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$500,000,000
CREDIT AGREEMENT
Dated as of June 3, 2003
among
KIMCO REALTY CORPORATION,
The Several Lenders
from Time to Time Parties Hereto,
JPMORGAN CHASE BANK,
as Issuing Lender,
BANK ONE, NA
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agents
UBS AG, CAYMAN ISLANDS BRANCH
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY
as Documentation Agents,
THE BANK OF NEW YORK
EUROHYPO AG, NEW YORK BRANCH
KEYBANK NATIONAL ASSOCIATION
MERRILL LYNCH BANK USA
SUNTRUST
as Co-Agents
and
JPMORGAN CHASE BANK,
as Administrative Agent
---------------
JPMORGAN SECURITIES INC.,
as Bookrunner and Lead Arranger
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Table of Contents
Page
ARTICLE I DEFINITIONS................................................................................1
SECTION 1.1 Defined Terms.....................................................................1
SECTION 1.2 Other Definitional Provisions; Interpretation....................................21
SECTION 1.3 Accounting Terms; GAAP...........................................................22
ARTICLE II THE LOANS.................................................................................22
SECTION 2.1 Competitive Bid Procedure........................................................22
SECTION 2.2 Loans; Repayment of Existing Loans; Etc..........................................25
SECTION 2.3 Optional Prepayments.............................................................27
SECTION 2.4 Conversion and Continuation Options..............................................27
SECTION 2.5 Fees.............................................................................28
SECTION 2.6 Interest Rates and Payment Dates.................................................29
SECTION 2.7 Computation of Interest and Fees.................................................29
SECTION 2.8 Inability to Determine Interest Rate.............................................30
SECTION 2.9 Pro Rata Treatment and Payments..................................................30
SECTION 2.10 Illegality.......................................................................31
SECTION 2.11 Requirements of Law..............................................................32
SECTION 2.12 Taxes............................................................................34
SECTION 2.13 Indemnity........................................................................35
SECTION 2.14 Change of Lending Office.........................................................36
SECTION 2.15 Replacement of Lenders under Certain Circumstances...............................36
ARTICLE III LETTERS OF CREDIT.........................................................................37
SECTION 3.1 L/C Commitment...................................................................37
SECTION 3.2 Procedure for Issuance of Letters of Credit......................................37
SECTION 3.3 Fees and Other Charges...........................................................38
SECTION 3.4 L/C Participations...............................................................38
SECTION 3.5 Reimbursement Obligation of the Borrower.........................................39
SECTION 3.6 Obligations Absolute.............................................................39
SECTION 3.7 Letter of Credit Payments........................................................41
SECTION 3.8 Applications.....................................................................41
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Table of Contents
(continued)
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SECTION 3.9 Replacement of the Issuing Lender................................................41
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................41
SECTION 4.1 Financial Condition..............................................................41
SECTION 4.2 No Change........................................................................42
SECTION 4.3 Corporate Existence; Compliance with Law.........................................42
SECTION 4.4 Corporate Power; Authorization; Enforceable Obligations..........................43
SECTION 4.5 No Legal Bar.....................................................................43
SECTION 4.6 No Material Litigation...........................................................43
SECTION 4.7 No Default.......................................................................44
SECTION 4.8 Ownership of Property............................................................44
SECTION 4.9 Intellectual Property............................................................44
SECTION 4.10 No Burdensome Restrictions; Disclosure...........................................44
SECTION 4.11 Taxes............................................................................44
SECTION 4.12 Federal Regulations..............................................................45
SECTION 4.13 ERISA............................................................................45
SECTION 4.14 Investment Company Act; Other Regulations........................................45
SECTION 4.15 Guarantors.......................................................................45
SECTION 4.16 Purpose..........................................................................46
SECTION 4.17 Environmental Matters............................................................46
SECTION 4.18 Insurance........................................................................47
SECTION 4.19 Condition of Properties..........................................................47
SECTION 4.20 Benefit of Loans.................................................................47
SECTION 4.21 REIT Status......................................................................48
ARTICLE V CONDITIONS................................................................................48
SECTION 5.1 Conditions to Effectiveness / Effective Date.....................................48
SECTION 5.2 Conditions to Each Extension of Credit...........................................49
ARTICLE VI AFFIRMATIVE COVENANTS.....................................................................50
SECTION 6.1 Financial Statements.............................................................50
SECTION 6.2 Certificates; Other Information..................................................51
SECTION 6.3 Payment of Obligations...........................................................52
ii
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(continued)
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SECTION 6.4 Maintenance of Existence, etc....................................................52
SECTION 6.5 Maintenance of Property; Insurance...............................................52
SECTION 6.6 Inspection of Property; Books and Records; Discussions...........................52
SECTION 6.7 Notices..........................................................................52
SECTION 6.8 Environmental Laws...............................................................53
ARTICLE VII NEGATIVE COVENANTS........................................................................54
SECTION 7.1 Financial Covenants..............................................................54
SECTION 7.2 Limitation on Certain Fundamental Changes........................................55
SECTION 7.3 Limitation on Restricted Payments................................................56
SECTION 7.4 Limitation on Investments, Loans and Advances....................................56
SECTION 7.5 Limitation on Transactions with Affiliates.......................................56
SECTION 7.6 Limitation on Changes in Fiscal Year.............................................56
SECTION 7.7 Limitation on Lines of Business; Issuance of Commercial Paper; Creation
of Subsidiaries; Negative Pledges................................................57
ARTICLE VIII EVENTS OF DEFAULT.........................................................................57
ARTICLE IX THE AGENTS................................................................................61
SECTION 9.1 The Agents.......................................................................61
SECTION 9.2 Indemnification..................................................................63
SECTION 9.3 The Syndication Agents, Documentation Agents, Co-Agents, Arrangers, and
Bookrunners......................................................................64
ARTICLE X MISCELLANEOUS.............................................................................64
SECTION 10.1 Amendments and Waivers...........................................................64
SECTION 10.2 Notices..........................................................................65
SECTION 10.3 No Waiver; Cumulative Remedies...................................................66
SECTION 10.4 Survival of Representations and Warranties.......................................66
SECTION 10.5 Payment of Expenses and Taxes....................................................66
SECTION 10.6 Successors and Assigns...........................................................67
SECTION 10.7 Disclosure.......................................................................70
SECTION 10.8 Increases of Revolving Credit Facility...........................................70
SECTION 10.9 Extension of Maturity Date.......................................................71
SECTION 10.10 Release of Guarantors............................................................72
iii
Table of Contents
(continued)
Page
SECTION 10.11 Adjustments; Set-off.............................................................72
SECTION 10.12 Counterparts.....................................................................73
SECTION 10.13 Severability.....................................................................73
SECTION 10.14 Integration......................................................................73
SECTION 10.15 GOVERNING LAW....................................................................74
SECTION 10.16 Submission To Jurisdiction; Waivers..............................................74
SECTION 10.17 Acknowledgments..................................................................74
SECTION 10.18 WAIVERS OF JURY TRIAL............................................................75
SECTION 10.19 Confidentiality..................................................................75
iv
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B-1 -- Form of Revolving Credit Note
Exhibit B-2 -- Form of Competitive Loan Note
Exhibit C -- Form of Subsidiary Guarantee
Exhibit D -- Form of Opinion of Loan Party Counsel
Exhibit E-1 -- Form of Closing Certificate of the Borrower
Exhibit E-2 -- Form of Closing Certificate of the Guarantors
Exhibit F -- Form of Compliance Certificate
SCHEDULES:
Schedule 1.1A -- Lenders and Commitments as of Effective Date
Schedule 1.1B -- FFO Definition Variations
Schedule 2.2 -- Existing Loans
Schedule 4.1 -- Certain Financial Disclosure
Schedule 4.2 -- Transaction(s) Referred to in Section 4.2
Schedule 4.15 -- Guarantors
Schedule 4.19 -- Condemnation Proceedings
Schedule 7.2 -- Transaction(s) Referred to in Section 7.2
CREDIT AGREEMENT, dated as of June 3, 2003, among KIMCO REALTY
CORPORATION, a Maryland corporation (the "Borrower"), the several banks,
financial institutions and other entities from time to time parties to this
Agreement (collectively, the "Lenders"), the Issuing Lender party hereto, BANK
ONE, NA and WACHOVIA BANK, NATIONAL ASSOCIATION as Syndication Agents (in such
capacity, collectively the "Syndication Agents"), and UBS AG, CAYMAN ISLANDS
BRANCH and THE BANK OF NOVA SCOTIA, NEW YORK AGENCY, as Documentation Agents (in
such capacity, collectively the "Documentation Agents"), the Co-Agents party
hereto, and JPMORGAN CHASE BANK, a New York banking corporation, as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day, and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by JPMCB as its prime
rate in effect at its principal office in New York City, each change in the
Prime Rate being effective from and including the date such change is publicly
announced as being effective (the Prime Rate not being intended to be the lowest
rate of interest charged by JPMCB in connection with extensions of credit to
debtors); and "Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the ABR shall be determined
without regard to clause (b) of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans": Revolving Credit Loans (or Competitive Loans
affected by Section 2.10) the rate of interest applicable to which is based upon
the ABR.
"Adjusted Net Income": for any period, as to the Borrower and
the Consolidated Entities, Consolidated Net Income; provided that there shall be
excluded the income (or deficit) of any Person other than the Borrower accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with
the Borrower or any of its Subsidiaries.
"Administrative Agent": as defined in the caption hereto.
"Administrative Questionnaire": as defined in Section 10.6.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in Control of, is Controlled by, or is under common
control with, such Person.
"Aggregate Outstanding Revolving Extensions of Credit": as to
any Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding and (b) such Lender's Commitment Percentage of the L/C Obligations
then outstanding.
"Agreement": this Credit Agreement.
"Applicable Margin": with respect to each Revolving Credit
Loan at any date, the applicable percentage per annum set forth below based upon
the Status on such date:
Level I Level II Level III Level IV Level V Level VI
Status Status Status Status Status Status
------ ------ ------ ------ ------ ------
Eurodollar Loans, and Money 0.50% 0.55% 0.60% 0.70% 0.90% 1.20%
Market Loans
ABR Loans 0% 0% 0% 0% 0% 0.40%
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Assignment and Assumption": as defined in Section 10.6.
"Available Commitment": as to any Lender, at any time of
determination, an amount equal to such Lender's Commitment at such time minus
such Lender's Aggregate Outstanding Revolving Extensions of Credit at such time.
"Board": the Board of Governors of the Federal Reserve System
of the United States of America (or any successor).
"Borrower": as defined in the caption hereto.
2
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.2(d) as a date on which the Borrower requests the Lenders
to make Revolving Credit Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close, except that, when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in Dollar deposits in the London interbank market.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (i) securities denominated in Dollars
issued or directly and fully guaranteed or insured by the United States
Government or any agency or instrumentality thereof having maturities of not
more than one year from the date of acquisition, (ii) time deposits and
certificates of deposit denominated in Dollars having maturities of not more
than one year from the date of acquisition of any Lender or of any domestic
commercial bank the senior long-term unsecured debt of which is rated at least A
or the equivalent thereof by S&P or A2 or the equivalent thereof by Moody's and
having capital and surplus in excess of $500,000,000, (iii) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (i) and (ii) entered into with any bank meeting
the qualifications specified in clause (ii) above, (iv) commercial paper
denominated in Dollars rated at least A-1 or the equivalent thereof by S&P or
P-1 or the equivalent thereof by Moody's and in either case maturing within 90
days after the date of acquisition and (v) investments in money market funds
that have assets in excess of $2,000,000,000, are managed by recognized and
responsible institutions and invest all of their assets in (x) obligations of
the types referred to in clauses (i), (ii), (iii) and (iv) above and (y)
commercial paper denominated in Dollars having at least the rating described in
clause (iv) above and maturing within 270 days after the date of acquisition.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of Capital Stock representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of
the Borrower; (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated; or (c) the acquisition of direct or indirect Control of
the Borrower by any Person or group.
"Class", when used in reference to any Loan, refers to whether
such Loan is a Revolving Credit Loan or Competitive Loan.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
3
"Commitment": as to any Lender, the obligation of such Lender
(if any) to make Revolving Credit Loans to and/or issue or participate in
Letters of Credit issued on behalf of the Borrower hereunder in an aggregate
principal and/or face amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name on Schedule 1.1A, as such amount
may be changed from time to time in accordance with the provisions of this
Agreement. The initial aggregate amount of the Lenders' Commitments is
$500,000,000.
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the aggregate
Commitments of all Lenders (or, at any time after the Commitments shall have
expired or terminated, the percentage which the aggregate principal amount of
such Lender's Revolving Credit Loans then outstanding and participations in
respect of Letters of Credit constitutes of the aggregate principal amount of
the Revolving Credit Loans of all Lenders then outstanding and all
participations in respect of all Letters of Credit (for purposes of this
definition, treating the Issuing Lender as if it were a L/C Participant)).
"Commitment Period": the period from and including the date of
this Agreement to but not including the Termination Date.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Competitive Bid": an offer by a Lender to make a Competitive
Loan in accordance with Section 2.1.
"Competitive Bid Rate": with respect to any Competitive Bid,
the Margin or Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request": a request by the Borrower for
Competitive Bids in accordance with Section 2.1.
"Competitive Loan Notes": as defined in Section 2.2(b).
"Competitive Loans": a Loan made pursuant to Section 2.1.
"Confidential Memorandum": the Confidential Information
Memorandum, dated April, 2003, with respect to the Borrower and the Revolving
Credit Facility herein.
"Consolidated Entities": any entities whose financial results
are consolidated with those of the Borrower in accordance with GAAP.
"Consolidated Net Income": for any period, net income (or
loss) of the Borrower and the Consolidated Entities for such period determined
on a consolidated basis in accordance with GAAP.
4
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default": any of the events specified in Article VIII,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Documentation Agents": as defined in the caption hereto.
"Dollars" and "$": lawful currency of the United States of
America.
"EBITDA": for any Person, the consolidated net income of such
Person and its Subsidiaries before income taxes, interest, depreciation,
amortization, gains or losses on sales of operating real estate and marketable
securities, any provisional benefit for income taxes, noncash impairment
charges, and gains or losses on extraordinary items in accordance with GAAP and
gains or losses on early extinguishment of debt.
"Effective Date": the date on which the conditions set forth
in Section 5.1 shall be satisfied (or waived in accordance with Section 10.1).
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect, in each case to the extent the
foregoing are applicable to the Borrower, any Entity or any of their respective
assets or properties.
"Entity": any Consolidated Entity or Unconsolidated Entity.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurodollar Loans": Revolving Credit Loans and Competitive
Loans, the rate of interest applicable to which is based upon the Eurodollar
Rate.
"Eurodollar Rate": with respect to any Eurodollar Loan for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to Dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for Dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "Eurodollar Rate" with respect
to such Eurodollar Loan for such Interest Period shall be the rate at which
Dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the bank serving as
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
5
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in Article
VIII, provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Existing Credit Agreement": the Second Amended and Restated
Credit Agreement dated as of August 24, 2000 among the Borrower, the several
banks, financial institutions and other entities from time to time parties
thereto (collectively, the "Existing Lenders"), the Issuing Lender party
thereto, BANK ONE, NA, as Syndication Agent, FLEET NATIONAL BANK, as
Documentation Agent, and JPMORGAN CHASE BANK (formerly, THE CHASE MANHATTAN
BANK), as administrative agent for the Existing Lenders thereunder.
"Existing Lenders": as defined in the definition of "Existing
Credit Agreement".
"Existing Loans": any loans made under the Existing Credit
Agreement that are outstanding as of the Effective Date. The amount of the
Existing Loans is set forth on Schedule 2.2.
"Extended Maturity Date": as defined in Section 10.9.
"Facility Fee Rate": the applicable percentage per annum set
forth below based upon the Status on the date of the relevant facility fee
payment:
Level I Level II Level III Level IV Level V Level VI
Status Status Status Status Status Status
------ ------ ------ ------ ------ ------
0.15% 0.15% 0.15% 0.20% 0.25% 0.30%
"FAD": FFO less adjustments for straight line rents and actual
capital expenditures for recurring, non-revenue enhancing capital improvements.
"Federal Funds Effective Rate": as defined in the definition
of "ABR".
"Fee Letter": the letter dated March 20, 2003 among the
Borrower, JPMCB and J.P. Morgan regarding certain fees payable in connection
with the Revolving Credit Facility.
6
"FFO": funds from operations, as calculated based upon the
NAREIT definition in effect on the date of said calculation or in a manner
consistent with the Borrower's prior reporting (with any variation from the
NAREIT definition being specified in Schedule 1.1B).
"Final Date": as defined in Section 2.11(d).
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of such lessee.
"Fixed Rate": with respect to any Competitive Loan (other than
a Competitive Loan which is a Eurodollar Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan": a Competitive Loan bearing interest at a
Fixed Rate.
