EXHIBIT 10.1
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SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of June 1, 2004
among
AMB PROPERTY, L.P.,
THE BANKS LISTED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent,
J.P. MORGAN EUROPE LIMITED,
as Administrative Agent for Alternate Currencies
BANK OF AMERICA, N.A.,
as Syndication Agent,
J.P. MORGAN SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
COMMERZBANK AKTIENGESELLSCHAFT
NEW YORK AND GRAND CAYMAN BRANCHES,
PNC BANK, NATIONAL ASSOCIATION, and
WACHOVIA BANK, N.A.,
as Documentation Agents
KEYBANK NATIONAL ASSOCIATION,
THE BANK OF NOVA SCOTIA,
ACTING THROUGH ITS SAN FRANCISCO AGENCY and
WELLS FARGO BANK, N.A.,
as Managing Agents
AND
ING REAL ESTATE FINANCE (USA) LLC,
SOUTHTRUST BANK and
UNION BANK OF CALIFORNIA, N.A.,
as Co-Agents
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS............................................................................. 2
SECTION 1.1. Definitions....................................................... 2
SECTION 1.2. Accounting Terms and Determinations............................... 35
SECTION 1.3. Types of Borrowings............................................... 36
ARTICLE II
THE CREDITS............................................................................. 36
SECTION 2.1. Commitments to Lend............................................... 36
SECTION 2.2. Notice of Borrowing............................................... 37
SECTION 2.3. Swingline Loan Subfacility........................................ 39
SECTION 2.4. Money Market Borrowings........................................... 42
SECTION 2.5. Notice to Banks; Funding of Loans................................. 46
SECTION 2.6. Notes............................................................. 48
SECTION 2.7. Method of Electing Interest Rates................................. 49
SECTION 2.8. Interest Rates.................................................... 51
SECTION 2.9. Fees.............................................................. 52
SECTION 2.10. Maturity Date.................................................... 53
SECTION 2.11. Optional Prepayments............................................. 53
SECTION 2.12. Mandatory Prepayments............................................ 55
SECTION 2.13. General Provisions as to Payments................................ 56
SECTION 2.14. Funding Losses................................................... 57
SECTION 2.15. Computation of Interest and Fees................................. 57
SECTION 2.16. Use of Proceeds.................................................. 58
SECTION 2.17. Letters of Credit................................................ 58
SECTION 2.18. Letter of Credit Usage Absolute.................................. 61
SECTION 2.19. Special Provisions Regarding Alternate Currency Loans............ 63
ARTICLE III
CONDITIONS.............................................................................. 66
SECTION 3.1. Closing........................................................... 66
SECTION 3.2. Borrowings........................................................ 68
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.......................................................... 69
SECTION 4.1. Existence and Power............................................... 69
SECTION 4.2. Power and Authority............................................... 69
SECTION 4.3. No Violation...................................................... 70
SECTION 4.4. Financial Information............................................. 71
SECTION 4.5. Litigation........................................................ 72
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SECTION 4.6. Compliance with ERISA............................................. 72
SECTION 4.7. Environmental..................................................... 73
SECTION 4.8. Taxes............................................................. 73
SECTION 4.9. Full Disclosure................................................... 73
SECTION 4.10. Solvency......................................................... 74
SECTION 4.11. Use of Proceeds.................................................. 74
SECTION 4.12. Governmental Approvals........................................... 74
SECTION 4.13. Investment Company Act; Public Utility Holding Company Act....... 74
SECTION 4.14. Principal Offices................................................ 74
SECTION 4.15. REIT Status...................................................... 74
SECTION 4.16. Patents, Trademarks, etc......................................... 74
SECTION 4.17. Judgments........................................................ 75
SECTION 4.18. No Default....................................................... 75
SECTION 4.19. Licenses, etc.................................................... 75
SECTION 4.20. Compliance With Law.............................................. 75
SECTION 4.21. No Burdensome Restrictions....................................... 75
SECTION 4.22. Brokers' Fees.................................................... 75
SECTION 4.23. Labor Matters.................................................... 76
SECTION 4.24. Insurance........................................................ 76
SECTION 4.25. Organizational Documents......................................... 76
SECTION 4.26. Qualifying Unencumbered Properties............................... 76
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS...................................................... 76
SECTION 5.1. Information....................................................... 77
SECTION 5.2. Payment of Obligations............................................ 80
SECTION 5.3. Maintenance of Property; Insurance; Leases........................ 80
SECTION 5.4. Maintenance of Existence.......................................... 80
SECTION 5.5. Compliance with Laws.............................................. 80
SECTION 5.6. Inspection of Property, Books and Records......................... 81
SECTION 5.7. Existence ........................................................ 81
SECTION 5.8. Financial Covenants............................................... 81
SECTION 5.9. Restriction on Fundamental Changes................................ 83
SECTION 5.10. Changes in Business.............................................. 84
SECTION 5.11. General Partner Status........................................... 85
SECTION 5.12. Other Indebtedness............................................... 86
SECTION 5.13. Forward Equity Contracts......................................... 86
SECTION 5.14. Capital Funding Loans............................................ 86
ARTICLE VI
DEFAULTS................................................................................ 88
iii
SECTION 6.1. Events of Default................................................. 88
SECTION 6.2. Rights and Remedies............................................... 92
SECTION 6.3. Notice of Default................................................. 92
SECTION 6.4. Actions in Respect of Letters of Credit........................... 93
SECTION 6.5. Distribution of Proceeds after Default............................ 95
ARTICLE VII
THE AGENTS.............................................................................. 95
SECTION 7.1. Appointment and Authorization..................................... 95
SECTION 7.2. Agency and Affiliates............................................. 95
SECTION 7.3. Action by Agents.................................................. 96
SECTION 7.4. Consultation with Experts......................................... 96
SECTION 7.5. Liability of Agents............................................... 96
SECTION 7.6. Indemnification................................................... 96
SECTION 7.7. Credit Decision................................................... 97
SECTION 7.8. Successor Agents.................................................. 97
SECTION 7.9. Consents and Approvals............................................ 98
ARTICLE VIII
CHANGE IN CIRCUMSTANCES................................................................. 99
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair.......... 99
SECTION 8.2. Illegality........................................................ 99
SECTION 8.3. Increased Cost and Reduced Return................................. 100
SECTION 8.4. Taxes............................................................. 102
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar Loans........ 105
ARTICLE IX
MISCELLANEOUS........................................................................... 105
SECTION 9.1. Notices........................................................... 105
SECTION 9.2. No Waivers........................................................ 106
SECTION 9.3. Expenses; Indemnification......................................... 106
SECTION 9.4. Sharing of Set-Offs............................................... 108
SECTION 9.5. Amendments and Waivers............................................ 109
SECTION 9.6. Successors and Assigns............................................ 109
SECTION 9.7. Collateral........................................................ 112
SECTION 9.8. Governing Law; Submission to Jurisdiction; Judgment Currency...... 113
SECTION 9.9. Counterparts; Integration; Effectiveness.......................... 114
SECTION 9.10. WAIVER OF JURY TRIAL............................................. 114
SECTION 9.11. Survival......................................................... 114
SECTION 9.12. Domicile of Loans................................................ 114
SECTION 9.13. Limitation of Liability.......................................... 114
iv
SECTION 9.14. Recourse Obligation.............................................. 115
SECTION 9.15. Confidentiality.................................................. 115
SECTION 9.16. Bank's Failure to Fund........................................... 116
SECTION 9.17. Banks' ERISA Covenant............................................ 121
SECTION 9.18. No Bankruptcy Proceedings........................................ 121
SECTION 9.19. Optional Increase in Commitments................................. 121
SECTION 9.20. Managing Agents, Documentation Agents and Co-Agents.............. 122
v
SCHEDULE 1.1
SCHEDULE 4.4 (b)
SCHEDULE 4.6
SCHEDULE 5.11(c)(1)
SCHEDULE 5.11(c)(2)
vi
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement") dated as of June 1, 2004 among AMB PROPERTY, L.P. (the "Borrower"),
the BANKS listed on the signature pages hereof, JPMORGAN CHASE BANK, as
Administrative Agent, J.P. MORGAN EUROPE LIMITED, as Administrative Agent, BANK
OF AMERICA, N.A., as Syndication Agent, J.P. MORGAN SECURITIES INC. and BANC OF
AMERICA SECURITIES LLC, as Joint Lead Arrangers and Joint Bookrunners,
COMMERZBANK AKTIENGESELLSCHAFT NEW YORK AND GRAND CAYMAN BRANCHES, PNC BANK,
NATIONAL ASSOCIATION, and WACHOVIA BANK, N.A., as Documentation Agents, KEYBANK
NATIONAL ASSOCIATION, THE BANK OF NOVA SCOTIA, ACTING THROUGH ITS SAN FRANCISCO
AGENCY and WELLS FARGO BANK, N.A., as Managing Agents, and ING REAL ESTATE
FINANCE (USA) LLC, SOUTHTRUST BANK and UNION BANK OF CALIFORNIA, N.A., as
Co-Agents.
W I T N E S S E T H
WHEREAS, the Borrower, the Administrative Agent's
predecessor-in-interest by merger and certain of the Banks entered into a
Revolving Credit Agreement, dated as of May 24, 2000 (the "Original Credit
Agreement");
WHEREAS, the Borrower, the Administrative Agent and certain of the
Banks entered into an Amended and Restated Revolving Credit Agreement, dated as
of December 11, 2002 (the "Existing Credit Agreement"), pursuant to which the
parties thereto amended and restated the terms and conditions contained in the
Original Credit Agreement;
WHEREAS, the Borrower, the Administrative Agent and certain of the
Banks entered into an Amendment to Amended and Restated Credit Agreement, dated
as of July 10, 2003 (the "First Amendment"), pursuant to which the parties
thereto amended certain terms and conditions contained in the Existing Credit
Agreement; and
WHEREAS, the parties hereto have agreed to amend and restate the
terms and conditions contained in the Existing Credit Agreement, as modified by
the First Amendment, in their entirety as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. The Existing Credit Agreement is hereby modified so that all of
the terms and conditions of the aforesaid Existing Credit Agreement, as modified
by the First Amendment, shall be restated in their entirety as set forth herein,
and the Borrower agrees to comply with and be subject to all of the terms,
covenants and conditions of this Agreement.
II. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns, and shall be
deemed to be effective as of the date hereof.
III. Any reference in the Notes, any other Loan Document or any
other document executed in connection with the Existing Credit Agreement, the
First Amendment or the Original Credit Agreement shall be deemed to refer to
this Agreement.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions . The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.4.
"Adjusted EBITDA" means EBITDA for such period minus an amount equal
to appropriate reserves for replacements of Ten Cents ($0.10) (or in the case of
any Real Property Asset owned by an Investment Affiliate or by a Consolidated
Subsidiary, Borrower's Share of Ten Cents ($0.10)) per square foot per annum for
each Real Property Asset (provided that, as to any Real Property Asset acquired
during such period such Ten Cents ($0.10) per square foot adjustment shall be
pro-rated for the period of ownership).
"Adjusted Interbank Offered Rate" as applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary,
2
to the next higher 1/100 of 1%) by dividing (i) the Interbank Offered Rate
applicable during such Interest Period by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
"Administrative Agent" shall mean (i) with respect to Notices of
Borrowing and the administration of Loans denominated in an Alternate Currency,
Alternate Currency Letters of Credit, and interest and fee payments with respect
to Loans and Letters of Credit denominated in an Alternate Currency, J.P. Morgan
Europe Limited; and (ii) for all other purposes under this Agreement, JPMorgan
Chase Bank, in each case in its respective capacity as Administrative Agent
hereunder, and its respective permitted successors in such capacity in
accordance with the terms of this Agreement.
"Administrative Questionnaire" means with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"Affiliate", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote ten percent (10.0%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"Agents" shall mean the Administrative Agent and the Syndication
Agent, collectively.
"Agreement" shall mean this Amended and Restated Revolving Credit
Agreement as the same may from time to time hereafter be modified, supplemented
or amended.
"Alternate Currency" means the lawful currency of any of (i) the
United Kingdom (British Pounds Sterling) or (ii) the European Economic Union
(Euros) or (iii) Japan (Yen). For all purposes of this Agreement, including
without limitation the calculation of the Dollar Equivalent Amount at any time
and from time to time, each Alternate Currency will be marked-to-market on the
last Business Day of each month.
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"Alternate Currency Commitment" means with respect to each Bank, the
amount set forth under the name of such Bank on the signature pages hereof as
its commitment for Loans in Alternate Currencies (and, for each Bank which is an
Assignee, the amount set forth in the Transfer Supplement entered into pursuant
to Section 9.6(c) as the Assignee's Commitment) and, to the extent expressly
provided herein, Dollars, as such amount may be reduced from time to time
pursuant to Section 2.11(e) or in connection with an assignment to an Assignee,
and as such amount may be increased pursuant to Section 9.19 or in connection
with an assignment from an Assignor. The initial aggregate Dollar Equivalent
Amount of the Banks' Alternate Currency Commitments is $250,000,000.
"Alternate Currency Letter of Credit" means a Letter of Credit
denominated in Alternate Currency.
"Alternate Currency Sublimit" means, a Dollar Equivalent Amount of
Loans denominated in Alternate Currency and Alternate Currency Letter(s) of
Credit (and, to the extent expressly provided herein, Loans and Letters of
Credit denominated in Dollars), equal to Two Hundred Fifty Million Dollars
($250,000,000) (assuming Commitments of Five Hundred Million Dollars
($500,000,000) and ratably adjusted for changes in the Commitments pursuant to
this Agreement).
"Applicable Fee Percentage" means the respective percentages per
annum determined, at any time, based on the range into which Borrower's Credit
Rating then falls, in accordance with the table set forth below. Any change in
Borrower's Credit Rating causing it to move to a different range on the table
shall effect an immediate change in the Applicable Fee Percentage. Borrower
shall have not less than two (2) Credit Ratings at all times. In the event that
Borrower receives only two (2) Credit Ratings (one of which must be from S&P or
Moody's), and such Credit Ratings are not equivalent, the Applicable Fee
Percentage shall be determined by the lower of such two (2) Credit Ratings. In
the event that Borrower receives more than two (2) Credit Ratings, and such
Credit Ratings are not all equivalent, the Applicable Fee Percentage shall be
determined by the second highest Credit Rating, provided that one of the highest
two (2) Credit Ratings shall be from S&P or Moody's; provided, further, that if
neither of the highest two (2) Credit Ratings is from S&P or Moody's, then the
Applicable Fee Percentage shall be determined by the highest Credit Rating from
either S&P or Moody's.
Range of
Borrower's
Credit Rating Applicable
(S&P/Moody's Fee Percentage
4
Ratings) (% per annum)
-------- -------------
Non-Investment Grade 0.35
BBB-/Baa3 0.25
BBB/Baa2 0.20
BBB+/Baa1 0.20
A-/A3 or better 0.15
"Applicable Interest Rate" means (i) with respect to any Fixed Rate
Indebtedness, the fixed interest rate applicable to such Fixed Rate Indebtedness
at the time in question, and (ii) with respect to any Floating Rate
Indebtedness, either (x) the rate at which the interest rate applicable to such
Floating Rate Indebtedness is actually capped (or fixed pursuant to an interest
rate hedging device), at the time of calculation, if Borrower has entered into
an interest rate cap agreement or other interest rate hedging device with
respect thereto or (y) if Borrower has not entered into an interest rate cap
agreement or other interest rate hedging device with respect to such Floating
Rate Indebtedness, the greater of (A) the rate at which the interest rate
applicable to such Floating Rate Indebtedness could be fixed for the remaining
term of such Floating Rate Indebtedness, at the time of calculation, by
Borrower's entering into any unsecured interest rate hedging device either not
requiring an upfront payment or if requiring an upfront payment, such upfront
payment shall be amortized over the term of such device and included in the
calculation of the interest rate (or, if such rate is incapable of being fixed
by entering into an unsecured interest rate hedging device at the time of
calculation, a fixed rate equivalent reasonably determined by Administrative
Agent) or (B) the floating rate applicable to such Floating Rate Indebtedness at
the time in question.
"Applicable Lending Office" means with respect to any Bank, (i) in
the case of its Base Rate Loans and Swingline Loans, its Domestic Lending
Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar Lending
Office, and (iii) in the case of its Money Market Loans, its Money Market
Lending Office.
"Applicable Margin" means with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which
Borrower's Credit Rating then falls, in accordance with the table set forth
below. Any change in Borrower's Credit Rating causing it to move to a different
range on the table shall effect an immediate change in the Applicable Margin.
Borrower shall
5
have not less than two (2) Credit Ratings at all times. In the event that
Borrower receives only two (2) Credit Ratings (one of which must be from S&P or
Moody's), and such Credit Ratings are not equivalent, the Applicable Margin
shall be determined by the lower of such two (2) Credit Ratings. In the event
that Borrower receives more than two (2) Credit Ratings, and such Credit Ratings
are not all equivalent, the Applicable Margin shall be determined by the second
highest Credit Rating, provided that one of the highest two (2) Credit Ratings
shall be from S&P or Moody's; provided, further, that if neither of the highest
two (2) Credit Ratings is from S&P or Moody's, then the Applicable Margin shall
be determined by the highest Credit Rating from either S&P or Moody's.
Range of Applicable
Borrower's Margin for Applicable
Credit Rating Base Rate Margin for Euro
(S&P/Moody's Loans Dollar Loans
Ratings) (% per annum) (% per annum)
- ------------- ------------- ---------------
Non-Invest-
ment Grade 0.00 1.15
BBB-/Baa3 0.00 0.85
BBB/Baa2 0.00 0.70
BBB+/Baa1 0.00 0.60
A-/A3 or better 0.00 0.60
"Assignee" has the meaning set forth in Section 9.6(c).
"Balance Sheet Indebtedness" means with respect to any Person and
assuming such Person is required to prepare financial statements in accordance
with GAAP, without duplication, the Indebtedness of such Person which would be
required to be included on the liabilities side of the balance sheet of such
Person in accordance with GAAP excluding, in the case of Borrower or General
Partner, the Balance Sheet Indebtedness of any Consolidated Subsidiary.
Notwithstanding the foregoing, Balance Sheet Indebtedness shall include current
liabilities and all guarantees of Indebtedness of any Person.
"Balloon Payments" shall mean with respect to any loan constituting
Balance Sheet Indebtedness, any required principal payment of such loan which is
6
either (i) payable at the maturity of such Indebtedness or (ii) in an amount
which exceeds fifteen percent (15%) of the original principal amount of such
loan; provided, however, that the final payment of a fully amortizing loan shall
not constitute a Balloon Payment.
"Bank" means each entity (other than Borrower) listed on the
signature pages hereof, each Assignee which becomes a Bank pursuant to Section
9.6(c), and their respective successors and each Designated Lender; provided,
however, that the term "Bank" shall exclude each Designated Lender 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
Lender for all other purposes hereunder except that any Designated Lender which
funds a Money Market Loan shall, subject to Section 9.6(d), have the rights
(including the rights given to a Bank contained in Sections 9.3 and 9.5 and
otherwise in Article 9) and obligations of a Bank associated with holding such
Money Market Loan. For purposes of this Agreement, neither J.P. Morgan
Securities, Inc. nor Banc of America Securities LLC shall constitute a "Bank."
"Bankruptcy Code" shall mean Title 11 of the United States Code,
entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 0.50% plus the Federal
Funds Rate for such day. Each change in the Base Rate shall become effective
automatically as of the opening of business on the date of such change in the
Base Rate, without prior written notice to Borrower or Banks.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan in accordance with the provisions of this Agreement.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means AMB Property, L.P., a Delaware limited partnership.
"Borrower's Share" means Borrower's and General Partner's direct or
indirect share of a Consolidated Subsidiary, a Joint Venture Subsidiary or an
7
Investment Affiliate based upon Borrower's and General Partner's percentage
ownership (whether direct or indirect) of such Consolidated Subsidiary, Joint
Venture Subsidiary or Investment Affiliate.
"Borrowing" has the meaning set forth in Section 1.3.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City are authorized by law to close.
"Capital Leases" as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Funding Loan" shall have the meaning set forth in Section
5.14 hereof.
"Cash or Cash Equivalents" shall mean (a) cash; (b) marketable
direct obligations issued or unconditionally guaranteed by the United States
Government or issued by an agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one (1) year after the
date of acquisition thereof; (c) marketable direct obligations issued by any
state of the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within ninety (90) days
after the date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from any two of S & P, Moody's or
Fitch (or, if at any time no two of the foregoing shall be rating such
obligations, then from such other nationally recognized rating services
acceptable to Administrative Agent ); (d) domestic corporate bonds, other than
domestic corporate bonds issued by Borrower or any of its Affiliates, maturing
no more than two (2) years after the date of acquisition thereof and, at the
time of acquisition, having a rating of at least A or the equivalent from any
two (2) of S & P, Moody's or Fitch (or, if at any time no two of the foregoing
shall be rating such obligations, then from such other nationally recognized
rating services acceptable to Administrative Agent); (e) variable-rate domestic
corporate notes or medium term corporate notes, other than notes issued by
Borrower or any of its Affiliates, maturing or resetting no more than one (1)
year after the date of acquisition thereof and having a rating of at least AA or
the equivalent from two of S & P, Moody's or Fitch (or, if at any time no two of
the foregoing shall be rating such obligations, then from such other nationally
recognized rating services acceptable to Administrative Agent); (f) commercial
paper (foreign and domestic) or master notes, other than commercial paper or
master notes issued by Borrower or any of its Affiliates, and, at the time of
acquisition, having a long-term rating of at least A or the equivalent from S &
P, Moody's or Fitch and having a short-term rating of at least A-1 and P-1 from
S & P and Moody's, respectively (or, if at any time neither S & P nor Moody's
shall be rating such obligations, then the
8
highest rating from such other nationally recognized rating services acceptable
to Administrative Agent); (g) domestic and foreign certificates of deposit or
domestic time deposits or foreign deposits or bankers' acceptances (foreign or
domestic) in Dollars, Hong Kong Dollars, Singapore Dollars or an Alternate
Currency that are issued by a bank (I) which has, at the time of acquisition, a
long-term rating of at least A or the equivalent from S & P, Moody's or Fitch
and (II) if a domestic bank, which is a member of the Federal Deposit Insurance
Corporation; (h) overnight securities repurchase agreements, or reverse
repurchase agreements secured by any of the foregoing types of securities or
debt instruments, provided that the collateral supporting such repurchase
agreements shall have a value not less than 101% of the principal amount of the
repurchase agreement plus accrued interest; and (i) money market funds invested
in investments substantially all of which consist of the items described in
clauses (a) through (h) foregoing.
"Closing Date" means the date on or after the Effective Date on
which the conditions set forth in Section 3.1 shall have been satisfied to the
satisfaction of the Administrative Agent.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
as it may be further amended from time to time, any successor statutes thereto,
and applicable U.S. Department of Treasury regulations issued pursuant thereto
in temporary or final form.
"Committed Borrowing" has the meaning set forth in Section 1.3.
"Committed Loan" means a loan made by a Bank pursuant to Section
2.1, as well as Loans required to be made by a Bank pursuant to Section 2.17 to
reimburse a Fronting Bank for a Letter of Credit that has been drawn down;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Commitment" means with respect to each Bank, the sum of its Dollar
Commitment and its Alternate Currency Commitment.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity which is consolidated with Borrower or General Partner in accordance with
GAAP.
"Consolidated Subsidiary EBITDA" means, for any period (i) Income
from Operations of a Consolidated Subsidiary for such period, plus (ii)
depreciation and amortization expense and other non-cash items deducted in the
calculation of Income from Operations of such Consolidated Subsidiary for such
period, plus (iii)
9
Interest Expense deducted in the calculation of Income from Operations of such
Consolidated Subsidiary for such period, all of the foregoing without
duplication.
"Consolidated Tangible Net Worth" means, at any time, the tangible
net worth of Borrower, on a consolidated basis, determined in accordance with
GAAP, plus preferred units issued by Consolidated Subsidiaries, plus all
accumulated depreciation and amortization of Borrower plus Borrower's Share of
accumulated depreciation and amortization of Investment Affiliates, deducted, in
either case, from earnings in calculating Net Income.
"Construction Asset" has the meaning set forth in the definition of
the term "Construction Asset Cost".
"Construction Asset Cost" shall mean, with respect to a Real
Property Asset (or, in the case of any Real Property Asset to be developed in
phases, any phase thereof) in which Development Activity has begun (as evidenced
by obtaining a permit to commence construction of the applicable industrial or
retail improvements by the applicable governmental authority) but has not yet
been substantially completed (substantial completion shall be deemed to mean not
less than 90% completion, as such completion shall be evidenced by a certificate
of occupancy or its equivalent and the commencement of the payment of rent by
tenants of such Real Property Asset or phase) (a "Construction Asset"), (i) in
the case of the development and construction by the Borrower described in clause
(a) of the definition of Development Activity, the aggregate, good faith
estimate of the total cost to be incurred by the Borrower in the construction of
such improvements (including land acquisition costs); (ii) in the case of the
development and construction by a Joint Venture Subsidiary or a Consolidated
Subsidiary of the Borrower described in clause (a) of the definition of
Development Activity, an amount equal to Borrower's Share of the aggregate, good
faith estimate of the total cost to be incurred by such Joint Venture Subsidiary
or such Consolidated Subsidiary, as applicable, in the construction of such
improvements (including land acquisition costs); (iii) in the case of the
financing of any development and construction by the Borrower, the amount the
Borrower has committed to fund to pay the cost to complete such development and
construction, (iv) in the case of the financing of any development and
construction by a Joint Venture Subsidiary or a Consolidated Subsidiary of the
Borrower, an amount equal to Borrower's Share of the amount such Joint Venture
Subsidiary or such Consolidated Subsidiary, as applicable, has committed to fund
to pay the cost to complete such development and construction; (v) in the case
of the incurrence of any Contingent Obligations in connection with any
development and construction by the Borrower, the amount of such Contingent
Obligation of the Borrower, (vi) in the case of the incurrence of any Contingent
Obligations in connection with any development and construction by a Joint
Venture Subsidiary or a Consolidated Subsidiary of the Borrower, an amount
10
equal to Borrower's Share of the amount of such Contingent Obligation of such
Joint Venture Subsidiary or such Consolidated Subsidiary, as applicable.
"Contingent Obligation" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements,
guaranteeing partially or in whole any Non-Recourse Indebtedness, lease,
dividend or other obligation, exclusive of contractual indemnities (including,
without limitation, any indemnity or price-adjustment provision relating to the
purchase or sale of securities or other assets) and guarantees of non-monetary
obligations (other than guarantees of completion) which have not yet been called
on or quantified, of such Person or of any other Person. The amount of any
Contingent Obligation described in clause (ii) shall be deemed to be (a) with
respect to a guaranty of interest or interest and principal, or operating income
guaranty, the Net Present Value of the sum of all payments required to be made
thereunder (which in the case of an operating income guaranty shall be deemed to
be equal to the debt service for the note secured thereby), calculated at the
Applicable Interest Rate, through (i) in the case of an interest or interest and
principal guaranty, the stated date of maturity of the obligation (and
commencing on the date interest could first be payable thereunder), or (ii) in
the case of an operating income guaranty, the date through which such guaranty
will remain in effect, and (b) with respect to all guarantees not covered by the
preceding clause (a), an amount equal to the stated or determinable amount of
the primary obligation in respect of which such guaranty is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as recorded on
the balance sheet and on the footnotes to the most recent financial statements
of Borrower required to be delivered pursuant to Section 5.1 hereof.
Notwithstanding anything contained herein to the contrary, guarantees of
completion shall not be deemed to be Contingent Obligations unless and until a
claim for payment or performance has been made thereunder, at which time any
such guaranty of completion shall be deemed to be a Contingent Obligation in an
amount equal to any such claim. Subject to the preceding sentence, (i) in the
case of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is recourse, directly or indirectly to
Borrower), the amount of the guaranty shall be deemed to be 100% thereof unless
and only to the extent that such other Person has delivered Cash or Cash
Equivalents to secure all or any part of such Person's guaranteed obligations,
(ii) in the case of joint and several guarantees given by a Person in whom
Borrower owns an interest (which guarantees are non-recourse to Borrower), to
the extent the guarantees, in the aggregate, exceed 15% of Total Asset Value,
the amount which is the lesser of (x) the amount in excess of 15% or (y) the
amount of Borrower's interest therein shall be deemed to be a Contingent
Obligation of Borrower, and (iii) in the case of a guaranty (whether or not
joint and several) of an obligation otherwise constituting Indebtedness of such
Person, the amount of such guaranty shall be deemed to be only
11
that amount in excess of the amount of the obligation constituting Indebtedness
of such Person. Notwithstanding anything contained herein to the contrary,
"Contingent Obligations" shall be deemed not to include guarantees of Unused
Commitments or of construction loans to the extent the same have not been drawn.
All matters constituting "Contingent Obligations" shall be calculated without
duplication.
"Convertible Securities" means evidences of shares of stock, limited
or general partnership interests or other ownership interests, warrants,
options, or other rights or securities which are convertible into or
exchangeable for, with or without payment of additional consideration, common
shares of beneficial interest of General Partner or partnership interests of
Borrower, as the case may be, either immediately or upon the arrival of a
specified date or the happening of a specified event.
"Credit Rating" means the rating assigned by the Rating Agencies to
Borrower's senior unsecured long term indebtedness.
"Debt Restructuring" means a restatement of, or material change in,
the amortization or other financial terms of any Indebtedness of General
Partner, the Borrower or any Subsidiary or Investment Affiliate.
"Debt Service" means, for any period and without duplication,
Interest Expense for such period plus scheduled principal amortization
(excluding Balloon Payments) for such period on all Balance Sheet Indebtedness
of Borrower and General Partner, plus Borrower's Share of scheduled principal
amortization (excluding Balloon Payments) for such period on all Balance Sheet
Indebtedness of Investment Affiliates and Consolidated Subsidiaries.
"Default" means any condition or event which with the giving of
notice or lapse of time or both would, unless cured or waived, become an Event
of Default.
"Default Rate" has the meaning set forth in Section 2.8(d).
"Designated Lender" means a special purpose corporation that (i)
shall have become a party to this Agreement pursuant to Section 9.6(d), and (ii)
is not otherwise a Bank.
"Designated Lender Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A-1 hereto, evidencing the obligation of
the Borrower to repay Money Market Loans made by Designated Lenders, and
"Designated Lender Note" means any one of such promissory notes issued under
Section 9.6(d) hereof.
12
"Designating Lender" shall have the meaning set forth in Section
9.6(d) hereof.
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit G attached hereto, entered into by a Bank and
a Designated Lender and accepted by the Administrative Agent.
"Development Activity" means (a) the development and construction of
industrial or retail facilities by the Borrower or any of its Consolidated
Subsidiaries or Joint Venture Subsidiaries excluding Unimproved Assets, (b) the
financing by the Borrower or any of its Consolidated Subsidiaries or Joint
Venture Subsidiaries of any such development or construction and (c) the
incurrence by the Borrower or any of its Consolidated Subsidiaries or Joint
Venture Subsidiaries of any Contingent Obligations in connection with such
development or construction (other than purchase contracts for Real Property
Assets which are not payable until after completion of development or
construction).
"Dollar Commitment" means with respect to each Bank, the amount set
forth under the name of such Bank on the signature pages hereof as its
commitment for Loans in Dollars (and, for each Bank which is an Assignee, the
amount set forth in the Transfer Supplement entered into pursuant to Section
9.6(c) as the Assignee's Commitment), as such amount may be reduced from time to
time pursuant to Section 2.11(e) or in connection with an assignment to an
Assignee, and as such amount may be increased pursuant to Section 9.19 or in
connection with an assignment from an Assignor. The initial aggregate amount of
the Banks' Dollar Commitments is $250,000,000.
"Dollar Equivalent Amount" shall mean (i) with respect to any amount
of Alternate Currency on any day, the equivalent amount in Dollars of such
amount of Alternate Currency as determined by the Administrative Agent using the
applicable Exchange Rate on such day and (ii) with respect to any amount of
Dollars, such amount.
"Dollar Sublimit" means, an amount of Loans and Letters of Credit
denominated in Dollars equal to Two Hundred Fifty Million Dollars ($250,000,000)
(assuming Commitments of Five Hundred Million Dollars ($500,000,000) and ratably
adjusted for changes in the Commitments pursuant to this Agreement).
"Dollars" and "$" means the lawful money of the United States.
"Domestic Lending Office" means, as to each Bank, its office located
at its address in the United States set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Domestic
Lending Office) or
13
such other office as such Bank may hereafter designate as its Domestic Lending
Office by notice to the Borrower and the Administrative Agent.
"EBITDA" means, for any period (i) Borrower's and General Partner's
Income from Operations for such period, plus (ii) Borrower's and General
Partner's depreciation and amortization expense and other non-cash items
deducted in the calculation of Income from Operations for such period, plus
(iii) Borrower's and General Partner's Interest Expense deducted in the
calculation of Income from Operations for such period, plus (iv) Borrower's
Share of the Investment Affiliate EBITDA for each Investment Affiliate, plus (v)
Borrower's Share of the Consolidated Subsidiary EBITDA for each Consolidated
Subsidiary, all of the foregoing without duplication.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 9.9.
"Environmental Affiliate" means any partnership, joint venture,
trust or corporation in which an equity interest is owned directly or indirectly
by the Borrower and, as a result of the ownership of such equity interest,
Borrower may have recourse liability for Environmental Claims against such
partnership, joint venture, trust or corporation (or the property thereof).
