
existing on the date hereof in certain special purpose entities listed on
Schedule 8.6, (h) Investments in Construction-in-Process in which the aggregate
full-budgeted costs of construction of all Construction-in-Process do not
exceed, in the aggregate at any one time, 20% of Total Asset Value; (i)
repurchases by a Borrower or any Subsidiary of its capital stock or shares of
beneficial interest (including the repurchase of stock or shares of beneficial
interest that is retired, cancelled or terminated) or other ownership interests
(including options, warrants and stock appreciation rights) as long as prior to
and after giving effect thereto, no Default or Event of Default exists; and (j)
Investments not otherwise described in or covered by the other subclauses of
this definition including, without limitation, loans to officers, directors and
employees; provided that (i) such Investments do not exceed, in the aggregate at
any one time, 5% of Total Asset Value and (ii) such Investments, together with
the Investments referred to in subclauses (e), (f) and (h), do not exceed (in
the aggregate at any one time) 25% of Total Asset Value.
"PERMITTED LIENS" means (a) Liens securing Obligations, (b) Liens for
taxes not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof),
(c) Liens in respect of property imposed by law arising in the ordinary course
of business such as materialmens', mechanics', warehousemens', carriers',
landlords' and other nonconsensual statutory Liens which are not yet due and
payable or which are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not yet
-18-
subject to foreclosure, sale or loss on account thereof); (d) Liens arising from
good faith deposits in connection with or to secure performance of tenders,
bids, leases, government contracts, performance and return-of-money bonds and
other similar obligations incurred in the ordinary course of business (other
than obligations in respect of the payment of borrowed money), (e) Liens arising
from good faith deposits in connection with or to secure performance of
statutory obligations and surety and appeal bonds, (f) easements, rights-of-way,
restrictions (including zoning restrictions), matters of plat, minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered property for its intended
purposes, (g) judgment Liens that would not constitute an Event of Default, (h)
Liens arising by virtue of any statutory or common law provision relating to
bankers' liens, rights of setoff or similar rights as to deposit accounts or
other funds maintained with a creditor depository institution, (i) Liens in
connection with Indebtedness permitted by Section 8.1(d); provided that if such
Lien is created with respect to an Unencumbered Property, the Borrowers shall
give the Administrative Agent written notice of the creation of such Lien in
accordance with Section 7.15(b) (if applicable), and (j) Liens existing on the
date hereof and identified on Schedule 8.2; provided that no such Lien shall
extend to any property other than the property subject thereto on the Closing
Date.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated), or any Governmental Authority.
"PLAN" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an
"employer" within the meaning of Section 3(5) of ERISA.
"PRICING LEVEL" means, based upon the Unsecured Senior Debt Rating or
Leverage Ratio of the Borrowers, as applicable, the corresponding category (I,
II, III, or IV) within the Applicable Percentage tables.
"PRIME RATE" means the per annum rate of interest announced publicly
from time to time by the Person that is the Administrative Agent at its
principal offices (or such other principal office of such Person as communicated
in writing to the Borrowers and the Lenders) as its Prime Rate. Any change in
the interest rate resulting from a change in the Prime Rate shall become
effective at the opening of business on the day specified in the public
announcement of such change. The Prime Rate is a rate set by the Person that is
the Administrative Agent based upon various factors including such Person's
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above
or below such announced rate.
"PRO FORMA BASIS" means with respect to (a) the sale of a Property or
the sale of an equity interest in a Credit Party, (b) the creation of a Lien on
a Property or (c) the acquisition of or Investment in a Property or other asset
that is subject to Section 7.15, that such sale, creation of Lien, acquisition
or Investment shall be deemed to have occurred as of the first day of the four
fiscal quarter period ending as of the last day of the most recent fiscal
quarter for which the Lenders have received the financial information required
by Section 7.1(b).
"PROPERTIES" means all real properties owned or ground-leased by the
Credit Parties and their Subsidiaries whether directly or through a joint
venture investment.
-19-
"PROPERTY VALUE" means Annualized Modified Adjusted NOI divided by the
Capitalization Rate.
"PUBLIC DEBT" means indebtedness which is not secured by any Liens and
not subordinated to the Obligations (or to the holders thereof), issued by a
Borrower in offerings registered under the Securities Act of 1933, as amended,
or in transactions exempt from registration pursuant to Rule 144A or Regulation
D thereunder or listed on non-U.S. securities exchanges.
"REFUNDED SWING LOANS" has the meaning in Section 2.1(b)(iii).
"REFUNDING DATE" has the meaning in Section 2.1(b)(iv).
"REGULATION D, O, T, U, OR X" means Regulation D, O, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System (or any
successor body) as from time to time in effect and any successor to all or a
portion thereof.
"REIT" means a real estate investment trust as defined in Sections
856-860 of the Code.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the notice requirement has been
waived by regulation.
"REQUIRED LENDERS" means, at any time, the Lenders whose aggregate
Credit Exposure (as hereinafter defined) constitutes at least 66 2/3% of the
Credit Exposure of all Lenders at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time then there shall be excluded
from the determination of Required Lenders the aggregate principal amount of
Credit Exposure of such Lender at such time. For purposes of the preceding
sentence, the term "Credit Exposure" as applied to each Lender shall mean (a) at
any time prior to the termination of the Commitments, the Commitment of such
Lender and (b) at any time after the termination of the Commitments, the sum of
(i) the principal balance of the outstanding Loans of such Lender plus (ii) such
Lender's Participation Interests in the face amount of the outstanding Letters
of Credit.
"REQUIREMENT OF LAW" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or final,
non-appealable determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or to which
any of its material property is subject.
"REVOLVING COMMITTED AMOUNT" means $450,000,000, as the same may be
permanently reduced in accordance with Section 2.1(e) or increased from time to
time pursuant to Section 2.7.
"REVOLVING CREDIT AVAILABILITY" means sum of the Revolving Committed
Amount less the Revolving Credit Obligations.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Committed Loans at such time,
plus (ii) the LOC Obligations at such time, plus (iii) the outstanding principal
amount of the Competitive Bid Loans at such time.
-20-
"REVOLVING LOAN COMMITMENT PERCENTAGE" means, for each Lender, the
percentage identified as its Revolving Loan Commitment Percentage on Schedule
1.1(a), as such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 11.3.
"REVOLVING LOAN MATURITY DATE" means the earlier of (a) the Initial
Revolving Loan Maturity Date or, if extended by the Borrowers pursuant to
Section 3.5(b), May __, 2008 and (b) the date of termination of the Commitments
pursuant to the terms of this Credit Agreement.
"REVOLVING LOANS" has the meaning set forth in Section 2.1(a).
"REVOLVING NOTE" or "REVOLVING NOTES" means the promissory notes of the
Borrowers in favor of each of the Lenders evidencing the Revolving Loans
provided pursuant to Section 2.1, individually or collectively, as appropriate,
as such promissory notes may be amended, modified, supplemented, extended,
renewed or replaced from time to time and in the form of Exhibit 2.1(h).
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"SECURED DEBT" means all Funded Debt of the Combined Parties that is
subject to a Lien in favor of the creditor holding such Funded Debt; provided
that any Funded Debt owed to the Lenders hereunder shall be considered to be
Unsecured Debt even if a Lien has been granted in favor of the Lenders.
"SECURED DEBT RATIO" means the ratio of (a) Secured Debt to (b)
Property Value plus, to the extent Secured Debt includes Funded Debt on
Construction-in-Process, total construction costs incurred as of such date with
respect to such Construction-in-Process.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
modified, succeeded or replaced from time to time, and the rules and regulations
promulgated thereunder.
"SINGLE EMPLOYER PLAN" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"SOLVENT" means, with respect to any Person as of a particular date,
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (b) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature in their ordinary course, (c) such
Person is not engaged in a business or a transaction, and is not about to engage
in a business or a transaction, for which such Person's assets would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to engage, (d)
the fair value of the assets of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person and (e) the present fair saleable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
-21-
"SUBSIDIARY" means, as to any Person, (a) any corporation more than 50%
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of stock of
such corporation shall have or might have voting power by reason of the lapse of
time or the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries, and (b) any partnership,
association, joint venture, limited liability company, trust or other entity in
which such Person directly or indirectly through Subsidiaries has more than a
50% equity interest or 50% Capital Percentage at any time.
"SWING LENDER" means JPMorgan Chase Bank or any successor Swing Lender
or any other Lender designated by the Administrative Agent.
"SWING LOAN" means a Loan made by the Swing Lender pursuant to Section
2.1(b).
"SWING LOAN COMMITMENT" means the lesser of (a) $50,000,000 or (b) the
Revolving Credit Availability, without giving effect to outstanding Swing Loans.
"SWING LOAN REFUND AMOUNT" means has the meaning set forth in Section
2.1(b)(iii).
"TERMINATION EVENT" means (a) with respect to any Single Employer Plan,
the occurrence of a Reportable Event or the substantial cessation of operations
(within the meaning of Section 4062(e) of ERISA); (b) the withdrawal of any
Credit Party or any of its Subsidiaries or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as such
term is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan; (c) the distribution of a notice of intent to terminate
or the actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A of
ERISA; (d) the institution of proceedings to terminate or the actual termination
of a Plan by the PBGC under Section 4042 of ERISA; (e) any event or condition
which might reasonably constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; or (f)
the complete or partial withdrawal of any Credit Party or any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer Plan.
"TOTAL ASSET VALUE" has the meaning assigned to such term in the
definition of Leverage Ratio.
"UNENCUMBERED CASH FLOW RATIO" means the ratio of (a) Annualized
Modified Adjusted NOI with respect to Unencumbered Properties to (b) Market
Funded Debt Payments.
"UNENCUMBERED CONSTRUCTION-IN-PROCESS" means all
Construction-in-Process that is (i) wholly-owned by a Credit Party that is a
wholly-owned Subsidiary of the Borrowers, (ii) not subject to a Lien other than
(a) nonconsensual Permitted Liens and (b) Liens in favor of the Lenders to
secure the Obligations, and (iii) not subject to a significant environmental
release, Environmental Claim or other violation of Environmental Laws.
"UNENCUMBERED CONSTRUCTION-IN-PROCESS AND ELIGIBLE LAND VALUE" means
the sum of Unencumbered Construction-in-Process and Unencumbered Eligible Land,
in each case valued at the lower of cost or market.
"UNENCUMBERED ELIGIBLE LAND" means all Eligible Land that is (i)
wholly-owned by a Credit Party that is a wholly-owned Subsidiary of the
Borrowers, (ii) not subject to a Lien other than (a) nonconsensual Permitted
Liens and (b) Liens in favor of the Lenders to secure the Obligations, and (iii)
not subject to a significant environmental release, Environmental Claim or other
violation of Environmental Laws.
-22-
"UNENCUMBERED PROPERTIES" means all Properties that are (i)
wholly-owned or leased under an Eligible Ground Lease by a Credit Party that is
a wholly-owned Subsidiary of the Borrowers, (ii) not subject to a Lien other
than (a) nonconsensual Permitted Liens and (b) Liens in favor of the Lenders to
secure the Obligations, (iii) improved with a building that has received a
certificate of occupancy, and (iv) not subject to a significant environmental
release, Environmental Claim or other violation of Environmental Laws.
"UNENCUMBERED PROPERTY VALUE" means the sum of (i) Property Value with
respect to all Unencumbered Properties, plus (ii) the aggregate amount of
unrestricted cash and Cash Equivalents in excess of $25,000,000.
"UNSECURED DEBT" means the sum of all Funded Debt of the Combined
Parties that was incurred, and continues to be outstanding, without granting a
Lien to the creditor holding such Funded Debt; provided that all Funded Debt of
the Combined Parties owing to the Lenders under this Credit Agreement shall be
considered to be Unsecured Debt even if a Lien has been granted in favor of the
Lenders.
"UNSECURED SENIOR DEBT RATING" means either (a) if BRT or BOP has
issued unsecured, senior, long term, non-credit enhanced debt, the debt rating
provided by S&P, Moody's or Fitch with respect to such unsecured, senior, long
term, non-credit enhanced debt, or (b) if BRT or BOP has not issued unsecured,
senior, long term, non-credit enhanced debt, the issuer rating for BRT or BOP
provided by Moody's or Fitch or the corporate credit rating for BRT or BOP
provided by S&P.
1.2. COMPUTATION OF TIME PERIODS AND OTHER DEFINITION PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
References in this Credit Agreement to "during the term of this Credit
Agreement" shall mean the period from the Effective Date to the earlier of the
Revolving Loan Maturity Date or the acceleration of the Loans pursuant to
Section 9.2.
1.3. ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All financial statements delivered to the Lenders hereunder shall be
accompanied by a statement from the Borrowers that GAAP has not changed since
the most recent financial statements delivered by the Borrowers to the Lenders
or, if GAAP has changed, describing such changes in detail and explaining how
such changes affect the financial statements. All calculations made for the
purposes of determining compliance with this Credit Agreement shall (except as
otherwise expressly provided herein) be made by application of GAAP applied on a
basis consistent with the most recent annual or quarterly financial statements
-23-
delivered pursuant to Section 7.1 (or, prior to the delivery of the first
financial statements pursuant to Section 7.1, consistent with the financial
statements described in Section 5.1(f)); provided, however, if (a) the Borrowers
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Required
Lenders shall so object in writing within 60 days after delivery of such
financial statements (or after the Lenders have been informed of the change in
GAAP affecting such financial statements, if later), then such calculations
shall be made on a basis consistent with the most recent financial statements
delivered by the Borrowers to the Lenders as to which no such objection shall
have been made.
1.4. JOINT VENTURE INVESTMENTS.
For purposes of calculating the financial covenants in Section 7.2
(including the definitions used therein) and the definition of Permitted
Investments, (a) NOI, Adjusted NOI, Annualized Modified Adjusted NOI, Property
Value and Interest Expense shall be calculated, to the extent applicable, to
include the pro-rata share (as determined by their respective percentage
interests in the profits and losses of such joint venture) of results
attributable to the Credit Parties and their Subsidiaries from joint ventures
and (b) Indebtedness and Funded Debt shall be calculated as follows: (i) if the
Indebtedness of a joint venture is recourse to such Credit Party (or
Subsidiary), then the amount of such Indebtedness or Funded Debt that is
recourse to such Credit Party (or Subsidiary), without duplication, and (ii) if
the Indebtedness of such joint venture is not recourse to such Credit Party (or
Subsidiary), then such Credit Party's (or Subsidiary's) pro-rata share of such
Indebtedness or Funded Debt as determined by its percentage interest in the
profits and losses of such joint venture. For purposes of this Section 1.4,
Indebtedness of a joint venture that is recourse to a Credit Party or one of its
Subsidiaries solely as a result of such Credit Party (or Subsidiary) being a
partner or member in such joint venture shall be treated as not recourse to such
Credit Party (or Subsidiary) as long as the only assets owned by such Credit
Party (or Subsidiary) are its equity interest in such joint venture and any
contributed capital held to fund such equity interest.
SECTION 2.
CREDIT FACILITY
2.1. REVOLVING LOANS.
(a) Revolving Loan Commitment. Subject to the terms and
conditions set forth herein and pursuant to this Section 2.1, each
Lender severally agrees to make revolving loans (each a "REVOLVING
LOAN" and collectively the "REVOLVING LOANS") to the Borrowers, in
Dollars, at any time and from time to time, during the period from and
including the Effective Date to but not including the Revolving Loan
Maturity Date or such earlier date as the Revolving Committed Amount
has been terminated as provided herein; provided, however, that (i) the
sum of the aggregate principal amount of Loans outstanding plus the
aggregate amount of LOC Obligations outstanding shall not exceed the
Revolving Committed Amount, (ii) with respect to each individual
Lender, such Lender's pro rata share of outstanding Committed Loans
plus such Lender's pro rata share of outstanding LOC Obligations shall
not exceed such Lender's Commitment and (iii) the aggregate principal
amount of such Revolving Loan shall not exceed the Revolving Credit
Availability at such time. Subject to the terms of this Credit
Agreement (including Section 3.3), the Borrowers may borrow, repay and
reborrow Revolving Loans. The Administrative Agent shall keep a record
of the purpose for which each of the Loans was advanced (and of
repayments applied thereto), which record shall be conclusive absent
prima facie error.
-24-
(b) Swing Loans.
(i) Basic Terms. During the term of this Credit
Agreement, the Swing Lender agrees, on the terms and
conditions set forth in this Credit Agreement, to make loans
to the Borrowers in Dollars pursuant to this Section 2.1(b)(i)
from time to time in amounts such that after giving effect to
each such loan (A) the aggregate principal amount of Swing
Loans does not at any time exceed the Swing Loan Commitment
and (B) the sum of the aggregate principal amount of Loans
outstanding plus the aggregate amount of LOC Obligations
outstanding does not exceed the Revolving Committed Amount.
Each borrowing under this Section 2.1(b)(i) shall be in an
aggregate principal amount of at least $2,000,000 and in
integral multiples of $1,000,000 in excess of such amount.
Within the foregoing limits, the Borrowers may borrow under
this Section 2.1(b)(i), repay or, to the extent permitted by
Section 3.3, prepay Swing Loans and reborrow at any time
during the term of this Credit Agreement under this Section
2.1(b)(i). Notwithstanding anything to the contrary contained
herein, the Swing Lender shall not make a Swing Loan without
the consent of the Required Lenders after the occurrence and
during the continuance of a Default or without the consent of
all of the Lenders after the occurrence and during the
continuance of an Event of Default.
(ii) Repayment and Interest. Each Swing Loan is due
and payable on the earliest to occur of (A) seven (7) Business
Days after the date of the making of such Swing Loan, (B) the
date of the next borrowing under the Commitments that is not a
Swing Loan, (C) the Revolving Loan Maturity Date, and (D) the
last day of any calendar month. Except as otherwise provided
in Section 3.1(b), Swing Loans shall bear interest at a rate
per annum equal to the Adjusted Base Rate.
(iii) Conversion of Swing Loans. The Swing Lender (A)
may, at any time in its sole discretion with respect to any
outstanding Swing Loans or (B) shall, on any of the dates set
forth in clauses (A) - (D) of Section 2.1(b)(ii), on behalf of
the Borrowers (which hereby irrevocably direct the Swing
Lender to act on their behalf), request each Lender to make,
and each Lender hereby agrees to make, a Revolving Loan that
is a Base Rate Loan in an amount (with respect to each Lender,
its "SWING LOAN REFUND AMOUNT") equal to such Lender's
Revolving Loan Commitment Percentage of the aggregate
principal amount of the Swing Loans (the "REFUNDED SWING
LOANS") outstanding on the date of such notice, to repay the
Swing Lender. Unless any of the events described in Section
9.1(e) with respect to either Borrower shall have occurred and
be continuing or Revolving Loans cannot otherwise be made on
such date (in which case the terms of Section 2.1(b)(iv) shall
govern), each Lender shall make such Base Rate Loan available
to the Administrative Agent at its principal office in New
York City, New York, or such other address as the
Administrative Agent may designate in writing, in immediately
available funds, not later than 12:00 noon (New York time), on
-25-
the Business Day immediately following the date of such
request. The Administrative Agent shall pay the proceeds of
such Base Rate Loans to the Swing Lender, which shall
immediately apply such proceeds to repay Refunded Swing Loans.
Effective on the day such Base Rate Loans are made, the
portion of the Swing Loans so paid shall no longer be
outstanding as Swing Loans, shall no longer be due as Swing
Loans under the Note held by the Swing Lender, and shall be
due as Base Rate Loans under the respective Notes issued to
the Lenders (including the Swing Lender) in accordance with
their respective Revolving Loan Commitment Percentages. The
Borrowers authorize the Swing Lender to charge the Borrowers'
accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay
the amount of such Refunded Swing Loans to the extent amounts
received from the Lenders are not sufficient to repay in full
such Refunded Swing Loans.
(iv) Purchase of Participations in Swing Loans. If,
prior to the time Revolving Loans would have otherwise been
made pursuant to Section 2.1(b)(iii), any of the events
described in Section 9.1(e) with respect to either Borrower
shall have occurred and be continuing or Revolving Loans
cannot otherwise be made on such date, each Lender shall, on
the date any such Revolving Loans were to be made pursuant to
the request referred to in Section 2.1(b)(iii) (the "REFUNDING
DATE"), purchase an undivided Participation Interest in the
Swing Loans in an amount equal to such Lender's Swing Loan
Refund Amount. On the Refunding Date, each Lender shall
transfer to the Swing Lender, in immediately available funds,
such Lender's Swing Loan Refund Amount, and upon receipt
thereof the Swing Lender shall deliver to such Lender a Swing
Loan participation certificate dated the date of the Swing
Lender's receipt of such funds and in the Swing Loan Refund
Amount of such Lender.
(v) Payments on Participated Swing Loans. Whenever,
at any time after the Swing Lender has received from any
Lender such Lender's Swing Loan Refund Amount pursuant to
Section 2.1(b)(iii), the Swing Lender receives any payment on
account of the Swing Loans in which the Lenders have purchased
Participation Interests pursuant to Section 2.1(b)(iv), the
Swing Lender will promptly distribute to each such Lender its
ratable share (determined on the basis of the Swing Loan
Refund Amounts of all of the Lenders) of such payment
(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's
Participation Interest was outstanding and funded); provided,
however, that in the event that such payment received by the
Swing Lender is required to be returned, such Lender will
return to the Swing Lender any portion thereof previously
distributed to it by the Swing Lender.
(vi) Obligations to Refund or Purchase Participations
in Swing Loans Absolute. Each Lender's obligation to transfer
the amount of a Revolving Loan to the Swing Lender as provided
in Section 2.1(b)(iii) or to purchase a Participation Interest
pursuant to Section 2.1(b)(iv) shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender, the
Borrowers or any other Person may have against the Swing
Lender or any other Person, other than the Swing Lender's
gross negligence or willful misconduct in connection with
making any such Swing Loan, (B) the occurrence or continuance
of a Default or an Event of Default or the termination or
reduction of the Revolving Committed Amount, subject to the
consent requirements of Section 2.1(b)(i), (C) any adverse
change in the condition (financial or otherwise) of either of
the Borrowers or any other Person, (D) any breach of this
Credit Agreement by either of the Borrowers, any other Lender
or any other Person, or (E) any other circumstance, happening
or event whatsoever, whether or not similar to any of the
foregoing.
