OMB APPROVAL
OMB Number: 3235-0060
Expires: March 31, 2003
Estimated average burden
hours per response: 1.25
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 5, 2002
SIMON PROPERTY GROUP, L.P.
-----------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 33-11491 34-1755769
------------ ------------ ------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
115 West Washington Street, Indianapolis, Indiana 46204
-------------------------------------------------------
(Address of principal executive offices and zip code)
(317) 636-1600
--------------
(Registrant's telephone number, including area code)
Not Applicable
--------------
(Former name or address, if changed since last report)
Item 5. Other Events and Regulation FD Disclosure.
On April 16, 2002, Simon Property Group, L.P. (the "Registrant")
entered into the Credit Agreement, dated as of April 16, 2002, among the
Registrant, the Lenders named therein, the Co-Agents named therein, UBS AG,
Stamford Branch, as Payment and Disbursement Agent, JP Morgan Securities Inc.
as Joint Lead Arranger and Joint Book Manager, Banc of America Securities LLC
as Joint Lead Arranger and Joint Book Manager, Commerzbank AG, New York
Branch, as Documentation Agent, JPMorgan Chase Bank as Joint Syndication
Agent, Banc of America, N.A. as Joint Syndication Agent and Citicorp Real
Estate, Inc. as Joint Syndication Agent, in the aggregate principal amount of
$1.25 billion (the "Credit Facility").
The foregoing description of the Credit Facility is qualified in its
entirety by reference to the Credit Facility, a copy of which is attached as
Exhibit 10.1 hereto and is incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
Not applicable.
(b) Pro forma financial information.
Not applicable.
(c) Exhibits.
10.1 Credit Agreement, dated as of April 16,
2002, among Simon Property Group, L.P., the
Lenders named therein, the Co-Agents named
therein, UBS AG, Stamford Branch, as Payment
and Disbursement Agent, JP Morgan Securities
Inc. as Joint Lead Arranger and Joint Book
Manager, Banc of America Securities LLC as
Joint Lead Arranger and Joint Book Manager,
Commerzbank AG, New York Branch, as
Documentation Agent, JPMorgan Chase Bank as
Joint Syndication Agent, Banc of America,
N.A. as Joint Syndication Agent and Citicorp
Real Estate, Inc. as Joint Syndication
Agent.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SIMON PROPERTY GROUP, L.P.
Date: December 5, 2002
By: Simon Property Group, Inc.,
its general partner
By: /s/ Stephen E. Sterrett
----------------------------------
Stephen E. Sterrett
Executive Vice President and
Chief Financial Officer
EXHIBIT INDEX
Exhibit Description
------- -----------
10.1 Credit Agreement, dated as of April 16, 2002, among Simon
Property Group, L.P., the Lenders named therein, the
Co-Agents named therein, UBS AG, Stamford Branch, as
Payment and Disbursement Agent, JP Morgan Securities Inc.
as Joint Lead Arranger and Joint Book Manager, Banc of
America Securities LLC as Joint Lead Arranger and Joint
Book Manager, Commerzbank AG, New York Branch, as
Documentation Agent, JPMorgan Chase Bank as Joint
Syndication Agent, Banc of America, N.A. as Joint
Syndication Agent and Citicorp Real Estate, Inc. as Joint
Syndication Agent
EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
Dated as of April 16, 2002
among
SIMON PROPERTY GROUP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS CO-AGENTS
and
UBS AG, STAMFORD BRANCH, AS PAYMENT AND DISBURSEMENT AGENT
and
JP MORGAN SECURITIES INC.
AS JOINT LEAD ARRANGER AND JOINT BOOK MANAGER
and
BANC OF AMERICA SECURITIES LLC
AS JOINT LEAD ARRANGER AND JOINT BOOK MANAGER
and
COMMERZBANK AG, NEW YORK BRANCH
AS DOCUMENTATION AGENT
and
JPMORGAN CHASE BANK
AS JOINT SYNDICATION AGENT
and
BANK OF AMERICA, N.A.
AS JOINT SYNDICATION AGENT
and
CITICORP REAL ESTATE, INC.
AS JOINT SYNDICATION AGENT
================================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
1.1. Certain Defined Terms.........................................1
1.2. Computation of Time Periods..................................36
1.3. Accounting Terms.............................................36
1.4. Other Terms..................................................37
ARTICLE II AMOUNTS AND TERMS OF LOANS
2.1. Committed Loans..............................................37
2.2. Money Market Loans...........................................40
2.3. Use of Proceeds of Loans and Letters
of Credit..................................................46
2.4. Revolving Credit Termination Date;
Maturity of Money Market Loans.............................46
2.5. Extension Option.............................................47
2.6. Maximum Credit Facility......................................47
2.7. Authorized Agents............................................48
ARTICLE III LETTERS OF CREDIT
3.1. Letters of Credit............................................49
3.2. Obligations Several..........................................57
ARTICLE IV PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Revolving
Credit Commitments.........................................58
4.2. Payments.....................................................60
4.3. Promise to Repay; Evidence of
Indebtedness...............................................65
ARTICLE V INTEREST AND FEES
5.1. Interest on the Loans and other
Obligations................................................66
5.2. Special Provisions Governing
Eurodollar Rate Loans, IBOR Rate
i
Loans, and Money Market Loans..............................71
5.3. Fees.........................................................79
ARTICLE VI CONDITIONS TO LOANS AND LETTERS OF CREDIT
6.1. Conditions Precedent to the Initial
Loans and Letters of Credit................................81
6.2. Conditions Precedent to All
Subsequent Loans and Letters of Credit.....................83
ARTICLE VII REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower...............84
ARTICLE VIII REPORTING COVENANTS
8.1. Borrower Accounting Practices................................97
8.2. Financial Reports............................................97
8.3. Events of Default...........................................102
8.4. Lawsuits....................................................103
8.5. Insurance...................................................104
8.6. ERISA Notices...............................................104
8.7. Environmental Notices.......................................106
8.8. Labor Matters...............................................107
8.9. Notices of Asset Sales and/or Acquisitions..................108
8.10. Tenant Notifications........................................108
8.11. Other Reports...............................................108
8.12. Other Information...........................................108
ARTICLE IX AFFIRMATIVE COVENANTS
9.1. Existence, Etc..............................................109
9.2. Powers; Conduct of Business.................................109
9.3. Compliance with Laws, Etc...................................109
9.4. Payment of Taxes and Claims.................................110
9.5. Insurance...................................................110
9.6. Inspection of Property; Books and Records; Discussions......110
9.7. ERISA Compliance............................................111
9.8. Maintenance of Property.....................................111
ii
9.9. Hedging Requirements........................................112
9.10. Company Status..............................................112
9.11. Ownership of Projects, Minority Holdings and Property.......112
ARTICLE X NEGATIVE COVENANTS
10.1. Indebtedness................................................113
10.2. Sales of Assets.............................................113
10.3. Liens.......................................................113
10.4. Investments.................................................113
10.5. Conduct of Business.........................................114
10.6. Transactions with Partners and Affiliates...................115
10.7. Restriction on Fundamental Changes..........................115
10.8. Margin Regulations; Securities Laws.........................115
10.9. ERISA.......................................................116
10.10. Organizational Documents....................................117
10.11. Fiscal Year.................................................117
10.12. Other Financial Covenants...................................117
10.13. Pro Forma Adjustments.......................................118
ARTICLE XI EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default...........................................120
11.2. Rights and Remedies.........................................125
ARTICLE XII THE AGENTS
12.1. Appointment.................................................127
12.2. Nature of Duties............................................128
12.3. Right to Request Instructions...............................128
12.4. Reliance....................................................129
12.5. Indemnification.............................................129
12.6. Agents Individually.........................................130
12.7. Successor Agents............................................130
12.8. Relations Among the Lenders.................................131
ARTICLE XIII YIELD PROTECTION
13.1. Taxes.......................................................132
13.2. Increased Capital...........................................135
iii
13.3. Changes; Legal Restrictions.................................136
13.4. Replacement of Certain Lenders..............................137
ARTICLE XIV INTENTIONALLY OMITTED
ARTICLE XV MISCELLANEOUS
15.1. Assignments and Participations..............................138
15.2. Expenses....................................................144
15.3. Indemnity...................................................145
15.4. Change in Accounting Principles.............................146
15.5. Setoff......................................................147
15.6. Ratable Sharing.............................................148
15.7. Amendments and Waivers......................................149
15.8. Notices.....................................................151
15.9. Survival of Warranties and Agreements.......................152
15.10. Failure or Indulgence Not Waiver; Remedies Cumulative.......152
15.11. Marshalling; Payments Set Aside.............................152
15.12. Severability................................................153
15.13. Headings....................................................153
15.14. Governing Law...............................................153
15.15. Limitation of Liability.....................................153
15.16. Successors and Assigns......................................154
15.17. Certain Consents and Waivers of the Borrower................154
15.18. Counterparts; Effectiveness; Inconsistencies................155
15.19. Limitation on Agreements....................................156
15.20. Confidentiality.............................................156
15.21. Disclaimers.................................................157
15.22. No Bankruptcy Proceedings...................................158
15.23. Retained Properties.........................................158
15.24. Entire Agreement............................................158
iv
CREDIT AGREEMENT
This Credit Agreement, dated as of April 16, 2002 (as amended,
supplemented or modified from time to time, the "AGREEMENT") is entered into
among SIMON PROPERTY GROUP, L.P., the institutions from time to time a party
hereto as Lenders, whether by execution of this Agreement or an Assignment and
Acceptance, the institutions from time to time a party hereto as Co-Agents,
whether by execution of this Agreement or an Assignment and Acceptance, and UBS
AG, STAMFORD BRANCH, as Payment and Disbursement Agent,_JP MORGAN SECURITIES
INC.,_as joint lead arranger and joint book manager, BANC OF AMERICA SECURITIES
LLC, as joint lead arranger and joint book manager, COMMERZBANK AG, NEW YORK
BRANCH, as Documentation Agent, JPMORGAN CHASE BANK, as joint Syndication Agent,
BANK OF AMERICA, N.A., as joint Syndication Agent, and CITICORP REAL ESTATE,
INC.
R E C I T A L S
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
I.1. CERTAIN DEFINED TERMS. The following terms used in this
Agreement shall have the following meanings, applicable both to the singular and
the plural forms of the terms defined:
"AFFILIATE", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to vote fifteen percent (15.0%) or more of the equity Securities
having voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting equity Securities or by contract or
otherwise.
"AGENT" means UBS in its capacity as Payment and Disbursement Agent,
each Senior Managing Agent, each Managing Agent, each Co-Agent, and each
successor agent appointed pursuant to the terms of ARTICLE XII of this
Agreement.
"AGREEMENT" is defined in the preamble hereto.
"ANNUAL EBITDA" means, with respect to any Project or Minority
Holding, as of the first day of each fiscal quarter for the immediately
preceding consecutive four fiscal quarters, an amount equal to (i) total
revenues relating to such Project or Minority Holding for such period, LESS (ii)
total operating expenses relating to such Project or Minority Holding for such
period (it being understood that the foregoing calculation shall exclude
non-cash charges as determined in accordance with GAAP). Each of the foregoing
amounts shall be determined by reference to the Borrower's Statement of
Operations for the applicable periods. An example of the foregoing calculation
is set forth on EXHIBIT G hereto.
"APPLICABLE LENDING OFFICE" means, with respect to a particular
Lender, (i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, (ii) its Domestic Lending Office in respect of provisions
relating to Base Rate Loans and
2
(iii) its Money Market Lending Office in respect of provisions relating to Money
Market Loans.
"APPLICABLE MARGIN" means, with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which
Borrower's Credit Rating then falls, in accordance with the following tables.
Any change in the Applicable Margin shall be effective immediately as of the
date on which any of the rating agencies announces a change in the Borrower's
Credit Rating or the date on which the Borrower has no Credit Rating, whichever
is applicable.
The Applicable Margin, from time to time, depending on Borrower's Credit Rating
shall be as follows:
Range of Applicable Applicable
Borrower's Margin for Margin for
Credit Rating Eurodollar Rate Loans Base Rate
S&P/Moody's and IBOR Rate Loans Loans
Ratings) (% per annum) (% per annum)
- --------------- --------------------- -------------
below BBB-/Baa3 1.250% 0.00%
BBB-/Baa3 0.900% 0.00%
BBB/Baa2 0.750% 0.00%
BBB+/Baa1 0.650% 0.00%
A-/A3 0.500% 0.00%
If at any time the Borrower has a Credit Rating by both Moody's and S&P which
Credit Ratings are split, then: (A) if the difference between such Credit
Ratings is one ratings category (e.g. Baa2 by Moody's and BBB- by S&P), the
Applicable Margin shall be the rate per annum that would be applicable if the
higher of the Credit Ratings were used; and (B) if the difference between such
Credit Ratings is two ratings category (e.g. Baa1 by Moody's and BBB- by S&P),
the Applicable Margin shall be the rate per annum that would be applicable if
the median of the applicable Credit Ratings is used.
"ARRANGERS" mean UBS AG, Stamford Branch, Commerzbank AG, New York
Branch, JPMorgan Chase Bank, Bank of America, N.A., and Citicorp Real Estate,
Inc.
3
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance in
substantially the form of EXHIBIT A attached hereto and made a part hereof (with
blanks appropriately completed) delivered to the Payment and Disbursement Agent
in connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of SECTION 15.1.
"AUTHORIZED FINANCIAL OFFICER" means a chief executive officer, chief
financial officer, treasurer or other qualified senior officer acceptable to the
Payment and Disbursement Agent.
"BASE EURODOLLAR RATE" means, with respect to any Eurodollar Interest
Period applicable to a Borrowing of Eurodollar Rate Loans, an interest rate per
annum determined by the Payment and Disbursement Agent to be the rate per annum
at which deposits in Dollars are offered by the principal office of the
Reference Bank in London, England to major banks in the London interbank market
at approximately 11:00 a.m. (London time) on the Eurodollar Interest Rate
Determination Date for such Eurodollar Interest Period for a period equal to
such Eurodollar Interest Period and in an amount substantially equal to the
amount of the Eurodollar Rate Loan.
"BASE RATE" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(i) the rate of interest announced publicly by UBS in Stamford,
Connecticut from time to time, as UBS's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per annum
PLUS (B) the Federal Funds Rate in effect from time to time during such
period.
"BASE RATE LOAN" means (i) a Committed Loan which bears interest at a
rate determined by reference to the Base Rate and the Applicable Margin as
provided in SECTION 5.1(a) or
4
(ii) an overdue amount which was a Base Rate Loan immediately before it became
due.
"BOFA" means Bank of America, N. A.
"BORROWER" means SIMON PROPERTY GROUP, L.P., a Delaware limited
partnership.
"BORROWER PARTNERSHIP AGREEMENT" means the Seventh Amended and
Restated Limited Partnership Agreement of the Borrower, dated as of August 29,
1999, as such agreement may be amended, restated, modified or supplemented from
time to time with the consent of the Payment and Disbursement Agent or as
permitted under SECTION 10.10.
"BORROWING" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"BUSINESS ACTIVITY REPORT" means (i) an Indiana Business Activity
Report from the Indiana Department of Revenue, Compliance Division, or (ii) a
Notice of Business Activities Report from the State of New Jersey Division of
Taxation, (iii) a Minnesota Business Activity Report from the Minnesota
Department of Revenue, or (iv) a similar report to those referred to in clauses
(i) through (iii) hereof with respect to any jurisdiction where the failure to
file such report would have a Material Adverse Effect.
"BUSINESS DAY" means a day, in the applicable local time, which is not
a Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New York
and (ii) in the case of Eurodollar Rate Loans, in London, England and/or New
York, New York and (iii) in the case of Letter of Credit transactions for a
particular Lender, in the place where its office for issuance or administration
of the pertinent Letter of Credit is located and/or New York, New York.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplica-
5
tion)) during such period that, in conformity with GAAP, are required to be
included in or reflected by the Company's, the Borrower's or any of their
Subsidiaries' fixed asset accounts as reflected in any of their respective
balance sheets; PROVIDED, HOWEVER, (i) Capital Expenditures shall include,
whether or not such a designation would be in conformity with GAAP, (a) that
portion of Capital Leases which is capitalized on the consolidated balance sheet
of the Company, the Borrower and their Subsidiaries and (b) expenditures for
Equipment which is purchased simultaneously with the trade-in of existing
Equipment owned by either General Partner, the Borrower or any of their
Subsidiaries, to the extent the gross purchase price of the purchased Equipment
exceeds the book value of the Equipment being traded in at such time; and (ii)
Capital Expenditures shall exclude, whether or not such a designation would be
in conformity with GAAP, expenditures made in connection with the restoration of
Property, to the extent reimbursed or financed from insurance or condemnation
proceeds.
"CAPITALIZATION VALUE" means the sum of (i) Combined EBITDA
capitalized at an annual interest rate equal to 8.25%, and (ii) Cash and Cash
Equivalents, and (iii) Construction Asset Cost.
"CAPITAL LEASE" means any lease of any property (whether real,
personal or mixed) by a Person as lessee which, in conformity with GAAP, is
accounted for as a capital lease on the balance sheet of that Person.
"CAPITAL STOCK" means, with respect to any Person, any capital stock
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"CASH AND CASH EQUIVALENTS" means (i) cash, (ii) marketable direct
obligations issued or unconditionally guaranteed by the United States government
and backed by the full faith and credit of the United States government; and
(iii) domestic and Eurodollar certificates of deposit and time deposits,
bankers' acceptances and floating rate certificates of deposit issued by any
commercial bank organized under the
6
laws of the United States, any state thereof, the District of Columbia, any
foreign bank, or its branches or agencies (fully protected against currency
fluctuations), which, at the time of acquisition, are rated A-1 (or better) by
S&P or P-1 (or better) by Moody's; PROVIDED THAT the maturities of such Cash and
Cash Equivalents shall not exceed one year.
"CASH INTEREST EXPENSE" means, for any period, total interest expense,
whether paid or accrued, but without duplication, (including the interest
component of Capital Leases) of the Borrower, which is payable in cash, all as
determined in conformity with GAAP.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., any amendments
thereto, any successor statutes, and any regulations or guidance promulgated
thereunder.