"Environmental Claim" means, with respect to any Person, any notice,
claim, demand or similar communication (written or oral) by any other Person
alleging potential liability of such Person for investigatory costs, cleanup
costs, governmental response costs, natural resources damage, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
(i) the presence, or release into the environment, of any Materials of
Environmental Concern at any location, whether or not owned by such Person or
(ii) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law, in each case (with respect to both (i) and (ii) above) as
to which there is a reasonable possibility of an adverse determination with
respect thereto and which, if adversely determined, would have a Material
Adverse Effect on the Borrower.
"Environmental Laws" means any and all federal, state, and local
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, licenses,
agreements and other governmental restrictions relating to the environment, the
effect of the environment on human health or to emissions, discharges or
releases of Materials of Environmental Concern into the environment including,
without limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environmental Concern
or the clean up or other remediation thereof.
14
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary, General Partner
and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control and all members of
an "affiliated service group" which, together with the Borrower, any Subsidiary
or General Partner, are treated as a single employer under Section 414 of the
Code or Section 4001(b)(1) of ERISA.
"Euro-Dollar Borrowing" has the meaning set forth in Section 1.3.
"Euro-Dollar Business Day" means any Business Day on which banks are
open for dealings in Dollar deposits in the London interbank market and any day
on which commercial banks are open for foreign exchange business in (i) London,
or (ii) if such reference relates to the date on which any amount is to be paid
or made available in an Alternate Currency, the principal financial center in
the country of such Alternate Currency.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Borrowing.
Euro-Dollar Loans may be denominated in a currency included in the definition of
Alternate Currency or in Dollars.
"Euro-Dollar Reference Bank" means the principal London offices of
the Administrative Agent.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) under
Regulation D, as Regulation D may be amended, modified or supplemented, for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The
15
Adjusted Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
"Event of Default" has the meaning set forth in Section 6.1.
"Exchange Rate" means, (i) the rate appearing on the relevant
display page (as determined by the Administrative Agent) on the Reuters Monitor
Money Rates Service for the sale of the applicable Alternate Currency for
Dollars in the London foreign exchange market at approximately 11a.m. (London
time) for delivery two (2) Euro-Dollar Business Days later or if not available
(ii) the spot selling rate at which the Administrative Agent offers to sell such
Alternate Currency for Dollars in the London foreign exchange market at
approximately 11:00a.m. (London time) for delivery two Euro-Dollar Business Days
later; provided, however, that if, at the time of any such determination, no
such spot rate can reasonably be quoted, the Administrative Agent may use any
reasonable method (including obtaining quotes from two (2) or more market makers
for the applicable Alternate Currency) as it deems applicable to determine such
rate, and such determination shall be conclusive absent manifest error.
"Extension Date" has the meaning set forth in Section 2.10(b).
"Extension Fee" has the meaning set forth in Section 2.9(d).
"Extension Notice" has the meaning set forth in Section 2.10(b).
"Facility Amount" has the meaning set forth in Section 2.1.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, 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 (i) 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 as so published on the next succeeding Business Day,
and (ii) if no such rate is so published on such next succeeding 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.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System as constituted from time to time.
"FFO" means "funds from operations," defined to mean, without
duplication for any period, Income from Operations, plus (i) Borrower's Share of
16
Income from Operations of any Investment Affiliate (plus Borrower's Share of
real estate depreciation and amortization expenses of Investment Affiliates),
plus (ii) real estate depreciation and amortization expense for such period.
"Financing Partnerships" means any Subsidiary which is wholly-owned,
directly or indirectly, by Borrower or by Borrower and General Partner, with
General Partner holding, directly or indirectly other than through its interest
in Borrower, no more than a 2% economic interest in such Subsidiary.
"First Tier JV" has the meaning set forth in Section 5.14.
"Fiscal Quarter" means a fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of Borrower and General Partner.
"Fitch" means Fitch, Inc., or any successor thereto.
"Fixed Charges" for any Fiscal Quarter period means the sum of (i)
Debt Service for such period, (ii) dividends on preferred units payable by
Borrower for such period, and (iii) distributions made by Borrower in such
period to Guarantor for the purpose of paying dividends on preferred shares in
Guarantor. If any of the foregoing Indebtedness is subject to an interest rate
cap agreement purchased by the Borrower, the Guarantor or a Consolidated
Subsidiary, the interest rate shall be assumed to be the lower of the actual
interest payable on such Indebtedness or the capped rate of such interest rate
cap agreement. In no event shall any dividends payable on the Guarantor's or any
Consolidated Subsidiary's common stock be included in Fixed Charges.
"Fixed Rate Borrowing" has the meaning set forth in Section 1.3.
"Fixed Rate Indebtedness" means all Indebtedness which accrues
interest at a fixed rate.
"Floating Rate Indebtedness" means all Indebtedness which is not
Fixed Rate Indebtedness and which is not a Contingent Obligation or an Unused
Commitment.
"FMV Cap Rate" means eight and one-half percent (8.50%).
"Foreign Property Interests" shall have the meaning set forth in
Section 5.8(i) hereof.
"Fronting Bank" shall mean JPMorgan Chase Bank.
17
"GAAP" means generally accepted accounting principles recognized as
such in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"General Partner" means AMB Property Corporation, a Maryland
corporation qualified as a real estate investment trust and the sole general
partner of Borrower.
"Group of Loans" means, at any time, a group of Loans consisting of
(i) all Committed Loans which are Base Rate Loans at such time, or (ii) all
Euro-Dollar Loans in the same currency having the same Interest Period at such
time; provided that, if a Committed Loan of any particular Bank is converted to
or made as a Base Rate Loan pursuant to Section 8.2 or 8.5, such Loan shall be
included in the same Group or Groups of Loans from time to time as it would have
been in if it had not been so converted or made.
"Guarantor" shall mean AMB Property Corporation, a Maryland
corporation qualified as a real estate investment trust.
"Guaranty" shall mean that certain Guaranty Agreement, dated as of
the date hereof, by General Partner, as guarantor, to Administrative Agent, for
the benefit of the Banks.
"IBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the Interbank Offered Rate pursuant to
Section 2.4.
"Income from Operations" means, for any period, Net Income before
the deduction of (i) Taxes, (ii) minority interests, (iii) gains and losses on
asset sales, Debt Restructurings or write-ups or forgiveness of indebtedness,
(iv) gains and losses from extraordinary items, (v) payment of preferred
dividends, calculated in conformity with GAAP, and (vi) an adjustment to exclude
the straight-lining of rents.
"Indebtedness" as applied to any Person (and without duplication),
means (a) all indebtedness, obligations or other liabilities of such Person for
borrowed money or for the deferred purchase price of property or services,
including all liabilities of such Person evidenced by Securities or other
similar instruments, (b) all Contingent Obligations of such Person, (c) all
indebtedness obligations or other liabilities of such Person or others secured
by a Lien on any asset of such Person, in excess of 2.5% of Total Liabilities in
the aggregate, whether or not such indebtedness, obligations or liabilities are
assumed by, or are a personal liability of such Person, and (d) all other items
which, in accordance with GAAP, would be
18
included as liabilities on the liability side of, or in the footnotes to the
balance sheet of such Person, exclusive, however, of all dividends and
distributions declared but not yet paid. Notwithstanding the foregoing, whenever
the term "Indebtedness" is used with respect to Borrower or General Partner
without expressly stating that such Indebtedness is to be determined on a
consolidated basis, such "Indebtedness" shall only include Borrower's Share of
any Indebtedness of a Consolidated Subsidiary.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Interbank Offered Rate" applicable to any Interest Period means the
average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in Dollars or Alternate Currency,
as applicable, are offered to the Euro-Dollar Reference Bank in the interbank
market at approximately 11:00 a.m. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Dollar Borrowing or Group of Loans or portion
thereof to be converted into or continued as Euro-Dollar Loans to which such
Interest Period is to apply and for a period of time comparable to such Interest
Period.
"Interest Expense" means, for any period and without duplication,
total interest expense, whether paid, accrued or capitalized, determined in
accordance with GAAP, with respect to Balance Sheet Indebtedness of Borrower and
General Partner, plus Borrower's Share of accrued, paid or capitalized interest
with respect to any Balance Sheet Indebtedness of Investment Affiliates and
Consolidated Subsidiaries (in each case, including, without limitation, the
interest component of Capital Leases but excluding interest expense covered by
an interest reserve established under a loan facility such as capitalized
construction interest provided for in a construction loan).
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing specified in the
Notice of Borrowing or on the date specified in the applicable Notice of
Interest Rate Election and ending 1, 2, 3 or 6 months thereafter (or a period
less than 1 month with the reasonable approval of Administrative Agent, unless
any Bank has previously advised Administrative Agent and Borrower that it is
unable to enter into Interbank Offered Rate Contracts for an Interest Period of
the same duration) as the Borrower may elect in the applicable Notice of
Borrowing or Notice of Interest Rate Election; provided, that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
19
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Euro-Dollar Business Day of a
calendar month; and
(c) no Interest Period may end later than the Maturity Date.
(2) intentionally omitted.
(3) with respect to each Money Market IBOR Loan, the period commencing on the
date of borrowing specified in the applicable Money Market Quote Request and
ending 1, 2 or 3 months thereafter; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) no Interest Period may end later than the Maturity Date.
(4) with respect to each Money Market Absolute Rate Loan, the period commencing
on the date of borrowing specified in the applicable Money Market Quote Request
and ending such number of days thereafter (but not less than 14 days or more
than 90 days) as the Borrower may elect in accordance with Section 2.4; provided
that:
(a) any Interest Period which would otherwise end on a day which
is not a Business Day shall be extended to the next succeeding Business
Day; and
(b) no Interest Period may end later than the Maturity Date.
"Interest Rate Contracts" means, collectively, interest rate swap,
collar, cap or similar agreements providing interest rate protection.
"Intermediate Tier Entity" has the meaning set forth in Section
5.14.
20
"International FinCo" has the meaning set forth in Section 5.14.
"Intracompany Indebtedness" means Indebtedness whose obligor and
obligee are each the Borrower, the Guarantor or a Consolidated Subsidiary.
"Investment Affiliate" means any Person in whom Guarantor or
Borrower holds an equity interest, directly or indirectly, whose financial
results are not consolidated under GAAP with the financial results of Guarantor
or Borrower on the consolidated financial statements of General Partner and
Borrower.
"Investment Affiliate EBITDA" means, for any period (i) Income from
Operations of an Investment Affiliate for such period, plus (ii) depreciation
and amortization expense and other non-cash items deducted in the calculation of
Income from Operations of such Investment Affiliate for such period, plus (iii)
Interest Expense deducted in the calculation of Income from Operations of such
Investment Affiliate for such period, all of the foregoing without duplication.
"Investment Grade Rating" means a rating for a Person's senior
long-term unsecured debt of BBB- or better from S&P or a rating of Baa3 or
better from Moody's. In the event that Borrower receives Credit Ratings only
from S&P and Moody's, and such Credit Ratings are not equivalent, the lower of
such two (2) Credit Ratings shall be used to determine whether an Investment
Grade Rating was achieved. In the event that Borrower receives more than two (2)
Credit Ratings, and such Credit Ratings are not all equivalent, the second
highest Credit Rating shall be used to determine whether an Investment Grade
Rating was achieved, provided that one of the highest two (2) Credit Ratings is
from S&P or Moody's; provided, further, that if neither of the highest two (2)
Credit Ratings is from S&P or Moody's, then the highest Credit Rating from
either S&P or Moody's shall be used to determine whether an Investment Grade
Rating was achieved.
"Investment Mortgages" means mortgages securing indebtedness with
respect to Real Property Assets directly or indirectly owed to Borrower or any
of its Subsidiaries, including, without limitation, certificates of interest in
real estate mortgage investment conduits.
"Invitation for Money Market Quotes" has the meaning set forth in
Section 2.4(c).
"Joint Bookrunners" means J.P. Morgan Securities Inc. and Banc of
America Securities L.L.C., in their capacity as Joint Bookrunners hereunder.
"Joint Lead Arrangers" means J.P. Morgan Securities Inc. and Banc of
America Securities L.L.C., in their capacity as Joint Lead Arrangers hereunder.
21
"Joint Lenders" has the meaning set forth in Section 5.14.
"Joint Venture Interests" means partnership, joint venture,
membership or other equity interests issued by any Person which is an Investment
Affiliate that is not a Subsidiary, is not consolidated with Borrower and is not
controlled by a Joint Venture Parent.
"Joint Venture Parent" means Borrower or one or more Financing
Partnerships of Borrower which directly or indirectly owns any interest in a
Joint Venture Subsidiary.
"Joint Venture Subsidiary" means any entity (other than a Financing
Partnership) in which (i) a Joint Venture Parent owns at least 50% of the
economic interests and (ii) the sale or financing of any Property owned by such
Joint Venture Subsidiary is substantially controlled by a Joint Venture Parent,
subject to customary provisions set forth in the organizational documents of
such Joint Venture Subsidiary with respect to refinancings or rights of first
refusal granted to other members of such Joint Venture Subsidiary. For purposes
of the preceding sentence, the sale or financing of a Property owned by a Joint
Venture Subsidiary shall be deemed to be substantially controlled by a Joint
Venture Parent, if such Joint Venture Parent has the ability to exercise a
buy-sell right in the event of a disagreement regarding the sale or financing of
such Property.
"JV Non-US Property Owner" has the meaning set forth in Section
5.14.
"Letter(s) of Credit" has the meaning provided in Section 2.2(b).
"Letter of Credit Collateral" has the meaning provided in Section
6.4.
"Letter of Credit Collateral Account" has the meaning provided in
Section 6.4.
"Letter of Credit Documents" has the meaning provided in Section
2.17.
"Letter of Credit Usage" means at any time the sum of (i) the
aggregate maximum amount available to be drawn under the Letters of Credit then
outstanding, assuming compliance with all requirements for drawing referred to
therein, and (ii) the aggregate amount of the Borrower's unpaid obligations
under this Agreement in respect of the Letters of Credit.
22
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement, in each case that has the effect of creating a
security interest, in respect of such asset. For the purposes of this Agreement,
the Borrower or any Consolidated Subsidiary shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan, a Money Market
Loan or a Swingline Loan and "Loans" means Base Rate Loans, Euro-Dollar Loans,
Money Market Loans or Swingline Loans or any combination of the foregoing.
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
Letter(s) of Credit and the Letter of Credit Documents.
"Majority Banks" means at any time Banks having at least 51% of the
aggregate amount of Commitments, or if the Commitments shall have been
terminated, holding Notes evidencing at least 51% of the aggregate unpaid
principal amount of the Loans, (provided, that in the case of Swingline Loans,
the amount of each Bank's funded participation interest in such Swingline Loans
shall be considered for purposes hereof as if it were a direct loan and not a
participation interest, and the aggregate amount of Swingline Loans owing to the
Swingline Lender shall be considered for purposes hereof as reduced by the
amount of such funded participation interests).
"Mandatory Borrowing" has the meaning set forth in Section
2.3(b)(iii).
"Material Adverse Effect" means an effect resulting from any
circumstance or event or series of circumstances or events, of whatever nature
(but excluding general economic conditions), which does or could reasonably be
expected to, materially and adversely impair (i) the ability of the Borrower and
its Consolidated Subsidiaries, taken as a whole, to perform their respective
obligations under the Loan Documents, or (ii) the ability of Administrative
Agent or the Banks to enforce the Loan Documents.
"Materials of Environmental Concern" means and includes pollutants,
contaminants, hazardous wastes, toxic and hazardous substances, asbestos, lead,
petroleum and petroleum by-products.
"Maturity Date" shall mean the date when all of the Obligations
hereunder shall be due and payable which shall be June 1, 2007, unless otherwise
23
extended in accordance with Section 2.10(b) or accelerated pursuant to the terms
hereof.
"Money Market Absolute Rate" has the meaning set forth in Section
2.4(d)(2).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Borrowing" has the meaning set forth in Section 1.3.
"Money Market IBOR Loan" means a loan to be made by a Bank pursuant
to a IBOR Auction (including, without limitation, such a loan bearing interest
at the Base Rate pursuant to Article VIII).
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Administrative Agent; provided that any Bank may from time to time by
notice to the Borrower and the Administrative Agent designate separate Money
Market Lending Offices for its Money Market IBOR Loans, on the one hand, and its
Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Bank shall be
deemed to refer to either or both of such offices, as the context may require.
"Money Market Loan" means a Money Market IBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.4(d)(2).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.4.
"Money Market Quote Request" has the meaning set forth in Section
2.4(b).
"Moody's" means Moody's Investors Services, Inc. or any successor
thereto.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has at any time after September 25, 1980 made contributions or has been
required to
24
make contributions (for these purposes any Person which ceased to be a member of
the ERISA Group after September 25, 1980 will be treated as a member of the
ERISA Group).
"Negative Pledge" means, with respect to any Property, any covenant,
condition, or other restriction entered into by the owner of such Property or
directly binding on such Property which prohibits or limits the creation or
assumption of any Lien upon such Property to secure any or all of the
Obligations; provided, however, that such term shall not include (a) any
covenant, condition or restriction contained in any ground lease from a
governmental entity, and (b) financial covenants given for the benefit of any
Person that may be violated by the granting of any Lien on any Property to
secure any or all of the Obligations.
"Net Income" means, for any period, net income as calculated in
conformity with GAAP.
"Net Offering Proceeds" means all cash or other assets received by
General Partner or Borrower as a result of the issuance or sale of common shares
of beneficial interest, preferred shares of beneficial interest, partnership
interests, preferred partnership units, limited liability company interests,
Convertible Securities or other ownership or equity interests in General Partner
or Borrower less customary costs and discounts of issuance paid by General
Partner or Borrower, as the case may be.
"Net Price" means, with respect to the purchase of any Property,
without duplication, (i) the aggregate purchase price paid as cash consideration
for such purchase (without adjustment for prorations), including, without
limitation, the principal amount of any note received or other deferred payment
to be made in connection with such purchase (except as described in clause (ii)
below) and the value of any non-cash consideration delivered in connection with
such purchase (including, without limitation, shares or preferred shares of
beneficial interest in General Partner and OP Units or Preferred OP Units (as
defined in Borrower's partnership agreement)) plus (ii) reasonable costs of sale
and non-recurring taxes paid or payable in connection with such purchase or
sale.
"Net Present Value" shall mean, as to a specified or ascertainable
dollar amount, the present value, as of the date of calculation of any such
amount using a discount rate equal to the Base Rate in effect as of the date of
such calculation.
"Non-Recourse Indebtedness" means Indebtedness with respect to which
recourse for payment is limited to (i) specific assets related to a particular
Property or group of Properties encumbered by a Lien securing such Indebtedness
or (ii) any Subsidiary (provided that if a Subsidiary is a partnership, there is
no recourse
25
to Borrower or General Partner as a general partner of such partnership);
provided, however, that personal recourse of Borrower or General Partner for any
such Indebtedness for fraud, misrepresentation, misapplication of cash, waste,
environmental claims and liabilities and other circumstances customarily
excluded by institutional lenders from exculpation provisions and/or included in
separate indemnification agreements in non-recourse financing of real estate
shall not, by itself, prevent such Indebtedness from being characterized as
Non-Recourse Indebtedness.
"Non-US Property" has the meaning set forth in Section 5.14.
"Non-US Property Owners" has the meaning set forth in Section 5.14.
"Notes" means the promissory notes of the Borrower and each
Qualified Borrower, substantially in the form of Exhibit A and Exhibit A-1
hereto, respectively, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a notice from Borrower in accordance
with Section 2.2 or Section 2.3(b)(i).
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.7.
"Obligations" means all obligations, liabilities, indemnity
obligations and Indebtedness of every nature of the Borrower, from time to time
owing to Administrative Agent or any Bank under or in connection with this
Agreement or any other Loan Document.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 9.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Holdings" means Unimproved Assets, Development Activity,
Joint Venture Interests, interests in Taxable REIT Subsidiaries and Investment
Mortgages, but only to the extent permitted in Section 5.8.
"Permitted Liens" means:
a. Liens for Taxes, assessments or other governmental charges not
yet due and payable or which are being contested in good faith by
26
appropriate proceedings promptly instituted and diligently conducted in
accordance with the terms hereof;
b. statutory liens of carriers, warehousemen, mechanics,
materialmen and other similar liens imposed by law, which are incurred in
the ordinary course of business for sums not more than sixty (60) days
delinquent or which are being contested in good faith in accordance with
the terms hereof;
c. deposits made in the ordinary course of business in connection
with worker's compensation, unemployment insurance and other social
security legislation or to secure liabilities to insurance carriers;
d. utility deposits and other deposits to secure the performance
of bids, trade contracts (other than for borrowed money), leases, purchase
contracts, construction contracts, governmental contracts, statutory
obligations, surety bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
e. Liens for purchase money obligations for equipment (or Liens
to secure Indebtedness incurred within 90 days after the purchase of any
equipment to pay all or a portion of the purchase price thereof or to
secure Indebtedness incurred solely for the purpose of financing the
acquisition of any such equipment, or extensions, renewals, or
replacements of any of the foregoing for the same or lesser amount);
provided that (i) the Indebtedness secured by any such Lien does not
exceed the purchase price of such equipment, (ii) any such Lien encumbers
only the asset so purchased and the proceeds upon sale, disposition, loss
or destruction thereof, and (iii) such Lien, after giving effect to the
Indebtedness secured thereby, does not give rise to an Event of Default;
f. easements, rights-of-way, zoning restrictions, other similar
charges or encumbrances and all other items listed on Schedule B to
Borrower's owner's title insurance policies, except in connection with any
Indebtedness, for any of Borrower's Real Property Assets, so long as the
foregoing do not interfere in any material respect with the use or
ordinary conduct of the business of Borrower and do not diminish in any
material respect the value of the Property to which it is attached or for
which it is listed;
g. (I) Liens and judgments which have been or will be bonded (and
the Lien on any cash or securities serving as security for such bond) or
released of record within thirty (30) days after the date such Lien or
judgment
27
is entered or filed against General Partner, Borrower, or any Subsidiary,
or (II) Liens which are being contested in good faith by appropriate
proceedings for review and in respect of which there shall have been
secured a subsisting stay of execution pending such appeal or proceedings
and as to which the subject asset is not at risk of forfeiture;
h. Liens on Property of the Borrower or its Subsidiaries (other
than Qualifying Unencumbered Property) securing Indebtedness which may be
incurred or remain outstanding without resulting in an Event of Default
hereunder; and
i. Liens in favor of Borrower against any asset of any Financing
Partnership or Joint Venture Subsidiaries.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including, without limitation, a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Preferred Stock Subsidiary" means a corporation organized with two
classes of stock, consisting of one class of voting common shares and one class
of non-voting preferred shares, all of whose preferred shares are owned by a
Person seeking to be treated as a real estate investment trust under the Code
(or an operating partnership of which such Person is general partner) and all of
the common shares of which are owned by individuals or entities who are neither
owned nor controlled by such Person (but which individuals may be, and which
entities may be owned and controlled by, officers, directors or employees of
such Person), and to which such Person (or an operating partnership of which
such Person is general partner) has contributed at least ninety-five percent
(95%) or more of the equity capital raised by such corporation in exchange for
the issuance of such corporation's shares.
"Prime Rate" means the rate of interest publicly announced by the
Administrative Agent from time to time as its Prime Rate (it being understood
that the same shall not necessarily be the best rate offered by the
Administrative Agent to customers).
28
"principal financial center" means, when used in reference to an
Alternate Currency, (a) in the case of British Pounds Sterling, London, England,
(b) in the case of Euros, Frankfurt am Main, Germany, and (c) in the case of
Yen, Tokyo, Japan.
"Pro Rata Share" means, with respect to any Bank, as applicable, (a)
a fraction (expressed as a percentage), the numerator of which shall be the
amount of such Bank's Dollar Commitment and the denominator of which shall be
the aggregate amount of all of the Banks' Dollar Commitments, (b) a fraction
(expressed as a percentage), the numerator of which shall be the amount of such
Bank's Alternate Currency Commitment and the denominator of which shall be the
aggregate amount of all of the applicable Banks' Alternate Currency Commitments,
or (c) a fraction (expressed as a percentage), the numerator of which shall be
the sum of the amount of such Bank's Alternate Currency Commitment and its
Dollar Commitment and the denominator of which shall be the aggregate amount of
all of the Banks' Commitments, in each case as adjusted from time to time in
accordance with the provisions of this Agreement.
"Property" means, with respect to any Person, any real or personal
property, building, facility, structure, equipment or unit, or other asset owned
by such Person.
"Qualified Borrower" means a foreign or domestic limited
partnership, limited liability company or other business entity duly organized
under the laws of its jurisdiction of formation of which the Borrower (or a
Person that is owned and controlled by the Borrower) is the sole general partner
or managing member, the Indebtedness of which, in all cases, can be guaranteed
by the Borrower pursuant to the provisions of the Borrower's Agreement of
Limited Partnership.
"Qualified Borrower Guaranty" means a full and unconditional
guaranty of payment in the form of EXHIBIT H attached hereto, enforceable
against Borrower for the payment of a Qualified Borrower's debt or obligation to
the Banks.
"Qualified Institution" means a Bank, or one or more banks, finance
companies, insurance or other financial institutions which (A) has (or, in the
case of a bank which is a subsidiary, such bank's parent has) a rating of its
senior debt obligations of not less than Baa-1 by Moody's or a comparable rating
by a rating agency acceptable to Syndication Agent and (B) has total assets in
excess of Ten Billion Dollars ($10,000,000,000).
"Qualifying Unencumbered Property" means any retail or industrial
Property (including Unimproved Assets and Construction Assets, but excluding
interests in participating mortgages in which such Person's interest therein is
characterized as equity according to GAAP) from time to time which (i) is an
29
operating Real Property Asset which is owned directly or indirectly 100% in fee
(or ground leasehold) by Borrower, a Financing Partnership or a Joint Venture
Subsidiary, (ii) is not subject (nor are any equity interests in such Property
that are owned directly or indirectly by Borrower, General Partner or any Joint
Venture Parent subject) to a Lien which secures Indebtedness of any Person other
than Permitted Liens, (iii) is not subject (nor are any equity interests in such
Property that are owned directly or indirectly by Borrower, General Partner or
any Joint Venture Parent subject) to any Negative Pledge (provided that a
financial covenant given for the benefit of any Person that may be violated by
the granting of any Lien on any Property to secure any or all of the Obligations
shall not be deemed a Negative Pledge); provided, however, if, at the end of any
Fiscal Quarter, (x) less than 85% of the rentable square feet of all Qualifying
Unencumbered Properties (other than Unimproved Assets and Construction Assets)
are then occupied by tenants, and (y) during the prior four (4) Fiscal Quarters,
less than an average of 85% of the rentable square feet of all Qualifying
Unencumbered Properties (other than Unimproved Assets and Construction Assets)
were occupied by tenants, then Borrower shall select a sufficient number of
Qualifying Unencumbered Properties to be disregarded in determining Unencumbered
Asset Value such that as to the remaining Qualifying Unencumbered Properties
either (x) no less than 85% of the rentable square feet of such remaining
Qualifying Unencumbered Properties (other than Unimproved Assets and
Construction Assets) are then occupied by tenants, or (y) during the prior four
Fiscal Quarters, no less than an average of 85% of the rentable square feet of
such remaining Qualifying Unencumbered Properties (other than Unimproved Assets
and Construction Assets) were occupied by tenants.
"Rating Agencies" means, collectively, S&P, Moody's and Fitch.
"Real Property Assets" means as to any Person as of any time, the
real property assets (including, without limitation, interests in participating
mortgages in which such Person's interest therein is characterized as equity
according to GAAP) owned directly or indirectly by such Person at such time.
"Recourse Debt" shall mean Indebtedness that is not Non-Recourse
Indebtedness.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66 2/3% of the aggregate unpaid
principal amount of the Loans (provided, that in the case of Swingline Loans,
the amount of each Bank's funded participation interest in such Swingline Loans
shall be considered for purposes hereof as if it were a direct loan and not a
participation
30
interest, and the aggregate amount of Swingline Loans owing to the Swingline
Lender shall be considered for purposes hereof as reduced by the amount of such
funded participation interests).
"REIT" means a real estate investment trust, as defined under
Section 856 of the
Code.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"Second Tier Funding Loan" has the meaning set forth in Section
5.14.
"Secured Debt" means Indebtedness (but excluding Intracompany
Indebtedness), the payment of which is secured by a Lien (other than a Permitted
Lien, except for those Permitted Liens described in clause (h) of the definition
thereof) on any Property owned or leased by General Partner or Borrower plus
Borrower's Share of Indebtedness (but excluding Intracompany Indebtedness), the
payment of which is secured by a Lien (other than a Permitted Lien, except for
those Permitted Liens described in clause (h) of the definition thereof) on any
Property owned or leased by any Investment Affiliate or any Consolidated
Subsidiary.
"Securities" means any stock, partnership interests, shares, shares
of beneficial interest, voting trust certificates, bonds, debentures, notes or
other evidences of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as "securities," or
any certificates of interest, shares, or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing, but shall not include Joint Venture
Interests, any interest in any Subsidiary of General Partner or Borrower, any
interest in a Taxable REIT Subsidiary, any Indebtedness which would not be
required to be included on the liabilities side of the balance sheet of General
Partner or Borrower on a consolidated basis in accordance with GAAP, any Cash or
Cash Equivalents or any evidence of the Obligations.
"Sharing Event" means (i) the occurrence of an Event of Default with
respect to the Borrower or General Partner under clauses (f) or (g) of Section
6.1,or (ii) the acceleration of the Loans pursuant to Article VI.
"Solvent" means, with respect to any Person, that the fair saleable
value of such Person's assets exceeds the Indebtedness of such Person.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the
31
board of directors or other persons performing similar functions are at the time
directly or indirectly owned by the Borrower or General Partner.
"Subsidiary Operating Partnership" shall mean a limited liability
company or limited partnership in which the only interest therein not owned
(directly or indirectly) by Borrower and/or General Partner shall be preference
interests or preference units, respectively.
"Substantially Controlled by Borrower" means, with respect to any
action, that such action is substantially controlled by Borrower as contemplated
under Section 5.14.
"Swingline Borrowing" has the meaning set forth in Section 1.3.
"Swingline Commitment" has the meaning set forth in Section 2.3(a).
"Swingline Lender" means JPMorgan Chase Bank, in its capacity as
Swingline Lender hereunder, and its permitted successors in such capacity in
accordance with the terms of this Agreement.
"Swingline Loan" means a loan made by the Swingline Lender pursuant
to Section 2.3.
"Syndication Agent" means Bank of America, N.A., in its capacity as
syndication agent hereunder and its permitted successors in such capacity in
accordance with the terms of this Agreement.
"Taxable REIT Subsidiary" means any corporation (other than a REIT)
in which General Partner directly or indirectly owns stock and General Partner
and such corporation jointly elect that such corporation shall be treated as a
taxable REIT subsidiary of General Partner under and pursuant to Section 856 of
the Code.
"Taxes" means all federal, state, local and foreign income and gross
receipts taxes.
"Term" has the meaning set forth in Section 2.10.
"Termination Event" shall mean (i) a "reportable event", as such
term is described in Section 4043 of ERISA (other than a "reportable event" not
subject to the provision for 30-day notice to the PBGC), or an event described
in Section 4062(e) of ERISA, (ii) the withdrawal by any member of the ERISA
Group from a Multiemployer Plan during a plan year in which it is a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), or the incurrence of
liability by any member of the ERISA Group under Section 4064 of ERISA upon the
termination of
32
a Multiemployer Plan, (iii) the filing of a notice of intent to terminate any
Plan under Section 4041 of ERISA, other than in a standard termination within
the meaning of Section 4041 of ERISA, or the treatment of a Plan amendment as a
distress termination under Section 4041 of ERISA, (iv) the institution by the
PBGC of proceedings to terminate, impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or cause a trustee to be appointed
to administer, any Plan or (v) any other event or condition that might
reasonably constitute grounds for the termination of, or the appointment of a
trustee to administer, any Plan or the imposition of any liability or
encumbrance or Lien on the Real Property Assets or any member of the ERISA Group
under ERISA or the Code.
"Tiered Non-US Property" has the meaning set forth in Section 5.14.
"Total Asset Value" means, with respect to Borrower and without
duplication, (i) the quotient obtained by dividing (a) (x) (1) Adjusted EBITDA
for the previous four (4) Fiscal Quarters most recently ended, minus (2) for any
Property (other than Construction Assets or Unimproved Assets) which was
acquired by Borrower, a Consolidated Subsidiary or an Investment Affiliate in
any of the previous four (4) Fiscal Quarters, the Adjusted EBITDA attributable
to such Property to the extent the same was included in the Adjusted EBITDA of
Borrower in clause (1) of this definition by (b) the FMV Cap Rate, plus (ii) for
any Property which was acquired by Borrower in any of the previous four (4)
Fiscal Quarters, the sum of (x) the Net Price of the Property paid by Borrower
for such Property and (y) the cost of capital expenditures actually incurred in
connection with such Property, plus (iii) for any Property which was acquired by
an Investment Affiliate or a Consolidated Subsidiary in any of the previous four
(4) Fiscal Quarters, the sum of (x) Borrower's Share of the Net Price of the
Property paid by such Investment Affiliate or by such Consolidated Subsidiary,
as applicable, for such Property, and (y) Borrower's share of the cost of
capital expenditures actually incurred in connection with such Property plus
(iv) the value of any Cash or Cash Equivalent owned by Borrower, and Borrower's
Share of any Cash or Cash Equivalent owned by any Consolidated Subsidiary or
Investment Affiliate, plus (v) the value of any Construction Assets, Unimproved
Assets and any other tangible assets of Borrower (including foreign currency
exchange agreements, to the extent such agreements are material and are reported
or are required under GAAP to be reported by the Borrower in its financial
statements), as measured on a GAAP basis, plus (vi) Borrower's Share of the
value of any Construction Assets, Unimproved Assets and any other tangible
assets of any Investment Affiliate or any Consolidated Subsidiary as measured on
a GAAP basis. For purposes of the foregoing, a Property which was a Construction
Asset will be deemed to have been acquired on the date it ceases to be a
Construction Asset.