-26-
(c) Method of Borrowing for Committed Loans. By no later than
11:00 a.m. (10:00 a.m. for Swing Loans) (i) one Business Day prior to
the date of the requested borrowing of Revolving Loans that will be
Base Rate Loans, (ii) three Business Days prior to the date of the
requested borrowing of Revolving Loans that will be Eurodollar Loans or
(iii) on the day of the requested borrowing of any Swing Loans, the
Borrowers shall submit an irrevocable written Notice of Borrowing in
the form of Exhibit 2.1(c) to the Administrative Agent setting forth
(A) the amount requested, (B) whether such Committed Loans shall be
Swing Loans, Revolving Loans that will be Base Rate Loans or Revolving
Loans that will be Eurodollar Loans, (C) with respect to Revolving
Loans that will be Eurodollar Loans, the Interest Period applicable
thereto, (D) the purpose of the proceeds of the requested Committed
Loans, (E) a certification that the Borrowers have complied in all
respects with Section 5.2 and (F) the date of borrowing.
(d) Funding of Committed Loans. Upon receipt of a Notice of
Borrowing, the Administrative Agent shall promptly inform the Lenders
(or in the case of a request for a Swing Loan, the Swing Lender) as to
the terms thereof. Each Lender shall make its Revolving Loan Commitment
Percentage of the requested Committed Loans (or in the case of a Swing
Lender, the full amount of Swing Loan) available to the Administrative
Agent by 1:00 p.m. on the date specified in the Notice of Borrowing by
deposit, in Dollars, of immediately available funds to the
Administrative Agent at its principal office in New York City, New York
or at such other address as the Administrative Agent may designate in
writing. The amount of the requested Committed Loans will then be made
available to the Borrowers by the Administrative Agent by crediting the
account of the Borrowers on the books of such office of the
Administrative Agent, to the extent the amount of such Committed Loans
are made available to the Administrative Agent.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make Committed Loans hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any Committed Loan that
such Lender does not intend to make available to the Administrative
Agent its portion of the Committed Loans to be made on such date, the
Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on the date of such Committed
Loans, and the Administrative Agent in reliance upon such assumption,
may (in its sole discretion but without any obligation to do so) make
available to the Borrowers a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify the
Borrowers, and the Borrowers shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also
be entitled to recover from such Lender or the Borrowers, as the case
may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrowers to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate
equal to (i) from the Borrowers at the applicable rate for such
Committed Loan pursuant to the Notice of Borrowing and (ii) from such
Lender at the Federal Funds Rate.
-27-
(e) Reduction or Termination of Revolving Committed Amount.
Upon at least three Business Days' notice to the Administrative Agent,
the Borrowers shall have the right to permanently terminate or reduce
the aggregate unused amount of the Revolving Committed Amount or the
Swing Loan Commitment at any time or from time to time; provided that
(i) each partial reduction shall be in an aggregate amount at least
equal to $5,000,000 and in integral multiples of $1,000,000 above such
amount and (ii) no reduction shall be made which would reduce the
Revolving Committed Amount to an amount less than the lesser of (A) the
aggregate amount of outstanding Loans plus the aggregate amount of
outstanding LOC Obligations or (B) $200,000,000. Any reduction in (or
termination of) the Revolving Committed Amount shall be permanent and
may not be reinstated. The Administrative Agent shall immediately
notify the Lenders of any reduction in the Revolving Committed Amount
and each Lender's Commitment shall be reduced pro rata in accordance
with each Lender's Revolving Loan Commitment Percentage.
(f) Continuations and Conversions. The Borrowers shall have
the option with respect to any Revolving Loan, on any Business Day, to
continue existing Eurodollar Loans for a subsequent Interest Period, to
convert Base Rate Loans into Eurodollar Loans, or to convert Eurodollar
Loans into Base Rate Loans; provided, however, that (i) each such
continuation or conversion must be requested by the Borrowers pursuant
to a written Notice of Continuation/Conversion, in the form of Exhibit
2.1(f), in compliance with the terms set forth below, (ii) except as
provided in Section 3.11, Eurodollar Loans may only be continued or
converted on the last day of the Interest Period applicable thereto,
(iii) Eurodollar Loans may not be continued nor may Base Rate Loans be
converted into Eurodollar Loans during the existence and continuation
of a Default or Event of Default and (iv) any request to continue a
Eurodollar Loan that fails to comply with the terms hereof or any
failure to request a continuation of a Eurodollar Loan at the end of an
Interest Period shall result in a conversion of such Eurodollar Loan to
a Base Rate Loan on the last day of the applicable Interest Period.
Each continuation or conversion must be requested by the Borrowers no
later than 11:00 a.m. (A) one Business Day prior to the date for a
requested conversion of a Eurodollar Loan to a Base Rate Loan or (B)
three Business Days prior to the date for a requested continuation of a
Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan,
in each case pursuant to a written Notice of Continuation/Conversion
submitted to the Administrative Agent (which shall promptly notify each
of the Lenders) which shall set forth (x) whether the Borrowers wish to
continue or convert such Loans and (y) if the request is to continue a
Eurodollar Loan or convert a Loan to a Eurodollar Loan, the Interest
Period applicable thereto.
(g) Minimum Amounts/Restrictions on Loans. Each request for a
borrowing, conversion or continuation of a Revolving Loan shall be
subject to the requirements that (i) each Eurodollar Loan shall be in a
minimum amount of $1,000,000 and in integral multiples of $100,000 in
excess thereof, (ii) each Base Rate Loan shall be in a minimum amount
of $500,000 or the remaining amount available under the Revolving
Committed Amount and (iii) no more than eight Eurodollar Loans shall be
outstanding at any one time. For the purposes of this Section 2.1(g),
all Eurodollar Loans with the same Interest Periods beginning on the
same date shall be considered as one Eurodollar Loan, but Eurodollar
Loans with different Interest Periods, even if they begin or end on the
same date, shall be considered as separate Eurodollar Loans.
-28-
(h) Notes. The Revolving Loans made by each Lender shall be
evidenced by a duly executed promissory note of the Borrowers to each
Lender in substantially the form of Exhibit 2.1(h). Each Lender may, by
notice to the Borrowers and the Administrative Agent, request that its
Competitive Bid Loans and Swing Loans be evidenced by a separate Note
in an amount equal to the aggregate unpaid principal amount of such
Loans. Each such Note shall be in substantially the form of Exhibit
2.1(h) with appropriate modifications.
2.2. COMPETITIVE BID OPTION.
(a) The Competitive Bid Option. For so long as either of the
Borrowers shall maintain at least two (2) Investment Grade Ratings, the
Borrowers may, as set forth in this Section 2.2, request that the
Administrative Agent solicit the Lenders to make offers to make
Competitive Bid Loans to the Borrowers (a "COMPETITIVE BID QUOTE
REQUEST"), such Competitive Bid Loan not to exceed, at such time (i)
together with all Competitive Bid Loans then outstanding, forty percent
(40%) of the Revolving Committed Amount, or (ii) the then Revolving
Credit Availability. Subject to the provisions of this Credit
Agreement, the Borrowers may repay any outstanding Competitive Bid Loan
on any day which is a Business Day and any amounts so repaid may be
reborrowed, up to the amount available under this Section 2.2(a) at the
time of such borrowing, until the Business Day next preceding the
Revolving Loan Maturity Date. The Lenders may, but shall have no
obligation to, make such offers and the Borrowers may, but shall have
no obligation to, accept any such offers in the manner set forth in
this Section 2.2.
(b) Competitive Bid Quote Request. When the Borrowers wish to
request offers to make Competitive Bid Loans under this Section 2.2,
the Borrowers shall transmit to the Administrative Agent by telex or
facsimile transmission a Competitive Bid Quote Request substantially in
the form of Exhibit 2.2(b) hereto so as to be received not later than
10:30 A.M. (New York City time) on the fourth (4th) Business Day prior
to the date of borrowing proposed therein (or such other time or date
as the Borrowers and the Administrative Agent shall have mutually
agreed and shall have notified to the Lenders not later than the date
of the Competitive Bid Quote Request for the first LIBOR Auction for
which such change is to be effective) specifying:
(i) the proposed date of the Loan, which shall be a
Business Day;
(ii) the aggregate amount of such Loan, which shall
be $5,000,000 or a larger multiple of $1,000,000 (which shall
not exceed the Revolving Credit Availability);
(iii) the duration of the Interest Period applicable
thereto; and
-29-
(iv) the amount of all Competitive Bid Loans then
outstanding (which, together with the requested Competitive
Bid Loans shall not exceed, in the aggregate, forty percent
(40%) of the Revolving Committed Amount).
The Borrowers may request offers to make Competitive Bid Loans for one,
two or three Interest Periods in a single Competitive Bid Quote
Request. Borrowers may not make more than two (2) Competitive Bid Quote
Requests in any thirty (30) day period.
(c) Invitation for Competitive Bid Quotes. Promptly upon
receipt of a Competitive Bid Quote Request, the Administrative Agent
shall send to the Lenders by telex or facsimile transmission an
Invitation for Competitive Bid Quotes substantially in the form of
Exhibit 2.2(c) hereto, which shall constitute an invitation by the
Borrowers to each Lender to submit Competitive Bid Quotes offering to
make the Competitive Bid Loans to which such Competitive Bid Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Competitive Bid Quotes. (i)
Each Lender may submit a Competitive Bid Quote containing an offer or
offers to make Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this subsection (d) and must be submitted to the
Administrative Agent by telex or facsimile transmission not later than
10:00 A.M. (New York City time) on the third (3rd) Business Day prior
to the proposed date of borrowing (or such other time or date as the
Borrowers and the Administrative Agent shall have mutually agreed and
shall have notified the Lenders not later than the date of the
Competitive Bid Quote Request for the first LIBOR Auction for which
such change is to be effective); provided that Competitive Bid Quotes
submitted by the Person serving as the Administrative Agent (or any
affiliate of the Person serving as the Administrative Agent) in the
capacity of a Lender may be submitted, and may only be submitted, if
the Person serving as the Administrative Agent or such affiliate
notifies the Borrowers of the terms of the offer or offers contained
therein not later than one-quarter (1/4) hour prior to the deadline for
the other Lenders. Any Competitive Bid Quote so made shall be
irrevocable, except with the written consent of the Administrative
Agent given on the instruction of the Borrowers. Competitive Bid Loans
to be funded pursuant to a Competitive Bid Quote may, as provided in
Section 11.3(e), be funded by a Lender's Designated Bank. A Lender
making a Competitive Bid Quote may, but shall not be required to,
specify in its Competitive Bid Quote whether the related Competitive
Bid Loans are intended to be funded by such Lender's Designated Bank,
as provided in Section 11.3(e).
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit 2.2(d)(ii) hereto and shall
in any case specify:
(A) the proposed date of borrowing;
(B) the principal amount of the Competitive
Bid Loan for which each such offer is being made,
which principal amount (w) may be greater than or
less than the Commitment of the quoting Lender, (x)
must be $5,000,000 or a larger multiple of $1,000,000
(or, if the Revolving Credit Availability then is
less than $5,000,000, such lesser amount), (y) may
not exceed the principal amount of Competitive Bid
Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the
principal amount of Competitive Bid Loans for which
offers being made by such quoting Lender may be
accepted;
-30-
(C) the margin above or below the applicable
Eurodollar Rate (the "COMPETITIVE BID MARGIN")
offered for each such Competitive Bid Loan, expressed
as a percentage (specified to the nearest 1/10,000th
of 1%) to be added to or subtracted from such base
rate offered for each Competitive Bid Loan; and
(D) the identity of the quoting Lender.
(iii) Any Competitive Bid Quote shall be disregarded
if it:
(A) is not substantially in conformity with
Exhibit 2.2(d)(ii) hereto or does not specify all of
the information required by subsection (d)(ii) above;
(B) except as provided in subsection
(d)(ii)(B)(z) above, proposes terms other than or in
addition to those set forth in the applicable
Invitation for Competitive Bid Quotes; or
(C) arrives after the time set forth in
subsection (d)(i) above.
(e) Notice to Borrowers. The Administrative Agent shall
promptly notify the Borrowers of the terms (x) of any Competitive Bid
Quote submitted by a Lender that is in accordance with subsection (d)
of this Section and (y) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid
Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be
disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote is submitted solely to correct a manifest error
in such former Competitive Bid Quote. The Administrative Agent's notice
to the Borrowers shall specify (A) the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each
Interest Period specified in the related Competitive Bid Quote Request,
(B) the principal amounts and Competitive Bid Margins so offered and
(C) if applicable, limitations on the aggregate principal amount of
Competitive Bid Loans for which offers in any single Competitive Bid
Quote may be accepted.
(f) Acceptance and Notice by Borrowers. Not later than 11:00
A.M. (New York City time) on the third (3rd) Business Day prior to the
proposed date of borrowing (or such other time or date as the Borrowers
and the Administrative Agent shall have mutually agreed and shall have
notified the Lenders not later than the date of the Competitive Bid
Quote Request for the first LIBOR Auction for which such change is to
be effective), the Borrowers shall telephonically notify the
Administrative Agent of its acceptance or non-acceptance of the offers
so notified to them pursuant to subsection (e) of this Section 2.2, and
the Borrowers shall confirm such telephonic notification in writing not
later than the third (3rd) Business Day prior to the proposed date of
borrowing. In the case of acceptance, such notice (a "NOTICE OF
COMPETITIVE BID BORROWING"), whether telephonic or in writing, shall
specify the aggregate principal amount of offers for each Interest
Period that are accepted and shall be accompanied by an officer's
certificate of the Borrowers with respect to compliance with (including
calculation of) Section 7.2. Any Competitive Bid Loan accepted by the
Borrowers and made by the Lenders shall utilize the Revolving Committed
Amount (but not the Commitments of the Lenders making such Competitive
Bid Loan), and the Revolving Credit Availability shall be reduced by
the amount of any Competitive Bid Loans. The Borrowers may accept any
Competitive Bid Quote in whole or in part; provided that:
-31-
(i) the aggregate principal amount of each
Competitive Bid Loan borrowing may not exceed the applicable
amount set forth in the related Competitive Bid Quote Request;
(ii) the principal amount of each Competitive Bid
Loan borrowing must be $5,000,000 or a larger multiple of
$1,000,000 (or, if the Revolving Credit Availability then is
less than $5,000,000, such lesser amount);
(iii) acceptance of offers may only be made on the
basis of ascending Competitive Bid Margins; and
(iv) the Borrowers may not accept any offer that is
described in subsection (d)(iii) of this Section or that
otherwise fails to comply with the requirements of this Credit
Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Lenders with the same Competitive Bid Margins for a greater
aggregate principal amount than the amount in respect of which such
offers are permitted to be accepted for the related Interest Period,
the principal amount of Competitive Bid Loans in respect of which such
offers are accepted shall be allocated by the Administrative Agent
among such Lenders as nearly as possible (in multiples of $1,000,000,
as the Administrative Agent may deem appropriate) in proportion to the
aggregate principal amounts of such offers; provided, that the
principal amount of such Competitive Bid Loans shall be allocated among
such Lenders, in ascending order from those subject to the lowest
Competitive Bid Margin to those subject to the highest Competitive Bid
Margin, as applicable to provide to the Borrowers the lowest effective
cost based on offers accepted. Determinations by the Administrative
Agent of the amounts of Competitive Bid Loans shall be conclusive in
the absence of manifest error. The Administrative Agent shall notify
the Borrowers of all offers.
(h) Notification by Administrative Agent. Upon receipt of the
Borrowers' Notice of Competitive Bid Borrowing in accordance with
Section 2.2(f) hereof, the Administrative Agent shall, on the date such
Notice of Competitive Bid Borrowing is received by the Administrative
Agent, notify each Lender of the principal amount of the Competitive
Bid Loan borrowing accepted by the Borrowers and of such Lender's share
(if any) of such Competitive Bid Loan borrowing and such Notice of
Competitive Bid Borrowing shall not thereafter be revocable by the
Borrowers. A Lender who is notified that it has been selected to make a
Competitive Bid Loan may designate its Designated Bank (if any) to fund
such Competitive Bid Loan on its behalf, as described in Section
11.3(e). Any Designated Bank which funds a Competitive Bid Loan shall
on and after the time of such funding become the obligee under such
Competitive Bid Loan and be entitled to receive payment thereof when
due. No Lender shall be relieved of its obligation to fund a
Competitive Bid Loan, and no Designated Bank shall assume such
obligation, prior to the time the applicable Competitive Bid Loan is
funded.
-32-
(i) Each Competitive Bid Loan shall mature, and the principal
amount thereof shall be due and payable, together with the accrued
interest thereon, on the last day of the Interest Period applicable to
such borrowing.
2.3. LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require (so long as such terms and
conditions do not impose any financial obligation on or require any
Lien (not otherwise contemplated by this Credit Agreement) to be given
by any Credit Party or conflict with any obligation of, or detract from
any action which may be taken by, any Credit Party or its Subsidiaries
under this Credit Agreement), the Issuing Lender agrees, in reliance
upon the agreements of the other Lenders set forth in this Section 2.3,
from time to time upon request to issue (from the Effective Date to the
Revolving Loan Maturity Date and in a form reasonably acceptable to the
Issuing Lender), in Dollars, and the LOC Participants shall participate
in, Letters of Credit for the account of the Credit Parties or any of
their Subsidiaries; provided, however, that (i) the aggregate amount of
LOC Obligations shall not at any time exceed the LOC Committed Amount,
(ii) the sum of the aggregate amount of LOC Obligations outstanding
plus Loans outstanding shall not exceed the Revolving Committed Amount
and (iii) with respect to each individual LOC Participant, such LOC
Participant's pro rata share of outstanding Committed Loans plus its
pro rata share of outstanding LOC Obligations shall not exceed such LOC
Participant's Commitment. The Issuing Lender may require the issuance
and expiry date of each Letter of Credit to be a Business Day. Each
Letter of Credit shall be either (x) a standby letter of credit issued
to support the obligations (including pension or insurance
obligations), contingent or otherwise, of a Credit Party or any of its
Subsidiaries, or (y) a commercial letter of credit in respect of the
purchase of goods or services by a Credit Party or any of its
Subsidiaries in the ordinary course of business. Except as otherwise
expressly agreed upon by all the LOC Participants, no Letter of Credit
shall have an original expiry date more than one year from the date of
issuance or shall have an expiry date that is less than 30 days prior
to the Revolving Loan Maturity Date. Each Letter of Credit shall comply
with the related LOC Documents. Each Letter of Credit shall be deemed
to remain outstanding until it has expired or the original documents
evidencing such Letter of Credit have been returned to the Issuing
Lender.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender at least
three Business Days prior to the requested date of issuance. The
Issuing Lender will, at least quarterly and more frequently upon
request, provide to the Administrative Agent for dissemination to the
Lenders a detailed report specifying the Letters of Credit which are
then issued and outstanding and any activity with respect thereto which
may have occurred since the date of the prior report, and including
therein, among other things, the account party, the beneficiary, the
face amount, and the expiry date as well as any payments or expirations
which may have occurred. The Issuing Lender will further provide to the
Administrative Agent, promptly upon request, copies of the Letters of
Credit and the other LOC Documents.
-33-
(c) Participations.
(i) Each LOC Participant acknowledges and confirms
that it has a Participation Interest in the liability of the
Issuing Lender under each Existing Letter of Credit in an
amount equal to its Revolving Loan Commitment Percentage of
such Existing Letters of Credit. The Credit Parties'
reimbursement obligations in respect of each Existing Letter
of Credit, and each LOC Participant's obligations in
connection therewith, shall be governed by the terms of this
Credit Agreement.
(ii) Each LOC Participant, upon issuance of a Letter
of Credit, shall be deemed to have purchased without recourse
a risk participation from the Issuing Lender in such Letter of
Credit and each LOC Document related thereto and the rights
and obligations arising thereunder and any collateral relating
thereto, in each case in an amount equal to its Revolving Loan
Commitment Percentage of the obligations under such Letter of
Credit, and shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and be obligated
to pay to the Issuing Lender therefor and discharge when due,
its Revolving Loan Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the
scope and nature of each LOC Participant's participation in
any Letter of Credit, to the extent that the Issuing Lender
has not been reimbursed as required hereunder or under any
such Letter of Credit, each such LOC Participant shall pay to
the Issuing Lender (without duplication of its obligations
under Sections 2.3(d) and 2.3(e) to make a Revolving Loan to
the Borrowers) its Revolving Loan Commitment Percentage of
such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) or (e) of this
Section 2.3. The obligation of each LOC Participant to so
reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a
Default, an Event of Default or any other occurrence or event.