"GAAP": generally accepted accounting principles in the United
States of America.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Gross Asset Value": as of any relevant date, an amount equal
to the sum of (a) Total Adjusted EBITDA, calculated with respect to the most
recent Test Period ended on or before such date annualized and capitalized at
9.50%, plus (b) Unrestricted Cash and Cash Equivalents of the Borrower and the
Consolidated Entities as of such date, plus (c) the sum of the following items
of the Borrower and the Consolidated Entities: (i) land and development projects
as of such date valued at "cost" (provided that the amount described in this
clause (i) shall not be taken into account to the extent that it exceeds 10% of
Gross Asset Value), (ii) mortgage loan receivables valued at the lower of cost
or market at such date and marketable securities valued at the lower of cost or
market at such date (provided that the amount described in this clause (ii)
shall not be taken into account to the extent that it exceeds 10% of Gross Asset
Value), plus (d) the Borrower's investments in and advances to the Noncontrolled
Entities valued at the lower of cost or market at such date (provided that the
amount described in this clause (d) shall not be taken into account to the
extent that it exceeds 15% of Gross Asset Value), provided that the items
described in clauses (c) and (d) shall not be taken into account to the extent
that the amounts thereof exceed, in the aggregate, 25% of Gross Asset Value,
plus (e) without duplication, 100% of the bona fide purchase price of Identified
Properties as of such date.
7
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including any bank under any letter
of credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counter-indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the
maximum stated amount of the primary obligation relating to such Guarantee
Obligation (or, if less, the maximum stated liability set forth in the
instrument embodying such Guarantee Obligation), provided that in the absence of
any such stated amount or stated liability, the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good faith.
"Guarantor": at any particular time, each Subsidiary that is a
party to the Subsidiary Guarantee at such time.
"Identified Property": as of any time, Properties acquired
during the most recent Test Period.
"Income REIT": Kimco Income Operating Partnership, L.P., a
Delaware limited partnership.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), to the extent
such obligations constitute indebtedness for the purposes of GAAP, (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) all obligations of such Person under Financing Leases,
(e) all obligations of such Person in respect of acceptances issued or created
for the account of such Person, (f) all Guarantee Obligations of such Person,
(g) reimbursement obligations for letters of credit and other contingent
liabilities, (h) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become liable
for the payment thereof, and (i) the net obligations (contingent or otherwise)
of such Person at such date under interest rate hedging agreements.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in Section 4.9.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each calendar month to occur while such ABR Loan is outstanding and the
Termination Date, (b) as to any Eurodollar Loan, the last day of the Interest
Period with respect thereto and, in the case of a Eurodollar Loan with an
Interest Period of more than three (3) months' duration, each day prior to the
last day of such Interest Period that occurs at intervals of three (3) months'
duration after the first day of such Interest Period, (c) as to any Money Market
Loan, the Money Market Loan Maturity Date applicable thereto, and (d) as to any
Fixed Rate Loan, the last day of the Interest Period applicable to the borrowing
of which such Fixed Rate Loan is a part and, in the case of a Fixed Rate Loan
with an Interest Period of more than 90 days' duration (unless otherwise
specified in the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at intervals of 90 days' duration after
the first day of such Interest Period, and any other days that are specified in
the applicable Competitive Bid Request as Interest Payment Dates with respect to
such Fixed Rate Loan.
8
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and ending one
(1), two (2), three (3) or six (6) months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending one (1),
two (2), three (3) or six (6) months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect thereto;
(b) with respect to any Fixed Rate Loan: each period, which
shall not be less than 7 days or more than 180 days, commencing on the date of
such borrowing and ending on the date specified in the applicable Competitive
Bid Request;
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding Business Day;
(2) any Interest Period pertaining to a Eurodollar Loan that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(3) in no event shall any Interest Period end on a day subsequent to
the Termination Date.
"Investment Entity": as to any Person, a corporation, limited
liability company, partnership or other entity in which the Borrower has a
direct or indirect interest, but which is not a Subsidiary.
9
"ISP": the International Standby Practices (1998),
International Chamber of Commerce Publication No. 590, and, if acceptable to the
Issuing Lender in its sole discretion, as the same may be amended or revised
from time to time.
"Issuing Lender": JPMCB, in its capacity as issuer of any
Letter of Credit. The Issuing Lender may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the Issuing Lender, in
which case the term "Issuing Lender" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
"JPMCB": JPMorgan Chase Bank.
"J.P. Morgan": J.P. Morgan Securities Inc.
"L/C Commitment": $100,000,000.
"L/C Fee Payment Date": with respect to each Letter of Credit,
the last Business Day of each March, June, September and December to occur while
such Letter of Credit is outstanding.
"L/C Fee Rate": with respect to each Letter of Credit at any
date, the applicable percentage per annum set forth below based upon the Status
on such date:
Level I Level II Level III Level IV Level V Level VI
Status Status Status Status Status Status
- ------ ------ ------ ------ ------ ------
0.50% 0.55% 0.60% 0.70% 0.90% 1.20%
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit which have not then been reimbursed pursuant to Section 3.5(a).
"L/C Participants": the collective reference to all the
Lenders other than the Issuing Lender.
"Lender Affiliate": as defined in Section 10.6.
"Lenders": as defined in the caption hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment
(including any collateral assignment but excluding any assignment of an asset
made in lieu of a sale thereof where the assignor is paid the fair market value
of such asset by the assignee and the assignee assumes all of the rights and
obligations attributable to ownership of such asset), deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
10
"Loan" means each loan made by the Lenders to the Borrower
pursuant to this Agreement.
"Loan Documents": this Agreement, any Notes, the Applications,
the Subsidiary Guarantee and the Fee Letter, and any instrument or agreement
waiving, amending, or supplementing any Loan Document.
"Loan Parties": the Borrower and the Guarantors.
"Majority Lenders": at any date, the holders of at least 51%
of the sum of the aggregate unpaid principal amount of the Revolving Credit
Loans, the Competitive Loans and the L/C Obligations; provided that if such sum
is zero, then the Majority Lenders shall be the holders of at least 51% of the
sum of the aggregate Commitments.
"Margin": with respect to any Competitive Loan bearing
interest at a rate based on the Eurodollar Rate, the marginal rate of interest,
if any, to be added to or subtracted from the Eurodollar Rate to determine the
rate of interest applicable to such Loan, as specified by the Lender making such
Loan in its related Competitive Bid.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the ability
of the Borrower and of the Guarantors, taken as a whole, to perform their
obligations under the Loan Documents or (c) the validity or enforceability of
this Agreement or any of the other Loan Documents or the rights or remedies of
the Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Maturity Date": (i) the date that is the third anniversary of
the date of this Agreement, or (ii) if the term of the Revolving Credit Facility
is extended pursuant to Section 10.9, the Extended Maturity Date; provided that
references hereunder to the Maturity Date shall be to the Maturity Date
specified in clause (i) unless and until extended in accordance with said
Section 10.9.
"Money Market Loan Maturity Date": with respect to any Money
Market Loan, the maturity date requested by the Borrower in connection therewith
(which date shall in no event be later than the earlier of (a) 29 days after the
Borrowing Date thereof or (b) the Termination Date).
"Money Market Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Money Market Rate.
11
"Money Market Rate": with respect to any proposed Money Market
Loan, the quoted rate per annum obtained by the Administrative Agent with
respect thereto, and accepted by each Lender, in its sole discretion, no later
than 10:00 A.M., New York City time, on the requested Borrowing Date.
"Money Market Tranche": the collective reference to Money
Market Loans having the same Borrowing Date and Money Market Loan Maturity Date.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NAREIT": The National Association of Real Estate Investment
Trusts.
"Net Worth": at any date of determination, an amount equal to
(a) Gross Asset Value as of such date minus (b) Total Indebtedness as of such
date.
"Noncontrolled Entity": any of the following Unconsolidated
Entities: (i) the Income REIT, Kimco Retail Opportunity Portfolio, LLC, or "Rio
Can/Canadian Ventures", (ii) any entity in which the only investment by the
Borrower or any Affiliate consists of preferred stock or securities of another
entity having characteristics analogous to those of preferred stock, or (iii)
any entity as to which the Borrower (together with other Affiliates) owns less
than a majority of such entity's equity securities and does not have the power
to direct the acquisition, financing, disposition and other major decisions
regarding property owned by such entity.
"Non-Excluded Taxes": as defined in Section 2.12(a).
"Non-Recourse Indebtedness": Indebtedness the documentation
with respect to which expressly provides that (a) the lender(s) thereunder (and
any agent for such lender(s)) may not seek a money judgment against the Person
issuing such Indebtedness or (b) recourse for payment in respect of such
Indebtedness is limited to those assets or Capital Stock of the Person issuing
such Indebtedness which secure such Indebtedness (except in the case of
customary indemnities or customary potential recourse carve-outs contained in
such documentation, provided that if a claim is made in connection with such
indemnities or potential recourse carve-outs, such claim shall not constitute
Non-Recourse Indebtedness for the purposes of this Agreement).
"Non-U.S. Lender": as defined in Section 2.12(b).
"Notes": the collective reference to the Revolving Credit
Notes and any Competitive Loan Notes.
"Ownership Percentage": (i) in respect of a Wholly Owned
Subsidiary, 100%, and (ii) in respect of (A) any other Consolidated Entity
(other than a Wholly-Owned Subsidiary) or (B) an Unconsolidated Entity, the
Borrower's direct and indirect percentage interest in such entity determined in
accordance with GAAP.
12
"Participant": as defined in Section 10.6.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Encumbrances": (a) Liens imposed by law for taxes
(x) that are not yet due, or (y) where (A) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (B) the affected Loan
Party has set aside on its books adequate reserves with respect thereto in
accordance with GAAP, and (C) the failure to make payment pending such contest
could not reasonably be expected to have a Material Adverse Effect, (b)
carriers', warehousemen's, mechanics', materialmen's, repairmen's and other like
Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days, except where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (ii) the affected Loan Party has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (iii) the failure to
make payment pending such contest could not reasonably be expected to have a
Material Adverse Effect, (c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations, (d) deposits to secure the
performance of bids, trade contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business, and (e) easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of the Borrower or
any Guarantor, provided that the term "Permitted Encumbrances" shall not include
any Lien securing Indebtedness.
"Person": an individual, partnership, limited liability
company, corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Prime Rate": as defined in the definition of ABR.
"Prohibiting Provision": as defined in the definition of
Qualified Wholly Owned Subsidiary.
"Property": real property owned by the Borrower or any of the
Entities, or in which the Borrower or any of the Entities has a leasehold
interest.
"Property Gross Revenues": with respect to any Property, for
any period, all gross income, revenues and consideration, of whatever form or
nature, received by or paid to or for the account or benefit of the Person
owning such Property, in each instance during such period, in connection with
the ownership, operation, leasing and occupancy of such Property, including the
following: (a) amounts received under the leases, including base rent,
escalation, overage, additional, participation, percentage and similar rentals,
late charges and interest payments and amounts received on account of
maintenance or service charges, real estate taxes, assessments, utilities, air
conditioning and heating and other administrative, management, operating,
leasing and maintenance expenses for such property, but excluding until earned
security deposits, prepaid rents and other refundable receipts, (b) rents and
receipts from licenses, concessions, vending machines and similar items, (c)
parking fees and rentals, (d) other fees, charges or payments not denominated as
rental of office, retail, storage, parking or other space in such property, and
(e) payments received as consideration, in whole or in part, for the
cancellation, modification, extension or renewal of leases; but in any event
excluding the proceeds of any financing or asset sales in respect of all or any
portion of such Property.
13
"Property NOI": with respect to any Property, for any period,
an amount equal to the excess, if any, of (a) Property Gross Revenues in respect
of such Property for such period over (b) Property Operating Expenses in respect
of such Property for such period.
"Property Operating Expenses": with respect to any Property,
for any period, the sum of all expenses incurred during such period with respect
to the ownership, operation, leasing and occupancy of such Property including
the following: (a) real estate taxes; (b) special assessments or similar charges
paid during such period; (c) personal property taxes; (d) costs of utilities,
air conditioning and heating; (e) maintenance and repair costs of a non-capital
nature; (f) operating expenses and fees; (g) wages and salaries of on-site
employees engaged in the operation and management of such Property, including
employer's social security taxes and other taxes, insurance benefits and the
like, levied on or with respect to such wages or salaries; (h) premiums payable
for insurance carried on or with respect to such Property; (i) advertising and
promotion costs; (j) rental expense; and (k) in the case of any Property owned
or operated by an Investment Entity, any obligation of the Borrower or any of
its Subsidiaries (contingent or otherwise) to contribute funds to such
Investment Entity. The following shall be excluded from Property Operating
Expenses: (1) foreign, U.S., state and local income taxes, franchise taxes or
other taxes based on income, (2) depreciation, amortization and any other
non-cash deduction for income tax purposes, (3) interest expenses of the Person
owning such Property, (4) property management fees payable to the Borrower or
its Affiliates, and (5) any expenditures made for capital improvements and the
cost of leasing commissions.
"Qualified Wholly Owned Subsidiary": each Wholly Owned
Subsidiary (a) not subject to any contractual restriction of general application
arising in (i) documentation establishing any nonrecourse mortgage in favor of
an unaffiliated third party on any real property, or (ii) a governing joint
venture agreement, partnership agreement, limited liability company agreement or
similar agreement with an unaffiliated third party, to which it is a party, the
effect of which contractual restriction (a "Prohibiting Provision") would be to
prohibit such Wholly Owned Subsidiary from entering into the Subsidiary
Guarantee, or (b) that is subject to a Prohibiting Provision but as to which the
Borrower has not, in respect of any documentation or agreement entered into
after the date hereof, exercised or caused such Subsidiary to exercise
commercially reasonable efforts to exclude from such documentation or agreement
any Prohibiting Provisions; provided, however, in the case of (A) documentation
relating to nonrecourse mortgage financing provided by an institutional lender,
such commercially reasonable efforts shall be deemed to have been exercised if
neither the Borrower nor any Affiliate thereof has volunteered to include such
Prohibiting Provisions or (B) a governing joint venture agreement, partnership
agreement, limited liability company agreement or similar agreement to which an
institutional investor holding at least 20% of the total equity interests
(including those of the Borrower and Affiliates of the Borrower) in the relevant
venture is a party, such commercially reasonable efforts shall be deemed to have
been exercised if (x) neither the Borrower nor any Affiliate thereof has
volunteered to include such Prohibiting Provisions and (y) such institutional
investor has required the inclusion thereof in such governing joint venture
agreement, partnership agreement, limited liability company agreement or similar
agreement in the establishment of such joint venture, partnership, limited
liability company or similar entity.
14
"Rating Agencies": the collective reference to S&P and
Moody's.
"Recourse Secured Indebtedness": any secured Indebtedness of
the Borrower or of any other Person, (A) to the extent that the Borrower is
liable for direct claims for payment of such debt, or (B) to the extent that the
payment of such debt is guaranteed by the Borrower, or (C) as to which a Lien
securing such debt has been placed against any assets of the Borrower (excluding
from this clause (C) Non-Recourse Indebtedness of the Borrower). (Any such
Indebtedness shall not be treated as Recourse Secured Indebtedness solely
because of customary potential recourse carveouts contained in documentation,
provided that if a claim is made in connection with such potential recourse
carve-outs, such Indebtedness shall not constitute Non-Recourse Indebtedness for
the purposes of this Agreement).
"Register": as defined in Section 10.6.
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5(a) for amounts drawn under
Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC
Reg.ss.2615.
"Required Lenders": at any date, the holders of at least
66-2/3% of the aggregate Commitments, or, if the Commitments have been
terminated, of the aggregate unpaid principal amount of the Revolving Credit
Loans, the Competitive Loans and L/C Obligations.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
15
"Responsible Officer": the chief executive officer and the
president of the Borrower or, with respect to financial matters, the chief
financial officer or the treasurer of the Borrower.
"Revolving Credit Facility": the revolving credit facility
established pursuant to this Agreement.
"Revolving Credit Loans": as defined in Section 2.2(a)(i).
"Revolving Credit Note": as defined in Section 2.2(b).
"S&P": Standard & Poor's Ratings Services.
"Significant Guarantor": at any date of determination, any
Guarantor that at such date owns or has a leasehold interest in one or more
Properties having an aggregate Equity Value in excess of $20,000,000. For the
purposes of this definition, "Equity Value" means (a) in the case of any
Property other than a Property described in clause (b), below, (i) two (2)
multiplied by an amount equal to (x) Property NOI of such Property for the Test
Period most recently ended divided by (y) 0.10 minus (ii) the aggregate
outstanding principal amount of any Indebtedness secured by such Property as of
the last day of such period; and (b) in the case of any Property acquired during
the Test Period most recently ended, the aggregate purchase price paid by the
Borrower or any of its Subsidiaries in connection with the acquisition of such
Property (excluding (1) the principal amount of any Non-Recourse Indebtedness
secured by such Property and assumed in connection with the acquisition thereof
and (2) if such Property is acquired subject to Non-Recourse Indebtedness, the
principal amount of such Indebtedness).
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Status": as to the Borrower, the existence of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status or Level VI
Status, as the case may be.