"Total Liabilities" means, as of the date of determination and
without duplication, all Balance Sheet Indebtedness of Borrower and General
Partner, plus
33
Borrower's Share of all Balance Sheet Indebtedness of Investment Affiliates and
Consolidated Subsidiaries.
"Unencumbered Asset Value" means (i) for any Qualifying Unencumbered
Properties (other than Unimproved Assets and Construction Assets) which were
neither acquired or disposed of by Borrower, a Financing Partnership, a
Preferred Stock Subsidiary or a Joint Venture Subsidiary in the previous four
(4) Fiscal Quarters, the quotient of (a) (x) the Unencumbered Net Operating
Income for such Fiscal Quarters, and less (z) in the case of any Qualifying
Unencumbered Property located outside of the United States, an amount equal to
the applicable withholding taxes imposed by any foreign jurisdiction applicable
to the Unencumbered Net Operating Income attributable to any such Qualifying
Unencumbered Property for the applicable period, divided by (b) the FMV Cap
Rate, plus (ii) for all Unimproved Assets and Construction Assets and for all
Qualifying Unencumbered Properties owned (directly or beneficially) by Borrower,
any Financing Partnership, Preferred Stock Subsidiary or any Joint Venture
Subsidiary which were acquired (directly or indirectly) by the Borrower, any
Financing Partnership, any Preferred Stock Subsidiary or any Joint Venture
Subsidiary during any of the previous four (4) Fiscal Quarters most recently
ended, the aggregate Net Price of such Qualifying Unencumbered Properties paid
by Borrower or its Affiliates for such Qualifying Unencumbered Properties plus
all capital expenditures actually incurred in connection with such Property;
provided, however, that, unless otherwise approved by the Required Banks, (aa)
in the event any such Qualifying Unencumbered Property is owned by a Joint
Venture Subsidiary, the amount of the Unencumbered Net Operating Income
attributable to such Qualifying Unencumbered Property for purposes of clause (i)
above and the Net Price of, and capital expenditures actually incurred in
connection with, such Qualifying Unencumbered Property for the purposes of
clause (ii) above shall be reduced to Borrower's Share thereof, (bb) the portion
of the aggregate amount of the Unencumbered Asset Value attributable to
Qualifying Unencumbered Properties that are Qualifying Unencumbered Properties
located in the United States and owned by a Joint Venture Subsidiary or a
Consolidated Subsidiary (other than Qualifying Unencumbered Properties owned by
a Subsidiary Operating Partnership) (after first taking into account the
adjustment provided in clause (aa) of this proviso) which would cause such
aggregate amount to exceed fifteen percent (15%) of the total Unencumbered Asset
Value at such time will be disregarded in determining Unencumbered Asset Value,
(cc) the portion of the amount of the Unencumbered Asset Value attributable to
all Qualifying Unencumbered Property located outside of the United States (after
first taking into account the adjustment provided in clause (aa) of this
proviso) which would cause such amount to exceed fifteen percent (15%) of the
total Unencumbered Asset Value at such time (after making all adjustments
required by this proviso) will be disregarded in determining Unencumbered Asset
Value, (dd) the portion of the aggregate amount of the Unencumbered Asset Value
attributable to Qualifying Unencumbered Properties that are Unimproved Assets or
Construction Assets (after
34
first taking into account the adjustment provided in clause (aa) of this
proviso) which would cause such amount to exceed twenty percent (20%) of the
total Unencumbered Asset Value at such time (after making all adjustments
required by this proviso) will be disregarded in determining Unencumbered Asset
Value and (ee) the portion of the aggregate amount of the Unencumbered Asset
Value attributable to such Qualifying Unencumbered Property described in clauses
(bb), (cc) and (dd) which would cause such aggregate amounts to exceed
twenty-five percent (25%) of the total Unencumbered Asset Value at such time
will be disregarded in determining Unencumbered Asset Value (after first taking
into account the adjustment provided in clause (aa) of this proviso). For
purposes of the foregoing, a Qualifying Unencumbered Property which was a
Construction Asset shall be deemed to have been acquired on the date it ceases
to be a Construction Asset.
"Unencumbered Net Operating Cash Flow" means, as of any date of
determination, the Unencumbered Net Operating Income for the previous four (4)
Fiscal Quarters (provided that as to any Qualifying Unencumbered Property
acquired during such period and owned for not less than one (1) Fiscal Quarter,
Unencumbered Net Operating Income attributable to such period occurring after
such acquisition shall be annualized).
"Unencumbered Net Operating Income" means, for any period, for all
Qualifying Unencumbered Properties, the aggregate revenues from each such
Qualifying Unencumbered Property for such period (including, without limitation,
lease termination fees appropriately amortized, but excluding deferred rents
receivable), less the cost of maintaining such Qualifying Unencumbered
Properties (including, without limitation, taxes, insurance, repairs and
maintenance, but excluding depreciation, amortization, interest costs and
capital expenditures) (provided that as to any Qualifying Unencumbered Property
acquired during such period, only revenues and property level expenses
attributable to such period occurring after such acquisition shall be included),
as adjusted for (i) capital expenditure reserves at the rate of Ten Cents
($0.10, or in the case of any Qualifying Unencumbered Property owned by a Joint
Venture Subsidiary, Borrower's Share of Ten Cents ($0.10)) per square foot per
annum of space leased as of the applicable date of determination (provided that,
as to any Qualifying Unencumbered Property acquired during such period, such
amount per square foot shall be pro-rated for the period of ownership) and (ii)
to exclude the effects of straight-lining of rents.
"Unimproved Assets" means Real Property Assets (or, in the case of
any Real Property Assets to be developed in phases, any phase thereof)
containing no material improvements other than infrastructure improvements such
as roads, utility feeder lines and the like.
"United States" means the United States of America, including the
fifty states and the District of Columbia.
35
"Unsecured Debt" means the amount of Indebtedness (excluding
Intracompany Indebtedness) for borrowed money of General Partner, Borrower, any
Financing Partnership, any Preferred Stock Subsidiary or Joint Venture
Subsidiary and which is not Secured Debt, including, without limitation, the
amount of all then outstanding Loans, provided, however, for the purpose of
calculating the ratio of outstanding Unsecured Debt to Unencumbered Asset Value,
in the case of any Preferred Stock Subsidiary, Joint Venture Subsidiary or
Consolidated Subsidiary only an amount equal to the Borrower's Share in each
such entity (excluding Intracompany Indebtedness) times any Indebtedness for
borrowed money of such entity shall be included in Unsecured Debt.
"Unsecured Interest Expense" means, as of any date of determination,
for the previous four (4) Fiscal Quarters, the Interest Expense paid, accrued or
capitalized on Unsecured Debt.
"Unused Commitments" shall mean an amount equal to all unadvanced
funds (other than unadvanced funds in connection with any construction loan)
which any third party is obligated to advance to Borrower or another Person or
otherwise pursuant to any loan document, written instrument or otherwise.
SECTION 1.2. Accounting Terms and Determinations . Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Administrative Agent; provided that for purposes of references to the
financial results and information of "General Partner, on a consolidated basis,"
General Partner shall be deemed to own one hundred percent (100%) of the
partnership interests in Borrower; and provided further that, if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any covenant
in Article V to eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Administrative Agent notifies the Borrower that the
Required Banks wish to amend Article V for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner reasonably
satisfactory to the Borrower and the Required Banks.
SECTION 1.3. Types of Borrowings . The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on the same date, all of which Loans are of the same type (subject to
36
Article 8) and, except in the case of Base Rate Loans and Swingline Loans, have
the same initial Interest Period. Borrowings are classified for purposes of this
Agreement either by reference to the pricing of Loans comprising such Borrowing
(e.g., a "Fixed Rate Borrowing" is a Euro-Dollar Borrowing or a Money Market
Borrowing (excluding any such Borrowing consisting of Money Market IBOR Loans
bearing interest at the Base Rate pursuant to Article VIII); a "Euro-Dollar
Borrowing" is a Borrowing comprised of Euro-Dollar Loans; and an "Alternate
Currency Borrowing" is a Borrowing comprised of Euro-Dollar Loans denominated in
an Alternate Currency) or by reference to the provisions of Article 2 under
which participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.1 in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.4 in which a Bank's share is determined on the basis of its bid in accordance
therewith, and a "Swingline Borrowing" is a Borrowing under Section 2.3 in which
only the Swingline Lender participates (subject to the provisions of said
Section 2.3)).
ARTICLE II
THE CREDITS
SECTION 2.1. Commitments to Lend . Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, (a) to make Loans to the
Borrower and to Qualified Borrowers and participate in Letters of Credit issued
by the Fronting Bank on behalf of the Borrower and Qualified Borrowers pursuant
to this Article from time to time during the term hereof in amounts such that
the aggregate principal amount of Committed Loans by such Bank at any one time
outstanding plus such Bank's Pro Rata Share of Swingline Loans outstanding
together with such Bank's pro rata share of the Letter of Credit Usage at such
time shall not exceed the Dollar Equivalent Amount of its Commitment, and (b) in
furtherance and clarification of the foregoing, as to Banks with an Alternate
Currency Commitment only, to participate in Alternate Currency Letters of Credit
issued by the Fronting Bank on behalf of Borrower and Qualified Borrowers
pursuant to this Article and to make Euro-Dollar Loans to Borrower and Qualified
Borrowers denominated in any Alternate Currency (provided (i) such Alternate
Currency is readily available to such Banks and is freely transferable and
convertible to Dollars, (ii) the Reuters Monitor Money Rates Service (or any
successor thereto) reports a London Interbank Offered Rate for such Alternate
Currency relating to the applicable Interest Period, and (iii) Borrower shall
then have an Investment Grade Rating from both S&P and Moody's) at any time and
from time to time during the Term, in an aggregate principal Dollar Equivalent
Amount not to exceed such Bank's Alternate Currency Commitment. Each Borrowing
outstanding under this Section 2.1 shall be in an aggregate principal Dollar
Equivalent Amount of $5,000,000 (or, with respect to an Alternate Currency
Borrowing only, the Dollar Equivalent Amount of $3,000,000), or an integral
multiple of the Dollar Equivalent Amount of $1,000,000
37
in excess thereof (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.2(b), or in any amount required to
reimburse the Fronting Bank for any drawing under any Letter of Credit or to
repay the Swingline Lender the amount of any Swingline Loan) and, other than
with respect to Money Market Loans and Swingline Loans, shall be made from the
several Banks ratably in proportion to their respective Commitments. Subject to
the provisions of Section 9.19 hereof, in no event shall (i) the aggregate
Dollar Equivalent Amount of Loans outstanding at any time, plus outstanding
Dollar Equivalent Amount of the Letter of Credit Usage, exceed $500,000,000 (as
adjusted pursuant to Section 9.19, the "Facility Amount"), or (ii) the aggregate
amount of Loans denominated in an Alternate Currency plus the outstanding Letter
of Credit Usage for Alternate Currency Letters of Credit exceed the Alternate
Currency Sublimit, with, in the case of both clauses (i) and (ii), Loans
denominated in Alternate Currencies and Letter of Credit Usage for Alternate
Currency Letters of Credit being marked to market monthly on the last Business
Day of each month. Notwithstanding any other provision of this Agreement to the
contrary, each Borrowing denominated in Dollars shall be deemed to use the
Dollar Commitments to the extent the Dollar Sublimit would not be exceeded
thereby, and to use the Alternate Currency Commitments if such Alternate
Currency Commitments are available in the event that the Dollar Commitments
would be so exceeded. Subject to the limitations set forth herein, any amounts
repaid may be reborrowed.
SECTION 2.2. Notice of Borrowing. (a) With respect to any Committed
Borrowing, the Borrower shall give Administrative Agent notice not later than
1:00 P.M. (New York City or London time, as applicable) (x) the Business Day
prior to each Base Rate Borrowing, or (y) the third (3rd) Euro-Dollar Business
Day before each Euro-Dollar Borrowing denominated in Dollars, or (z) the fourth
(4(th)) Euro-Dollar Business Day before each Euro-Dollar Borrowing denominated
in an Alternate Currency, specifying:
(i) the date of such Borrowing, which shall be a Business Day in
the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base
Rate Loans or Euro-Dollar Loans, and if Euro-Dollar Loans are requested
other than in Dollars, the type and amount of the Alternate Currency being
requested,
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period,
38
(v) if such Borrowing is to be made by a Qualified Borrower, the
identity of the Qualified Borrower;
(vi) payment instructions for delivery of such Borrowing; and
(vii) certify that no Default or Event of Default has occurred or is
continuing.
(b) Borrower shall give the Administrative Agent, and the Fronting
Bank, written notice in the event that it desires to have Letters of Credit
(each, a "Letter of Credit") issued, or to have Letters of Credit issued on
behalf of a Subsidiary, hereunder no later than 1:00 P.M. (New York City or
London time, as applicable) at least four (4) Business Days (or, for Alternate
Currency Letters of Credit, four (4) Euro-Dollar Business Days) prior to, but
excluding, the date of such issuance. Each such notice shall specify (i) (a) if
Alternate Currency is requested, the type and individual amount of the Alternate
Currency being requested and (b) if Dollars are requested, the individual amount
of each requested Letter of Credit, (ii) the aggregate amount of the requested
Letters of Credit, (iii) the individual amount of each requested Letter of
Credit and the number of Letters of Credit to be issued, (iv) the date of such
issuance (which shall be a Business Day (or, for Alternate Currency Letters of
Credit, a Euro-Dollar Business Day)), (v) the name and address of the
beneficiary, (vi) the expiration date of the Letter of Credit (which in no event
shall be later than the Maturity Date or twelve (12) months after the issuance
of such Letter of Credit, whichever is earlier), (vii) the purpose and
circumstances for which such Letter of Credit is being issued, (viii) the terms
upon which each such Letter of Credit may be drawn down (which terms shall not
leave any discretion to Fronting Bank) and (ix) certify that no Default or Event
of Default has occurred or is continuing. Each such notice may be revoked
telephonically by the Borrower to the Fronting Bank and the Administrative Agent
any time prior to the issuance of the Letter of Credit by the Fronting Bank,
provided such revocation is confirmed in writing by the Borrower to the Fronting
Bank and the Administrative Agent within one (1) Business Day (or one (1)
Euro-Dollar Business Day in the case of an Alternate Currency Letter of Credit)
by facsimile. Notwithstanding anything contained herein to the contrary, the
Borrower shall complete and deliver to the Fronting Bank any required
documentation in connection with any requested Letter of Credit no later than
the second (2nd) Business Day (or, in the case of Alternate Currency Letters of
Credit, the second (2nd) Euro-Dollar Business Day) prior to the date of issuance
thereof. No later than 1:00 P.M. (New York City or London time, as applicable)
on the date that is four (4) Business Days (or, in the case of Alternate
Currency Letters of Credit, four (4) Euro-Dollar Business Days) prior to, but
excluding, the date of issuance, the Borrower shall specify a precise
description of the documents and the verbatim text of any certificate to be
presented by the beneficiary of such Letter of Credit, which if presented by
such beneficiary prior to
39
the expiration date of the Letter of Credit would require the Fronting Bank to
make a payment under the Letter of Credit; provided, that Fronting Bank may, in
its reasonable judgment, require changes in any such documents and certificates
only in conformity with changes in customary and commercially reasonable
practice or law and, provided further, that no Letter of Credit shall require
payment against a conforming draft to be made thereunder on the third Business
Day (or, in the case of Alternate Currency Letters of Credit, the third (3rd)
Euro-Dollar Business Day) following the date that such draft is presented if
such presentation is made later than 1:00 P.M. New York City or London time, as
applicable) (except that if the beneficiary of any Letter of Credit requests at
the time of the issuance of its Letter of Credit that payment be made on the
same Business Day (or, in the case of Alternate Currency Letters of Credit,
Euro-Dollar Business Day) against a conforming draft, such beneficiary shall be
entitled to such a same day draw, provided such draft is presented to the
Fronting Bank no later than 1:00 P.M. (New York City or London time, as
applicable) and provided further the Borrower shall have requested to the
Fronting Bank and the Administrative Agent that such beneficiary shall be
entitled to a same day draw). In determining whether to pay on such Letter of
Credit, the Fronting Bank shall be responsible only to determine that the
documents and certificates required to be delivered under the Letter of Credit
have been delivered and that they comply on their face with the requirements of
that Letter of Credit.
SECTION 3.3. Swingline Loan Subfacility .
(a) Swingline Commitment. Subject to the terms and conditions of
this Section 2.3, the Swingline Lender, in its individual capacity, agrees to
make certain revolving credit loans in Dollars to the Borrower (each a
"Swingline Loan" and, collectively, the "Swingline Loans") from time to time
during the term hereof; provided, however, that the aggregate amount of
Swingline Loans outstanding at any time shall not exceed the lesser of (i) FIFTY
MILLION DOLLARS ($50,000,000), and (ii) the aggregate Commitments less the sum
of (A) all Loans then outstanding, and (B) the Letter of Credit Usage (the
"Swingline Commitment"). Subject to the limitations set forth herein, any
amounts repaid in respect of Swingline Loans may be reborrowed.
(b) Swingline Borrowings.
(i) Notice of Borrowing. With respect to any Swingline
Borrowing, the Borrower shall give the Swingline Lender and the Administrative
Agent notice in writing which is received by the Swingline Lender and
Administrative Agent not later than 2:00 p.m. (New York City time) on the
proposed date of such Swingline Borrowing (and confirmed by telephone by such
time), specifying (A) that a Swingline Borrowing is being requested, (B) the
amount of such Swingline Borrowing, (C) the proposed date of such Swingline
Borrowing, which shall be a Business Day and (D) stating that no Default or
Event of Default has
40
occurred and is continuing both before and after giving effect to such Swingline
Borrowing. Such notice shall be irrevocable.
(ii) Minimum Amounts. Each Swingline Borrowing shall be in a
minimum principal amount of $3,000,000, or an integral multiple of $1,000,000 in
excess thereof.
(iii) Repayment of Swingline Loans. Each Swingline Loan shall
be due and payable on the earliest of (A) 4 Business Days from and including the
date of the applicable Swingline Borrowing, (B) the date of the next Committed
Borrowing or (C) the Maturity Date. If, and to the extent, any Swingline Loans
shall be outstanding on the date of any Committed Borrowing, such Swingline
Loans shall first be repaid from the proceeds of such Committed Borrowing prior
to the disbursement of the same to the Borrower. If, and to the extent, a
Committed Borrowing is not requested prior to the Maturity Date or the end of
the 4 Business Day period after a Swingline Borrowing, or unless the Borrower
shall have notified the Administrative Agent and the Swingline Lender prior to
1:00 P.M. (New York City time) on the third (3rd) Business Day after the
Swingline Borrowing that the Borrower intends to reimburse the Swingline Bank
for the amount of such Swingline Borrowing with funds other than proceeds of the
Loans, the Borrower shall be deemed to have requested a Committed Borrowing
comprised entirely of Base Rate Loans in the amount of the applicable Swingline
Loan then outstanding, the proceeds of which shall be used to repay such
Swingline Loan to the Swingline Lender. In addition, if (x) the Borrower does
not repay the Swingline Loan on or prior to the end of such 4 Business Day
period, or (y) a Default or Event of Default shall have occurred during such 4
Business Day period, the Swingline Lender may, at any time, in its sole
discretion, by written notice to the Borrower and the Administrative Agent,
demand repayment of its Swingline Loans by way of a Committed Borrowing, in
which case the Borrower shall be deemed to have requested a Committed Borrowing
comprised entirely of Base Rate Loans in the amount of such Swingline Loans then
outstanding, the proceeds of which shall be used to repay such Swingline Loans
to the Swingline Lender. Any Committed Borrowing which is deemed requested by
the Borrower in accordance with this Section 2.3(b)(iii) is hereinafter referred
to as a "Mandatory Borrowing". Each Bank hereby irrevocably agrees to make
Committed Loans promptly upon receipt of notice from the Swingline Lender of any
such deemed request for a Mandatory Borrowing in the amount and in the manner
specified in the preceding sentences and on the date such notice is received by
such Bank (or the next Business Day if such notice is received after 12:00 P.M.
(New York City time)) notwithstanding (I) the amount of the Mandatory Borrowing
may not comply with the minimum amount of Committed Borrowings otherwise
required hereunder, (II) whether any conditions specified in Section 3.2 are
then satisfied, (III) whether a Default or an Event of Default then exists, (IV)
failure of any such deemed request for a Committed Borrowing to be made by the
time otherwise required in Section 2.1, (V) the date of such Mandatory Borrowing
(provided that such date must
41
be a Business Day), or (VI) any termination of the Commitments immediately prior
to such Mandatory Borrowing or contemporaneously therewith; provided, however,
that no Bank shall be obligated to make Committed Loans in respect of a
Mandatory Borrowing if a Default or an Event of Default then exists and the
applicable Swingline Loan was made by the Swingline Lender without receipt of a
written Notice of Borrowing in the form specified in subclause (i) above or
after Administrative Agent has delivered a notice of Default or Event of Default
which has not been rescinded.
(iv) Purchase of Participations. 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 the Borrower), then each
Bank hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payment
received from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause each such Bank to share in such Swingline Loans
ratably based upon its Pro Rata Share (determined before giving effect to any
termination of the Commitments pursuant to Section 6.2), provided that (A) all
interest payable on the Swingline Loans with respect to any participation shall
be for the account of the Swingline Lender until but excluding the day upon
which the Mandatory Borrowing would otherwise have occurred, and (B) in the
event of a delay between the day upon which the Mandatory Borrowing would
otherwise have occurred and the time any purchase of a participation pursuant to
this sentence is actually made, the purchasing Bank shall be required to pay to
the Swingline Lender interest on the principal amount of such participation for
each day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the rate equal to the Federal Funds Rate, for the two (2)
Business Days after the date the Mandatory Borrowing would otherwise have
occurred, and thereafter at a rate equal to the Base Rate. Notwithstanding the
foregoing, no Bank shall be obligated to purchase a participation in any
Swingline Loan if a Default or an Event of Default then exists and such
Swingline Loan was made by the Swingline Lender without receipt of a written
Notice of Borrowing in the form specified in subclause (i) above or after
Administrative Agent has delivered a notice of Default or Event of Default which
has not been rescinded.
(c) Interest Rate. Each Swingline Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Swingline
Loan is made until the date it is repaid, at a rate per annum equal to the
Federal Funds Rate plus the Applicable Margin for Euro-Dollar Loans for such
day.
SECTION 2.4. Money Market Borrowings.
42
(a) The Money Market Option. From time to time during the Term,
and provided that at such time the Borrower maintains a Credit Rating of at
least BBB- or Baa3 (or their equivalent) from S&P and Moody's, the Borrower may,
as set forth in this Section 2.4, request the Banks during the Term to make
offers to make Money Market Loans in Dollars to the Borrower, not to exceed, at
such time, the lesser of (i) $200,000,000 (adjusted pro rata for changes in the
aggregate Commitments), and (ii) the aggregate Commitments less all Loans and
Letter of Credit Usage then outstanding (excluding any Loans or any portion
thereof to be repaid from the proceeds of such Money Market Loans). Subject to
the provisions of this Agreement, the Borrower may repay any outstanding Money
Market Loan on any day which is a Business Day (or a Euro-Dollar Business Day in
the case of Money Market IBOR Loans) and any amounts so repaid may be
reborrowed, up to the amount available under this Section 2.4 at the time of
such Borrowing, until the Euro-Dollar Business Day next preceding the Maturity
Date. The Banks may, but shall have no obligation to, make such offers and the
Borrower may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section 2.4.
(b) Money Market Quote Request. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall transmit
to the Administrative Agent by telex or facsimile transmission a Money Market
Quote Request substantially in the form of Exhibit B hereto (a "Money Market
Quote Request") so as to be received not later than 1:00 P.M. (New York City
time) on (x) the fifth Euro-Dollar Business Day prior to, but excluding, the
date of Borrowing proposed therein, in the case of a IBOR Auction or (y) the
Business Day immediately preceding the date of Borrowing proposed therein, in
the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Borrower and the Administrative Agent shall have mutually agreed and
shall have notified the Banks not later than the date of the Money Market Quote
Request for the first IBOR Auction or Absolute Rate Auction for which such
change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of an IBOR Auction or a Business Day in the case
of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$5,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto (which
shall not be less than 14 days or more than 180 days), subject to the
provisions of the definition of Interest Period,
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate,
43
(v) the aggregate amount of all Money Market Loans then
outstanding, and
(vi) certify that no Default or Event of Default has occurred or is
continuing.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. In no event may Borrower
give a Money Market Quote Request in excess of two (2) times in any one month
period or within ten (10) days of the giving of any other Money Market Quote
Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Administrative Agent shall send to the Banks by
telex or facsimile transmission an "Invitation for Money Market Quotes"
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. 1. Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Administrative Agent by telex or facsimile transmission at
its offices specified in or pursuant to Section 9.1 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to, but
excluding, the proposed date of Borrowing, in the case of a IBOR Auction or (y)
9:30 A.M. (New York City time) on the proposed date of Borrowing, in the case of
an Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote Request
for the first IBOR Auction or Absolute Rate Auction for which such change is to
be effective); provided that Money Market Quotes submitted by the Administrative
Agent (or any affiliate of the Administrative Agent) in the capacity of a Bank
may be submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the other Banks,
in the case of an IBOR Auction or (y) one hour prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction. Subject to Articles 3 and
6, any Money Market Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Borrower.
44
2. Each Money Market Quote shall be in substantially the form of
Exhibit D hereto and shall in any case specify:
(i) the proposed date of Borrowing,
(ii) the principal amount of the Money Market 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 Bank, (x) must be $5,000,000 or
a larger multiple of $1,000,000, (y) may not exceed the principal amount
of Money Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of Money
Market Loans for which offers being made by such quoting Bank may be
accepted,
(iii) the Interest Period(s) with respect to which each such offer
is being made,
(iv) in the case of an IBOR Auction, the margin above or below the
applicable Interbank Offered Rate (the "Money Market Margin") offered for
each such Money Market Loan, expressed as a percentage (specified to the
nearest 1/10,000th of 1%) to be added to or subtracted from such base
rate,
(v) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(vi) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
3. Any Money Market Quote shall be disregarded if it:
(i) is not substantially in conformity with Exhibit D hereto or
does not specify all of the information required by subsection (d)(2)
above;
(ii) contains qualifying, conditional or similar language (except
for an aggregate limitation as provided in subsection (d)(2)(ii) above);
(iii) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
45
(iv) arrives after the time set forth in subsection (d)(1).
(e) Notice to Borrower. The Administrative Agent shall promptly
(and in any event within one (1) Business Day (or Euro-Dollar Business Day in
the case of an IBOR Auction) after receipt thereof) notify the Borrower in
writing of the terms (x) of any Money Market Quote submitted by a Bank that is
in accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Administrative
Agent unless such subsequent Money Market Quote is submitted solely to correct a
manifest error in such former Money Market Quote or modifies the terms of such
previous Money Market Quote to provide terms more favorable to Borrower. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 1:00 P.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to, but
excluding, the proposed date of Borrowing, in the case of an IBOR Auction or (y)
the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Money Market Quote Request for the first IBOR Auction or
Absolute Rate Auction for which such change is to be effective), the Borrower
shall notify the Administrative Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection (e). In the case of acceptance,
such notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
1. the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request;
2. the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000;
3. acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case
may be; and
46
4. the Borrower may not accept any offer that is described in
subsection (d)(3) or that otherwise fails to comply with the requirements
of this Agreement.
(g) Allocation by Agent. If offers are made by two or more Banks
with the same Money Market Margins or Money Market Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Interest Period, the principal
amount of Money Market Loans in respect of which such offers are accepted shall
be allocated by the Administrative Agent among such Banks as nearly as possible
(in multiples of $100,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. The Administrative
Agent shall promptly (and in any event within one (1) Business Day (or
Euro-Dollar Business Day in the case of an IBOR Auction) after such offers are
accepted) notify the Borrower and each such Bank in writing of any such
allocation of Money Market Loans. Determinations by the Administrative Agent of
the allocation of Money Market Loans shall be conclusive in the absence of
manifest error.
(h) Notwithstanding anything to the contrary contained herein,
each Bank shall be required to fund its Pro Rata Share of Committed Loans in
accordance with Section 2.1 hereof despite the fact that any Bank's Commitment
may have been or may be exceeded as a result of such Bank's making of Money
Market Loans.
SECTION 2.5. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing from Borrower in
accordance with Section 2.2 hereof, the Administrative Agent shall, on the date
such Notice of Borrowing is received by the Administrative Agent, notify each
applicable Bank of the contents thereof and of such Bank's share of such
Borrowing, of the interest rate determined pursuant thereto and the Interest
Period(s) (if different from those requested by the Borrower) and such Notice of
Borrowing shall not thereafter be revocable by the Borrower, unless Borrower
shall pay any applicable expenses pursuant to Section 2.14.
(b) Not later than 2:00 p.m. (New York City time or, in the case
of any Alternate Currency Borrowing, local time to the principal financial
center of the Alternate Currency in question) on the date of each Committed
Borrowing (including without limitation each Mandatory Borrowing) as indicated
in the applicable Notice of Borrowing, each Bank shall (except as provided in
subsection (d) of this Section) make available its share of such Committed
Borrowing in Federal funds or the applicable Alternate Currency immediately
available in New York, New York (or, in the case of any Alternate Currency
Borrowing, the principal financial center of the Alternate Currency in
question), to the Administrative Agent at its address referred to
47
in Section 9.1. If the Borrower has requested the issuance of a Letter of
Credit, no later than 1:00 p.m. (New York City time) on the date of such
issuance as indicated in the notice delivered pursuant to Section 2.2(b), the
Fronting Bank shall issue such Letter of Credit in the amount so requested and
deliver the same to the Borrower or Qualified Borrower, as applicable, with a
copy thereof to the Administrative Agent. Immediately upon the issuance of each
Letter of Credit by the Fronting Bank, the Fronting Bank shall be deemed to have
sold and transferred to each other Bank, and each such other Bank shall be
deemed, and hereby agrees, to have irrevocably and unconditionally purchased and
received from the Fronting Bank, without recourse or warranty, an undivided
interest and a participation in such Letter of Credit, any drawing thereunder,
and its obligation to pay its Pro Rata Share with respect thereto, and any
security therefor or guaranty pertaining thereto, in an amount equal to such
Bank's ratable share thereof. Upon any change in any of the Commitments in
accordance herewith, there shall be an automatic adjustment to such
participations to reflect such changed shares. The Fronting Bank shall have the
primary obligation to fund any and all draws made with respect to such Letter of
Credit notwithstanding any failure of a participating Bank to fund its ratable
share of any such draw. The Administrative Agent will instruct the Fronting Bank
to make such Letter of Credit available to the Borrower and the Fronting Bank
shall make such Letter of Credit available to the Borrower or the Qualified
Borrower, as the case may be, at its aforesaid address or at such address in the
United States as Borrower shall request on the date of the Borrowing or, in the
case of an Alternate Currency Letter of Credit, at such address in Europe, the
United Kingdom, Japan or the United States as the Borrower or the Qualified
Borrower, as the case may be, shall request on the date of the Borrowing.
(c) Not later than 3:00 p.m. (New York City time) on the date of
each Swingline Borrowing as indicated in the applicable Notice of Borrowing, the
Swingline Lender shall make available such Swingline Borrowing in Federal funds
immediately available in New York, New York to the Administrative Agent at its
address referred to in Section 9.1.
(d) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with this
Section 2.5 and the Administrative Agent may, in reliance upon such assumption,
but shall not be obligated to, make available to the Borrower on such date a
corresponding amount on behalf of such Bank. If and to the extent that such Bank
shall not have so made such share available to the Administrative Agent, such
Bank agrees to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the
48
Administrative Agent, at the rate of interest applicable to such Borrowing
hereunder. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement. If such Bank shall
not pay to Administrative Agent such corresponding amount after reasonable
attempts are made by Administrative Agent to collect such amounts from such
Bank, Borrower agrees to repay, or cause the applicable Qualified Borrower to
repay, to Administrative Agent forthwith on demand such corresponding amounts
together with interest thereto, for each day from the date such amount is made
available to Borrower or such Qualified Borrower, as the case may be, until the
date such amount is repaid to Administrative Agent, at the interest rate
applicable thereto one (1) Business Day after demand. Nothing contained in this
Section 2.5(d) shall be deemed to reduce the Commitment of any Bank or in any
way affect the rights of Borrower with respect to any defaulting Bank or
Administrative Agent. The failure of any Bank to make available to the
Administrative Agent such Bank's share of any Borrowing in accordance with
Section 2.5(b) hereof shall not relieve any other Bank of its obligations to
fund its Commitment, in accordance with the provisions hereof.