"CLAIM" means any claim or demand, by any Person, of whatsoever kind
or nature for any alleged Liabilities and Costs, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"CLOSING DATE" means April 16, 2002.
"CO-AGENTS" means the Payment and Disbursement Agent, the
Documentation Agent, the Joint Syndication Agents, the Senior Managing Agents,
and the Managing Agents.
"COMBINED DEBT SERVICE" means, for any period, the sum of (i)
regularly scheduled payments of principal and interest of the Consolidated
Businesses paid during such period and (ii) the portion of the regularly
scheduled payments of principal and interest of Minority Holdings allocable to
the Borrower in accordance with GAAP, paid during such period, in each case
including participating interest expense and excluding balloon payments of
principal and extraordinary interest payments and net of amortization of
deferred costs associated with new financings or refinancings of existing
Indebtedness.
7
"COMBINED EBITDA" means the sum of (i) 100% of the Annual EBITDA from
the Consolidated Businesses; and (ii) the portion of the Annual EBITDA of the
Minority Holdings allocable to the Borrower in accordance with GAAP; and (iii)
for so long as the Borrower owns a majority economic interest in the Management
Company, 100% of the Borrower's share of the actual Annual EBITDA of the
Management Company; provided, however that the Borrower's share of the Annual
EBITDA of the Management Company shall in no event constitute in excess of five
percent (5%) of Combined EBITDA. For purposes of newly opened Projects which are
no longer capitalized, the Annual EBITDA shall be based upon twelve-month
projections of contractual rental revenues multiplied by the EBITDA profit
margin of the Borrower property type (i.e. regional mall or community center) as
such profit margin is reported in the most recently published annual report or
10-K for the Company, until such time as actual performance data for a
twelve-month period is available.
"COMBINED EQUITY VALUE" means Capitalization Value minus Total
Adjusted Outstanding Indebtedness.
"COMBINED INTEREST EXPENSE" means, for any period, the sum of (i)
interest expense of the Consolidated Businesses paid during such period and (ii)
interest expense of the Consolidated Businesses accrued for such period and
(iii) the portion of the interest expense of Minority Holdings allocable to the
Borrower in accordance with GAAP and paid during such period and (iv) the
portion of the interest expense of Minority Holdings allocable to the Borrower
in accordance with GAAP and accrued for such period, in each case including
participating interest expense but excluding extraordinary interest expense, and
net of amortization of deferred costs associated with new financings or
refinancings of existing Indebtedness.
"COMMERCIAL LETTER OF CREDIT" means any documentary letter of credit
issued by an Issuing Bank pursuant to SECTION 3.1 for the account of the
Borrower, which is drawable upon presentation of documents evidencing the sale
or shipment
8
of goods purchased by the Borrower in the ordinary course of its business.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMMITTED LOAN" means a Loan made by a Lender pursuant to SECTION
2.1; provided that, if any such Loan or Loans (or portions thereof) are combined
or subdivided pursuant to a Notice of Conversion/Continuation, the term
"Committed Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"COMPANY" means Simon Property Group, Inc., a Delaware corporation.
"COMPLIANCE CERTIFICATE" is defined in SECTION 8.2(b).
"CONSOLIDATED" means consolidated, in accordance with GAAP.
"CONSOLIDATED BUSINESSES" means the General Partners, the Borrower and
their wholly-owned Subsidiaries.
"CONSTRUCTION ASSET COST" means, with respect to Property on which
construction of Improvements has commenced (such commencement evidenced by
foundation excavation) but has not yet been completed (as such completion shall
be evidenced by such Property being opened for business to the general public),
the aggregate sums expended on the construction of such Improvements (including
land acquisition costs).
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos (in any form or condition),
polychlorinated biphenyls (PCBs), or any constituent of any such substance or
waste, and includes, but is not limited to,
9
these terms as defined in federal, state or local laws or regulations.
"CONTINGENT OBLIGATION" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation required
to be disclosed in the footnotes to such Person's financial statements in
accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. The amount of any Contingent Obligation described in clause (ii) shall
be deemed to be (a) with respect to a guaranty of interest or interest and
principal, or operating income guaranty, the sum of all payments required to be
made thereunder (which in the case of an operating income guaranty shall be
deemed to be equal to the debt service for the note secured thereby), calculated
at the interest rate applicable to such Indebtedness, through (i) in the case of
an interest or interest and principal guaranty, the stated date of maturity of
the obligation (and commencing on the date interest could first be payable
thereunder), or (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
guaranty is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as recorded on the balance sheet and on the footnotes to the
most recent financial statements of the applicable Borrower required to be
delivered pursuant hereto. Notwithstanding anything contained herein to the
contrary, guarantees of completion shall not be deemed to be Contingent
Obligations unless and until a claim for payment has been made thereunder, at
which time any such guaranty of completion
10
shall be deemed to be a Contingent Obligation in an amount equal to any such
claim. Subject to the preceding sentence, (i) in the case of a joint and several
guaranty given by such Person and another Person (but only to the extent such
guaranty is recourse, directly or indirectly to the applicable Borrower), the
amount of the guaranty shall be deemed to be 100% thereof unless and only to the
extent that (X) such other Person has delivered Cash or Cash Equivalents to
secure all or any part of such Person's guaranteed obligations or (Y) such other
Person holds an Investment Grade Credit Rating from either Moody's or S&P, and
(ii) in the case of a guaranty, (whether or not joint and several) of an
obligation otherwise constituting Indebtedness of such Person, the amount of
such guaranty shall be deemed to be only that amount in excess of the amount of
the obligation constituting Indebtedness of such Person. Notwithstanding
anything contained herein to the contrary, "Contingent Obligations" shall not be
deemed to include guarantees of loan commitments or of construction loans to the
extent the same have not been drawn.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Securities issued by that Person or any indenture, mortgage,
deed of trust, security agreement, pledge agreement, guaranty, contract,
undertaking, agreement or instrument to which that Person is a party or by which
it or any of its properties is bound, or to which it or any of its properties is
subject.
"CREDIT RATING" means the publicly announced rating of a Person given
by Moody's or S&P.
"CURE LOANS" is defined in SECTION 4.2(b)(v)(C).
"CUSTOMARY PERMITTED LIENS" means
(i) Liens (other than Environmental Liens and Liens in favor of
the PBGC) with respect to the payment of taxes, assessments or governmental
charges in all cases which are not yet due or which are being contested in
good faith by appropriate proceedings in accordance with SECTION 9.4 and
with
11
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP;
(ii) statutory Liens of landlords against any Property of the
Borrower or any of its Subsidiaries and Liens against any Property of the
Borrower or any of its Subsidiaries in favor of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other Liens against any
Property of the Borrower or any of its Subsidiaries imposed by law created
in the ordinary course of business for amounts which, if not resolved in
favor of the Borrower or such Subsidiary, could not result in a Material
Adverse Effect;
(iii) Liens (other than any Lien in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal
and performance bonds; PROVIDED THAT (A) all such Liens do not in the
aggregate materially detract from the value of the Borrower's or such
Subsidiary's assets or Property or materially impair the use thereof in the
operation of their respective businesses, and (B) all Liens of attachment
or judgment and Liens securing bonds to stay judgments or in connection
with appeals do not secure at any time an aggregate amount of recourse
Indebtedness exceeding $10,000,000; and
(iv) Liens against any Property of the Borrower or any Subsidiary
of the Borrower arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use
of Real Property which do not interfere with the ordinary conduct of the
business of the Borrower or any of its Subsid-
12
iaries to the extent it could not result in a Material Adverse Effect.
"DEBT YIELD" is defined in SECTION 10.12(d).
"DESIGNATED BANK" means a special purpose corporation that (i) shall
have become a party to this Agreement pursuant to SECTION 15.1(f), and (ii) is
not otherwise a Lender.
"DESIGNATED BANK NOTES" means promissory notes of the Borrower,
substantially in the form of EXHIBIT B-1 hereto, evidencing the obligation of
the Borrower to repay Money Market Loans made by Designated Banks, as the same
may be amended, supplemented, modified or restated from time to time, and
"Designated Bank Note" means any one of such promissory notes issued under
SECTION 15.1(f) hereof.
"DESIGNATING LENDER" shall have the meaning set forth in SECTION
15.1(f) hereof.
"DESIGNATION AGREEMENT" means a designation agreement in substantially
the form of EXHIBIT K attached hereto, entered into by a Lender and a Designated
Bank and accepted by the Payment and Disbursement Agent.
"DESIGNEE LENDER" is defined in SECTION 13.4.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLARS" and "$" mean the lawful money of the United States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, such
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Payment and Disbursement Agent.
13
"ELIGIBLE ASSIGNEE" means (i) a Lender or any Affiliate thereof; (ii)
a commercial bank having total assets in excess of $2,500,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development; or (iv) a finance company or other financial
institution reasonably acceptable to the Payment and Disbursement Agent, which
is regularly engaged in making, purchasing or investing in loans and having
total assets in excess of $300,000,000 or is otherwise reasonably acceptable to
the Payment and Disbursement Agent.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental
Authority for any (i) liabilities under any Environmental, Health or Safety
Requirement of Law, or (ii) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable Requirement
of Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
14
"EQUIPMENT" means equipment used in connection with the maintenance of
Projects and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. Sections 1000 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
"ERISA AFFILIATE" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Borrower; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA TERMINATION EVENT" means (i) a Reportable Event with respect to
any Plan; (ii) the withdrawal of the Borrower or any ERISA Affiliate from a Plan
during a plan year in which the Borrower or such ERISA Affiliate was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations which results in the termination of employment of 20% of
Plan participants who are employees of the Borrower or any ERISA Affiliate;
(iii) the imposition of an obligation on the Borrower or any ERISA Affiliate
under Section 4041 of ERISA to provide affected parties written notice of intent
to terminate a Plan in a distress termination described in Section 4041(c) of
ERISA; (iv) the institution by the PBGC of proceedings to terminate a Plan; (v)
any event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan; or (vi) the partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan.
"EURODOLLAR AFFILIATE" means, with respect to each Lender, the
Affiliate of such Lender (if any) set forth below such Lender's name under the
heading "Eurodollar Affiliate" on
15
the signature pages hereof or on the Assignment and Acceptance by which it
became a Lender or such Affiliate of a Lender as it may from time to time
specify by written notice to the Borrower and the Payment and Disbursement
Agent.
"EURODOLLAR INTEREST PERIOD" is defined in SECTION 5.2(b)(i).
"EURODOLLAR INTEREST RATE DETERMINATION DATE" is defined in SECTION
5.2(c)(i).
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on the signature pages hereof or on the Assignment and Acceptance by which
it became a Lender or such other office or offices of such Lender as it may from
time to time specify by written notice to the Borrower and the Payment and
Disbursement Agent.
"EURODOLLAR MONEY MARKET LOAN" means a Loan to be made by a Lender
pursuant to a LIBOR Auction (including such a Loan bearing interest at the Base
Rate pursuant to SECTION 5.2).
"EURODOLLAR RATE" means, with respect to any Eurodollar Interest
Period applicable to a Eurodollar Rate Loan or a Money Market Loan, an interest
rate per annum obtained by dividing (i) the Base Eurodollar Rate applicable to
that Eurodollar Interest Period by (ii) a percentage equal to 100% MINUS the
Eurodollar Reserve Percentage in effect on the relevant Eurodollar Interest Rate
Determination Date.
"EURODOLLAR RATE LOAN" means (i) a Committed Loan which bears interest
at a rate determined by reference to the Eurodollar Rate and the Applicable
Margin for Eurodollar Rate Loans, as provided in SECTION 5.1(a) or (ii) an
overdue amount which was a Eurodollar Rate Loan immediately before it became
due.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
which is in effect on such day, as prescribed
16
by the Federal Reserve Board for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in New
York, New York with deposits exceeding five billion Dollars in respect of
"Eurocurrency Liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurodollar
Rate Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any bank to United States
residents).
"EVENT OF DEFAULT" means any of the occurrences set forth in SECTION
11.1 after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in SECTION 11.1.
"EXTENSION FEE" means an amount equal to twenty-five (25) basis points
on the Maximum Revolving Credit Amount.
"EXTENSION NOTICE" is defined in SECTION 2.5.
"EXTENSION OPTION" is defined in SECTION 2.5.
"FACILITY FEE" is defined in SECTION 5.3(a).
"FACILITY FEE PERCENTAGE" means the applicable percentage per annum
determined, at any time, based on the range into which Borrower's Credit Rating
(if any) then falls, in accordance with the following tables. Any change in the
Facility Fee Percentage shall be effective immediately as of the date on which
any of the rating agencies announces a change in the Borrower's Credit Rating or
the date on which the Borrower has no Credit Rating, whichever is applicable.
The Facility Fee shall not be payable during the time, from time to time, that
the Borrower does not maintain an Investment Grade Credit Rating.
The Facility Fee Percentage during the time, from time to time, that
the Borrower maintains an Investment Grade Credit Rating by either Moody's or
S&P shall be as follows:
17
Range of
Borrower's Percentage of
Credit Rating Maximum Revolving
S&P/Moody's Ratings Credit Commitments
------------------- ------------------
BBB-/Baa3 0.20%
BBB/Baa2 0.20%
BBB+/Baa1 0.15%
A-/A3 0.15%
If at any time the Borrower has a Credit Rating by both Moody's and
S&P which Credit Ratings are split, then: (A) if the difference between such
Credit Ratings is one ratings category (e.g. Baa2 by Moody's and BBB- by S&P),
the Facility Fee Percentage shall be the rate per annum that would be applicable
if the higher of the Credit Ratings were used; and (B) if the difference between
such Credit Ratings is two ratings category (e.g. Baa1 by Moody's and BBB- by
S&P), the Facility Fee Percentage shall be the rate per annum that would be
applicable if the median of the applicable Credit Ratings is used.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day in New York, New York, for the next preceding
Business Day) in New York, New York by the Federal Reserve Bank of New York, or
if such rate is not so published for any day which is a Business Day in New
York, New York, the average of the quotations for such day on transactions by
the Reference Bank, as determined by the Payment and Disbursement Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"FINANCIAL STATEMENTS" means (i) quarterly and annual consolidated
statements of income and retained earn-
18
ings, statements of cash flow, and balance sheets, (ii) such other financial
statements as any General Partner shall routinely and regularly prepare on a
quarterly or annual basis, and (iii) such other financial statements of the
Consolidated Businesses or Minority Holdings as the Arrangers or the Requisite
Lenders may from time to time reasonably specify; PROVIDED, HOWEVER, that the
Financial Statements referenced in clauses (i) and (ii) above shall be prepared
in form satisfactory to the Payment and Disbursement Agent.
"FISCAL YEAR" means the fiscal year of the Company and the Borrower
for accounting and tax purposes, which shall be the 12-month period ending on
December 31 of each calendar year.
"FUNDING DATE" means, with respect to any Loan, the date of funding of
such Loan.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"GENERAL PARTNER" or "GENERAL PARTNERS" means the Company and any
successor general partner(s) of the Borrower.
"GOVERNMENTAL APPROVAL" means all right, title and interest in any
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued by any Governmental Authority having jurisdiction with
respect to any Project.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political
19
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"HOLDER" means any Person entitled to enforce any of the Obligations,
whether or not such Person holds any evidence of Indebtedness, including,
without limitation, the Payment and Disbursement Agent, each Arranger, and each
other Lender.
"IBOR AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the IBOR Rate pursuant to SECTION 2.2.;
provided, however, that no IBOR Auction shall occur during any IBOR Black-Out
Period.
"IBOR BLACK-OUT PERIOD" means the calendar days during each calendar
year commencing on March 15 through and including March 31 and commencing on
December 15 through and including December 31.
"IBOR INTEREST PERIOD" is defined in SECTION 5.2 (b)(v).
"IBOR INTEREST RATE DETERMINATION DATE" is defined in SECTION 5.2
(c)(ii).
"IBOR MONEY MARKET LOAN" means a Loan to be made by a Lender pursuant
to an IBOR Auction (including such a Loan bearing interest at the Base Rate
pursuant to SECTION 5.2).
"IBOR RATE" means, for each IBOR Interest Period, a rate of interest
per annum equal to the arithmetic average (rounded to the nearest 0.01%) of the
rates at which deposits in Dollars in the approximate amount of the relevant
Loan and having a maturity nearest to the applicable IBOR Interest Period are
offered by the IBOR Reference Banks to major banks in Dollars, as determined on
the applicable IBOR Interest Rate Determination Date.
20
"IBOR RATE LOAN" means (i) a Committed Loan which bears interest at a
rate determined by reference to the IBOR Rate and the Applicable Margin for IBOR
Rate Loans, as provided in SECTION 5.1(a) or (ii) an overdue amount which was an
IBOR Rate Loan immediately before it became due.
"IBOR REFERENCE BANKS" means, as of the Closing Date, each of the
Arrangers and thereafter any Lender designated by the Payment and Disbursement
Agent.
"IMPROVEMENTS" means all buildings, fixtures, structures, parking
areas, landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (a) any such items owned by utility service providers, (b) any such
items owned by tenants or other third-parties unaffiliated with the Borrower and
(c) any items of personal property.
"INDEBTEDNESS", as applied to any Person, means, at any time, without
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar instruments,
and any accrued interest, fees and charges relating thereto, (ii) under profit
payment agreements or in respect of obligations to redeem, repurchase or
exchange any Securities of such Person or to pay dividends in respect of any
stock, (iii) with respect to letters of credit issued for such Person's account,
(iv) to pay the deferred purchase price of property or services, except accounts
payable and accrued expenses arising in the ordinary course of business, (v) in
respect of Capital Leases, (vi) which are Contingent Obligations or (vii) under
warranties and indemnities; (b) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any property of such
Person, whether or not such indebtedness, obligations or liabilities are assumed
by
21
such Person, all as of such time; (c) all indebtedness, obligations or other
liabilities of such Person in respect of interest rate contracts and foreign
exchange contracts, net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock subject (upon the occurrence of any contingency
or otherwise) to mandatory redemption; and (e) all contingent Contractual
Obligations with respect to any of the foregoing.
"INDEMNIFIED MATTERS" is defined in SECTION 15.3.
"INDEMNITEES" is defined in SECTION 15.3.