As used in this definition:
"Level I Status" exists at any date if, at such date,
the Borrower has a long-term senior unsecured debt rating of A or
better by S&P and A2 or better by Moody's;
"Level II Status" exists at any date if, at such
date, Level I Status does not exist and the Borrower has a long-term
senior unsecured debt rating of A- or better by S&P and A3 or better by
Moody's;
"Level III Status" exists at any date if, at such
date, neither Level I Status nor Level II Status exists and the
Borrower has a long-term senior unsecured debt rating of BBB+ or better
by S&P and Baa1 or better by Moody's;
16
"Level IV Status" exists at any date if, at such
date, neither Level I Status, Level II Status nor Level III Status
exists and the Borrower has a long-term senior unsecured debt rating of
BBB or better by S&P and Baa2 or better by Moody's;
"Level V Status" exists at any date if, at such date,
neither Level I Status, Level II Status, Level III Status nor Level IV
Status exists and the Borrower has a long-term senior unsecured debt
rating of BBB- or better by S&P and Baa3 or better by Moody's; and
"Level VI Status" exists at any date if, at such
date, none of Level I Status, Level II Status, Level III Status, Level
IV Status or Level V Status exists;
provided that (i) in the event of a "split" rating, the Applicable Margin,
Facility Fee Rate, and L/C Fee Rate shall be based upon the higher of the two
ratings, (ii) the Borrower may, at its option, obtain a debt rating from a third
nationally-recognized rating agency, in which case the Applicable Margin,
Facility Fee Rate, and L/C Fee Rate shall be based on the lower of the two
highest ratings, at least one of which must be Moody's or S&P, and (iii) if S&P
and/or Moody's shall cease to issue ratings of debt securities of real estate
investment trusts generally, then the Administrative Agent and the Borrower
shall negotiate in good faith to agree upon a substitute rating agency or
agencies (and to correlate the system of ratings of such substitute rating
agency with that of the rating agency for which it is substituting) and (a)
until such substitute rating agency or agencies are agreed upon, Status shall be
determined on the basis of the rating assigned by the other rating agency (or,
if both S&P and Moody's shall have so ceased to issue such ratings, on the basis
of the Status in effect immediately prior thereto) and (b) after such substitute
rating agency or agencies are agreed upon, Status shall be determined on the
basis of the rating assigned by the other rating agency and such substitute
rating agency or the two substitute rating agencies, as the case may be.
"Subsidiary": as to any Person, a corporation, limited
liability company, partnership or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, limited liability company, partnership or other entity are at
the time owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a direct or indirect Subsidiary or Subsidiaries of
the Borrower.
"Subsidiary Guarantee": the Guarantee to be executed and
delivered by each Qualified Wholly Owned Subsidiary in accordance with the terms
of this Agreement, substantially in the form of Exhibit C.
"Syndication Agent": as defined in the caption hereto.
"Termination Date": the date that is the earliest to occur of
(a) the Maturity Date, (b) the date on which the Commitments hereunder shall be
terminated or otherwise permanently reduced to zero pursuant to this Agreement,
or (c) the date on which the Loans shall become due and payable hereunder by
acceleration.
17
"Test Period": a period of two (2) consecutive fiscal quarters
of the Borrower.
"Total Adjusted EBITDA": For any Test Period, Total EBITDA for
such period minus (without duplication) (i) replacement reserves of $0.25 per
square foot of gross leasable area per annum, pro-rated for the applicable
period, (ii) non-cash revenue for such period attributable to straight-lining of
rents, (iii) EBITDA for such period attributable to Noncontrolled Entities, (iv)
income for such period from mortgage loan receivables, (v) dividend and interest
income from marketable securities, (vi) EBITDA for such period attributable to
Identified Properties, and (vii) the Borrower's and its Affiliates' management
fee income and other income (excluding all items referred to in any other clause
of this definition) for such period not attributable to Properties, provided
that the items referred to in this clause (vii) shall be taken into account only
to the extent that the amounts of such items, in the aggregate, exceed 10% of
Total EBITDA.
"Total Debt Service": in respect of any Test Period, interest
expense plus scheduled principal debt amortization for the Borrower and for the
Entities (other than Noncontrolled Entities) on the aggregate principal amount
of their respective Indebtedness (provided that (i) there shall be excluded
optional prepayments and balloon payments due at maturity, and (ii) in the case
of any Indebtedness that amortizes in annual installments, there shall be
included in the aggregate 50% of the amount of such annual installments payable
during such Test Period and 50% of the amount of such annual installments
payable during the two immediately succeeding fiscal quarters), plus preferred
stock dividends paid during such Test Period.
"Total EBITDA": Adjusted Net Income of the Borrower and the
Consolidated Entities before income taxes, interest, depreciation, amortization,
gains or losses on sales of operating real estate and marketable securities, any
provisional benefit for income taxes, noncash impairment charges, and gains or
losses on extraordinary items in accordance with GAAP and gains or losses on
early extinguishment of debt, plus, without duplication, EBITDA of
Unconsolidated Entities.
"Total Indebtedness": as of any date of determination, all
Indebtedness of the Borrower and of the Entities (other than Noncontrolled
Entities), outstanding at such date.
"Total Recourse Indebtedness": as of any date of
determination, the aggregate principal amount of all Indebtedness of the
Borrower and of the Entities (other than the Noncontrolled Entities) outstanding
at such date (excluding Non-Recourse Indebtedness and Indebtedness that is
contractually subordinated to the Indebtedness of the Borrower and its
Affiliates under the Loan Documents).
"Total Secured Indebtedness": as of any date of determination,
the aggregate of (i) Indebtedness of the Borrower, or of any of the Entities
(other than Noncontrolled Entities) outstanding as of such date, secured by any
asset of the Borrower or the Entities (other than the Noncontrolled Entities),
and (ii) all Unsecured Debt of the Entities (other than the Noncontrolled
Entities) to Persons other than the Borrower or any Consolidated Entity
outstanding as of such date.
18
"Total Unsecured Interest Expense": actual interest expense
(accrued, paid, or capitalized) on all Unsecured Debt of the Borrower and of the
Entities (other than of the Noncontrolled Entities).
"Tranche": any Eurodollar Tranche or Money Market Tranche.
"Transferee": as defined in Section 10.7.
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan, a Eurodollar Loan or a Money Market Loan; as to any Competitive Loan, its
nature as a Eurodollar Loan or a Fixed Rate Loan.
"Unconsolidated Entity": a corporation, partnership, limited
liability company, trust, joint venture, or other business entity in which the
Borrower, directly or indirectly through ownership of one or more intermediary
entities, owns an equity interest but that is not required in accordance with
GAAP to be consolidated with the Borrower for financial reporting purposes.
"unencumbered": with respect to any asset, at any date of
determination, the circumstance that such asset on such date (a) is not subject
to any Liens or claims (including restrictions on transferability or
assignability) of any kind (excluding Permitted Encumbrances), (b) is not
subject to any agreement (including (i) any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset and (ii)
if applicable, the organizational documents of any Entity) which prohibits or
limits the ability of the Borrower or any of the Entities to create, incur,
assume or suffer to exist any Lien upon, or convey, sell, lease, transfer or
otherwise dispose of, any assets or Capital Stock of the Borrower or any of the
Entities (excluding any agreement which limits generally the amount of secured
Indebtedness which may be incurred by the Borrower and the Entities) and (c) is
not subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Lien (other than Permitted
Encumbrances) on any assets or Capital Stock of the Borrower or any of the
Entities, or would entitle any Person to the benefit of any Lien (other than
Permitted Liens) on such assets or Capital Stock upon the occurrence of any
contingency (other than pursuant to an "equal and ratable" clause contained in
any agreement governing Indebtedness).
"Unencumbered Asset Value": as of any date of determination,
an amount calculated with respect to the most recent Test Period ended on or
before such date, equal to the sum of (a) the Value of Unencumbered Properties
as of such date plus (b) the sum of (i) unencumbered mortgage loan receivables
(valued at the lower of cost or market as of such date), (ii) unencumbered
marketable securities (valued at the lower of cost or market as of such date),
provided that the items described in this clause (ii) and in the preceding
clause (i) shall not be taken into account to the extent that the amounts of
such items exceed, in the aggregate, 15% of Unencumbered Asset Value, and (iii)
unencumbered land and development projects (valued at the lower of cost or
market as of such date), provided that the amount described in this clause (iii)
shall not be taken into account to the extent that it exceeds 10% of
Unencumbered Asset Value, plus (c) Unrestricted Cash and Cash Equivalents of the
Borrower and the Consolidated Entities as of the last day of such period (which
items shall be taken into account only to the extent that the amounts thereof,
in the aggregate, exceed $15,000,000).
19
"Unencumbered Assets NOI": Unencumbered Property NOI plus, to
the extent not in excess of 10% of Unencumbered Assets NOI, the sum of dividend
and interest income from unencumbered marketable securities and unencumbered
mortgage loan receivables.
"Unencumbered Properties": (i) Properties wholly owned by the
Borrower or by a Guarantor (or in which the Borrower or a Guarantor has a
leasehold interest to the extent eligible pursuant to clause (c) of the second
sentence of the definition of the term "Unencumbered Property NOI"), as to which
the Borrower has control, which Properties are unencumbered (including freedom
from restrictions, whether on the Property itself or the entity holding such
Property, on pledging such Property or the stock, limited liability company
interests, partnership interests, or other ownership interests of such Loan
Party as collateral or selling such Property), and (ii) other unencumbered
Properties as to which the Borrower or a Guarantor owns (directly or through the
ownership of an interest in a Consolidated Entity) a majority of the equity
interests and has the power to direct acquisition, disposition, financing, and
other major property decisions (which shall not include Properties owned by or
through Noncontrolled Entities nor any Property owned by any Qualified Wholly
Owned Subsidiary unless and until such Qualified Wholly Owned Subsidiary shall
have become a party to the Subsidiary Guarantee).
"Unencumbered Property NOI": for any period, Property NOI for
such period of Unencumbered Properties owned by the Borrower or a Guarantor and
the percentage equal to the Borrower's Ownership Percentage interest in the
applicable Property of Property NOI for such period of other Unencumbered
Properties, in each case net of (i) management fees of 3% of revenues, (ii)
replacement reserves of $0.25 per square foot per annum (pro-rated for the
applicable Test Period) of gross leasable area, from Unencumbered Properties.
For the purpose of determining Unencumbered Property NOI, (a) no property owned
by any Noncontrolled Entity shall be included, (b) no property of any Qualified
Wholly Owned Subsidiary shall be included unless and until such Qualified Wholly
Owned Subsidiary shall have become a party to the Subsidiary Guarantee, and (c)
leasehold positions will be eligible if (i) with respect to the lease term,
either (x) more than 25 years remains in such lease term or (y) such lease term
is renewable in the sole discretion of the Borrower for one or more successive
periods aggregating (together with the remaining current lease term) more than
25 years so long as, in the case of this clause (y), periodic rent increases
shall be at levels comparable to those that are customarily applicable to leases
having initial terms in excess of 25 years, (ii) such leasehold position is
mortgageable and the terms of the lease include acceptable secured lender
protections (including that (x) the lessor shall notify any holder of a security
interest in such leasehold interest of the occurrence of any default by the
lessee under such lease and shall afford such holder the right to cure such
default and (y) in the event that such lease is terminated, such holder shall
have the option to enter into a new lease having terms substantially identical
to those contained in the terminated lease), (iii) such lease may be transferred
and/or assigned without the consent of the lessor, and (iv) the Property NOI in
respect of such leasehold positions included in any calculation of Value of
Unencumbered Properties for any Test Period shall not be taken into account to
the extent that it exceeds, in the aggregate, 15% of Unencumbered Property NOI
for such Test Period.
20
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and if acceptable to the Issuing Lender in its sole
discretion, as the same may be amended or revised from time to time.
"Unrestricted Cash and Cash Equivalents": at any date of
determination, the sum of (a) the aggregate amount of Unrestricted cash then
held by the Borrower or any of the Consolidated Entities and (b) the aggregate
amount of Unrestricted Cash Equivalents (valued at the lower of cost and fair
market value) then held by the Borrower or any of the Consolidated Entities. As
used in this definition, "Unrestricted" means, with respect to any asset, the
circumstance that such asset is not subject to any Liens or claims of any kind
in favor of any Person.
"Unsecured Debt": all Indebtedness which is not secured by a
Lien on any income, Capital Stock, property or asset.
"Value of Unencumbered Properties": for any period, an amount
equal to Unencumbered Property NOI for such period (less Unencumbered Property
NOI of Unencumbered Properties that are Identified Properties) with respect to
the most recent Test Period annualized and capitalized at 9.50% (provided that
such annualized and capitalized Unencumbered Property NOI in respect of
Unencumbered Properties not wholly owned by the Borrower or Guarantors shall not
be taken into account to the extent that it exceeds, in the aggregate, 15% of
the total Value of Unencumbered Properties), plus 100% of the bona fide purchase
price of such Unencumbered Properties that are Identified Properties.
"Wholly Owned Subsidiary": any entity all of the capital stock
of which and any and all equivalent ownership interests of which (other than
directors' qualifying shares required by law) are owned by the Borrower directly
or indirectly through one or more Wholly Owned Subsidiaries.
SECTION 1.2 Other Definitional Provisions; Interpretation.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any other Loan Document
or any certificate or other document made or delivered pursuant hereto or
thereto.
(b) Without limiting Section 1.3, as used herein and in any other Loan
Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
21
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.
(f) The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation".
(g) The word "will" shall be construed to have the same meaning and
effect as the word "shall".
(h) Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(ii) any reference herein to any Person shall be construed to include such
Person's successors and assigns, and (iii) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.3 Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
THE LOANS
SECTION 2.1 Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from
time to time during the Commitment Period the Borrower may request Competitive
Bids and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans in an aggregate principal amount outstanding at any
time not to exceed fifty percent (50%) of the aggregate Commitments; provided
that the sum of the total Aggregate Outstanding Revolving Extensions of Credit
plus the aggregate principal amount of outstanding Competitive Loans at any time
shall not exceed the total Commitments. To request Competitive Bids, the
Borrower shall notify the Administrative Agent of such request by telephone, in
the case of a borrowing of Competitive Loans based on a Eurodollar Rate, not
later than 11:00 a.m., New York City time, four (4) Business Days before the
date of the proposed borrowing and, in the case of a borrowing of Fixed Rate
Loans, not later than 10:00 a.m., New York City time, one (1) Business Day
before the date of the proposed borrowing; provided that the Borrower may submit
up to (but not more than) three (3) Competitive Bid Requests on the same day,
but a Competitive Bid Request shall not be made within five (5) Business Days
after the date of any previous Competitive Bid Request, unless any and all such
previous Competitive Bid Requests shall have been withdrawn or all Competitive
Bids received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by
the Administrative Agent and signed by the Borrower. Each such telephonic and
written Competitive Bid Request shall specify the following information:
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(i) the aggregate amount of the requested borrowing;
(ii) the date of such borrowing, which shall be a
Business Day;
(iii) whether such borrowing is to be based on a
Eurodollar Rate or at a Fixed Rate;
(iv) the Interest Period to be applicable to such
borrowing, which shall be a period contemplated by the definition of the term
"Interest Period";
(v) the date of maturity of such borrowing; and
(vi) the location and number of the Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.2(d).
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a borrowing of a Competitive Loan at a rate based on
the Eurodollar Rate, not later than 9:30 a.m., New York City time, three (3)
Business Days before the proposed date of such borrowing, and in the case of a
borrowing of a Fixed Rate Loan, not later than 9:30 a.m., New York City time, on
the proposed date of such borrowing. Competitive Bids that do not conform
substantially to the form approved by the Administrative Agent may be rejected
by the Administrative Agent, and the Administrative Agent shall notify the
applicable Lender as promptly as practicable. Each Competitive Bid shall specify
(i) the principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
borrowing of a Competitive Loan requested by the Borrower) of the Competitive
Loan or Loans that the applicable Lender is willing to make, (ii) the
Competitive Bid Rate or Rates at which such Lender is prepared to make such Loan
or Loans (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) and (iii) the Interest Period applicable to
each such Loan and the last day thereof.
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(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Competitive Loan based on a
Eurodollar Rate, not later than 10:30 a.m., New York City time, three (3)
Business Days before the date of the proposed borrowing, and in the case of a
Fixed Rate Loan, not later than 10:30 a.m., New York City time, on the proposed
date of the borrowing; provided that (i) the failure of the Borrower to give
such notice shall be deemed to be a rejection of each Competitive Bid, (ii) the
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if the Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested borrowing for
Competitive Loans specified in the related Competitive Bid Request, (iv) to the
extent necessary to comply with clause (iii) above, the Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $5,000,000 and an integral multiple of $1,000,000; provided further
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the entity which is the Administrative Agent shall
elect to submit a Competitive Bid in its capacity as a Lender, it shall submit
such Competitive Bid directly to the Borrower at least one quarter of an hour
earlier than the time by which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this
Section.
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SECTION 2.2 Loans; Repayment of Existing Loans; Etc.
(a) Commitments.
(i) Subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans ("Revolving Credit
Loans") to the Borrower from time to time during the Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such
Lender's Commitment Percentage of the then outstanding L/C Obligations, does not
exceed the amount of such Lender's Commitment. During the Commitment Period the
Borrower may use the Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall, at any time, the sum of the Aggregate Outstanding
Revolving Extensions of Credit of all of the Lenders plus the aggregate
principal amount of outstanding Competitive Loans exceed the aggregate
Commitments then in effect.