(e) Subject to the provisions hereof, the Administrative Agent
shall make available each Borrowing to Borrower or the applicable Qualified
Borrower in Federal funds or the applicable Alternate Currency immediately
available in accordance with, and on the date set forth in, the applicable
Notice of Borrowing.
SECTION 2.6. Notes.
(a) The Loans of each Bank shall be evidenced by a single Note
made by each Borrower (including any Qualified Borrower) payable to the order of
such Bank for the account of its Applicable Lending Office.
(b) Each Bank may, by notice to the Borrower and the
Administrative Agent, request that its Loans of a particular type (including,
without limitation, Swingline Loans and Money Market Loans) be evidenced by a
separate Note in an amount equal to the aggregate unpaid principal amount of
such Loans. Any additional costs incurred by the Administrative Agent, the
Borrower or the Banks in connection with preparing such a Note shall be at the
sole cost and expense of the Bank requesting such Note. In the event any Loans
evidenced by such a Note are paid in full prior to the Maturity Date, any such
Bank shall return such Note to Borrower. Each such Note shall be in
substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant type. Upon the
execution and delivery of any such Note, any existing Note payable to such Bank
shall be replaced or modified accordingly. Each reference in this Agreement to
the "Note" of such Bank shall be deemed to refer to and include any or all of
such Notes, as the context may require.
49
(c) Upon receipt of each Bank's Note pursuant to Section 3.1(a),
the Administrative Agent shall forward such Note to such Bank. Each Bank shall
record the date, amount, type and maturity of each Loan made by it and the date
and amount of each payment of principal made by the Borrower or Qualified
Borrower, as the case may be, with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note, endorse on
the appropriate schedule appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding; provided that the
failure of any Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower or applicable Qualified Borrower hereunder or
under the Notes. Each Bank is hereby irrevocably authorized by the Borrower and
each Qualified Borrower so to endorse its Note and to attach to and make a part
of its Note a continuation of any such schedule as and when required.
(d) The Committed Loans shall mature, and the principal amount
thereof shall be due and payable, on the Maturity Date. The Swingline Loans
shall mature, and the principal amount thereof shall be due and payable, in
accordance with Section 2.3(b)(iii).
(e) Each Money Market Loan included in any Money Market Borrowing
shall mature, and the principal amount thereof shall be due and payable,
together with accrued interest thereon, on the earlier to occur of (i) last day
of the Interest Period applicable to such Borrowing or (ii) the Maturity Date.
(f) There shall be no more than fifteen (15) Euro-Dollar Groups of
Loans and no more than ten (10) Money Market Loans outstanding at any one time.
SECTION 2.7. Method of Electing Interest Rates. (g) The Loans
included in each Committed Borrowing shall bear interest initially at the type
of rate specified by the Borrower or Qualified Borrower, as the case may be, in
the applicable Notice of Borrowing or as otherwise provided in Section 2.3 with
respect to Mandatory Borrowings. Thereafter, the Borrower or the applicable
Qualified Borrower (or the Borrower on behalf of the applicable Qualified
Borrower) may from time to time elect to change or continue the type of interest
rate borne by each Group of Loans (subject in each case to the provisions of
Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may
elect to convert all or any portion of such Loans to Euro-Dollar Loans as of any
Euro-Dollar Business Day;
(ii) if such Loans are Euro-Dollar Loans, the Borrower or the
applicable Qualified Borrower (or the Borrower on behalf of the applicable
50
Qualified Borrower) may elect to convert all or any portion of such Loans to
Base Rate Loans and/or elect to continue all or any portion of such Loans as
Euro-Dollar Loans for an additional Interest Period or additional Interest
Periods, in each case effective on the last day of the then current Interest
Period applicable to such Loans, or on such other date designated by Borrower or
the applicable Qualified Borrower (or the Borrower on behalf of the applicable
Qualified Borrower) in the Notice of Interest Rate Election provided Borrower or
the applicable Qualified Borrower (or the Borrower on behalf of the applicable
Qualified Borrower) shall pay any losses pursuant to Section 2.14.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent at least three (3) Euro-Dollar
Business Days prior to, but excluding, the effective date of the conversion or
continuation selected in such notice. A Notice of Interest Rate Election may, if
it so specifies, apply to only a portion of the aggregate principal amount of
the relevant Group of Loans; provided that (i) such portion is allocated ratably
among the Loans comprising such Group, (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each the
Dollar Equivalent Amount of $5,000,000 (or, with respect to Loans denominated in
an Alternate Currency only, the Dollar Equivalent Amount of $3,000,000) or any
larger multiple of the Dollar Equivalent Amount of $1,000,000, (iii) there shall
be no more than fifteen (15) Euro-Dollar Groups of Loans outstanding at any
time, (iv) no Committed Loan may be continued as, or converted into, a
Euro-Dollar Loan when any Event of Default has occurred and is continuing, and
(v) no Interest Period shall extend beyond the Maturity Date.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if such new Loans are Euro-Dollar Loans, the duration of
the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
51
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower or Qualified Borrower pursuant to subsection (a) above, the
Administrative Agent shall notify each Bank the same day as it receives such
Notice of Interest Rate Election of the contents thereof, the interest rates
determined pursuant thereto and the Interest Periods (if different from those
requested by the Borrower or Qualified Borrower) and such notice shall not
thereafter be revocable by the Borrower or Qualified Borrower. If the Borrower
or Qualified Borrower fails to deliver a timely Notice of Interest Rate Election
to the Administrative Agent for any Group of Euro-Dollar Loans, such Loans in
Dollars shall be converted into Base Rate Loans, and Borrower or the applicable
Qualified Borrower shall repay such Loans in Alternate Currencies, on the last
day of the then current Interest Period applicable thereto.
SECTION 2.8. Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until the
date it is repaid or converted into a Euro-Dollar Loan pursuant to Section 2.7,
at a rate per annum equal to sum of the Base Rate plus the Applicable Margin for
Base Rate Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for
Euro-Dollar Loans for such day plus the Adjusted Interbank Offered Rate
applicable to such Interest Period.
(c) Subject to Section 8.1, each Money Market IBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.8(b) as if the related Money Market IBOR Borrowing were a Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by the Bank making
such Loan in accordance with Section 2.4. Each Money Market Absolute Rate Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.4. Any overdue principal of or interest on any Money Market Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the Base Rate until such failure shall become an Event of Default and
thereafter at a rate per annum equal to the sum of 4% plus the Base Rate for
such day.
(d) In the event that, and for so long as, any Event of Default
shall have occurred and be continuing, the outstanding principal amount of the
Loans, and, to the extent permitted by applicable law, overdue interest in
respect of all Loans,
52
shall bear interest at the annual rate equal to the sum of the Base Rate and
four percent (4%) (the "Default Rate").
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of demonstrable
error.
(f) Intentionally Omitted.
(g) Interest on all Loans bearing interest at the Base Rate shall
be payable on the first Business Day of each calendar month. Interest on all
Loans bearing interest based on the London Interbank Offered Rate shall be
payable on the last Euro-Dollar Business Day of the applicable Interest Period,
but no less frequently than every three months determined on the basis of the
first (1st) day of the Interest Period applicable to the Loan in question.
SECTION 2.9. Fees.
(a) Facility Fee. For the period beginning on the date hereof and
ending on the date the Obligations are paid in full and this Agreement is
terminated (the "Facility Fee Period"), the Borrower shall pay to the
Administrative Agent for the account of the Banks ratably in proportion to their
respective Commitments a facility fee on the aggregate Commitments at the
Applicable Fee Percentage. The facility fee shall be payable in arrears on each
January 1, April 1, July 1 and October 1 during the Facility Fee Period.
(b) Letter of Credit Fee. During the Term, the Borrower shall pay,
or shall cause the applicable Qualified Borrowers to pay, to the Administrative
Agent, for the account of the Banks in proportion to their interests in respect
of issued and undrawn Letters of Credit, a fee (a "Letter of Credit Fee") in an
amount, provided that no Event of Default shall have occurred and be continuing,
equal to a rate per annum equal to the then percentage per annum of the
Applicable Margin with respect to Euro-Dollar Loans, on the daily average of
such issued and undrawn Letters of Credit, which fee shall be payable, in
arrears, on each January 1, April 1, July 1 and October 1 during the Term. From
the occurrence, and during the continuance, of an Event of Default, such fee
shall be increased to be equal to four percent (4%) per annum on the daily
average of such issued and undrawn Letters of Credit.
(c) Fronting Bank Fee. The Borrower or the applicable Qualified
Borrower shall pay any Fronting Bank, for its own account, a fee (a "Fronting
Bank Fee") at a rate per annum equal to the greater of (i) .125% of the issued
and undrawn amount of such Letter of Credit and (ii) $250, which fee shall be in
addition to and
53
not in lieu of, the Letter of Credit Fee. The Fronting Bank Fee shall be payable
in arrears on each January 1, April 1, July 1 and October 1 during the Term.
(d) Extension Fee. If Borrower elects to extend the term of the
Loan in accordance with Section 2.10(b), the Borrower shall pay to the
Administrative Agent, for the account of the Banks in proportion to their
interests, a fee (a "Extension Fee") in an amount equal to 0.25% of the
aggregate Commitments. The Extension Fee shall be paid by Borrower on or before
the Extension Date.
(e) Fees Non-Refundable. All fees set forth in this Section 2.9
shall be deemed to have been earned on the date payment is due in accordance
with the provisions hereof and shall be non-refundable. The obligation of the
Borrower to pay such fees in accordance with the provisions hereof shall be
binding upon the Borrower and shall inure to the benefit of the Administrative
Agent and the Banks regardless of whether any Loans are actually made.
SECTION 2.10. Maturity Date.
(a) The term (the "Term") of the Commitments (and each Bank's
obligations to make Loans and to participate in Letters of Credit hereunder)
shall terminate and expire, and the Borrower shall return or cause to be
returned all Letters of Credit to the Fronting Bank on the Maturity Date. Upon
the date of the termination of the Term, any Loans then outstanding (together
with accrued interest thereon and all other Obligations) shall be due and
payable on such date.
(b) Notwithstanding the foregoing, the Borrower may extend the
Maturity Date for a period of one (1) year upon the following terms and
conditions: (i) delivery by Borrower of a written notice to the Administrative
Agent (the "Extension Notice") on or before a date that is not more than twelve
and one half (12 -1/2) months nor less than one (1) month prior to the Maturity
Date, which Extension Notice the Administrative Agent shall promptly deliver to
the Banks; (ii) no Event of Default shall have occurred and be continuing both
on the date the Borrower delivers the Extension Notice and on the original
Maturity Date (the "Extension Date"), (iii) Borrower shall maintain an
Investment Grade Rating from both S&P and Moody's, and (iv) Borrower shall pay
the Extension Fee to Administrative Agent on or before the Extension Date.
Borrower's delivery of the Extension Notice shall be irrevocable.
SECTION 2.11. Optional Prepayments .
(a) The Borrower may, upon at least one (1) Business Day's notice
to the Administrative Agent, prepay any Group of Base Rate Loans or any Money
Market Borrowing bearing interest at the Base Rate pursuant to Section 8.1, in
whole at any time, or from time to time in part in amounts aggregating One
Million Dollars
54
($1,000,000) or more, by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. The Borrower may, from time
to time on any Business Day so long as prior notice is given to the
Administrative Agent and Swingline Lender no later than 1:00 p.m. (New York City
time) on the day on which Borrower intends to make such prepayment, prepay any
Swingline Loans in whole or in part in amounts aggregating $100,000 or a higher
integral multiple of $100,000 (or, if less, the aggregate outstanding principal
amount of all Swingline Loans then outstanding) by paying the principal amount
to be prepaid together with accrued interest thereon to the date of prepayment
by initiating a wire transfer of the principal and interest on the Loans no
later than 1:00 P.M. (New York City time) on such day and the Borrower shall
deliver a federal reference number evidencing such wire to Administrative Agent
as soon as available thereafter on such day. Each such optional prepayment shall
be applied to prepay ratably the Loans of the several Banks (or the Swingline
Lender in the case of Swingline Loans) included in such Group or Borrowing.
(b) The Borrower may, upon at least three (3) Euro-Dollar Business
Days' notice to the Administrative Agent, pay all or any portion of any
Euro-Dollar Loan as of the last day of the Interest Period applicable thereto.
Except as provided in Article 8 and except with respect to any Euro-Dollar Loan
which has been converted to a Base Rate Loan pursuant to Section 2.19, 8.2, 8.3
or 8.4 hereof, the Borrower may not prepay all or any portion of the principal
amount of any Euro-Dollar Loan prior to the end of the Interest Period
applicable thereto unless the Borrower shall also pay any applicable expenses
pursuant to Section 2.14. Subject to the provisions of clause (a) hereof, the
Borrower may not prepay all or any portion of the principal amount of any Money
Market Loan prior to the end of the Interest Period applicable thereto without
the consent of all applicable Designated Lenders and Banks. Any such prepayment
shall be given on or prior to the third (3rd) Euro-Dollar Business Day prior to,
but excluding, the date of prepayment to the Administrative Agent. Each such
optional prepayment shall be in the amounts set forth in Section 2.11(a) above
and shall be applied to prepay ratably the Loans of the Banks included in any
Group of Euro-Dollar Loans, except that any Euro-Dollar Loan which has been
converted to a Base Rate Loan pursuant to Section 2.19, 8.2, 8.3 or 8.4 hereof
may be prepaid without ratable payment of the other Loans in such Group of Loans
which have not been so converted.
(c) The Borrower may, upon at least one (1) Business Day's (or, in
the case of any Alternate Currency Letter of Credit, one (1) Euro-Dollar
Business Day's) notice to the Administrative Agent (by 1:00 P.M. New York City
or local time to the principal financial center of the Alternate Currency in
question, as applicable on such Business Day (or Euro-Dollar Business Day)),
reimburse the Administrative Agent for the benefit of the Fronting Bank for the
amount of any drawing under a Letter of Credit in whole or in part in any
amount.
55
(d) The Borrower may at any time return any undrawn Letter of
Credit to the Fronting Bank in whole, but not in part, and the Fronting Bank
within a reasonable period of time shall give the Administrative Agent and each
of the Banks notice of such return.
(e) The Borrower may at any time and from time to time cancel all
or any part of the Dollar Commitments or the Alternate Currency Commitments by
the delivery to the Administrative Agent of a notice of cancellation within the
applicable time periods set forth in Sections 2.11(a) and (b) if there are Loans
then outstanding or, if there are no Loans outstanding at such time as to which
the Commitments with respect thereto are being canceled, upon at least three (3)
Business Day's (or, with respect to the Alternate Currency Commitments, three
(3) Euro-Dollar Business Day's) notice to the Administrative Agent, whereupon,
in either event, all or such portion of the Commitments, as applicable, shall
terminate as to the applicable Banks, pro rata on the date set forth in such
notice of cancellation, and, if there are any Loans then outstanding, Borrower
shall prepay, as applicable, all or such portion of Loans outstanding on such
date in accordance with the requirements of Section 2.11(a) and (b). In no event
shall the Borrower be permitted to cancel Commitments for which a Letter of
Credit has been issued and is outstanding unless the Borrower returns (or causes
to be returned) such Letter of Credit to the Fronting Bank. Borrower shall be
permitted to designate in its notice of cancellation which Loans, if any, are to
be prepaid. A reduction of the Commitments pursuant to this Section 2.11(e)
shall not effect a reduction in the Swingline Commitment (unless so elected by
the Borrower) until the aggregate Commitments have been reduced to an amount
equal to the Swingline Commitment.
(f) Any amounts so prepaid pursuant to Section 2.11 (a) or (b) may
be reborrowed. In the event Borrower elects to cancel all or any portion of the
Commitments and the Swingline Commitment pursuant to Section 2.11(e) hereof,
such amounts may not be reborrowed.
SECTION 2.12. Mandatory Prepayments. The Administrative Agent shall
calculate the Dollar Equivalent Amount of all Loans denominated in an Alternate
Currency at the time of each Borrowing thereof and on the last Business Day of
each month during each Interest Period longer than one month in duration. If at
any such time (y) the Dollar Equivalent Amount of the sum of (i) all outstanding
Loans denominated in an Alternate Currency, (ii) all outstanding Loans
denominated in Dollars made against the Alternate Currency Commitment, (iii) the
outstanding Dollar Equivalent Amount of the Letter of Credit Usage for Alternate
Currency Letters of Credit, and (iv) the Letter of Credit Usage for Letters of
Credit denominated in Dollar issued against the Alternate Currency Commitment,
so determined by the Administrative Agent, in the aggregate, exceeds the
Alternate Currency Sublimit, Borrower shall repay (and cause the applicable
Qualified Borrowers to repay) all or a portion of such Loans, otherwise in
accordance with the
56
applicable terms of this Agreement, in such amount so that, following the making
of such payment, the Dollar Equivalent Amount outstanding of such Loans and
Letter of Credit Usage does not exceed the Alternate Currency Sublimit, or (z)
the Dollar Equivalent Amount of the sum of (i) all outstanding Loans and (ii)
the outstanding Dollar Equivalent Amount of the Letter of Credit Usage so
determined by the Administrative Agent, in the aggregate, exceeds the
Commitments, Borrower shall, in each case, repay (and cause the applicable
Qualified Borrowers to repay) all or a portion of the Loans, otherwise in
accordance with the applicable terms of this Agreement, in such amount so that,
following the making of such payment, the Dollar Equivalent Amount outstanding
of Loans and Letter of Credit Usage does not exceed the Commitments.
SECTION 2.13. General Provisions as to Payments.
(a) The Borrower or Qualified Borrower, as the case may be, shall
make each payment of the principal of and interest on the Loans and fees
hereunder, by initiating a wire transfer not later than 1:00 P.M. (New York City
or local time to the principal financial center of the Alternate Currency in
question, as applicable) on the date when due, or, with respect to Money Market
Loans, fund such payment of the principal of and interest on the Loans and fees
hereunder such that the Designating Lender shall receive payment from
Administrative Agent by 12:00 P.M. (New York City time or local time to the
principal financial center of the Alternate Currency in question), of Federal or
other funds immediately available in New York, New York or, in the case of any
Alternate Currency, the principal financial center of the Alternate Currency in
question, to the Administrative Agent at its address referred to in Section 9.1,
and the Borrower shall deliver a federal reference number evidencing such wire
to Administrative Agent as soon as possible thereafter on the date when due. The
Administrative Agent will promptly (and in any event within one (1) Business Day
(or, with respect to Alternate Currencies, one (1) Euro-Dollar Business Day)
after receipt thereof) distribute to each Bank its ratable share (or applicable
share with respect to Money Market Loans) of each such payment received by the
Administrative Agent for the account of the Banks. If and to the extent that the
Administrative Agent shall receive any such payment for the account of the Banks
on or before 11:00 A.M. (New York City or local time to the principal financial
center of the Alternate Currency in question, as applicable) on any Business Day
(or Euro-Dollar Business Day, as applicable), and Administrative Agent shall not
have distributed to any Bank its applicable share of such payment on such day,
Administrative Agent shall distribute such amount to such Bank together with
interest thereon, for each day from the date such amount should have been
distributed to such Bank until the date Administrative Agent distributes such
amount to such Bank, at the Federal Funds Rate. Whenever any payment of
principal of, or interest on the Base Rate Loans or Swingline Loans or of fees
shall be due on a day which is not a Business Day, the date for payment thereof
shall be extended to the next succeeding Business Day. Whenever any payment of
principal of, or interest on, the
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Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. Whenever any payment of principal of, or
interest on, the Money Market Absolute Rate Loans shall be due on a day which is
not a Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day. Whenever any payment of principal of, or interest on,
the Money Market IBOR Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower or Qualified Borrower, as the case may be, will not
make such payment in full, the Administrative Agent may assume that the Borrower
or Qualified Borrower, as the case may be, has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Bank on such due date an
amount equal to the amount then due such Bank. If and to the extent that the
Borrower or Qualified Borrower, as the case may be, shall not have so made such
payment, each Bank shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower or Qualified Borrower,
as the case may be, makes any payment of principal with respect to any
Euro-Dollar Loan or Money Market IBOR Loan (pursuant to Article II, VI or VIII
or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or if the Borrower or Qualified Borrower, as the case may
be, fails to borrow any Euro-Dollar Loans or Money Market IBOR Loans after
notice has been given to any Bank in accordance with Section 2.5(a) or 2.4(f),
as applicable, or if Borrower or Qualified Borrower, as the case may be, shall
deliver a Notice of Interest Rate Election specifying that a Euro-Dollar Loan
shall be converted on a date other than the first (1st) day of the then current
Interest Period applicable thereto, the Borrower shall reimburse each Bank
within 15 days after certification of such Bank of such loss or expense (which
shall be delivered by each such Bank to Administrative Agent for delivery to
Borrower) for any resulting loss or expense incurred by it (or by an existing
Participant in the related Loan), including, without limitation, any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow, provided that such Bank shall have delivered to Administrative Agent and
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Administrative Agent shall have delivered to the Borrower a certification as to
the amount of such loss or expense, which certification shall set forth in
reasonable detail the basis for and calculation of such loss or expense and
shall be conclusive in the absence of demonstrable error.
SECTION 2.15. Computation of Interest and Fees. Interest based on
the Prime Rate or for Euro-Dollar Loans denominated in British Pounds Sterling
hereunder shall be computed on the basis of a year of 365 days (or, in the case
of interest based on the Prime Rate only, 366 days in a leap year) and paid for
the actual number of days elapsed (including the first day but excluding the
last day). All other interest and fees shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day).
SECTION 2.16. Use of Proceeds. The Borrower shall use, or shall
cause any Qualified Borrower to use, the proceeds of the Loans for general
corporate purposes, including, without limitation, the acquisition of real
property to be used in the Borrower's existing business and for general working
capital needs of the Borrower; provided, however, that no Swingline Loan shall
be used more than once for the purpose of refinancing another Swingline Loan, in
whole or part.
SECTION 2.17. Letters of Credit.
(a) Subject to the terms contained in this Agreement and the other
Loan Documents, upon the receipt of a notice in accordance with Section 2.2(b)
requesting the issuance of a Letter of Credit, the Fronting Bank shall issue a
Letter of Credit or Letters of Credit in such form as is reasonably acceptable
to the Borrower (subject to the provisions of Section 2.2(b)) in an amount or
amounts equal to the amount or amounts requested by the Borrower; provided that,
in the case of (i) Alternate Currency Letter(s) of Credit, the Fronting Bank
shall issue the same in the Alternate Currency requested and (ii) Dollar
Letter(s) of Credit, the Fronting Bank shall issue the same in Dollars.
(b) Each Letter of Credit shall be issued in the minimum amount of
the Dollar Equivalent Amount of One Hundred Thousand Dollars ($100,000) or such
lesser amount as may be agreed to by the Fronting Bank.
(c) The Letter of Credit Usage shall be no more than the lesser of
(i) One Hundred Million Dollars ($100,000,000) and (ii) twenty percent (20%) of
the Facility Amount at any one time.
(d) There shall be no more than twenty-five (25) Letters of Credit
outstanding at any one time.
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(e) In the event of any request for a drawing under any Letter of
Credit by the beneficiary thereunder, the Fronting Bank shall notify the
Borrower and the Administrative Agent (and the Administrative Agent shall notify
each Bank thereof) on or before the date on which the Fronting Bank intends to
honor such drawing, and, except as provided in this subsection (e), the Borrower
shall reimburse the Fronting Bank, in immediately available funds, on the same
day on which such drawing is honored in an amount equal to the Dollar Equivalent
Amount of such drawing. Notwithstanding anything contained herein to the
contrary, however, unless the Borrower shall have notified the Administrative
Agent and the Fronting Bank prior to 1:00 P.M. (New York City time) on the
Business Day (or Euro-Dollar Business Day in the case of Alternate Currency
Letters of Credit) immediately preceding the date of such drawing that the
Borrower intends to reimburse the Fronting Bank for the Dollar Equivalent Amount
of such drawing with funds other than the proceeds of the Loans, the Borrower
shall be deemed to have timely given a Notice of Borrowing pursuant to Section
2.2 to the Administrative Agent, requesting a Borrowing of Base Rate Loans on
the date on which such drawing is honored and in an amount equal to the Dollar
Equivalent Amount of such drawing. Each Bank (other than the Fronting Bank)
shall, in accordance with Section 2.3(b), make available its pro rata share of
such Borrowing to the Administrative Agent, the proceeds of which shall be
applied directly by the Administrative Agent to reimburse the Fronting Bank for
the amount of such draw. Notwithstanding anything contained herein to the
contrary, however, in the case of Alternate Currency Letters of Credit, Borrower
or, if such Letter of Credit was issued on behalf of a Qualified Borrower, such
Qualified Borrower (which obligations of such Qualified Borrower are guaranteed
by Borrower pursuant to the Qualified Borrower Guaranty) shall reimburse any
drawing thereunder in the Alternate Currency in which such Alternate Currency
Letter(s) of Credit are denominated; provided, however, that if (x) any such
drawing is made at a time when there exists an Event of Default or (y) Borrower
shall not have notified the Administrative Agent and Fronting Bank prior to 11
a.m. (New York time) at least two (2) Euro-Dollar Business Days immediately
prior to such drawing that Borrower intends to reimburse Fronting Bank in the
applicable Alternate Currency, then, in either such case, such reimbursement
shall instead be made by payment in Dollars of the Dollar Equivalent Amount of
such drawing and in immediately available funds. In the event that any Bank
fails to make available to the Fronting Bank the amount of such Bank's
participation on the date of a drawing, the Fronting Bank shall be entitled to
recover such amount on demand from such Bank together with interest at the
Federal Funds Rate commencing on the date such drawing is honored, and the
provisions of Section 9.16 shall otherwise apply to such failure.
(f) If, at the time a beneficiary under any Letter of Credit
requests a drawing thereunder, an Event of Default as described in Section
6.1(f) or Section 6.1(g) shall have occurred and is continuing, then on the date
on which the Fronting Bank shall have honored such drawing, the Borrower shall
have an unreimbursed
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obligation (the "Unreimbursed Obligation") to the Fronting Bank in an amount
equal to the amount of such drawing, which amount shall bear interest at the
annual rate of the sum of the Base Rate plus four percent (4%). Each Bank shall
purchase an undivided participating interest in such drawing in an amount equal
to its pro rata share of the Commitments, and upon receipt thereof the Fronting
Bank shall deliver to such Bank an Unreimbursed Obligation participation
certificate dated the date of the Fronting Bank's receipt of such funds and in
the amount of such Bank's pro rata share.
(g) If, after the date hereof, any change in any law or regulation
or in the interpretation thereof by any court or administrative or governmental
authority charged with the administration thereof shall either (i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against letters of credit issued by, or assets held by, or deposits in or for
the account of, or participations in any letter of credit, upon any Bank
(including the Fronting Bank) or (ii) impose on any Bank any other condition
regarding this Agreement or such Bank (including the Fronting Bank) as it
pertains to the Letters of Credit or any participation therein and the result of
any event referred to in the preceding clause (i) or (ii) shall be to increase,
by an amount deemed by the Fronting Bank or such Bank to be material, the cost
to the Fronting Bank or any Bank of issuing or maintaining any Letter of Credit
or participating therein, then the Borrower shall pay to the Fronting Bank or
such Bank, within 15 days after written demand by such Bank (with a copy to the
Administrative Agent), which demand shall be accompanied by a certificate
showing, in reasonable detail, the calculation of such amount or amounts, such
additional amounts as shall be required to compensate the Fronting Bank or such
Bank for such increased costs or reduction in amounts received or receivable
hereunder. Each Bank will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section 2.17 and
will designate a different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the reasonable judgment of such Bank, be otherwise disadvantageous to such Bank.
If such Bank shall fail to notify Borrower of any such event within 90 days
following the end of the month during which such event occurred, then Borrower's
liability for any amounts described in this Section incurred by such Bank as a
result of such event shall be limited to those attributable to the period
occurring subsequent to the ninetieth (90th) day prior to, but excluding, the
date upon which such Bank actually notified Borrower of the occurrence of such
event. A certificate of any Bank claiming compensation under this Section 2.17
and setting forth a reasonably detailed calculation of the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
demonstrable error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
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(h) The Borrower hereby agrees to protect, indemnify, pay and save
the Fronting Bank harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees and disbursements) which the Fronting Bank may incur or be
subject to as a result of (i) the issuance of the Letters of Credit, other than
to the extent of the bad faith, gross negligence or wilful misconduct of the
Fronting Bank or (ii) the failure of the Fronting Bank to honor a drawing under
any 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 government or
governmental authority (collectively, "Governmental Acts"), other than to the
extent of the bad faith, gross negligence or wilful misconduct of the Fronting
Bank. As between the Borrower and the Fronting Bank, the Borrower assumes all
risks of the acts and omissions of any beneficiary with respect to its use, or
misuses of, the Letters of Credit issued by the Fronting Bank. In furtherance
and not in limitation of the foregoing, the Fronting Bank shall not be
responsible (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of such Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or insufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit, other than as a
result of the bad faith, gross negligence or wilful misconduct of the Fronting
Bank; (iv) for errors, omissions, interruptions or delays in transmission or
delivery of any message, by mail, cable, telegraph, facsimile transmission, or
otherwise; (v) for errors in interpretation of any technical terms; (vi) for any
loss or delay in the transmission or otherwise of any documents required in
order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) for the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of such Letter of Credit; and (viii) for any consequence
arising from causes beyond the control of the Fronting Bank, including any
Government Acts, in each case other than to the extent of the bad faith, gross
negligence or willful misconduct of the Fronting Bank. None of the above shall
affect, impair or prevent the vesting of the Fronting Bank's rights and powers
hereunder. In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Fronting
Bank under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith, shall not put the
Fronting Bank under any resulting liability to the Borrower; provided that,
notwithstanding anything in the foregoing to the contrary, the Fronting Bank
will be liable to the Borrower for any damages suffered by the Borrower or its
Subsidiaries as a result of the Fronting Bank's grossly negligent or wilful
failure to pay under any Letter of Credit after the presentation to it of a
sight draft and certificates strictly in compliance with the terms and
conditions of the Letter of Credit.
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(i) If the Fronting Bank or the Administrative Agent is required
at any time, pursuant to any bankruptcy, insolvency, liquidation or
reorganization law or otherwise, to return to the Borrower any reimbursement by
the Borrower of any drawing under any Letter of Credit, each Bank shall pay to
the Fronting Bank or the Administrative Agent, as the case may be, its pro rata
share of such payment, but without interest thereon unless the Fronting Bank or
the Administrative Agent is required to pay interest on such amounts to the
person recovering such payment, in which case with interest thereon, computed at
the same rate, and on the same basis, as the interest that the Fronting Bank or
the Administrative Agent is required to pay.
SECTION 2.18. Letter of Credit Usage Absolute. The obligations of
the Borrower under this Agreement in respect of any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement (as the same may be amended from time to time) and any
Letter of Credit Documents (as hereinafter defined) under all circumstances,
including, without limitation, to the extent permitted by law, the following
circumstances:
(a) any lack of validity or enforceability of any Letter of Credit
or any other agreement or instrument relating thereto (collectively, the "Letter
of Credit Documents") or any Loan Document;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Borrower in respect of
the Letters of Credit or any other amendment or waiver of or any consent by the
Borrower to departure from all or any of the Letter of Credit Documents or any
Loan Document; provided, that the Fronting Bank shall not consent to any such
change or amendment unless previously consented to in writing by the Borrower;
(c) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the obligations of the Borrower in respect of the Letters of
Credit;
(d) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Administrative Agent, the Fronting Bank or any
Bank (other than a defense based on the bad faith, gross negligence or wilful
misconduct of the Administrative Agent, the Fronting Bank or such Bank) or any
other Person, whether in connection with the Loan Documents, the transactions
contemplated hereby or by the Letters of Credit Documents or any unrelated
transaction;
(e) any draft or any other document presented under or in
connection with any Letter of Credit or other Loan Document proving to be
forged,
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fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; provided, that payment by the
Fronting Bank under such Letter of Credit against presentation of such draft or
document shall not have been the result of the bad faith, gross negligence or
wilful misconduct of the Fronting Bank;
(f) payment by the Fronting Bank against presentation of a draft
or certificate that does not strictly comply with the terms of the Letter of
Credit; provided, that such payment shall not have been the result of the bad
faith, gross negligence or wilful misconduct of the Fronting Bank; and
(g) any other circumstance or happening whatsoever other than the
payment in full of all obligations hereunder in respect of any Letter of Credit
or any agreement or instrument relating to any Letter of Credit, whether or not
similar to any of the foregoing, that might otherwise constitute a defense
available to, or a discharge of, the Borrower; provided, that such other
circumstance or happening shall not have been the result of bad faith, gross
negligence or wilful misconduct of the Fronting Bank.
SECTION 2.19. Special Provisions Regarding Alternate Currency Loans.
(a) Upon the occurrence of a Sharing Event, automatically (and
without the taking of any action) (x) all then outstanding Euro-Dollar Loans
denominated in an Alternate Currency shall be automatically converted into Base
Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent
Amount of the aggregate principal amount of the applicable Euro-Dollar Loans on
the date such Sharing Event first occurred, which Loans denominated in Dollars
(i) shall thereafter continue to be deemed to be Base Rate Loans and (ii) unless
the Sharing Event resulted solely from a termination of the Commitments, shall
be immediately due and payable on the date such Sharing Event has occurred) and
(y) unless the Sharing Event resulted solely from a termination of the
Commitments, all accrued and unpaid interest and other amounts owing with
respect to such Loans shall be immediately due and payable in Dollars, taking
the Dollar Equivalent Amount of such accrued and unpaid interest and other
amounts.