Any such reimbursement shall not relieve or otherwise impair
the obligation of the Borrowers to reimburse the Issuing
Lender in respect of any Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the
Borrowers. Unless the Borrowers shall promptly notify the Issuing
Lender of their intent to otherwise reimburse the Issuing Lender, the
Borrowers shall be deemed to have requested a Revolving Loan at a per
annum rate equal to the Base Rate in the amount of such drawing, the
proceeds of which will be used to satisfy the reimbursement
obligations. The Borrowers shall reimburse the Issuing Lender on the
day of drawing under any Letter of Credit either with the proceeds of
such Revolving Loan obtained hereunder or otherwise in same day funds
as provided herein or in the LOC Documents. If the Borrowers shall fail
to reimburse the Issuing Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum
rate equal to the Base Rate plus two percent (2%). The Borrowers'
reimbursement obligations hereunder shall be absolute and unconditional
under all circumstances irrespective of (but without waiver of) any
rights of set-off, counterclaim or defense to payment the applicable
account party or the Borrowers may claim or have against an Issuing
Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
-34-
limitation, any defense based on any failure of the applicable account
party or the Borrowers to receive consideration or the legality,
validity, regularity or unenforceability of such Letter of Credit. The
Issuing Lender will promptly notify the LOC Participants of the amount
of any unreimbursed drawing and each LOC Participant shall promptly pay
to the Issuing Lender, in Dollars and in immediately available funds,
the amount (without duplication of its obligations under Sections
2.3(d) and 2.3(e) to make a Revolving Loan to the Borrowers) of such
LOC Participant's Revolving Loan Commitment Percentage of such
unreimbursed drawing. Such payment shall be made on the day such notice
is received by such Lender from the Issuing Lender if such notice is
received at or before 2:00 p.m., otherwise such payment shall be made
at or before 12:00 Noon on the Business Day next succeeding the day
such notice is received. If such LOC Participant does not pay such
amount to the Issuing Lender in full upon such request, such LOC
Participant shall, on demand, pay to the Issuing Lender interest on the
unpaid amount during the period from the date such LOC Participant
received the notice regarding the unreimbursed drawing until such LOC
Participant pays such amount to the Issuing Lender in full at a rate
per annum equal to, if paid within two Business Days of the date of
drawing, the Federal Funds Rate and thereafter at a rate per annum
equal to the Base Rate. Each LOC Participant's obligation to make such
payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever. Simultaneously with the making of
each such payment by a LOC Participant to the Issuing Lender, such LOC
Participant shall, automatically and without any further action on the
part of the Issuing Lender or such LOC Participant, acquire a
participation in an amount equal to such payment (excluding the portion
of such payment constituting interest owing to the Issuing Lender) in
the related unreimbursed drawing portion of such LOC Obligation and in
the interest thereon and in the related LOC Documents, and shall have a
ratable interest in the Issuing Lender's claim against the Borrowers
with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the
Borrowers shall have requested, or been deemed to have requested, a
Revolving Loan borrowing to reimburse a drawing under a Letter of
Credit (as set forth in clause (d) above), the Administrative Agent
shall give notice to the applicable Lenders that a Revolving Loan has
been requested or deemed requested in connection with a drawing under a
Letter of Credit, in which case a Revolving Loan comprised solely of
Base Rate Loans (each such borrowing, a "MANDATORY BORROWING") shall be
immediately made from all applicable Lenders (without giving effect to
any termination of the Commitments pursuant to Section 9.2) pro rata
based on each Lender's respective Revolving Loan Commitment Percentage
and the proceeds thereof shall be paid directly to the Issuing Lender
for application to the respective LOC Obligations. Each such Lender
hereby irrevocably agrees to make such Revolving Loans immediately upon
any such request or deemed request on account of each such Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and on the same such date notwithstanding (i) the amount of
such Mandatory Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 5.2 are then
satisfied, (iii) whether a Default or Event of Default then exists,
(iv) failure of any such request or deemed request for Revolving Loans
-35-
to be made by the time otherwise required hereunder, (v) the date of
such Mandatory Borrowing, or (vi) any reduction in the Revolving
Committed Amount or any termination of the Commitments. In the event
that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect
to a Credit Party), then each Lender hereby agrees that it shall
forthwith fund (as of the date such Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the
Borrowers on or after such date and prior to such purchase) its
Participation Interest in the outstanding LOC Obligations; provided,
further, that in the event any Lender shall fail to fund its
Participation Interest on the day such Mandatory Borrowing would
otherwise have occurred, then the amount of such Lender's unfunded
Participation Interest therein shall bear interest payable to the
Issuing Lender upon demand, at a rate per annum equal to, if paid
within two Business Days of such date, the Federal Funds Rate, and
thereafter at a rate per annum equal to the Base Rate.
(f) Modification and Extension. The issuance of any
supplement, modification, amendment, renewal, or extensions to any
Letter of Credit shall, for purposes hereof, be treated in all respects
the same as the issuance of a new Letter of Credit hereunder; provided
that the fees to be paid pursuant to Section 3.4(b)(i) shall only be
due if the expiration date of such Letter of Credit is extended.
(g) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the Issuing Lender and the Borrowers when a Letter of Credit
is issued (including any such agreement applicable to an Existing
Letter of Credit), (i) the rules of the "International Standby
Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the
time of issuance) (the "ISP98") shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International
Chamber of Commerce (the "ICC") at the time of issuance (including the
ICC decision published by the Commission on Banking Technique and
Practice on April 6, 1998 regarding the European single currency
(euro)) (the "UCP") shall apply to each commercial Letter of Credit.
(h) Responsibility of Issuing Lender. It is expressly
understood and agreed as between the Lenders that the obligations of an
Issuing Lender hereunder to the LOC Participants are only those
expressly set forth in this Credit Agreement and that an Issuing Lender
shall be entitled to assume that the conditions precedent set forth in
Section 5.2 have been satisfied unless it shall have acquired actual
knowledge that any such condition precedent has not been satisfied;
provided, however, that nothing set forth in this Section 2.3 shall be
deemed to prejudice the right of any LOC Participant to recover from an
Issuing Lender any amounts made available by such LOC Participant to
such Issuing Lender pursuant to this Section 2.3 in the event that it
is determined by a court of competent jurisdiction that the payment
with respect to a Letter of Credit constituted gross negligence or
willful misconduct on the part of such Issuing Lender.
-36-
(i) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document, this Credit
Agreement shall govern.
(j) Indemnification of Issuing Lenders and LOC Participants.
(i) In addition to its other obligations under this
Credit Agreement, the Credit Parties hereby agree to protect,
indemnify, pay and save harmless each Issuing Lender and each
LOC Participant from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that such Issuing
Lender or such LOC Participant may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any
Letter of Credit or (B) the failure of the Issuing Lender to
honor a drawing under a Letter of Credit as a result of any
act or omission, whether rightful or wrongful, of any present
or future de jure or de facto Governmental Authority (all such
acts or omissions, herein called "GOVERNMENT ACTS").
(ii) As between the Credit Parties and each Issuing
Lender and the LOC Participants, the Credit Parties shall
assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuing
Lenders and the LOC Participants shall not be responsible for:
(A) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any Credit Party in
connection with the application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) failure of the
beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon a Letter of Credit;
(D) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex
or otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any document required to be
delivered to the Issuing Lender in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (G)
any consequences arising from causes beyond the control of the
Issuing Lender or any LOC Participant, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender's
or any LOC Participant's rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by any Agent-Related Person, the
Issuing Lender, any LOC Participant or any of the
correspondents, participants or assignees of the Issuing
Lender under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall
not put the Issuing Lender or any LOC Participant under any
resulting liability to the Credit Parties. It is the intention
of the parties that this Credit Agreement shall be construed
and applied to protect and indemnify the Issuing Lender and
each LOC Participant against any and all risks involved in the
issuance of the Letters of Credit, all of which risks are
hereby assumed by the Credit Parties, including, without
limitation, whether rightful or wrongful, any present or
future Government Acts. The Issuing Lender shall not, in any
way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result
of any Government Acts or any other cause beyond the control
of the Issuing Lender or any LOC Participant.
(iv) Nothing in this subsection (j) is intended to
limit the reimbursement obligation of the Credit Parties
contained in this Section 2.3. The obligations of the Credit
Parties under this subsection (j) shall survive the
termination of this Credit Agreement. No act or omission of
any current or prior beneficiary of a Letter of Credit shall
in any way affect or impair the rights of the Issuing Lender
to enforce any right, power or benefit under this Credit
Agreement.
-37-
(v) Notwithstanding anything to the contrary
contained in this subsection (j), the Credit Parties shall
have no obligation to indemnify the Issuing Lender in respect
of any liability incurred by the Issuing Lender arising solely
out of the gross negligence or willful misconduct of the
Issuing Lender. Nothing in this Credit Agreement shall relieve
the Issuing Lender of any liability to the Credit Parties in
respect of any action taken by the Issuing Lender which action
constitutes gross negligence or willful misconduct of the
Issuing Lender or a violation of the ISP98, the UCP or Uniform
Commercial Code (as applicable).
(k) The Issuing Lender shall be under no obligation to issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain the Issuing Lender from issuing such Letter of
Credit, or any Requirement of Law applicable to the Issuing
Lender or any request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over the Issuing Lender shall prohibit, or
request that the Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the Issuing Lender any
unreimbursable loss, cost or expense which was not applicable
on the Closing Date and which the Issuing Lender in good faith
deems material to it; or
(ii) the issuance of such Letter of Credit would
violate one or more policies of the Issuing Lender.
2.4. JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers is accepting joint and several
liability hereunder in consideration of the financial accommodation to
be provided by the Lenders under this Credit Agreement, for the mutual
benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each of the Borrowers to accept
joint and several liability for the obligations of each of them.
-38-
(b) Each of the Borrowers jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Borrower with respect to the payment and performance of all of the
Obligations arising under this Credit Agreement and the other Credit
Documents, it being the intention of the parties hereto that all the
Obligations shall be the joint and several obligations of each of the
Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall
fail to make any payment with respect to any of the Obligations as and
when due or to perform any of the Obligations in accordance with the
terms thereof, then in each such event, the other Borrower will make
such payment with respect to, or perform, such Obligation.
(d) The obligations of each Borrower under the provisions of
this Section 2.4 constitute full recourse obligations of such Borrower,
enforceable against it to the full extent of its properties and assets.
(e) Except as otherwise expressly provided herein, to the
extent permitted by law, each Borrower hereby waives notice of
acceptance of its joint and several liability, notice of occurrence of
any Default or Event of Default (except to the extent notice is
expressly required to be given pursuant to the terms of this Credit
Agreement), or of any demand for any payment under this Credit
Agreement, notice of any action at any time taken or omitted by the
Administrative Agent or the Lenders under or in respect of any of the
obligations hereunder, any requirement of diligence and, generally, all
demands, notices and other formalities of every kind in connection with
this Credit Agreement. Each Borrower hereby assents to, and waives
notice of, any extension or postponement of the time for the payment of
any of the Obligations, the acceptance of any partial payment thereon,
any waiver, consent or other action or acquiescence by the
Administrative Agent or the Lenders at any time or times in respect of
any default by either Borrower in the performance or satisfaction of
any term, covenant, condition or provision of this Credit Agreement,
any and all other indulgences whatsoever by the Administrative Agent or
the Lenders in respect of any of the obligations hereunder, and the
taking, addition, substitution or release, in whole or in part, at any
time or times, of any security for any of such obligations or the
addition, substitution or release, in whole or in part, of either
Borrower. Without limiting the generality of the foregoing, each
Borrower assents to any other action or delay in acting or any failure
to act on the part of the Administrative Agent or the Lenders,
including, without limitation, any failure strictly or diligently to
assert any right or to pursue any remedy or to comply fully with
applicable laws or regulations thereunder which might, but for the
provisions of this Section 2.4, afford grounds for terminating,
discharging or relieving such Borrower, in whole or in part, from any
of its obligations under this Section 2.4, it being the intention of
each Borrower that, so long as any of the Obligations hereunder remain
unsatisfied, the obligations of such Borrower under this Section 2.4
shall not be discharged except by performance and then only to the
extent of such performance. The obligations of each Borrower under this
Section 2.4 shall not be diminished or rendered unenforceable by any
winding up, reorganization, arrangement, liquidation, reconstruction or
similar proceeding with respect to either Borrower or a Lender. The
joint and several liability of the Borrowers hereunder shall continue
in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of either Borrower or any of the
Lenders.
-39-
(f) The provisions of this Section 2.4 are made for the
benefit of the Lenders and their successors and assigns, and may be
enforced by them from time to time against either of the Borrowers as
often as occasion therefor may arise and without requirement on the
part of the Lenders first to marshal any of its claims or to exercise
any of its rights against the other Borrower or to exhaust any remedies
available to it against the other Borrower or to resort to any other
source or means of obtaining payment of any of the Obligations
hereunder or to elect any other remedy. The provisions of this Section
2.4 shall remain in effect until all the Obligations shall have been
paid in full or otherwise fully satisfied. If at any time, any payment,
or any part thereof, made in respect of any of the Obligations is
rescinded or must otherwise be restored or returned by the Lenders upon
the insolvency, bankruptcy or reorganization of either of the
Borrowers, or otherwise, the provisions of this Section 2.4 will
forthwith be reinstated and in effect as though such payment had not
been made.
(g) Notwithstanding any provision to the contrary contained
herein or in any of the other Credit Documents, to the extent the
obligations of either Borrower shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of
any applicable state or federal law relating to fraudulent conveyances
or transfers) then the obligations of such Borrower hereunder shall be
limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the
Bankruptcy Code).
2.5. APPOINTMENT OF BOP.
BRT hereby appoints BOP to act as its agent for all purposes under this
Credit Agreement (including, without limitation, with respect to all matters
related to the borrowing and repayment of Loans) and agrees that (i) BOP may
execute such documents on behalf of BRT as BOP deems appropriate in its sole
discretion and BRT shall be obligated by all of the terms of any such document
executed on its behalf, (ii) any notice or communication delivered by the
Administrative Agent or the Lender to BOP shall be deemed delivered to BRT and
(iii) the Administrative Agent or the Lenders may accept, and be permitted to
rely on, any document, instrument or agreement executed by BOP on behalf of BRT.
2.6. NON-RECOURSE.
Notwithstanding anything herein to the contrary, no recourse shall be
had against Brandywine Realty Services Partnership or any past, present or
future shareholder, officer, director or trustee of BRT for any obligation of
the Credit Parties under the Credit Documents, or for any claim based thereon or
otherwise in respect thereof; provided, however, that this Section 2.6 shall not
restrict or limit any claim against any such Person arising out of or occurring
with respect to fraud or any intentional misrepresentation or any act or
omission that is willful or wanton or constitutes gross negligence or willful
misconduct.
2.7. INCREASE OF REVOLVING COMMITTED AMOUNT.
Unless a Default or an Event of Default has occurred and is continuing,
the Borrowers, by written notice to the Administrative Agent, may request on up
to four (4) occasions during the term of this Agreement that the Revolving
Committed Amount be increased by an amount not less than $25,000,000 per request
and not more than $150,000,000 in the aggregate (such that the Revolving
Committed Amount after such increase shall never exceed $600,000,000); provided
-40-
that for any such request (a) the Borrowers shall not have requested the
extension of the Revolving Loan Maturity Date pursuant to Section 3.5(b), (b)
any Lender which is a party to this Credit Agreement prior to such request for
increase, at its sole discretion, may elect to increase its Commitment, but
shall not have any obligation to so increase its Commitment, and (c) in the
event that a Lender does not elect to increase its Commitment, the Arrangers
shall use commercially reasonable efforts to locate additional lenders (which
qualify as Eligible Assignees) reasonably acceptable to the Administrative Agent
willing to hold commitments for the requested increase. In the event that
Lenders commit to any such increase, (i) the Commitments of the committed
Lenders and the Revolving Committed Amount shall be increased, (ii) the
Revolving Loan Commitment Percentage of each of the Lenders shall be adjusted
according to the reallocated Revolving Loan Commitment Percentages (or, in the
case of a new lender not previously party hereto, added to Schedule 1.1(a)) and
the Borrowers shall make such borrowings and repayments as shall be necessary to
effect a reallocation of the Revolving Loans, (iii) if requested by any Lender
making an additional or new commitment, new or replacement Notes shall be
issued, and (iv) other changes shall be made by way of supplement, amendment or
restatement of any Credit Document as may be necessary or desirable to reflect
the aggregate amount, if any, by which Lenders have agreed to increase their
respective Commitments or any other lenders (which qualify as Eligible
Assignees) have agreed to make new commitments pursuant to this Section 2.7, in
each case notwithstanding anything in Section 11.6 to the contrary, without the
consent of any Lender other than those Lenders increasing their Commitments. The
fees payable by the Borrowers upon any such increase in the Revolving Committed
Amount shall be agreed upon by the Arrangers and the Borrowers at the time of
such increase.
Notwithstanding the foregoing, nothing in this Section 2.7 shall
constitute or be deemed to constitute an agreement by any Lender to increase its
Commitment hereunder.
SECTION 3.
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
3.1. INTEREST.
(a) Interest Rate. All Base Rate Loans (including Swing Loans)
shall accrue interest at the Adjusted Base Rate. All Eurodollar Loans
shall accrue interest at the Adjusted Eurodollar Rate. All Competitive
Bid Loans shall bear interest at a rate per annum equal to the sum of
(i) the Eurodollar Rate determined for the Interest Period (determined
as if the related Competitive Bid Loan were a Revolving Loan which is a
Eurodollar Loan) plus (ii) the Competitive Bid Margin quoted by the
Lender making such Competitive Bid Loan in accordance with Section 2.2.
(b) Default Rate of Interest. Upon the occurrence, and during
the continuance, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents (including without
limitation fees and expenses) shall bear interest, payable on demand,
at a per annum rate equal to four percent (4%) plus the rate which
would otherwise be applicable (or if no rate is applicable, then the
rate for Base Rate Loans plus four percent (4%) per annum); provided
that unless the Loans have been accelerated, interest, including the
default rate of interest, shall only be due and payable on the Interest
Payment Dates.
-41-
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date. If an Interest
Payment Date falls on a date which is not a Business Day, such Interest
Payment Date shall be deemed to be the succeeding Business Day, except
that in the case of Eurodollar Loans and Competitive Bid Loans where
the succeeding Business Day falls in the succeeding calendar month,
such Interest Payment Date shall be the preceding Business Day.
3.2. PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Borrower under this Credit Agreement shall be made by such
Borrower unconditionally and without deduction for any counterclaim, defense,
recoupment or setoff and received not later than 2:00 p.m. on the date when due,
in Dollars and in immediately available funds, to the Administrative Agent at
its offices in New York City, New York or to the Swing Lender at its applicable
address or Issuing Lender at its applicable address. Payments received after
such time shall be deemed to have been received on the next Business Day. The
Borrowers shall, at the time they make any payment under this Credit Agreement,
specify to the Administrative Agent, Swing Lender or Issuing Lender, as
applicable, the Loans, Letters of Credit, fees or other amounts payable by the
Borrowers hereunder to which such payment is to be applied (and in the event
that they fail to specify, or if such application would be inconsistent with the
terms hereof, the Administrative Agent shall, subject to Section 3.7, distribute
such payment to the Lenders in such manner as the Administrative Agent may deem
appropriate). The Administrative Agent will distribute any such payment to the
Lenders on the day received if such payment is received prior to 2:00 p.m.;
otherwise the Administrative Agent will distribute such payment to the Lenders
on the next succeeding Business Day. Whenever any payment hereunder shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day (subject to accrual of
interest and fees for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be made on the
next preceding Business Day.
3.3. PREPAYMENTS.
(a) Voluntary Prepayments. The Borrowers shall have the right
to prepay Committed Loans, in whole or in part from time to time
without premium or penalty; provided, however, that (i) Eurodollar
Loans may only be prepaid on three Business Days' prior written notice
to the Administrative Agent and any prepayment of Eurodollar Loans will
be subject to Section 3.14, (ii) (x) in the case of Eurodollar Loans,
each such partial prepayment shall be in the minimum principal amount
of $1,000,000 and integral multiples of $100,000 in excess thereof, or
(y) in the case of Base Rate Loans, each such partial prepayment shall
be in the minimum principal amount of $500,000 and integral multiples
of $100,000 in excess thereof. Notwithstanding anything contained in
this Credit Agreement to the contrary, Competitive Bid Loans may not be
voluntarily prepaid without the consent of the Lender(s) making such
Competitive Bid Loans.
(b) Mandatory Prepayments.
(i) If at any time (other than if consented to in
writing by the Lenders) the aggregate amount of Loans
outstanding plus LOC Obligations outstanding exceeds the
Revolving Committed Amount, the Borrowers shall immediately
prepay the Loans in the amount of such excess in accordance
with Section 3.3(c); and
-42-
(ii) If at any time after the Closing Date a Change
of Control shall occur (the date on which such Change of
Control occurs being the "Prepayment Date"), the Commitments
shall terminate and reduce to zero and the Borrowers shall
immediately prepay the Loans and cause the return of any
outstanding Letters of Credit on the Prepayment Date as if the
Prepayment Date were the Revolving Loan Maturity Date. The
Borrowers shall make such prepayment on the Prepayment Date
together with all accrued interest on the amount prepaid and
any unpaid fees and expenses that are due and owing. Amounts
prepaid pursuant to this Section 3.3(b)(ii) may not be
reborrowed.
(c) Application of Prepayments. All amounts paid pursuant to
Section 3.3(a) shall be applied as directed by the Borrowers. All
amounts paid pursuant to Section 3.3(a) the application of which has
not been directed by the Borrowers and all amounts required to be paid
pursuant to Section 3.3(b)(i) shall be applied first to Base Rate
Loans, then to Eurodollar Loans in direct order of Interest Period
maturities, and then to Competitive Bid Loans (subject to the last
sentence of Section 3.3(a)). All prepayments hereunder shall be subject
to Section 3.14; provided that prepayments required to be made pursuant
to Section 3.3(b) that repay a Eurodollar Loan within 30 days of the
last day of its Interest Period shall not be subject to Section 3.14.
3.4. FEES.
(a) Facility Fees. In consideration of the Revolving Committed
Amount being made available by the Lenders hereunder, the Borrowers
agree to pay to the Administrative Agent, for the pro rata benefit of
each Lender (based on each Lender's Commitment and the number of days
that such Lender was a Lender during the prior fiscal quarter), a fee
equal to:
(i) for each day that BRT or BOP does not have at
least two Unsecured Senior Debt Ratings in effect, (A) if the
current Applicable Percentage for the Borrowers corresponds to
Pricing Level I or Pricing Level II, 0.15% per annum on the
entire Revolving Committed Amount, or (B) if the current
Applicable Percentage for the Borrowers corresponds to Pricing
Levels III or IV, 0.20% per annum on the entire Revolving
Committed Amount; and
(ii) for each day that BRT or BOP has at least two
Unsecured Senior Debt Ratings in effect, (A) if the current
Applicable Percentage for the Borrowers corresponds to Pricing
Level I, 0.15% per annum on the entire Revolving Committed
Amount, (B) if the current Applicable Percentage for the
Borrowers corresponds to Pricing Levels II or III, 0.20% per
annum on the entire Revolving Committed Amount, or (C) if the
current Applicable Percentage for the Borrowers corresponds to
Pricing Level IV, 0.25% per annum on the entire Revolving
Committed Amount (collectively, the "FACILITY FEES").