"INITIAL FUNDING DATE" means the date on or after April 16, 2002, on
which all of the conditions described in SECTION 6.1 have been satisfied (or
waived) in a manner satisfactory to the Payment and Disbursement Agent and the
Lenders and on which the initial Loans under this Agreement are made by the
Lenders to the Borrower.
"INTEREST PERIOD" is defined in SECTION 5.2(b).
"INTEREST RATE HEDGES" is defined in SECTION 9.9.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, any successor
statute and any regulations or guidance promulgated thereunder.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of Securities, or of a beneficial interest in
Securities, issued by any other Person, (ii) any purchase by that Person of all
or substantially all of the assets of a business conducted by another Person,
and (iii) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts receivable,
advances to employees and similar items made or incurred in the ordinary course
of business) or capital contribution by that Person to any other Person,
including, without limitation, all Indebtedness to such
22
Person arising from a sale of property by such Person other than in the ordinary
course of its business. The amount of any Investment shall be the original cost
of such Investment, plus the cost of all additions thereto less the amount of
any return of capital or principal to the extent such return is in cash with
respect to such Investment without any adjustments for increases or decreases in
value or write-ups, write-downs or write-offs with respect to such Investment.
"INVESTMENT GRADE" means (i) with respect to Moody's a Credit Rating
of Baa3 or higher and (ii) with respect to S&P, a Credit Rating of BBB- or
higher.
"INVESTMENT GRADE CREDIT RATING" means (i) a Credit Rating of Baa3 or
higher given by Moody's or (ii) a Credit Rating of BBB- or higher given by S&P.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANK" is defined in SECTION 3.1.
"KNOWLEDGE" with reference to any General Partner, the Borrower or any
Subsidiary of the Borrower, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as such General Partner, the
Borrower or such Subsidiary of the Borrower, as applicable, deems reasonably
necessary).
"Lead Arrangers" means UBS, JP Morgan Chase Bank and Bank of America,
N.A., and each successor Lead Arranger appointed pursuant to the terms of
Article XII of this Agreement.
"LEASE" means a lease, license, concession agreement or other
agreement providing for the use or occupancy of any portion of any Project,
including all amendments, supplements, modifications and assignments thereof and
all side letters or side agreements relating thereto.
23
"LENDER" means (i) each of the Arrangers, the Co-Agents, and each
financial institution a signatory hereto as a Lender as of the Closing Date and,
at any other given time, each financial institution which is a party hereto as a
Arranger, Co-Agent or Lender, whether as a signatory hereto or pursuant to an
Assignment and Acceptance, and regardless of the capacity in which such entity
is acting (i.e. whether as Payment and Disbursement Agent, Arranger, Co-Agent or
Lender) and (ii) each Designated Bank; provided, however, that the term "Lender"
shall exclude each Designated Bank when used in reference to a Committed Loan,
the Commitments or terms relating to the Committed Loans and the Commitments and
shall further exclude each Designated Bank for all other purposes hereunder
(including, without limitation, for purposes of SECTION 13.4 hereof) except that
any Designated Bank which funds a Money Market Loan shall, subject to SECTION
15.1(f), have the rights (including, without limitation, the rights given to a
Lender contained in SECTION 15.2 and otherwise in ARTICLE XV) and obligations of
a Lender associated with holding such Money Market Loan.
"LETTER OF CREDIT" means any Commercial Letter of Credit or Standby
Letter of Credit.
"LETTER OF CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) all outstanding Reimbursement Obligations, and (ii) the aggregate undrawn
face amount of all outstanding Letters of Credit, and (iii) the aggregate face
amount of all Letters of Credit requested by the Borrower but not yet issued.
"LETTER OF CREDIT REIMBURSEMENT AGREEMENT" means, with respect to a
Letter of Credit, such form of application therefor and form of reimbursement
agreement therefor (whether in a single or several documents, taken together) as
an Issuing Bank may employ in the ordinary course of business for its own
account, with such modifications thereto as may be agreed upon by such Issuing
Bank and the Borrower and as are not materially adverse (in the judgment of such
Issuing Bank and the Payment and
24
Disbursement Agent) to the interests of the Lenders; PROVIDED, HOWEVER, in the
event of any conflict between the terms of any Letter of Credit Reimbursement
Agreement and this Agreement, the terms of this Agreement shall control.
"LIABILITIES AND COSTS" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"LIBOR AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the Eurodollar Rate pursuant to SECTION 2.2.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to Section 9-408 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"LIMITED MINORITY HOLDINGS" means Minority Holdings in which (i)
Borrower has a less than fifty percent (50%) ownership interest and (ii) neither
the Borrower nor the Company directly or indirectly controls the management
25
of such Minority Holdings, whether as the general partner or managing member of
such Minority Holding, or otherwise. As used in this definition only, the term
"control" shall mean the authority to make major management decisions or the
management of day-to-day operations of such entity and shall include instances
in which the Management Company manages the day-to-day leasing, management,
control or development of the Properties of such Minority Interest pursuant to
the terms of a management agreement.
"LIMITED PARTNERS" means those Persons who from time to time are
limited partners of the Borrower; and "LIMITED PARTNER" means each of the
Limited Partners, individually.
"LOAN ACCOUNT" is defined in SECTION 4.3(b).
"LOAN DOCUMENTS" means this Agreement, the Notes and all other
instruments, agreements and written Contractual Obligations between the Borrower
and any of the Lenders pursuant to or in connection with the transactions
contemplated hereby.
"LOANS" means Committed Loans and Money Market Loans.
"MANAGEMENT COMPANY" means, collectively, (i) M.S. Management
Associates, Inc., a Delaware corporation and its wholly-owned or controlled
Subsidiaries and (ii) such other property management companies controlled
(directly or indirectly) by the Company for which the Borrower has previously
provided the Payment and Disbursement Agent with: (1) notice of such property
management company, and (2) evidence reasonably satisfactory to the Payment and
Disbursement Agent that such property management company is controlled (directly
or indirectly) by the Company.
"MANAGING AGENTS" means Key Bank, National Association, Merrill Lynch
Bank USA, National City Bank of Indiana, and U.S. Bank National Association.
26
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
financial condition or assets of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents, or (iii) the ability of the Lenders or the Payment and
Disbursement Agent to enforce any of the Loan Documents.
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time, the
Revolving Credit Commitments at such time.
"MIS" means a computerized management information system for recording
and maintenance of information regarding purchases, sales, aging,
categorization, and locations of Properties, creation and aging of receivables,
and accounts payable (including agings thereof).
"MINORITY HOLDINGS" means partnerships, joint ventures and
corporations held or owned by the Borrower or a General Partner which are not
wholly-owned by the Borrower or a General Partner.
"MONEY MARKET LENDER" means, as to each Money Market Loan, the Lender
funding such Money Market Loan.
"MONEY MARKET LENDING OFFICE" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Payment and Disbursement Agent.
"MONEY MARKET LOAN" means a loan to be made by a Lender pursuant to a
LIBOR Auction or an IBOR Auction (including such a loan bearing interest at the
Base Rate pursuant to SECTION 5.2).
27
"MONEY MARKET MARGIN" has the meaning set forth in SECTION 2.2.
"MONEY MARKET QUOTE" means an offer by a Lender to make a Money Market
Loan in accordance with SECTION 2.2.
"MONEY MARKET RATE" has the meaning set forth in SECTION 2.2.
"MOODY'S" means Moody's Investor Services, Inc.
"MORGANCHASE" means JPMorgan Chase Bank.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Borrower or any ERISA Affiliate or
in respect of which the Borrower or any ERISA Affiliate has assumed any
liability.
"NON PRO RATA LOAN" is defined in SECTION 4.2 (b)(v).
"NOTE" means a promissory note in the form attached hereto as EXHIBIT
B payable to a Lender, evidencing certain of the Obligations of the Borrower to
such Lender and executed by the Borrower as required by SECTION 4.3(a), as the
same may be amended, supplemented, modified or restated from time to time,
together with the Designated Bank Notes; "NOTES" means, collectively, all of
such Notes outstanding at any given time.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing or a
Notice of Money Market Borrowing.
"NOTICE OF COMMITTED BORROWING" means a notice substantially in the
form of EXHIBIT C attached hereto and made a part hereof.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in
the form of EXHIBIT D attached
28
hereto and made a part hereof with respect to a proposed conversion or
continuation of a Loan pursuant to SECTION 5.1(c).
"NOTICE OF MONEY MARKET BORROWING" has the meaning set forth in
SECTION 2.2.
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower to the Payment and
Disbursement Agent, any Arranger, any Co-Agent, any other Lender, any Affiliate
of the Payment and Disbursement Agent, the Arrangers, the Co-Agents, any other
Lender, or any Person entitled to indemnification pursuant to SECTION 15.3 of
this Agreement, of any kind or nature, arising under this Agreement, the Notes
or any other Loan Document. The term includes, without limitation, all interest,
charges, expenses, fees, reasonable attorneys' fees and disbursements and any
other sum chargeable to the Borrower under this Agreement or any other Loan
Document.
"OFFICER'S CERTIFICATE" means, as to a corporation, a certificate
executed on behalf of such corporation by the chairman of its board of directors
(if an officer of such corporation) or its chief executive officer, president,
any of its vice-presidents, its chief financial officer, or its treasurer and,
as to a partnership, a certificate executed on behalf of such partnership by the
chairman of the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president, or treasurer of the general
partner of such partnership.
"OPERATING LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which is not
a Capital Lease.
"ORGANIZATIONAL DOCUMENTS" means, with respect to any corporation,
limited liability company, or partnership (i) the articles/certificate of
incorporation (or the
29
equivalent organizational documents) of such corporation or limited liability
company, (ii) the partnership agreement executed by the partners in the
partnership, (iii) the by-laws (or the equivalent governing documents) of the
corporation, limited liability company or partnership, and (iv) any document
setting forth the designation, amount and/or relative rights, limitations and
preferences of any class or series of such corporation's Capital Stock or such
limited liability company's or partnership's equity or ownership interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
Sections 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
"PAYMENT AND DISBURSEMENT AGENT" is UBS, and each successor payment
and disbursement agent appointed pursuant to the terms of ARTICLE XII of this
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"PERMITS" means any permit, consent, approval, authorization, license,
variance, or permission required from any Person, including any Governmental
Approvals.
"PERMITTED SECURITIES OPTIONS" means the subscriptions, options,
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower's Securities or the Company's Capital
Stock identified as such on SCHEDULE 1.1.4.
"PERSON" means any natural person, corporation, limited liability
company, limited partnership, general partnership, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any Governmental
Authority.
30
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Borrower or any ERISA Affiliate is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA or the Borrower or any ERISA Affiliate has assumed any liability.
"POTENTIAL EVENT OF DEFAULT" means an event that has occurred with
respect to the Borrower which, with the giving of notice or the lapse of time,
or both, would constitute an Event of Default.
"PREPAYMENT DATE" is defined in SECTION 4.1(d).
"PROCESS AGENT" is defined in SECTION 15.17(a).
"PROJECT" means any shopping center, retail property and mixed-use
property owned, directly or indirectly, by any of the Consolidated Businesses or
Minority Holdings.
"PROPERTY" means any Real Property or personal property, plant,
building, facility, structure, underground storage tank or unit, equipment,
general intangible, receivable, or other asset owned, leased or operated by any
Consolidated Business or any Minority Holding (including any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (i) the sum of such Lender's Revolving Credit Commitment
(in each case, as adjusted from time to time in accordance with the provisions
of this Agreement or any Assignment and Acceptance to which such Lender is a
party) by (ii) the aggregate amount of all of the Revolving Credit Commitments.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Sections 6901 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
31
"REAL PROPERTY" means all of the Borrower's present and future right,
title and interest (including, without limitation, any leasehold estate) in (i)
any plots, pieces or parcels of land, (ii) any Improvements of every nature
whatsoever (the rights and interests described in clauses (i) and (ii) above
being the "Premises"), (iii) all easements, rights of way, gores of land or any
lands occupied by streets, ways, alleys, passages, sewer rights, water courses,
water rights and powers, and public places adjoining such land, and any other
interests in property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be appurtenant thereto, (iv) all
hereditaments, gas, oil, minerals (with the right to extract, sever and remove
such gas, oil and minerals), and easements, of every nature whatsoever, located
in, on or benefitting the Premises and (v) all other rights and privileges
thereunto belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the rights
and interests described in CLAUSES (iii) and (iv) above.
"REFERENCE BANK" means UBS.
"REGISTER" is defined in SECTION 15.1(c).
"REGULATION A" means Regulation A of the Federal Reserve Board as in
effect from time to time.
"REGULATION T" means Regulation T of the Federal Reserve Board as in
effect from time to time.
"REGULATION U" means Regulation U of the Federal Reserve Board as in
effect from time to time.
"REGULATION X" means Regulation X of the Federal Reserve Board as in
effect from time to time.
"REIMBURSEMENT DATE" is defined in SECTION 3.1(d)(i)(A).
32
"REIMBURSEMENT OBLIGATIONS" means the aggregate non-contingent
reimbursement or repayment obligations of the Borrower with respect to amounts
drawn under Letters of Credit.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et seq. of the
Internal Revenue Code.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, dumping, injection, deposit, disposal, abandonment, or discarding of
barrels, containers or other receptacles, discharge, emptying, escape,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any Property, including the movement of Contaminants through or in the
air, soil, surface water, groundwater or Property.
"REMEDIAL ACTION" means actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or outdoor
environment; (ii) prevent the Release or threat of Release or minimize the
further Release of Contaminants; or (iii) investigate and determine if a
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care.
"REPORTABLE EVENT" means any of the events described in Section
4043(b) of ERISA and the regulations promulgated thereunder as in effect from
time to time but not including any such event as to which the thirty (30) day
notice requirement has been waived by applicable PBGC regulations.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, 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
33
such Person or any of its property is subject including, without limitation, the
Securities Act, the Securities Exchange Act, Regulations T, U and X, ERISA, the
Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act,
Americans with Disabilities Act of 1990, and any certificate of occupancy,
zoning ordinance, building, environmental or land use requirement or Permit and
Environmental, Health or Safety Requirement of Law.
"REQUISITE LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than sixty-six and two-thirds percent (66.67%); PROVIDED,
HOWEVER, that, in the event any of the Lenders shall have failed to fund its Pro
Rata Share of any Loan requested by the Borrower which such Lenders are
obligated to fund under the terms of this Agreement and any such failure has not
been cured as provided in SECTION 4.2(b)(v)(B), then for so long as such failure
continues, "REQUISITE LENDERS" means Lenders (excluding all Lenders whose
failure to fund their respective Pro Rata Shares of such Loans have not been so
cured) whose Pro Rata Shares represent more than sixty-six and two-thirds
percent (66.67%) of the aggregate Pro Rata Shares of such Lenders; PROVIDED,
FURTHER, HOWEVER, that, in the event that the Revolving Credit Commitments have
been terminated pursuant to the terms of this Agreement, "REQUISITE LENDERS"
means Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans are greater than
sixty-six and two-thirds percent (66.67%).
"RETAINED PROPERTIES" shall mean those real properties more
particularly described on SCHEDULE 15.23 hereto.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Maximum Revolving Credit Amount at such time exceeds the
Revolving Credit Obligations at such time.
34
"REVOLVING CREDIT COMMITMENT" means, with respect to any Lender, the
obligation of such Lender to make Committed Loans and to participate in Letters
of Credit pursuant to the terms and conditions of this Agreement, and which
shall not exceed the principal amount set forth opposite such Lender's name
under the heading "Revolving Credit Commitment" on the signature pages hereof or
the signature page of the Assignment and Acceptance by which it became a Lender,
as modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance, and "REVOLVING CREDIT
COMMITMENTS" means the aggregate principal amount of the Revolving Credit
Commitments of all the Lenders, the maximum amount of which shall be
$1,250,000,000, as reduced from time to time pursuant to SECTION 4.1.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Committed Loans at such time,
PLUS (ii) the Letter of Credit Obligations at such time, PLUS (iii) the
outstanding principal amount of the Money Market Loans at such time.
"REVOLVING CREDIT PERIOD" means the period from the Initial Funding
Date to the Business Day next preceding the Revolving Credit Termination Date.
"REVOLVING CREDIT TERMINATION DATE" means the earlier to occur of (i)
April 16, 2005 (or, if not a Business Day, the next preceding Business Day),
PROVIDED, HOWEVER, that the Revolving Credit Termination Date may be extended
until April 16, 2006 (or, if not a Business Day, the next preceding Business
Day) in accordance with the provisions of SECTION 2.5 hereof; and (ii) the date
of termination of the Revolving Credit Commitments pursuant to the terms of this
Agreement.
"S&P" means Standard & Poor's Ratings Service.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
35
"SECURITIES" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
"SENIOR MANAGING AGENTS" means Deutsche Bank, Dresdner Bank AG, New
York and Grand Cayman Branches, Fleet National Bank, Bayerische Hypo- und
Vereinsbank, AG, acting through its New York Branch, and PNC Bank, National
Association.
"SOLVENT", when used with respect to any Person, means that at the
time of determination:
(i) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation, contingent
liabilities); and
(ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts become
absolute and matured; and
36
(iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as
they mature; and
(iv) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"STANDBY LETTER OF CREDIT" means any letter of credit issued by an
Issuing Bank pursuant to SECTION 3.1 for the account of the Borrower, which is
not a Commercial Letter of Credit.
"SUBSIDIARY" of a Person means any corporation, limited liability
company, general or limited partnership, or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned or controlled by such Person, one or more of
the other subsidiaries of such Person or any combination thereof.
"TAXES" is defined in SECTION 13.1(a).
"TENANT ALLOWANCE" means a cash allowance paid to a tenant by the
landlord pursuant to a Lease.
"TI WORK" means any construction or other "build-out" of tenant
leasehold improvements to the space demised to such tenant under Leases
(excluding such tenant's furniture, fixtures and equipment) performed pursuant
to the terms of such Leases, whether or not such tenant improvement work is
performed by or on behalf of the landlord or as part of a Tenant Allowance.
"TOTAL ADJUSTED OUTSTANDING INDEBTEDNESS" means, for any period, the
sum of (i) the amount of Indebtedness of the Consolidated Businesses set forth
on the then most recent quarterly financial statements of the Borrower and (ii)
the outstanding amount of Minority Holding Indebtedness allocable in accordance
with GAAP to any of
37
the Consolidated Businesses as of the time of determination and (iii) the
Contingent Obligations of the Consolidated Businesses and, to the extent
allocable to the Consolidated Businesses in accordance with GAAP, of the
Minority Holdings.