(b) Upon the occurrence of a Sharing Event, and after giving
effect to any automatic conversion pursuant to Section 2.19(a), each Bank shall
(and hereby unconditionally and irrevocably agrees to) purchase and sell (in
each case in Dollars) undivided participating interests in all such Loans
outstanding to, and any unpaid Letter of Credit Usage owing by, the Borrower in
such amounts so that each Bank shall have a share of such outstanding Loans and
unpaid Letter of Credit Usage then owing by the Borrower equal to its Pro Rata
Share of the Commitments (although if because of fluctuations in currency
exchange rates any Bank would be required to purchase such participations after
giving effect to which such Bank's
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allocated share of all Loans and Letter of Credit Usage (including
participations therein purchased pursuant to this Section 2.19) would exceed the
Dollar Equivalent Amount of such Bank's Dollar Commitment and Alternate Currency
Commitment, then such participations shall be in an amount after giving effect
to which such Bank's allocated share of all Loans and Letter of Credit Usage
(including participations therein purchased pursuant to this Section 2.19) would
equal the Dollar Equivalent Amount of such Banks Dollar Commitment and Alternate
Currency Commitment. Upon any such occurrence, the Administrative Agent shall
notify each Bank and shall specify the amount of dollars required from such Bank
in order to effect the purchases and sales by the various Banks of participating
interests in the amounts required above (together with accrued interest with
respect to the period for the last interest payment date through the date of the
Sharing Event plus any additional amounts payable by the Borrower pursuant to
this Section 2.19 in respect of such accrued but unpaid interest); provided, in
the event that a Sharing Event shall have occurred, each Bank shall be deemed to
have purchased, automatically and without request, such participating interests.
Promptly upon receipt of such request, each Bank shall deliver to the
Administrative Agent (in immediately available funds in Dollars) the net amounts
as specified by the Administrative Agent. The Administrative Agent shall
promptly deliver the amounts so received to the various Banks in such amounts as
are needed to effect the purchases and sales of participations as provided
above. Promptly following receipt thereof, each Bank which has sold
participations in any of its Loans (through the Administrative Agent) will
deliver to each Bank (through the Administrative Agent) which has so purchased a
participating interest a participation certificate dated the date of receipt of
such funds and in such amount. It is understood that the amount of funds
delivered by each Bank shall be calculated on a net basis, giving effect to both
the sales and purchases of participations by the various Banks as required
above.
(c) Upon the occurrence of a Sharing Event (i) no further Loans
shall be made, (ii) all amounts from time to time accruing with respect to, and
all amounts from time to time payable on account of, any outstanding Euro-Dollar
Loans initially denominated in an Alternate Currency (including, without
limitation, any interest and other amounts which were accrued but unpaid on the
date of such purchase) shall be payable in Dollars as if such Euro-Dollar Loans
had originally been made in Dollars and shall be distributed by the relevant
Banks (or their Affiliates) to the Administrative Agent for the account of the
Banks which made such Loans or are participating therein and (iii) the
Commitments of the Banks shall be automatically terminated. Notwithstanding
anything to the contrary contained above, the failure of any Bank to purchase
its participating interest in any Loans upon the occurrence of a Sharing Event
shall not relieve any other Bank of its obligation hereunder to purchase its
participating interests in a timely manner, but no Bank shall be responsible for
the failure of any other Bank to purchase the participating interest to be
purchased by such other Bank on any date.
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(d) If any amount required to be paid by any Bank pursuant to
Section 2.19(b) is not paid to the Administrative Agent within one (1) Business
Day following the date upon which such Bank receives notice from the
Administrative Agent of the amount of its participations required to be
purchased pursuant to said Section 2.19(b), such Bank shall also pay to the
Administrative Agent on demand an amount equal to the product of (i) the amount
so required to be paid by such Bank for the purchase of its participations times
(ii) the daily average Federal Funds Rate during the period from and including
the date of request for payment to the date on which such payment is immediately
available to the Administrative Agent times (iii) a fraction the numerator of
which is the number of days that elapsed during such period and the denominator
of which is 360. If any such amount required to be paid by any Bank pursuant to
Section 2.19(b) is not in fact made available to the Administrative Agent within
three (3) Business Days following the date upon which such Bank receives notice
from the Administrative Agent as to the amount of participations required to be
purchased by it, the Administrative Agent shall be entitled to recover from such
Bank on demand, such amount with interest thereon calculated from such request
date at the rate per annum applicable to Base Rate Loans hereunder. A
certificate of the Administrative Agent submitted to any Bank with respect to
any amounts payable by any Bank pursuant to this Section 2.19 shall be paid to
the Administrative Agent for the account of the relevant Banks; provided that,
if the Administrative Agent (in its sole discretion) has elected to fund on
behalf of such Bank the amounts owing to such Banks, then the amounts shall be
paid to the Administrative Agent for its own account.
(e) Whenever, at any time after the relevant Banks have received
from any Banks purchases of participations in any Loans pursuant to this Section
2.19, the Banks receive any payment on account thereof, such Banks will
distribute to the Administrative Agent, for the account of the various Banks
participating therein, such Banks' participating interests in such amounts
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such participations were outstanding) in like funds as
received; provided, however, that in the event that such payment received by any
Banks are required to be returned, the Banks who received previous distributions
in respect of their participating interests therein will return to the
respective Banks any portion thereof previously so distributed to them in like
funds as such payment is required to be returned by the respective Banks.
(f) Each Bank's obligation to purchase participating interests
pursuant to this Section 2.19 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 Bank may have
against any other Bank, the Borrower or any other Person for any reason
whatsoever, (b) the occurrence or continuance of an Event of Default, (c) any
adverse change in the condition (financial or otherwise) of the Borrower or any
other Person, (d) any
66
breach of this Agreement by the Borrower, any of its Subsidiaries or any Bank or
any other Person, or (e) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere
in this Agreement, upon any purchase of participations as required above, each
Bank which has purchased such participations shall be entitled to receive from
the Borrower any increased costs and indemnities directly from the Borrower to
the same extent as if it were the direct Bank as opposed to a participant
therein. The Borrower acknowledges and agrees that, upon the occurrence of a
Sharing Event and after giving effect to the requirements of this Section 2.19,
increased Taxes may be owing by the Borrower pursuant to Section 8.4, which
Taxes shall be paid (to the extent provided in Section 8.4) by the Borrower,
without any claim that the increased Taxes are not payable because same resulted
from the participations effected as otherwise required by this Section 2.19.
ARTICLE III
CONDITIONS
SECTION 3.1. Closing. The closing hereunder shall occur on the date
when each of the following conditions is satisfied (or waived in writing by the
Administrative Agent and the Banks), each document to be dated the Closing Date
unless otherwise indicated:
(a) the Borrower and any Qualified Borrower as of the Closing Date
shall have executed and delivered to the Administrative Agent a Note for the
account of each Bank dated on or before the Closing Date complying with the
provisions of Section 2.6;
(b) the Borrower and the Administrative Agent and each of the
Banks shall have executed and delivered to the Borrower and the Administrative
Agent a duly executed original of this Agreement;
(c) Guarantor shall have executed and delivered to the
Administrative Agent a duly executed original of the Guaranty and Borrower shall
have executed and delivered to the Administrative Agent a duly executed original
of the Qualified Borrower Guaranty;
(d) the Administrative Agent shall have received an opinion of
Piper Rudnick, counsel for the Borrower and Guarantor, acceptable to the
Administrative Agent, the Banks and their counsel;
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(e) the Administrative Agent shall have received all documents the
Administrative Agent may reasonably request relating to the existence of the
Borrower, each Qualified Borrower as of the Closing Date, and General Partner,
the authority for and the validity of this Agreement and the other Loan
Documents, the incumbency of officers executing this Agreement and the other
Loan Documents and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent. Such documentation shall include,
without limitation, the agreement of limited partnership of the Borrower, as
well as the certificate of limited partnership of the Borrower, both as amended,
modified or supplemented to the Closing Date, certified to be true, correct and
complete by a senior officer of the Borrower as of a date not more than ten (10)
days prior to the Closing Date, together with a certificate of existence as to
the Borrower from the Secretary of State (or the equivalent thereof) of
Delaware, to be dated not more than thirty (30) days prior to the Closing Date,
as well as the articles of incorporation of General Partner, as amended,
modified or supplemented to the Closing Date, certified to be true, correct and
complete by a senior officer of General Partner as of a date not more than ten
(10) days prior to the Closing Date, together with a good standing certificate
as to General Partner from the Secretary of State (or the equivalent thereof) of
Maryland, to be dated not more than thirty (30) days prior to the Closing Date
and correlative documentation for each Qualified Borrower as of the Closing
Date;
(f) the Borrower, each Qualified Borrower as of the Closing Date
and General Partner each shall have executed a solvency certificate acceptable
to the Administrative Agent;
(g) the Administrative Agent shall have received all certificates,
agreements and other documents and papers referred to in this Section 3.1 and
the Notice of Borrowing referred to in Section 3.2, if applicable, unless
otherwise specified, in sufficient counterparts, satisfactory in form and
substance to the Administrative Agent in their sole discretion;
(h) the Borrower shall have taken all actions required to
authorize the execution and delivery of this Agreement and the other Loan
Documents and the performance thereof by the Borrower, General Partner shall
have taken all actions required to authorize the execution and delivery of the
Guaranty and the other Loan Documents and the performance thereof by General
Partner, and each Qualified Borrower as of the Closing date shall have taken all
actions required to authorize the execution and delivery of its Note and the
performance thereof by such Qualified Borrower;
(i) the Banks shall be satisfied that neither the Borrower,
General Partner nor any Consolidated Subsidiary is subject to any present or
contingent environmental liability which could have a Material Adverse Effect
and the Borrower shall have delivered a certificate so stating;
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(j) the Administrative Agent shall have received, for its and any
other Bank's account, all fees due and payable pursuant to Section 2.9 hereof on
or before the Closing Date, and the reasonable fees and expenses accrued through
the Closing Date of Skadden, Arps, Slate, Meagher & Flom LLP, if required by
such firm and if such firm has delivered an invoice in reasonable detail of such
fees and expenses in sufficient time for Borrower to approve and process the
same, shall have been paid to Skadden, Arps, Slate, Meagher & Flom LLP;
(k) the Borrower shall have delivered copies of all consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by the Borrower, each Qualified Borrower as of the
Closing Date and General Partner, and the validity and enforceability, of the
Loan Documents, or in connection with any of the transactions contemplated
thereby, and such consents, licenses and approvals shall be in full force and
effect;
(l) no Default or Event of Default shall have occurred; and
(m) the Borrower shall have delivered a certificate in form
acceptable to Administrative Agent showing compliance with the requirements of
Section 5.8 as of the Closing Date.
SECTION 3.2. Borrowings. The obligation of any Bank to make a Loan
or to participate in any Letter of Credit issued by the Fronting Bank and the
obligation of the Fronting Bank to issue a Letter of Credit or the obligation of
the Swingline Lender to make a Swingline Loan on the occasion of any Borrowing
is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.2 or Section 2.3(b)(i) or a Notice of Money Market
Borrowing as required by Section 2.4 or a request to cause a Fronting Bank to
issue a Letter of Credit pursuant to Section 2.17;
(b) in the event that such Loan is to be made to, or such Letter
of Credit is to be issued for the account of, a Qualified Borrower, receipt by
the Administrative Agent of a Note by such Qualified Borrower for the account of
each Bank, if not previously delivered, satisfying the requirements of Section
2.6;
(c) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans plus the Letter of Credit Usage will not exceed
the aggregate amount of the Commitments;
(d) immediately before and after such Borrowing or issuance of any
Letter of Credit, no Default or Event of Default shall have occurred and be
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continuing both before and after giving effect to the making of such Loans or
the issuance of such Letter of Credit;
(e) the representations and warranties of the Borrower contained
in this Agreement (other than representations and warranties which expressly
speak as of a different date) shall be true and correct in all material respects
on and as of the date of such Borrowing both before and after giving effect to
the making of such Loans;
(f) no law or regulation shall have been adopted, no order,
judgment or decree of any governmental authority shall have been issued, and no
litigation shall be pending, which does or seeks to enjoin, prohibit or
restrain, the making or repayment of the Loans or the consummation of the
transactions contemplated by this Agreement; and
(g) no event, act or condition shall have occurred after the
Closing Date which, in the reasonable judgment of the Administrative Agent or
the Required Banks, as the case may be, has had or is likely to have a Material
Adverse Effect.
Each Borrowing hereunder or issuance of a Letter of Credit hereunder shall be
deemed to be a representation and warranty by the Borrower on the date of such
Borrowing as to the facts specified in clauses (b), (c), (d), (e) and (f) (to
the extent that Borrower is or should have been aware of any Material Adverse
Effect) of this Section, except as otherwise disclosed in writing by Borrower to
the Banks. Notwithstanding anything to the contrary, no Borrowing shall be
permitted if such Borrowing would cause Borrower to fail to be in compliance
with any of the covenants contained in this Agreement or in any of the other
Loan Documents.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and each of the other
Banks which is or may become a party to this Agreement to make the Loans, the
Borrower makes the following representations and warranties as of the Closing
Date. Such representations and warranties shall survive the effectiveness of
this Agreement, the execution and delivery of the other Loan Documents and the
making of the Loans.
SECTION 4.1. Existence and Power. The Borrower is a limited
partnership, duly formed and validly existing as a limited partnership under the
laws of the State of Delaware and has all powers and all material governmental
licenses, authorizations, consents and approvals required to own its property
and assets and
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carry on its business as now conducted or as it presently proposes to conduct
and has been duly qualified and is in good standing in every jurisdiction in
which the failure to be so qualified and/or in good standing is likely to have a
Material Adverse Effect. General Partner is a corporation, duly formed, validly
existing and in good standing under the laws of the State of Maryland and has
all powers and all material governmental licenses, authorizations, consents and
approvals required to own its property and assets and carry on its business as
now conducted or as it presently proposes to conduct and has been duly qualified
and is in good standing in every jurisdiction in which the failure to be so
qualified and/or in good standing is likely to have a Material Adverse Effect.
Each Qualified Borrower is a duly formed and validly existing juridical entity
under the laws of its jurisdiction of formation and has all powers and all
material governmental licenses, authorizations, consents and approvals required
to own its property and assets and carry on its business as now conducted or as
it presently proposes to conduct and has been duly qualified and is in good
standing in every jurisdiction in which the failure to be so qualified and/or in
good standing is likely to have a Material Adverse Effect.
SECTION 4.2. Power and Authority. The Borrower and each Qualified
Borrower has the requisite power and authority to execute, deliver and carry out
the terms and provisions of each of the Loan Documents to which it is a party
and has taken all necessary action, if any, to authorize the execution and
delivery on behalf of the Borrower or such Qualified Borrower and the
performance by the Borrower or such Qualified Borrower of the Loan Documents to
which it is a party. The Borrower, each Qualified Borrower and General Partner
each have duly executed and delivered each Loan Document to which it is a party
in accordance with the terms of this Agreement, and each such Loan Document
constitutes the legal, valid and binding obligation of the Borrower, such
Qualified Borrower and General Partner, enforceable in accordance with its
terms, except as enforceability may be limited by applicable insolvency,
bankruptcy or other laws affecting creditors rights generally, or general
principles of equity, whether such enforceability is considered in a proceeding
in equity or at law. General Partner has the power and authority to execute,
deliver and carry out the terms and provisions of each of the Loan Documents to
which it is a party and has taken all necessary action to authorize the
execution, delivery and performance of such Loan Documents. General Partner has
the power and authority to execute, deliver and carry out the terms and
provisions of each of the Loan Documents on behalf of the Borrower to which the
Borrower is a party and has taken all necessary action to authorize the
execution and delivery on behalf of the Borrower and the performance by the
Borrower of such Loan Documents.
SECTION 4.3. No Violation. (a) Neither the execution, delivery or
performance by or on behalf of the Borrower of the Loan Documents to which it is
a party, nor compliance by the Borrower with the terms and provisions thereof
nor the consummation of the transactions contemplated by such Loan Documents,
(i) will
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materially contravene any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will materially conflict with or result in any breach of,
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of the Borrower or
any of its Consolidated Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, or other agreement or other instrument to which the
Borrower (or of any partnership of which the Borrower is a partner) or any of
its Consolidated Subsidiaries is a party or by which it or any of its property
or assets is bound or to which it is subject (except for such breaches and
defaults under loan agreements which the lenders thereunder have agreed to
forbear pursuant to valid forbearance agreements), or (iii) will cause a
material default by the Borrower under any organizational document of any Person
in which the Borrower has an interest, or cause a material default under the
Borrower's agreement or certificate of limited partnership, the consequences of
which conflict, breach or default would have a Material Adverse Effect, or
result in or require the creation or imposition of any Lien whatsoever upon any
Property (except as contemplated herein).
(b) Neither the execution, delivery or performance by General
Partner of the Loan Documents to which it is a party, nor compliance by General
Partner with the terms and provisions thereof nor the consummation of the
transactions contemplated by such Loan Documents, (i) will materially contravene
any applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
materially conflict with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien upon any of the property or assets of General Partner or any of its
Consolidated Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, or other agreement or other instrument to which General Partner (or of
any partnership of which General Partner is a partner) or any of its
Consolidated Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it is subject (except for such breaches and defaults
under loan agreements which the lenders thereunder have agreed to forbear
pursuant to valid forbearance agreements), or (iii) will cause a material
default by General Partner under any organizational document of any Person in
which General Partner has an interest, the consequences of which conflict,
breach or default would have a Material Adverse Effect, or result in or require
the creation or imposition of any Lien whatsoever upon any Property (except as
contemplated herein).
(c) Neither the execution, delivery or performance by any
Qualified Borrower of the Loan Documents to which it is a party, nor compliance
by such Qualified Borrower with the terms and provisions thereof nor the
consummation of the transactions contemplated by such Loan Documents, (i) will
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materially contravene any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will materially conflict with or result in any breach of,
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of such Qualified
Borrower pursuant to the terms of any indenture, mortgage, deed of trust, or
other agreement or other instrument to which such Qualified Borrower (or of any
partnership of which such Qualified Borrower is a partner) is a party or by
which it or any of its property or assets is bound or to which it is subject
(except for such breaches and defaults under loan agreements which the lenders
thereunder have agreed to forbear pursuant to valid forbearance agreements), or
(iii) will cause a material default by such Qualified Borrower under any
organizational document of any Person in which such Qualified Borrower has an
interest, the consequences of which conflict, breach or default would have a
Material Adverse Effect, or result in or require the creation or imposition of
any Lien whatsoever upon any Property (except as contemplated herein).
SECTION 4.4. Financial Information. (a) The consolidated balance
sheet of Borrower and their Consolidated Subsidiaries as of December 31, 2003,
and the related consolidated statements of operations and cash flows of General
Partner for the fiscal year then ended, reported on by PriceWaterhouseCoopers
fairly present, in conformity with GAAP, the consolidated financial position of
Borrower, General Partner and their Consolidated Subsidiaries as of such date
and the consolidated results of operations and cash flows for such fiscal
quarter.
(b) Since March 31, 2004, (i) except as may have been disclosed in
writing to the Banks, nothing has occurred having a Material Adverse Effect, and
(ii) except as set forth on Schedule 4.4(b), neither the Borrower nor General
Partner has incurred any material indebtedness or guaranty on or before the
Closing Date.
SECTION 4.5. Litigation. Except as previously disclosed by the
Borrower in writing to the Banks, there is no action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened against or affecting,
(i) the Borrower, any Qualified Borrower, General Partner or any of their
Consolidated Subsidiaries, (ii) the Loan Documents or any of the transactions
contemplated by the Loan Documents or (iii) any of their assets, before any
court or arbitrator or any governmental body, agency or official in which there
is a reasonable possibility of an adverse decision which could, individually, or
in the aggregate have a Material Adverse Effect or which in any manner draws
into question the validity of this Agreement or the other Loan Documents. As of
the Closing Date, no such action, suit or proceeding exists.
SECTION 4.6. Compliance with ERISA. (a) Except as set forth on
Schedule 4.6 attached hereto, neither Borrower, any Qualified Borrower nor
General
73
Partner is a member of or has entered into, maintained, contributed to, or been
required to contribute to, or may incur any liability with respect to any Plan
or Multiemployer Plan or any other Benefit Arrangement. In the event that at any
time after the Closing Date, either the Borrower, any Qualified Borrower or
General Partner shall become a member of any other material Plan or
Multiemployer Plan, Borrower promptly shall notify the Administrative Agent
thereof and from and after such notice, Schedule 4.6 shall be deemed modified
thereby.
(b) Except for a "prohibited transaction" arising solely because
of a Bank's breach of the covenant set forth in Section 9.17 hereof, the
transactions contemplated by the Loan Documents will not constitute a nonexempt
prohibited transaction (as such term is defined in Section 4975 of the Code or
Section 406 of ERISA) that could subject the Administrative Agent or any of the
Banks to any tax or penalty on prohibited transactions imposed under Section
4975 of the Code or Section 502(i) of ERISA and such transactions will not
otherwise result in the Administrative Agent or any of the Banks being deemed in
violation of Sections 404 or 406 of ERISA or Section 4975 of the Code or in the
Administrative Agent or any of the Banks being a fiduciary or party in interest
under ERISA or a "disqualified person" as defined in Section 4975(e)(2) of the
Code with respect to an "employee benefit plan" within the meaning of Section
3(3) of ERISA or a "plan" within the meaning of Section 4975(e)(1) of the Code.
No assets of Borrower or any Qualified Borrower constitute "assets" (within the
meaning of ERISA or Section 4975 of the Code, including, but not limited to, 29
C.F.R. ss. 2510.3-101 or any successor regulation thereto) of an "employee
benefit plan" within the meaning of Section 3(3) of ERISA or a "plan" within the
meaning of Section 4975(e)(1) of the Code. In addition to the prohibitions set
forth in this Agreement and the other Loan Documents, and not in limitation
thereof, Borrower covenants and agrees that Borrower shall not, and shall not
permit any Qualified Borrower to, use any "assets" (within the meaning of ERISA
or Section 4975 of the Code, including but not limited to 29 C.F.R. ss.
2510.3-101) of an "employee benefit plan" within the meaning of Section 3(3) of
ERISA or a "plan" within the meaning of Section 4975(e)(1) of the Code to repay
or secure the Note, the Loan, or the Obligations.
SECTION 4.7. Environmental. The Borrower conducts reviews of the
effect of Environmental Laws on the business, operations and properties of the
Borrower and its Consolidated Subsidiaries when necessary in the course of which
it identifies and evaluates associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties presently owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any license, permit or contract,
any related constraints on operating activities, and any actual or potential
liabilities to third parties, including, without limitation, employees, and any
related costs and expenses). On the basis of this review, the Borrower has
reasonably concluded that such associated liabilities and
74
costs, including, without limitation, the costs of compliance with Environmental
Laws, are unlikely to have a Material Adverse Effect.
SECTION 4.8. Taxes. The Borrower, each Qualified Borrower, General
Partner and their Consolidated Subsidiaries have filed all United States Federal
income tax returns and all other material tax returns which are required to be
filed by them and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Borrower, any Qualified Borrower, General
Partner or any Consolidated Subsidiary, except such taxes, if any, as are
reserved against in accordance with GAAP, such taxes as are being contested in
good faith by appropriate proceedings or such taxes, the failure to make payment
of which when due and payable will not have, in the aggregate, a Material
Adverse Effect. The charges, accruals and reserves on the books of the Borrower,
General Partner and their Consolidated Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
SECTION 4.9. Full Disclosure. All information heretofore furnished
by the Borrower to the Administrative Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby or thereby
is true and accurate in all material respects on the date as of which such
information is stated or certified. The Borrower has disclosed to the
Administrative Agent, in writing any and all facts which have or may have (to
the extent the Borrower can now reasonably foresee) a Material Adverse Effect.
SECTION 4.10. Solvency. On the Closing Date and after giving effect
to the transactions contemplated by the Loan Documents occurring on the Closing
Date, the Borrower, each Qualified Borrower and General Partner will be Solvent.
SECTION 4.11. Use of Proceeds. All proceeds of the Loans will be
used by the Borrower or the applicable Qualified Borrower only in accordance
with the provisions hereof. Neither the making of any Loan nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of
regulations T, U, or X of the Federal Reserve Board.
SECTION 4.12. Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of any Loan Document or the consummation
of any of the transactions contemplated thereby other than those that have
already been duly made or obtained and remain in full force and effect or those
which, if not made or obtained, would not have a Material Adverse Effect;
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SECTION 4.13. Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower, any Qualified Borrower, General Partner nor any
Consolidated Subsidiary (other than AMB Capital Partners, LLC) is (x) an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, (y) a
"holding company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (z)
subject to any other federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
SECTION 4.14. Principal Offices. As of the Closing Date, the
principal office, chief executive office and principal place of business of the
Borrower and Guarantor is Pier 1, Bay 1, San Francisco, California 94111.
SECTION 4.15. REIT Status. General Partner is qualified and General
Partner intends to continue to qualify as a real estate investment trust under
the Code.
SECTION 4.16. Patents, Trademarks, etc. The Borrower and each
Qualified Borrower has obtained and holds in full force and effect all patents,
trademarks, servicemarks, trade names, copyrights and other such rights, free
from burdensome restrictions, which are necessary for the operation of its
business as presently conducted, the impairment of which is likely to have a
Material Adverse Effect.
SECTION 4.17. Judgments. As of the Closing Date, there are no
final, non-appealable judgments or decrees in an aggregate amount of Ten Million
Dollars ($10,000,000) or more entered by a court or courts of competent
jurisdiction against General Partner or the Borrower or, to the extent such
judgment would be recourse to General Partner or Borrower, any of its
Consolidated Subsidiaries (other than judgments as to which, and only to the
extent, a reputable insurance company has acknowledged coverage of such claim in
writing or which have been paid or stayed).
SECTION 4.18. No Default. No Event of Default or, to the best of the
Borrower's knowledge, Default exists under or with respect to any Loan Document
and neither the Borrower, Guarantor nor any Qualified Borrower is in default in
any material respect beyond any applicable grace period under or with respect to
any other material agreement, instrument or undertaking to which it is a party
or by which it or any of its property is bound in any respect, the existence of
which default is likely to result in a Material Adverse Effect.
SECTION 4.19. Licenses, etc. The Borrower and each Qualified
Borrower has obtained and does hold in full force and effect, all franchises,
licenses,
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permits, certificates, authorizations, qualifications, accreditation, easements,
rights of way and other consents and approvals which are necessary for the
operation of its businesses as presently conducted, the absence of which is
likely to have a Material Adverse Effect.
SECTION 4.20. Compliance With Law. To the Borrower's knowledge, the
Borrower, each Qualified Borrower and each of its respective Real Property
Assets are in compliance with all laws, rules, regulations, orders, judgments,
writs and decrees, including, without limitation, all building and zoning
ordinances and codes, the failure to comply with which is likely to have a
Material Adverse Effect.
SECTION 4.21. No Burdensome Restrictions . Except as may have been
disclosed by the Borrower in writing to the Banks, neither Borrower nor any
Qualified Borrower is a party to any agreement or instrument or subject to any
other obligation or any charter or corporate or partnership restriction, as the
case may be, which, individually or in the aggregate, is likely to have a
Material Adverse Effect.
SECTION 4.22. Brokers' Fees. The Borrower has not dealt with any
broker or finder with respect to the transactions contemplated by this Agreement
or otherwise in connection with this Agreement, and the Borrower has not done
any act, had any negotiations or conversation, or made any agreements or
promises which will in any way create or give rise to any obligation or
liability for the payment by the Borrower of any brokerage fee, charge,
commission or other compensation to any party with respect to the transactions
contemplated by the Loan Documents, other than the fees payable to the
Administrative Agent and the Banks, and certain other Persons as previously
disclosed in writing to the Administrative Agent.
SECTION 4.23. Labor Matters. Except as disclosed on Schedule 4.6,
there are no collective bargaining agreements or Multiemployer Plans covering
the employees of the Borrower or any member of the ERISA Group and neither the
Borrower nor any member of the ERISA Group has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
SECTION 4.24. Insurance. The Borrower currently maintains insurance
at 100% replacement cost insurance coverage (subject to customary deductibles)
in respect of each of its Real Property Assets, as well as commercial general
liability insurance (including, without limitation, "builders' risk" where
applicable) against claims for personal, and bodily injury and/or death, to one
or more persons, or property damage, as well as workers' compensation insurance,
in each case with respect to liability and casualty insurance with insurers
having an A.M. Best policyholders' rating of not less than A-VII in amounts that
prudent owners of assets such as Borrower's directly or indirectly owned Real
Property Assets would maintain.
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SECTION 4.25. Organizational Documents. The documents delivered
pursuant to Section 3.1(e) constitute, as of the Closing Date, all of the
organizational documents (together with all amendments and modifications
thereof) of the Borrower, each Qualified Borrower as of the Closing Date and
General Partner. The Borrower represents that it has delivered to the
Administrative Agent true, correct and complete copies of each such documents.
General Partner is the general partner of the Borrower. General Partner holds
(directly or indirectly) an approximately 94.5% common equity ownership interest
in the Borrower as of the date hereof.
SECTION 4.26. Qualifying Unencumbered Properties. As of the date
hereof, each Property listed on Schedule 1.1 as a Qualifying Unencumbered
Property (i) is a wholly-owned or ground leased (directly or beneficially) by
Borrower, a Financing Partnership or a Joint Venture Subsidiary, (ii) is not
subject (nor are any equity interests in such Property that are owned directly
or indirectly by Borrower, General Partner or any Joint Venture Parent subject)
to a Lien which secures Indebtedness of any Person, other than Permitted Liens,
and (iii) is not subject (nor are any equity interests in such Property that are
owned directly or indirectly by Borrower, General Partner or Joint Venture
Parent subject) to any Negative Pledge. All of the information set forth on
Schedule 1.1 is true and correct in all material respects.
ARTICLE V
AFFIRMATIVE AND NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment hereunder or any Obligations remain unpaid:
SECTION 5.1. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within five (5) Business
Days after the same is required to be filed with the Securities and Exchange
Commission (but in no event later than 95 days after the end of each Fiscal Year
of the Borrower) a consolidated balance sheet of the Borrower, General Partner
and their Consolidated Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of Borrower's and General Partner's operations
and consolidated statements of Borrower's and General Partner's cash flow for
such Fiscal Year, setting forth in each case in comparative form the figures for
the previous Fiscal Year (if available), all reported in a manner acceptable to
the Securities and Exchange Commission on Borrower's and General Partner's Form
10K
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and reported on by PriceWaterhouseCoopers or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within five (5) Business
Days after the same is required to be filed with the Securities and Exchange
Commission (but in no event later than 50 days after the end of each of the
first three quarters of each Fiscal Year of the Borrower and General Partner),
(i) a consolidated balance sheet of the Borrower, General Partner and their
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of Borrower's and General Partner's operations and
consolidated statements of Borrower's and General Partner's cash flow for such
quarter and for the portion of the Borrower's or General Partner's Fiscal Year
ended at the end of such quarter, all reported in the form provided to the
Securities and Exchange Commission on Borrower's and General Partner's Form 10Q,
and (ii) and such other information reasonably requested by the Administrative
Agent or any Bank;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer of the Borrower (i) setting forth in reasonable detail
(including, without limitation, reconciliation to GAAP) the calculations
required to establish whether the Borrower was in compliance with the
requirements of Section 5.8 on the date of such financial statements; (ii)
certifying (x) that such financial statements fairly present the financial
condition and the results of operations of the Borrower on the dates and for the
periods indicated, on the basis of GAAP, with respect to the Borrower subject,
in the case of interim financial statements, to normally recurring year-end
adjustments, and (y) that such officer has reviewed the terms of the Loan
Documents and has made, or caused to be made under his or her supervision, a
review in reasonable detail of the business and condition of the Borrower during
the period beginning on the date through which the last such review was made
pursuant to this Section 5.1(c) (or, in the case of the first certification
pursuant to this Section 5.1(c), the Closing Date) and ending on a date not more
than ten (10) Business Days prior to, but excluding, the date of such delivery
and that (1) on the basis of such financial statements and such review of the
Loan Documents, no Event of Default existed under Section 6.1(b) with respect to
Sections 5.8 and 5.9 at or as of the date of said financial statements, and (2)
on the basis of such review of the Loan Documents and the business and condition
of the Borrower, to the best knowledge of such officer, as of the last day of
the period covered by such certificate no Default or Event of Default under any
other provision of Section 6.1 occurred and is continuing or, if any such
Default or Event of Default has occurred and is continuing, specifying the
nature and extent thereof and, the action the Borrower proposes to take in
respect thereof. Such certificate shall set forth the calculations required to
establish the matters described in clauses (1) and (2) above;
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(d) (i) within five (5) Business Days after any officer of the
Borrower obtains knowledge of any Default, if such Default is then continuing, a
certificate of the chief financial officer, or other executive officer of the
Borrower setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto; and (ii) promptly and in any
event within five (5) Business Days after the Borrower obtains knowledge
thereof, notice of (x) any litigation or governmental proceeding pending or
threatened against the Borrower or its directly or indirectly Real Property
Assets as to which there is a reasonable possibility of an adverse determination
and which, if adversely determined, is likely to individually or in the
aggregate, result in a Material Adverse Effect, and (y) any other event, act or
condition which is likely to result in a Material Adverse Effect;
(e) promptly upon the mailing thereof to the shareholders of
General Partner generally, copies of all proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all reports on
Forms 10-K and 10-Q (or their equivalents) (other than the exhibits thereto,
which exhibits will be provided upon request therefor by any Bank) which General
Partner shall have filed with the Securities and Exchange Commission;
(g) promptly and in any event within thirty (30) days, if and when
any member of the ERISA Group (i) gives or is required to give notice to the
PBGC of any "reportable event" (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan administrator of any Plan
has given or is required to give notice of any such reportable event, a copy of
the notice of such reportable event given or required to be given to the PBGC;
(ii) receives notice of complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Code, a
copy of such application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed with
the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063
of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security, and in the case of clauses (i) through (vii) above, which event
could result in a Material Adverse Effect, a certificate of the chief financial
officer or the chief accounting officer of the Borrower setting forth details as
to such occurrence and action, if any, which the Borrower or applicable member
of the ERISA Group is required or proposes to take;
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(h) promptly and in any event within ten (10) days after the
Borrower obtains actual knowledge of any of the following events, a certificate
of the Borrower, executed by an officer of the Borrower, specifying the nature
of such condition, and the Borrower's or, if the Borrower has actual knowledge
thereof, the Environmental Affiliate's proposed initial response thereto: (i)
the receipt by the Borrower, or any of the Environmental Affiliates of any
communication (written or oral), whether from a governmental authority, citizens
group, employee or otherwise, that alleges that the Borrower, or any of the
Environmental Affiliates, is not in compliance with applicable Environmental
Laws, and such noncompliance is likely to have a Material Adverse Effect, (ii)
the existence of any Environmental Claim pending against the Borrower or any
Environmental Affiliate and such Environmental Claim is likely to have a
Material Adverse Effect or (iii) any release, emission, discharge or disposal of
any Material of Environmental Concern that is likely to form the basis of any
Environmental Claim against the Borrower or any Environmental Affiliate which in
any such event is likely to have a Material Adverse Effect;
(i) promptly and in any event within five (5) Business Days after
receipt of any notices or correspondence from any company or agent for any
company providing insurance coverage to the Borrower relating to any loss which
is likely to result in a Material Adverse Effect, copies of such notices and
correspondence;
(j) simultaneously with the delivery of the information required
by Sections 5.1(a) and (b), a statement of all Qualifying Unencumbered
Properties; and
(k) from time to time such additional information regarding the
financial position or business of the Borrower, General Partner and their
Subsidiaries as the Administrative Agent, at the request of any Bank, may
reasonably request in writing, so long as disclosure of such information could
not result in a violation of, or expose the Borrower, General Partner or their
Subsidiaries to any material liability under, any applicable law, ordinance or
regulation or any agreements with unaffiliated third parties that are binding on
the Borrower, General Partner or any of their Subsidiaries or on any Property of
any of them.