The Facility Fees shall commence to accrue on the Effective Date and
shall be due and payable in arrears on the first day of each fiscal
quarter of the Borrowers (as well as on the Revolving Loan Maturity
Date and on any date that the Revolving Committed Amount is reduced)
for the immediately preceding fiscal quarter (or portion thereof),
beginning with the first of such dates to occur after the Effective
Date.
-43-
(b) Letter of Credit Fees.
(i) Letter of Credit Fees. In consideration of the
issuance of Letters of Credit hereunder, the Borrowers agree
to pay to the Issuing Lender, for the pro rata benefit of the
applicable Lenders (based on each Lender's Commitment), a per
annum fee (the "LETTER OF CREDIT FEES") equal to a rate per
annum equal to the Applicable Percentage on the average daily
maximum amount available to be drawn under each such Letter of
Credit from the date of issuance to the date of expiration.
The Letter of Credit Fees will be payable quarterly in arrears
on the first day of each fiscal quarter of the Borrowers after
the issuance of such Letter of Credit (as well as on the
Revolving Loan Maturity Date).
(ii) Issuing Lender Fees. In addition to the Letter
of Credit Fees payable pursuant to subsection (i) above, the
Borrowers shall pay to the Issuing Lender for its own account,
without sharing by the other Lenders, (A) a fee equal to
0.125% per annum on the average daily maximum amount available
to be drawn under each such Letter of Credit issued by the
Issuing Lender from the date of issuance to the date of
expiration, such fee to be paid quarterly in arrears or the
first day of each fiscal quarter of the Borrowers after the
issuance of such Letter of Credit (as well as the Revolving
Loan Maturity Date), and (B) the customary charges from time
to time of the Issuing Lender for its services in connection
with the issuance, amendment, payment, transfer,
administration, cancellation and conversion of, and drawings
under, Letters of Credit (collectively, the "ISSUING LENDER
FEES").
(c) Administrative Fees. The Borrowers agree to pay to the
Administrative Agent, for its own account, an annual fee as agreed to
between the Borrowers and the Administrative Agent in the Fee Letter.
(d) Competitive Bid Fee. Simultaneously with the delivery of
each Notice of Competitive Bid Borrowing, the Borrowers shall pay to
the Administrative Agent for its own account, a fee equal to $2,500.
3.5. PAYMENT IN FULL AT MATURITY; EXTENSION OF MATURITY.
(a) On the Revolving Loan Maturity Date, the Commitments and
the Swing Loan Commitment shall terminate and the entire outstanding
principal balance of all Loans and all LOC Obligations, together with
accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner
pursuant to Section 9.2; provided that Competitive Bid Loans shall also
be due and payable in full as provided in Section 2.2(i).
(b) So long as no Default or Event of Default has occurred and
is continuing, the Borrowers may elect at least 30 days but no more
than 90 days prior to the Initial Revolving Loan Maturity Date, to
extend the Revolving Loan Maturity Date for one (1) year by providing
written notice of such election to the Administrative Agent (which
shall promptly notify each of the Lenders). If on the Initial Revolving
Loan Maturity Date (i) no Default or Event of Default exists and is
-44-
continuing, (ii) the Borrowers pay to the Administrative Agent, for the
pro rata benefit of the Lenders, an extension fee equal to .20% of the
then Revolving Committed Amount, and (iii) the Borrowers have given
written notice to the Administrative Agent of such election to extend
the Revolving Loan Maturity Date within the time frame set forth in
this Section 3.5(b), the Revolving Loan Maturity Date shall be extended
to May __, 2008.
3.6. COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans bearing interest based on the
Prime Rate, which shall be calculated on the basis of a 365 or 366 day
year as the case may be, all computations of interest and fees
hereunder shall be made on the basis of the actual number of days
elapsed over a year of 360 days. Interest shall accrue from and include
the date of borrowing (or continuation or conversion) but exclude the
date of payment.
(b) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Credit Parties are hereby limited by the provisions of this paragraph
which shall override and control all such agreements, whether now
existing or hereafter arising and whether written or oral. In no way,
nor in any event or contingency (including but not limited to
prepayment or acceleration of the maturity of any obligation), shall
the interest taken, reserved, contracted for, charged, or received
under this Credit Agreement, under the Notes or otherwise, exceed the
maximum nonusurious amount permissible under applicable law. If, from
any possible construction of any of the Credit Documents or any other
document, interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and such interest shall be automatically
reduced to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest,
or refunded to the Credit Parties or the other payor thereof if and to
the extent such amount which would have been excessive exceeds such
unpaid principal amount of the Loans. The right to demand payment of
the Loans or any other indebtedness evidenced by any of the Credit
Documents does not include the right to receive any interest which has
not otherwise accrued on the date of such demand, and the Lenders do
not intend to charge or receive any unearned interest in the event of
such demand. All interest paid or agreed to be paid to the Lenders with
respect to the Loans shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full
stated term (including any renewal or extension) of the Loans so that
the amount of interest on account of such indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.
-45-
3.7. PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan borrowing, each payment or
prepayment of principal of any Revolving Loan, each payment of fees
(other than administrative fees payable pursuant to Section 3.4(c) and
Section 3.4(d), the Issuing Lender Fees and, as set forth in Section
3.4(a), the Facility Fees), each reduction of the Revolving Committed
Amount, and each conversion or continuation of any Revolving Loan,
shall (except as otherwise provided in Section 3.11) be allocated pro
rata among the Lenders in accordance with the respective Revolving Loan
Commitment Percentages of the Lenders (or, if the Commitments of the
Lenders have expired or been terminated, in accordance with the
respective principal amounts of the outstanding Loans and Participation
Interests of the Lenders); provided that, if any Lender shall have
failed to pay its applicable pro rata share of any Revolving Loan, then
any amount to which such Lender would otherwise be entitled pursuant to
this Section 3.7 shall instead be payable to the Administrative Agent
until the share of such Loan not funded by such Lender has been repaid;
provided further, that in the event any amount paid to any Lender
pursuant to this Section 3.7 is rescinded or must otherwise be returned
by the Administrative Agent, each Lender shall, upon the request of the
Administrative Agent, repay to the Administrative Agent the amount so
paid to such Lender, with interest for the period commencing on the
date such payment is returned by the Administrative Agent until the
date the Administrative Agent receives such repayment at a rate per
annum equal to, during the period to but excluding the date two
Business Days after such request, the Federal Funds Rate, and
thereafter, at the Base Rate plus two percent (2%) per annum.
(b) Letters of Credit. Each payment of unreimbursed drawings
in respect of LOC Obligations shall be allocated to each LOC
Participant pro rata in accordance with its Revolving Loan Commitment
Percentage; provided that, if any LOC Participant shall have failed to
pay its applicable pro rata share of any drawing under any Letter of
Credit, then any amount to which such LOC Participant would otherwise
be entitled pursuant to this subsection (b) shall instead be payable to
the Issuing Lender until the share of such unreimbursed drawing not
funded by such Lender has been repaid; provided further, that in the
event any amount paid to any LOC Participant pursuant to this
subsection (b) is rescinded or must otherwise be returned by the
Issuing Lender, each LOC Participant shall, upon the request of the
Issuing Lender, repay to the Administrative Agent for the account of
the Issuing Lender the amount so paid to such LOC Participant, with
interest for the period commencing on the date such payment is returned
by the Issuing Lender until the date the Issuing Lender receives such
repayment at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus two percent (2%) per
annum.
3.8. SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the Bankruptcy
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
-46-
other similar law or otherwise, or by any other means (other than in connection
with an assignment pursuant to Section 3.15 or Section 11.3 or the repayment of
a Swing Loan to the Swing Lender or the repayment of a Competitive Bid Loan to a
particular Competitive Bid Lender), in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly pay
in cash or purchase from the other Lenders a participation in such Loans and
other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Credit Parties agree that
any Lender so purchasing such a participation may, to the fullest extent
permitted by law, exercise all rights of payment, including setoff, banker's
lien or counterclaim, with respect to such participation as fully as if such
Lender were a holder of such Loan or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender shall fail to remit to the Administrative Agent or any other
Lender an amount payable by such Lender to the Administrative Agent or such
other Lender pursuant to this Credit Agreement on the date when such amount is
due, such payments shall be made together with interest thereon for each date
from the date such amount is due until the date such amount is paid to the
Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
3.9. CAPITAL ADEQUACY.
If, after the date hereof, any Lender has determined that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender, or its parent corporation, with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's (or parent corporation's)
capital or assets as a consequence of its commitments or obligations hereunder
to a level below that which such Lender, or its parent corporation, could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's (or parent corporation's) policies with respect to
capital adequacy), then, upon notice from such Lender to the Borrowers and the
Administrative Agent, the Borrowers shall be obligated to pay to such Lender
such additional amount or amounts as will compensate such Lender (or parent
corporation) on an after-tax basis (after taking into account applicable
deductions and credits in respect of the amount indemnified) for such reduction.
Each determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto. This
covenant shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
-47-
3.10. INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Adjusted Eurodollar Rate or the Eurodollar Rate for such
Interest Period, the Administrative Agent shall give telecopy or telephonic
notice thereof to the Borrowers and the Lenders as soon as practicable
thereafter, and will also give prompt written notice to the Borrowers and the
Lenders when such conditions no longer exist. If such notice is given (a) any
Eurodollar Loans or Competitive Bid Loans requested to be made on the first day
of such Interest Period shall be made as Base Rate Loans and (b) any Loans that
were to have been converted on the first day of such Interest Period to or
continued as Eurodollar Loans shall be converted to or continued as Base Rate
Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans or Competitive Bid Loans shall be made or continued as
such, nor shall the Borrowers have the right to convert Base Rate Loans to
Eurodollar Loans.
3.11. ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans or Competitive Bid Loans as contemplated by this
Credit Agreement, (a) such Lender shall promptly give written notice of such
circumstances to the Borrowers and the Administrative Agent (which notice shall
be promptly withdrawn whenever such circumstances no longer exist), (b) the
commitment of such Lender hereunder to make Eurodollar Loans or Competitive Bid
Loans, continue Eurodollar Loans as such and convert a Base Rate Loan to
Eurodollar Loans shall forthwith be cancelled and, until such time as it shall
no longer be unlawful for such Lender to make or maintain Eurodollar Loans, such
Lender shall then have a commitment only to make a Base Rate Loan when a
Eurodollar Loan is requested and (c) such Lender's Loans then outstanding as
Eurodollar Loans or Competitive Bid Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan or a Competitive
Bid Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Borrowers shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 3.14; provided that no
such payments shall be required if the conversion of a Eurodollar Loan occurs
within 30 days of the last day of the Interest Period of such Eurodollar Loan.
3.12. REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Eurodollar Loans
made by it, any Competitive Bid Loans made by it, its obligation to
make Eurodollar Loans or its obligation to make Competitive Bid Loans,
or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 3.13
(including Non-Excluded Taxes imposed solely by reason of any failure
of such Lender to comply with its obligations (if any) under Section
3.13(b)) and changes in taxes measured by or imposed upon the overall
net income, or franchise tax (imposed in lieu of such net income tax),
of such Lender or its applicable lending office, branch, or any
Affiliate thereof);
-48-
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Adjusted Eurodollar Rate
hereunder; or
(c) shall impose on such Lender any other condition (excluding
any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Loans or issuing or participating in Letters of Credit
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, upon notice to the Borrowers from such Lender, through the
Administrative Agent, in accordance herewith, the Borrowers shall be obligated
to promptly pay such Lender, upon its demand, any additional amounts necessary
to compensate such Lender on an after-tax basis (after taking into account
applicable deductions and credits in respect of the amount indemnified) for such
increased cost or reduced amount receivable, provided that, in any such case,
the Borrowers may elect to convert the Eurodollar Loans made by such Lender
hereunder to Base Rate Loans by giving the Administrative Agent at least one
Business Day's notice of such election, in which case the Borrowers shall
promptly pay to such Lender, upon demand, without duplication, such amounts, if
any, as may be required pursuant to Section 3.14. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section 3.12, it shall provide
prompt notice thereof to the Borrowers, through the Administrative Agent,
certifying (x) that one of the events described in this Section 3.12 has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this Section 3.12 submitted by such Lender, through the
Administrative Agent, to the Borrowers shall be conclusive and binding on the
parties hereto in the absence of manifest error. This covenant shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.13. TAXES.
(a) Except as provided below in this Section 3.13, all
payments made by the Borrowers under this Credit Agreement and any
Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any court, or governmental body, agency or other official,
excluding taxes measured by or imposed upon the overall net income of
any Lender or its applicable lending office, or any branch or Affiliate
thereof, and all franchise taxes, branch taxes, taxes on doing business
or taxes on the overall capital or net worth of any Lender or its
applicable lending office, or any branch or Affiliate thereof, in each
-49-
case imposed in lieu of net income taxes: (i) by the jurisdiction under
the laws of which such Lender, applicable lending office, branch or
Affiliate is organized or is located, or in which its principal
executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii)
by reason of any connection between the jurisdiction imposing such tax
and such Lender, applicable lending office, branch or Affiliate other
than a connection arising solely from such Lender having executed,
delivered or performed its obligations, or received payment under or
enforced, this Credit Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from
any amounts payable to the Administrative Agent or any Lender hereunder
or under any Notes, (A) the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest on any such other amounts payable
hereunder at the rates or in the amounts specified in this Credit
Agreement and any Notes, provided, however, that the Borrowers shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements of
paragraph (b) of this Section 3.13 whenever any Non-Excluded Taxes are
payable by the Borrowers, and (B) as promptly as possible after request
therefor the Borrowers shall send to the Administrative Agent for its
own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the
Borrowers showing payment thereof. If the Borrowers fail to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fail
to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrowers shall indemnify the
Administrative Agent and any Lender for any incremental taxes, interest
or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Credit Agreement and
the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) (A) on or before the date of any payment by the
Borrowers under this Credit Agreement or Notes to such Lender,
deliver to the Borrowers and the Administrative Agent (x) two
duly completed copies of United States Internal Revenue
Service Form W8-BEN or W8-ECI, or successor applicable form,
as the case may be, certifying that it is entitled to receive
payments under this Credit Agreement and any Notes without
deduction or withholding of any United States federal income
taxes and (y) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, certifying that
it is entitled to an exemption from United States backup
withholding tax;
(B) deliver to the Borrowers and the
Administrative Agent two further copies of any such form or
certification on or before the date that any such form or
certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrowers; and
-50-
(C) obtain such extensions of time for
filing and complete such forms or certifications as may
reasonably be requested by the Borrowers or the Administrative
Agent; or
(ii) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, such Lender shall (A) represent to the
Borrowers (for the benefit of the Borrowers and the
Administrative Agent) that it is not a bank within the meaning
of Section 881(c)(3)(A) of the Internal Revenue Code, (B)
furnish to the Borrowers, on or before the date of any payment
by the Borrowers, with a copy to the Administrative Agent, two
accurate and complete original signed copies of Internal
Revenue Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Internal Revenue
Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrowers and
the Administrative Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrowers or
the Administrative Agent for filing and completing such
forms), and (C) agree, to the extent legally entitled to do
so, upon reasonable request by the Borrowers, to provide to
the Borrowers (for the benefit of the Borrowers and the
Administrative Agent) such other forms as may be reasonably
required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to
payments under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder
which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect
to it and such Lender so advises the Borrowers and the Administrative
Agent then such Lender shall be exempt from such requirements. Each
Person that shall become a Lender or a participant of a Lender pursuant
to Section 11.3 shall, upon the effectiveness of the related transfer,
and if applicable, be required to provide all of the forms,
certifications and statements required pursuant to this subsection (b);
provided that in the case of a participant of a Lender, the obligations
of such participant of a Lender pursuant to this subsection (b) shall
be determined as if such participant of a Lender were a Lender except
that such participant of a Lender shall furnish all such required
forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
3.14. COMPENSATION.
Except as expressly set forth in Section 3.3(c), the Borrowers promise
to indemnify each Lender and to hold each Lender harmless from any loss or
expense which such Lender may sustain or incur as a consequence of (a) default
by the Borrowers in making a borrowing of, conversion into or continuation of
Eurodollar Loans, or a borrowing of Competitive Bid Loans, after the Borrowers
have given a notice requesting the same in accordance with the provisions of
this Credit Agreement, (b) default by the Borrowers in making any prepayment of
a Eurodollar Loan or Competitive Bid Loan after the Borrowers have given a
notice thereof in accordance with the provisions of this Credit Agreement and
-51-
(c) any continuation, conversion, payment or prepayment of Eurodollar Loans or
Competitive Bid Loans on a day which is not the last day of an Interest Period
with respect thereto. Such indemnification shall be calculated by the
Administrative Agent and shall include, without limitation, an amount equal to
(i) the amount of interest which would have accrued on the amount so prepaid, or
not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
the applicable Interest Period (or, in the case of a failure to borrow, convert
or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Eurodollar
Loans or Competitive Bid Loans provided for herein minus (ii) the amount of
interest which would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
Eurodollar market. The agreements in this Section 3.14 shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder. Notwithstanding the foregoing, any prepayment of a
Eurodollar Loan made hereunder (as a result of a mandatory requirement of this
Credit Agreement) within thirty (30) days of the end of the Interest Period with
respect to such Eurodollar Loan, shall not be subject to this Section 3.14.
3.15. MITIGATION; MANDATORY ASSIGNMENT.
Each Lender shall use reasonable efforts to avoid or mitigate any
increased cost or suspension of the availability of an interest rate under
Sections 3.9 through 3.14 inclusive to the greatest extent practicable
(including transferring the Loans to another lending office or one of its
Affiliates) unless, in the opinion of such Lender, such efforts would be likely
to have an adverse effect upon it. In the event a Lender makes a request to the
Borrowers for additional payments in accordance with Sections 3.9, 3.10, 3.11,
3.12, 3.13 or 3.14 or a Lender becomes a Defaulting Lender, then, provided that
no Default or Event of Default has occurred and is continuing at such time, the
Borrowers may, at their own expense (such expense to include any transfer fee
payable to the Administrative Agent under Section 11.3(b) and any expense
pursuant to Section 3.14), and in their sole discretion, require such Lender to
transfer and assign in whole (but not in part), without recourse (in accordance
with and subject to the terms and conditions of Section 11.3(b)), all of its
interests, rights and obligations under this Credit Agreement to an Eligible
Assignee which shall assume such assigned obligations (which Eligible Assignee
may be another Lender, if a Lender accepts such assignment); provided that (a)
such assignment shall not conflict with any law, rule or regulation or order of
any court or other governmental authority and (b) the Borrowers or such assignee
shall have paid to the assigning Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the portion of
the Loans hereunder held by such assigning Lender and all other amounts owed to
such assigning Lender hereunder, including amounts owed pursuant to Sections 3.9
through 3.14. Notwithstanding such assignment, and without limiting any other
provision of this Credit Agreement, such assigning Lender shall continue to
benefit from the provisions of Sections 3.9, 3.12, 3.13 and 11.5 with respect to
the period before the effectiveness of such assignment.
-52-
SECTION 4.
GUARANTY
4.1. GUARANTY OF PAYMENT.
Subject to Section 4.7, each of the Guarantors hereby, jointly and
severally, absolutely, irrevocably and unconditionally guarantees to each Lender
the prompt payment of the Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise). This
Guaranty is a guaranty of payment and not of collection and is a continuing
guaranty and shall apply to all Obligations whenever arising.
4.2. OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute, irrevocable
and unconditional, irrespective of the value, genuineness, validity, regularity
or enforceability of any of the Credit Documents or any other agreement or
instrument referred to therein, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Guarantor agrees that this Guaranty may be enforced by the Lenders without
the necessity at any time of resorting to or exhausting any other security or
collateral and without the necessity at any time of having recourse to the Notes
or any other of the Credit Documents or any collateral, if any, hereafter
securing the Obligations or otherwise and each Guarantor hereby waives the right
to require the Lenders to proceed against the Borrowers or any other Person
(including a co-guarantor) or to require the Lenders to pursue any other remedy
or enforce any other right. Each Guarantor further agrees that it shall have no
right of subrogation, indemnity, reimbursement or contribution against the
Borrowers or any other Guarantor of the Obligations for amounts paid under this
Guaranty until such time as the Lenders have been paid in full, all Commitments
under this Credit Agreement have been terminated and no Person or Governmental
Authority shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under the Credit Documents.
Each Guarantor further agrees that nothing contained herein shall prevent the
Lenders from suing on the Notes or any of the other Credit Documents or
foreclosing any security interest in or Lien on any collateral, if any, securing
the Obligations or from exercising any other rights available to any of them
under this Credit Agreement, the Notes, any of the other Credit Documents, or
any other instrument of security, if any, and the exercise of any of the
aforesaid rights and the completion of any foreclosure proceedings shall not
constitute a discharge of any of any Guarantor's obligations hereunder; it being
the purpose and intent of each Guarantor that its obligations hereunder shall be
absolute, independent, irrevocable and unconditional under any and all
circumstances. Neither any Guarantor's obligations under this Guaranty nor any
remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of the Borrowers or by reason of the
bankruptcy or insolvency of the Borrowers. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance of by the Administrative Agent or any Lender
upon this Guaranty or acceptance of this Guaranty. The Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon this Guaranty. All
dealings between the Borrowers and any of the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guaranty. The Guarantors further agree to all rights of set-off as set forth in
Section 11.2.