"TOTAL UNSECURED OUTSTANDING INDEBTEDNESS" means that portion of Total
Adjusted Outstanding Indebtedness that is not secured by a Lien.
"UBS" means UBS AG, Stamford Branch.
"UNENCUMBERED COMBINED EBITDA" means that portion of Combined EBITDA
which represents revenues earned from the Management Company (up to 5% of
Combined EBITDA) or from Real Property that is not subject to or encumbered by
Secured Indebtedness and is not subject to any agreements (other than those
agreements more particularly described on SCHEDULE 1.1.5), the effect of which
would be to restrict, directly or indirectly, the ability of the owner of such
Property from granting Liens thereon, calculated on the first day of each fiscal
quarter for the four immediately preceding consecutive fiscal quarters.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as enacted
in the State of New York, as it may be amended from time to time.
"UNSECURED DEBT YIELD" is defined in SECTION 10.12(e).
"UNSECURED INTEREST EXPENSE" means the interest expense incurred on
the Total Unsecured Outstanding Indebtedness.
"UNUSED COMMITMENT FEE" is defined in SECTION 5.3(b).
"UNUSED COMMITMENT FEE PERCENTAGE" shall be 0.25%. The Unused
Commitment Fee shall not be payable during the time, from time to time, that the
Borrower maintains an Investment Grade Credit Rating.
38
"UNUSED FACILITY" shall mean the amount, calculated daily, by which
the Revolving Credit Commitments exceed the sum of (i) the outstanding principal
amount of the Committed Loans, plus (ii) the outstanding Reimbursement
Obligations, plus (iii) the aggregate undrawn face amount of all outstanding
Letters of Credit.
I.2. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days are expressly prescribed. Any
period determined hereunder by reference to a month or months or year or years
shall end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, PROVIDED THAT if such period commences on the last day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month during which such period is to end), such period
shall, unless otherwise expressly required by the other provisions of this
Agreement, end on the last day of the calendar month.
I.3. ACCOUNTING TERMS. Subject to SECTION 15.4, for purposes of
this Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
I.4. OTHER TERMS. All other terms contained in this Agreement
shall, unless the context indicates otherwise, have the meanings assigned to
such terms by the Uniform Commercial Code to the extent the same are defined
therein.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
39
II.1. COMMITTED LOANS.
(a) AVAILABILITY. Subject to the terms and conditions set forth in
this Agreement, each Lender hereby severally and not jointly agrees to make
revolving loans, in Dollars (each individually, a "COMMITTED LOAN" and,
collectively, the "COMMITTED LOANS") to the Borrower from time to time during
the Revolving Credit Period, in an amount not to exceed such Lender's Pro Rata
Share of the Revolving Credit Availability at such time. All Committed Loans
comprising the same Borrowing under this Agreement shall be made by the Lenders
simultaneously and proportionately to their then respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make a Committed Loan hereunder nor
shall the Revolving Credit Commitment of any Lender be increased or decreased as
a result of any such failure. Subject to the provisions of this Agreement, the
Borrower may repay any outstanding Committed Loan on any day which is a Business
Day and any amounts so repaid may be reborrowed, up to the amount available
under this SECTION 2.1(a) at the time of such Borrowing, until the Business Day
next preceding the Revolving Credit Termination Date. Each requested Borrowing
of Committed Loans funded on any Funding Date shall be in a principal amount of
at least $1,500,000; provided, however, that if the Revolving Credit
Availability at the time of such requested Borrowing is less than $1,500,000,
then the requested Borrowing shall be for the total amount of the Revolving
Credit Availability.
(b) NOTICE OF COMMITTED BORROWING. When the Borrower desires to
borrow under this SECTION 2.1, it shall deliver to the Payment and Disbursement
Agent a Notice of Committed Borrowing, signed by it (i) no later than 12:00 noon
(New York time) on the Business Day immediately preceding the proposed Funding
Date, in the case of a Borrowing of Base Rate Loans, (ii) no later than 10:00
a.m. (New York time) on the Business Day immediately preceding the proposed
Funding Date, in the case of a Borrowing of IBOR Rate Loans and (iii) no later
than 11:00 a.m. (New
40
York time) at least three (3) Business Days in advance of the proposed Funding
Date, in the case of a Borrowing of Eurodollar Rate Loans. Such Notice of
Committed Borrowing shall specify (i) the proposed Funding Date (which shall be
a Business Day), (ii) the amount of the proposed Borrowing, (iii) the Revolving
Credit Availability as of the date of such Notice of Borrowing, (iv) whether the
proposed Borrowing will be of Base Rate Loans, Eurodollar Rate Loans or IBOR
Rate Loans, (v) in the case of Eurodollar Rate Loans or IBOR Rate Loans, the
requested Eurodollar Interest Period or IBOR Interest Period, as applicable, and
(vi) instructions for the disbursement of the proceeds of the proposed
Borrowing. In lieu of delivering such a Notice of Committed Borrowing (except
with respect to a Borrowing of Committed Loans on the Initial Funding Date), the
Borrower may give the Payment and Disbursement Agent telephonic notice of any
proposed Borrowing by the time required under this SECTION 2.1(b), if the
Borrower confirms such notice by delivery of the Notice of Borrowing to the
Payment and Disbursement Agent by facsimile transmission promptly, but in no
event later than 3:00 p.m. (New York time) on the same day. Any Notice of
Borrowing (or telephonic notice in lieu thereof) given pursuant to this SECTION
2.1(b) shall be irrevocable.
(c) MAKING OF LOANS. (i) Promptly after receipt of a Notice of
Committed Borrowing under SECTION 2.1(b) (or telephonic notice in lieu thereof),
the Payment and Disbursement Agent shall notify each Lender by facsimile
transmission, or other similar form of transmission, of the proposed Borrowing
(which notice to the Lenders, in the case of a Borrowing of Eurodollar Rate
Loans, shall be at least three (3) Business Days in advance of the proposed
Funding Date for such Loans). Each Lender shall deposit an amount equal to its
Pro Rata Share of the Borrowing requested by the Borrower with the Payment and
Disbursement Agent at its office in New York, New York, in immediately available
funds, not later than 12:00 noon (New York time) on the respective Funding Date
therefor. Subject to the fulfillment of the conditions precedent set forth in
SECTION 6.1 or SECTION 6.2, as applicable, the
41
Payment and Disbursement Agent shall make the proceeds of such amounts received
by it available to the Borrower at the Payment and Disbursement Agent's office
in New York, New York on such Funding Date (or on the date received if later
than such Funding Date) and shall disburse such proceeds in accordance with the
Borrower's disbursement instructions set forth in the applicable Notice of
Borrowing. The failure of any Lender to deposit the amount described above with
the Payment and Disbursement Agent on the applicable Funding Date shall not
relieve any other Lender of its obligations hereunder to make its Committed Loan
on such Funding Date. In the event the conditions precedent set forth in SECTION
6.1 or 6.2 are not fulfilled as of the proposed Funding Date for any Borrowing,
the Payment and Disbursement Agent shall promptly return, by wire transfer of
immediately available funds, the amount deposited by each Lender to such Lender.
(ii) Unless the Payment and Disbursement Agent shall have been
notified by any Lender on the Business Day immediately preceding the applicable
Funding Date in respect of any Borrowing that such Lender does not intend to
fund its Committed Loan requested to be made on such Funding Date, the Payment
and Disbursement Agent may assume that such Lender has funded its Committed Loan
and is depositing the proceeds thereof with the Payment and Disbursement Agent
on the Funding Date therefor, and the Payment and Disbursement Agent in its sole
discretion may, but shall not be obligated to, disburse a corresponding amount
to the Borrower on the applicable Funding Date. If the Loan proceeds
corresponding to that amount are advanced to the Borrower by the Payment and
Disbursement Agent but are not in fact deposited with the Payment and
Disbursement Agent by such Lender on or prior to the applicable Funding Date,
such Lender agrees to pay, and in addition the Borrower agrees to repay, to the
Payment and Disbursement Agent forthwith on demand such corresponding amount,
together with interest thereon, for each day from the date such amount is
disbursed to or for the benefit of the Borrower until the date such amount is
paid or repaid to the Payment and Disbursement Agent, at the interest rate
42
applicable to such Borrowing. If such Lender shall pay to the Payment and
Disbursement Agent the corresponding amount, the amount so paid shall constitute
such Lender's Committed Loan, and if both such Lender and the Borrower shall pay
and repay such corresponding amount, the Payment and Disbursement Agent shall
promptly pay to the Borrower such corresponding amount. This SECTION 2.1(c)(ii)
does not relieve any Lender of its obligation to make its Committed Loan on any
applicable Funding Date.
II.2. MONEY MARKET LOANS.
(a) THE MONEY MARKET OPTION. From time to time during the Revolving
Credit Period, and provided that at such time the Borrower maintains an
Investment Grade Credit Rating, the Borrower may, as set forth in this SECTION
2.2, request the Lenders during the Revolving Credit Period to make offers to
make Money Market Loans to the Borrower, provided that the aggregate outstanding
amount of such Money Market Loans shall not exceed, at any time, the lesser of
(i) fifty percent (50%) of the Maximum Revolving Credit Amount and (ii) the
Revolving Credit Availability. Subject to the provisions of this Agreement, the
Borrower may repay any outstanding Money Market Loan on any day which is a
Business Day and any amounts so repaid may be reborrowed, up to the amount
available under this SECTION 2.2(a) at the time of such Borrowing, until the
Business Day next preceding the Revolving Credit Termination Date. The Lenders
may, but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this SECTION 2.2.
(b) MONEY MARKET QUOTE REQUEST. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Payment and Disbursement Agent by telex or facsimile transmission a Money Market
Quote Request substantially in the form of EXHIBIT H hereto so as to be received
not later than 10:30 A.M. (New York City time) on the fifth (5th) Business Day
prior to the date of Borrowing proposed therein (or such
43
other time or date as the Borrower and the Payment and Disbursement Agent shall
have mutually agreed and shall have notified to the Lenders not later than the
date of the Money Market Quote Request for the first LIBOR Auction or IBOR
Auction (as applicable) for which such change is to be effective) specifying:
(i) whether the proposed Borrowing is to be of Eurodollar Money
Market Loans or IBOR Money Market Loans,
(ii) the proposed date of Borrowing, which shall be a Business
Day,
(iii) the aggregate amount of such Borrowing, which shall be
$25,000,000 or a larger multiple of $1,000,000,
(iv) the duration of the Eurodollar Interest Period applicable
thereto, or the IBOR Interest Period applicable thereto (as applicable),
subject, in each case, to the provisions of SECTION 5.2(b), and
(v) the amount of all Money Market Loans then outstanding
(which, together with the requested Borrowing shall not exceed, in the
aggregate, the lesser of (A) fifty percent (50%) of the Maximum Revolving Credit
Amount and (B) the Revolving Credit Availability).
The Borrower may request offers to make Money Market Loans for more than one
Eurodollar Interest Period or IBOR Interest Period in a single Money Market
Quote Request. Borrower may not make more than three (3) Money Market Quote
Requests in any thirty-day Eurodollar Interest Period.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon receipt of a
Money Market Quote Request, the Payment and Disbursement Agent shall send to the
Lenders by telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of EXHIBIT I
44
hereto, which shall constitute an invitation by the Borrower to each Lender to
submit Money Market Quotes offering to make the Money Market Loans to which such
Money Market Quote Request relates in accordance with this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES. (i) Each Lender
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Payment and Disbursement Agent by telex or facsimile
transmission not later than 2:00 P.M. (New York City time) on the fourth (4th)
Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or an IBOR Auction (or such other time or date as the Borrower and the
Payment and Disbursement Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or IBOR Auction (as applicable) for which
such change is to be effective); PROVIDED that Money Market Quotes submitted by
the Payment and Disbursement Agent (or any affiliate of the Payment and
Disbursement Agent) in the capacity of a Lender may be submitted, and may only
be submitted, if the Payment and Disbursement Agent or such affiliate notifies
the Borrower of the terms of the offer or offers contained therein not later
than one hour prior to the deadline for the other Lenders. Any Money Market
Quote so made shall be irrevocable except with the written consent of the
Payment and Disbursement Agent given on the instructions of the Borrower. All or
any portion of Money Market Loans to be funded pursuant to a Money Market Quote
may, as provided in SECTION 15.1(f), be funded by a Lender's Designated Bank. A
Lender making a Money Market Quote may, but shall not be required to, specify in
its Money Market Quote whether all or any portion of the related Money Market
Loans are intended to be funded by such Lender's Designated Bank, as provided in
SECTION 15.1(f).
45
(ii) Each Money Market Quote shall be in substantially the form
of EXHIBIT J hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each such
offer is being made, which principal amount (w) may be greater than or less
than the Revolving Credit Commitment of the quoting Lender, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may not exceed the
principal amount of Money Market Loans for which offers were requested and
(z) may be subject to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such quoting Lender may
be accepted,
(C) either (1) the margin above or below the applicable Eurodollar
Rate or IBOR Rate (each, a "MONEY MARKET MARGIN") offered for each such
Money Market Loan, expressed as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted from such base rate, or (2)
a flat rate of interest (each, a "MONEY MARKET RATE") offered for each
Money Market Loan, and
(D) the identity of the quoting Lender.
A Money Market Quote may set forth up to five separate offers by the quoting
Lender with respect to each Eurodollar Interest Period or IBOR Interest Period
specified in the related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with EXHIBIT J hereto or does
not specify all of the information required by subsection (d)(ii) above;
46
(B) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
(C) arrives after the time set forth in subsection (d)(i).
(e) NOTICE TO BORROWER. The Payment and Disbursement Agent shall
promptly notify the Borrower of the terms (x) of any Money Market Quote
submitted by a Lender that is in accordance with subsection (d) and (y) of any
Money Market Quote that amends, modifies or is otherwise inconsistent with a
previous Money Market Quote submitted by such Lender with respect to the same
Money Market Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Payment and Disbursement Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in such former
Money Market Quote. The Payment and Disbursement Agent's notice to the Borrower
shall specify (A) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (B) the principal amounts and Money Market Margin or
Money Market Rate, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than 6:00 P.M. (New
York City time) on the fourth Business Day prior to the proposed date of
Borrowing (or such other time or date as the Borrower and the Payment and
Disbursement Agent shall have mutually agreed and shall have notified to the
Lenders not later than the date of the Money Market Quote Request for the first
LIBOR Auction or IBOR Auction (as applicable) for which such change is to be
effective), the Borrower shall telephonically notify the Payment and
Disbursement Agent of its acceptance or non-acceptance of the offers so notified
to it pursuant to subsection (e), and the Borrower shall confirm such tele-
47
phonic notification in writing not later than the third Business Day prior to
the proposed date of Borrowing. In the case of acceptance, such notice (a
"NOTICE OF MONEY MARKET BORROWING"), whether telephonic or in writing, shall
specify the aggregate principal amount of offers for each Eurodollar Interest
Period and/or each IBOR Interest Period that are accepted. The Borrower may
accept any Money Market Quote in whole or in part; PROVIDED that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the principal amount of each Money Market Borrowing must be
$5,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Quotes; and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements
of this Agreement.
(g) ALLOCATION BY PAYMENT AND DISBURSEMENT AGENT. If offers are made
by two or more Lenders with the same Money Market Margins and/or Money Market
Rates, for a greater aggregate principal amount than the amount in respect of
which such offers are accepted for the related Eurodollar Interest Period and/or
IBOR Interest Period, as applicable, the principal amount of Money Market Loans
in respect of which such offers are accepted shall be allocated by the Payment
and Disbursement Agent among such Lenders as nearly as possible (in multiples of
$1,000,000, as the Payment and Disbursement Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determinations by
the Payment and Disbursement Agent of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
48
(h) NOTIFICATION BY PAYMENT AND DISBURSEMENT AGENT. Upon receipt of
the Borrower's Notice of Money Market Borrowing in accordance with Section
2.2(f) hereof, the Payment and Disbursement Agent shall, on the date such Notice
of Money Market Borrowing is received by the Payment and Disbursement Agent,
notify each Lender of the principal amount of the Money Market Borrowing
accepted by the Borrower and of such Lender's share (if any) of such Money
Market Borrowing and such Notice of Money Market Borrowing shall not thereafter
be revocable by the Borrower. A Lender who is notified that it has been selected
to make a Money Market Loan may designate its Designated Bank (if any) to fund
such Money Market Loan on its behalf, as described in Section 15.1(f). Any
Designated Bank which funds a Money Market Loan shall on and after the time of
such funding become the obligee under such Money Market Loan and be entitled to
receive payment thereof when due. No Lender shall be relieved of its obligation
to fund a Money Market Loan, and no Designated Bank shall assume such
obligation, prior to the time the applicable Money Market Loan is funded.
II.3. USE OF PROCEEDS OF LOANS AND LETTERS OF CREDIT. The proceeds
of the Loans and the Letters of Credit issued for the account of the Borrower
hereunder may be used for the purposes of:
(a) acquisition of Projects, portfolios of Projects, or interests in
Projects, similar to and consistent with the types of Projects owned and/or
operated by the Borrower on the Closing Date;
(b) acquisition of Persons or interests in Persons that own or have
direct or indirect interests in Projects or portfolios of Projects similar to
and consistent with the types of Projects owned and/or operated by the Borrower
on the Closing Date;
(c) renovation of Properties owned and operated by the Borrower;
49
(d) funding of TI Work and Tenant Allowances;
(e) financing construction related to Properties owned and operated
by the Borrower; and
(f) other general corporate, partnership and working capital needs of
the Borrower, inclusive of repayment of Indebtedness for borrowed money;
each of which purposes described in clauses (a) through (f) above must otherwise
be lawful general corporate, partnership and working capital purposes of the
Borrower.
II.4. REVOLVING CREDIT TERMINATION DATE; MATURITY OF MONEY MARKET
LOANS. (a) The Revolving Credit Commitments shall terminate, and all outstanding
Revolving Credit Obligations shall be paid in full (or, in the case of unmatured
Letter of Credit Obligations, provision for payment in cash shall be made to the
satisfaction of the Lenders actually issuing Letters of Credit and the Requisite
Lenders), on the Revolving Credit Termination Date. Each Lender's obligation to
make Loans shall terminate on the Business Day next preceding the Revolving
Credit Termination Date.