SECTION 5.2. Payment of Obligations. The Borrower, each Qualified
Borrower, General Partner and their Consolidated Subsidiaries will pay and
discharge, at or before maturity, all their respective material obligations and
liabilities including, without limitation, any obligation pursuant to any
agreement by which it or any of its properties is bound, in each case where the
failure to so pay or discharge such obligations or liabilities is likely to
result in a Material Adverse
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Effect, and will maintain in accordance with GAAP, appropriate reserves for the
accrual of any of the same.
SECTION 5.3. Maintenance of Property; Insurance; Leases.
(a) The Borrower will keep, and will cause each Consolidated
Subsidiary to keep, all property useful and necessary in its business, including
without limitation its Real Property Assets (for so long as it constitutes Real
Property Assets), in good repair, working order and condition, ordinary wear and
tear excepted, in each case where the failure to so maintain and repair will
have a Material Adverse Effect.
(b) The Borrower shall maintain, or cause to be maintained,
insurance described in Section 4.24 hereof with insurers meeting the
qualifications described therein, which insurance shall in any event not provide
for less coverage than insurance customarily carried by owners of properties
similar to, and in the same locations as, Borrower's Real Property Assets. The
Borrower will deliver to the Administrative Agent upon the reasonable request of
the Administrative Agent from time to time (i) full information as to the
insurance carried, (ii) within five (5) days of receipt of notice from any
insurer a copy of any notice of cancellation or material change in coverage
required by Section 4.24 from that existing on the date of this Agreement and
(iii) forthwith, notice of any cancellation or nonrenewal (without replacement)
of coverage by the Borrower.
SECTION 5.4. Maintenance of Existence. The Borrower, each Qualified
Borrower and General Partner each will preserve, renew and keep in full force
and effect, their respective partnership and corporate existence and their
respective rights, privileges and franchises necessary for the normal conduct of
business unless the failure to maintain such rights and franchises does not have
a Material Adverse Effect.
SECTION 5.5. Compliance with Laws. The Borrower, each Qualified
Borrower and General Partner will, and will cause their Subsidiaries to, comply
in all material respects with all applicable laws, ordinances, rules,
regulations, and requirements of governmental authorities (including, without
limitation, Environmental Laws, and all zoning and building codes with respect
to its Real Property Assets and ERISA and the rules and regulations thereunder
and all federal securities laws) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings or where the
failure to do so will not have a Material Adverse Effect or expose
Administrative Agent or Banks to any material liability therefor.
SECTION 5.6. Inspection of Property, Books and Records. The Borrower
will keep proper books of record and account in which full, true and
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correct entries shall be made of all dealings and transactions in relation to
its business and activities in conformity with GAAP, modified as required by
this Agreement and applicable law; and will permit representatives of any Bank,
at such Bank's expense, or from and after an Event of Default, at Borrower's
expense, to visit and inspect any of its properties, including without
limitation its Real Property Assets, and so long as disclosure of such
information could not result in a violation of, or expose the Borrower, any
Qualified Borrower, General Partner or their Subsidiaries to any material
liability under, any applicable law, ordinance or regulation or any agreements
with unaffiliated third parties that are binding on the Borrower, any Qualified
Borrower, General Partner or any of their Subsidiaries or on any Property of any
of them, to examine and make abstracts from any of its books and records and to
discuss its affairs, finances and accounts with its officers and independent
public accountants, all at such reasonable times during normal business hours,
upon reasonable prior notice and as often as may reasonably be desired.
Administrative Agent shall coordinate any such visit or inspection to arrange
for review by any Bank requesting any such visit or inspection.
SECTION 5.7. Existence. The Borrower shall do or cause to be done,
all things necessary to preserve and keep in full force and effect its, each
Qualified Borrower's, General Partner's and their Consolidated Subsidiaries'
existence and its patents, trademarks, servicemarks, tradenames, copyrights,
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditation, easements, rights of way and other rights, consents and approvals
the nonexistence of which is likely to have a Material Adverse Effect.
SECTION 5.8. Financial Covenants.
(a) Total Liabilities to Total Asset Value. Borrower shall not
permit the ratio of Total Liabilities to Total Asset Value of Borrower to exceed
0.55:1 at any time; provided, however, such ratio may exceed 0.55:1 for any
single quarter within any twelve (12) month period but in no event shall
Borrower permit the ratio of Total Liabilities to Total Asset Value to exceed
0.60:1 at any time.
(b) Adjusted EBITDA to Fixed Charges Ratio. Borrower shall not
permit the ratio of Adjusted EBITDA to Fixed Charges, for the then most recently
completed four (4) consecutive Fiscal Quarters, to be less than 1.75:1.
(c) Secured Debt to Total Asset Value. Borrower shall not permit
the ratio of Secured Debt to Total Asset Value of Borrower to exceed 0.40:1 at
any time.
(d) Unencumbered Pool. Borrower shall not permit the ratio of the
outstanding Unsecured Debt to Unencumbered Asset Value to exceed 0.55:1 at any
time.
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(e) Unencumbered Net Operating Cash Flow to Unsecured Interest
Expense. Borrower shall not permit the ratio of Unencumbered Net Operating Cash
Flow to Unsecured Interest Expense to be less than 2.0:1.
(f) Minimum Tangible Net Worth. The Consolidated Tangible Net
Worth of the Borrower determined in conformity with GAAP will at no time be less
than the sum of One Billion Eight Hundred Million Dollars ($1,800,000,000.00)
and ninety percent (90%) of the Net Offering Proceeds (other than proceeds
received within ninety (90) days after the redemption, retirement or repurchase
of ownership or equity interests in Borrower or Guarantor, up to the amount paid
by Borrower or Guarantor in connection with such redemption, retirement or
repurchase, where, for the avoidance of doubt, the net effect is that neither
Borrower nor Guarantor shall have increased its Net Worth as a result of any
such proceeds) received by the Borrower or General Partner subsequent to the
Closing Date.
(g) Dividends. The Borrower will not, as determined on an
aggregate annual basis, pay any partnership distributions in excess of 95% of
the Borrower's FFO for such year. During the continuance of a monetary Event of
Default, Borrower shall only pay partnership distributions that are necessary to
enable General Partner to make those dividends necessary to maintain General
Partner's status as a real estate investment trust.
(h) Permitted Holdings. Borrower's primary business will not be
substantially different from that conducted by Borrower on the Closing Date and
shall include the ownership, operation and development of Real Property Assets
and any other business activities of Borrower and its Subsidiaries will remain
incidental thereto. Notwithstanding the foregoing, Borrower and its Subsidiaries
may acquire or maintain Permitted Holdings if and so long as the aggregate value
of Permitted Holdings (excluding Foreign Property Interests that are not
Development Activity), whether held directly or indirectly by Borrower does not
exceed, at any time, twenty-five percent (25%) of Total Asset Value of Borrower
unless a greater percentage is approved by the Majority Banks (which approval
shall not be unreasonably withheld, conditioned or delayed), provided, however,
Borrower and its Subsidiaries may not acquire or maintain Unimproved Assets
(excluding Foreign Property Interests) if and to the extent that the aggregate
value of Unimproved Assets, whether held directly or indirectly by Borrower
exceeds, at any time, seven and one-half percent (7.50%) of Total Asset Value of
Borrower unless a greater percentage is approved by the Required Banks (which
approval shall not be unreasonably withheld, conditioned or delayed). For
purposes of calculating the foregoing percentage, the value of Unimproved Assets
shall be calculated based upon the book value thereof, determined in accordance
with GAAP.
(i) Foreign Property Limit. Borrower and General Partner shall
not, and shall not allow any of their Subsidiaries to, acquire or maintain
Properties
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located outside the United States if and to the extent that the aggregate value
of Borrower's and General Partner's interest, without duplication, in such
Properties located outside the United States ("Foreign Property Interests"),
whether held directly or indirectly exceeds, at any time, twenty percent (20%)
of Total Asset Value.
(j) No Liens. Borrower and General Partner shall not, and shall
not allow any of their Subsidiaries, Financing Partnerships or Joint Venture
Subsidiaries to, allow any Qualifying Unencumbered Property (or any equity
interests in such Property that are owned directly or indirectly by Borrower,
General Partner or any Joint Venture Parent), that is necessary to comply with
the provisions of Sections 5.8(d) and (e) hereof, to become subject to a Lien
that secures the Indebtedness of any Person, other than Permitted Liens.
(k) Development Activities. Construction Asset Cost (including,
without limitation, Construction Asset Cost attributable to Foreign Property
Interests) of the Borrower, the General Partner and the Consolidated
Subsidiaries, without duplication, shall not exceed fifteen percent (15%) of
Total Asset Value. For the purposes of the foregoing calculation, a Construction
Asset shall not include any Property that is eighty-five percent (85%) or more
leased to tenants that are unaffiliated with Borrower.
(l) Limitation on Joint Venture Interests. The value of any Joint
Venture Interests (excluding Foreign Property Interests), determined in
accordance with GAAP, shall at no time exceed in the aggregate fifteen percent
(15%) of Total Asset Value.
(m) Limitation on Taxable REIT Subsidiaries. The value, determined
in accordance with GAAP, at book value of all Taxable REIT Subsidiaries
(excluding Foreign Property Interests) will not exceed twenty percent (20%) of
Total Asset Value.
(n) Calculation. Each of the foregoing ratios and financial
requirements shall be calculated as of the last day of each Fiscal Quarter.
SECTION 5.9. Restriction on Fundamental Changes. (a) Neither the
Borrower nor General Partner shall enter into any merger or consolidation
without obtaining the prior written consent thereto in writing of the Required
Banks, unless the following criteria are met: (i) the Borrower or General
Partner is the surviving entity; (ii) the entity which is merged into Borrower
or General Partner is predominantly in the commercial real estate business;
(iii) the creditworthiness of the surviving entity's long term unsecured debt or
implied senior debt, as applicable, is either (A) Investment Grade or (B) if not
Investment Grade, not lower than Borrower's or General Partner's
creditworthiness, as applicable, two months immediately preceding such merger;
and (iv) in the case of any merger where the
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then fair market value of the assets of the entity which is merged into the
Borrower or General Partner is more than twenty-five percent (25%) of the
Borrower's or General Partner's, as applicable, then Total Asset Value following
such merger, the consent of the Required Banks has been obtained, which consent
shall not be unreasonably withheld, conditioned or delayed. Neither the Borrower
nor General Partner shall liquidate, wind-up or dissolve (or suffer any
liquidation or dissolution), discontinue its business or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of its business or property, whether now or hereafter
acquired. Nothing in this Section shall be deemed to prohibit the sale or
leasing of portions of the Real Property Assets in the ordinary course of
business.
(b) The Borrower shall not amend its agreement of limited partnership or other
organizational documents in any manner that would have a Material Adverse Effect
without the Required Banks' consent. Without limitation of the foregoing, no
Person shall be admitted as a general partner of the Borrower other than General
Partner. General Partner shall not amend its articles of incorporation, by-laws,
or other organizational documents in any manner that would have a Material
Adverse Effect without the Required Banks' consent. No Qualified Borrower shall
amend its organizational documents in any manner that would have a Material
Adverse Effect without the Required Banks' consent. The Borrower shall not make
any "in-kind" transfer of any of its property or assets to any of its
constituent partners if such transfer would result in an Event of Default under
Section 6.1(b) by reason of a breach of the provisions of Section 5.8.
SECTION 5.10. Changes in Business. (a) Except for Permitted Holdings
and Foreign Property Interests, neither the Borrower, any Qualified Borrower nor
General Partner shall enter into any business which is substantially different
from that conducted by the Borrower or General Partner on the Closing Date after
giving effect to the transactions contemplated by the Loan Documents. The
Borrower shall carry on its business operations through the Borrower, its
Consolidated Subsidiaries and its Investment Affiliates.
(b) Except for Permitted Holdings and Foreign Property Interests,
Borrower shall not engage in any line of business which is substantially
different from the business conducted by the Borrower on the Closing Date, which
includes the ownership, operation and development of Real Property Assets and
the provision of services incidental thereto, whether directly or through its
Consolidated Subsidiaries and Investment Affiliates.
SECTION 5.11. General Partner Status.
(a) Status. General Partner shall at all times (i) remain a
publicly traded company listed for trading on the New York Stock Exchange, and
(ii)
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maintain its status as a self-directed and self-administered real estate
investment trust under the Code.
(b) Indebtedness. General Partner shall not, directly or
indirectly, create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness, except:
(1) the Obligations; and
(2) Indebtedness of Borrower for which there is recourse to
General Partner which, after giving effect thereto, may be incurred or may
remain outstanding without giving rise to an Event of Default or Default
under any provision of this Article V.
(c) Restriction on Fundamental Changes.
(1) General Partner shall not have an investment in any
Person other than (i) Borrower or indirectly through Borrower, (ii)
directly or indirectly in Financing Partnerships, and (iii) the interests
identified on Schedule 5.11(c)(1) as being owned by General Partner.
(2) General Partner shall not acquire an interest in any
Property other than securities issued by Borrower and Financing
Partnerships and the interests identified on Schedule 5.11(c)(2) attached
hereto.
(d) Environmental Liabilities. Neither General Partner nor any of
its Subsidiaries shall become subject to any Environmental Claim which has a
Material Adverse Effect, including, without limitation, any arising out of or
related to (i) the release or threatened release of any Material of
Environmental Concern into the environment, or any remedial action in response
thereto, or (ii) any violation of any Environmental Laws. Notwithstanding the
foregoing provision, General Partner shall have the right to contest in good
faith any claim of violation of an Environmental Law by appropriate legal
proceedings and shall be entitled to postpone compliance with the obligation
being contested as long as (i) no Event of Default shall have occurred and be
continuing, (ii) General Partner shall have given Administrative Agent prior
written notice of the commencement of such contest, (iii) noncompliance with
such Environmental Law shall not subject General Partner or such Subsidiary to
any criminal penalty or subject Administrative Agent or any Bank to pay any
civil penalty or to prosecution for a crime, and (iv) no portion of any Property
material to Borrower or its condition or prospects shall be in substantial
danger of being sold, forfeited or lost, by reason of such contest or the
continued existence of the matter being contested.
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(e) Disposal of Partnership Interests. General Partner will not
directly or indirectly convey, sell, transfer, assign, pledge or otherwise
encumber or dispose of any of its partnership interests in Borrower or any of
its equity interest in any of the partners of the Borrower as of the date hereof
(except in connection with the dissolution or liquidation of such partners of
the Borrower or the redemption of interests in connection with stock repurchase
programs), except for the reduction of General Partner's interest in the
Borrower arising from Borrower's issuance of partnership interests in the
Borrower or the retirement of preferred units by Borrower. General Partner will
continue to be the managing general partner of Borrower.
SECTION 5.12. Other Indebtedness. Borrower and General Partner shall
not allow any of their Subsidiaries, Financing Partnerships or Joint Venture
Subsidiaries that own, directly or indirectly, any Qualifying Unencumbered
Property to directly or indirectly create, incur, assume or otherwise become or
remain liable with respect to any Indebtedness other than trade debt incurred in
the ordinary course of business and Indebtedness owing to Borrower or any
Financing Partnership, if the resulting failure of such Property to qualify as a
Qualifying Unencumbered Property would result in an Event of Default under
Section 5.8.
SECTION 5.13. Forward Equity Contracts. If Borrower shall enter into
any forward equity contracts, Borrower may only settle the same by delivery of
stock, it being agreed that if Borrower shall settle the same with cash, the
same shall constitute an Event of Default hereunder unless Borrower shall have
received the unanimous consent of the Banks to settle such forward equity
contracts with cash.
SECTION 5.14. Capital Funding Loans. Notwithstanding anything in
this Agreement to the contrary, in the event that any Property located outside
the United States (each a "Non-US Property") is owned by a Financing Partnership
(a "100% AMB Non-US Property Owner"), by a Joint Venture Subsidiary (a "JV
Non-US Property Owner") or by a wholly-owned direct or indirect subsidiary of a
Joint Venture Subsidiary (a "Tiered Non-US Property Owner"; such Joint Venture
Subsidiary is hereinafter referred to as the "First Tier JV"; each entity
through which the First Tier JV indirectly owns a Tiered Non-US Property Owner
is hereinafter referred to as an "Intermediate Tier Entity"; and the Tiered
Non-US Property Owners, the 100% AMB Non-US Property Owners and the JV Non-US
Property Owners are sometimes hereinafter referred to individually as a "Non-US
Property Owner" and collectively as the "Non-US Property Owners") and the Non-US
Property Owner or, in the case of any Tiered Non-US Property Owner, the related
First Tier JV or a related Intermediate Tier Entity has incurred Indebtedness
(whether or not such Indebtedness is secured by a Lien against such Non-US
Property and/or any direct or indirect equity interests in the Non-US Property
Owner) (each a "Capital Funding Loan") held by
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(x) in the case of a 100% AMB Non-US Property Owner, Borrower or any
other Financing Partnership, and
(y) in the case of a JV Non-US Property Owner or a Tiered Non-US
Property Owner, either (AA) an entity (hereinafter an "International
FinCo") in which Borrower's Share is the same or greater than
Borrower's Share in such Non-US Property Owner, or (BB) a Financing
Partnership (or Borrower directly) and entities which are not
Financing Partnerships (including Persons who are not Affiliates of
Borrower or whose constituent entities include Persons who are not
Affiliates of Borrower) ("Joint Lenders"), provided that Borrower's
direct or indirect share of such Indebtedness is the same or greater
than Borrower's Share of such Non-US Property Owner,
then no such Capital Funding Loan or related Second Tier Funding Loan (as
defined below) shall be deemed to constitute Indebtedness for any purposes under
this Agreement, any Lien securing such Capital Funding Loan shall be a Permitted
Lien and no Non-US Property to which such Capital Funding Loan or Second Tier
Funding Loan relates shall fail to be a Qualifying Unencumbered Property solely
because the capital provided to the applicable Non-US Property Owner or related
First Tier JV or Intermediate Tier Entity was in the form of a Capital Funding
Loan rather than a contribution to the equity of such Non-US Property Owner,
First Tier JV or Intermediate Tier Entity, so long as
(a) in the case of a Capital Funding Loan made by an International
FinCo, the sale of such Capital Funding Loan, or the sale or
refinancing of any interest in the Non-US Property or any direct or
indirect equity interests in the Non-US Property Owner acquired as a
result of the exercise of any remedies in connection with the
enforcement of such Capital Funding Loan, is Substantially
Controlled by Borrower (as defined below),
(b) in the case of a Capital Funding Loan made by Joint Lenders, any
remedies in connection with enforcement of such Capital Funding Loan
may only be exercised by such Joint Lenders concurrently and, in the
event of any such exercise and the Joint Lenders acquire such Non-US
Property or any direct or indirect equity interests in such Non-US
Property Owner, the sale or refinancing of such Non-US Property and,
if the direct or indirect equity interests in such Non-US Property
Owner are held jointly, such equity interests will be Substantially
Controlled by Borrower, and
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(c) no interest in any Capital Funding Loan or Second Tier Funding Loan
held directly or indirectly by Borrower is subject to any Lien
(other than a Permitted Lien) or any Negative Pledge.
For purposes of the foregoing, an action will be "Substantially Controlled by
Borrower" if such action is substantially controlled directly by Borrower or
through one or more Financing Partnerships either by agreement of the parties,
through the provisions of a Person's formation documents or otherwise. For
purposes of the preceding sentence, an action shall be deemed to be
substantially controlled directly by Borrower or through one or more Financing
Partnerships if Borrower or such Financing Partnerships have the ability to
exercise a usual and customary buy-sell right in the event of a disagreement
regarding such action. As used herein the term "Second Tier Funding Loan" means
any loans made to an International FinCo by Borrower, any Financing Partnerships
of Borrower and/or any other Person with an equity interest in such
International FinCo (or affiliates of such other Person) so long as (x)
Borrower's direct or indirect share of the combined loans of Borrower, any
Financing Partnership and/or such other Persons (or affiliates thereof) to the
International FinCo is the same or greater than Borrower's Share
of the applicable Non-US Property Owner, and (y) all such loans are pari passu
and any remedies that may be exercised in connection with enforcement of such
loans may only be exercised concurrently or not at all.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. An "Event of Default" shall have
occurred if one or more of the following events shall have occurred and be
continuing:
(a) the Borrower shall fail to (i) pay when due any principal of
any Loan, or (ii) the Borrower shall fail to pay when due interest on any Loan
or any fees or any other amount payable to Administrative Agent or the Banks
hereunder and the same shall continue for a period of five (5) days after the
same becomes due;
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 5.8, Section 5.9(a) or (b), Section 5.10, Section 5.11(a),
(b) or (c), Section 5.12 or Section 5.13;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a),
(b), (e), (f), (g), (h), (j), (n) or (o) of this Section 6.1) for 30 days after
written notice
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thereof has been given to the Borrower by the Administrative Agent; or if such
default is of such a nature that it cannot with reasonable effort be completely
remedied within said period of thirty (30) days such additional period of time
as may be reasonably necessary to cure same, provided Borrower commences such
cure within said thirty (30) day period and diligently prosecutes same, until
completion, but in no event shall such extended period exceed ninety (90) days;
(d) any representation, warranty, certification or statement made
by the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made) and, with respect
to such representations, warranties, certifications or statements not known by
the Borrower at the time made or deemed made to be incorrect, the defect causing
such representation or warranty to be incorrect when made (or deemed made) is
not removed within thirty (30) days after written notice thereof from
Administrative Agent to Borrower;
(e) the Borrower, any Qualified Borrower, the General Partner, any
Subsidiary or any Investment Affiliate shall default in the payment when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) of any amount owing in respect of any Recourse Debt (other than the
Obligations) for which the aggregate outstanding principal amounts exceed
Twenty-Five Million Dollars ($25,000,000) and such default shall continue beyond
the giving of any required notice and the expiration of any applicable grace
period and such default has not been waived, in writing, by the holder of any
such Debt; or the Borrower, any Qualified Borrower, the General Partner, any
Subsidiary or any Investment Affiliate shall default in the performance or
observance of any obligation or condition with respect to any such Recourse Debt
or any other event shall occur or condition exist beyond the giving of any
required notice and the expiration of any applicable grace period, if the effect
of such default, event or condition is to accelerate the maturity of any such
indebtedness or to permit (without any further requirement of notice or lapse of
time) the holder or holders thereof, or any trustee or agent for such holders,
to accelerate the maturity of any such indebtedness;
(f) the Borrower or the General Partner shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidate, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any action to authorize any of the foregoing;
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(g) an involuntary case or other proceeding shall be commenced
against the Borrower or the General Partner seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 90 days; or an order for
relief shall be entered against the Borrower or the General Partner under the
federal bankruptcy laws as now or hereafter in effect;
(h) the Borrower, any Qualified Borrower, the General Partner or
any Subsidiary shall default (x) in the payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) of any amount
owing in respect of any Non-Recourse Indebtedness beyond the giving of any
required notice and the expiration of any applicable grace period and such
default has not been waived, in writing, by the holder of any such Indebtedness,
with respect to which the principal amounts of any such Indebtedness, in the
aggregate, exceed One Hundred Million Dollars ($100,000,000), or (y) in the
performance or observance of any obligation or condition with respect to any
such Non-Recourse Indebtedness or any other event shall occur or condition exist
beyond the giving of any required notice and the expiration of any applicable
grace period, if, in the case of (x) or (y), the effect of such default, event
or condition is to accelerate the maturity of any such indebtedness or to permit
(without any further requirement of notice or lapse of time) the holder or
holders thereof, or any trustee or agent for such holders, to accelerate the
maturity of any such indebtedness and such holder or holders in fact accelerate
the maturity of any such indebtedness;
(i) one or more final, non-appealable judgments or decrees in an
aggregate amount of Ten Million Dollars ($10,000,000) or more shall be entered
by a court or courts of competent jurisdiction against the General Partner, the
Borrower or, to the extent of any recourse to the General Partner or the
Borrower, any Qualified Borrower or any General Partner's or Borrower's
Consolidated Subsidiaries (other than any judgment as to which, and only to the
extent, a reputable insurance company has acknowledged coverage of such claim in
writing) and (i) any such judgments or decrees shall not be stayed, discharged,
paid, bonded or vacated within thirty (30) days or (ii) enforcement proceedings
shall be commenced by any creditor on any such judgments or decrees;
(j) there shall be a change in the majority of the Board of
Directors of the General Partner during any twelve (12) month period, excluding
any change in directors resulting from (x) the death or disability of any
director, or (y) satisfaction of any requirement for the majority of the members
of the board of directors or trustees of the General Partner to qualify under
applicable law as independent directors or (z) the replacement of any director
who is an officer or
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employee of the General Partner or an affiliate of the General Partner with any
other officer or employee of the General Partner or an affiliate of the General
Partner;
(k) any Person (including affiliates of such Person) or "group"
(as such term is defined in applicable federal securities laws and regulations)
shall acquire more than thirty percent (30%) of the common shares of the General
Partner;
(l) the General Partner shall cease at any time to qualify as a
real estate investment trust under the Code;
(m) if any Termination Event with respect to a Plan, Multiemployer
Plan or Benefit Arrangement shall occur as a result of which Termination Event
or Events any member of the ERISA Group has incurred or may incur any liability
to the PBGC or any other Person and the sum (determined as of the date of
occurrence of such Termination Event) of the insufficiency of such Plan,
Multiemployer Plan or Benefit Arrangement and the insufficiency of any and all
other Plans, Multiemployer Plans and Benefit Arrangements with respect to which
such a Termination Event shall occur and be continuing (or, in the case of a
Multiple Employer Plan with respect to which a Termination Event described in
clause (ii) of the definition of Termination Event shall occur and be continuing
and in the case of a liability with respect to a Termination Event which is or
could be a liability of the Borrower or the General Partner rather than a
liability of the Plan, the liability of the Borrower or the General Partner) is
equal to or greater than $10,000,000 and which the Administrative Agent
reasonably determines will have a Material Adverse Effect;
(n) if, any member of the ERISA Group shall commit a failure
described in Section 302(f)(1) of ERISA or Section 412(n)(1) of the Code and the
amount of the lien determined under Section 302(f)(3) of ERISA or Section
412(n)(3) of the Code that could reasonably be expected to be imposed on any
member of the ERISA Group or their assets in respect of such failure shall be
equal to or greater than $10,000,000 and which the Administrative Agent
reasonably determines will have a Material Adverse Effect;
(o) at any time, for any reason the Borrower or any Qualified
Borrower seeks to repudiate its obligations under any Loan Document or the
General Partner seeks to repudiate its obligations under the Guaranty.
(p) a default beyond any applicable notice or grace period under
any of the other Loan Documents;
(q) any assets of Borrower or any Qualified Borrower shall
constitute "assets" (within the meaning of ERISA or Section 4975 of the Code,
including but not limited to 29 C.F.R. Section 2510.3-101 or any successor
regulation
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thereto) of an "employee benefit plan" within the meaning of Section 3(3) of
ERISA or a "plan" within the meaning of Section 4975(e)(1) of the Code; or
(r) the Note, the Loan, the Obligations, the Guaranty or any of
the Loan Documents or the exercise of any of the Administrative Agent's or any
of the Bank's rights in connection therewith shall constitute a prohibited
transaction under ERISA and/or the Code.
SECTION 6.2. Rights and Remedies. (a) Upon the occurrence of any
Event of Default described in Sections 6.1(f), (g), (o) or (q), the Commitments
and the Swingline Commitment shall immediately terminate and the unpaid
principal amount of, and any and all accrued interest on, the Loans and any and
all accrued fees and other Obligations hereunder shall automatically become
immediately due and payable, with all additional interest from time to time
accrued thereon and without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower for itself and on behalf of any Qualified Borrower; and upon the
occurrence and during the continuance of any other Event of Default, the
Administrative Agent, following consultation with the Banks, may (and upon the
demand of the Required Banks shall), by written notice to the Borrower, in
addition to the exercise of all of the rights and remedies permitted the
Administrative Agent and the Banks at law or equity or under any of the other
Loan Documents, declare that the Commitments are terminated and declare the
unpaid principal amount of and any and all accrued and unpaid interest on the
Loans and any and all accrued fees and other Obligations hereunder to be, and
the same shall thereupon be, immediately due and payable with all additional
interest from time to time accrued thereon and (except as otherwise provided in
the Loan Documents) without presentation, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and notice of acceleration), all of which are hereby expressly waived by the
Borrower for itself and on behalf of any Qualified Borrower.
(b) Notwithstanding anything to the contrary contained in this
Agreement or in any other Loan Document, the Administrative Agent and the Banks
each agree that any exercise or enforcement of the rights and remedies granted
to the Administrative Agent or the Banks under this Agreement or at law or in
equity with respect to this Agreement or any other Loan Documents shall be
commenced and maintained by the Administrative Agent on behalf of the
Administrative Agent and/or the Banks. The Administrative Agent shall act at the
direction of the Required Banks in connection with the exercise of any and all
remedies at law, in equity or under any of the Loan Documents or, if the
Required Banks are unable to reach agreement, then, from and after an Event of
Default, the Administrative Agent may pursue such rights and remedies as it may
determine.
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SECTION 6.3. Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 6.1(c) and 6.1(d) promptly upon being
requested to do so by the Required Banks and shall thereupon notify all the
Banks thereof. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default (other than
nonpayment of principal of or interest on the Loans) unless Administrative Agent
has received notice in writing from a Bank or Borrower referring to this
Agreement or the other Loan Documents, describing such event or condition.
Should Administrative Agent receive notice of the occurrence of an Default or
Event of Default expressly stating that such notice is a notice of an Default or
Event of Default, or should Administrative Agent send Borrower a notice of
Default or Event of Default, Administrative Agent shall promptly give notice
thereof to each Bank.
SECTION 6.4. Actions in Respect of Letters of Credit. (a) If, at any
time and from time to time, any Letter of Credit shall have been issued
hereunder and an Event of Default shall have occurred and be continuing, then,
upon the occurrence and during the continuation thereof, the Administrative
Agent, after consultation with the Banks, may, and upon the demand of the
Required Banks shall, whether in addition to the taking by the Administrative
Agent of any of the actions described in this Article or otherwise, make a
demand upon the Borrower to, and forthwith upon such demand (but in any event
within ten (10) days after such demand) the Borrower shall, pay to the
Administrative Agent, on behalf of the Banks, in same day funds at the
Administrative Agent's office designated in such demand, for deposit in a
special cash collateral account (the "Letter of Credit Collateral Account") to
be maintained in the name of the Administrative Agent (on behalf of the Banks)
and under its sole dominion and control at such place as shall be designated by
the Administrative Agent, an amount equal to the amount of the Letter of Credit
Usage under the Letters of Credit. Interest shall accrue on the Letter of Credit
Collateral Account at a rate equal to the rate on overnight funds.