(ii) Each Revolving Credit Loan shall be made as part
of a borrowing consisting of Revolving Credit Loans made by the Lenders ratably
in accordance with their respective Commitments. Each Competitive Loan shall be
made in accordance with the procedures set forth in Section 2.1. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(iii) Subject to Section 2.8 and Section 2.10, the
Revolving Credit Loans may from time to time be Eurodollar Loans, ABR Loans, or
Money Market Loans or a combination thereof, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.2(d) and 2.4,
provided that no Revolving Credit Loan shall be made as a Eurodollar Loan after
the day that is one (1) month prior to the Termination Date. Subject to Section
2.8 and Section 2.10, any Competitive Loan may from time to time be a Eurodollar
Loan or a Fixed Rate Loan as the Borrower may request in accordance with Section
2.1
(b) Notes. The Revolving Credit Loans made by each Lender
shall be evidenced by a promissory note executed and delivered by the Borrower
at the request of such Lender, substantially in the form of Exhibit B-1, with
appropriate insertions as to payee, date and principal amount (a "Revolving
Credit Note"), payable to the order of such Lender and in a principal amount
equal to the lesser of (i) the amount of the Commitment of such Lender and (ii)
the aggregate unpaid principal amount of all Revolving Credit Loans made by such
Lender. The Competitive Loans made by each Lender shall be evidenced by a
promissory note executed and delivered by the Borrower at the request of such
Lender, substantially in the form of Exhibit B-2, with appropriate insertions as
to payee and date (a "Competitive Loan Note"), payable to the order of such
Lender. Each Lender is hereby authorized to record, as applicable, the date,
Type and amount of each Revolving Credit Loan or Competitive Loan made by such
Lender, each continuation thereof, each conversion of all or a portion thereof
to another Type, the date and amount of each payment or prepayment of principal
thereof and, in the case of Fixed Rate Loans and Eurodollar Loans, the length of
each Interest Period with respect thereto and, in the case of Money Market
Loans, the Money Market Loan Maturity Date with respect thereto, on the schedule
annexed to and constituting a part of its Revolving Credit Note or Competitive
Loan Note, as the case may be, and any such recordation shall constitute prima
facie evidence of the accuracy of the information so recorded; provided that the
failure by any Lender to make any such recordation or any error in such
recordation shall not affect the obligations of the Borrower under this
Agreement or the Notes.
25
(c) Repayment of Loans. The Borrower shall pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Competitive Loan on the last day of the Interest Period
applicable to such Loan. The Borrower shall repay all then outstanding Revolving
Credit Loans and Competitive Loans on the Termination Date (or, if earlier, the
applicable Money Market Loan Maturity Date in respect of a Money Market Loan) to
the Administrative Agent for the account of each Lender.
(d) Procedure for Borrowing Revolving Credit Loans. The
Borrower may borrow Revolving Credit Loans during the Commitment Period on any
Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (i) three (3) Business Days prior to
the requested Borrowing Date, if all or any part of the requested Revolving
Credit Loans are to be initially Eurodollar Loans, (ii) two (2) Business Days
prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Money Market Loans, or (iii) one (1)
Business Day prior to the requested Borrowing Date, otherwise), specifying (w)
the amount to be borrowed, (x) the requested Borrowing Date and, in the case of
each Money Market Loan, the requested Money Market Loan Maturity Date, (y)
whether the borrowing is to be of Eurodollar Loans, ABR Loans, Money Market
Loans or a combination thereof and (z) if the borrowing is to be entirely or
partly of Eurodollar Loans the respective amounts of each such Type of Revolving
Credit Loan and the respective lengths of the initial Interest Periods therefor.
Each borrowing under the Commitments shall be in an amount equal to (i) in the
case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess thereof
(or, if the then aggregate Available Commitments are less than $500,000, such
lesser amount) and (ii) in the case of Eurodollar Loans or Money Market Loans,
$5,000,000 or a whole multiple of $100,000 in excess thereof, in each case
subject to Section 2.2(e). Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each such borrowing available to
the Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 10.2 prior to 1:00 P.M., New York City
time (or in the case of Money Market Loans having a Money Market Loan Maturity
Date of six (6) days or less from the relevant Borrowing Date, 3:00 P.M., New
York City time), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the account
of the Borrower on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent. In no event may the number of Money Market
Loans requested in any calendar month exceed four (4). In no event may the
number of Money Market Loans requested in any calendar year exceed eighteen
(18).
26
(e) Tranches. Notwithstanding anything to the contrary in this
Agreement, all borrowings, prepayments, conversions and continuations of
Revolving Credit Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, (i) the aggregate principal amount of the
Revolving Credit Loans comprising each Tranche shall be equal to $5,000,000 or a
whole multiple of $100,000 in excess thereof, and (ii) there shall be no more
than seven (7) Eurodollar Tranches outstanding at any one time.
(f) Termination or Reduction of Commitments. The Borrower
shall have the right, upon not less than three (3) Business Days' irrevocable
notice to the Administrative Agent (which shall promptly notify each Lender
thereof), to terminate the Commitments or, from time to time, to reduce the
amount of the Commitments; provided that no such termination or reduction shall
be permitted if, after giving effect thereto and to any payments of the
Revolving Credit Loans made on the effective date thereof, (i) the aggregate
principal amount of the Revolving Credit Loans then outstanding, plus the
aggregate L/C Obligations then outstanding, plus the aggregate principal amount
of the Competitive Loans then outstanding, would exceed the total Commitments
then in effect or (ii) the Available Commitment of any Lender would be less than
zero. Any such reduction shall be in an amount equal to $25,000,000 or a whole
multiple of $10,000,000 in excess thereof and shall reduce permanently the
Commitments then in effect. No such reductions may occur in excess of one (1)
per calendar month.
(g) Existing Loans. Schedule 2.2 sets forth, as of the
Effective Date, immediately prior to giving effect to this Agreement, the
outstanding principal amount of each Existing Lender's Existing Loans and
certain related information. The Borrower hereby confirms that, immediately
prior to giving effect to this Agreement, the Existing Loans are payable in
accordance with the terms of the Existing Credit Agreement, without any defense,
setoff or counterclaim of any kind.
SECTION 2.3 Optional Prepayments.
The Borrower may at any time and from time to time prepay the
Revolving Credit Loans (subject, in the case of Eurodollar Loans and Money
Market Loans to compliance with the terms of Section 2.2(e) and Section 2.13),
in whole or in part, without premium or penalty, upon at least three (3)
Business Days' irrevocable notice to the Administrative Agent, specifying the
date and amount of prepayment and whether the prepayment is of Eurodollar Loans,
ABR Loans, Money Market Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. The Borrower may not prepay any
Competitive Loan without the prior consent of the relevant Lender(s) thereof.
Upon receipt of any notice of prepayment, the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with any amounts payable pursuant to Section 2.13. Subject to Section
2.2(e), partial prepayments shall be in an aggregate principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the
aggregate outstanding principal amount of the Revolving Credit Loans).
SECTION 2.4 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to ABR Loans, by giving the Administrative Agent at least two
(2) Business Days' prior irrevocable notice of such election, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time
to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent at
least three (3) Business Days' prior irrevocable notice of such election. Any
such notice of conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each affected Lender
thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may be
converted as provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined in its or their
sole discretion that such a conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, Section 2.2(e)
would not be contravened, and (iii) no Revolving Credit Loan may be converted
into a Eurodollar Loan after the date that is one (1) month prior to the
Termination Date.
27
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan may be continued as such (i) when any
Event of Default has occurred and is continuing and the Administrative Agent has
or the Required Lenders have determined in its or their sole discretion that
such a continuation is not appropriate, (ii) if, after giving effect thereto,
Section 2.2(e) would be contravened, or (iii) after the date that is one month
prior to the Termination Date, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall
be automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any notice pursuant to this Section 2.4(b), the
Administrative Agent shall promptly notify each Lender thereof.
(c) Notwithstanding anything herein to the contrary, Sections
2.4(a) and (b) shall not apply to Competitive Loans, which may not be converted
or continued.
SECTION 2.5 Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee at a per annum rate for the period
from and including the first day of the Commitment Period to but excluding the
Termination Date, computed at the Facility Fee Rate on the daily amount of the
Commitment of such Lender, whether used or unused; provided that if such Lender
continues to have any Aggregate Outstanding Revolving Extensions of Credit or
outstanding Competitive Loans after its Commitment terminates, then such
facility fee shall continue to accrue at the Facility Fee Rate on the average
daily amount of such Lender's Aggregate Outstanding Revolving Extensions of
Credit and Competitive Loans from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have any
Aggregate Outstanding Revolving Extensions of Credit or outstanding Competitive
Loans. Accrued facility fees shall be payable in arrears on the last Business
Day of each calendar quarter and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that
any facility fees accruing after the date on which the Commitments terminate
shall be payable on demand.
28
(b) The Borrower shall pay to the Administrative Agent, for
its own account, and, to the extent mutually agreed upon by the Administrative
Agent and the Lenders, for the account of the Lenders, the fees in the amounts
and on the dates previously agreed to in writing by the Borrower pursuant to the
Fee Letter.
SECTION 2.6 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan (other than Competitive Loans) shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) Each Money Market Loan shall bear interest at a rate per
annum equal to the Money Market Rate applicable thereto plus the Applicable
Margin.
(d) Each Competitive Loan (other than a Fixed Rate Loan) shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus (or
minus, as applicable) the Margin applicable thereto. Each Fixed Rate Loan shall
bear interest at the Fixed Rate applicable thereto.
(e) If all or a portion of (i) the principal amount of any
Revolving Credit Loan or Competitive Loan, (ii) any interest payable thereon or
(iii) any fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal (except as otherwise specified in clause (y) below), the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section 2.6 plus 3% or (y) in the case of any overdue principal with
respect to Money Market Loans or any overdue interest, fee or other amount, the
rate described in Section 2.6(b) plus 3%, in each case from the date of such
non-payment to the date on which such amount is paid in full (as well after as
before judgment).
(f) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to Section 2.6(e) shall
be payable from time to time on demand.
SECTION 2.7 Computation of Interest and Fees.
(a) Facility fees and interest (other than interest calculated
on the basis of the Prime Rate) shall be calculated on the basis of a 360-day
year for the actual days elapsed. Interest calculated on the basis of the Prime
Rate shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate or Money Market Rate. Any change in the interest rate on a
Revolving Credit Loan (or a Competitive Loan subject to Section 2.10) resulting
from a change in the ABR shall become effective as of the opening of business on
the day on which such change becomes effective. The Administrative Agent shall
as soon as practicable notify the Borrower and the Lenders of the effective date
and the amount of each such change in interest rate.
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(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate with respect to any
Eurodollar Loan.
SECTION 2.8 Inability to Determine Interest Rate.
If prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Administrative Agent shall have received notice from
the Required Lenders (or, in the case of a Competitive Loan, the Lender that is
required to make such Competitive Loan) that the Eurodollar Rate determined or
to be determined for such Interes
t Period will not adequately and fairly reflect
the cost to such Lenders (or Lender) (as conclusively certified by such Lenders
or Lender, as the case may be) of making or maintaining their affected Revolving
Credit Loans (or its Competitive Loan) during such Interest Period;
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given, (w) any Eurodollar Loans (other than Competitive Loans) requested to be
made on the first day of such Interest Period shall be made as ABR Loans, (x)
any Revolving Credit Loans that were to have been converted on the first day of
such Interest Period to Eurodollar Loans shall be converted to or continued as
ABR Loans, (y) any outstanding Eurodollar Loans (other than Competitive Loans)
shall be converted, on the first day of such Interest Period, to ABR Loans, and
(z) any request by the Borrower for a Competitive Loan (other than a Fixed Rate
Loan) shall be ineffective; provided that if the circumstances giving rise to
such notice do not affect all the Lenders, then requests by the Borrower for
such Competitive Loans may be made to the Lenders that are not affected thereby.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert any other Revolving Credit Loans to Eurodollar Loans.
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SECTION 2.9 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower of Revolving Credit Loans
from the Lenders hereunder, each payment by the Borrower on account of any fees
hereunder and any reduction of the Commitments of the Lenders shall be made pro
rata according to the respective Commitment Percentages of the Lenders. Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Revolving Credit Loans shall be made pro rata according to
the respective outstanding principal amounts of the Revolving Credit Loans then
held by the Lenders. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed Letter of Credit drawings, interest and fees then due hereunder,
such funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed Letter of Credit drawings then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed Letter of Credit drawings then due to such
parties. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without setoff or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in Section 10.2, in Dollars and in immediately
available funds. It is understood that, if any payment of principal is made on
any day in accordance with the preceding sentence, no interest shall accrue on
such day in respect of such principal. The Administrative Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day (and, with respect to any such payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension) unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in writing by any
Lender prior to a borrowing that such Lender will not make the amount that would
constitute its share of such borrowing available to the Administrative Agent,
the Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Effective Rate for the period until
such Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this Section 2.9(b) shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three (3) Business
Days of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder, on demand, from the Borrower.
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SECTION 2.10 Illegality.
Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Lender to make or maintain Eurodollar
Loans as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, to continue Eurodollar Loans as such, or to
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled, (b) such
Lender's Revolving Credit Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to ABR Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law and (c) such Lender's Competitive Loans then
outstanding as Eurodollar Loans, if any, shall, if required by law, be converted
automatically to ABR Loans. If any such conversion of a Eurodollar Loan occurs
on a day which is not the last day of the then current Interest Period with
respect thereto, the Borrower shall pay to such Lender such amounts, if any, as
may be required pursuant to Section 2.13.
SECTION 2.11 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the Effective
Date:
(i) shall subject any Lender or the Issuing Lender to
any tax of any kind whatsoever with respect to this Agreement, any Note, any
Letter of Credit (or any participation therein) or any Application or any
Eurodollar Loan, Money Market Loan or Fixed Rate Loan made by it, or change the
basis of taxation of payments to such Lender or the Issuing Lender in respect
thereof (except in each case for Non-Excluded Taxes covered by Section 2.12 and
changes in the rate of tax on the overall net income of such Lender or the
Issuing Lender);
(ii) shall impose, modify or hold applicable any
reserve (except to the extent that such reserve is specifically subject to
Section 2.11(c)), special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, any relevant office of such Lender which is not otherwise included in
the determination of the Eurodollar Rate, the Money Market Rate or the Fixed
Rate; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender or
the Issuing Lender, by an amount which such Lender or the Issuing Lender, as the
case may be, deems to be material, of making, converting into, continuing or
maintaining Eurodollar Loans, Money Market Loans or Fixed Rate Loans or issuing
or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender or the Issuing Lender, upon its demand, any additional
amounts necessary to compensate such Lender or the Issuing Lender, as the case
may be, for such increased cost or reduced amount receivable. If any Lender or
the Issuing Lender becomes entitled to claim any additional amounts pursuant to
this Section 2.11(a), it shall promptly notify the Borrower, through the
Administrative Agent, of the event by reason of which it has become so entitled,
provided that such amounts shall be no greater than amounts that such Lender or
the Issuing Lender is generally charging other borrowers or account parties on
loans or letters of credit (as the case may be) similarly situated to the
Borrower.
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(b) If any Lender or the Issuing Lender shall have determined
that the application of any Requirement of Law regarding capital adequacy or
compliance by such Lender or the Issuing Lender or any corporation controlling
such Lender or the Issuing Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority does or shall have the effect of reducing the rate of return on such
Lender's or the Issuing Lender's or such corporation's capital as a consequence
of its obligations hereunder or under any Letter of Credit to a level below that
which such Lender or the Issuing Lender or such corporation could have achieved
but for such application or compliance (taking into consideration such Lender's
or the Issuing Lender's or such corporation's policies with respect to capital
adequacy and such Lender's or the Issuing Lender's treatment of its Commitments
and Letters of Credit for internal purposes as of the date on which it became a
party hereto) by an amount deemed by such Lender to be material, then from time
to time, after submission by such Lender or the Issuing Lender to the Borrower
(with a copy to the Administrative Agent) of a written request therefor (setting
forth in reasonable detail the basis for such request), the Borrower shall pay
to such Lender or the Issuing Lender, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Lender or such
corporation, as the case may be, for such reduction.
(c) The Borrower agrees to pay to each Lender which requests
compensation under this Section 2.11(c) (by notice to the Borrower), on the last
day of each Interest Period with respect to any Eurodollar Loan made by such
Lender, so long as such Lender shall be required to maintain reserves against
"Eurocurrency liabilities" under Regulation D of the Board (or, so long as such
Lender may be required by the Board or by any other Governmental Authority to
maintain reserves against any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar Loans is
determined as provided in this Agreement or against any category of extensions
of credit or other assets of such Lender which includes any Eurodollar Loans),
an additional amount (determined by such Lender and notified to the Borrower)
representing such Lender's calculation or, if an accurate calculation is
impracticable, reasonable estimate (using such reasonable means of allocation as
such Lender shall determine) of the actual costs, if any, incurred by such
Lender during such Interest Period, as a result of the applicability of the
foregoing reserves to such Eurodollar Loans, which amount in any event shall not
exceed the product of the following for each day of such Interest Period:
(i) the principal amount of the Eurodollar Loans made
by such Lender to which such Interest Period relates and outstanding on such
day; and
(ii) the difference between (x) a fraction the
numerator of which is the Eurodollar Rate (expressed as a decimal) applicable to
such Eurodollar Loan, and the denominator of which is one (1) minus the maximum
rate (expressed as a decimal) at which such reserve requirements are imposed by
the Board or other Governmental Authority on such date minus (y) such numerator;
and
(iii) a fraction the numerator of which is one (1)
and the denominator of which is 360.