-53-
4.3. MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Obligations, if any, may be exchanged, compromised or
surrendered from time to time; (b) the Lenders shall not have any obligation to
protect, perfect, secure or insure any such security interests, liens or
encumbrances now or hereafter held, if any, for the Obligations or the
properties subject thereto; (c) the time or place of payment of the Obligations
may be changed or extended, in whole or in part, to a time certain or otherwise,
and may be renewed or accelerated, in whole or in part; (d) the Borrowers and
any other party liable for payment under the Credit Documents may be granted
indulgences generally; (e) any of the provisions of the Notes or any of the
other Credit Documents may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Borrowers or any other party liable for the payment of the Obligations or liable
upon any security therefor may be released, in whole or in part, at, before or
after the stated, extended or accelerated maturity of the Obligations, all
without notice to or further assent by such Guarantor, which shall remain bound
thereon, notwithstanding any such exchange, compromise, surrender, extension,
renewal, acceleration, modification, indulgence or release.
4.4. WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrowers by the Lenders; (b) presentment and
demand for payment or performance of any of the Obligations; (c) protest and
notice of dishonor or of default (except as specifically required in this Credit
Agreement) with respect to the Obligations or with respect to any security
therefor; (d) notice of the Lenders obtaining, amending, substituting for,
releasing, waiving or modifying any security interest, lien or encumbrance, if
any, hereafter securing the Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such security interests, liens or
encumbrances, if any; (e) all other notices to which such Guarantor might
otherwise be entitled; and (f) the benefit of any laws that exonerate or limit
the liability of guarantors or sureties, and any defenses provided by these
laws.
4.5. REINSTATEMENT.
The obligations of the Guarantors under this Guaranty shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
reasonable fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
-54-
4.6. REMEDIES.
The Guarantors agree that, as between the Guarantors, on the one hand,
and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9 (and
shall be deemed to have become automatically due and payable in the
circumstances provided in Section 9) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Obligations
from becoming automatically due and payable) as against any other Person and
that, in the event of such declaration (or such Obligations being deemed to have
become automatically due and payable), such Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the
Guarantors.
4.7. LIMITATION OF GUARANTY.
It is the intention and agreement of the Guarantors, the Administrative
Agent and the Lenders that the obligations of each Guarantor hereunder shall be
valid and enforceable against each Guarantor to the maximum extent permitted by
applicable law. Notwithstanding any provision to the contrary contained herein
or in any of the other Credit Documents, to the extent the obligations of any
Guarantor shall be adjudicated or declared to be invalid or unenforceable for
any reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers) then the
obligations of such Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
4.8. RIGHTS OF CONTRIBUTION.
The Credit Parties agree among themselves that, in connection with
payments made hereunder, each Credit Party shall have contribution rights
against the other Credit Parties as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right of payment to the
obligations of the Credit Parties under the Credit Documents and no Credit Party
shall exercise such rights of contribution until all the Obligations have been
paid in full and the Commitments terminated.
SECTION 5.
CONDITIONS PRECEDENT
5.1. CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extensions of Credit is subject to satisfaction of the
following conditions:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of duly executed copies of: (i) this Credit Agreement; (ii) the
Notes; and (iii) all other Credit Documents required to be delivered on
or before the Effective Date, each in form and substance reasonably
acceptable to the Administrative Agent in its sole discretion.
(b) Partnership Documents. With respect to each Credit Party
that is a partnership, receipt by the Administrative Agent of the
following:
-55-
(i) Partnership Agreements. Certified copies of the
partnership agreement of such Credit Party, together with all
amendments thereto.
(ii) Certificates of Good Standing or Existence. A
certificate of good standing or existence for such Credit
Party issued as of a recent date by its state of organization
and each other state where the failure to qualify or be in
good standing could have a Material Adverse Effect.
(c) Corporate Documents. With respect to each Credit Party
that is a corporation, receipt by the Administrative Agent of the
following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
such Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of such Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Closing Date.
(iii) Good Standing. Copies of certificates of good
standing, existence or their equivalent with respect to such
Credit Party certified as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of
incorporation and each other jurisdiction in which the failure
to so qualify and be in good standing could have a Material
Adverse Effect.
(d) Limited Liability Company Documents. With respect to each
Credit Party that is a limited liability company, receipt by the
Administrative Agent of the following:
(i) Certificate of Formation. A copy of the
certificate of formation of such Credit Party certified to be
true and complete by the appropriate Governmental Authority of
the state or jurisdiction of its formation and certified by
the sole or managing member of such Credit Party to be true
and correct as of the Closing Date.
(ii) Operating Agreement. A copy of the Operating
Agreement of such Credit Party certified by the sole or
managing member of such Credit Party to be true and correct as
of the Closing Date.
(iii) Good Standing. Copies of certificates of good
standing, existence or their equivalent with respect to such
Credit Party certified as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of
formation and each other jurisdiction in which the failure to
so qualify and be in good standing could have a Material
Adverse Effect.
(e) Trust Documents. With respect to BRT, receipt by the
Administrative Agent of the following:
-56-
(i) Declaration of Trust. A copy of the Declaration
of Trust of BRT certified to be true and complete by the
appropriate Governmental Authority of the state or
jurisdiction of its formation and certified by the secretary
of BRT to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the Bylaws of BRT certified by
the trustee of BRT to be true and complete as of the Closing
Date.
(iii) Resolutions. Copies of the resolutions of the
Board of Trustees of BRT approving and adopting the Credit
Documents to which it and each Credit Party is a party, the
transactions contemplated therein and authorizing execution
and delivery thereof by and on behalf of itself and each
Credit Party.
(iv) Good Standing. Copies of certificates of good
standing, existence or their equivalent with respect to BRT
certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of formation
and each other jurisdiction in which the failure to so qualify
and be in good standing could have a Material Adverse Effect.
(v) Incumbency. An incumbency certificate with
respect to each of the Credit Parties, certified by a
secretary or assistant secretary of BRT to be true and correct
as of the Closing Date.
(f) Financial Statements. Receipt and approval by the Lenders
of: the consolidated financial statements of the Credit Parties and
their Subsidiaries for the fiscal year ended December 31, 2003,
including balance sheets and income and cash flow statements, audited
by nationally recognized independent public accountants and containing
an unqualified opinion of such firm that such statements present
fairly, in all material respects, the consolidated financial condition
and results of operations of such Person, and are prepared in
conformity with GAAP.
(g) Financial Projections and Other Information. Receipt and
approval by the Lenders of (i) financial projections for the Combined
Parties and (ii) summary financial projections for each Property, for
the calendar year ending 2004, in a form acceptable to the Lenders, and
such other financial information as any of the Lenders may require.
(h) Opinion of Counsel. Receipt by the Administrative Agent of
opinions (which shall cover, among other things, authority, legality,
validity, binding effect and enforceability), satisfactory to the
Administrative Agent, addressed to the Administrative Agent and the
Lenders and dated as of the Effective Date, from legal counsel to the
Credit Parties.
(i) Material Adverse Effect. There shall not have occurred a
change since December 31, 2003 that has had or could reasonably be
expected to have a Material Adverse Effect.
(j) Litigation. There shall not exist any pending or
threatened action, suit, investigation or proceeding in any court or
before any arbitrator or Governmental Authority against a Credit Party
or any of its Subsidiaries that would have or would reasonably be
expected to have a Material Adverse Effect.
-57-
(k) Officer's Certificate. The Administrative Agent shall have
received a certificate of the Borrowers on behalf of the Credit Parties
as of the Closing Date stating that (i) the Credit Parties and each of
their Subsidiaries are in compliance with all existing material
financial obligations, (ii) no action, suit, investigation or
proceeding is pending or threatened in any court or before any
arbitrator or Governmental Authority that purports to affect a Credit
Party or any transaction contemplated by the Credit Documents, if such
action, suit, investigation or proceeding could have or could be
reasonably expected to have a Material Adverse Effect, (iii) the
financial statements and information delivered pursuant to Sections
5.1(f) and (g) were prepared in good faith and using reasonable
assumptions and (iv) immediately after giving effect to this Credit
Agreement, the other Credit Documents and all the transactions
contemplated herein and therein to occur on such date, (A) each of the
Credit Parties is Solvent, (B) no Default or Event of Default exists,
(C) all representations and warranties contained herein and in the
other Credit Documents are true and correct in all material respects,
and (D) the Credit Parties and their Subsidiaries are in compliance as
of December 31, 2003 with each of the financial covenants set forth in
Section 7.2.
(l) Fees and Expenses. Payment by the Borrowers of all fees
and expenses owed by them to the Lenders and the Administrative Agent,
including, without limitation, payment to the Administrative Agent of
the fees set forth herein and in the Fee Letter.
(m) Consents and Approvals. All governmental, shareholder,
partner, member and third-party consents and approvals necessary or, in
the opinion of the Administrative Agent, desirable in connection with
the Extensions of Credit and the transactions contemplated under the
Credit Documents shall have been duly obtained and shall be in full
force and effect, and a copy of each such consent or approval shall
have been delivered to the Administrative Agent.
(n) Existing Credit Agreement. Receipt by the Administrative
Agent of satisfactory evidence of the repayment of all loans and
obligations under the Existing Credit Agreement and the termination of
the commitments thereunder.
(o) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably and timely
requested by any Lender, including, but not limited to, information
regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material
contracts, debt agreements, property ownership and contingent
liabilities of the Credit Parties and their Subsidiaries.
5.2. CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans (other than a Refunded Swing Loan,
except as provided in Section 2.1(b)(iv)) nor shall an Issuing Lender be
required to issue or extend a Letter of Credit unless:
(a) Delivery of Notice. The Borrowers shall have delivered (i)
in the case of a Committed Loan, a Notice of Borrowing, duly executed
and completed, by the time specified in Section 2.1, (ii) in the case
of a Competitive Bid Loan, a Competitive Bid Quote Request and a Notice
of Competitive Bid Borrowing, in each case duly executed and completed,
in accordance with Section 2.2(b) and (iii) in the case of any Letter
of Credit, to the Issuing Lender, an appropriate request for issuance
in accordance with the provisions of Section 2.3.
-58-
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document shall be
true and correct in all material respects at and as if made as of such
date except to the extent they expressly and exclusively relate to an
earlier date.
(c) No Default. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the
making of the requested Loan (and the application of the proceeds
thereof), or the issuance of a Letter of Credit, as the case may be,
the Revolving Credit Obligations shall not exceed the Revolving
Committed Amount.
(e) Restrictions on Loans. After giving effect to the making
of the requested Revolving Loan, the Borrowers shall be in compliance
with the terms of Section 2.1(g).
The delivery of each Notice of Borrowing, each Competitive Bid
Quote Request, each Notice of Competitive Bid Borrowing, and each
request for issuance of a Letter of Credit shall constitute a
representation and warranty by the Borrowers of the correctness of the
matters specified in subsections (b), (c), (d) and, if applicable, (e)
above.
SECTION 6.
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and
each Lender that:
6.1. FINANCIAL CONDITION.
The financial statements delivered to the Lenders pursuant to Section
5.1(f) and Section 7.1(a) and (b): (a) have been prepared in accordance with
GAAP (subject, in the case of quarterly financial statements, to changes
resulting from audit and normal year-end audit adjustments) and (b) present
fairly the consolidated financial condition, results of operations and cash
flows of the Credit Parties and their Subsidiaries as of such date and for such
periods. Since December 31, 2003, there has been no sale, transfer or other
disposition by any Credit Party or any of its Subsidiaries of any material part
of the business or property of the Credit Parties and their Subsidiaries, taken
as a whole, and no purchase or other acquisition by any of them of any business
or property (including any capital stock or other equity interests of any other
Person) material in relation to the consolidated financial condition of the
Credit Parties and their Subsidiaries, taken as a whole, in each case, which, is
not (i) reflected in the most recent financial statements delivered to the
Lenders pursuant to Section 5.1(f) and Section 7.1 or in the notes thereto or
(ii) otherwise permitted by the terms of this Credit Agreement.
-59-
6.2. NO MATERIAL CHANGE.
Since the later of December 31, 2003 or the date of the last Loan made
under this Credit Agreement, there has been no development or event relating to
or affecting a Combined Party which has had or would be reasonably expected to
have a Material Adverse Effect.
6.3. ORGANIZATION AND GOOD STANDING.
Each Credit Party (a) is either a partnership, a corporation, a limited
liability company or a REIT duly organized or formed, validly existing and in
good standing under the laws of the state (or other jurisdiction) of its
organization or formation, (b) is duly qualified and in good standing as a
foreign partnership, a foreign corporation, a foreign limited liability company
or a foreign REIT and authorized to do business in every other jurisdiction
where the failure to be so qualified, in good standing or authorized would have
or would reasonably be expected to have a Material Adverse Effect and (c) has
the power and authority to own its properties and to carry on its business as
now conducted and as proposed to be conducted.
6.4. DUE AUTHORIZATION.
Each Credit Party (a) has the power and authority to execute, deliver
and perform this Credit Agreement and the other Credit Documents to which it is
a party and to incur the obligations herein and therein provided for and to
consummate the transactions contemplated herein and therein and (b) is duly
authorized, and has been authorized by all necessary action, to execute, deliver
and perform this Credit Agreement and the other Credit Documents to which it is
a party and to consummate the transactions contemplated herein and therein.
6.5. NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated herein and therein, nor the
performance of or compliance with the terms and provisions hereof and thereof by
a Credit Party will (a) violate or conflict with any provision of its
organizational or governing documents, (b) violate, contravene or materially
conflict with any Requirement of Law or any other law, regulation (including,
without limitation, Regulation U or Regulation X), order, writ, judgment,
injunction, decree or permit applicable to it, (c) violate, contravene or
conflict with contractual provisions of, or cause an event of default under, any
indenture, loan agreement, mortgage, deed of trust, contract or other agreement
or instrument to which it is a party or by which it may be bound, the violation
of which would have or would be reasonably expected to have a Material Adverse
Effect, or (d) result in or require the creation of any Lien upon or with
respect to its properties.
6.6. CONSENTS.
Except for consents, approvals, authorizations and orders that have
been obtained, and filings, registrations and qualifications that have been
made, no consent, approval, authorization or order of, or filing, registration
or qualification with, any court or Governmental Authority or third party in
respect of any Credit Party is required in connection with the execution,
delivery or performance of this Credit Agreement or any of the other Credit
Documents by such Credit Party or the consummation of the transactions
contemplated herein and therein.
-60-
6.7. ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents to which it is a
party have been duly executed and delivered and constitute legal, valid and
binding obligations of each Credit Party enforceable against such Credit Party
in accordance with their respective terms, except as may be limited by
bankruptcy or insolvency laws or similar laws affecting creditors' rights
generally or by general equitable principles.
6.8. NO DEFAULT.
No Combined Party is in default in any respect under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other
agreement or obligation to which it is a party or by which any of its properties
is bound which default would have or would be reasonably expected to have a
Material Adverse Effect. No Default or Event of Default has occurred or exists
except as previously disclosed in writing to the Lenders.
6.9. OWNERSHIP.
Each Credit Party and each of its Subsidiaries is the owner of, and has
good and marketable title to, all of its respective assets and none of such
assets is subject to any Lien other than Permitted Liens.
6.10. INDEBTEDNESS.
The Credit Parties and their Subsidiaries have no Indebtedness except
as otherwise permitted by this Credit Agreement.
6.11. LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings or investigations, pending or, to the knowledge of
any Credit Party, threatened, against a Combined Party which would have or would
be reasonably expected to have a Material Adverse Effect.
6.12. TAXES.
Each Credit Party, and each of its Subsidiaries, has filed, or caused
to be filed, all tax returns (federal, state, local and foreign) required to be
filed and has paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes (i) which are
not yet delinquent or (ii) that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. No Credit Party is aware of any material proposed tax
assessments against it or any of its Subsidiaries.
6.13. COMPLIANCE WITH LAW.
Each Combined Party is in compliance with all Requirements of Law and
all other laws, rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply would not have or would not be reasonably expected to
have a Material Adverse Effect. No Requirement of Law would be reasonably
expected to cause a Material Adverse Effect.
-61-
6.14. COMPLIANCE WITH ERISA.
Except as would not result in or be reasonably expected to result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no ERISA Event has
occurred, and, to the best of each Credit Party's, each Subsidiary of a
Credit Party's and each ERISA Affiliate's knowledge, no event or
condition has occurred or exists as a result of which any ERISA Event
could reasonably be expected to occur, with respect to any Plan; (ii)
no "accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, has
occurred with respect to any Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in material
compliance with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no Lien in favor or the PBGC
or a Plan has arisen or is reasonably likely to arise on account of any
Plan.
(b) The actuarial present value of all "benefit liabilities"
(as defined in Section 4001(a)(16) of ERISA), whether or not vested,
under each Single Employer Plan, as of the last annual valuation date
prior to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions used
in such Plan's most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets of such
Plan.
(c) No Credit Party, Subsidiary of a Credit Party or ERISA
Affiliate has incurred, or, to the best of each such party's knowledge,
is reasonably expected to incur, any withdrawal liability under ERISA
to any Multiemployer Plan or Multiple Employer Plan. No Credit Party,
Subsidiary of a Credit Party or ERISA Affiliate would become subject to
any withdrawal liability under ERISA if any such party were to withdraw
completely from all Multiemployer Plans and Multiple Employer Plans as
of the valuation date most closely preceding the date on which this
representation is made or deemed made. No Credit Party, Subsidiary of a
Credit Party or ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the best of each such party's
knowledge, reasonably expected to be in reorganization, insolvent, or
terminated.
(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject any Credit Party, any Subsidiary of a Credit Party or
any ERISA Affiliate to any liability under Sections 406, 409, 502(i),
or 502(l) of ERISA or Section 4975 of the Code, or under any agreement
or other instrument pursuant to which any Credit Party, any Subsidiary
of a Credit Party or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.
(e) No Credit Party, Subsidiary of a Credit Party or ERISA
Affiliate has material liability with respect to "expected
post-retirement benefit obligations" within the meaning of the
Financial Accounting Standards Board Statement 106. Each Plan which is
a welfare plan (as defined in Section 3(1) of ERISA) to which Sections
601-609 of ERISA and Section 4980B of the Code apply has been
administered in compliance in all material respects with such sections.
-62-
6.15. ORGANIZATION STRUCTURE/SUBSIDIARIES.
As of the Closing Date, (a) Schedule 6.15 is a complete and accurate
organization chart of the Combined Parties, and (b) no Credit Party has any
Subsidiaries or owns an interest, directly or indirectly, in any joint venture,
except as set forth on Schedule 6.15. The outstanding equity interest of all
Subsidiaries of the Credit Parties are validly issued, fully paid and
non-assessable and are owned by the Credit Parties free and clear of all Liens.
Schedule 6.15 shall be updated as of the end of each fiscal quarter as set forth
in Section 7.1(c). Each owner of an Unencumbered Property is a Credit Party.
6.16. USE OF PROCEEDS; MARGIN STOCK.
The proceeds of the Loans, and the Letters of Credit, will be used
solely for the purposes specified in Section 7.10. None of the proceeds of the
Loans, and none of the Letters of Credit, will be used in a manner that would
violate Regulation U, Regulation X, or Regulation T. No proceeds of the Loans,
and no Letter of Credit, will be used for the acquisition of another Person
unless the board of directors (or other comparable governing body) or
stockholders (or other equity owners), as appropriate, of such Person has
approved such acquisition.
6.17. GOVERNMENT REGULATION.
No Credit Party, nor any of its Subsidiaries, is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940 or the Interstate Commerce Act, each as amended.
No director, executive officer or principal shareholder of a Credit Party or any
of its Subsidiaries is a director, executive officer or principal shareholder of
any Lender. For the purposes hereof the terms "director," "executive officer"
and "principal shareholder" (when used with reference to any Lender) have the
respective meanings assigned thereto in Regulation O.
6.18. ENVIRONMENTAL MATTERS.
(a) Except as would not have or be reasonably expected to have
a Material Adverse Effect:
(i) Each of the Properties and all operations at the
Properties are in material compliance with all applicable
Environmental Laws, and there is no violation of any
Environmental Law with respect to the Properties or the
businesses operated by a Credit Party or any of its
Subsidiaries (the "Businesses"), and there are no conditions
relating to the Businesses or Properties that would be
reasonably expected to give rise to liability under any
applicable Environmental Laws.
(ii) No Credit Party, nor any of its Subsidiaries,
has received any written notice of, or inquiry from any
Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability
regarding Hazardous Materials or compliance with Environmental
Laws with regard to any of the Properties or the Businesses,
nor does any Credit Party or any of its Subsidiaries have
knowledge that any such notice is being threatened.
-63-
(iii) Hazardous Materials have not been transported
or disposed of from the Properties, or generated, treated,
stored or disposed of at, on or under any of the Properties or
any other location, in each case by, or on behalf or with the
permission of, any Credit Party or any of its Subsidiaries in
a manner that would reasonably be expected to give rise to
liability under any applicable Environmental Law.
(iv) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of any
Credit Party or any of its Subsidiaries, threatened, under any
Environmental Law to which any Credit Party or any of its
Subsidiaries is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental
Law with respect to any Credit Party or any of its
Subsidiaries, the Properties or the Businesses, in any amount
reportable under the federal Comprehensive Environmental
Response, Compensation and Liability Act or any analogous
state law, except releases in compliance with all
Environmental Laws.
(v) There has been no release or threat of release of
Hazardous Materials at or from the Properties, or arising from
or related to the operations (including, without limitation,
disposal) of a Credit Party or any of its Subsidiaries in
connection with the Properties or otherwise in connection with
the Businesses except in compliance with Environmental Laws.
(vi) None of the Properties contains, or to the best
knowledge of the Credit Parties and their Subsidiaries has
previously contained, any Hazardous Materials at, on or under
the Properties in amounts or concentrations that, if released,
constitute or constituted a violation of, or could give rise
to liability under, Environmental Laws.