(b) Each Money Market Loan included in any Money Market Borrowing
shall mature, and the principal amount thereof shall be due and payable,
together with the accrued interest thereon, on the last day of the Eurodollar
Interest Period or, as applicable, IBOR Interest Period, applicable to such
Borrowing.
II.5. EXTENSION OPTION.
(a) The Borrower shall have one option (the "EXTENSION OPTION") to
extend the maturity of the Revolving Credit Commitments for a period of one (1)
year. Subject to the conditions set forth in clause (b) below, Borrower may
exercise the Extension Option by delivering written notice (the "EXTENSION
NOTICE"), together with the payment of the Extension Fee for the account of the
Lenders (based
50
on their respective Pro Rata Shares), to the Payment and Disbursement Agent on
or before March 1, 2005, stating that Borrower will extend the Revolving Credit
Termination Date for one (1) year. Borrower's delivery of the Extension Notice
shall be irrevocable. In no event shall the Revolving Credit Termination Date
occur later than April 16, 2006.
(b) The Borrower's right to exercise the Extension Option shall be
subject to the following terms and conditions: (i) no Potential Event of Default
or Event of Default shall have occurred and be continuing either on the date
Borrower delivers the Extension Notice to the Payment and Disbursement Agent or
on the date that this Agreement would otherwise have terminated, (ii) the
Borrower shall be in full compliance with all covenants and conditions set forth
in this Agreement as of the date Borrower delivers the Extension Notice to the
Agent and on the date that this Agreement would otherwise have terminated, and
(iii) the Borrower shall have paid the Extension Fee to the Payment and
Disbursement Agent for the account of the Lenders (based on their respective Pro
Rata Shares).
II.6. MAXIMUM CREDIT FACILITY. Notwithstanding anything in this
Agreement to the contrary, in no event shall the aggregate principal Revolving
Credit Obligations exceed the Maximum Revolving Credit Amount.
II.7. AUTHORIZED AGENTS. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Payment and Disbursement Agent an
Officer's Certificate setting forth the names of the employees and agents
authorized to request Loans and Letters of Credit and to request a
conversion/continuation of any Loan and containing a specimen signature of each
such employee or agent. The employees and agents so authorized shall also be
authorized to act for the Borrower in respect of all other matters relating to
the Loan Documents. The Payment and Disbursement Agent, the Arrangers, the
Co-Agents, the Lenders and any Issuing Bank shall be entitled to rely
conclusively on such employee's or agent's authority to
51
request such Loan or Letter of Credit or such conversion/continuation until the
Payment and Disbursement Agent and the Arrangers receive written notice to the
contrary. None of the Payment and Disbursement Agent or the Arrangers shall have
any duty to verify the authenticity of the signature appearing on any written
Notice of Borrowing or Notice of Conversion/Continuation or any other document,
and, with respect to an oral request for such a Loan or Letter of Credit or such
conversion/continuation, the Payment and Disbursement Agent and the Arrangers
shall have no duty to verify the identity of any person representing himself or
herself as one of the employees or agents authorized to make such request or
otherwise to act on behalf of the Borrower. None of the Payment and Disbursement
Agent, the Arrangers or the Lenders shall incur any liability to the Borrower or
any other Person in acting upon any telephonic or facsimile notice referred to
above which the Payment and Disbursement Agent or the Arrangers believes to have
been given by a person duly authorized to act on behalf of the Borrower and the
Borrower hereby indemnifies and holds harmless the Payment and Disbursement
Agent, each Arranger and each other Lender from any loss or expense the Payment
and Disbursement Agent, the Arrangers or the Lenders might incur in acting in
good faith as provided in this SECTION 2.7.
ARTICLE III
LETTERS OF CREDIT
III.1. LETTERS OF CREDIT. Subject to the terms and conditions set
forth in this Agreement, including, without limitation, SECTION 3.1(c)(ii), each
Lead Arranger hereby severally agrees to issue for the account of the Borrower
one or more Letters of Credit (any Lead Arranger actually issuing a Letter of
Credit, an "ISSUING BANK"), subject to the following provisions:
(a) TYPES AND AMOUNTS. An Issuing Bank shall not have any obligation
to issue, amend or extend, and
52
shall not issue, amend or extend, any Letter of Credit at any time:
(i) if the aggregate Letter of Credit Obligations with respect
to such Issuing Bank, after giving effect to the issuance, amendment or
extension of the Letter of Credit requested hereunder, shall exceed any
limit imposed by law or regulation upon such Issuing Bank;
(ii) if, immediately after giving effect to the issuance,
amendment or extension of such Letter of Credit, (1) the Letter of Credit
Obligations at such time would exceed $100,000,000 or (2) the Revolving
Credit Obligations at such time would exceed the Maximum Revolving Credit
Amount at such time, or (3) one or more of the conditions precedent
contained in SECTIONS 6.1 or 6.2, as applicable, would not on such date be
satisfied, unless such conditions are thereafter satisfied and written
notice of such satisfaction is given to such Issuing Bank by the Payment
and Disbursement Agent (and such Issuing Bank shall not otherwise be
required to determine that, or take notice whether, the conditions
precedent set forth in SECTIONS 6.1 or 6.2, as applicable, have been
satisfied);
(iii) which has an expiration date later than the earlier of (A)
the date one (1) year after the date of issuance (without regard to any
automatic renewal provisions thereof) or (B) the Business Day next
preceding the scheduled Revolving Credit Termination Date; or
(iv) which is in a currency other than Dollars.
(b) CONDITIONS. In addition to being subject to the satisfaction of
the conditions precedent contained in SECTIONS 6.1 and 6.2, as applicable, the
obligation of an
53
Issuing Bank to issue, amend or extend any Letter of Credit is subject to the
satisfaction in full of the following conditions:
(i) if the Issuing Bank so requests, the Borrower shall have
executed and delivered to such Issuing Bank and the Payment and
Disbursement Agent a Letter of Credit Reimbursement Agreement and such
other documents and materials as may be required pursuant to the terms
thereof; and
(ii) the terms of the proposed Letter of Credit shall be
satisfactory to the Issuing Bank in its sole discretion.
(c) ISSUANCE OF LETTERS OF CREDIT. (i) The Borrower shall give the
Payment and Disbursement Agent written notice that it requires the issuance of a
Letter of Credit not later than 11:00 a.m. (New York time) on the third (3rd)
Business Day preceding the requested date for issuance thereof under this
Agreement. Such notice shall be irrevocable unless and until such request is
denied by the applicable Arranger and shall specify (A) that the requested
Letter of Credit is either a Commercial Letter of Credit or a Standby Letter of
Credit, (B) that such Letter of Credit is solely for the account of the
Borrower, (C) the stated amount of the Letter of Credit requested, (D) the
effective date (which shall be a Business Day) of issuance of such Letter of
Credit, (E) the date on which such Letter of Credit is to expire (which shall be
a Business Day and no later than the Business Day immediately preceding the
scheduled Revolving Credit Termination Date), (F) the Person for whose benefit
such Letter of Credit is to be issued, (G) other relevant terms of such Letter
of Credit, (H) the Revolving Credit Availability at such time, and (I) the
amount of the then outstanding Letter of Credit Obligations.
(ii) The Arrangers shall jointly select one Arranger to act as
Issuing Bank with respect to such Letter
54
of Credit, which selection shall be in the sole discretion of the Arrangers. If
such Arranger declines to issue the Letter of Credit, the Arrangers shall
jointly select an alternative Lender to issue such Letter of Credit.
(iii) The selected Arranger (if not the Payment and Disbursement
Agent) shall give the Payment and Disbursement Agent written notice, or
telephonic notice confirmed promptly thereafter in writing, of the issuance,
amendment or extension of a Letter of Credit (which notice the Payment and
Disbursement Agent shall promptly transmit by telegram, facsimile transmission,
or similar transmission to each Lender).
(d) REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANKS AND OTHER
LENDERS.
(i) Notwithstanding any provisions to the contrary in any Letter
of Credit Reimbursement Agreement:
(A) the Borrower shall reimburse the Issuing Bank for amounts drawn
under its Letter of Credit, in Dollars, no later than the date (the
"REIMBURSEMENT DATE") which is the earlier of (I) the time specified in the
applicable Letter of Credit Reimbursement Agreement and (II) three (3)
Business Days after the Borrower receives written notice from the Issuing
Bank that payment has been made under such Letter of Credit by the Issuing
Bank; and
(B) all Reimbursement Obligations with respect to any Letter of
Credit shall bear interest at the rate applicable to Base Rate Loans in
accordance with SECTION 5.1(a) from the date of the relevant drawing under
such Letter of Credit until the Reimbursement Date and thereafter at the
rate applicable to Base Rate Loans in accordance with SECTION 5.1(d).
(ii) The Issuing Bank shall give the Payment and Disbursement
Agent written notice, or telephonic notice
55
confirmed promptly thereafter in writing, of all drawings under a Letter of
Credit and the payment (or the failure to pay when due) by the Borrower on
account of a Reimbursement Obligation (which notice the Payment and Disbursement
Agent shall promptly transmit by telegram, facsimile transmission or similar
transmission to each Lender).
(iii) No action taken or omitted in good faith by an Issuing Bank
under or in connection with any Letter of Credit shall put such Issuing Bank
under any resulting liability to any Lender, the Borrower or, so long as it is
not issued in violation of SECTION 3.1(a), relieve any Lender of its obligations
hereunder to such Issuing Bank. Solely as between the Issuing Banks and the
other Lenders, in determining whether to pay under any Letter of Credit, the
Issuing Bank shall have no obligation to the other Lenders other than to confirm
that any documents required to be delivered under a respective Letter of Credit
appear to have been delivered and that they appear on their face to comply with
the requirements of such Letter of Credit.
(e) PARTICIPATIONS. (i) Immediately upon issuance by an Issuing Bank
of any Letter of Credit in accordance with the procedures set forth in this
SECTION 3.1, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from that Issuing Bank, without recourse or warranty, an
undivided interest and participation in such Letter of Credit to the extent of
such Lender's Pro Rata Share, including, without limitation, all obligations of
the Borrower with respect thereto (other than amounts owing to the Issuing Bank
under SECTION 3.1(g)) and any security therefor and guaranty pertaining thereto.
(ii) If any Issuing Bank makes any payment under any Letter of
Credit and the Borrower does not repay such amount to the Issuing Bank on the
Reimbursement Date, the Issuing Bank shall promptly notify the Payment and
Disbursement Agent, which shall promptly notify each other Lender, and each
Lender shall promptly and unconditionally pay to the Payment and Disbursement
Agent for the account
56
of such Issuing Bank, in immediately available funds, the amount of such
Lender's Pro Rata Share of such payment (net of that portion of such payment, if
any, made by such Issuing Bank in its capacity as an issuer of a Letter of
Credit), and the Payment and Disbursement Agent shall promptly pay to such
Issuing Bank such amounts received by it, and any other amounts received by the
Payment and Disbursement Agent for such Issuing Bank's account, pursuant to this
SECTION 3.1(e). If a Lender does not make its Pro Rata Share of the amount of
such payment available to the Payment and Disbursement Agent, such Lender agrees
to pay to the Payment and Disbursement Agent for the account of the Issuing
Bank, forthwith on demand, such amount together with interest thereon at the
interest rate then applicable to Base Rate Loans in accordance with SECTION
5.1(a). The failure of any Lender to make available to the Payment and
Disbursement Agent for the account of an Issuing Bank its Pro Rata Share of any
such payment shall neither relieve any other Lender of its obligation hereunder
to make available to the Payment and Disbursement Agent for the account of such
Issuing Bank such other Lender's Pro Rata Share of any payment on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Payment and Disbursement Agent.
(iii) Whenever an Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, as to which the
Payment and Disbursement Agent has previously received payments from any other
Lender for the account of such Issuing Bank pursuant to this SECTION 3.1(e),
such Issuing Bank shall promptly pay to the Payment and Disbursement Agent and
the Payment and Disbursement Agent shall promptly pay to each other Lender an
amount equal to such other Lender's Pro Rata Share thereof. Each such payment
shall be made by such reimbursed Issuing Bank or the Payment and Disbursement
Agent, as the case may be, on the Business Day on which such Person receives the
funds paid to such Person pursuant to the preceding sentence, if received prior
to
57
11:00 a.m. (New York time) on such Business Day, and otherwise on the next
succeeding Business Day.
(iv) Upon the written request of any Lender, the Issuing Banks
shall furnish such requesting Lender copies of any Letter of Credit, Letter of
Credit Reimbursement Agreement, and related amendment to which such Issuing Bank
is party and such other documentation as reasonably may be requested by the
requesting Lender.
(v) The obligations of a Lender to make payments to the Payment
and Disbursement Agent for the account of any Issuing Bank with respect to a
Letter of Credit shall be irrevocable, shall not be subject to any qualification
or exception whatsoever except willful misconduct or gross negligence of such
Issuing Bank, and shall be honored in accordance with this ARTICLE III
(irrespective of the satisfaction of the conditions described in SECTIONS 6.1
and 6.2, as applicable) under all circumstances, including, without limitation,
any of the following circumstances:
(A) any lack of validity or enforceability of this Agreement or any
of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other right which
the Borrower may have at any time against a beneficiary named in a Letter
of Credit or any transferee of a beneficiary named in a Letter of Credit
(or any Person for whom any such transferee may be acting), any Lender, or
any other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transactions between the account party and
beneficiary named in any Letter of Credit);
(C) any draft, certificate or any other document presented under the
Letter of Credit having been determined to be forged, fraudulent,
58
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Loan Documents;
(E) any failure by that Issuing Bank to make any reports required
pursuant to SECTION 3.1(h) or the inaccuracy of any such report; or
(F) the occurrence of any Event of Default or Potential Event of
Default.
(f) PAYMENT OF REIMBURSEMENT OBLIGATIONS. (i) The Borrower
unconditionally agrees to pay to each Issuing Bank, in Dollars, the amount of
all Reimbursement Obligations, interest and other amounts payable to such
Issuing Bank under or in connection with the Letters of Credit when such amounts
are due and payable, irrespective of any claim, setoff, defense or other right
which the Borrower may have at any time against any Issuing Bank or any other
Person.
(ii) In the event any payment by the Borrower received by an
Issuing Bank with respect to a Letter of Credit and distributed by the Payment
and Disbursement Agent to the Lenders on account of their participations is
thereafter set aside, avoided or recovered from such Issuing Bank in connection
with any receivership, liquidation or bankruptcy proceeding, each Lender which
received such distribution shall, upon demand by such Issuing Bank, contribute
such Lender's Pro Rata Share of the amount set aside, avoided or recovered
together with interest at the rate required to be paid by such Issuing Bank upon
the amount required to be repaid by it.
(g) LETTER OF CREDIT FEE CHARGES. In connection with each Letter of
Credit, Borrower hereby covenants to pay to the Payment and Disbursement Agent
the following
59
fees each payable quarterly in arrears (on the first Business Day of each
calendar quarter following the issuance of each Letter of Credit): (1) a fee for
the account of the Lenders, computed daily on the amount of the Letter of Credit
issued and outstanding at a rate per annum equal to the "Banks' L/C Fee Rate"
(as hereinafter defined) and (2) a fee, for the Issuing Bank's own account,
computed daily on the amount of the Letter of Credit issued and outstanding at a
rate per annum equal to 0.125%. For purposes of this Agreement, the "Banks' L/C
Fee Rate" shall mean, at any time, a rate per annum equal to the Applicable
Margin for Eurodollar Rate Loans LESS 0.125% per annum. It is understood and
agreed that the last installment of the fees provided for in this paragraph (g)
with respect to any particular Letter of Credit shall be due and payable on the
first day of the fiscal quarter following the return, undrawn, or cancellation
of such Letter of Credit. In addition, the Borrower shall pay to each Issuing
Bank, solely for its own account, the standard charges assessed by such Issuing
Bank in connection with the issuance, administration, amendment and payment or
cancellation of Letters of Credit and such compensation in respect of such
Letters of Credit for the Borrower's account as may be agreed upon by the
Borrower and such Issuing Bank from time to time.
(h) LETTER OF CREDIT REPORTING REQUIREMENTS. Each Issuing Bank shall,
no later than the tenth (10th) Business Day following the last day of each
calendar month, provide to the Payment and Disbursement Agent, the Borrower, and
each other Lender separate schedules for Commercial Letters of Credit and
Standby Letters of Credit issued as Letters of Credit, in form and substance
reasonably satisfactory to the Payment and Disbursement Agent, setting forth the
aggregate Letter of Credit Obligations outstanding to it at the end of each
month and, to the extent not otherwise provided in accordance with the
provisions of SECTION 3.1(c)(ii), any information requested by the Payment and
Disbursement Agent or the Borrower relating to the date of issue, account party,
amount, expiration
60
date and reference number of each Letter of Credit issued by it.
(i) INDEMNIFICATION; EXONERATION. (i) In addition to all other
amounts payable to an Issuing Bank, the Borrower hereby agrees to defend,
indemnify, and save the Payment and Disbursement Agent, each Issuing Bank, and
each other Lender harmless from and against any and all claims, demands,
liabilities, penalties, damages, losses (other than loss of profits), costs,
charges and expenses (including reasonable attorneys' fees but excluding taxes)
which the Payment and Disbursement Agent, the Issuing Banks, or such other
Lender may incur or be subject to as a consequence, direct or indirect, of (A)
the issuance of any Letter of Credit other than as a result of the gross
negligence or willful misconduct of the Issuing Bank, as determined by a court
of competent jurisdiction, or (B) the failure of the Issuing Bank to honor a
drawing under such Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future DE JURE or DE FACTO government or
Governmental Authority.