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Any Lender which gives notice under this Section 2.11(c) shall promptly withdraw
such notice (by written notice of withdrawal given to the Administrative Agent
and the Borrower) in the event such Lender is no longer required to maintain
such reserves or the circumstances giving rise to such notice shall otherwise
cease to exist.
(d) A certificate as to any additional amounts payable
pursuant to this Section 2.11 submitted by any Lender, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. The agreements in this Section 2.11 shall survive the
termination of this Agreement, the expiration, cancellation, or other
termination of the Letters of Credit, and the payment of the Revolving Credit
Loans, the Competitive Loans and all other amounts payable hereunder (the date
on which all of the foregoing shall have occurred, the "Final Date"), until the
first anniversary of the Final Date.
SECTION 2.12 Taxes.
(a) All payments made by the Borrower under this Agreement and
the Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent, the Issuing Lender or any
Lender as a result of a present or former connection between the Administrative
Agent, the Issuing Lender or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent, the Issuing Lender or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or the Notes). If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Administrative Agent,
the Issuing Lender or any Lender hereunder or under the Notes, the amounts so
payable to the Administrative Agent, the Issuing Lender or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent, the
Issuing Lender or such Lender (after payment of all Non-Excluded Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes, provided, however, that the Borrower
shall not be required to increase any such amounts payable to any Non-U.S.
Lender if such Lender fails to comply with the requirements of Section 2.12(b).
Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its
own account or for the account of such Lender or the Issuing Lender, as the case
may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent, the Issuing
Lender and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent, the Issuing Lender or any Lender as
a result of any such failure. The agreements in this Section 2.12(a) shall
survive the termination of this Agreement, the expiration, cancellation, or
other termination of the Letters of Credit, and the payment of the Revolving
Credit Loans, the Competitive Loans and all other amounts payable hereunder.
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(b) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
or any state thereof, or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
deliver (on or prior to the Effective Date in the case of any such Person that
is a Lender as of the Effective Date) to the Borrower and the Administrative
Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", a Form
W-8BEN, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8BEN, an annual certificate representing under
penalty of perjury that such Non-U.S. Lender is not a "bank" for purposes of
Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled
foreign corporation related to the Borrower (within the meaning of Section
864(d)(4) of the Code)), properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or a reduced rate of, U.S. federal
withholding tax on all payments by the Borrower under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this Section 2.12(b), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.12(b) that
such Non-U.S. Lender is not legally able to deliver.
SECTION 2.13 Indemnity.
The Borrower agrees to indemnify each Lender and to hold each
Lender harmless from any loss or expense (including post-judgment expenses)
which such Lender may sustain or incur as a consequence of (a) default by the
Borrower in making a borrowing of Eurodollar Loans, Money Market Loans or Fixed
Rate Loans or in the conversion into or continuation of Eurodollar Loans after
the Borrower has given a notice requesting or accepting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement, or (c) the making of a prepayment or conversion of
Eurodollar Loans, Money Market Loans or Fixed Rate Loans on a day which is not
the last day of an Interest Period or the Money Market Loan Maturity Date, as
the case may be, with respect thereto. Such indemnification may, at the option
of any Lender, include an amount equal to the excess, if any, of (i) the amount
of interest which would have accrued on the amount so prepaid or converted, or
not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
the relevant Interest Period or the relevant Money Market Loan Maturity Date, as
the case may be (or proposed Interest Period or proposed Money Market Loan
Maturity Date, as the case may be), in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin or Margin) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market or other relevant market. This covenant shall
survive the termination of this Agreement, the expiration, cancellation, or
other termination of the Letters of Credit, and the payment of the Revolving
Credit Loans, the Competitive Loans and all other amounts payable hereunder,
until the first anniversary of the Final Date.
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SECTION 2.14 Change of Lending Office.
Each Lender and each Transferee agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.10, 2.11 or
2.12 with respect to such Lender or Transferee, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender or Transferee) to designate another lending office for any Revolving
Credit Loans or Competitive Loans affected by such event with the object of
avoiding the consequences of such event; provided that such designation is made
on terms that, in the sole judgment of such Lender or Transferee, cause such
Lender or Transferee and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section
2.14 shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender or Transferee pursuant to Sections 2.10, 2.11 and 2.12.
SECTION 2.15 Replacement of Lenders under Certain Circumstances.
The Borrower shall be permitted to replace any Lender which
(a) requests reimbursement for amounts owing pursuant to Section 2.11 or 2.12,
(b) is affected in the manner described in Section 2.10 and as a result thereof
any of the actions described in Section 2.10 is required to be taken or (c)
defaults in its obligation to make Revolving Credit Loans hereunder, with a
replacement bank or other financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) the Borrower shall repay (or the replacement bank or institution shall
purchase, at par) all Revolving Credit Loans and other amounts (other than
Competitive Loans) owing to such replaced Lender prior to the date of
replacement, (iv) the Borrower shall be liable to such replaced Lender under
Section 2.13 if any Eurodollar Loan, Money Market Loan or Fixed Rate Loan owing
to such replaced Lender shall be prepaid (or purchased) other than on the last
day of the Interest Period or the Money Market Loan Maturity Date, as the case
may be, relating thereto, (v) the replacement bank or institution, if not
already a Lender, and the terms and conditions of such replacement, shall be
satisfactory to the Administrative Agent and the Issuing Lender, (vi) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 10.6 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein), (vii) the replaced
Lender shall (except as provided in the following clause (ix)) be released from
its obligations under this Agreement, (viii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 2.11 or 2.12, as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights which the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender if it defaulted in its obligation to make Revolving Credit Loans
hereunder.
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ARTICLE III
LETTERS OF CREDIT
SECTION 3.1 L/C Commitment.
(a) Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the Lenders set forth in Section
3.4(a), agrees to issue letters of credit ("Letters of Credit") for the account
of the Borrower on any Business Day during the Commitment Period other than the
last ten (10) Business Days thereof in such form as may be acceptable from time
to time to the Issuing Lender; provided that the Issuing Lender shall have no
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii) the
Available Commitment of any Lender would be less than zero or (iii) the sum of
the Aggregate Outstanding Revolving Extensions of Credit of all the Lenders plus
the aggregate principal amount of all outstanding Competitive Loans shall exceed
the aggregate Commitments.
(b) Each Letter of Credit (i) shall be denominated in Dollars,
(ii) shall be available by sight payment (rather than by acceptance, by deferred
payment or by negotiation), (iii) shall be a standby letter of credit issued to
support obligations of the Borrower and its Subsidiaries, contingent or
otherwise, incurred in the ordinary course of business and (iv) shall expire no
later than ten (10) Business Days prior to the Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform
Customs or the ISP and, to the extent not inconsistent therewith, the laws of
the State of New York.
(d) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
SECTION 3.2 Procedure for Issuance of Letters of Credit.
The Borrower may from time to time request that the Issuing
Lender issue a Letter of Credit by delivering to the Issuing Lender at its
address for notices specified herein an Application therefor, completed to the
satisfaction of the Issuing Lender, and such other certificates, documents and
other papers and information as the Issuing Lender may request. Upon receipt of
any Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three (3)
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the Borrower and the
Administrative Agent promptly following the issuance thereof, and the
Administrative Agent shall promptly notify the Lenders thereof.
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SECTION 3.3 Fees and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for
the account of the Issuing Lender and the L/C Participants, a letter of credit
fee with respect to each Letter of Credit at a per annum rate, for each day
during the period from and including the date of issuance of such Letter of
Credit to and including the first date thereafter on which such Letter of Credit
shall expire or be cancelled or fully drawn, equal to the L/C Fee Rate in effect
on such day, calculated on the basis of a 360-day year, of the aggregate amount
available to be drawn under such Letter of Credit on such day. In addition, the
Borrower shall pay to the Issuing Lender for its own account a fronting fee of
0.10% per annum on the undrawn and unexpired amount of each Letter of Credit.
Letter of credit fees and fronting fees pursuant to this paragraph shall be
payable quarterly in arrears on each L/C Fee Payment Date to occur while the
relevant Letter of Credit is outstanding and shall be nonrefundable.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
fees received by the Administrative Agent for their respective accounts pursuant
to this Section 3.3.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Commitment
Percentage in the Issuing Lender's obligations and rights in respect of each
Letter of Credit issued hereunder and the amount of each draft or other demand
for payment paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if the
Issuing Lender notifies it that a draft or other demand for payment has been
paid under any Letter of Credit for which the Issuing Lender has not been
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Commitment Percentage of the amount of such draft or
other demand for payment, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three (3) Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal funds rate, as quoted by the Issuing Lender, during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 3.4(a) is not in fact made available to the
Issuing Lender by such L/C Participant within three (3) Business Days after the
date such payment is due, the Issuing Lender shall be entitled to recover from
such L/C Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to ABR Loans hereunder. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section shall be conclusive in the absence of
manifest error.
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(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with this Section 3.4, the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will promptly distribute to such L/C Participant its pro rata
share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower.
(a) The Borrower agrees to reimburse the Issuing Lender on
each date on which the Issuing Lender notifies the Borrower of the date and
amount of a draft or other demand for payment presented under any Letter of
Credit and paid by the Issuing Lender for the amount of (i) such draft or other
demand so paid (which reimbursement may be effected through the procedure
described in Section 3.5(c)) and (ii) any taxes, fees, charges or other costs or
expenses (including post-judgment taxes, fees, charges or other costs or
expenses) incurred by the Issuing Lender in connection with such payment. Each
such payment shall be made to the Issuing Lender at its address for notices
specified herein in lawful money of the United States of America and in
immediately available funds. (b) Interest shall be payable on any and all
amounts remaining unpaid by the Borrower under this Article III from the date
such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which would be payable on any
outstanding ABR Loans which were then overdue.
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to
Section 2.2(d) of ABR Loans in the amount of such drawing. The Borrowing Date
with respect to such borrowing shall be the date of such drawing.
SECTION 3.6 Obligations Absolute.
(a) The Borrower's obligations under this Article III shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender, any L/C Participant or any beneficiary of a
Letter of Credit.
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(b) The Borrower also agrees that the Issuing Lender and the
L/C Participants shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 3.5(a) shall not be affected by, among other things,
(i) the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or (ii) any dispute between or among the Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee.
(c) The Issuing Lender shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by the Issuing Lender's gross negligence
or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by
the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with any applicable standard of care
specified in the Uniform Commercial Code of the State of New York, shall be
binding on the Borrower and shall not result in any liability of the Issuing
Lender or any L/C Participant to the Borrower. In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that (i) with
respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Lender may, in its
sole discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit, (ii) the Issuing Lender may, in its sole discretion, (x)
assert or waive application of Article 17 and Article 45 of the Uniform Customs,
or (y) accept as a draft any written demand or request for payment under a
Letter of Credit even if non-negotiable or not in the form of a draft, and (iii)
with respect to documents presented which the Issuing Lender determines do not
appear on their face to comply with the terms of a Letter of Credit, the Issuing
Lender may, in its sole discretion, approach the Borrower for a waiver of the
discrepancy(ies), but neither requesting such a waiver from the Borrower nor
receiving such a waiver from the Borrower shall obligate the Issuing Lender to
make payment against such documents. The Borrower will notify the Issuing Lender
in writing of any objection the Borrower may have to the Issuing Lender's
issuance or amendment of any Letter of Credit, the Issuing Lender's honor or
dishonor of any presentation under any Letter of Credit, or any other action or
inaction taken or proposed to be taken by the Issuing Lender under or in
connection with this Agreement or any Letter of Credit. The Borrower's notice of
objection must be delivered to the Issuing Lender within five (5) Business Days
after the Borrower receives notice of the action or inaction it objects to. The
Borrower's failure to give such notice of objection within five (5) Business
Days after the Borrower's actual receipt of notice of the action or inaction it
objects to shall automatically waive the Borrower's objection, authorize or
ratify the Issuing Lender's action or inaction, and preclude the Borrower from
raising the objection as a defense or claim against the Issuing Lender.
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SECTION 3.7 Letter of Credit Payments.
If any draft or other demand for payment shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft or other demand for payment
presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft or other demand for
payment) delivered under such Letter of Credit in connection with such
presentment appear on their face to be in conformity with the terms and
conditions of such Letter of Credit.
SECTION 3.8 Applications.
To the extent that any provision of any Application related to
any Letter of Credit is inconsistent with the provisions of this Article III,
the provisions of this Article III shall apply.
SECTION 3.9 Replacement of the Issuing Lender.
The Issuing Lender may be replaced at any time by written
agreement among the Borrower, the Administrative Agent, the replaced Issuing
Lender and the successor Issuing Lender. The Administrative Agent shall notify
the Lenders of any such replacement of the Issuing Lender. At the time any such
replacement shall become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Lender. From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the Issuing Lender under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references
herein to the term "Issuing Lender" shall be deemed to refer to such successor
or to any previous Issuing Lender, or to such successor and all previous Issuing
Lenders, as the context shall require. After the replacement of an Issuing
Lender hereunder, the replaced Issuing Lender shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Lender under
this Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Issuing Lender, and
the Lenders to enter into this Agreement, to make or maintain the Revolving
Credit Loans and Competitive Loans, and to issue or participate in the Letters
of Credit, the Borrower hereby represents and warrants to the Administrative
Agent, the Issuing Lender, and each Lender that:
SECTION 4.1 Financial Condition.
The consolidated balance sheet of the Borrower and its
subsidiaries as at December 31, 2002 and the related consolidated statements of
income and of cash flows for the fiscal year ended on such date, reported on by
PricewaterhouseCoopers, LLP, copies of which have heretofore been furnished to
the Lenders, are complete and correct and present fairly the consolidated
financial condition of the Borrower and its subsidiaries as at such dates, and
the consolidated results of their operations and their consolidated cash flows
for the fiscal year then ended. The unaudited consolidated balance sheet of the
Borrower and its subsidiaries as at March 31, 2003 and the related unaudited
consolidated statements of income and of cash flows for the three-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to the Lenders, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its subsidiaries
as at such date, and the consolidated results of their operations and their
consolidated cash flows for the three-month period then ended (subject to normal
year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved. Except as set forth on
Schedule 4.1, neither the Borrower nor any of the Consolidated Entities has, at
the Effective Date, any material Indebtedness, Guarantee Obligation, contingent
liability or liability for taxes, or any unusual forward or long-term
commitment, including any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the notes
thereto. Except as set forth on Schedule 4.1, during the period from December
31, 2002 to and including the Effective Date there has been no sale, transfer or
other disposition by the Borrower or any of the Consolidated Entities of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Borrower and
the Consolidated Entities at December 31, 2002.
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SECTION 4.2 No Change.
Since December 31, 2002 (a) there has been no development or
event nor any prospective development or event, which has had or could
reasonably be expected to have a Material Adverse Effect. Without limiting the
foregoing, no dividends or other distributions have been declared, paid or made
upon the Capital Stock of the Borrower nor has any of the Capital Stock of the
Borrower been redeemed, retired, purchased or otherwise acquired for value by
the Borrower or any of its Subsidiaries, .except pursuant to transactions not
prohibited under Section 7.3 and the transactions described on Schedule 4.2.
SECTION 4.3 Corporate Existence; Compliance with Law.
(a) The Borrower (i) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (ii)
has the corporate power and authority, and the legal right, to own and operate
its property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (iii) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except to the extent the failure to be so qualified
and in good standing could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect, and (iv) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Each Subsidiary (i) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
(ii) has the corporate (or limited partnership or limited liability company or
other form of organization, as applicable) power and authority, and the legal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (iii) is
duly qualified as a foreign corporation (or limited partnership or limited
liability company or other form of organization, as applicable) and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, and (iv) is in compliance with all Requirements of Law except, in
the case of clauses (i), (ii), (iii) or (iv) above, as could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
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SECTION 4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate (or limited partnership or
limited liability company or other form of organization, as applicable) power
and authority, and the legal right, to make, deliver and perform each Loan
Document to which it is a party and, in the case of the Borrower, to borrow and
request the issuance of Letters of Credit hereunder, and each Loan Party has
taken all necessary corporate (or limited partnership or limited liability
company or other form of organization, as applicable) action to authorize the
execution, delivery and performance of each Loan Document to which it is a party
and, in the case of the Borrower, the borrowings and requests for Letters of
Credit on the terms and conditions of this Agreement. No consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings and
requests for Letters of Credit hereunder or with the execution, delivery,
performance, validity or enforceability of any Loan Document. Each Loan Document
has been duly executed and delivered on behalf of each Loan Party party thereto.
Each Loan Document constitutes a legal, valid and binding obligation of each
Loan Party party thereto enforceable against each such Loan Party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
SECTION 4.5 No Legal Bar.
The execution, delivery and performance of the Loan Documents
and the borrowings and requests for Letters of Credit hereunder and the use of
the proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of the Borrower or of any of its Subsidiaries and will not result in,
or require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
SECTION 4.6 No Material Litigation.
No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries or
against any of its or their respective properties or revenues (a) with respect
to this Agreement, any of the other Loan Documents or any of the transactions
contemplated hereby, or (b) which could reasonably be expected to have a
Material Adverse Effect.