(vii) No Credit Party, nor any of its Subsidiaries,
has assumed any liability of any Person (other than a
Borrower) under any Environmental Law.
(b) Each Credit Party, and each of its Subsidiaries, has
adopted procedures that are designed to (i) ensure that each such
party, any of its operations and each of the properties owned or leased
by such party remains in compliance with applicable Environmental Laws
and (ii) minimize any liabilities or potential liabilities that each
such party, any of its operations and each of the properties owned or
leased by each such party may have under applicable Environmental Laws.
6.19. SOLVENCY.
Each Credit Party, is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
-64-
6.20. INVESTMENTS.
All Investments of the Credit Parties and their Subsidiaries are
Permitted Investments.
6.21. LOCATION OF PROPERTIES.
As of the Closing Date, set forth on Schedule 6.21 is (a) a list of all
Properties (with street address, county and state where located) and the owner
of such Property and (b) a list of all Unencumbered Properties. Schedule 6.21
shall be updated as of the end of each fiscal quarter as set forth in Section
7.1(c).
6.22. DISCLOSURE.
Neither this Credit Agreement nor any financial statements delivered to
the Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of any Credit Party in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein not misleading in light of the circumstances in which made;
provided, however, that the Credit Parties make no representation or warranty
regarding the information delivered pursuant to Section 7.1(i).
6.23. LICENSES, ETC.
The Combined Parties have obtained, and hold in full force and effect,
all franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the operation of their respective businesses
as presently conducted, except where the failure to obtain the same would not
have or would not reasonably be expected to have a Material Adverse Effect.
6.24. NO BURDENSOME RESTRICTIONS.
No Combined Party is a party to any agreement or instrument or subject
to any other obligation or any charter or corporate restriction or any provision
of any applicable law, rule or regulation which, individually or in the
aggregate, would have or would be reasonably expected to have a Material Adverse
Effect.
6.25. EXCLUDED MATERIAL SUBSIDIARIES.
With respect to the Excluded Material Subsidiaries:
(a) Brandywine Holdings I, Inc. holds a nominal interest in
BOP to ensure that BOP will at all times have at least two partners,
and has no other activity and owns no other assets.
(b) Each of The Association at Allendale, Inc. and Princeton
Pike V, VI & VII Condominium Association, Inc. is a non-profit
corporation that holds no assets and whose activities are limited to
managing the common spaces of its respective condominium property.
(c) Each of the remaining Excluded Materials Subsidiaries (i)
is an entity which is subject to provisions in its charter documents
that require it to be a "bankruptcy remote" or "single purpose" entity
and therefore prohibit it from, among other things, guaranteeing or
becoming jointly and severally liable for the Indebtedness of others or
(ii) otherwise is excluded for the reasons set forth on Schedule 6.25.
-65-
6.26. FOREIGN ASSETS CONTROL REGULATIONS, ETC.
None of the requesting or borrowing of the Loans, the requesting or
issuance, extension or renewal of any Letters of Credit or the use of the
proceeds of any thereof will violate the Trading With the Enemy Act (50 U.S.C.
ss. 1 et seq., as amended) (the "TRADING WITH THE ENEMY ACT") or any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) (the "FOREIGN ASSETS CONTROL
REGULATIONS") or any enabling legislation or executive order relating thereto
(which for the avoidance of doubt shall include, but shall not be limited to
Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)) (the "EXECUTIVE ORDER"). Furthermore, neither
Borrower nor any of their Subsidiaries or other Affiliates (a) is or will become
a "blocked person" as described in the Executive Order, the Trading With the
Enemy Act or the Foreign Assets Control Regulations or (b) engages or will
engage in any dealings or transactions, or be otherwise associated, with any
such "blocked person".
SECTION 7.
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Obligations have been paid in full
and the Commitments and Letters of Credit hereunder shall have terminated:
7.1. INFORMATION COVENANTS.
The Borrowers will furnish, or cause to be furnished, to the
Administrative Agent and, except as otherwise set forth in this Section, each of
the Lenders:
(a) Annual Financial Statements. As soon as available, and in
any event within 90 days after the close of each fiscal year of the
Credit Parties, a consolidated balance sheet and income statement of
the Credit Parties and their Subsidiaries as of the end of such fiscal
year, together with related consolidated statements of operations and
retained earnings and of cash flows for such fiscal year, setting forth
in comparative form consolidated figures as of the end of and for the
preceding fiscal year, all such financial information described above
to be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agent and whose opinion shall be to
the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants
concur) and shall not be limited as to the scope of the audit or
qualified in any manner.
(b) Quarterly Financial Statements. As soon as available, and
in any event within 45 days after the close of each fiscal quarter of
the Credit Parties (other than the fourth fiscal quarter), a
consolidated balance sheet and income statement of the Credit Parties
and their Subsidiaries, as of the end of such fiscal quarter, together
with related consolidated statements of operations and retained
-66-
earnings and of cash flows for such fiscal quarter in each case setting
forth in comparative form consolidated figures for (A) the
corresponding quarter end and quarterly period of the preceding fiscal
year and (B) management's proposed budget for such period, all such
financial information described above to be in reasonable form and
detail and reasonably acceptable to the Administrative Agent, and
accompanied by a certificate of the chief financial officer of BOP to
the effect that such quarterly financial statements fairly present in
all material respects the financial condition and results of operations
of the Credit Parties and their Subsidiaries and have been prepared in
accordance with GAAP, subject to changes resulting from audit and
normal year-end audit adjustments. The information required pursuant to
this subsection (b) shall be delivered in both electronic and printed
form.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b), a
certificate of the chief financial officer or chief executive officer
of BRT, substantially in the form of Exhibit 7.1(c), (i) demonstrating
compliance with the financial covenants contained in Section 7.2 by
calculation thereof as of the end of each such fiscal period, including
such detail and supporting documentation as reasonably requested by the
Administrative Agent (ii) stating that no Default or Event of Default
exists, or if any Default or Event of Default does exist, specifying
the nature and extent thereof and what action the Borrowers propose to
take with respect thereto, (iii) providing information regarding (A)
Investments in a manner to demonstrate compliance with Section 8.6 and
(B) dividends and redemption of shares in a manner to demonstrate
compliance with Section 8.7 and (iv) updating Schedule 6.15 and
Schedule 6.21 as appropriate. Such certificate shall be delivered in
both electronic and printed form.
(d) Accountant's Certificate. Within the period for delivery
of the annual financial statements provided in Section 7.1(a), a
certificate of the accountants conducting the annual audit stating that
they have reviewed this Credit Agreement and stating further whether,
in the course of their audit, they have become aware of any Default or
Event of Default and, if any such Default or Event of Default exists,
specifying the nature and extent thereof.
(e) Annual Information and Projections. Within 30 days after
the end of each fiscal year of the Credit Parties, all such financial
information regarding the Credit Parties and their Subsidiaries and
specifically regarding the Properties, as the Administrative Agent
shall reasonably request, including, but not limited to, partnership,
limited liability company and joint venture agreements, property cash
flow projections, property budgets, actual and budgeted capital
expenditures, operating statements (current year and immediately
preceding year, if the Property existed as a Property in the
immediately preceding year), mortgage information, rent rolls, lease
expiration reports, leasing status reports, notes payable summary,
bullet notes summary, equity funding requirements, contingent liability
summary, lines of credit summary, lines of credit collateral summary,
wrap notes and notes receivable summary, schedule of outstanding
letters of credit, summary of cash and Cash Equivalents, projection of
management and leasing fees and overhead budgets.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy
of any "management letter" submitted by independent accountants to any
Credit Party or any of its Subsidiaries in connection with any annual,
interim or special audit of the books of such Credit Party or any of
its Subsidiaries.
-67-
(g) Reports. Promptly, (i) and in any case within five (5)
days of receipt or transmission thereof, copies of any filings and
registrations with, and reports to or from, the Securities and Exchange
Commission, or any successor agency, and copies of all financial
statements, proxy statements, notices and reports as any Credit Party
or any of its Subsidiaries shall send to its shareholders, members or
partners generally, (ii) and in any case within ten (10) days of filing
thereof, copies of all income tax returns filed by a Credit Party and
(iii) upon the written request of the Administrative Agent, all reports
and written information to and from the United States Environmental
Protection Agency, or any state or local agency responsible for
environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters; provided, however, that if any
such transmissions are done electronically, the Borrowers shall instead
promptly notify the Administrative Agent of same and provide
information on how to retrieve such information.
(h) Notices. Upon a Credit Party obtaining knowledge thereof,
such Credit Party will give written notice to the Administrative Agent
(which shall promptly forward such notice to the Lenders) immediately
of (i) the occurrence of an event or condition consisting of a Default
or Event of Default, specifying the nature and existence thereof and
what action the Credit Parties propose to take with respect thereto,
(ii) the occurrence of any of the following with respect to any Credit
Party or any of its Subsidiaries: (A) the pendency or commencement of
any litigation or arbitral or governmental proceeding against any
Credit Party or any of its Subsidiaries which if adversely determined
would have or would be reasonably expected to have a Material Adverse
Effect, or (B) the institution of any proceedings against any Credit
Party or any of its Subsidiaries with respect to, or the receipt of
notice by such Person of potential liability or responsibility for,
violation, or alleged violation, of any federal, state or local law,
rule or regulation, including, but not limited to, Environmental Laws,
the violation of which would have or would be reasonably expected to
have a Material Adverse Effect, and (iii) the occurrence of any
enforcement or notice to enforce a completion guaranty and within five
Business Days thereafter provide evidence that the remaining costs to
complete the applicable project are covered by a construction loan
and/or surety bond.
(i) ERISA. Upon a Credit Party or any ERISA Affiliate
obtaining knowledge thereof, the Credit Parties will give written
notice to the Administrative Agent promptly (and in any event within
five Business Days) of: (i) any event or condition, including, but not
limited to, any Reportable Event, that constitutes, or might reasonably
lead to, an ERISA Event; (ii) with respect to any Multiemployer Plan,
the receipt of notice as prescribed in ERISA or otherwise of any
withdrawal liability assessed against a Credit Party, any Subsidiary of
a Credit Party or any ERISA Affiliate, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both within the
meaning of Title IV of ERISA); (iii) the failure to make full payment
on or before the due date (including extensions) thereof of all amounts
which a Credit Party, any Subsidiary of a Credit Party or any ERISA
Affiliate is required to contribute to each Plan pursuant to its terms
as required to meet the minimum funding standard set forth in ERISA and
the Code with respect thereto; or (iv) any change in the funding status
of any Plan that could have a Material Adverse Effect; in each case
together, with a description of any such event or condition or a copy
-68-
of any such notice and a statement by the chief financial officer of
the Borrowers briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by such Credit Party, Subsidiary
or ERISA Affiliate with respect thereto. Promptly upon request, the
Credit Parties shall furnish the Administrative Agent and the Lenders
with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(j) Environmental.
(i) Subsequent to a notice from any Governmental
Authority that would reasonably cause concern or during the
existence of an Event of Default, and upon the written request
of the Administrative Agent, the Credit Parties will furnish
or cause to be furnished to the Administrative Agent, at the
Credit Parties' expense, an updated report of an environmental
assessment of reasonable scope, form and depth, including,
where appropriate, invasive soil or groundwater sampling, by a
consultant reasonably acceptable to the Administrative Agent
as to the nature and extent of the presence of any Hazardous
Materials on any Property and as to the compliance by the
Credit Parties with Environmental Laws. If the Credit Parties
fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request
then the Administrative Agent may arrange for same, and the
Credit Parties hereby grant to the Administrative Agent and
its representatives access to the Properties and a license of
a scope reasonably necessary to undertake such an assessment
(including, where appropriate, invasive soil or groundwater
sampling). The reasonable cost of any assessment arranged for
by the Administrative Agent pursuant to this provision will be
payable by the Credit Parties on demand and added to the
Obligations.
(ii) Each of the Credit Parties and their
Subsidiaries will conduct and complete all investigations,
studies, sampling, and testing and all remedial, removal, and
other actions necessary to address all Hazardous Materials on,
from, or affecting any Property to the extent necessary to be
in compliance with all Environmental Laws and all other
applicable federal, state, and local laws, regulations, rules
and policies and with the orders and directives of all
Governmental Authorities exercising jurisdiction over such
Property to the extent any failure would have or would be
reasonably expected to have a Material Adverse Effect.
(k) Other Information. With reasonable promptness upon any
such request, such other information regarding the Properties or
regarding the business, assets or financial condition of the Credit
Parties and their Subsidiaries as the Administrative Agent or any
Lender may reasonably request.
-69-
7.2. FINANCIAL COVENANTS.
(a) Interest Coverage Ratio. The Interest Coverage Ratio, as
of the end of each fiscal quarter of the Combined Parties for the
twelve month period ending on such date, shall be greater than or equal
to 2.0 to 1.0.
(b) Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio, as of the end of each fiscal quarter of the Combined Parties for
the twelve month period ending on such date, shall be greater than or
equal to 1.5 to 1.0.
(c) Net Worth. At all times, Net Worth shall be greater than
or equal to the sum of (i) $750,000,000 plus (ii) 85% of the Net Cash
Proceeds from all Equity Issuances after the Closing Date (other than
Equity Issuances referred to in the following subclause (iii)) plus
(iii) 85% of the actual increase in Net Worth (if any) resulting from
an Equity Issuance after the Closing Date made in connection with an
Incentive Stock Plan.
(d) Leverage Ratio. The Leverage Ratio, as of the end of each
fiscal quarter of the Combined Parties, shall be less than or equal to
.55 to 1.0.
(e) Unsecured Debt Limitation. At the end of each fiscal
quarter of the Combined Parties, Unsecured Debt shall be less than or
equal to the sum (such sum being referred to herein as the "ADJUSTED
UNENCUMBERED VALUE") of (i) Unencumbered Property Value divided by 1.75
plus (ii) Unencumbered Construction-in-Process and Eligible Land Value
divided by 2; provided that (x) no Property shall account for more than
20% of Adjusted Unencumbered Value and (y) Unencumbered
Construction-in-Process and Eligible Land Value divided by 2 shall not
account for more than 25% of Adjusted Unencumbered Value.
(f) Secured Debt Ratio. The Secured Debt Ratio, as of the end
of each fiscal quarter of the Combined Parties, shall be less than or
equal to .40 to 1.0.
(g) Unencumbered Cash Flow Ratio. The Unencumbered Cash Flow
Ratio, as of the end of each fiscal quarter of the Combined Parties,
shall be greater than or equal to 1.65 to 1.0.
(h) Credit Party Assets. At all times, at least 65% of Total
Asset Value must be owned by the Credit Parties.
7.3. PRESERVATION OF EXISTENCE.
Each of the Credit Parties will do all things necessary to preserve and
keep in full force and effect its existence, rights, franchises and authority
except as permitted by Section 8.4. Without limiting the generality of the
foregoing, BRT will do all things necessary to maintain its status as a REIT.
7.4. BOOKS AND RECORDS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).
-70-
7.5. COMPLIANCE WITH LAW.
Each of the Credit Parties will, and will cause its Subsidiaries to,
comply in all material respects with all material laws, rules, regulations and
orders, and all applicable material restrictions imposed by all Governmental
Authorities, applicable to it and its property (including, without limitation,
Environmental Laws and ERISA).
7.6. PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
pay, settle or discharge (a) all taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that a Credit Party or any of its Subsidiaries shall not be required to
pay any such tax, assessment, charge, levy, claim or Indebtedness which is being
contested in good faith by appropriate proceedings and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) would give rise to an immediate right to
foreclose on a Lien on an Unencumbered Property securing such amounts (unless no
Default or Event of Default would exist after giving effect to the disposition
of such Unencumbered Property) or (ii) would have a Material Adverse Effect.
7.7. INSURANCE.
Each of the Credit Parties will, and will cause its Subsidiaries to, at
all times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice.
7.8. MAINTENANCE OF ASSETS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
maintain and preserve its Properties and all other assets in good repair,
working order and condition, normal wear and tear excepted, and will make, or
cause to be made, in the Properties and other assets, from time to time, all
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
7.9. PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.
7.10. USE OF PROCEEDS.
The Credit Parties will use the proceeds of the Loans solely for
general working capital purposes (including Letters of Credit) and other general
corporate purposes. The Credit Parties will use the Letters of Credit solely for
the purposes set forth in Section 2.3(a).
-71-
7.11. AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will, and will cause its Subsidiaries to, permit representatives appointed
by the Administrative Agent, including, without limitation, independent
accountants, agents, attorneys and appraisers to visit and inspect such Credit
Party's or other Combined Party's property, including, without limitation, the
Properties, its books and records, its accounts receivable and inventory, its
facilities and its other business assets, and to make photocopies or photographs
thereof and to write down and record any information such representative obtains
and shall permit the Administrative Agent or its representatives to investigate
and verify the accuracy of information provided to the Lenders, and to discuss
all such matters with the officers, employees and representatives of the Credit
Parties, their Subsidiaries and any other Combined Party.
7.12. ADDITIONAL CREDIT PARTIES.
At any time a Subsidiary of the Borrowers that is not a Credit Party
becomes the owner (or ground lessor under an Eligible Ground Lease) of Property
that the Borrowers determine to treat as an Unencumbered Property, the Borrowers
shall notify the Administrative Agent and promptly thereafter (but in any event
within 30 days after such event): (a) execute a Joinder Agreement in
substantially the form of Exhibit 7.12 and (b) deliver such other documentation
as the Administrative Agent may reasonably request in connection with the
foregoing, including, without limitation, information regarding the real
property owned by such Person, certified resolutions and other organizational
and authorizing documents of such Person and favorable opinions of counsel to
such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to above), all
in form, content and scope reasonably satisfactory to the Administrative Agent.
7.13. INTEREST RATE PROTECTION AGREEMENTS.
Interest Rate Protection. The Borrowers shall maintain Interest Rate
Hedges on a notional amount of the Funded Debt which, when added to the
aggregate principal amount of the Funded Debt which bears interest at a fixed
rate, equals or exceeds (i) prior to October 1, 2004, 45%, and (ii) from and
after October 1, 2004, 60%, of the aggregate principal amount of all Funded
Debt. "Interest Rate Hedges" shall mean interest rate exchange, collar, cap,
swap, adjustable strike cap, adjustable strike corridor or similar agreements
having terms, conditions and tenors reasonably acceptable to the Administrative
Agent entered into by the Credit Parties in order to provide protection to, or
minimize the impact upon, the Credit Parties of increasing floating rates of
interest applicable to the Funded Debt.
7.14. CONSTRUCTION.
With respect to any construction and development engaged in by the
Combined Parties, the Credit Parties shall or shall cause another Person to: (a)
comply with all applicable regulations and codes and (b) complete all such
construction and development in accordance with approved plans and
specifications.
7.15. ACQUISITIONS AND SALES.
If a Credit Party or one of its Subsidiaries anticipates (a) making an
Investment or an acquisition in excess of $75 million or (b) the sale, lease,
transfer, encumbrance or disposition of a Property (or equity interest therein)
for consideration in excess of $50 million, then five (5) Business Days prior to
such Credit Party (or Subsidiary) taking such action, the Borrowers shall
provide the Administrative Agent written notice of such action, together with a
certification as to compliance with the terms of this Credit Agreement,
including, without limitation, Section 7.2 (on a Pro Forma Basis), after giving
effect to such action prepared and executed by the chief financial officer or
chief executive officer of BRT.
-72-
SECTION 8.
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Obligations have been paid in full
and the Commitments and Letters of Credit hereunder shall have terminated:
8.1. INDEBTEDNESS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness owing from one Credit Party to another Credit
Party;
(c) Indebtedness in respect of current accounts payable and
accrued expenses incurred in the ordinary course of business; and
(d) Other Indebtedness as long as, prior to and after giving
effect thereto, the Credit Parties are otherwise in compliance with the
terms of this Credit Agreement.
8.2. LIENS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Properties or any other assets of any kind (whether real or personal,
tangible or intangible), whether now owned or after acquired, except for
Permitted Liens.
8.3. NATURE OF BUSINESS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
alter the character of its business from that conducted as of the Closing Date
or engage in any business other than the business conducted as of the Closing
Date.
8.4. CONSOLIDATION AND MERGER.
No Credit Party will enter into any transaction of merger or
consolidation or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); provided that notwithstanding the foregoing
provisions of this Section 8.4, (a) any Credit Party may be merged or
consolidated with or into another Credit Party; provided that (i) if the
transaction is between a Borrower and another Credit Party such Borrower is the
continuing or surviving entity; (ii) the Administrative Agent is given prior
written notice of such action, and the Credit Parties execute and deliver such
documents, instruments and certificates as the Administrative Agent may
reasonably request; and (iii) after giving effect thereto no Default or Event of
Default exists; (b) upon prior written notification to the Administrative Agent,
any Credit Party that is a Subsidiary of a Borrower may be dissolved or
liquidated so long as (i) after giving effect thereto no Default or Event of
Default exists, (ii) all assets of such Credit Party shall become assets of
another Credit Party and (iii) the Credit Parties execute and deliver such
documents, instruments and certificates as the Administrative Agent may
reasonably request; and (c) upon prior written notification to the
Administrative Agent, as long as no Default or Event of Default exists, a Credit
Party that has no assets and no revenues may be dissolved or liquidated.
-73-
8.5. SALE OR LEASE OF ASSETS.
(a) No Property may be conveyed, sold, leased, transferred or
otherwise disposed of unless the Borrowers comply with Section 7.15 (if
applicable) and after giving effect thereto no Default or Event of
Default exists.
(b) No equity interest in any Guarantor may be conveyed, sold,
transferred or otherwise disposed of unless the Borrowers comply with
Section 7.15 (if applicable) and after giving effect thereto no Default
or Event of Default exists. Upon the disposition of an equity interest
in a Guarantor in conformance with the terms hereof, if after the
disposition of such equity interest such Guarantor is no longer a
Material Subsidiary or no longer qualifies as the owner of any
Unencumbered Properties the Lenders agree to release such Guarantor
from its obligations hereunder, and the Lenders hereby consent to the
Administrative Agent executing and delivering such releases as
necessary to give effect to such agreement.