(ii) As between the Borrower on the one hand and the Lenders on
the other hand, the Borrower assumes all risks of the acts and omissions of, or
misuse of Letters of Credit by, the respective beneficiaries of the Letters of
Credit. In furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit Reimbursement Agreements, the Payment and
Disbursement Agent, the Issuing Banks and the other Lenders shall not be
responsible for: (A) the form, validity, legality, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (B) the validity, legality or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
61
reason; (C) failure of the beneficiary of a Letter of Credit to duly comply with
conditions required in order to draw upon such Letter of Credit; (D) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher;
(E) errors in interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (G) the misapplication by
the beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; and (H) any consequences arising from causes beyond the
control of the Payment and Disbursement Agent, the Issuing Banks or the other
Lenders.
III.2. OBLIGATIONS SEVERAL. The obligations of the Payment and
Disbursement Agent, each Issuing Bank, and each other Lender under this ARTICLE
III are several and not joint, and no Issuing Bank or other Lender shall be
responsible for the obligation to issue Letters of Credit or participation
obligation hereunder, respectively, of any other Issuing Bank or other Lender.
ARTICLE IV
PAYMENTS AND PREPAYMENTS
IV.1. PREPAYMENTS; REDUCTIONS IN REVOLVING CREDIT COMMITMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrower may, at any time and from
time to time, prepay the Loans in part or in their entirety, subject to the
following limitations. The Borrower shall give at least five (5) Business Days'
prior written notice to the Payment and Disbursement Agent (which the Payment
and Disbursement Agent shall promptly transmit to each Lender) of any prepayment
in the entirety to be made prior to the occurrence of an Event of Default, which
notice of prepayment shall specify the date (which shall be a Business Day) of
prepayment. When notice of
62
prepayment is delivered as provided herein, the outstanding principal amount of
the Loans on the prepayment date specified in the notice shall become due and
payable on such prepayment date. Each voluntary partial prepayment of the Loans
shall be in a minimum amount of $1,000,000 and in integral multiples of
$1,000,000 in excess of that amount. Eurodollar Rate Loans, IBOR Rate Loans, and
Money Market Loans may be prepaid in part or in their entirety only upon payment
of the amounts described in SECTION 5.2(f).
(b) VOLUNTARY REDUCTIONS IN REVOLVING CREDIT COMMITMENTS. The
Borrower may, upon at least five (5) Business Days' prior written notice to the
Payment and Disbursement Agent (which the Payment and Disbursement Agent shall
promptly transmit to each Lender), at any time and from time to time, terminate
in whole or permanently reduce in part the Revolving Credit Commitments,
PROVIDED THAT the Borrower shall have made whatever payment may be required to
reduce the Revolving Credit Obligations to an amount less than or equal to the
Revolving Credit Commitments as reduced or terminated, which amount shall become
due and payable on the date specified in such notice. Any partial reduction of
the Revolving Credit Commitments shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of $1,000,000 in excess of that amount, and
shall reduce the Revolving Credit Commitment of each Lender proportionately in
accordance with its Pro Rata Share. Any notice of termination or reduction given
to the Payment and Disbursement Agent under this SECTION 4.1(b) shall specify
the date (which shall be a Business Day) of such termination or reduction and,
with respect to a partial reduction, the aggregate principal amount thereof.
(c) NO PENALTY. The prepayments and payments in respect of reductions
and terminations described in clauses (a) and (b) of this SECTION 4.1 may be
made without premium or penalty (except as provided in SECTION 5.2(f)).
(d) MANDATORY PREPAYMENT. If at any time from and after the Closing
Date: (i) the Borrower merges or
63
consolidates with another Person and the Borrower is not the surviving entity,
or (ii) the Borrower or any Consolidated Business sells, transfers, assigns or
conveys assets, the book value of which (computed in accordance with GAAP but
without deduction for depreciation), in the aggregate of all such sales,
transfers, assignments, foreclosures, or conveyances exceeds 30% of the
Capitalization Value, or (iii) the portion of Capitalization Value attributable
to the aggregate Limited Minority Holdings of the Borrower and its Consolidated
Businesses exceed 20% of Capitalization Value, or (iv) the Borrower or the
Management Company ceases to provide directly or through their Affiliates
property management and leasing services to at least 33% of the total number of
shopping centers in which the Borrower has an ownership interest (the date any
such event shall occur being the "PREPAYMENT DATE"), the Revolving Credit
Commitment shall be terminated and the Borrower shall be required to prepay the
Loans in their entirety as if the Prepayment Date were the Revolving Credit
Termination Date. The Borrower shall immediately make such prepayment together
with interest accrued to the date of the prepayment on the principal amount
prepaid and shall return or cause to be returned all Letters of Credit to the
applicable Lender. In connection with the prepayment of any Loan prior to the
maturity thereof, the Borrower shall also pay any applicable expenses pursuant
to SECTION 5.2(f). Each such prepayment shall be applied to prepay ratably the
Loans of the Lenders. Amounts prepaid pursuant to this SECTION 4.1(d) may not be
reborrowed. As used in this SECTION 4.1(d) only, the phrase "sells, transfers,
assigns or conveys" shall not include (i) sales or conveyances among Borrower
and any Consolidated Businesses, or (ii) mortgages secured by Real Property.
IV.2. PAYMENTS.
(a) MANNER AND TIME OF PAYMENT. All payments of principal of and
interest on the Loans and Reimbursement Obligations and other Obligations
(including, without limitation, fees and expenses) which are payable to the
Payment
64
and Disbursement Agent, the Arrangers or any other Lender shall be made without
condition or reservation of right, in immediately available funds, delivered to
the Payment and Disbursement Agent (or, in the case of Reimbursement
Obligations, to the pertinent Arranger) not later than 12:00 noon (New York
time) on the date and at the place due, to such account of the Payment and
Disbursement Agent (or such Arranger) as it may designate, for the account of
the Payment and Disbursement Agent, an Arranger, or such other Lender, as the
case may be; and funds received by the Payment and Disbursement Agent (or such
Arranger), including, without limitation, funds in respect of any Loans to be
made on that date, not later than 12:00 noon (New York time) on any given
Business Day shall be credited against payment to be made that day and funds
received by the Payment and Disbursement Agent (or such Arranger) after that
time shall be deemed to have been paid on the next succeeding Business Day.
Payments actually received by the Payment and Disbursement Agent for the account
of the Lenders, or any of them, shall be paid to them by the Payment and
Disbursement Agent promptly after receipt thereof, in immediately available
funds.
(b) APPORTIONMENT OF PAYMENTS. (i) Subject to the provisions of
SECTION 4.2(b)(v), all payments of principal and interest in respect of
outstanding Loans, all payments in respect of Reimbursement Obligations, all
payments of fees and all other payments in respect of any other Obligations,
shall be allocated among such of the Lenders as are entitled thereto, in
proportion to their respective Pro Rata Shares or otherwise as provided herein.
Subject to the provisions of SECTION 4.2(b)(ii), all such payments and any other
amounts received by the Payment and Disbursement Agent from or for the benefit
of the Borrower shall be applied in the following order:
(A) to pay principal of and interest on any portion of the Loans
which the Payment and Disbursement Agent may have advanced on behalf of any
Lender other than itself for which the Payment and Disbursement
65
Agent has not then been reimbursed by such Lender or the Borrower,
(B) to pay all other Obligations then due and payable and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of Committed Loans shall be applied FIRST, to repay outstanding Base Rate Loans,
and THEN to repay outstanding Eurodollar Rate Loans and IBOR Rate Loans, with
those Eurodollar Rate Loans and IBOR Rate Loans which have earlier expiring
Interest Periods being repaid prior to those which have later expiring Interest
Periods.
(ii) After the occurrence of an Event of Default and while the
same is continuing, the Payment and Disbursement Agent shall apply all payments
in respect of any Obligations in the following order:
(A) first, to pay principal of and interest on any portion of the
Loans which the Payment and Disbursement Agent may have advanced on behalf
of any Lender other than itself for which the Payment and Disbursement
Agent has not then been reimbursed by such Lender or the Borrower;
(B) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Payment and Disbursement
Agent;
(C) third, to pay principal of and interest on Letter of Credit
Obligations (or, to the extent such Obligations are contingent, deposited
with the Payment and Disbursement Agent to provide cash collateral in
respect of such Obligations);
(D) fourth, to pay Obligations in respect of any fees, expense
reimbursements or
66
indemnities then due to the Lenders and the Co-Agents;
(E) fifth, to pay interest due in respect of Loans;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on Loans; and
(G) seventh, to the ratable payment of all other Obligations.
The order of priority set forth in this SECTION 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Payment and Disbursement Agent, the Arrangers, the other
Lenders and other Holders as among themselves. The order of priority set forth
in clauses (C) through (G) of this SECTION 4.2(b)(ii) may at any time and from
time to time be changed by the Requisite Lenders without necessity of notice to
or consent of or approval by the Borrower, any Holder which is not a Lender, or
any other Person. The order of priority set forth in clauses (A) and (B) of this
SECTION 4.2(b)(ii) may be changed only with the prior written consent of the
Payment and Disbursement Agent.
(iii) The Payment and Disbursement Agent, in its sole discretion
subject only to the terms of this SECTION 4.2(b)(iii), may pay from the proceeds
of Loans made to the Borrower hereunder, whether made following a request by the
Borrower pursuant to SECTIONS 2.1 OR 2.2 or a deemed request as provided in this
SECTION 4.2(b)(iii), all amounts payable by the Borrower hereunder, including,
without limitation, amounts payable with respect to payments of principal,
interest, Reimbursement Obligations and fees and all reimbursements for expenses
pursuant to SECTION 15.2. The Borrower hereby irrevocably authorizes the Lenders
to make Loans, which Loans shall be Base Rate Loans, in each case, upon notice
from the Payment and Disbursement Agent as described in the following sentence
for the purpose of paying principal, interest,
67
Reimbursement Obligations and fees due from the Borrower, reimbursing expenses
pursuant to SECTION 15.2 and paying any and all other amounts due and payable by
the Borrower hereunder or under the Notes, and agrees that all such Loans so
made shall be deemed to have been requested by it pursuant to SECTION 2.1 as of
the date of the aforementioned notice. The Payment and Disbursement Agent shall
request Loans on behalf of the Borrower as described in the preceding sentence
by notifying the Lenders by facsimile transmission or other similar form of
transmission (which notice the Payment and Disbursement Agent shall thereafter
promptly transmit to the Borrower), of the amount and Funding Date of the
proposed Borrowing and that such Borrowing is being requested on the Borrower's
behalf pursuant to this SECTION 4.2(b)(iii). On the proposed Funding Date, the
Lenders shall make the requested Loans in accordance with the procedures and
subject to the conditions specified in SECTION 2.1.
(iv) Subject to SECTION 4.2(b)(v), the Payment and Disbursement
Agent shall promptly distribute to each Arranger and each other Lender at its
primary address set forth on the appropriate signature page hereof or the
signature page to the Assignment and Acceptance by which it became a Lender, or
at such other address as a Lender or other Holder may request in writing, such
funds as such Person may be entitled to receive, subject to the provisions of
ARTICLE XII; PROVIDED that the Payment and Disbursement Agent shall under no
circumstances be bound to inquire into or determine the validity, scope or
priority of any interest or entitlement of any Holder and may suspend all
payments or seek appropriate relief (including, without limitation, instructions
from the Requisite Lenders or an action in the nature of interpleader) in the
event of any doubt or dispute as to any apportionment or distribution
contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata
Share of any Loan requested by the Borrower which such Lender is obligated to
fund under the terms of this Agreement (the funded portion of such Loan being
here-
68
inafter referred to as a "NON PRO RATA LOAN"), until the earlier of such
Lender's cure of such failure and the termination of the Revolving Credit
Commitments, the proceeds of all amounts thereafter repaid to the Payment and
Disbursement Agent by the Borrower and otherwise required to be applied to such
Lender's share of all other Obligations pursuant to the terms of this Agreement
shall be advanced to the Borrower by the Payment and Disbursement Agent on
behalf of such Lender to cure, in full or in part, such failure by such Lender,
but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(A) the foregoing provisions of this SECTION 4.2(b)(v) shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to SECTION 5.1(c);
(B) a Lender shall be deemed to have cured its failure to fund its
Pro Rata Share of any Loan at such time as an amount equal to such Lender's
original Pro Rata Share of the requested principal portion of such Loan is
fully funded to the Borrower, whether made by such Lender itself or by
operation of the terms of this SECTION 4.2(b)(v), and whether or not the
Non Pro Rata Loan with respect thereto has been repaid, converted or
continued;
(C) amounts advanced to the Borrower to cure, in full or in part, any
such Lender's failure to fund its Pro Rata Share of any Loan ("CURE LOANS")
shall bear interest at the Base Rate in effect from time to time, and for
all other purposes of this Agreement shall be treated as if they were Base
Rate Loans; and
(D) regardless of whether or not an Event of Default has occurred or
is continuing, and
69
notwithstanding the instructions of the Borrower as to its desired
application, all repayments of principal which, in accordance with the
other terms of this SECTION 4.2, would be applied to the outstanding Base
Rate Loans shall be applied FIRST, ratably to all Base Rate Loans
constituting Non Pro Rata Loans, SECOND, ratably to Base Rate Loans other
than those constituting Non Pro Rata Loans or Cure Loans and, THIRD,
ratably to Base Rate Loans constituting Cure Loans.
(c) PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be made by
the Borrower hereunder or under the Notes is stated to be due on a day which is
not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, as set forth in SECTION 5.2(b)(iii), the next preceding
Business Day).
IV.3. PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS.
(a) PROMISE TO REPAY. The Borrower hereby agrees to pay when due the
principal amount of each Loan which is made to it, and further agrees to pay all
unpaid interest accrued thereon, in accordance with the terms of this Agreement
and the Notes. The Borrower shall execute and deliver to each Lender on the
Closing Date, a promissory note, in form and substance acceptable to the Payment
and Disbursement Agent and such Lender, evidencing the Loans and thereafter
shall execute and deliver such other promissory notes as are necessary to
evidence the Loans owing to the Lenders after giving effect to any assignment
thereof pursuant to SECTION 15.1, all in form and substance acceptable to the
Payment and Disbursement Agent and the parties to such assignment (all such
promissory notes and all amendments thereto, replacements thereof and
substitutions therefor being collectively referred to as the "NOTES"; and "NOTE"
means any one of the Notes).
70
(b) LOAN ACCOUNT. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including the amount of principal and interest
payable and paid to such Lender from time to time hereunder and under the Notes.
Notwithstanding the foregoing, the failure by any Lender to maintain a Loan
Account shall in no way affect the Borrower's obligations hereunder, including,
without limitation, the obligation to repay the Obligations.
(c) CONTROL ACCOUNT. The Register maintained by the Payment and
Disbursement Agent pursuant to SECTION 15.1(c) shall include a control account,
and a subsidiary account for each Lender, in which accounts (taken together)
shall be recorded (i) the date and amount of each Borrowing made hereunder, the
type of Loan comprising such Borrowing and any Eurodollar Interest Period or
IBOR Interest Period applicable thereto, (ii) the effective date and amount of
each Assignment and Acceptance delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder or under the
Notes and (iv) the amount of any sum received by the Payment and Disbursement
Agent from the Borrower hereunder and each Lender's share thereof.
(d) ENTRIES BINDING. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error.
(e) NO RECOURSE TO LIMITED PARTNERS OR GENERAL PARTNERS.
Notwithstanding anything contained in this Agreement to the contrary, it is
expressly understood and agreed that nothing herein or in the Notes shall be
construed as creating any liability on any Limited Partner, any General Partner,
or any partner, officer, shareholder or director of any Limited Partner or any
General Partner, to pay any of the Obligations other than liability arising from
or in connection with (i) fraud or (ii) the
71
misappropriation or misapplication of proceeds of the Loans; but nothing
contained in this SECTION 4.3(e) shall be construed to prevent the exercise of
any remedy allowed to the Payment and Disbursement Agent, the Arrangers, the
Co-Agents or the Lenders by law or by the terms of this Agreement or the other
Loan Documents which does not relate to or result in such an obligation by any
Limited Partner or any General Partner (or any partner, officer, shareholder or
director of any Limited Partner or any General Partner) to pay money.
ARTICLE V
INTEREST AND FEES
V.1. INTEREST ON THE LOANS AND OTHER OBLIGATIONS.
(a) RATE OF INTEREST. All Loans and the outstanding principal balance
of all other Obligations shall bear interest on the unpaid principal amount
thereof from the date such Loans are made and such other Obligations are due and
payable until paid in full, except as otherwise provided in SECTION 5.1(d), as
follows:
(i) If a Base Rate Loan or such other Obligation, at a rate per
annum equal to the sum of (A) the Base Rate, as in effect from time to time
as interest accrues, PLUS (B) the then Applicable Margin for Base Rate
Loans; and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to the
sum of (A) the Eurodollar Rate determined for the applicable Eurodollar
Interest Period, PLUS (B) the then Applicable Margin for Eurodollar Rate
Loans;
(iii) If an IBOR Rate Loan, at a rate per annum equal to the sum
of (A) the IBOR Rate determined for the applicable IBOR Interest Period,
PLUS (B) the then Applicable Margin for IBOR Rate Loans;
72
(iv) If a Eurodollar Money Market Loan, at a rate per annum equal
to either (A) the sum of (1) the Eurodollar Rate determined for the
applicable Eurodollar Interest Period (determined as if the related Money
Market Borrowing were a Committed Eurodollar Rate Borrowing) PLUS (or
minus) (2) the Money Market Margin quoted by the Lender making such Money
Market Loan in accordance with SECTION 2.2. or (B) the Money Market Rate,
as applicable; and
(v) If an IBOR Money Market Loan, at a rate per annum equal to
either (A) the sum of (1) the IBOR Rate determined for the applicable IBOR
Interest Period (determined as if the related Money Market Borrowing were a
Committed IBOR Rate Borrowing) PLUS (or minus) (2) the Money Market Margin
quoted by the Lender making such Money Market Loan in accordance with
SECTION 2.2. or (B) the Money Market Rate, as applicable.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Payment and
Disbursement Agent; PROVIDED, HOWEVER, the Borrower may not select the
Eurodollar Rate or the IBOR Rate as the applicable basis for determining the
rate of interest on such a Loan if at the time of such selection an Event of
Default or a Potential Event of Default would occur or has occurred and is
continuing and FURTHER PROVIDED THAT, from and after the occurrence of an Event
of Default or a Potential Event of Default, each Eurodollar Rate Loan and IBOR
Rate Loan then outstanding may, at the Payment and Disbursement Agent's option,
convert to a Base Rate Loan. If on any day any Loan is outstanding with respect
to which notice has not been timely delivered to the Payment and Disbursement
Agent in accordance with the terms of this Agreement specifying the basis for
determining the rate of interest on that day, then for that
73
day interest on that Loan shall be determined by reference to the Base Rate.