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SECTION 4.7 No Default.
Neither the Borrower nor any of its Subsidiaries is in default
under or with respect to any of its Contractual Obligations in any respect which
could reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
SECTION 4.8 Ownership of Property.
Each of the Borrower and its Subsidiaries has good record
title in fee simple to, or a valid leasehold interest in, all of its material
real property, and good title to all of its other material property.
SECTION 4.9 Intellectual Property.
The Borrower and each of its Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights, technology, know-how and
processes ("Intellectual Property") necessary for the conduct of its business as
currently conducted except for those the failure to own or license which could
not reasonably be expected to have a Material Adverse Effect. No claim has been
asserted and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does the Borrower know of any valid basis for any such claim. The
use of such Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
SECTION 4.10 No Burdensome Restrictions; Disclosure.
No Requirement of Law or Contractual Obligation of the
Borrower or any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect. Neither the Confidential Memorandum nor any of the
other reports, financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent, the Issuing Lender
or any Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 4.11 Taxes.
Each of the Borrower and its Subsidiaries has filed or caused
to be filed all tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any taxes, fees, or other charges the amount
or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Subsidiaries, as the case may be);
no tax Lien has been filed, and, to the knowledge of the Borrower, no claim is
being asserted, with respect to any such tax, fee or other charge.
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SECTION 4.12 Federal Regulations.
No part of the proceeds of any Revolving Credit Loan or
Competitive Loan and no Letter of Credit will be used for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of the Board. If requested by the Administrative Agent, the Borrower
will furnish to the Administrative Agent a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U.
SECTION 4.13 ERISA.
No Reportable Event has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by the Borrower or
any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial and
other assumptions which are reasonable in respect of the benefits provided and
the employees participating) of the liability of the Borrower and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) equals or exceeds the assets under all such Plans
allocable to such benefits.
SECTION 4.14 Investment Company Act; Other Regulations.
The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. The Borrower is not subject to regulation under
any Federal or State statute or regulation which limits its ability to incur
Indebtedness.
SECTION 4.15 Guarantors.
The Entities listed on Schedule 4.15 constitute all Persons
required in accordance with the provisions of this Agreement to be Guarantors as
of the Effective Date.
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SECTION 4.16 Purpose.
The proceeds of the Revolving Credit Loans and the Competitive
Loans and the Letters of Credit shall be used by the Borrower for general
corporate purposes (excluding commercial paper back-up).
SECTION 4.17 Environmental Matters.
Each of the following representations and warranties is true
and correct on and as of the Effective Date except to the extent that the facts
and circumstances giving rise to any such failure to be so true and correct, in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) To the best knowledge of the Borrower, the Properties do
not contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations which constitute or constituted a violation
of, or could reasonably give rise to liability under, Environmental Laws.
(b) To the best knowledge of the Borrower, the Properties and
all operations at the Properties are in compliance, and have in the last two
years been in compliance, with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties, or violation of any
Environmental Law with respect to the Properties.
(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties, nor does the Borrower
have knowledge or reason to believe that any such notice will be received or is
being threatened.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably give rise to liability under, Environmental Laws, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Laws.
(e) No judicial proceeding or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any of its Subsidiaries is or, to the
knowledge of the Borrower, will be named as a party with respect to the
Properties, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative of judicial
requirements outstanding under any Environmental Law with respect to the
Properties.
(f) To the best knowledge of the Borrower, there has been no
release or threat of release of Materials of Environmental Concern at or from
the Properties, or arising from or related to the operations of the Borrower and
its Subsidiaries in connection with the Properties in violation of or in amounts
or in a manner that could give rise to liability under Environmental Laws.
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SECTION 4.18 Insurance.
The Borrower and each Subsidiary maintains with insurance
companies rated at least A- by A.M. Best & Co., with premiums at all times
currently paid, insurance upon fixed assets and inventories, including public
liability insurance, fire and all other risks insured against by extended
coverage, fidelity bond coverage, business interruption insurance, and all
insurance required by law, all in form and amounts required by law and customary
to the respective natures of their businesses and properties, except in cases
where failure to maintain such insurance will not have or potentially have a
Material Adverse Effect.
SECTION 4.19 Condition of Properties.
Each of the following representations and warranties is true
and correct except to the extent that the facts and circumstances giving rise to
any such failure to be so true and correct, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) All of the improvements located on the Properties and the
use of said improvements comply and shall continue to comply in all respects
with all applicable zoning resolutions, building codes, subdivision and other
similar applicable laws, rules and regulations and are covered by existing valid
certificates of occupancy and all other certificates and permits required by
applicable laws, rules, regulations and ordinances or in connection with the
use, occupancy and operation thereof.
(b) No material portion of any of the Properties, nor any
improvements located on said Properties that are material to the operation, use
or value thereof, have been damaged in any respect as a result of any fire,
explosion, accident, flood or other casualty.
(c) No condemnation or eminent domain proceeding has been
commenced or to the knowledge of the Borrower is about to be commenced against
any portion of any of the Properties, or any improvements located thereon that
are material to the operation, use or value of said Properties except as set
forth and described in Schedule 4.19.
(d) No notices of violation of any federal, state or local law
or ordinance or order or requirement have been issued with respect to any
Properties.
SECTION 4.20 Benefit of Loans.
The Borrower and each Subsidiary are engaged as an integrated
corporate group in the business of acquiring, owning, developing and operating
shopping centers and of providing the required services and other facilities for
those integrated operations. The Borrower and each Subsidiary require financing
on such a basis that funds can be made available to the Borrower and each
Subsidiary to the extent required for the continued operation of their
integrated activities and each of them expects to derive benefits, directly or
indirectly, in return for undertaking their respective obligations under this
Agreement and the other Loan Documents, both individually and as members of the
integrated group.
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SECTION 4.21 REIT Status.
The Borrower is an equity-oriented real estate investment
trust under Sections 856 through 860 of the Code.
ARTICLE V
CONDITIONS
SECTION 5.1 Conditions to Effectiveness / Effective Date.
The effectiveness of this Agreement and the availability of
the Revolving Credit Facility hereunder, is subject to the satisfaction of the
following conditions (or the waiver of such conditions in accordance with
Section 10.1):
(a) Credit Agreement. The Administrative Agent shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) Interest, Fees, Breakage Costs and Expenses. The
Administrative Agent shall have received payment (which may be proceeds of the
initial Loans under this Agreement) of (i) for the account of the Existing
Lenders, the aggregate outstanding principal amount of all of the Existing
Loans, (ii) for the account of the Existing Lenders and the Issuing Lender under
the Existing Credit Agreement, as the case may be, all interest and fees accrued
to but excluding the Effective Date under the Existing Credit Agreement or any
fee letter referred to therein or relating thereto, (iii) for the account of the
Existing Lenders, any and all amounts payable pursuant to Section 2.13 of the
Existing Credit Agreement, (iv) for the account of the Existing Lenders or the
Issuing Lender under the Existing Credit Agreement, as the case may be, all
unpaid reimbursement obligations in respect of any drawings under any letter of
credit issued pursuant to or governed by the Existing Credit Agreement, and (v)
for the account of the applicable payee, all fees and other amounts due and
payable on or prior to the Effective Date under or in connection with the
Existing Credit Agreement or this Agreement, including pursuant to the Fee
Letter and, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder, including the reasonable fees and disbursements invoiced through the
Effective Date of JPMCB's special counsel.
(c) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for the Administrative Agent, each Lender and the
Issuing Lender, the executed legal opinion of Robert Schulman, Esq., counsel to
the Loan Parties, substantially in the form of Exhibit D. The Borrower hereby
requests such counsel to deliver such opinion.
(d) Subsidiary Guarantee. The Administrative Agent shall have
received from each party thereto either (i) a counterpart of the Subsidiary
Guarantee signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a signed
signature page thereof) that such party has signed a counterpart of such
Subsidiary Guarantee.
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(e) Notes. The Administrative Agent shall have received from
the Borrower a signed Revolving Credit Note and a signed Competitive Loan Note
for the account of each Lender.
(f) Closing Certificates. The Administrative Agent shall have
received a certificate from a Responsible Officer dated the Effective Date, (i)
confirming compliance with the conditions specified in this Section 5.1 and in
Section 5.2 and (ii) certifying as to the names and offices of the Persons
authorized to sign the Loan Documents to be delivered pursuant to the terms
hereof by each Loan Party, together with the signatures of each such Person and
a certificate of another Responsible Officer, certifying as to the name, office,
and signature of such first Responsible Officer.
(g) Organizational Documents, Etc. The Administrative Agent
shall have received such documents and certificates as the Administrative Agent
or its counsel may reasonably request relating to the organization, existence
and good standing of the Borrower, and the authorization of the Borrower in
respect of the transactions contemplated by this Agreement or the other Loan
Documents, all in form and substance reasonably satisfactory to the
Administrative Agent, certified to be true, correct and complete by a
Responsible Officer as of the Effective Date.
(h) Financial Statements. The Borrower shall have furnished to
the Lenders its (i) audited consolidated balance sheets and statements of
income, stockholders equity and cash flows as of and for the two (2) most recent
fiscal years ended prior to the Effective Date, and (ii) its unaudited interim
consolidated financial statement as of and for each fiscal quarter subsequent to
the date of the latest financial statement delivered pursuant to clause (i)
above, all certified by its chief financial officer. Such financial statements
shall present fairly, in all material respects, the consolidated financial
position and results of operations and cash flows of the Borrower and its
subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.
(i) Existing Credit Agreement. On the Effective Date, there
shall be no Default or Event of Default (as such terms are defined in the
Existing Credit Agreement) under the Existing Credit Agreement. In addition, all
Commitments (as such term is defined in the Existing Credit Agreement) under the
Existing Credit Agreement, shall have been terminated, and, after giving effect
to the extension of credit requested to be made on the Effective Date, all
principal, interest, fees and other amounts due and/or payable in accordance
therewith shall have been paid in full.
The Administrative Agent shall notify the Borrower, the Issuing Lender, and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
SECTION 5.2 Conditions to Each Extension of Credit.
The agreement of each Lender to make any extension of credit
requested to be made by it on any date (including its initial extension of
credit) is subject to the satisfaction of the following conditions precedent:
49
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of such
date as if made on and as of such date except for representations and warranties
expressly stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as
of such earlier date.
(b) No Default. (i) No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the extension
of credit requested to be made on such date and (ii) the Borrower would be in
compliance with each financial covenant set forth in paragraphs (a) through (g)
of Section 7.1 if the ratio or amount referred to therein were to be calculated
as of such date (provided that for the purposes of determining such compliance,
Gross Asset Value and Value of Unencumbered Properties shall be determined for
the most recent Test Period as to which a compliance certificate has been
delivered pursuant to Section 6.2(b)).
Each borrowing by, or issuance, renewal, extension or amendment of a Letter of
Credit on behalf of, the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date of such extension of credit (or
renewal, extension or amendment of a Letter of Credit) that the conditions
contained in this Section 5.2 have been satisfied.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Competitive Loan or any Revolving Credit Loan remains
outstanding and unpaid, any Letter of Credit remains outstanding, any
Reimbursement Obligation remains unpaid in respect of any Letter of Credit, or
any other amount is owing to any Lender, the Issuing Lender or the
Administrative Agent hereunder, the Borrower shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Subsidiaries to:
SECTION 6.1 Financial Statements.
Furnish to the Administrative Agent (with sufficient copies
for each Lender and the Issuing Lender):
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its subsidiaries as at the end of such year
and the related consolidated statements of income and retained earnings and of
cash flows of the Borrower and its subsidiaries for such year, setting forth in
each case in comparative form the figures as of the end of and for the previous
year, reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers, LLP or other independent certified public accountants of
nationally recognized standing; and
50
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three (3) quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of cash
flows of the Borrower and its subsidiaries for such quarter and the portion of
the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding date or period, as the case
may be, in the previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
The Administrative Agent shall make available to the Lenders (which the
Administrative Agent may effect by electronic posting) the materials furnished
to it pursuant to this Section.
SECTION 6.2 Certificates; Other Information.
Furnish to the Administrative Agent (with sufficient copies
for each Lender and the Issuing Lender (in the case of clauses (a)-(c) below) or
each relevant Lender or Issuing Lender (in the case of clauses (d)-(e) below)):
(a) [reserved];
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and 6.1(b), (i) a compliance certificate of a
Responsible Officer substantially in the form of Exhibit F and (ii) the
Subsidiary Guarantee, executed and delivered by all Persons required hereunder
at such time to have executed and delivered the Subsidiary Guarantee, including
all new or redesignated Qualified Wholly Owned Subsidiaries;
(c) within ten (10) days after the same are sent, copies of
all financial statements and reports which the Borrower sends to its
stockholders, and within ten (10) days after the same are filed, copies of all
financial statements, reports or other documents which the Borrower may make to,
or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) [reserved]; and
(e) promptly, upon request of the Administrative Agent, a list
of all Entities, and such additional financial information, information with
respect to any Property and other information as any Lender or the Issuing
Lender may from time to time reasonably request (through the Administrative
Agent).
The Administrative Agent shall make available to the Lenders (which the
Administrative Agent may effect by electronic posting) the materials furnished
to it pursuant to this Section.
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SECTION 6.3 Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except (a) where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books of the
Borrower or its Subsidiaries, as the case may be, or (b) (i) Non-Recourse
Indebtedness and (ii) other obligations which aggregate not more than
$20,000,000, in each case to the extent that the Borrower or the relevant
Subsidiary has determined in good faith that it is in its best interests not to
pay or contest such Non-Recourse Indebtedness or such other obligations, as the
case may be.
SECTION 6.4 Maintenance of Existence, etc.
(a) Preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business except as otherwise permitted pursuant to Section 7.2.
(b) Comply with all Contractual Obligations and Requirements
of Law except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
SECTION 6.5 Maintenance of Property; Insurance.
Keep all property useful and necessary in its business in good
working order and condition; maintain insurance with financially sound and
reputable insurance companies rated at least A- by A.M. Best & Co. on all of its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender and the Issuing Lender,
upon written request, full information as to the insurance carried.
SECTION 6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender or the Issuing Lender to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and employees
of the Borrower and its Subsidiaries and with its independent certified public
accountants.
SECTION 6.7 Notices.
Promptly give notice to the Administrative Agent, the Issuing
Lender and each Lender of:
52
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any of its Subsidiaries and any Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or administrative or other proceeding
affecting the Borrower or any of its Subsidiaries in which the amount involved
is $20,000,000 or more and not covered by insurance or in which material
injunctive or similar relief is sought, or the occurrence in respect of any
Guarantor of any case, proceeding, event, or circumstance of the nature set
forth in paragraph (f) of Article VIII;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan;
and
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
The Administrative Agent shall promptly forward to the Lenders (which the
Administrative Agent may effect by electronic posting) any written notice
hereunder furnished to it pursuant to this Section.
SECTION 6.8 Environmental Laws.
(a) Comply with, and use its best efforts to ensure compliance
by all tenants and subtenants, if any, with, all applicable Environmental Laws
and obtain and comply with and maintain, and use its best efforts to ensure that
all tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except to the extent that failure to do so could
not be reasonably expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except to the extent that (i) the same are being contested in good faith
by appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect or (ii) the Borrower has
determined in good faith that contesting the same is not in the best interests
of the Borrower and its Subsidiaries and the failure to contest the same could
not be reasonably expected to have a Material Adverse Effect.
53
(c) Defend, indemnify and hold harmless the Administrative
Agent, the Issuing Lender and each Lender, and their respective employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses (whether arising
pre-judgment or post-judgment) of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the violation
of, noncompliance with or liability under any Environmental Laws applicable to
the operations of the Borrower, its Subsidiaries or the Properties, or any
orders, requirements or demands of Governmental Authorities related thereto,
including attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful misconduct of
the party seeking indemnification therefor. Notwithstanding anything to the
contrary in this Agreement, this indemnity shall continue in full force and
effect regardless of the termination of this Agreement.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Competitive Loan or any Revolving Credit Loan remains
outstanding and unpaid, any Letter of Credit remains outstanding, any
Reimbursement Obligation remains unpaid in respect of any Letter of Credit, or
any other amount is owing to any Lender, the Issuing Lender or the
Administrative Agent hereunder, the Borrower shall not, and, in the case of
Sections 7.2 through 7.7, shall not permit any of its Subsidiaries to, directly
or indirectly:
SECTION 7.1 Financial Covenants.
(a) Total Indebtedness Ratio. Permit, at the last day of any
Test Period, the ratio of (i) Total Indebtedness as of such day to (ii) Gross
Asset Value as of such day to exceed 0.55 to 1.00.
(b) Total Secured Indebtedness Ratio. Permit, at the last day
of any Test Period, the ratio of (i) Total Secured Indebtedness as of such day
to (ii) Gross Asset Value as of such day to exceed 0.25 to 1.00.
(c) Minimum Net Worth. Permit, at the last day of any fiscal
quarter of the Borrower, Net Worth to be less than an amount equal to the sum of
(i) $1,500,000,000 plus (ii) 75% of the excess of (A) the aggregate proceeds
received by the Borrower (net of customary related fees and expenses) in
connection with any offering of Capital Stock of the Borrower consummated after
the Effective Date over (B) amounts paid in cash by the Borrower after the date
of this Agreement in repurchase or redemption of outstanding Capital Stock of
the Borrower to the extent permitted under Section 7.3.