(b) The Borrower hereby pledges, assigns and grants to the
Administrative Agent, as administrative agent for its benefit and the ratable
benefit of the Banks a lien on and a security interest in, the following
collateral (the "Letter of Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash
deposited therein and all certificates and instruments, if any, from time to
time representing or evidencing the Letter of Credit Collateral Account;
(ii) all notes, certificates of deposit and other instruments
from time to time hereafter delivered to or otherwise possessed by the
Administrative Agent for or on behalf of the Borrower in substitution for or in
respect of any or all of the then existing Letter of Credit Collateral;
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(iii) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the then existing Letter of Credit
Collateral; and
(iv) to the extent not covered by the above clauses, all
proceeds of any or all of the foregoing Letter of Credit Collateral. The lien
and security interest granted hereby secures the payment of all obligations of
the Borrower now or hereafter existing hereunder and under any other Loan
Document.
(c) The Borrower hereby authorizes the Administrative Agent for
the ratable benefit of the Banks to apply, from time to time after funds are
deposited in the Letter of Credit Collateral Account, funds then held in the
Letter of Credit Collateral Account to the payment of any amounts, in such order
as the Administrative Agent may elect, as shall have become due and payable by
the Borrower to the Banks in respect of the Letters of Credit.
(d) Neither the Borrower nor any Person claiming or acting on
behalf of or through the Borrower shall have any right to withdraw any of the
funds held in the Letter of Credit Collateral Account, except as provided in
Section 6.4(h) hereof.
(e) The Borrower agrees that it will not (i) sell or otherwise
dispose of any interest in the Letter of Credit Collateral or (ii) create or
permit to exist any lien, security interest or other charge or encumbrance upon
or with respect to any of the Letter of Credit Collateral, except for the
security interest created by this Section 6.4.
(f) If any Event of Default shall have occurred and be continuing:
(i) The Administrative Agent may, in its sole discretion,
without notice to the Borrower except as required by law and at any time from
time to time, charge, set off or otherwise apply all or any part of first, (x)
amounts previously drawn on any Letter of Credit that have not been reimbursed
by the Borrower and (y) any Letter of Credit Usage described in clause (ii) of
the definition thereof that are then due and payable and second, any other
unpaid Obligations then due and payable against the Letter of Credit Collateral
Account or any part thereof, in such order as the Administrative Agent shall
elect. The rights of the Administrative Agent under this Section 6.4 are in
addition to any rights and remedies which any Bank may have.
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(ii) The Administrative Agent may also exercise, in its sole
discretion, in respect of the Letter of Credit Collateral Account, in addition
to the other rights and remedies provided herein or otherwise available to it,
all the rights and remedies of a secured party upon default under the Uniform
Commercial Code in effect in the State of New York at that time.
(g) The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Letter of Credit
Collateral if the Letter of Credit Collateral is accorded treatment
substantially equal to that which the Administrative Agent accords its own
property, it being understood that, assuming such treatment, the Administrative
Agent shall not have any responsibility or liability with respect thereto.
(h) At such time as all Events of Default have been cured or
waived in writing, all amounts remaining in the Letter of Credit Collateral
Account shall be promptly returned to the Borrower. Absent such cure or written
waiver, any surplus of the funds held in the Letter of Credit Collateral Account
and remaining after payment in full of all of the Obligations of the Borrower
hereunder and under any other Loan Document after the Maturity Date shall be
paid to the Borrower or to whomsoever may be lawfully entitled to receive such
surplus.
SECTION 6.5. Distribution of Proceeds after Default. Notwithstanding
anything contained herein to the contrary but subject to the provisions of
Section 9.16 hereof , from and after an Event of Default, to the extent proceeds
are received by Administrative Agent, such proceeds will be distributed to the
Banks pro rata in accordance with the unpaid principal amount of the Loans
(giving effect to any participations granted therein pursuant to Section 2.3 and
Section 9.4).
ARTICLE VII
THE AGENTS
SECTION 7.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
Except as set forth in Sections 7.8 and 7.9 hereof, the provisions of this
Article VII are solely for the benefit of Administrative Agent and the Banks,
and Borrower shall not have any rights to rely on or enforce any of the
provisions hereof. In performing its functions and duties under this Agreement,
Administrative Agent shall each act solely as an agent of the Banks and do not
assume and shall not be deemed to have
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assumed any obligation toward or relationship of agency or trust with or for the
Borrower.
SECTION 7.2. Agency and Affiliates. JPMorgan Chase Bank and Bank of
America, N.A. each has the same rights and powers under this Agreement as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Administrative Agent or Syndication Agent, as applicable, and
JPMorgan Chase Bank and Bank of America, N.A. and each of their affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower, General Partner or any Subsidiary or affiliate of
the Borrower as if they were not the Administrative Agent or Syndication Agent,
as applicable, hereunder, and the term "Bank" and "Banks" shall include each of
JPMorgan Chase Bank and Bank of America, N.A., each in its individual capacity.
SECTION 7.3. Action by Agents. The obligations of each of the Agents
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, each of the Agents shall not be required to take
any action with respect to any Default or Event of Default, except as expressly
provided in Article VI. The duties of each Agent shall be administrative in
nature. Subject to the provisions of Sections 7.1, 7.5 and 7.6, each Agent shall
administer the Loans in the same manner as each administers its own loans.
SECTION 7.4. Consultation with Experts. As between Administrative
Agent on the one hand and the Banks on the other hand, the Administrative Agent
may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 7.5. Liability of Agents. As between each Agent on the one
hand and the Banks on the other hand, none of the Agents nor any of their
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the
absence of its own gross negligence or willful misconduct. As between each Agent
on the one hand and the Banks on the other hand, none of the Agents nor any of
their respective directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of the Borrower; (iii) the satisfaction of any condition specified
in Article III, except receipt of items required to be delivered to such Agent,
or (iv) the validity, effectiveness or genuineness of this Agreement, the other
Loan Documents or any other instrument or writing furnished in connection
herewith. As between each Agent on the one hand and the Banks on
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the other hand, none of the Agents shall incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it to be
genuine or to be signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall, ratably in accordance
with its Commitment, indemnify the Agents and their affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including, without
limitation, counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from such indemnitee's gross negligence or
willful misconduct) that such indemnitee may suffer or incur in connection with
its duties as Agent under this Agreement, the other Loan Documents or any action
taken or omitted by such indemnitee hereunder. In the event that any Agent
shall, subsequent to its receipt of indemnification payment(s) from Banks in
accordance with this section, recoup any amount from the Borrower, or any other
party liable therefor in connection with such indemnification, such Agent shall
reimburse the Banks which previously made the payment(s) pro rata, based upon
the actual amounts which were theretofore paid by each Bank. Each Agent shall
reimburse such Banks so entitled to reimbursement within two (2) Business Days
of its receipt of such funds from the Borrower or such other party liable
therefor.
SECTION 7.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent, the
Syndication Agent or any other Bank, and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent, Syndication Agent or any other
Bank, 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
any action under this Agreement.
SECTION 7.8. Successor Agents. The Administrative Agent or the
Syndication Agent may resign at any time by giving notice thereof to the Banks,
the Borrower and each other and the Administrative Agent or the Syndication
Agent, as applicable, shall resign in the event its Commitment (without
participants) is reduced to less than Ten Million Dollars ($10,000,000) unless
as a result of a cancellation or reduction in the aggregate Commitments. Upon
any such resignation, the Majority Banks shall have the right to appoint a
successor Administrative Agent or Syndication Agent, as applicable, which
successor Administrative Agent or successor Syndication Agent (as applicable)
shall, provided no Event of Default has occurred and is then continuing, be
subject to Borrower's approval, which approval shall not be unreasonably
withheld or delayed. If no successor Administrative Agent or Syndication Agent
(as applicable) shall have been so appointed by the Majority
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Banks and approved by the Borrower, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent or Syndication Agent (as
applicable) gives notice of resignation, then the retiring Administrative Agent
or retiring Syndication Agent (as applicable) may, on behalf of the Banks,
appoint a successor Administrative Agent or Syndication Agent (as applicable),
which shall be the Administrative Agent, Documentation Agent or the Syndication
Agent as the case may be, who shall act until the Majority Banks shall appoint
an Administrative Agent or Syndication Agent. Any appointment of a successor
Administrative Agent or Syndication Agent by Majority Banks or the retiring
Administrative Agent or the Syndication Agent pursuant to the preceding sentence
shall, provided no Event of Default has occurred and is then continuing, be
subject to the Borrower's approval, which approval shall not be unreasonably
withheld or delayed. Upon the acceptance of its appointment as the
Administrative Agent or Syndication Agent hereunder by a successor
Administrative Agent or successor Syndication Agent, as applicable, such
successor Administrative Agent or successor Syndication Agent, as applicable,
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Administrative Agent or retiring Syndication Agent, as applicable,
and the retiring Administrative Agent or the retiring Syndication Agent, as
applicable, shall be discharged from its duties and obligations hereunder. The
rights and duties of the Administrative Agent to be vested in any successor
Administrative Agent shall include, without limitation, the rights and duties as
Swingline Lender. After any retiring Administrative Agent's or retiring
Syndication Agent's resignation hereunder, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was the Administrative Agent or the Syndication Agent, as applicable. For
gross negligence or willful misconduct, as determined by all the Banks
(excluding for such determination Administrative Agent or Syndication Agent in
its capacity as a Bank, as applicable), Administrative Agent or Syndication
Agent may be removed at any time by giving at least thirty (30) Business Days'
prior written notice to Administrative Agent or Syndication Agent and Borrower.
Such resignation or removal shall take effect upon the acceptance of appointment
by a successor Administrative Agent, Documentation Agent or Syndication Agent,
as applicable, in accordance with the provisions of this Section 7.8.
SECTION 7.9. Consents and Approvals. All communications from
Administrative Agent to the Banks requesting the Banks' determination, consent,
approval or disapproval (i) shall be given in the form of a written notice to
each Bank, (ii) shall be accompanied by a description of the matter or item as
to which such determination, approval, consent or disapproval is requested, or
shall advise each Bank where such matter or item may be inspected, or shall
otherwise describe the matter or issue to be resolved, (iii) shall include, if
reasonably requested by a Bank and to the extent not previously provided to such
Bank, written materials and a summary of all oral information provided to
Administrative Agent by Borrower in respect of the matter or issue to be
resolved, (iv) shall include Administrative Agent's recommended course of action
or determination in respect thereof ), and (v) shall
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include the following clause in capital letters, "FAILURE TO RESPOND TO THIS
NOTICE WITHIN THE BANK REPLY PERIOD SHALL BE DEEMED CONSENT TO THE
RECOMMENDATION SET FORTH HEREIN". Each Bank shall reply promptly, but in any
event within ten (10) Business Days after receipt of the request therefor from
Administrative Agent (the "Bank Reply Period"). Unless a Bank shall give written
notice to Administrative Agent that it objects to the recommendation or
determination of Administrative Agent (together with a written explanation of
the reasons behind such objection) within the Bank Reply Period, such Bank shall
be deemed to have approved of or consented to such recommendation or
determination. With respect to decisions requiring the approval of the Required
Banks, Majority Banks or all the Banks, Administrative Agent shall submit its
recommendation or determination for approval of or consent to such
recommendation or determination to all Banks and upon receiving the required
approval or consent (or deemed approval or consent, as the case may be) shall
follow the course of action or determination of the Required Banks, Majority
Banks or all the Banks (and each non-responding Bank shall be deemed to have
concurred with such recommended course of action), as the case may be.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Euro-Dollar Borrowing or Money Market IBOR Loan the Administrative Agent
determines in good faith that deposits in Dollars (in the applicable amounts)
are not being offered in the relevant market for such Interest Period, the
Administrative Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligations of
the Banks to make Euro-Dollar Loans shall be suspended. In such event (a) unless
the Borrower notifies the Administrative Agent on or before the second (2nd)
Euro-Dollar Business Day before, but excluding, the date of (i) any Euro-Dollar
Borrowing for Dollars for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall instead be made
as a Base Rate Borrowing, or (ii) any Money Market IBOR Borrowing for which a
Notice of Money Market Borrowing has previously been given, the Money Market
IBOR Loans comprising such Borrowing shall bear interest for each day from and
including the first day to but excluding the last day of the Interest Period
applicable thereto at the Base Rate for such day, and (b) any Notice of
Borrowing for a Euro-Dollar Borrowing denominated in an Alternate Currency shall
be ineffective.
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SECTION 8.2. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) made after the Closing Date of any such
authority, central bank or comparable agency shall make it unlawful for any Bank
(or its Euro-Dollar Lending Office) (x) to make, maintain or fund its
Euro-Dollar Loans, or (y) to participate in any Letter of Credit issued by the
Fronting Bank, or, with respect to the Fronting Bank, to issue a Letter of
Credit, the Administrative Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank notifies the Borrower
and the Administrative Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Bank in the case of the event
described in clause (x) above to make Euro-Dollar Loans, or in the case of the
event described in clause (y) above, to participate in any Letter of Credit
issued by the Fronting Bank or, with respect to the Fronting Bank, to issue any
Letter of Credit, shall be suspended. With respect to Euro-Dollar Loans, before
giving any notice to the Administrative Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine
that it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall be deemed to have delivered a Notice of Interest Rate Election and such
Euro-Dollar Loan shall be converted as of such date to a Base Rate Loan (without
payment of any amounts that Borrower would otherwise be obligated to pay
pursuant to Section 2.14 hereof with respect to Loans converted pursuant to this
Section 8.2) in an equal principal amount from such Bank (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Banks), and such Bank shall make such a Base Rate Loan.
If at any time, it shall be unlawful for any Bank to make, maintain
or fund its Euro-Dollar Loans, the Borrower shall have the right, upon five (5)
Business Day's notice to the Administrative Agent, to either (x) cause a bank,
reasonably acceptable to the Administrative Agent, to offer to purchase the
Commitments of such Bank for an amount equal to such Bank's outstanding Loans,
together with accrued and unpaid interest thereon, and to become a Bank
hereunder, or obtain the agreement of one or more existing Banks to offer to
purchase the Commitments of such Bank for such amount, which offer such Bank is
hereby required to accept, or (y) to repay in full all Loans then outstanding of
such Bank, together with interest due thereon and any and all fees due
hereunder, upon which event, such Bank's Commitments shall be deemed to be
canceled pursuant to Section 2.11(c).
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SECTION 8.3. Increased Cost and Reduced Return.
(a) If, on or after (x) the date hereof in the case of Committed
Loans made pursuant to Section 2.1, or (y) the date of the related Money Market
Quote (in each case, the "Loan Effective Date"), in the case of any Money Market
Loan, the adoption of any applicable law, rule or regulation, or any change in
any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) made at the Closing Date of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System (but excluding
with respect to any Euro-Dollar Loan any such requirement reflected in an
applicable Euro-Dollar Reserve Percentage)), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable Lending Office)
or shall impose on any Bank (or its Applicable Lending Office) or on the
interbank market any other condition materially more burdensome in nature,
extent or consequence than those in existence as of the Loan Effective Date
affecting such Bank's Euro-Dollar Loans, its Note, or its obligation to make
Euro-Dollar Loans, and the result of any of the foregoing is to increase the
cost to such Bank (or its Applicable Lending Office) of making or maintaining
any Euro-Dollar Loan, or to reduce the amount of any sum received or receivable
by such Bank (or its Applicable Lending Office) under this Agreement or under
its Note with respect to such Euro-Dollar Loans, by an amount deemed by such
Bank to be material, then, within 15 days after demand by such Bank (with a copy
to the Administrative Agent), the Borrower shall pay to such Bank such
additional amount or amounts (based upon a reasonable allocation thereof by such
Bank to the Euro-Dollar Loans made by such Bank hereunder) as will compensate
such Bank for such increased cost or reduction to the extent such Bank generally
imposes such additional amounts on other borrowers of such Bank in similar
circumstances.
(b) If any Bank shall have reasonably determined that, after the
date hereof, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) made after the Closing Date of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its Parent) as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank (or its Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its
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policies with respect to capital adequacy) by an amount reasonably deemed by
such Bank to be material, then from time to time, within 15 days after demand by
such Bank (with a copy to the Administrative Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank (or its
Parent) for such reduction to the extent such Bank generally imposes such
additional amounts on other borrowers of such Bank in similar circumstances.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall fail to notify Borrower of any
such event within ninety (90) days following the end of the month during which
such event occurred, then Borrower's liability for any amounts described in this
Section incurred by such Bank as a result of such event shall be limited to
those attributable to the period occurring subsequent to the ninetieth (90th)
day prior to, but excluding, the date upon which such Bank actually notified
Borrower of the occurrence of such event. A certificate of any Bank claiming
compensation under this Section and setting forth a reasonably detailed
calculation of the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of demonstrable error. In determining such amount,
such Bank may use any reasonable averaging and attribution methods.
(d) If at any time, any Bank shall be owed amounts pursuant to
this Section 8.3, the Borrower shall have the right, upon five (5) Business
Day's notice to the Administrative Agent to either (x) cause a bank, reasonably
acceptable to the Administrative Agent, to offer to purchase the Commitments of
such Bank for an amount equal to such Bank's outstanding Loans, and to become a
Bank hereunder, or to obtain the agreement of one or more existing Banks to
offer to purchase the Commitments of such Bank for such amount, which offer such
Bank is hereby required to accept, or (y) to repay in full all Loans then
outstanding of such Bank, together with interest and all other amounts due
thereon, upon which event, such Bank's Commitment shall be deemed to be canceled
pursuant to Section 2.11(c).
SECTION 8.4. Taxes.
(a) Any and all payments by the Borrower or any Qualified Borrower
to or for the account of any Bank or the Administrative Agent hereunder or under
any other Loan Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Bank and the Administrative Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such Bank or the Administrative Agent (as the case may be) is organized or any
political
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subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise or similar taxes imposed on it, by the jurisdiction of such Bank's
Applicable Lending Office or any political subdivision thereof or by any other
jurisdiction (or any political subdivision thereof) as a result of a present or
former connection between such Bank or Administrative Agent and such other
jurisdiction or by the United States (all such non-excluded taxes, duties,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Non-Excluded Taxes"). If the Borrower or any
Qualified Borrower shall be required by law to deduct any Non-Excluded Taxes
from or in respect of any sum payable hereunder or under any Note or Letter of
Credit, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including, without limitation, deductions applicable to
additional sums payable under this Section 8.4) such Bank, the Fronting Bank or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
or Qualified Borrower shall make such deductions, (iii) the Borrower or
Qualified Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower or Qualified Borrower shall furnish to the Administrative Agent, at its
address referred to in Section 9.1, the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, or charges or
similar levies which arise from any payment made hereunder or under any Note or
the Letter of Credit or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note or the Letter of Credit (hereinafter
referred to as "Other Taxes").
(c) In the event that Non-Excluded Taxes not imposed on the
Closing Date are imposed, or Non-Excluded Taxes imposed on the Closing Date
increase, the applicable Bank shall notify the Administrative Agent and the
Borrower of such event in writing within a reasonable period following receipt
of knowledge thereof. If such Bank shall fail to notify Borrower of any such
event within ninety (90) days following the end of the month during which such
event occurred, then Borrower's or Qualified Borrower's liability for such
additional Non-Excluded Taxes incurred by such Bank as a result of such event
(including payment of a make-whole amount under Section 8.4(a)(i)) shall be
limited to those attributable to the period occurring subsequent to the
ninetieth (90th) day prior to, but excluding, the date upon which such Bank
actually notified Borrower of the occurrence of such event.
(d) The Borrower agrees to indemnify each Bank, the Fronting Bank
and the Administrative Agent for the full amount of Non-Excluded Taxes or Other
Taxes (including, without limitation, any Non-Excluded Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
8.4)
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paid by such Bank, the Fronting Bank or the Administrative Agent (as the case
may be) and, so long as such Bank, the Fronting Bank or Administrative Agent has
promptly paid any such Non-Excluded Taxes or Other Taxes, any liability for
penalties and interest arising therefrom or with respect thereto. This
indemnification shall be made within 15 days from the date such Bank, the
Fronting Bank or the Administrative Agent (as the case may be) makes demand
therefor.
(e) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
shall provide the Borrower with (A) two duly completed copies of Internal
Revenue Service form 1001 or any successor form prescribed by the Internal
Revenue Service, and (B) an Internal Revenue Service Form W-8BEN or W-8ECI, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
and shall provide Borrower with 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 Borrower, certifying (i) in
the case of a Form 1001, that such Bank is entitled to benefits under an income
tax treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States, and (ii) in the case of a Form W-8BEN or
W-8ECI, that it is entitled to an exemption from United States backup
withholding tax. If the form provided by a Bank at the time such Bank first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from "Non-Excluded Taxes" as defined in Section 8.4(a).
(f) Upon reasonable demand by Borrower or any Qualified Borrower
to the Administrative Agent or any Bank, the Administrative Agent or Bank, as
the case may be, shall deliver to the Borrower or Qualified Borrower, or to such
government or taxing authority as the Borrower or Qualified Borrower may
reasonably direct, any form or document that may be required or reasonably
requested in writing in order to allow the Borrower or Qualified Borrower to
make a payment to or for the account of such Bank or the Administrative Agent
hereunder or under any other Loan Document without any deduction or withholding
for or on account of any Non-Excluded Taxes or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the legal or
commercial position of the party in receipt of such demand), with any such form
or document to be accurate and completed in a manner reasonably satisfactory to
the Borrower or Qualified Borrower making such demand and to be executed and to
be delivered with any reasonably required certification.
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(g) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section 8.4(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 8.4(c) with
respect to Non-Excluded Taxes imposed by the United States; provided, however,
that should a Bank, which is otherwise exempt from or subject to a reduced rate
of withholding tax, become subject to Non-Excluded Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes so long
as Borrower shall incur no cost or liability as a result thereof.
(h) If the Borrower is required to pay additional amounts to or
for the account of any Bank pursuant to this Section 8.4, then such Bank will
change the jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such change,
in the judgment of such Bank, is not otherwise disadvantageous to such Bank.
(i) If at any time, any Bank shall be owed amounts pursuant to
this Section 8.4, the Borrower shall have the right, upon five (5) Business
Day's notice to the Administrative Agent to either (x) cause a bank, reasonably
acceptable to the Administrative Agent, to offer to purchase the Commitments of
such Bank for an amount equal to such Bank's outstanding Loans, and to become a
Bank hereunder, or to obtain the agreement of one or more existing Banks to
offer to purchase the Commitments of such Bank for such amount, which offer such
Bank is hereby required to accept, or (y) to repay in full all Loans then
outstanding of such Bank, together with interest and all other amounts due
thereon, upon which event, such Bank's Commitment shall be deemed to be canceled
pursuant to Section 2.11(c).
SECTION 8.5. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans has been
suspended pursuant to Section 8.2 or (ii) any Bank has demanded compensation
under Section 8.3 or 8.4 with respect to its Euro-Dollar Loans and the Borrower
shall, by at least five Business Days' prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Borrower that
the circumstances giving rise to such suspension or demand for compensation no
longer exist:
(a) Borrower shall be deemed to have delivered a Notice of
Interest Rate Election with respect to such affected Euro-Dollar Loans and
thereafter all Loans which would otherwise be made by such Bank to the Borrower
as Dollar-denominated Euro-Dollar Loans shall be made instead as Base Rate
Loans, and no
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Borrowing from such Bank would take effect with respect to Loans denominated in
an Alternate Currency; and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead, and
(c) Borrower will not be required to make any payment which would
otherwise be required by Section 2.14 with respect to such Euro-Dollar Loans
converted to Base Rate Loans pursuant to clause (a) above.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile transmission followed by telephonic confirmation or similar writing)
and shall be given to such party: (x) in the case of the Borrower, any Qualified
Borrower, the Administrative Agent (JPMorgan Chase Bank) or the Administrative
Agent (J.P. Morgan Europe Limited), at its address, telex number or facsimile
number set forth on Exhibit F attached hereto with a duplicate copy thereof, in
the case of the Borrower, to the Borrower, at its address set forth on the
signature page hereof, Attn: General Counsel, (y) in the case of any Bank, at
its address, telex number or facsimile number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address, telex number
or facsimile number as such party may hereafter specify for the purpose by
notice to the Administrative Agent and the Borrower. Each such notice, request
or other communication shall be effective (i) if given by telex or facsimile
transmission, when such telex or facsimile is transmitted to the telex number or
facsimile number specified in this Section and the appropriate answerback or
facsimile confirmation is received, (ii) if given by certified registered mail,
return receipt requested, with first class postage prepaid, addressed as
aforesaid, upon receipt or refusal to accept delivery, (iii) if given by a
nationally recognized overnight carrier, 24 hours after such communication is
deposited with such carrier with postage prepaid for next day delivery, or (iv)
if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Administrative
Agent or any Bank in exercising any right, power or privilege hereunder or under
any Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
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of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses; Indemnification.
(a) The Borrower shall pay within thirty (30) days after written
notice from the Administrative Agent, (i) all reasonable out-of-pocket costs and
expenses of the Administrative Agent (including, without limitation, reasonable
fees and disbursements of special counsel Skadden, Arps, Slate, Meagher & Flom
LLP ), in connection with the preparation of this Agreement, the Loan Documents
and the documents and instruments referred to therein, and any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder,
(ii) all reasonable fees and disbursements of special counsel in connection with
the syndication of the Loans, and (iii) if an Event of Default occurs, all
reasonable out-of-pocket expenses incurred by the Administrative Agent and each
Bank, including, without limitation, fees and disbursements of counsel for the
Administrative Agent and each of the Banks, in connection with the enforcement
of the Loan Documents and the instruments referred to therein and such Event of
Default and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom; provided, however, that the attorneys' fees and
disbursements for which Borrower is obligated under this subsection (a)(iii)
shall be limited to the reasonable non-duplicative fees and disbursements of (A)
counsel for Administrative Agent and (B) counsel for all of the Banks as a
group; and provided, further, that all other costs and expenses for which
Borrower is obligated under this subsection (a)(iii) shall be limited to the
reasonable non-duplicative costs and expenses of Administrative Agent. For
purposes of this Section 9.3(a)(iii), (1) counsel for Administrative Agent shall
mean a single outside law firm representing Administrative Agent and (2) counsel
for all of the Banks as a group shall mean a single outside law firm
representing such Banks as a group (which law firm may or may not be the same
law firm representing the Administrative Agent).
(b) The Borrower agrees to indemnify the Administrative Agent and
each Bank, their respective affiliates and the respective directors, officers,
agents and employees of the foregoing (each an "Indemnitee") and hold each
Indemnitee harmless from and against any and all liabilities, losses, damages,
costs and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding that
may at any time (including, without limitation, at any time following the
payment of the Obligations) be asserted against any Indemnitee, as a result of,
or arising out of, or in any way related to or by reason of, (i) any of the
transactions contemplated by the Loan Documents or the execution, delivery or
performance of any Loan Document, (ii) any violation by the Borrower or the
Environmental Affiliates of any applicable Environmental Law, (iii) any
Environmental Claim arising out of the management, use, control, ownership or
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operation of property or assets by the Borrower or any of the Environmental
Affiliates, including, without limitation, all on-site and off-site activities
of Borrower or any Environmental Affiliate involving Materials of Environmental
Concern, (iv) the breach of any environmental representation or warranty set
forth herein, but excluding those liabilities, losses, damages, costs and
expenses (a) for which such Indemnitee has been compensated pursuant to the
terms of this Agreement, (b) incurred solely by reason of the gross negligence,
willful misconduct bad faith or fraud of any Indemnitee as finally determined by
a court of competent jurisdiction, (c) arising from violations of Environmental
Laws relating to a Property which are caused by the act or omission of such
Indemnitee after such Indemnitee takes possession of such Property or (d) owing
by such Indemnitee to any third party based upon contractual obligations of such
Indemnitee owing to such third party which are not expressly set forth in the
Loan Documents. In addition, the indemnification set forth in this Section
9.3(b) in favor of any director, officer, agent or employee of Administrative
Agent or any Bank shall be solely in their respective capacities as such
director, officer, agent or employee. The Borrower's obligations under this
Section shall survive the termination of this Agreement and the payment of the
Obligations. Without limitation of the other provisions of this Section 9.3,
Borrower shall indemnify and hold each of the Administrative Agent and the Banks
free and harmless from and against all loss, costs (including reasonable
attorneys' fees and expenses), expenses, taxes, and damages (including
consequential damages) that the Administrative Agent and the Banks may suffer or
incur by reason of the investigation, defense and settlement of claims and in
obtaining any prohibited transaction exemption under ERISA or the Code necessary
in the Administrative Agent's reasonable judgment by reason of the inaccuracy of
the representations and warranties, or a breach of the provisions, set forth in
Section 4.6(b).
SECTION 9.4. Sharing of Set-Offs. 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 and during the continuance of
any Event of Default, each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
but subject to the prior consent of the Administrative Agent, which consent
shall not be unreasonably withheld, to set off and to appropriate and apply any
and all deposits (general or special, time or demand, provisional or final) and
any other indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of the Borrower or any Qualified Borrower
against and on account of the Obligations of the Borrower or any Qualified
Borrower then due and payable to such Bank under this Agreement or under any of
the other Loan Documents, including, without limitation, all interests in
Obligations purchased by such Bank. Each Bank agrees that if it shall by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it
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or Letter of Credit participated in by it or, in the case of the Fronting Bank,
Letter of Credit issued by it, which is greater than the proportion received by
any other Bank or Letter of Credit issued or participated in by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks or Letter of Credit issued
or participated in by such other Bank shall be shared by the Banks pro rata;
provided that nothing in this Section shall impair the right of any Bank to
exercise any right of set-off or counterclaim it may have to any deposits not
received in connection with the Loans and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower or Qualified Borrower
other than its indebtedness under the Notes or the Letters of Credit. The
Borrower, for itself and on behalf of any Qualified Borrower, agrees, to the
fullest extent it may effectively do so under applicable law, that any holder of
a participation in a Note or a Letter of Credit, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Borrower or the
applicable Qualified Borrower in the amount of such participation.
Notwithstanding anything to the contrary contained herein, any Bank may, by
separate agreement with the Borrower or a Qualified Borrower, waive its right to
set off contained herein or granted by law and any such written waiver shall be
effective against such Bank under this Section 9.4.
SECTION 9.5. Amendments and Waivers. Any provision of this Agreement
or the Notes or the Letters of Credit or other Loan Documents may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Borrower and the Majority Banks (and, if the rights or duties of the
Administrative Agent, the Syndication Agent or the Swingline Lender in their
capacity as Administrative Agent, Syndication Agent or the Swingline Lender, as
applicable, are affected thereby, by the Administrative Agent, the Syndication
Agent or the Swingline Lender, as applicable); provided that (A) no amendment or
waiver of the provisions of, or waiver of a default under, Article V (including,
without limitation, any of the definitions of the defined terms used in Article
V or any change in the notice and cure periods, if any, described in Section 6.1
and applicable to defaults under Article V), other than the provisions of
Section 5.8(h) requiring Majority Bank consent, shall be effective unless signed
(or otherwise consented to) by the Borrower and the Required Banks and (B) no
amendment or waiver with respect to this Agreement, the Notes, the Letters of
Credit or any other Loan Documents shall, unless signed by all the Banks, (i)
increase or decrease the Commitment of any Bank (except for a ratable decrease
in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, (iv) change the percentage of the
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Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this Agreement, (v)
release the Guaranty or any Qualified Borrower Guaranty or (vi) modify the
provisions of this Section 9.5, and (C) no amendment or waiver of the provisions
of Section 2.13(a) (as it relates to the Borrower's payment of Loans and fees
hereunder by not later than 12:00 P.M. (New York City time) on the date when
due) shall be binding upon a Designating Lender as to any Money Market Loans
then outstanding unless signed by such Designating Lender.
SECTION 9.6. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement or the other Loan Documents without the prior
written consent of all Banks and the Administrative Agent and a Bank may not
assign or otherwise transfer any of its interest under this Agreement except as
permitted in subsection (b) and (c) of this Section 9.6.
(b) Prior to the occurrence of an Event of Default, any Bank may
at any time, grant to an existing Bank, one or more banks, finance companies,
insurance companies or other financial institutions (a "Participant") in minimum
amounts of not less than $5,000,000 (or any lesser amount in the case of
participations to an existing Bank) participating interests in its Commitment or
any or all of its Loans. After the occurrence and during the continuance of an
Event of Default, any Bank may at any time grant to any Person in any amount
(also a "Participant"), participating interests in its Commitment or any or all
of its Loans. Any participation made during the continuation of an Event of
Default shall not be affected by the subsequent cure of such Event of Default.
In the event of any such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower and the Administrative
Agent, such Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement pursuant to which any Bank may
grant such a participating interest shall provide that such Bank shall retain
the sole right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in clause (i),
(ii), (iii), (iv) or (v) of Section 9.5 without the consent of the Participant.
The Borrower agrees that each Participant shall, to the extent provided in its
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participation agreement, be entitled to the benefits of Article VIII with
respect to its participating interest.