(b) INTEREST PAYMENTS. (i) Interest accrued on each Committed Loan
shall be calculated on the last day of each calendar month and shall be payable
in arrears (A) on the first day of each calendar month, commencing on the first
such day following the making of such Committed Loan, and (B) if not theretofore
paid in full, at maturity (whether by acceleration or otherwise) of such
Committed Loan.
(ii) Interest accrued on each Money Market Loan shall be
calculated on the last day of each calendar month during the Interest Period
applicable thereto (or, if such Interest Period is for a period one month or
less, on the last day of such Interest Period) and shall be payable in arrears
(A) if such Money Market Loan has an Interest Period longer than one month (1)
on the first day of each calendar month, commencing on the first such day
following the making of such Money Market Loan, and (2) if not theretofore paid
in full, at maturity (whether by acceleration or otherwise) of such Money Market
Loan; and (B) if such Money Market Loan has an Interest Period of one month or
less, at maturity (whether by acceleration or otherwise) of such Money Market
Loan.
(iii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and shall
be payable in arrears (A) on the first day of each calendar month, commencing on
the first such day following the incurrence of such Obligation, (B) upon
repayment thereof in full or in part, and (C) if not theretofore paid in full,
at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(c) CONVERSION OR CONTINUATION. (i) The Borrower shall have the
option (A) to convert at any time all or any part of outstanding Base Rate Loans
to Eurodollar Rate Loans or IBOR Rate Loans; (B) to convert all or any part of
outstanding Eurodollar Rate Loans having Eurodollar
74
Interest Periods which expire on the same date to Base Rate Loans or IBOR Rate
Loans on such expiration date; (C) to convert all or any part of outstanding
IBOR Rate Loans having IBOR Interest Periods which expire on the same date to
Base Rate Loans or Eurodollar Rate Loans on such expiration date; (D) to
continue all or any part of outstanding Eurodollar Rate Loans having Eurodollar
Interest Periods which expire on the same date as Eurodollar Rate Loans, and the
succeeding Eurodollar Interest Period of such continued Loans shall commence on
such expiration date; (E) to continue all or any part of outstanding IBOR Rate
Loans having IBOR Interest Periods which expire on the same date as IBOR Rate
Loans, and the succeeding IBOR Interest Period of such continued Loans shall
commence on such expiration date; PROVIDED, HOWEVER, no such outstanding Loan
may be continued as, or be converted into, a Eurodollar Rate Loan or an IBOR
Rate Loan (i) if the continuation of, or the conversion into, would violate any
of the provisions of SECTION 5.2 or (ii) if an Event of Default or a Potential
Event of Default would occur or has occurred and is continuing. Any conversion
into or continuation of Eurodollar Rate Loans or IBOR Rate Loans under this
SECTION 5.1(c) shall be in a minimum amount of $1,000,000 and in integral
multiples of $100,000 in excess of that amount, except in the case of a
conversion into or a continuation of an entire Borrowing of Non Pro Rata Loans.
(ii) To convert or continue a Loan under SECTION 5.1(c)(i), the
Borrower shall deliver a Notice of Conversion/Continuation to the Payment and
Disbursement Agent no later than 11:00 a.m. (New York time) at least three (3)
Business Days in advance of the proposed conversion/continuation date. A Notice
of Conversion/Continuation shall specify (A) the proposed
conversion/continuation date (which shall be a Business Day), (B) the principal
amount of the Loan to be converted/continued, (C) whether such Loan shall be
converted and/or continued, (D) in the case of a conversion to, or continuation
of, a Eurodollar Rate Loan, the requested Eurodollar Interest Period, and (E) in
the case of a conversion to, or continuation of, an IBOR Rate Loan,
75
the requested IBOR Interest Period. In lieu of delivering a Notice of
Conversion/Continuation, the Borrower may give the Payment and Disbursement
Agent telephonic notice of any proposed conversion/continuation by the time
required under this SECTION 5.1(c)(ii), if the Borrower confirms such notice by
delivery of the Notice of Conversion/Continuation to the Payment and
Disbursement Agent by facsimile transmission promptly, but in no event later
than 3:00 p.m. (New York time) on the same day. Promptly after receipt of a
Notice of Conversion/Continuation under this SECTION 5.1(c)(ii) (or telephonic
notice in lieu thereof), the Payment and Disbursement Agent shall notify each
Lender by facsimile transmission, or other similar form of transmission, of the
proposed conversion/continuation. Any Notice of Conversion/Continuation for
conversion to, or continuation of, a Loan (or telephonic notice in lieu thereof)
given pursuant to this SECTION 5.1(c)(ii) shall be irrevocable, and the Borrower
shall be bound to convert or continue in accordance therewith. In the event no
Notice of Conversion/Continuation is delivered as and when specified in this
SECTION 5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans or IBOR
Rate Loans, upon the expiration of the Interest Period applicable thereto, such
Loans shall automatically be continued as Eurodollar Rate Loans with a
Eurodollar Interest Period of thirty (30) days; PROVIDED, HOWEVER, no such
outstanding Loan may be continued as, or be converted into, a Eurodollar Rate
Loan or an IBOR Rate Loan (i) if the continuation of, or the conversion into,
would violate any of the provisions of SECTION 5.2 or (ii) if an Event of
Default or a Potential Event of Default would occur or has occurred and is
continuing.
(d) DEFAULT INTEREST. Notwithstanding the rates of interest specified
in SECTION 5.1(a) or elsewhere in this Agreement, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and other
Obligations shall bear interest at a rate equal to the sum of (A) the Base Rate,
as in effect
76
from time to time as interest accrues, PLUS (B) four percent (4.0%) per annum.
(e) COMPUTATION OF INTEREST. Interest on all Obligations shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; PROVIDED, HOWEVER, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan.
(f) EURODOLLAR RATE INFORMATION. Upon the reasonable request of the
Borrower from time to time, the Payment and Disbursement Agent shall promptly
provide to the Borrower such information with respect to the applicable
Eurodollar Rate as may be so requested.
(g) IBOR RATE INFORMATION. Upon the reasonable request of the
Borrower from time to time, the Payment and Disbursement Agent shall promptly
provide to the Borrower such information with respect to the applicable IBOR
Rate as may be so requested.
V.2. SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS, IBOR
RATE LOANS, AND MONEY MARKET LOANS.
(a) AMOUNT OF EURODOLLAR RATE LOANS AND IBOR RATE LOANS. Each
Eurodollar Rate Loan shall be in a minimum principal amount of $1,500,000 and in
integral multiples of $100,000 in excess of that amount. Each IBOR Rate Loan
shall be in a minimum principal amount of $1,500,000 and in integral multiples
of $100,000 in excess of that amount. IBOR Rate Loans shall not, in the
aggregate outstanding at any time, exceed the lesser of (i) $150,000,000 and
(ii) the Revolving Credit Availability.
77
(b) DETERMINATION OF EURODOLLAR INTEREST PERIOD. By giving notice as
set forth in SECTION 2.1(b) (with respect to a Borrowing of Eurodollar Rate
Loans or IBOR Rate Loans), SECTION 2.2 (with respect to a Borrowing of Money
Market Loans), or SECTION 5.1(c) (with respect to a conversion into or
continuation of Eurodollar Rate Loans), the Borrower shall have the option,
subject to the other provisions of this SECTION 5.2, to select an interest
period (each, an "INTEREST PERIOD") to apply to the Loans described in such
notice, subject to the following provisions:
(i) The Borrower may only select, as to a particular Borrowing
of Eurodollar Rate Loans, an Interest Period (each, a "EURODOLLAR INTEREST
PERIOD") of one, two, three or six months in duration or, with the prior
written consent of the Payment and Disbursement Agent, a shorter or a
longer duration;
(ii) The Borrower may only select, as to a particular Borrowing
of Eurodollar Money Market Loans, a Eurodollar Interest Period of one, two,
or three months in duration;
(iii) In the case of immediately successive Eurodollar Interest
Periods applicable to a Borrowing of Eurodollar Rate Loans, each successive
Eurodollar Interest Period shall commence on the day on which the next
preceding Eurodollar Interest Period expires;
(iv) If any Eurodollar Interest Period would otherwise expire on
a day which is not a Business Day, such Eurodollar Interest Period shall be
extended to expire on the next succeeding Business Day if the next
succeeding Business Day occurs in the same calendar month, and if there
will be no succeeding Business Day in such calendar month, the Eurodollar
Interest
78
Period shall expire on the immediately preceding Business Day;
(v) The Borrower may only select, as to a particular Borrowing
of IBOR Rate Loans, an Interest Period (each, an "IBOR INTEREST PERIOD") of
fourteen (14) days in duration, provided that no IBOR Interest Period shall
exist during any IBOR Black-Out Period;
(vi) The Borrower may only select, as to a particular Borrowing
of IBOR Money Market Loans, an IBOR Interest Period of fourteen (14) days
in duration, provided that no IBOR Interest Period shall exist during any
IBOR Black-Out Period;
(vii) In the case of immediately successive IBOR Interest Periods
applicable to a Borrowing of IBOR Rate Loans, each successive IBOR Interest
Period shall commence on the day on which the next preceding IBOR Interest
Period expires;
(viii) If any IBOR Interest Period would otherwise expire on a day
which is not a Business Day, such IBOR Interest Period shall be extended to
expire on the next succeeding Business Day if the next succeeding Business
Day occurs in the same calendar month, and if there will be no succeeding
Business Day in such calendar month, the IBOR Interest Period shall expire
on the immediately preceding Business Day;
(ix) The Borrower may not select an IBOR Interest Period as to
any IBOR Rate Loan or IBOR Money Market Loan if such IBOR Interest Period
terminates during any IBOR Black-Out Period;
(x) The Borrower may not select an Interest Period as to any
Loan if such Interest Period terminates later than the Revolving Credit
Termination Date;
79
(xi) The Borrower may not select an Interest Period with respect
to any portion of principal of a Loan which extends beyond a date on which
the Borrower is required to make a scheduled payment of such portion of
principal; and
(xii) There shall be no more than twelve (12) Interest Periods in
effect at any one time with respect to Eurodollar Rate Loans or IBOR Rate
Loans.
(c) DETERMINATION OF EURODOLLAR INTEREST RATE AND IBOR RATE.
(i) As soon as practicable on the second Business Day prior to
the first day of each Eurodollar Interest Period (the "EURODOLLAR INTEREST
RATE DETERMINATION DATE"), the Payment and Disbursement Agent shall
determine (pursuant to the procedures set forth in the definition of
"Eurodollar Rate") the interest rate which shall apply to the Eurodollar
Rate Loans or Eurodollar Money Market Loans for which an interest rate is
then being determined for the applicable Eurodollar Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to the Borrower and to each Lender. The Payment and Disbursement
Agent's determination shall be presumed to be correct, absent manifest
error, and shall be binding upon the Borrower.
(ii) As soon as practicable on (A) the Business Day prior to the
first day of each IBOR Interest Period, with respect to an IBOR Rate Loan
and (B) the second Business Day prior to the first day of each IBOR
Interest Period with respect to an IBOR Money Market Loan (each, an "IBOR
INTEREST RATE DETERMINATION DATE"), the Payment and Disbursement Agent
shall determine (pursuant to the procedures set forth in the definition of
"IBOR Rate") the interest
80
rate which shall apply to the IBOR Rate Loans or IBOR Money Market Loans
for which an interest rate is then being determined for the applicable IBOR
Interest Period and shall promptly give notice thereof (in writing or by
telephone confirmed in writing) to the Borrower and to each Lender. The
Payment and Disbursement Agent's determination shall be presumed to be
correct, absent manifest error, and shall be binding upon the Borrower and
each Lender.
(d) INTEREST RATE UNASCERTAINABLE, INADEQUATE OR UNFAIR. In the event
that at least one (1) Business Day before a Eurodollar Interest Rate
Determination Date or an IBOR Interest Rate Determination Date:
(i) the Payment and Disbursement Agent is advised (A) by the
Reference Bank that deposits in Dollars (in the applicable amounts) are not
being offered by the Reference Bank in the London interbank market for such
Eurodollar Interest Period, or (B) by the IBOR Reference Banks that
deposits in Dollars (in the applicable amounts) are not being offered by
the Reference Banks in the interbank market for such IBOR Interest Period;
or
(ii) the Payment and Disbursement Agent determines that adequate
and fair means do not exist for ascertaining the applicable interest rates
by reference to which the Eurodollar Rate or the IBOR Rate (as
applicable)then being determined is to be fixed; or
(iii) the Requisite Lenders advise the Payment and Disbursement
Agent that (A) the Eurodollar Rate for Eurodollar Rate Loans comprising
such Borrowing will not adequately reflect the cost to such Requisite
Lenders of obtaining funds in Dollars in the London interbank market in the
amount substantially equal to such Lenders' Eurodollar Rate Loans in
Dollars and for a period
81
equal to such Eurodollar Interest Period, or (B) the IBOR Rate for IBOR
Rate Loans comprising such Borrowing will not adequately reflect the cost
to such Requisite Lenders of obtaining funds in Dollars in the interbank
market in the amount substantially equal to such Lenders' IBOR Rate Loans
in Dollars and for a period equal to such IBOR Interest Period; or
(iv) (A) the applicable Lender(s) advise the Payment and
Disbursement Agent that the Eurodollar Rate for Eurodollar Money Market
Loans comprising such Borrowing will not adequately reflect the cost to
such Lender(s) of obtaining funds in Dollars in the London Interbank market
in the amount substantially equal to such Lender(s)' Money Market Loans in
Dollars and for a period equal to such Eurodollar Interest Period, or (B)
the applicable Lender(s) advise the Payment and Disbursement Agent that the
IBOR Rate for IBOR Money Market Loans comprising such Borrowing will not
adequately reflect the cost to such Lender(s) of obtaining funds in Dollars
in the interbank market in the amount substantially equal to such
Lender(s)' IBOR Money Market Loans in Dollars and for a period equal to
such IBOR Interest Period;
then the Payment and Disbursement Agent shall forthwith give notice thereof to
the Borrower, whereupon (until the Payment and Disbursement Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist)
the right of the Borrower to elect to have Loans bear interest based upon the
Eurodollar Rate or the IBOR Rate, as applicable, shall be suspended and each
outstanding Eurodollar Rate Loan and Eurodollar Money Market Loan or IBOR Rate
Loan and IBOR Money Market Loan, as applicable, shall be converted into a Base
Rate Loan on the last day of the then current Interest Period therefor,
notwithstanding any prior election by the Borrower to the contrary.
82
(e) ILLEGALITY. (i) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties) that the making or continuation of any Eurodollar Rate Loan,
IBOR Rate Loan or Money Market Loan has become unlawful or impermissible by
compliance by that Lender with any law, governmental rule, regulation or order
of any Governmental Authority (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful or would result in
costs or penalties), then, and in any such event, such Lender may give notice of
that determination, in writing, to the Borrower and the Payment and Disbursement
Agent, and the Payment and Disbursement Agent shall promptly transmit the notice
to each other Lender.
(ii) When notice is given by a Lender under SECTION 5.2(e)(i),
(a) the Borrower's right to request from such Lender and such Lender's
obligation, if any, to make Eurodollar Rate Loans or IBOR Rate Loans, as
applicable, shall be immediately suspended, and such Lender shall make a Base
Rate Loan as part of any requested Borrowing of Eurodollar Rate Loans or IBOR
Rate Loans (as applicable) and (B) if the affected Eurodollar Rate Loans, IBOR
Rate Loans, Eurodollar Money Market Loans, or IBOR Money Market Loans are then
outstanding, the Borrower shall immediately, or if permitted by applicable law,
no later than the date permitted thereby, upon at least one (1) Business Day's
prior written notice to the Payment and Disbursement Agent and the affected
Lender, convert each such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under SECTION
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate Loans
and/or IBOR Rate Loans (as applicable), such Lender shall promptly give notice
of that determination, in writing, to the Borrower and the Payment and
Disbursement Agent, and the Payment and Disbursement Agent shall promptly
transmit the notice to each other Lender. The Borrower's right to request, and
such
83
Lender's obligation, if any, to make Eurodollar Rate Loans and/or IBOR Rate
Loans(as applicable) shall thereupon be restored.
(f) COMPENSATION. In addition to all amounts required to be paid by
the Borrower pursuant to SECTION 5.1 and ARTICLE XIII, the Borrower shall
compensate each Lender, upon demand, for all losses, expenses and liabilities
(including, without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Lender's Eurodollar Rate Loans, IBOR Rate Loans and/or
Money Market Loans to the Borrower but excluding any loss of Applicable Margin
on the relevant Loans) which that Lender may sustain (i) if for any reason a
Borrowing, conversion into or continuation of Eurodollar Rate Loans and/or
Eurodollar Money Market Loans or IBOR Rate Loans and/or IBOR Rate Money Market
Loans does not occur on a date specified therefor in a Notice of Borrowing or a
Notice of Conversion/Continuation given by the Borrower or in a telephonic
request by it for borrowing or conversion/ continuation or a successive
Eurodollar Interest Period or IBOR Interest Period does not commence after
notice therefor is given pursuant to SECTION 5.1(c), including, without
limitation, pursuant to SECTION 5.2(d), (ii) if for any reason any Eurodollar
Rate Loan, IBOR Rate Loan or Money Market Loan is prepaid (including, without
limitation, mandatorily pursuant to SECTION 4.1(d)) on a date which is not the
last day of the applicable Interest Period, (iii) as a consequence of a required
conversion of a Eurodollar Rate Loan, IBOR Rate Loan or Money Market Loan to a
Base Rate Loan as a result of any of the events indicated in SECTION 5.2(d), or
(iv) as a consequence of any failure by the Borrower to repay a Eurodollar Rate
Loan, IBOR Rate Loan or Money Market Loan when required by the terms of this
Agreement. The Lender making demand for such compensation shall deliver to the
Borrower concurrently with such demand a written statement in reasonable detail
as to such losses, expenses and liabilities, and this statement shall be
conclusive as to
84
the amount of compensation due to that Lender, absent manifest error.