8.6. ADVANCES, INVESTMENTS AND LOANS.
Neither the Credit Parties nor any of their Subsidiaries will make any
Investments except for Permitted Investments.
8.7. RESTRICTED PAYMENTS.
BOP will not, directly or indirectly, declare or pay any dividends or
make any other distribution upon any of its shares of beneficial interests or
any shares of its capital stock of any class or with respect to any of its
membership or partnership interests; provided that BOP may pay dividends or make
distributions in an amount not to exceed, in the aggregate, the greater of (i)
90% of Funds From Operations earned subsequent to March 31, 2004 or (ii) the
minimum amount necessary for BRT to maintain its status as a REIT.
8.8. TRANSACTIONS WITH AFFILIATES.
No Credit Party will, nor will it permit any of its Subsidiaries to,
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, trustee, shareholder,
Subsidiary or Affiliate other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm's-length transaction with a
Person other than an officer, director, trustee, shareholder, Subsidiary or
Affiliate.
-74-
8.9. FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will (a) change its fiscal year or (b) change its
articles or certificate of incorporation, its bylaws, its declaration of trust,
its limited liability company agreement, its articles or certificate of
partnership or partnership agreement or any other organization or formation
documents in any manner that would have an adverse effect of the rights of the
Lenders under the Credit Documents; provided that (i) BRT may take such action,
with prior written notice to the Administrative Agent, as is necessary to
maintain its status as a REIT and (ii) the Credit Parties will provide prompt
written notice to the Administrative Agent of any change to be made in
compliance with the terms of this Section 8.9.
8.10. LIMITATIONS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause, incur, assume, suffer or
permit to exist or become effective any consensual encumbrance or restriction of
any kind on the ability of any such Person to pay any Indebtedness owed to the
Credit Parties; provided that a Subsidiary of a Credit Party (which is not
itself a Credit Party) that obtains financing may agree with the provider of
such financing to restrict repayments of Indebtedness owing to Credit Parties.
8.11. OTHER NEGATIVE PLEDGES.
The Credit Parties will not enter into, assume or become subject to any
agreement prohibiting or otherwise restricting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given for
some other obligation except as provided under the Credit Documents; provided
that a Credit Party may agree with a joint venture partner not to pledge its
equity interest in such joint venture.
SECTION 9.
EVENTS OF DEFAULT
9.1. EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. The Credit Parties shall default in the payment
(i) when due of any principal amount of any Loans or any reimbursement
obligation arising from drawings under Letters of Credit or (ii) within
three days of when due of any interest on the Loans or any fees or
other amounts owing hereunder, under any of the other Credit Documents
or in connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was made or deemed
to have been made or delivered.
-75-
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2,
7.3, 7.10, 7.11, 7.12, 7.14 or 8.1 through 8.11 inclusive; or
(ii) default in the due performance or observance by
it of any term, covenant or agreement contained in Section 7.1
and such default shall continue unremedied for a period of
five Business Days after the earlier of a Credit Party
becoming aware of such default or notice thereof given by the
Administrative Agent; or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) or (ii) of this
Section 9.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30
days after the earlier of a Credit Party becoming aware of
such default or notice thereof given by the Administrative
Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement
in any of the other Credit Documents and such default shall continue
unremedied for a period of at least 30 days after the earlier of a
Credit Party becoming aware of such default or notice thereof given by
the Administrative Agent or (ii) any Credit Document (or any provision
of any Credit Document, including Section 4 of this Credit Agreement)
shall fail to be in full force and effect or any Credit Party shall so
assert or any Credit Document shall fail to give the Administrative
Agent and/or the Lenders the security interests, liens, rights, powers
and privileges purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following
with respect to any Credit Party or any of its Subsidiaries: (i) a
court or Governmental Authority having jurisdiction in the premises
shall enter a decree or order for relief in respect of any Credit Party
or any of its Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of any Credit Party or any of its
Subsidiaries or for any substantial part of its property or ordering
the winding up or liquidation of its affairs; or (ii) an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect is commenced against any Credit Party or any
of its Subsidiaries and such petition remains unstayed and in effect
for a period of 60 consecutive days; or (iii) any Credit Party or any
of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person or any
substantial part of its property or make any general assignment for the
benefit of creditors; or (iv) any Credit Party or any of its
Subsidiaries shall be generally unable or shall admit in writing its
inability to pay its debts generally as they become due or any action
shall be taken by such Person in furtherance of any of the aforesaid
purposes.
-76-
(f) Defaults under Other Agreements. With respect to any
recourse Indebtedness (other than Indebtedness outstanding under this
Credit Agreement) of any Credit Party or any of its Subsidiaries in an
aggregate principal amount equal to or in excess of $25,000,000, (i) a
Credit Party or one of its Subsidiaries shall (A) default in any
payment (beyond the applicable grace period with respect thereto, if
any) with respect to any such recourse Indebtedness, or (B) default
(after giving effect to any applicable grace period) in the observance
or performance of any term, covenant or agreement relating to such
recourse Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or permit, the holder or
holders of such recourse Indebtedness (or a trustee or agent on behalf
of such holders) to cause (determined without regard to whether any
notice or lapse of time is required) any such recourse Indebtedness to
become due prior to its stated maturity; or (ii) any such recourse
Indebtedness shall be declared due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment prior
to the stated maturity thereof; or (iii) any such Indebtedness shall
mature and remain unpaid. With respect to any non-recourse Indebtedness
of any Credit Party or any of its Subsidiaries in an aggregate
principal amount in excess of $75,000,000, a default in payment
(whether by acceleration or otherwise) shall occur and such payment
default is not cured or waived within ninety (90) days after the
occurrence thereof.
(g) Judgments. One or more judgments, orders, or decrees shall
be entered against any one or more of any Credit Party or any of its
Subsidiaries involving a liability of $15,000,000 or more, in the
aggregate (to the extent not paid or covered by insurance provided by a
carrier who has acknowledged coverage), and such judgments, orders or
decrees (i) are the subject of any enforcement proceeding commenced by
any creditor or (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last day
on which such judgment, order or decree becomes final and unappealable
or (B) 20 days.
(h) ERISA Events. The occurrence of any of the following
events or conditions, unless such event or occurrence would not have or
be reasonably expected to have a Material Adverse Effect: (1) any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on the assets
of a Credit Party, any Subsidiary of a Credit Party or any ERISA
Affiliate in favor of the PBGC or a Plan; (2) an ERISA Event shall
occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (3) an
ERISA Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (i) the termination of such
Plan for purposes of Title IV of ERISA, or (ii) a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of
(within the meaning of Section 4241 of ERISA), or insolvency (within
the meaning of Section 4245 of ERISA) of such Plan; or (4) any
prohibited transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which may subject a Credit Party, any Subsidiary of a Credit
Party or any ERISA Affiliate to any liability under Sections 406, 409,
502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
-77-
(i) REIT Status. BRT does not maintain its REIT status or is
no longer deemed to be a REIT.
9.2. ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required hereunder), the
Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Borrowers, take any of the following actions
without prejudice to the rights of the Administrative Agent or any Lender to
enforce its claims against the Borrowers, except as otherwise specifically
provided for herein:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other indebtedness or obligations of any and every kind owing by a
Credit Party to any of the Lenders hereunder to be due whereupon the
same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the
Credit Parties agree that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(e), they will
immediately pay) to the Administrative Agent additional cash, to be
held by the Administrative Agent, for the benefit of the Lenders, in a
cash collateral account as additional security for the LOC Obligations
in respect of subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount which may be
drawn under all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights and remedies against a Guarantor and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid fees, all
reimbursement obligations under Letters of Credit and all other indebtedness or
obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders, which notice or other action is expressly waived by the
Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
-78-
9.3. ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent in connection with enforcing the rights of
the Lenders under the Credit Documents;
SECOND, to payment of any fees owed to the Administrative
Agent;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses, (including, without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents;
FOURTH, to the payment of all accrued fees and interest
payable to the Lenders hereunder;
FIFTH, to the payment of the outstanding principal amount of
the Loans, and, with respect to unreimbursed drawings under Letters of
Credit, to the payment or cash collateralization of the outstanding LOC
Obligations pro rata, as set forth below;
SIXTH, to all other Obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations) of amounts available to be applied pursuant to
clauses "THIRD", "FOURTH," "FIFTH," and "SIXTH" above and (c) to the extent that
any amounts available for distribution pursuant to clause "FIFTH" above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Administrative Agent in a cash collateral
account and applied (x) first, to reimburse the Issuing Lender from time to time
for any drawings under such Letters of Credit and (y) then, following the
expiration of all Letters of Credit, to all other Obligations of the types
described in clauses "FIFTH" and "SIXTH" above in the manner provided in this
Section 9.3.
-79-
SECTION 10.
AGENCY PROVISIONS
10.1. APPOINTMENT.
Each Lender hereby designates and appoints JPMorgan Chase Bank as
Administrative Agent of such Lender to act as specified herein and in the other
Credit Documents, and each Lender hereby authorizes the Administrative Agent, as
the agent for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Credit Agreement or any of the other Credit
Documents, or shall otherwise exist against the Administrative Agent. The
provisions of this Section are solely for the benefit of the Administrative
Agent and the Lenders and none of the Credit Parties shall have any rights as a
third party beneficiary of the provisions hereof. In performing its functions
and duties under this Credit Agreement and the other Credit Documents, the
Administrative Agent shall act solely as an agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for any Credit Parties.
10.2. DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties hereunder or
under the other Credit Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3. EXCULPATORY PROVISIONS.
No Agent-Related Person shall be (a) liable for any action lawfully
taken or omitted to be taken by it under or in connection herewith or in
connection with any of the other Credit Documents (except for such Person's own
gross negligence or willful misconduct) or (b) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any of the Credit Parties contained herein or in any of the other Credit
Documents or in any certificate, report, document, financial statement or other
written or oral statement referred to or provided for in, or received by an
Agent-Related Person under or in connection herewith or in connection with the
other Credit Documents, or the enforceability or sufficiency of this Credit
Agreement or any of the other Credit Documents, or for any failure of the Credit
Parties to perform their obligations hereunder or thereunder. No Agent-Related
Person shall be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made by the Credit
Parties in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by an Agent-Related Person to
the Lenders or by or on behalf of the Credit Parties to an Agent-Related Person
or any Lender or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Loans or the
use of the Letters of Credit or of the existence or possible existence of any
Default or Event of Default or to inspect the properties, books or records of
the Credit Parties. No Agent-Related Person is a trustee for the Lenders or owes
any fiduciary duty to the Lenders.
-80-
10.4. RELIANCE ON COMMUNICATIONS.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Administrative Agent with reasonable care). The
Administrative Agent may deem and treat each Lender as the owner of its
interests hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent in accordance with Section 11.3(b). The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Credit
Agreement or under any of the other Credit Documents unless it shall first
receive such advice or concurrence of the Required Lenders (or, to the extent
provided in Section 11.6, all of the Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense (other than any liability or expense resulting from
the gross negligence or willful misconduct of the Administrative Agent) which
may be incurred by it by reason of taking or continuing to take any such action.
The Agent-Related Persons shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or under any of the other Credit Documents in
accordance with a request of the Required Lenders (or to the extent specifically
provided in Section 11.6, all the Lenders) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders
(including their successors and assigns).
10.5. NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or a Credit Party
referring to the applicable Credit Document, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, or otherwise becomes aware of a
Default or Event of Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders (or, to the extent provided in Section 11.6, all of the
Lenders).
10.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that no Agent-Related Person has
made any representations or warranties to it and that no act by any
Agent-Related Person hereafter taken, including any review of the affairs of any
Credit Party, shall be deemed to constitute any representation or warranty by
any Agent-Related Person or any other Lender. Each Lender represents to the
Administrative Agent and the Arranger that it has, independently and without
reliance upon any Agent-Related Person or any other Lender, and based on such
-81-
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, assets, operations, property, financial
and other conditions, prospects and creditworthiness of the Credit Parties and
made its own decision to make its Loans hereunder and enter into this Credit
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Credit Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Credit
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, no
Agent-Related Person shall have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
assets, property, financial or other conditions, prospects or creditworthiness
of the Credit Parties which may come into the possession of any Agent-Related
Person.
10.7. INDEMNIFICATION.
The Lenders agree to indemnify each Agent-Related Person (to the extent
not reimbursed by the Credit Parties and without limiting the obligation of the
Credit Parties to do so), ratably according to their respective Commitments (or
if the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interests of
the Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following payment in full of the Obligations) be imposed on, incurred
by or asserted against such Agent-Related Person in any way relating to or
arising out of this Credit Agreement or the other Credit Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such
Agent-Related Person under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of such Agent-Related Person. If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the Administrative
Agent, be insufficient or become impaired, the Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity (except against its gross negligence or
willful misconduct) is furnished. The agreements in this Section 10.7 shall
survive the payment of the Obligations and all other amounts payable hereunder
and under the other Credit Documents.
10.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Person serving as the Administrative Agent and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Credit Parties as though the Person serving as the Administrative Agent
were not the Administrative Agent hereunder. With respect to the Loans made and
Letters of Credit issued and all obligations owing to it, the Person serving as
the Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Person serving as the Administrative Agent in its individual capacity.
-82-
10.9. SUCCESSOR AGENT.
The Administrative Agent (a) may, at any time, resign upon 20 days
written notice to the Lenders or (b) may be removed, with the consent of the
Borrowers, for willful misconduct or gross negligence by written notice from the
Required Lenders; provided that no consent of the Borrowers shall be required
during the existence and continuation of an Event of Default. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent. In the case of the Administrative Agent's
resignation or removal, if no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 45 days after the notice of resignation or removal, then the retiring
Administrative Agent shall select a successor Administrative Agent provided such
successor is a Lender hereunder or an Eligible Assignee. If no such successor
shall have been appointed by the Administrative Agent, and shall have accepted
such appointment, within 45 days after such notice of resignation, such notice
shall nevertheless become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor as provided above. Upon the acceptance of
any appointment as the Administrative Agent hereunder by a successor, if any,
such successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent, and the retiring or removed Administrative Agent shall be
discharged from its duties and obligations as the Administrative Agent, as
appropriate, under this Credit Agreement and the other Credit Documents and the
provisions of this Section 10.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent under
this Credit Agreement.
Bank of America, N.A., as syndication agent hereunder, and Citicorp
North America, Inc., Wells Fargo Bank, National Association, and Wachovia Bank,
National Association, each as a co-documentation agent hereunder, may each
resign at any time without any requirement that a successor syndication agent or
co-documentation agent, respectively, be appointed in its stead.
SECTION 11.
MISCELLANEOUS
11.1. NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device), (c)
the Business Day following the day on which the same has been delivered prepaid
or on an invoice arrangement to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers set forth on Schedule
11.1, or at such other address or numbers as such party may specify by written
notice to the other parties hereto.
11.2. RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and the commencement of remedies described in
Section 9.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
-83-
rights being hereby expressly waived), to set off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any time
held or owing by such Lender (including, without limitation, branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or the
account of any Credit Party against obligations and liabilities of such Credit
Party to the Lenders hereunder, under the Notes, the other Credit Documents or
otherwise, irrespective of whether the Administrative Agent or the Lenders shall
have made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be contingent or unmatured, and any such set-off
shall be deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such Lender
subsequent thereto. The Credit Parties hereby agree that any Person purchasing a
participation in the Loans and Commitments hereunder pursuant to Section 11.3(c)
or 3.8 may exercise all rights of set-off with respect to its participation
interest as fully as if such Person were a Lender hereunder.
11.3. BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that none of the Credit
Parties may assign and transfer any of its interests (except as
permitted by Sections 8.4 or 8.5) without the prior written consent of
the Lenders (and any attempt at such assignment or transfer without
such consent shall be null and void); and provided further that the
rights of each Lender to transfer, assign or grant participations in
its rights and/or obligations hereunder shall be limited as set forth
in subsections (b) and (c) of this Section 11.3. Notwithstanding the
above (including anything set forth in subsections (b) and (c) of this
Section 11.3), nothing herein shall restrict, prevent or prohibit any
Lender from (A) pledging or assigning a security interest in its rights
hereunder or under its Notes, if any, to secure obligations of such
Lender, including any pledge or assignment to a Federal Reserve Bank in
support of borrowings made by such Lender from such Federal Reserve
Bank; provided that no such pledge or assignment shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto, or (B) granting assignments
or participations in such Lender's Loans and/or Commitments hereunder
to its parent company and/or to any Affiliate of such Lender or to any
existing Lender or Affiliate thereof.
(b) Assignments. In addition to the assignments permitted by
Section 11.3(a), each Lender may, with the prior written consent of the
Borrowers, the Issuing Lender and the Administrative Agent (provided
that no consent of the Borrowers shall be required during the existence
and continuation of an Event of Default), which consent shall not be
unreasonably withheld or delayed, assign all or a portion of its rights
and obligations hereunder pursuant to an assignment agreement
substantially in the form of Exhibit 11.3 to one or more Eligible
Assignees; provided that (i) any such assignment shall be in a minimum
aggregate amount of $5,000,000 of the Commitments and in integral
multiples of $1,000,000 above such amount (or the remaining amount of
Commitments held by such Lender) and (ii) each such assignment shall be
of a constant, not varying, percentage of all of the assigning Lender's
rights and obligations under the Commitment being assigned. Any
assignment hereunder shall be effective upon satisfaction of the
conditions set forth above and delivery to the Administrative Agent of
a duly executed assignment agreement together with a transfer fee of
$3,500 payable to the Administrative Agent for its own account. Upon
the effectiveness of any such assignment, the assignee shall become a
"Lender" for all purposes of this Credit Agreement and the other Credit
Documents and, to the extent of such assignment, the assigning Lender
shall be relieved of its obligations hereunder to the extent of the
Loans and Commitment components being assigned. The Borrowers agree
that upon notice of any assignment to an assignee that was not
theretofore a Lender, they will promptly provide to such assignee a new
Note. Each Lender agrees that, in the event it assigns all of its
Commitment hereunder, it shall promptly return the Note or Note(s)
executed by the Borrowers in its favor.
-84-
By executing and delivering an assignment agreement in
accordance with this Section 11.3(b), the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree
with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim
and the assignee warrants that it is an Eligible Assignee; (ii) except
as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto
or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, any of the
other Credit Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of any Credit
Party or the performance or observance by any Credit Party of any of
its obligations under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto
or thereto; (iii) such assigning Lender and such assignee each
represents and warrants that it is legally authorized to enter into
such assignment agreement; (iv) such assignee confirms that it has
received a copy of this Credit Agreement, the other Credit Documents
and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such
assignment agreement; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any
other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Credit Agreement and the
other Credit Documents; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action on its behalf and to exercise
such powers under this Credit Agreement or any other Credit Document as
are delegated to the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of
this Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender.
(c) Participations. Each Lender may, without the consent of,
or notice to, the Borrowers or the Administrative Agent, sell, transfer
or grant participations in all or any part of such Lender's interests
and obligations hereunder; provided that (i) such selling Lender shall
remain a "Lender" for all purposes under this Credit Agreement (such
selling Lender's obligations under the Credit Documents remaining
unchanged) and the participant shall not constitute a Lender hereunder,
(ii) no such participant shall have, or be granted, rights to approve
any amendment or waiver relating to this Credit Agreement or the other
Credit Documents except to the extent any such amendment or waiver
would (A) reduce the principal of or rate of interest on or fees in
-85-
respect of any Loans in which the participant is participating or
increase any Commitments with respect thereto, or (B) postpone the date
fixed for any payment of principal (including the extension of the
final maturity of any Loan or the date of any mandatory prepayment,
other than pursuant to Section 3.5), interest or fees in which the
participant is participating, (iii) sub-participations by the
participant (except to an Affiliate of the participant) shall be
prohibited and (iv) any such participations shall be in a minimum
aggregate amount of $5,000,000 of the Commitments and in integral
multiples of $1,000,000 in excess thereof. In the case of any such
participation, the participant shall not have any rights under this
Credit Agreement or the other Credit Documents (the participant's
rights against the selling Lender in respect of such participation to
be those set forth in the participation agreement with such Lender
creating such participation) and all amounts payable by the Credit
Parties hereunder shall be determined as if such Lender had not sold
such participation; provided, however, that such participant shall be
entitled to receive additional amounts under Sections 3.9, 3.12, 3.13
and 3.14 to the same extent that the Lender from which such participant
acquired its participation would be entitled to the benefit of such
cost protection provisions. Participations by a Person in a Competitive
Bid Loan of any Lender shall not be deemed "participations" for
purposes of this Section 11.3(c) and shall not be subject to the
restrictions on "participations" contained herein.
(d) The Administrative Agent shall maintain at the
Administrative Agent's office at the Agency Services Address a copy of
each assignment agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and LOC Obligations
owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive
absent manifest error, and the Borrowers, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Credit Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrowers and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(e) Any Lender (each, a "DESIGNATING LENDER") may at any time
designate one Designated Bank, which shall be an Affiliate of such
Designated Lender, to fund Competitive Bid Loans on behalf of such
Designating Lender subject to the terms of this Section 11.3(e) and the
provisions in Section 11.3(b) and (c) shall not apply to such
designation. No Lender may designate more than one (1) Designated Bank.