(c) Any Bank may at any time assign to a Qualified Institution (in
each case, an "Assignee") (i) prior to the occurrence of an Event of Default, in
minimum amounts of not less than Five Million Dollars ($5,000,000) and integral
multiple of One Million Dollars ($1,000,000) thereafter (or any lesser amount in
the case of assignments to an existing Bank) and (ii) after the occurrence and
during the continuance of an Event of Default, in any amount, all or a
proportionate part of all, of its rights and obligations under this Agreement,
the Notes and the other Loan Documents, and, in either case, such Assignee shall
assume such rights and obligations, pursuant to a Transfer Supplement in
substantially the form of Exhibit "E" hereto executed by such Assignee and such
transferor Bank; provided, that such assignment shall be subject to the
Administrative Agent's and the Fronting Bank's consent and, provided that no
Event of Default shall have occurred and be continuing, the Borrower's consent,
which consents shall not be unreasonably withheld or delayed; and provided
further that if an Assignee is an affiliate of such transferor Bank or was a
Bank immediately prior to such assignment, no such consent of Borrower shall be
required; and provided further that such assignment may, but need not, include
rights of the transferor Bank in respect of outstanding Money Market Loans. Upon
execution and delivery of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and no further consent
or action by any party shall be required and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Bank, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment (other than an assignment by a Bank to an
affiliate), the transferor Bank shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $3,500. If
the Assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Borrower and the Administrative
Agent certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.4. Any assignment made
during the continuation of an Event of Default shall not be affected by any
subsequent cure of such Event of Default.
(d) Any Bank (each, a "Designating Lender") may at any time
designate one Designated Lender to fund Money Market Loans on behalf of such
Designating Lender subject to the terms of this Section 9.6(d) and the
provisions in Section 9.6(b) and (c) shall not apply to such designation. No
Bank may designate more than one (1) Designated Lender at any one time. The
parties to each such
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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 Lender, the Administrative Agent will
accept such Designation Agreement and will give prompt notice thereof to the
Borrower, whereupon, (i) the Borrower shall execute and deliver to the
Designating Lender a Designated Lender Note payable to the order of the
Designated Lender, (ii) from and after the effective date specified in the
Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right (subject to the provisions of Section 2.4) to make Money
Market Loans on behalf of its Designating Lender pursuant to the Designation
Agreement after the Borrower has accepted a Money Market Loan (or portion
thereof) of the Designating Lender, and (iii) the Designated Lender shall not be
required to make payments with respect to any obligations in this Agreement
except to the extent of excess cash flow of such Designated Lender which is not
otherwise required to repay obligations of such Designated Lender which are then
due and payable; provided, however, that regardless of such designation and
assumption by the Designated Lender, the Designating Lender shall be and remain
obligated to the Borrower, the Administrative Agent and the Banks for each and
every of the obligations of the Designating Lender and its related Designated
Lender with respect to this Agreement, including, without limitation, any
indemnification obligations under Section 7.6 hereof and any sums otherwise
payable to the Borrower by the Designated Lender. Each Designating Lender shall
serve as the administrative agent of the Designated Lender and shall on behalf
of, and to the exclusion of, the Designated Lender: (i) receive any and all
payments made for the benefit of the Designated Lender 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 Agreement and the other Loan Documents. Any such notice,
communication, vote, approval, waiver, consent or amendment shall be signed by
the Designating Lender as administrative agent for the Designated Lender and
shall not be signed by the Designated Lender on its own behalf and shall be
binding upon the Designated Lender to the same extent as if signed by the
Designated Lender on its own behalf. The Borrower, the Administrative Agent and
the Banks may rely thereon without any requirement that the Designated Lender
sign or acknowledge the same. No Designated Lender may assign or transfer all or
any portion of its interest hereunder or under any other Loan Document, other
than assignments to the Designating Lender which originally designated such
Designated Lender or otherwise in accordance with the provisions of Section 9.6
(b) and (c).
(e) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note and the Letter(s) of Credit
participated in by such Bank or, in the case of the Fronting Bank, issued by it,
to a Federal Reserve Bank. No such assignment shall release the transferor Bank
from its obligations hereunder.
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(f) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.3 or 8.4
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.2, 8.3 or 8.4 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(g) No Assignee of any rights and obligations under this Agreement
shall be permitted to further assign less than all of such rights and
obligations. No participant in any rights and obligations under this Agreement
shall be permitted to sell subparticipations of such rights and obligations.
(h) Anything in this Agreement to the contrary notwithstanding, so
long as no Event of Default shall have occurred and be continuing, no Bank shall
be permitted to enter into an assignment of, or sell a participation interest
in, its rights and obligations hereunder which would result in such Bank holding
a Commitment without participants of less than Five Million Dollars ($5,000,000)
(or in the case of each of the Administrative Agent or the Syndication Agent,
Ten Million Dollars ($10,000,000)) unless as a result of a cancellation or
reduction of the aggregate Commitments; provided, however, that no Bank shall be
prohibited from assigning its entire Commitment so long as such assignment is
otherwise permitted under this Section 9.6.
SECTION 9.7. Collateral. Each of the Banks represents to the
Administrative Agent and each of the other Banks that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U) as collateral in
the extension or maintenance of the credit provided for in this Agreement.
SECTION 9.8. Governing Law; Submission to Jurisdiction; Judgment
Currency. (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
(b) Any legal action or proceeding with respect to this Agreement
or any other Loan Document and any action for enforcement of any judgment in
respect thereof may be brought in the courts of the State of New York or of the
United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby accepts for itself
and in respect of its property and each Qualified Borrower, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
appellate courts from any thereof.
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The Borrower irrevocably consents, for itself and each Qualified Borrower, to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the hand delivery, or mailing of copies thereof by
registered or certified mail, postage prepaid, to the Borrower or Qualified
Borrower at its address set forth below. The Borrower hereby, for itself and
each Qualified Borrower, 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 Agreement or any other
Loan Document brought in the courts referred to above 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. Nothing herein shall affect the right of the Administrative
Agent to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower or a Qualified Borrower in
any other jurisdiction.
(c) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so
under applicable law, that the rate of exchange used shall be the spot rate at
which in accordance with normal banking procedures the first currency could be
purchased in New York City with such other currency by the person obtaining such
judgment on the Business Day preceding that on which final judgment is given.
(d) The parties agree, to the fullest extent that they may
effectively do so under applicable law, that the obligations of the Borrower or
any Qualified Borrower to make payments in any currency of the principal of and
interest on the Loans of the Borrower and any Qualified Borrower and any other
amounts due from the Borrower or any Qualified Borrower hereunder to the
Administrative Agent as provided herein (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with Section 9.8(c)), in any currency other than the relevant
currency, except to the extent that such tender or recovery shall result in the
actual receipt by the Administrative Agent at its relevant office on behalf of
the Banks of the full amount of the relevant currency expressed to be payable in
respect of the principal of and interest on the Loans and all other amounts due
hereunder (it being assumed for purposes of this clause (i) that the
Administrative Agent will convert any amount tendered or recovered into the
relevant currency on the date of such tender or recovery), (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the relevant currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the relevant currency so
expressed to be payable and (iii) shall not be affected by an unrelated judgment
being obtained for any other sum due under this Agreement.
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SECTION 9.9. Counterparts; Integration; Effectiveness. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Agreement constitutes the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective upon receipt by the Administrative
Agent and the Borrower of counterparts hereof signed by each of the parties
hereto (or, in the case of any party as to which an executed counterpart shall
not have been received, receipt by the Administrative Agent in form satisfactory
to it of telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE SYNDICATION AGENT AND THE BANKS HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.11. Survival. All indemnities set forth herein shall
survive the execution and delivery of this Agreement and the other Loan
Documents and the making and repayment of the Loans hereunder.
SECTION 9.12. Domicile of Loans. Each Bank may transfer and carry
its Loans at, to or for the account of any domestic or foreign branch office,
subsidiary or affiliate of such Bank.
SECTION 9.13. Limitation of Liability. No claim may be made by the
Borrower or any other Person acting by or through Borrower against the
Administrative Agent, the Syndication Agent or any Bank or the affiliates,
directors, officers, employees, attorneys or agent of any of them for any
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
by this Agreement or by the other Loan Documents, or any act, omission or event
occurring in connection therewith; and the Borrower hereby, for itself and each
Qualified Borrower, waives, releases and agrees not to sue upon any claim for
any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
SECTION 9.14. Recourse Obligation. This Agreement and the
Obligations hereunder are fully recourse to the Borrower. Notwithstanding the
foregoing, no recourse under or upon any obligation, covenant, or agreement
contained in this Agreement shall be had against (i) any officer, director,
shareholder or employee of the Borrower or General Partner or (ii) any general
partner of
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Borrower other than General Partner, in each case except in the event of fraud
or misappropriation of funds on the part of such officer, director, shareholder
or employee or such general partner.
SECTION 9.15. Confidentiality. The Administrative Agent, the
Syndication Agent, the Joint Lead Arrangers and Joint Bookrunners and each Bank
shall use reasonable efforts to assure that information about Borrower, General
Partner and its Subsidiaries and Investment Affiliates, and the Properties
thereof and their operations, affairs and financial condition, not generally
disclosed to the public, which is furnished to Administrative Agent, the
Syndication Agent, the Joint Lead Arrangers and Joint Bookrunners or any Bank
pursuant to the provisions hereof or any other Loan Document is used only for
the purposes of this Agreement and shall not be divulged to any Person other
than the Administrative Agent, the Banks, and their affiliates and respective
officers, directors, employees and agents who are actively and directly
participating in the evaluation, administration or enforcement of the Loan and
other transactions between such Bank and the Borrower, except: (a) to their
attorneys and accountants, (b) in connection with the enforcement of the rights
and exercise of any remedies of the Administrative Agent and the Banks hereunder
and under the other Loan Documents, (c) in connection with assignments and
participations and the solicitation of prospective assignees and participants
referred to in Section 9.6 hereof, who have agreed in writing to be bound by a
confidentiality agreement substantially equivalent to the terms of this Section
9.15, and (d) as may otherwise be required or requested by any regulatory
authority having jurisdiction over the Administrative Agent or any Bank or by
any applicable law, rule, regulation or judicial process (but only to the extent
not in violation, conflict or inconsistent with the applicable regulatory
requirement, request, summons or subpoena); provided, however, that in the event
a Bank receives a summons or subpoena to disclose confidential information to
any party, such Bank shall, if legally permitted, endeavor to notify Borrower
thereof as soon as possible after receipt of such request, summons or subpoena
and Borrower shall be afforded an opportunity to seek protective orders, or such
other confidential treatment of such disclosed information, as Borrower and
Administrative Agent may deem reasonable.
SECTION 9.16. Bank's Failure to Fund.
(a) If a Bank does not advance to Administrative Agent such Bank's
Pro Rata Share of a Loan in accordance herewith, then neither Administrative
Agent nor the other Banks shall be required or obligated to fund such Bank's Pro
Rata Share of such Loan.
(b) As used herein, the following terms shall have the meanings
set forth below:
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(i) "Defaulting Bank" shall mean any Bank which (x) does not
advance to the Administrative Agent such Bank's Pro Rata Share of a Loan in
accordance herewith for a period of five (5) Business Days after notice of such
failure from Administrative Agent, (y) shall otherwise fail to perform such
Bank's obligations under the Loan Documents (including, without limitation, the
obligation to purchase participations pursuant to Section 2.3) for a period of
five (5) Business Days after notice of such failure from Administrative Agent,
or (z) shall fail to pay the Administrative Agent or any other Bank, as the case
may be, upon demand, such Bank's Pro Rata Share of any costs, expenses or
disbursements incurred or made by the Administrative Agent pursuant to the terms
of the Loan Documents for a period of five (5) Business Days after notice of
such failure from Administrative Agent, and in all cases, such failure is not as
a result of a good faith dispute as to whether such advance is properly required
to be made pursuant to the provisions of this Agreement, or as to whether such
other performance or payment is properly required pursuant to the provisions of
this Agreement.
(ii) "Junior Creditor" means any Defaulting Bank which has
not (x) fully cured each and every default on its part under the Loan Documents
and (y) unconditionally tendered to the Administrative Agent such Defaulting
Bank's Pro Rata Share of all costs, expenses and disbursements required to be
paid or reimbursed pursuant to the terms of the Loan Documents.
(iii) "Payment in Full" means, as of any date, the receipt by
the Banks who are not Junior Creditors of an amount of cash, in lawful currency
of the United States, sufficient to indefeasibly pay in full all Senior Debt.
(iv) "Senior Debt" means (x) collectively, any and all
indebtedness, obligations and liabilities of the Borrower to the Banks who are
not Junior Creditors from time to time, whether fixed or contingent, direct or
indirect, joint or several, due or not due, liquidated or unliquidated,
determined or undetermined, arising by contract, operation of law or otherwise,
whether on open account or evidenced by one or more instruments, and whether for
principal, premium, interest (including, without limitation, interest accruing
after the filing of a petition initiating any proceeding referred to in Section
6.1(f) or (g)), reimbursement for fees, indemnities, costs, expenses or
otherwise, which arise under, in connection with or in respect of the Loans or
the Loan Documents, and (y) any and all deferrals, renewals, extensions and
refundings of, or amendments, restatements, rearrangements, modifications or
supplements to, any such indebtedness, obligation or liability.
(v) "Subordinated Debt" means (x) any and all indebtedness,
obligations and liabilities of Borrower to one or more Junior Creditors from
time to time, whether fixed or contingent, direct or indirect, joint or several,
due or not due, liquidated or unliquidated, determined or undetermined, arising
by
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contract, operation of law or otherwise, whether on open account or evidenced by
one or more instruments, and whether for principal, premium, interest
(including, without limitation, interest accruing after the filing of a petition
initiating any proceeding referred to in Section 6.1(f) or (g)), reimbursement
for fees, indemnities, costs, expenses or otherwise, which arise under, in
connection with or in respect of the Loans or the Loan Documents, and (y) any
and all deferrals, renewals, extensions and refundings of, or amendments,
restatements, rearrangements, modifications or supplements to, any such
indebtedness, obligation or liability.
(c) Immediately upon a Bank's becoming a Junior Creditor and until
such time as such Bank shall have cured all applicable defaults, no Junior
Creditor shall, prior to Payment in Full of all Senior Debt:
(i) accelerate, demand payment of, sue upon, collect, or
receive any payment upon, in any manner, or satisfy or otherwise discharge, any
Subordinated Debt, whether for principal, interest and otherwise;
(ii) take or enforce any Liens to secure Subordinated Debt or
attach or levy upon any assets of Borrower, to enforce any Subordinated Debt;
(iii) enforce or apply any security for any Subordinated Debt;
or
(iv) incur any debt or liability, or the like, to, or receive
any loan, return of capital, advance, gift or any other property, from, the
Borrower.
(d) In the event of:
(i) any insolvency, bankruptcy, receivership, liquidation,
dissolution, reorganization, readjustment, composition or other similar
proceeding relating to Borrower;
(ii) any liquidation, dissolution or other winding-up of the
Borrower, voluntary or involuntary, whether or not involving insolvency,
reorganization or bankruptcy proceedings;
(iii) any assignment by the Borrower for the benefit of
creditors;
(iv) any sale or other transfer of all or substantially all
assets of the Borrower; or
(v) any other marshaling of the assets of the Borrower;
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each of the Banks shall first have received Payment in Full of all Senior Debt
before any payment or distribution, whether in cash, securities or other
property, shall be made in respect of or upon any Subordinated Debt. Any payment
or distribution, whether in cash, securities or other property that would
otherwise be payable or deliverable in respect of Subordinated Debt to any
Junior Creditor but for this Agreement shall be paid or delivered directly to
the Administrative Agent for distribution to the Banks in accordance with this
Agreement until Payment in Full of all Senior Debt. If any Junior Creditor
receives any such payment or distribution, it shall promptly pay over or deliver
the same to the Administrative Agent for application in accordance with the
preceding sentence.
(e) Each Junior Creditor shall file in any bankruptcy or other
proceeding of Borrower in which the filing of claims is required by law, all
claims relating to Subordinated Debt that such Junior Creditor may have against
Borrower and assign to the Banks who are not Junior Creditors all rights of such
Junior Creditor thereunder. If such Junior Creditor does not file any such claim
prior to forty-five (45) days before the expiration of the time to file such
claim, Administrative Agent, as attorney-in-fact for such Junior Creditor, is
hereby irrevocably authorized to do so in the name of such Junior Creditor or,
in Administrative Agent's sole discretion, to assign the claim to a nominee and
to cause proof of claim to be filed in the name of such nominee. The foregoing
power of attorney is coupled with an interest and cannot be revoked. The
Administrative Agent shall, to the exclusion of each Junior Creditor, have the
sole right, subject to Section 9.5 hereof, to accept or reject any plan proposed
in any such proceeding and to take any other action that a party filing a claim
is entitled to take. In all such cases, whether in administration, bankruptcy or
otherwise, the Person or Persons authorized to pay such claim shall pay to
Administrative Agent the amount payable on such claim and, to the full extent
necessary for that purpose, each Junior Creditor hereby transfers and assigns to
the Administrative Agent all of the Junior Creditor's rights to any such
payments or distributions to which Junior Creditor would otherwise be entitled.
(f) (i) If any payment or distribution of any character or any
security, whether in cash, securities or other property, shall be received by
any Junior Creditor in contravention of any of the terms hereof, such payment or
distribution or security shall be received in trust for the benefit of, and
shall promptly be paid over or delivered and transferred to, Administrative
Agent for application to the payment of all Senior Debt, to the extent necessary
to achieve Payment in Full. In the event of the failure of any Junior Creditor
to endorse or assign any such payment, distribution or security, Administrative
Agent is hereby irrevocably authorized to endorse or assign the same as
attorney-in-fact for such Junior Creditor.
(ii) Each Junior Creditor shall take such action (including,
without limitation, the execution and filing of a financing statement with
respect to
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this Agreement and the execution, verification, delivery and filing of proofs of
claim, consents, assignments or other instructions that Administrative Agent may
require from time to time in order to prove or realize upon any rights or claims
pertaining to Subordinated Debt or to effectuate the full benefit of the
subordination contained herein) as may, in Administrative Agent's sole and
absolute discretion, be necessary or desirable to assure the effectiveness of
the subordination effected by this Agreement.
(g) (i) Each Bank that becomes a Junior Creditor understands and
acknowledges by its execution hereof that each other Bank is entering into this
Agreement and the Loan Documents in reliance upon the absolute subordination in
right of payment and in time of payment of Subordinated Debt to Senior Debt as
set forth herein.
(ii) Only upon the Payment in Full of all Senior Debt shall
any Junior Creditor be subrogated to any remaining rights of the Banks which are
not Defaulting Banks to receive payments or distributions of assets of the
Borrower made on or applicable to any Senior Debt.
(iii) Each Junior Creditor agrees that it will deliver all
instruments or other writings evidencing any Subordinated Debt held by it to
Administrative Agent, promptly after request therefor by the Administrative
Agent.
(iv) No Junior Creditor may at any time sell, assign or
otherwise transfer any Subordinated Debt, or any portion thereof, including,
without limitation, the granting of any Lien thereon, unless and until
satisfaction of the requirements of Section 9.6 above and the proposed
transferee shall have assumed in writing the obligation of the Junior Creditor
to the Banks under this Agreement, in a form acceptable to the Administrative
Agent.
(v) If any of the Senior Debt, should be invalidated,
avoided or set aside, the subordination provided for herein nevertheless shall
continue in full force and effect and, as between the Banks which are not
Defaulting Banks and all Junior Creditors, shall be and be deemed to remain in
full force and effect.
(vi) Each Junior Creditor hereby irrevocably waives, in
respect of Subordinated Debt, all rights (x) under Sections 361 through 365,
502(e) and 509 of the Bankruptcy Code (or any similar sections hereafter in
effect under any other Federal or state laws or legal or equitable principles
relating to bankruptcy, insolvency, reorganizations, liquidations or otherwise
for the relief of debtors or protection of creditors), and (y) to seek or obtain
conversion to a different type of proceeding or to seek or obtain dismissal of a
proceeding, in each case in relation to a bankruptcy, reorganization, insolvency
or other proceeding under similar laws with
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respect to the Borrower. Without limiting the generality of the foregoing, each
Junior Creditor hereby specifically waives (A) the right to seek to give credit
(secured or otherwise) to the Borrower in any way under Section 364 of the
Bankruptcy Code unless the same is subordinated in all respects to Senior Debt
in a manner acceptable to Administrative Agent in its sole and absolute
discretion and (B) the right to receive any collateral security (including,
without limitation, any "super priority" or equal or "priming" or replacement
Lien) for any Subordinated Debt unless the Banks which are not Defaulting Banks
have received a senior position acceptable to the Banks in their sole and
absolute discretion to secure all Senior Debt (in the same collateral to the
extent collateral is involved).
(h) (i) In addition to and not in limitation of the
subordination effected by this Section 9.16, the Administrative Agent and each
of the Banks which are not Defaulting Banks may in their respective sole and
absolute discretion, also exercise any and all other rights and remedies
available at law or in equity in respect of a Defaulting Bank; and
(ii) The Administrative Agent shall give each of the Banks
notice of the occurrence of a default under this Section 9.16 by a Defaulting
Bank and if the Administrative Agent and/or one or more of the other Banks
shall, at their option, fund any amounts required to be paid or advanced by a
Defaulting Bank, the other Banks who have elected not to fund any portion of
such amounts shall not be liable for any reimbursements to the Administrative
Agent and/or to such other funding Banks.
(i) Notwithstanding anything to the contrary contained or implied
herein, a Defaulting Bank shall not be entitled to vote on any matter as to
which a vote by the Banks is required hereunder, including, without limitation,
any actions or consents on the part of the Administrative Agent as to which the
approval or consent of all the Banks or the Required Banks or Majority Banks is
required under Article VIII, Section 9.5 or elsewhere, so long as such Bank is a
Defaulting Bank; provided, however, that in the case of any vote requiring the
unanimous consent of the Banks, if all the Banks other than the Defaulting Bank
shall have voted in accordance with each other, then the Defaulting Bank shall
be deemed to have voted in accordance with such Banks.
(j) Each of the Administrative Agent and any one or more of the
Banks which are not Defaulting Banks may, at their respective option, (i)
advance to the Borrower such Bank's Pro Rata Share of the Loans not advanced by
a Defaulting Bank in accordance with the Loan Documents, or (ii) pay to the
Administrative Agent such Bank's Pro Rata Share of any costs, expenses or
disbursements incurred or made by the Administrative Agent pursuant to the terms
of this Agreement not theretofore paid by a Defaulting Bank. Immediately upon
the making of any such advance by the Administrative Agent or any one of the
Banks, such Bank's Pro Rata
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Share and the Pro Rata Share of the Defaulting Bank shall be recalculated to
reflect such advance. All payments, repayments and other disbursements of funds
by the Administrative Agent to Banks shall thereupon and, at all times
thereafter be made in accordance with such Bank's recalculated Pro Rata Share
unless and until a Defaulting Bank shall fully cure all defaults on the part of
such Defaulting Bank under the Loan Documents or otherwise existing in respect
of the Loans or this Agreement, at which time the Pro Rata Share of the Bank(s)
which advanced sums on behalf of the Defaulting Bank and of the Defaulting Bank
shall be restored to their original percentages.
SECTION 9.17. Banks' ERISA Covenant. Each Bank, by its signature
hereto or on the applicable Transfer Supplement, hereby agrees (a) that on the
date any Loan is disbursed hereunder no portion of such Bank's Pro Rata Share of
such Loan will constitute "assets" within the meaning of 29 C.F.R. ss.
2510.3-101 of an "employee benefit plan" within the meaning of Section 3(3) of
ERISA or a "plan" within the meaning of Section 4975(e)(1) of the Code, and (b)
that following such date such Bank shall not allocate such Bank's Pro Rata Share
of any Loan to an account of such Bank if such allocation (i) by itself would
cause such Pro Rata Share of such Loan to then constitute "assets" (within the
meaning of 29 C.F.R. ss. 2510.3-101) of an "employee benefit plan" within the
meaning of Section 3(3) of ERISA or a "plan" within the meaning of Section
4975(e)(1) of the Code and (ii) by itself would cause such Loan to constitute a
prohibited transaction under ERISA or the Code (which is not exempt from the
restrictions of Section 406 of ERISA and Section 4975 of the Code and the taxes
and penalties imposed by Section 4975 of the Code and Section 502(i) of ERISA)
or any Agent or Bank being deemed in violation of Section 404 of ERISA.
SECTION 9.18. No Bankruptcy Proceedings. Each of the Borrower, the
Banks, the Administrative Agent, the Joint Lead Arrangers and the Joint
Bookrunners hereby agrees that it will not institute against any Designated
Lender or join any other Person in instituting against any Designated Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any federal or state bankruptcy or similar law, until the later to occur
of (i) one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Designated Lender and (ii) the Maturity
Date.
SECTION 9.19. Optional Increase in Commitments. At any time prior to
the date that is twenty-four (24) months after the date of this Agreement,
provided no Event of Default shall have occurred and then be continuing, the
Borrower may, if it so elects, increase the aggregate amount of the Commitments
(subject to proviso (b) in the next sentence), either by designating a Qualified
Institution not theretofore a Bank to become a Bank (such designation to be
effective only with the prior written consent of the Administrative Agent, which
consent will not be unreasonably withheld) and/or by agreeing with an existing
Bank or Banks that such Bank's Commitment shall be increased. Upon execution and
delivery by
124
the Borrower and such Bank or other financial institution of an instrument in
form reasonably satisfactory to the Administrative Agent, such existing Bank
shall have a Commitment as therein set forth or such Qualified Institution shall
become a Bank with a Commitment as therein set forth and all the rights and
obligations of a Bank with such a Commitment hereunder; provided that:
(a) the Borrower shall provide prompt notice of such increase to
the Administrative Agent, who shall promptly notify the Banks; and
(b) the amount of such increase, together with all other increases
in the aggregate amount of the Commitments pursuant to this Section 9.19 since
the date of this Agreement, does not cause the Facility Amount to exceed
$700,000,000.
Upon any increase in the aggregate amount of the Commitments pursuant to this
Section 9.19, within five Business Days (in the case of any Base Rate Loans then
outstanding) or at the end of the then current Interest Period with respect
thereto (in the case of any Euro-Dollar Loans then outstanding), as applicable,
each Bank's Pro Rata Share shall be recalculated to reflect such increase in the
Commitments and the outstanding principal balance of the Loans shall be
reallocated among the Banks such that the outstanding principal amount of Loans
owed to each Bank shall be equal to such Bank's Pro Rata Share (as
recalculated). All payments, repayments and other disbursements of funds by the
Administrative Agent to Banks shall thereupon and, at all times thereafter be
made in accordance with each Bank's recalculated Pro Rata Share.
SECTION 9.20. Managing Agents, Documentation Agents and Co-Agents.
Each of the Borrower, the Agents and each Bank acknowledges and agrees that (a)
the obligations of the Managing Agents, the Documentation Agents and the
Co-Agent hereunder shall be limited to those obligations that are expressly set
forth herein, if any, and the Managing Agents, Documentation Agents and Co-Agent
shall not be required to take any action or assume any liability except as may
be required in each of their capacity as a Bank hereunder, and (b) the
indemnifications set forth herein for the benefit of the Agents shall also run
to the benefit of the Managing Agents, the Documentation Agents and the Co-Agent
to the extent any of them incurs any loss, cost or damage arising from its
capacity as a Managing Agent, Documentation Agent or a Co-Agent.
SECTION 9.21. USA PATRIOT Act. Each Bank hereby notifies the
Borrower 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 Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Bank to identify the Borrower in accordance with the Act.
125
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AMB PROPERTY, L.P., a Delaware limited
partnership
By: AMB PROPERTY CORPORATION, a Maryland
corporation and its sole general partner
By: /s/ Gayle P. Starr
____________________________________
Name: Gayle P. Starr
Title: Senior Vice President
Facsimile number: (415) 394-9001
Address: Pier 1, Bay 1
San Francisco, California 94111
Attn: Chief Financial Officer
TOTAL COMMITMENTS: $500,000,000
JPMORGAN CHASE BANK, as Administrative
Agent and as a Bank
By: /s/ Susan M. Tate
____________________________________
Name: Susan M. Tate
Title: Vice President
Dollar Commitment: $ 9,990,000
Alternate Currency Commitment: $32,510,000
JPMorgan Chase Bank
707 Travis Street, 6th Floor North
Houston, Texas 77002
Attn: Susan M. Tate
Telephone: (713) 216-1511
Telecopy: (713) 216-2391
and
JPMorgan Chase Bank
1111 Fannin Street, 10th Floor
Houston, Texas 77002
Attn: Loan and Agency Services
Telephone: (713) 750-2353
Telecopy: (713) 750-2228
J.P. MORGAN EUROPE LIMITED, as Administrative
Agent
By: /s/ S. Gillies /s/ N. Mall
____________________________________
Name: S. Gillies N. Mall
Title: Associate Associate
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Bank
By: /s/ Frank H. Stumpf
____________________________________
Name: Frank H. Stumpf
Title: Principal
Dollar Commitment: $ 9,990,000
Alternate Currency Commitment: $32,510,000
J.P. MORGAN SECURITIES, INC.,
as Joint Lead Arranger and Joint Bookrunner
By: /s/ Lisa Boncaldo
____________________________________
Name: Lisa Boncaldo
Title: Vice President
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger and Joint Bookrunner
By: /s/ Robert N. Allen
____________________________________
Name: Robert N. Allen
Title: Principal
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as Documentation Agent and as
a Bank
By: /s/ Ralph C. Marra, Jr. /s/ Kerstin Micke
__________________________________________
Name: Ralph C. Marra, Jr. Kerstin Micke
Title: Vice President Assistant Treasurer
Dollar Commitment: $ 7,310,000
Alternate Currency Commitment: $31,690,000
WACHOVIA BANK, N.A., as Documentation Agent
and as a Bank
By: /s/ Cathy A. Casey
____________________________________
Name: Cathy A. Casey
Title: Director
Dollar Commitment: $ 7,310,000
Alternate Currency Commitment: $31,690,000
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as a Bank
By: /s/ Michael E. Smith
____________________________________
Name: Michael E. Smith
Title: Senior Vice President
Dollar Commitment: $ 7,310,000
Alternate Currency Commitment: $31,690,000
THE BANK OF NOVA SCOTIA, ACTING THROUGH
ITS SAN FRANCISCO AGENCY,
as Managing Agent and as a Bank
By: /s/ Ted Richardson
____________________________________
Name: Ted Richardson
Title: Director
Dollar Commitment: $18,000,000
Alternate Currency Commitment: $18,000,000
WELLS FARGO BANK, N.A.,
as Managing Agent and as a Bank
By: /s/ Diana Giacomini
____________________________________
Name: Diana Giacomini
Title: Senior Vice President
Dollar Commitment: $36,000,000
Alternate Currency Commitment: $0
KEYBANK NATIONAL ASSOCIATION,
as Managing Agent and as a Bank
By: /s/ Cheryl F. VanKlonrenberg
____________________________________
Name: Cheryl F. VanKlonrenberg
Title: Vice President
Dollar Commitment: $36,000,000
Alternate Currency Commitment: $0
SOUTHTRUST BANK, as Co-Agent and as a Bank
By: /s/ Lisa S. Smith
____________________________________
Name: Lisa S. Smith
Title: Vice President
Dollar Commitment: $15,000,000
Alternate Currency Commitment: $15,000,000
UNION BANK OF CALIFORNIA, N.A.,
as Co-Agent and as a Bank
By: /s/ Karen Kokame
____________________________________
Name: Karen Kokame
Title: Vice President
Dollar Commitment: $25,000,000
Alternate Currency Commitment: $0
ING REAL ESTATE FINANCE (USA) LLC,
as Co-Agent and as a Bank
By: /s/ David A. Mazujian
____________________________________
Name: David A. Mazujian
Title: Managing Director
Dollar Commitment: $12,500,000
Alternate Currency Commitment: $12,500,000
THE NORTHERN TRUST COMPANY,
as a Bank
By: /s/ Elenor Grumman
____________________________________
Name: Elenor Grumman
Title: Vice President
Dollar Commitment: $10,000,000
Alternate Currency Commitment: $10,000,000
SOCIETE GENERALE,
as a Bank
By: /s/ Scott Gosslee
____________________________________
Name: Scott Gosslee
Title: Director
Dollar Commitment: $0
Alternate Currency Commitment: $20,000,000
ALLIED IRISH BANK PLC,
as a Bank
By: /s/ Germaine Reusch /s/ Denise Magyer
_________________________________________
Name: Germaine Reusch Denise Magyer
Title: Senior Vice President Vice President
Dollar Commitment: $10,600,000
Alternate Currency Commitment: $ 4,400,000
SUMITOMO MITSUI BANKING CORPORATION,
as a Bank
By: /s/ David A. Buck
____________________________________
Name: David A. Buck
Title: Senior Vice President
Dollar Commitment: $10,000,000
Alternate Currency Commitment: $10,000,000
CHANG HWA COMMERCIAL BANK, LTD.,
LOS ANGELES BRANCH, as a Bank
By: /s/ Jim Chen
____________________________________
Name: Jim Chen
Title: VP & General Manager
Dollar Commitment: $10,000,000
Alternate Currency Commitment: $0
LASALLE BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ Jay Pe
____________________________________
Name: Jay Pe
Title: VP
Dollar Commitment: $15,000,000
Alternate Currency Commitment: $0
THE NORINCHUKIN BANK, NEW YORK BRANCH,
as a Bank
By: /s/ Masanori Shoji
____________________________________
Name: Masanori Shoji
Title: Joint General Manager
Dollar Commitment: $10,000,000
Alternate Currency Commitment: $0