54
(d) Unencumbered Asset Value Ratio. Permit, at the last day of
any Test Period, the ratio of (i) Total Recourse Indebtedness as of such day to
(ii) Unencumbered Asset Value for such period, to exceed 0.55 to 1.0.
(e) Unsecured Interest Expense Ratio. Permit, for any Test
Period, the ratio of (i) Unencumbered Assets NOI for such period to (ii) Total
Unsecured Interest Expense for such period to be less than 2.5 to 1.0.
(f) Fixed Charge Coverage Ratio. Permit, for any Test Period,
the ratio of Total Adjusted EBITDA for such period to Total Debt Service for
such period to be less than 2.0 to 1.0.
Solely for the purpose of calculating the ratio in this clause
(f), Total Adjusted EBITDA (i) shall include cash flow distributions (other than
distributions in respect of capital transactions) from Noncontrolled Entities
("Noncontrolled Entity Operating Cash Flow"), provided that Noncontrolled Entity
Operating Cash Flow distributed during the most recent twelve-month period in
respect of any Noncontrolled Entity shall be included, without duplication, only
to the extent of 50% of the amount of such distributions made in such
twelve-month period, and (ii) shall be increased by the amounts excluded
pursuant to clauses (iv), (v) and (vi) of the definition of "Total Adjusted
EBITDA".
(g) Limitation on Recourse Secured Indebtedness. Permit, at
any time, the aggregate outstanding principal amount of Recourse Secured
Indebtedness to exceed $75,000,000.
Solely for the purposes of this Section 7.1: direct or indirect reference to
EBITDA, NOI, Indebtedness and debt service (and items thereof, when applicable)
with respect to the Entities, when included, shall be included only to the
extent of the Ownership Percentage therein, except as otherwise specifically
provided.
SECTION 7.2 Limitation on Certain Fundamental Changes.
(a) Enter into any merger (except as described in Schedule
7.2), consolidation or amalgamation, (b) liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or (c) convey, sell, lease, assign,
transfer or otherwise dispose of, all or a substantial portion of its property,
business or assets (each such transaction referred to in the preceding clauses
(a), (b) and (c), a "Capital Transaction"), unless (i) such Capital Transaction
does not involve all or a substantial portion of the property, business or
assets owned or leased by the Borrower and its Subsidiaries determined on a
consolidated basis with respect to the Borrower and its Subsidiaries taken as a
whole, (ii) there is no Default or Event of Default, before and after giving
effect to such Capital Transaction (including any changes resulting from
recharacterization of Unencumbered Property), and (iii) without limiting the
foregoing, the Borrower is in compliance with all covenants under Section 7.1
after giving effect to such Capital Transaction (including any changes resulting
from recharacterization of Unencumbered Property), and would have been in
compliance therewith for the most recent Test Period if such Capital Transaction
had been given effect (including any changes resulting from recharacterization
of Unencumbered Property) during such Test Period; provided that the Borrower
may not engage in a Capital Transaction other than a merger as to which it is
the surviving entity.
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SECTION 7.3 Limitation on Restricted Payments.
Unless otherwise required in order to maintain the Borrower's
status as a real estate investment trust, declare or pay any dividend (other
than dividends payable solely in the same class of Capital Stock) on, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any shares of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary (collectively, "Restricted Payments"); provided that
notwithstanding the foregoing, (i) during any period of four (4) consecutive
fiscal quarters of the Borrower on a cumulative basis, the Borrower may make
Restricted Payments in an aggregate amount not to exceed the greater of (a) an
amount equal to the lesser of 90% of FFO for such period and 100% of FAD for
such period on a cumulative basis, and (b) the amount of dividends required to
be paid by the Borrower in order to maintain its status as a real estate
investment trust under the Code, and (ii) dividends and distributions may be
paid by any Subsidiary to the Borrower or to any Guarantor.
Solely for the purpose of this Section 7.3, all references to
shares in the definition of "Capital Stock" shall be to common shares only.
SECTION 7.4 Limitation on Investments, Loans and Advances.
Make any advance, loan, extension of credit or capital
contribution to any Person, or purchase any stock, bonds, notes, debentures or
other securities of or any assets constituting a business unit of, or otherwise
make any investment in, any Person, or acquire or otherwise make any investment
in any real property (collectively, "Investments"), if, after giving effect
thereto, the aggregate amount of Investments (valued at cost) made in
Noncontrolled Entities from and after the date of this Agreement would exceed
15% of Gross Asset Value.
SECTION 7.5 Limitation on Transactions with Affiliates.
Enter into any transaction, including any purchase, sale,
lease or exchange of property or the rendering of any service, with any
Affiliate unless (a) no Default or Event of Default would occur as a result
thereof and (b) such transaction is (i) in the ordinary course of the business
of any Loan Party that is a party thereto and (ii) upon fair and reasonable
terms no less favorable to any Loan Party that is a party thereto or is affected
thereby than would be obtained in a comparable arm's length transaction with a
Person that is not an Affiliate.
SECTION 7.6 Limitation on Changes in Fiscal Year.
Permit the fiscal year of the Borrower to end on a day other
than December 31, unless otherwise required by any applicable law, rule or
regulation.
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SECTION 7.7 Limitation on Lines of Business; Issuance of Commercial
Paper; Creation of Subsidiaries; Negative Pledges.
(a) Engage in activities other than real estate business and
real estate related business activities, and in activities permitted for real
estate investment trusts under the Code.
(b) Issue any commercial paper in an aggregate principal
amount exceeding the aggregate unused and available commitments under any
revolving credit facility (other than the Commitments hereunder) entered into by
the Borrower and not prohibited by this Agreement. For the purposes of this
paragraph, commitments shall be deemed to be available to the extent that, on
any date of determination, assuming timely delivery of a borrowing notice by the
Borrower, the lender(s) thereunder would be obligated to fund loans pursuant
thereto.
(c) Create or acquire any Qualified Wholly Owned Subsidiary
after the Effective Date unless, no later than the date of the first required
delivery of financial statements pursuant to Section 6.1(a) or 6.1(b) occurring
after such creation or acquisition, such Qualified Wholly Owned Subsidiary
becomes a party to the Subsidiary Guarantee; provided, however, that an entity
that would otherwise be required to become a party to the Subsidiary Guarantee
in accordance with the foregoing shall not be required to do so until ninety
(90) days shall have elapsed from the time that such entity first acquires any
assets.
(d) Enter into with any Person, or suffer to exist, any
agreement, other than (i) this Agreement and the other Loan Documents or (ii)
any agreements governing any purchase money Liens, Financing Leases or mortgage
financings not prohibited by this Agreement (in which cases, any prohibition or
limitation referred to below shall only be effective against the assets financed
thereby) which , in any such case, prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Revolving Credit Loan, any Competitive Loan or any Reimbursement Obligation when
due in accordance with the terms thereof or hereof; or the Borrower shall fail
to pay any interest on any Revolving Credit Loan, any Competitive Loan, any
Reimbursement Obligation or any other amount payable hereunder, within five (5)
Business Days after any such interest or other amount becomes due in accordance
with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or which
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
other Loan Document shall prove to have been incorrect in any material respect
on or as of the date made or deemed made or furnished; or
57
(c) There shall be any default in the observance or
performance of any agreement contained in Section 6.7(a) or Article VII; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c) of
this Article), and such default shall continue unremedied for a period of 30
days after notice from the Administrative Agent, the Issuing Lender or the
Required Lenders; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in making any payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding any Revolving Credit Loans, any Competitive
Loans (which shall be governed by clause (a) above) and any Non-Recourse
Indebtedness) on the scheduled or original due date with respect thereto; or
(ii) default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of
such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable;
provided that a default, event or condition described in clause (i), (ii) or
(iii) of this paragraph (e) shall not at any time constitute an Event of Default
under this Agreement unless, at such time, one or more defaults, events or
conditions of the type described in clauses (i), (ii) and (iii) of this
paragraph (e) shall have occurred and be continuing with respect to Indebtedness
the outstanding principal amount of which exceeds in the aggregate $20,000,000;
or
(f) (i) The Borrower or any of the Significant Guarantors
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or the Borrower or any of the Significant Guarantors shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of the Significant Guarantors any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the Borrower or any of the
Significant Guarantors any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the
Borrower or any of the Significant Guarantors shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any of the Significant Guarantors shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
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(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed (or a
trustee shall be appointed) to administer, or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Majority Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or is, in the reasonable
opinion of the Majority Lenders, likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any Entity involving in the aggregate a liability (not paid or
fully covered by insurance) of $20,000,000 or more (excluding Non-Recourse
Indebtedness), and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or
(i) The Subsidiary Guarantee at any time shall cease, for any
reason, to be in full force and effect or any Loan Party or any Affiliate of any
Loan Party shall so assert; or
(j) The Borrower shall cease, for any reason, to maintain its
status as an equity-oriented real estate investment trust under Sections 856
through 860 of the Code; or
(k) At any time the Borrower or any of its Subsidiaries shall
be required to take any actions in respect of environmental remediation and/or
environmental compliance, the aggregate expenses, fines, penalties or other
charges with respect to which, in the judgment of the Majority Lenders, could
reasonably be expected to exceed $20,000,000; provided that any such remediation
or compliance shall not be taken into consideration for the purposes of
determining whether an Event of Default has occurred pursuant to this paragraph
(k) if (i) such remediation or compliance is being contested by the Borrower or
the applicable Subsidiary in good faith by appropriate proceedings or (ii) such
remediation or compliance is satisfactorily completed within 90 days from the
date on which the Borrower or the applicable Subsidiary receives notice that
such remediation or compliance is required, unless such remediation or
compliance cannot reasonably be completed within such 90 day period in which
case such time period shall be extended for a period of time reasonably
necessary to perform such compliance or remediation using diligent efforts (not
to exceed 180 days if the continuance of such remediation or compliance beyond
such 180 day period, in the judgment of the Majority Lenders, could reasonably
be expected to have a Material Adverse Effect); or
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(l) a Change in Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Revolving Credit Loans and
Competitive Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) and the Notes shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) the
Administrative Agent may, or upon the request of the Majority Lenders the
Administrative Agent shall, by notice to the Borrower, declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) the Administrative Agent may, or upon the request of the
Majority Lenders the Administrative Agent shall, by notice to the Borrower,
declare the Revolving Credit Loans and Competitive Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement (including
all amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by and under the exclusive dominion and control
of the Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. The Borrower hereby grants to the
Administrative Agent, for the benefit of the Issuing Lender and the L/C
Participants, a security interest in such cash collateral to secure all
obligations of the Borrower under this Agreement and the other Loan Documents.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts or other demands for payment drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrower hereunder and under the other
Loan Documents. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower or to whomsoever may be
lawfully entitled thereto. The Borrower shall execute and deliver to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of the within security
interest in such cash collateral account.
Except as expressly provided above in this Article,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
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ARTICLE IX
THE AGENTS
SECTION 9.1 The Agents.
For purposes of this Section 9.1 and Section 10.6, the term
"Related Parties" shall mean, with respect to any specified Person, (i) any
Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with such specified
Person, and (ii) the respective directors, officers, employees, agents and
advisors of such specified Person and of any other Person referred to in the
preceding clause (i).
(a) Each of the Lenders and the Issuing Lender hereby
irrevocably appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such actions and powers as
are reasonably incidental thereto.
(b) The bank serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative Agent,
and such bank and each Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
such bank (an "Administrative Agent Affiliate") may accept deposits from, lend
money to and generally engage in any kind of business with any Loan Party or any
Subsidiary or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
(c) The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (i) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default or
Event of Default has occurred and is continuing, (ii) the Administrative Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in
writing as directed by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided
herein), and (iii) except as expressly set forth herein, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Administrative Agent Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided herein) or in the absence of its own gross negligence
or wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default or Event of Default other than nonpayment of principal
or interest unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or under any other Loan Document or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or in
any other Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document, or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article V or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
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(d) The Administrative Agent shall be entitled to rely upon,
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Lender and the
Borrower. By the Required Lenders' giving at least thirty (30) Business Days
prior written notice to the Administrative Agent and the Borrower, the
Administrative Agent may be removed, by action of the Required Lenders
(excluding the bank serving as Administrative Agent (the "Agent Bank")), (i) at
any time for gross negligence or willful misconduct, as determined by the
Required Lenders (excluding for such determination the Agent Bank), or (ii) in
the event that the Agent Bank, in its capacity as a Lender, shall have assigned
all of its outstanding Commitments, Loans, and its Commitment Percentage of the
L/C Obligations to another bank, financial institution or other entity pursuant
to Section 10.6, and at the end of such thirty (30) Business Day period the
Agent Bank shall be deemed discharged from its duties and obligations as
Administrative Agent hereunder and under any other Loan Documents, provided,
however that it is a condition to the removal of the Administrative Agent under
clause (ii) above in the circumstance in which the Agent Bank is the Issuing
Lender hereunder, that all outstanding Letters of Credit issued by the Issuing
Lender (including Letters of Credit issued by any Affiliate of the Agent Bank)
hereunder shall be returned to the Issuing Lender, that the Issuing Lender shall
be reimbursed for all drafts or other demands for payment under the Letters of
Credit that have not yet been reimbursed by the Borrower or paid by the L/C
Participants (except to the extent of the Commitment Percentage of L/C
Obligations assigned by the Agent Bank), that all fees and expenses accrued and
payable to the Issuing Lender be paid, and that the Issuing Lender shall be
deemed to be replaced under Section 3.9 hereof. Upon any such resignation or
removal, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. In the case of resignation by the
Administrative Agent, if no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Lender, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or a Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor to a retired Administrative Agent,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under any other Loan Documents. The fees payable by the Borrower
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Administrative Agent's resignation or removal hereunder, the
provisions of this Article, including Section 9.2, shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
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(g) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.
SECTION 9.2 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought under this Section 9.2 (or, if indemnification is sought after the
date upon which the Commitments shall have terminated and the Revolving Credit
Loans and Competitive Loans shall have been paid in full, ratably in accordance
with their Commitment Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including at any time following the payment of
the Revolving Credit Loans and Competitive Loans and regardless of whether
pre-judgment or post-judgment) be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting solely from the Administrative Agent's gross negligence
or willful misconduct. The agreements in this Section 9.2 shall survive the
termination of this Agreement and the payment of the Revolving Credit Loans and
all other amounts payable hereunder.
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SECTION 9.3 The Syndication Agents, Documentation Agents, Co-Agents,
Arrangers, and Bookrunners.
Each of the Syndication Agents, Documentation Agents,
Co-Agents, Bookrunner and Lead Arranger referred to on the cover of this
Agreement in its capacity as such shall have no rights, duties or
responsibilities hereunder, nor any fiduciary relationship with any party
hereto, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Syndication or Documentation Agents, the Co-Agents, Bookrunner or
Lead Arranger in their respective capacities as such.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Amendments and Waivers.
Neither this Agreement nor any other Loan Document, nor any
terms hereof or thereof, may be amended, supplemented or modified except in
accordance with the provisions of this Section 10.1. The Required Lenders may,
or, with the written consent of the Required Lenders, the Administrative Agent
may, from time to time, (a) enter into with the relevant Loan Parties written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled date of
maturity of any Revolving Credit Loan, Competitive Loan or Note, or reduce the
stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof or increase or reduce (except for reductions in
accordance with Section 2.2(f)) the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender directly
affected thereby, or (ii) amend, modify or waive any provision of this Section
10.1, change Section 2.9(a) or Section 10.11(a) in a manner that would alter the
pro rata sharing of payments required thereby, reduce the percentage specified
in the definitions of Required Lenders or Majority Lenders, consent to the
assignment or transfer by any Loan Party of any of its rights and obligations
under this Agreement and the other Loan Documents, amend, modify, or waive any
provision of any Loan Document which, by its terms, requires the consent,
approval or satisfaction of all Lenders, or release from the Subsidiary
Guarantee all or substantially all of the Guarantors then party thereto, in each
case without the written consent of all the Lenders, or (iii) amend, modify or
waive any provision of Article III or otherwise affect the rights or duties of
the Issuing Lender without the written consent of the Issuing Lender, or (iv)
amend, modify or waive any provision of Article IX or otherwise affect the
rights or duties of the Administrative Agent without the written consent of the
then Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the other Loan Parties, the Lenders, the Issuing Lender, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Borrower, the other Loan Parties, the Lenders, the Issuing Lender
and the Administrative Agent shall be restored to their former position and
rights hereunder and under any outstanding Notes and any other Loan Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing to the extent therein specified; but no such waiver shall extend to
any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
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SECTION 10.2 Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower, the Issuing Lender
and the Administrative Agent, and as notified to the Administrative Agent
pursuant to an administrative questionnaire in the case of the other parties
hereto, or to such other address as may be hereafter notified by the respective
parties hereto and any future holders of the Notes:
The Borrower: Kimco Realty Corporation
3333 New Hyde Park Road, Suite 100
New Hyde Park, New York 11042
Attention: Glenn G. Cohen
Telecopy: (516) 869-9001
The Administrative Agent JPMorgan Chase Bank
and the Issuing Lender: 270 Park Avenue, 4th Floor
New York, New York 10017-2070
Attention: Charles E. Hoagland
Telecopy: (212) 270-0213
with a copy to: JPMorgan Chase Bank
270 Park Avenue, 15th Floor
New York, New York 10017-2070
Attention: Elena Gillcrist
Telecopy: (212) 270-3513
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and to: J.P. Morgan Chase & Co.