The parties to each such designation shall execute and deliver to the
Administrative Agent for its acceptance a Designation Agreement. Upon
such receipt of an appropriately completed Designation Agreement
executed by a Designating Lender and a designee representing that it is
a Designated Bank, the Administrative Agent will accept such
Designation Agreement and will give prompt notice thereof to the
Borrowers, whereupon, (i) the Borrowers shall execute and deliver to
the Designating Bank a Designated Bank Note payable to the order of the
Designated Bank, (ii) from and after the effective date specified in
the Designation Agreement, the Designated Bank shall become a party to
this Agreement with a right to make Competitive Bid Loans on behalf of
its Designating Lender pursuant to Section 2.2 after the Borrowers have
accepted a Competitive Bid Loan (or portion thereof) of the Designating
Lender, and (iii) the Designated Bank shall not be required to make
payments with respect to any obligations in this Credit Agreement
except to the extent of excess cash flow of such Designated Bank which
is not otherwise required to repay obligations of such Designated Bank
which are then due and payable; provided, however, that regardless of
-86-
such designation and assumption by the Designated Bank, the Designating
Lender shall be and remain obligated to the Borrowers, the
Administrative Agent, and the other Lenders for each and every of the
obligations of the Designating Lender and its related Designated Bank
with respect to this Credit Agreement, including, without limitation,
any indemnification obligations under Section 10.7 hereof and any sums
otherwise payable to the Borrowers by the Designated Bank. Each
Designating Lender shall serve as the administrative agent of the
Designated Bank and shall on behalf of, and to the exclusion of, the
Designated Bank: (i) receive any and all payments made for the benefit
of the Designated Bank and (ii) give and receive all communications and
notices and take all actions hereunder, including, without limitation,
votes, approvals, waivers, consents and amendments under or relating to
this Credit Agreement and the other Credit Documents. Any such notice,
communication, vote, approval, waiver, consent or amendment shall be
signed by the Designating Lender as administrative agent for the
Designated Bank and shall not be signed by the Designated Bank on its
own behalf but shall be binding on the Designated Bank to the same
extent as if actually signed by the Designated Bank. The Borrowers, the
Administrative Agent, and Lenders may rely thereon without any
requirement that the Designated Bank sign or acknowledge the same. No
Designated Bank may assign or transfer all or any portion of its
interest hereunder or under any other Credit Document, other than
assignments to the Designating Lender which originally designated such
Designated Bank.
11.4. NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Credit Parties and the
Administrative Agent or any Lender shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
11.5. PAYMENT OF EXPENSES; INDEMNIFICATION.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket costs
and expenses of (i) each Agent-Related Person in connection with (A) the
negotiation, preparation, execution and delivery, syndication and administration
of this Credit Agreement and the other Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable
fees and expenses of Bingham McCutchen LLP, special counsel to the
Administrative Agent) and (B) any amendment, waiver or consent relating hereto
and thereto including, but not limited to, any such amendments, waivers or
consents resulting from or related to any work-out, renegotiation or restructure
relating to the performance by the Credit Parties under this Credit Agreement,
and (ii) the Agent-Related Persons and the Lenders in connection with (A)
enforcement of the Credit Documents and the documents and instruments referred
to herein and therein, including, without limitation, in connection with any
such enforcement, the reasonable fees and disbursements of counsel for the
Agent-Related Persons and each of the Lenders, and (B) any bankruptcy or
-87-
insolvency proceeding of a Credit Party or any of its Subsidiaries, and (b)
indemnify the Agent-Related Persons, each Lender and its officers, directors,
employees, representatives, Affiliates and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, any investigation, litigation or other proceeding (whether
or not any Agent-Related Person or any Lender is a party thereto) related to (i)
the entering into and/or performance of any Credit Document or the use of
proceeds of any Extensions of Credit or the consummation of any other
transactions contemplated in any Credit Document, including, without limitation,
the reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct on the part of the Person
to be indemnified), (ii) any Environmental Claim and (iii) any claims for
Non-Excluded Taxes.
11.6. AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the Credit Parties; provided that
no such amendment, change, waiver, discharge or termination shall without the
written consent of each Lender affected thereby:
(a) extend the final maturity of any Loan or any portion
thereof or postpone any other date fixed for any payment of principal
(other than in accordance with Section 3.5(b)) or permit the expiration
date of any Letter of Credit to be after the Revolving Loan Maturity
Date;
(b) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) change the Commitment of a Lender from the amount thereof
in effect, other than pursuant to an assignment permitted under
Sections 3.5 or 11.3(b) or any reduction of the Commitment by the
Borrowers pursuant to Section 2.1(e) (it being further understood and
agreed that a waiver of any Default or Event of Default or a waiver of
any mandatory reduction in the Commitments shall not constitute a
change in the terms of any Commitment of any Lender);
(e) release either Borrower from its obligations, or all or
substantially all of the Guarantors from their obligations, under the
Credit Documents; provided that the Administrative Agent may release a
Guarantor if an equity interest in a Guarantor is transferred in
accordance with Section 8.5 or equity is issued in accordance with
Section 11.20;
(f) amend, modify or waive any provision of this Section 11.6
or Section 3.4(a), 3.4(b), 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14,
5.2, 9.1(a), 11.2, 11.3, 11.5 or 11.10 or any provision of any Credit
Document which, by its express terms, requires the consent, approval,
agreement or satisfaction of all of the Lenders;
-88-
(g) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders; or
(h) consent to the assignment or transfer by any Credit Party
of any of its rights and obligations under (or in respect of) the
Credit Documents other than any assignment or transfer by a Guarantor
permitted under this Credit Agreement.
If any amendment, waiver or consent with respect to the Credit Documents has
been delivered in writing to a Lender by the Administrative Agent, and such
amendment, waiver or consent requires only the approval of the Required Lenders
to become effective, then such Lender shall have ten Business Days from the date
of receipt of such amendment, waiver or consent to respond thereto. Failure of a
Lender to timely respond to such amendment, waiver or consent shall be deemed an
approval by such Lender to such amendment, waiver or consent.
No provision of Sections 2.2 or 2.3 may be amended or modified without the
consent of the Swing Lender or Issuing Lender, as applicable. No provision of
Section 10 may be amended or modified without the consent of the Administrative
Agent.
Any increase in the Revolving Committed Amount pursuant to Section 2.7 hereof,
shall be effective only after obtaining the consent of each of the Lenders
electing to increase its respective Commitment and no other consent by any
Lender not electing to increase its Commitment shall be required for any such
increase in the Revolving Committed Amount.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans or the
Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency proceeding.
11.7. COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
11.8. HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9. DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
-89-
11.10. SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit and the repayment
of the Loans and other Obligations and the termination of the Commitments
hereunder.
11.11. GOVERNING LAW; JURISDICTION.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document may be
brought in the courts of the State of New York in New York County, or
of the United States for the Southern District of New York and, by
execution and delivery of this Credit Agreement, each Credit Party
hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts. Each
Credit Party further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address for notices pursuant to Section 11.1,
such service to become effective 15 days after such mailing. Nothing
herein shall affect the right of a Lender to serve process in any other
manner permitted by law or to commence legal proceedings or to
otherwise proceed against a Credit Party in any other jurisdiction.
Each Credit Party agrees that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law; provided that nothing in this Section 11.11(a) is intended to
impair a Credit Party's right under applicable law to appeal or seek a
stay of any judgment.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Credit Agreement or any other Credit Document in the courts
referred to in subsection (a) hereof and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
11.12. WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
11.13. TIME.
All references to time herein shall be references to Eastern Standard
Time or Eastern Daylight Time, as the case may be, unless specified otherwise.
-90-
11.14. SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.15. ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.16. BINDING EFFECT.
(a) This Credit Agreement shall become effective at such time
as all of the conditions set forth in Section 5.1 have been satisfied
or waived by the Lenders and it shall have been executed by the Credit
Parties and the Administrative Agent, and the Administrative Agent
shall have received copies hereof (telefaxed or otherwise) which, when
taken together, bear the signatures of each Lender, and thereafter this
Credit Agreement shall be binding upon and inure to the benefit of the
Credit Parties, the Administrative Agent and each Lender and their
respective successors and assigns. Upon this Credit Agreement becoming
effective, the Existing Credit Agreement shall be deemed terminated and
the Credit Parties and the lenders party to the Existing Credit
Agreement shall no longer have any obligations thereunder (other than
those obligations in the Existing Credit Agreement that expressly
survive the termination of the Existing Credit Agreement).
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, LOC Obligations,
interest, fees and other Obligations have been paid in full and all
Commitments and Letters of Credit have been terminated. Upon
termination, the Credit Parties shall have no further obligations
(other than the indemnification provisions that survive) under the
Credit Documents; provided that should any payment, in whole or in
part, of the Obligations be rescinded or otherwise required to be
restored or returned by the Administrative Agent or any Lender, whether
as a result of any proceedings in bankruptcy or reorganization or
otherwise, then the Credit Documents shall automatically be reinstated
and all amounts required to be restored or returned and all costs and
expenses incurred by the Administrative Agent or any Lender in
connection therewith shall be deemed included as part of the
Obligations.
11.17. CONFIDENTIALITY.
Each Lender agrees that it will use its reasonable best efforts to keep
confidential and to cause any representative designated under Section 7.11 to
keep confidential any non-public information from time to time supplied to it
under any Credit Document; provided, however, that nothing herein shall prevent
the disclosure of any such information to (a) the extent a Lender in good faith
believes such disclosure is required by Requirement of Law, (b) counsel for a
Lender or to its accountants and other advisors, (c) bank examiners, auditors or
comparable Persons or any regulatory body having jurisdiction over a Lender, (d)
any Affiliate of a Lender, (e) any other Lender, or any assignee, transferee or
-91-
participant, or, subject to an agreement containing provisions substantially the
same as those of this Section, (i) any potential assignee, transferee or
participant, of all or any portion of any Lender's rights under this Credit
Agreement who is notified of the confidential nature of the information or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrowers and their obligations, (f) any
other Person in connection with any litigation to which any one or more of the
Lenders is a party or (g) any other Person to whom disclosure of such
information a Lender believes is necessary or appropriate in its reasonable
judgment in connection with the exercise of remedies or enforcement of rights
hereunder; and provided further that no Lender shall have any obligation under
this Section 11.17 to the extent any such information becomes available on a
non-confidential basis from a source other than a Credit Party or that any
information becomes publicly available other than by a breach of this Section
11.17.
11.18. FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Administrative Agent,
to promptly take such actions as are necessary to carry out the intent of this
Credit Agreement and the other Credit Documents.
11.19. RELEASE OF GUARANTORS.
If a Guarantor issues equity and as a result thereof such Guarantor is
no longer a Material Subsidiary or no longer qualifies as the owner of
Unencumbered Properties, then, as long as no Default or Event of Default exists
after giving effect to the issuance of such equity and the disqualification as
Unencumbered Properties of all properties owned by such Guarantor, the Lenders
agree to release such Guarantor from its obligations hereunder.
11.20. USA PATRIOT ACT.
Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "ACT"), it is required to obtain, verify and record
information that identifies the Borrowers, which information includes the name
and address of the Borrowers and other information that will allow such Lender
to identify the Borrowers in accordance with the Act.
11.21. LIMITATION ON LIABILITY.
Each Credit Party waives any right to assert or make any claim against
any Lender, the Swing Lender, any Issuing Lender or the Administrative Agent for
(or to sue any Lender, the Swing Lender, any Issuing Lender or the
Administrative Agent upon any claim for) any special, indirect, incidental,
punitive or consequential damages in respect of any breach or wrongful conduct
(whether the claim is based on contract, tort or duty imposed by law) in
connection with, arising out of or in any way related to this Agreement, any
other Credit Document or the transactions contemplated hereby or thereby, or any
act, omission or event in connection therewith.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK}
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWERS: BRANDYWINE REALTY TRUST,
- --------- a Maryland real estate investment trust
By:
------------------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief Executive Officer
BRANDYWINE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
By:
------------------------------------
Name: Gerard H. Sweeney
Title: President and Chief
Executive Officer
Signature Page to Credit Agreement
GUARANTORS: AAPOP 2, L.P., a Delaware limited partnership
- ----------
By: Witmer Operating Partnership I, L.P., a Delaware
limited partnership, one of its general partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust,
its general partner
By: Brandywine Witmer, L.L.C., a Pennsylvania
limited liability company, one of its general
partners
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE AMBASSADOR, L.P., a Pennsylvania
limited partnership
By: Brandywine Ambassador, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
Signature Page to Credit Agreement
BRANDYWINE CENTRAL L.P., a Pennsylvania
limited partnership
By: Brandywine F.C., L.P., a Pennsylvania limited
partnership, its general partner
By: Brandywine F.C., L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment trust,
its general partner
BRANDYWINE CIRA, L.P., a Pennsylvania limited
partnership
By: Brandywine Cira, LLC, a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE F.C., L.P., a Pennsylvania limited
partnership
By: Brandywine F.C., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
Signature Page to Credit Agreement
BRANDYWINE GRANDE B, L.P., a Delaware
limited partnership
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE I.S., L.P., a Pennsylvania limited
partnership
By: Brandywine I.S., L.L.C., a Pennsylvania limited
liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE METROPLEX, L.P., a Pennsylvania
limited partnership
By: Brandywine Metroplex, LLC, a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
Signature Page to Credit Agreement
BRANDYWINE P.M., L.P., a Pennsylvania limited
partnership
By: Brandywine P.M., L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE TB FLORIG, L.P., a Pennsylvania
limited partnership
By: Brandywine TB Florig, LLC, a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE TB INN, L.P., a Pennsylvania limited
partnership
By: Brandywine TB Inn, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
Signature Page to Credit Agreement
BRANDYWINE TB I, L.P., a Pennsylvania limited
partnership
By: Brandywine TB I, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE TB II, L.P., a Pennsylvania limited
partnership
By: Brandywine TB II, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE TB V, L.P., a Pennsylvania limited
partnership
By: Brandywine TB V, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
Signature Page to Credit Agreement
BRANDYWINE TB VI, L.P., a Pennsylvania limited
partnership
By: Brandywine TB VI, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
BRANDYWINE TB VIII, L.P., a Pennsylvania limited
partnership
By: Brandywine TB VIII, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
C/N IRON RUN LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
C/N LEEDOM LIMITED PARTNERSHIP II, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
Signature Page to Credit Agreement
C/N OAKLANDS LIMITED PARTNERSHIP I, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole member
By: Brandywine Realty Trust,
a Maryland real estate
investment trust,
its general partner
C/N OAKLANDS LIMITED PARTNERSHIP III, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its
general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
E-TENANTS.COM HOLDING, L.P., a Pennsylvania
limited partnership
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its
general partner
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
Signature Page to Credit Agreement
FIFTEEN HORSHAM, L.P., a Pennsylvania limited
partnership
By: Witmer Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment trust,
its general partner
IRON RUN LIMITED PARTNERSHIP V, a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
Signature Page to Credit Agreement
LC/N HORSHAM LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment trust,
its general partner
LC/N KEITH VALLEY LIMITED PARTNERSHIP I,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment trust,
its general partner
Signature Page to Credit Agreement
NEWTECH IV LIMITED PARTNERSHIP, a
Pennsylvania limited partnership
By: Witmer Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment trust,
its general partner
NICHOLS LANSDALE LIMITED PARTNERSHIP III,
a Pennsylvania limited partnership
By: Witmer Operating Partnership I, L.P., a Delaware
limited partnership, its general partner
By: Brandywine Witmer L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating
Partnership, L.P., a Delaware
limited partnership, its sole
member
By: Brandywine Realty
Trust, a Maryland real
estate investment trust,
its general partner
Signature Page to Credit Agreement
WITMER OPERATING PARTNERSHIP I, L.P., a
Delaware limited partnership
By: Brandywine Witmer, L.L.C., a Pennsylvania
limited liability company, its general partner
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
100 ARRANDALE ASSOCIATES, L.P., a Pennsylvania
limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
111 ARRANDALE ASSOCIATES, L.P., a Pennsylvania
limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general
partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
440 CREAMERY WAY ASSOCIATES, L.P., a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
Signature Page to Credit Agreement
442 CREAMERY WAY ASSOCIATES, L.P., a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
481 JOHN YOUNG WAY ASSOCIATES, L.P., a
Pennsylvania limited partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
INTERSTATE CENTER ASSOCIATES, a Virginia
general partnership
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, one of its general
partners
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
By: Brandywine Interstate 50, L.L.C., a
Delaware limited liability company, one
of its general partners
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
Signature Page to Credit Agreement
IR NORTHLIGHT II ASSOCIATES, a Pennsylvania
general partnership
By: AAPOP 2, L.P., a Delaware limited partnership,
one of its general partners
By: Witmer Operating Partnership I, L.P., a
Delaware limited partnership, one of its
general partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability
company, its general partner
By: Brandywine Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: Brandywine Witmer, L.L.C., a Pennsylvania
limited liability company, one of its general
partners
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a
Maryland real estate investment
trust, its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, one of its general
partners
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
Signature Page to Credit Agreement
PLYMOUTH TFC GENERAL PARTNERSHIP, a
Pennsylvania general partnership
By: Brandywine P.M., L.P., a Pennsylvania Limited
Partnership, its general partner
By: Brandywine P.M., L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By: Witmer Operating Partnership I, L.P., a Delaware
limited partnership, one of its general partners
By: Brandywine Witmer, L.L.C., a
Pennsylvania limited liability company,
its general partner
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
BRANDYWINE REALTY SERVICES
CORPORATION, a Pennsylvania corporation
BTRS, INC., a Delaware corporation
SOUTHPOINT LAND HOLDINGS, INC., a
Pennsylvania corporation
Signature Page to Credit Agreement
VALLEYBROOKE LAND HOLDINGS, INC., a
Pennsylvania corporation
BRANDYWINE AMBASSADOR, L.L.C., a
Pennsylvania limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE BROKERAGE SERVICES, LLC, a
New Jersey limited liability company
By: Brandywine Realty Services Corporation, a
Pennsylvania corporation, its sole member
BRANDYWINE CHARLOTTESVILLE LLC, a
Virginia limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE CHRISTINA LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
Signature Page to Credit Agreement
BRANDYWINE CIRA, LLC, a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real estate
investment trust, its general partner
BRANDYWINE DABNEY, L.L.C., a Delaware limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE DOMINION, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE F.C., L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
Signature Page to Credit Agreement
BRANDYWINE I.S., L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE INTERSTATE 50, L.L.C., a Delaware
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE-MAIN STREET, LLC, a Delaware
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, one of its members
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE METROPLEX LLC, a Pennsylvania
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
Signature Page to Credit Agreement
BRANDYWINE P.M., L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE PIAZZA, L.L.C., a New Jersey
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE PLAZA 1000, L.L.C., a New Jersey
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE PROMENADE, L.L.C., a New Jersey
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
Signature Page to Credit Agreement
BRANDYWINE TB FLORIG, LLC, a Pennsylvania
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its general
partner
BRANDYWINE TB INN, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
BRANDYWINE TB I, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general
partner
BRANDYWINE TB II, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
Signature Page to Credit Agreement
BRANDYWINE TB V, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE TB VI, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE TB VIII, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
BRANDYWINE TRENTON URBAN RENEWAL, L.L.C., a Delaware
limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
Signature Page to Credit Agreement
BRANDYWINE WITMER, L.L.C., a Pennsylvania limited
liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
CHRISTIANA CENTER OPERATING COMPANY III LLC, a
Delaware limited liability company
By: Brandywine Operating Partnership, L.P., a
Delaware limited partnership, its sole member
By: Brandywine Realty Trust, a Maryland real
estate investment trust, its general partner
E-TENANTS LLC, a Delaware limited liability company
By: e-Tenants.com Holding, L.P., a Pennsylvania
limited partnership, its sole member
By: Brandywine Operating Partnership, L.P.,
a Delaware limited partnership, its
general partner
By: Brandywine Realty Trust, a Maryland
real estate investment trust, its
general partner
By:_________________________________________
Name: Gerard H. Sweeney
Title: President and Chief Executive Officer
of each of the above-named entities
Signature Page to Credit Agreement
LENDERS:
JPMORGAN CHASE BANK, as Administrative
Agent, Issuing Lender, and Swing Lender and
individually as a Lender
By: _______________________________________________
Name:
Title:
BANK OF AMERICA, N.A., as Syndication Agent and
Issuing Lender and individually as Lender
By: _______________________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agent and individually as Lender
By:________________________________________________
Name: David Hoagland
Title: Director
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Co-Documentation Agent and
individually as Lender
By: _______________________________________________
Name:
Title:
Signature Page to Credit Agreement
CITICORP NORTH AMERICA, INC. as
Co-Documentation Agent and individually as Lender
By: _______________________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: _______________________________________________
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By: _______________________________________________
Name:
Title:
COMMERZBANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By:________________________________________________
Name: Ralph C. Marra, Jr.
Title: Vice President
Signature Page to Credit Agreement
EUROHYPO AG, NEW YORK BRANCH
By: _______________________________________________
Name:
Title:
By: _______________________________________________
Name:
Title:
Signature Page to Credit Agreement
KEYBANK NATIONAL ASSOCIATION
By: _______________________________________________
Name:
Title:
THE BANK OF NEW YORK
By: _______________________________________________
Name:
Title:
SOUTHTRUST BANK
By: _______________________________________________
Name:
Title:
SUNTRUST BANK
By: _______________________________________________
Name:
Title:
Signature Page to Credit Agreement
NATIONAL CITY BANK
By: _______________________________________________
Name:
Title:
CITIZENS BANK OF PENNSYLVANIA
By: _______________________________________________
Name:
Title:
AMSOUTH BANK
By: _______________________________________________
Name: Robert W. Blair
Title: Vice President
SOVEREIGN BANK
By: _______________________________________________
Name:
Title:
Signature Page to Credit Agreement
MELLON BANK
By: _______________________________________________
Name:
Title:
US BANK NATIONAL ASSOCIATION
By: _______________________________________________
Name:
Title:
BEAR STEARNS CORPORATE LENDING INC.
By: _______________________________________________
Name:
Title:
FIRSTRUST BANK
By: _______________________________________________
Name:
Title:
FIRST HORIZON BANK, A DIVISION OF FIRST
TENNESSEE BANK N.A.
By:________________________________________________
Name: J. Jordan O'Neill, III
Title: Senior Vice President