270 Park Avenue, 39th Floor
New York, NY 10017-2070
Attention: William C. Viets, Esq.
Senior Vice President - Legal Dept.
Telecopy: (212) 270-2873
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.1, 2.2, 2.3 or 2.4 shall not be effective
until received.
SECTION 10.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent, the Issuing Lender or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
SECTION 10.4 Survival of Representations and Warranties.
All representations and warranties made hereunder, in the
other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery of this Agreement and the other Loan Documents and
the making of the extensions of credit hereunder.
SECTION 10.5 Payment of Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative
Agent for all its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents, any Letters of Credit, and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the fees and
disbursements of counsel to the Administrative Agent; (b) to pay or reimburse
each Lender, the Issuing Lender and the Administrative Agent for all its costs
and expenses (including post-judgment costs and expenses) incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Loan Documents, any Letters of Credit, and any such other documents,
including the fees and disbursements of counsel to the Administrative Agent, the
Issuing Lender and the several Lenders; (c) to pay, and indemnify and hold
harmless each Lender, the Issuing Lender and the Administrative Agent (and their
respective affiliates, officers, directors, employees, advisors and agents) from
and against, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, the Existing Credit
Agreement, this Agreement, the other Loan Documents, any Letters of Credit, and
any such other documents; and (d) to pay, and indemnify and hold harmless each
Lender, the Issuing Lender and the Administrative Agent (and their respective
affiliates, officers, directors, employees, advisors and agents) from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (and regardless of whether pre-judgment or post-judgment) with
respect to the execution, delivery, enforcement, performance and administration
of the Existing Credit Agreement, this Agreement, the other Loan Documents, the
Letters of Credit, and any such other documents, including any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided that the Borrower shall
have no obligation hereunder to any indemnitee with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of such
indemnitee. The agreements in this Section 10.5 shall survive the termination of
this Agreement, the expiration, cancellation, or other termination of the
Letters of Credit, and the payment of the Revolving Credit Loans, the
Competitive Loans and all other amounts payable hereunder.
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SECTION 10.6 Successors and Assigns.
For purposes of this Section 10.6 the term "Related Parties"
shall have the meaning given thereto in Section 9.1 hereof.
(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 permitted hereby (including any Affiliate of the Issuing Lender that
issues any Letter of Credit (an "Issuing Lender Affiliate")), except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Issuing Lender Affiliate), Participants (to the
extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Lender and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement or any other Loan Document.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement and under the other Loan
Documents (including all or a portion of its Commitment and the Loans at the
time owing to it) with the prior written consent (such consent not to be
unreasonably withheld) of:
(A) the Borrower, provided that no consent
of the Borrower shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund (as defined below), or, if an
Event of Default has occurred and is continuing, any other assignee;
and
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(B) the Administrative Agent, provided that
no consent of the Administrative Agent shall be required for an
assignment of any Commitment to an assignee that is a Lender or an
Affiliate of a Lender with a Commitment immediately prior to giving
effect to such assignment.
(ii) Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment or Loans of any
Class, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date the
Assignment and Assumption (as defined below) with respect to such
assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, provided that no such consent of the Borrower
shall be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement and the other Loan
Documents, provided that this clause shall not be construed to prohibit
the assignment of a proportionate part of all the assigning Lender's
rights and obligations in respect of one Class of Loans;
(C) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and
Assumption substantially in the form of Exhibit A or in any other form
approved by the Administrative Agent (an "Assignment and Assumption"),
together with a processing and recordation fee of $4,000 (which, except
as provided in Section 2.15, shall not be payable by the Borrower); and
(D) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire in the form approved by the Administrative Agent (an
"Administrative Questionnaire").
For the purposes of this Section 10.06, the term "Approved
Fund" has the following meaning:
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.
(iii) Subject to acceptance and recording thereof
pursuant to paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.11, 2.12, 2.13 and 10.5). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 10.6 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
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(iv) The Administrative Agent, acting for this
purpose as an agent of the Borrower, shall maintain at one of its offices a copy
of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and payments made by the Issuing Lender
pursuant to the Letters of Credit, owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive absent manifest error, and the Borrower, the Administrative Agent,
the Issuing Lender and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Lender and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(v) Upon its receipt of a duly completed Assignment
and Assumption executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in this
paragraph (b) and any written consent to such assignment required by this
paragraph (b), the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower,
the Administrative Agent, or the Issuing Lender, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement and under the other Loan
Documents (including all or a portion of its Commitment and the Loans owing to
it); provided that (A) such Lender's obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and (C) the Borrower,
the other Loan Parties, the Administrative Agent, the Issuing Lender and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the proviso to Section 10.1 that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.11, 2.12 and 2.13 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.11(b) as though it were a Lender, provided such
Participant agrees to be subject to Section 10.11(a) as though it were a Lender.
69
(ii) A Participant shall not be entitled to receive
any greater payment under Section 2.11 or 2.12 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a
Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of
Section 2.12(a) unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower,
to comply with Section 2.12(b) as though it were a Lender.
(d) Any Lender may at any time pledge or assign, or grant a
security interest in, all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment or grant of a security interest; provided that no such
pledge or assignment or grant of a security interest, nor the exercise of
remedies in respect of such security interest, shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 10.7 Disclosure.
Subject to Section 10.19, the Borrower authorizes each Lender
to disclose to any Participant or assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
SECTION 10.8 Increases of Revolving Credit Facility.
During the period commencing the Effective Date through and
including the date that is 24 months (or 33 months, if the Maturity Date has
been extended to the Extended Maturity Date pursuant to Section 10.9 below)
after the date of this Agreement, the Borrower may from time to time request
increases in the aggregate amount of the Commitments, in minimum increments of
$25,000,000 (or whole multiples of $5,000,000 in excess of $25,000,000),
provided that the total amount by which the Commitments may be increased under
this Section 10.8 shall be limited to the excess of (i) $100,000,000 over (ii)
the total amount by which the Commitments have been reduced under Section
2.2(f). Each such request shall offer to each Lender the opportunity to
participate in the increased Commitments and, with the consent of the
Administrative Agent (such consent not to be unreasonably withheld) and the
Borrower, to any additional bank, financial institution or other entity that
elects to become a Lender hereunder and obtain a Commitment. No Lender shall
have any obligation to increase its Commitment nor shall the Administrative
Agent or J.P. Morgan have any obligation to locate banks, financial institutions
or other entities willing to increase or obtain such Commitments. The form of
documentation pursuant to which any such Commitment is increased or obtained
must be acceptable to the Borrower and the Administrative Agent. Each increase
of the Commitments under this Section 10.8 is subject to the following
conditions:
70
(a) Each of the representations and warranties made by any
Loan Party in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of the date of such increase
as if made on and as of such date except for representations and
warranties expressly stated to relate to a specific earlier date, in
which case such representations and warranties were true and correct in
all material respects as of such earlier date.
(b) (i) No Default or Event of Default shall have occurred and
be continuing on the date of such increase or after giving effect
thereto and (ii) the Borrower would be in compliance with each
financial covenant set forth in paragraphs (a) through (g) of Section
7.1 if the ratio or amount referred to therein were to be calculated as
of such date (provided that for the purposes of determining such
compliance, Gross Asset Value and Value of Unencumbered Properties
shall be determined for the most recent Test Period as to which a
compliance certificate has been delivered pursuant to Section 6.2(b)).
Each request for an increase of the Commitments under this
Section 10.8 shall constitute a representation and warranty by the Borrower as
of the date of such increase that the conditions contained in this Section 10.8
have been satisfied, and shall be accompanied by a certificate of a Responsible
Officer to such effect.
SECTION 10.9 Extension of Maturity Date.
By notice to the Administrative Agent not earlier than twelve
(12) months nor later than three (3) months before the Maturity Date specified
in clause (i) of the definition of "Maturity Date" (the "Original Maturity
Date"), the Borrower may extend the Maturity Date to the date one year after the
Original Maturity Date (the "Extended Maturity Date"); provided that (i) the
Borrower shall have paid to the Administrative Agent for the account of the
Lenders on or before on the Original Maturity Date a nonrefundable extension fee
in an amount equal to 0.20% of the aggregate amount of the Commitments in effect
on the Original Maturity Date, whether used or unused, and (ii), the following
conditions shall be satisfied:
(a) Each of the representations and warranties made by any
Loan Party in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of the as of the Original
Maturity Date as if made on and as of such date except for
representations and warranties expressly stated to relate to a specific
earlier date, in which case such representations and warranties were
true and correct in all material respects as of such earlier date.
(b) (i) No Default or Event of Default shall have occurred and
be continuing on the date of such notice or as of the Original Maturity
Date, and (ii) the Borrower would be in compliance with each financial
covenant set forth in paragraphs (a) through (g) of Section 7.1 if the
ratio or amount referred to therein were to be calculated as of the
Original Maturity Date (provided that for the purposes of determining
such compliance, Gross Asset Value and Value of Unencumbered Properties
shall be determined for the most recent Test Period as to which a
compliance certificate has been delivered pursuant to Section 6.2(b)).
71
The request for an extension under this Section 10.9 shall constitute a
representation and warranty by the Borrower as of the date of such request and
as of the Original Maturity Date that the conditions contained in this Section
10.9 have been satisfied, and shall be accompanied by a certificate of a
Responsible Officer to such effect. The Administrative Agent shall promptly
notify the Lenders of any such extension.
SECTION 10.10 Release of Guarantors.
A Guarantor shall be released from the Subsidiary Guarantee
(a) in order to enter into (i) a bona fide mortgage securing Non-Recourse
Indebtedness of an unaffiliated third party or (ii) a joint venture agreement,
partnership agreement, limited liability company agreement or similar agreement
with an unaffiliated third party, in either case containing a Prohibiting
Provision (provided that, in any circumstances referred to in this clause (a),
after giving effect to the relevant transaction, the execution and delivery of
the Subsidiary Guarantee by such Guarantor would have been excused pursuant to
the provisions of the definition of the term "Qualified Wholly Owned
Subsidiary"), or (b) upon (i) the sale or disposition of all or substantially
all of the Properties owned directly or indirectly by such Guarantor, or (ii)
the transfer of all the Capital Stock of such Guarantor in a transaction having
the practical effect of a sale or disposition of all or substantially all of the
Properties owned directly or indirectly by such Guarantor; provided, however,
that, in the case of any such release (under clause (a) or clause (b)), (A)
there is no Default or Event of Default, before and after giving effect to such
release (including any changes resulting from recharacterization of Unencumbered
Property), and (B) the Borrower is in compliance with all covenants under
Section 7.1 after giving effect to such release (including any changes resulting
from recharacterization of Unencumbered Property), and would have been in
compliance therewith for the most recent Test Period if such release had been
given effect (including any changes resulting from recharacterization of
Unencumbered Property) during such Test Period.
SECTION 10.11 Adjustments; Set-off.
(a) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of its Revolving Credit Loans or the
Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Article VIII(f),
or otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's
Revolving Credit Loans or the Reimbursement Obligations owing to it, or interest
thereon, such benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Revolving
Credit Loans or the Reimbursement Obligations owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that (i) if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Revolving Credit Loans or Competitive
Loans or participations in respect of Letters of Credit to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply).
72
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender and each of its Affiliates shall have the right,
without prior notice to the Borrower, any such notice being expressly waived by
the Borrower to the extent permitted by applicable law, upon any amount becoming
due and payable by the Borrower hereunder or under the Notes (whether at the
stated maturity, by acceleration or otherwise) to set off and appropriate and
apply against such amount, any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
obligations, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any of its Affiliates or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower, the Issuing Lender and the Administrative Agent
after any such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
SECTION 10.12 Counterparts.
This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts each of which shall
constitute an original, but all of which when taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower, the Issuing Lender
and the Administrative Agent. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.13 Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.14 Integration.
This Agreement and the other Loan Documents represent the
entire agreement of the Borrower, the Administrative Agent, the Issuing Lender
and the Lenders with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the
Administrative Agent, the Issuing Lender or any Lender relative to subject
matter hereof or thereof not expressly set forth or referred to herein or in the
other Loan Documents.
73
SECTION 10.15 GOVERNING LAW.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 10.16 Submission To Jurisdiction; Waivers.
The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding in
connection with this Agreement or any other Loan Document any special,
exemplary, punitive or consequential damages.
SECTION 10.17 Acknowledgments.
The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent, the Issuing Lender nor
any Lender has any fiduciary relationship with or duty to the Borrower arising
out of or in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent, the Issuing Lender and the
Lenders, on the one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
74
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders, the Issuing Lender and the Administrative Agent or among the
Borrower, the Administrative Agent, the Issuing Lender and the Lenders.
SECTION 10.18 WAIVERS OF JURY TRIAL.
THE BORROWER, THE ADMINISTRATIVE AGENT, THE ISSUING LENDER AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 10.19 Confidentiality.
Each of the Administrative Agent, the Issuing Lender and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder or to which the Administrative Agent, the Issuing Lender or any
Lender is a party, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Lender or any Lender on a nonconfidential
basis from a source other than the Borrower. For the purposes of this Section,
"Information" means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Administrative Agent, the Issuing Lender or any Lender on a nonconfidential
basis; provided that in the case of information received from the Borrower after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. Notwithstanding anything herein to
the contrary, "Information" shall not include, and each party hereto may
disclose to any and all persons, without limitation of any kind, any information
with respect to the U.S. federal income tax treatment and U.S. federal income
tax structure of the transactions contemplated hereby and all materials of any
kind (including opinions or other tax analyses) that are provided to such party
relating to such tax treatment and tax structure.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duty executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
[SIGNATURE PAGES TO FOLLOW]
S-1
KIMCO REALTY CORPOATION
By: /s/ Glenn G. Cohen
----------------------------------
Glenn G. Cohen
Vice President
JPMORGAN CHASE BANK, as lender
Issuing Lender, and Administrative Agent
By: /s/ Charles E. Hoagland
----------------------------------
Charles E. Hoagland
Vice President
BANK ONE, NA, as Lender and
Syndication Agent
By: /s/ James P. Krcmarik
----------------------------------
James P. Krcmarik
Associate Director
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Lender and Syndication
Agent
By: /s/ Rex E. Rudy
----------------------------------
Rex E. Rudy
Director
THE BANK OF NOVA SCOTIA, NEW
YORK AGENCY, as Lender and
Documentation Agent
By: /s/ R.H. Boese
----------------------------------
R.H. Boese
Managing Director
S-2
UBS AG, CAYMAN ISLAND BRANCH,
As Lender and Documentation Agent
By: /s/ Wilfred V. Saint
----------------------------------
Wilfred V. Saint
Associate Director
Banking Products Services US
By: /s/ Thomas R. Salzano
----------------------------------
Thomas R. Salzano
Director
Banking Products Services US
THE BANK OF NEW YORK, as Lender
And Co-Agent
By: /s/ Anthony A. Filorimo
----------------------------------
Anthony A. Filorimo
Vice President
EUROHYPO AG, NEW YORK BRANCH,
As Lender and Co-Agent
By: /s/ Ben J. Marciano
----------------------------------
Ben J. Marciano
Managing Director
By: /s/ Jeffrey S. Page
----------------------------------
Jeffrey S. Page
Vice President
KEYBANK NATIONAL ASSOCIATION,
As Lender and Co-Agent
By: /s/ Timothy J. Mertens
----------------------------------
Timothy J. Mertens
Vice President
MERRILL LYNCH BANK USA, as Lender
And Co-Agent
By: /s/ Louis Alder
----------------------------------
Louis Alder
Vice President
S-3
SUNTRUST, as Lender and Co-Agent
By: /s/ Robert A. Stewart
----------------------------------
Robert A. Stewart
EUD
AMSOUTH BANK, as Lender
By: /s/ Robert W. Blair
----------------------------------
Robert W. Blair
Vice President
BANK OF AMERICA, N.A., as Lender
By: /s/ Mark W. Lariviere
----------------------------------
Mark W. Lariviere
Managing Director
SOUTHTRUST BANK, as Lender
By: /s/ Ronald A. Brantley, II
----------------------------------
Ronald A. Brantley, II
Assistant Vice President
WELLS FARGO BANK, as Lender
By: /s/ John P. Sipple
----------------------------------
John P. Sipple
Vice President
CHANG HWA COMMERICAL BANK,
LTD., NEW YORK BRANCH, as Lender
By: /s/ Ming-Hsien Lin
----------------------------------
Ming-Hsien Lin
VP & General Manager
ROYAL BANK OF CANADA, as Lender
By: /s/ Dana Dratch
----------------------------------
Dana Dratch
Senior Manager
S-4
CIBC WORLD MARKETS CORP., as
Lender
By: /s/ David C. Slade
----------------------------------
David C. Slade
Authorized Signatory
CITICORP NORTH AMERICA, INC., as
Lender
By: /s/ Michael Psyllos
----------------------------------
Michael Psyllos
Vice President
S-5