(g) BOOKING OF EURODOLLAR RATE LOANS, IBOR RATE LOANS AND MONEY
MARKET LOANS. Any Lender may make, carry or transfer Eurodollar Rate Loans, IBOR
Rate Loans and Money Market Loans at, to, or for the account of, its Eurodollar
Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No
Lender shall be entitled, however, to receive any greater amount under SECTIONS
4.2 or 5.2(f) or ARTICLE XIII as a result of the transfer of any such Eurodollar
Rate Loan, IBOR Rate Loan or Money Market Loan to any office (other than such
Eurodollar Lending Office) or any Affiliate (other than such Eurodollar
Affiliate) than such Lender would have been entitled to receive immediately
prior thereto, unless (i) the transfer occurred at a time when circumstances
giving rise to the claim for such greater amount did not exist and (ii) such
claim would have arisen even if such transfer had not occurred.
(h) AFFILIATES NOT OBLIGATED. No Eurodollar Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
(i) ADJUSTED EURODOLLAR RATE. Any failure by any Lender to take
into account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans or Money Market Loans shall not constitute, whether by
course of dealing or otherwise, a waiver by such Lender of its right to collect
such amount for any future period.
V.3. FEES.
(a) FACILITY FEE. During the time, from time to time, that the
Borrower maintains an Investment Grade Credit Rating, the Borrower shall pay to
the Payment and Disbursement Agent, for the account of the Lenders based on
their respective Pro Rata Shares, a fee (the "FACILITY FEE"), accruing at a per
annum rate equal to the then applicable Facility Fee Percentage on the Maximum
Revolving
85
Credit Amount, such fee being payable quarterly, in arrears, commencing on the
first day of the fiscal quarter next succeeding the Closing Date and on the
first day of each fiscal quarter thereafter for so long as the Borrower
maintains an Investment Grade Credit Rating and on the Revolving Credit
Termination Date; provided, however, that in the event that the Borrower loses
its Investment Grade Credit Rating during any fiscal quarter, the Facility Fee
shall be payable only for the portion of such fiscal quarter during which
Borrower maintained an Investment Grade Credit Rating. Notwithstanding the
foregoing, in the event that any Lender fails to fund its Pro Rata Share of any
Loan requested by the Borrower which such Lender is obligated to fund under the
terms of this Agreement, (A) such Lender shall not be entitled to any portion of
the Facility Fee with respect to its Revolving Credit Commitment until such
failure has been cured in accordance with SECTION 4.2(b)(v)(B) and (B) until
such time, the Facility Fee shall accrue in favor of the Lenders which have
funded their respective Pro Rata Shares of such requested Loan, shall be
allocated among such performing Lenders ratably based upon their relative
Revolving Credit Commitments, and shall be calculated based upon the average
amount by which the aggregate Revolving Credit Commitments of such performing
Lenders exceeds the sum of (I) the outstanding principal amount of the Loans
owing to such performing Lenders, and (II) the outstanding Reimbursement
Obligations owing to such performing Lenders, and (III) the aggregate
participation interests of such performing Lenders arising pursuant to SECTION
3.1(e) with respect to undrawn and outstanding Letters of Credit.
(b) UNUSED COMMITMENT FEE. During the time, from time to time, that
the Borrower fails to maintain an Investment Grade Credit Rating, the Borrower
shall pay to the Payment and Disbursement Agent, for the account of the Lenders
based on their respective Pro Rata Shares, a fee (the "UNUSED COMMITMENT FEE"),
accruing at a per annum rate equal to the then applicable Unused Commitment Fee
Percentage on the Unused Facility, such fee being payable quarterly, in arrears,
commencing on the first day of the
86
fiscal quarter next succeeding the date that the Borrower fails to maintain an
Investment Grade Credit Rating and on the first day of each fiscal quarter
thereafter (and on the Revolving Credit Termination Date, until the Borrower
regains an Investment Grade Credit Rating; provided, however, that in the event
that the Borrower regains an Investment Grade Credit Rating during any fiscal
quarter, the Unused Commitment Fee shall be payable only for the portion of such
fiscal quarter during which Borrower failed to maintain an Investment Grade
Credit Rating. Notwithstanding the foregoing, in the event that any Lender fails
to fund its Pro Rata Share of any Loan requested by the Borrower which such
Lender is obligated to fund under the terms of this Agreement, (A) such Lender
shall not be entitled to any portion of the Unused Commitment Fee with respect
to its Revolving Credit Commitment until such failure has been cured in
accordance with SECTION 4.2(b)(v)(B) and (B) until such time, the Unused
Commitment Fee shall accrue in favor of the Lenders which have funded their
respective Pro Rata Shares of such requested Loan, shall be allocated among such
performing Lenders ratably based upon their relative Revolving Credit
Commitments, and shall be calculated based upon the average amount by which the
aggregate Revolving Credit Commitments of such performing Lenders exceeds the
sum of (I) the outstanding principal amount of the Loans owing to such
performing Lenders, and (II) the outstanding Reimbursement Obligations owing to
such performing Lenders, and (III) the aggregate participation interests of such
performing Lenders arising pursuant to SECTION 3.1(e) with respect to undrawn
and outstanding Letters of Credit.
(c) CALCULATION AND PAYMENT OF FEES. All fees shall be calculated on
the basis of the actual number of days elapsed in a 360-day year. All fees shall
be payable in addition to, and not in lieu of, interest, compensation, expense
reimbursements, indemnification and other Obligations. Fees shall be payable to
the Payment and Disbursement Agent at its office in New York, New York in
immediately available funds. All fees shall be fully earned and nonrefundable
when paid. All fees due to any Arranger or
87
any other Lender, including, without limitation, those referred to in this
SECTION 5.3, shall bear interest, if not paid when due, at the interest rate
specified in SECTION 5.1(d) and shall constitute Obligations.
ARTICLE VI
CONDITIONS TO LOANS AND LETTERS OF CREDIT
VI.1. CONDITIONS PRECEDENT TO THE INITIAL LOANS AND LETTERS OF
CREDIT. The obligation of each Lender on the Initial Funding Date to make any
Loan requested to be made by it, and to issue Letters of Credit, shall be
subject to the satisfaction of all of the following conditions precedent:
(a) DOCUMENTS. The Payment and Disbursement Agent shall have received
on or before the Initial Funding Date all of the following:
(i) this Agreement, the Notes, and, to the extent not otherwise
specifically referenced in this SECTION 6.1(a), all other Loan Documents
and agreements, documents and instruments described in the List of Closing
Documents attached hereto as EXHIBIT E and made a part hereof, each duly
executed and in recordable form, where appropriate, and in form and
substance satisfactory to the Payment and Disbursement Agent; without
limiting the foregoing, the Borrower hereby directs its legal counsel to
prepare and deliver to the Agents, the Lenders, and Skadden, Arps, Slate,
Meagher & Flom LLP the legal opinions referred to in such List of Closing
Documents; and
(ii) such additional documentation as the Payment and
Disbursement Agent may reasonably request.
(b) NO LEGAL IMPEDIMENTS. No law, regulation, order, judgment or
decree of any Governmental Authority
88
shall, and the Payment and Disbursement Agent shall not have received any notice
that litigation is pending or threatened which is likely to (i) enjoin, prohibit
or restrain the making of the Loans and/or the issuance of Letters of Credit on
the Initial Funding Date or (ii) impose or result in the imposition of a
Material Adverse Effect.
(c) NO CHANGE IN CONDITION. No change in the business, assets,
management, operations, financial condition or prospects of the Borrower or any
of its Properties shall have occurred since December 31, 2001, which change, in
the judgment of the Payment and Disbursement Agent, will have or is reasonably
likely to have a Material Adverse Effect.
(d) INTERIM LIABILITIES AND EQUITY. Except as disclosed to the
Arrangers and the Lenders, since December 31, 2001, neither the Borrower nor the
Company shall have (i) entered into any material (as determined in good faith by
the Payment and Disbursement Agent) commitment or transaction, including,
without limitation, transactions for borrowings and capital expenditures, which
are not in the ordinary course of the Borrower's business, (ii) declared or paid
any dividends or other distributions other than in the ordinary course of
business, (iii) established compensation or employee benefit plans, or (iv)
redeemed or issued any equity Securities.
(e) NO LOSS OF MATERIAL AGREEMENTS AND LICENSES. Since December 31,
2001, no agreement or license relating to the business, operations or employee
relations of the Borrower or any of its Properties shall have been terminated,
modified, revoked, breached or declared to be in default, the termination,
modification, revocation, breach or default under which, in the reasonable
judgment of the Payment and Disbursement Agent, would result in a Material
Adverse Effect.
(f) NO MARKET CHANGES. Since December 31, 2001, no material adverse
change shall have occurred in the
89
conditions in the capital markets or the market for loan syndications generally.
(g) NO DEFAULT. No Event of Default or Potential Event of Default
shall have occurred and be continuing or would result from the making of the
Loans or the issuance of any Letter of Credit.
(h) REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties contained in SECTION 7.1 and in any of the other Loan Documents shall
be true and correct in all material respects on and as of the Initial Funding
Date.
(i) FEES AND EXPENSES PAID. There shall have been paid to the Payment
and Disbursement Agent, for the accounts of the Agents and the other Lenders, as
applicable, all fees due and payable on or before the Initial Funding Date and
all expenses due and payable on or before the Initial Funding Date, including,
without limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
(j) EXISTING CREDIT FACILITY. The Third Amended and Restated Credit
Agreement, dated as of August 25, 1999, among the Borrower, and the lenders
named therein, shall have been terminated and all amounts outstanding thereunder
shall have been paid in full, and any letters of credit issued thereunder shall
have been returned.
VI.2. CONDITIONS PRECEDENT TO ALL SUBSEQUENT LOANS AND LETTERS OF
CREDIT. The obligation of each Lender to make any Loan requested to be made by
it on any date after the Initial Funding Date and the agreement of each Lender
to issue any Letter of Credit or participate therein on any date after the
Initial Funding Date is subject to the following conditions precedent as of each
such date:
(a) REPRESENTATIONS AND WARRANTIES. As of such date, both before and
after giving effect to the Loans to be made or the Letter of Credit to be issued
on such date,
90
all of the representations and warranties of the Borrower contained in SECTION
7.1 and in any other Loan Document (other than representations and warranties
which expressly speak as of a different date) shall be true and correct in all
material respects.
(b) NO DEFAULTS. No Event of Default or Potential Event of Default
shall have occurred and be continuing or would result from the making of the
requested Loan or issuance of the requested Letter of Credit.
(c) NO LEGAL IMPEDIMENTS. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Payment and Disbursement
Agent shall not have received from such Lender notice that, in the judgment of
such Lender, litigation is pending or threatened which is likely to, enjoin,
prohibit or restrain, or impose or result in the imposition of any material
adverse condition upon, such Lender's making of the requested Loan or
participation in or issuance of the requested Letter of Credit.
(d) NO MATERIAL ADVERSE EFFECT. The Borrower has not received written
notice from the Requisite Lenders that an event has occurred since the date of
this Agreement which has had and continues to have, or is reasonably likely to
have, a Material Adverse Effect.
Each submission by the Borrower to the Payment and Disbursement Agent of a
Notice of Borrowing with respect to a Loan or a Notice of
Conversion/Continuation with respect to any Loan, each acceptance by the
Borrower of the proceeds of each Loan made, converted or continued hereunder,
each submission by the Borrower to a Lender of a request for issuance of a
Letter of Credit and the issuance of such Letter of Credit, shall constitute a
representation and warranty by the Borrower as of the Funding Date in respect of
such Loan, the date of conversion or continuation and the date of issuance of
such Letter of Credit, that all the conditions contained in this SECTION
91
6.2 have been satisfied or waived in accordance with SECTION 15.7.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
VII.1. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. In order to
induce the Lenders to enter into this Agreement and to make the Loans and the
other financial accommodations to the Borrower and to issue the Letters of
Credit described herein, the Borrower hereby represents and warrants to each
Lender that the following statements are true, correct and complete:
(a) ORGANIZATION; POWERS. (i) The Borrower (A) is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware, (B) is duly qualified to do business and is in good
standing under the laws of each jurisdiction in which failure to be so qualified
and in good standing will have or is reasonably likely to have a Material
Adverse Effect, (C) has filed and maintained effective (unless exempt from the
requirements for filing) a current Business Activity Report with the appropriate
Governmental Authority in each state in which failure to do so would have a
Material Adverse Effect, (D) has all requisite power and authority to own,
operate and encumber its Property and to conduct its business as presently
conducted and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement and (E) is a
partnership for federal income tax purposes.
(ii) The Company (A) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, (B) is
duly authorized and qualified to do business and is in good standing under the
laws of each jurisdiction in which failure to be so qualified and in good
standing will have or is reasonably likely to have a Material Adverse Effect,
and (C) has all requisite corporate power and authority to own, operate and
encumber
92
its Property and to conduct its business as presently conducted.
(iii) True, correct and complete copies of the Organizational
Documents identified on SCHEDULE 7.1-A have been delivered to the Payment and
Disbursement Agent, each of which is in full force and effect, has not been
modified or amended except to the extent set forth indicated therein and, to the
best of the Borrower's knowledge, there are no defaults under such
Organizational Documents and no events which, with the passage of time or giving
of notice or both, would constitute a default under such Organizational
Documents.
(iv) Neither the Borrower, the Company nor any of their
Affiliates are "foreign persons" within the meaning of Section 1445 of the
Internal Revenue Code.
(b) AUTHORITY. (i) Each General Partner has the requisite power and
authority to execute, deliver and perform this Agreement on behalf of the
Borrower and each of the other Loan Documents which are required to be executed
on behalf of the Borrower as required by this Agreement. Each General Partner is
the Person who has executed this Agreement and such other Loan Documents on
behalf of the Borrower and are the sole general partners of the Borrower.
(ii) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Borrower's partnership powers,
have been duly authorized by all necessary partnership action (and, in the case
of the General Partners acting on behalf of the Borrower in connection
therewith, all necessary corporate action of such General Partner) and such
authorization has not been rescinded. No other partnership or corporate action
or proceedings on the part of the Borrower or any General Partner is necessary
to consummate such transactions.
93
(iii) Each of the Loan Documents to which the Borrower is a party
has been duly executed and delivered on behalf of the Borrower and constitutes
the Borrower's legal, valid and binding obligation, enforceable against the
Borrower in accordance with its terms, is in full force and effect and all the
terms, provisions, agreements and conditions set forth therein and required to
be performed or complied with by the Company, the Borrower and the Borrower's
Subsidiaries on or before the Initial Funding Date have been performed or
complied with, and no Potential Event of Default, Event of Default or breach of
any covenant by any of the Company, the Borrower or any Subsidiary of the
Borrower exists thereunder.
(c) SUBSIDIARIES; OWNERSHIP OF CAPITAL STOCK AND PARTNERSHIP
INTERESTS. (i) SCHEDULE 7.1-C (A) contains a diagram indicating the corporate
structure of the Company, the Borrower, and any other Person in which the
Company or the Borrower holds a direct or indirect partnership, joint venture or
other equity interest indicating the nature of such interest with respect to
each Person included in such diagram; and (B) accurately sets forth (1) the
correct legal name of such Person, the jurisdiction of its incorporation or
organization and the jurisdictions in which it is qualified to transact business
as a foreign corporation, or otherwise, and (2) the authorized, issued and
outstanding shares or interests of each class of Securities of the Company, the
Borrower and the Subsidiaries of the Borrower and the owners of such shares or
interests. None of such issued and outstanding Securities is subject to any
vesting, redemption, or repurchase agreement, and there are no warrants or
options (other than Permitted Securities Options) outstanding with respect to
such Securities, except as noted on SCHEDULE 7.1-C. The outstanding Capital
Stock of the Company is duly authorized, validly issued, fully paid and
nonassessable and the outstanding Securities of the Borrower and its
Subsidiaries are duly authorized and validly issued. Attached hereto as part of
SCHEDULE 7.1-C is a true, accurate and complete copy of the Borrower
94
Partnership Agreement as in effect on the Closing Date and such Partnership
Agreement has not been amended, supplemented, replaced, restated or otherwise
modified in any respect since the Closing Date.
(ii) Except where failure may not have a Material Adverse Effect,
each Subsidiary: (A) is a corporation or partnership, as indicated on SCHEDULE
7.1-C, duly organized, validly existing and, if applicable, in good standing
under the laws of the jurisdiction of its organization, (B) is duly qualified to
do business and, if applicable, is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing would
limit its ability to use the courts of such jurisdiction to enforce Contractual
Obligations to which it is a party, and (C) has all requisite power and
authority to own, operate and encumber its Property and to conduct its business
as presently conducted and as proposed to be conducted hereafter.
(d) NO CONFLICT. The execution, delivery and performance of each of
the Loan Documents to which the Borrower is a party do not and will not (i)
conflict with the Organizational Documents of the Borrower or any Subsidiary of
the Borrower, (ii) constitute a tortious interference with any Contractual
Obligation of any Person or conflict with, result in a breach of or constitute
(with or without notice or lapse of time or both) a default under any
Requirement of Law or Contractual Obligation of the Borrower, the General
Partners, any Limited Partner, any Subsidiary of the Borrower, or any general or
limited partner of any Subsidiary of the Borrower, or require termination of any
such Contractual Obligation which may subject the Payment and Disbursement Agent
or any of the other Lenders to any liability, (iii) result in or require the
creation or imposition of any Lien whatsoever upon any of the Property or assets
of the Borrower, any General Partner, any Limited Partner, any Subsidiary of the
Borrower, or any general partner or limited partner of any Subsidiary of the
Borrower, or (iv) require any approval of shareholders of the Company or any
general partner (or
95
equity holder of any general partner) of any Subsidiary of the Borrower.
(e) GOVERNMENTAL CONSENTS. The execution, delivery and performance of
each of the Loan Documents to which the Borrower is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, except filings, consents or
notices which have been made, obtained or given.
(f) GOVERNMENTAL REGULATION. Neither the Borrower nor any General
Partner is subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, or the Investment
Company Act of 1940, or any other federal or state statute or regulation which
limits its ability to incur indebtedness or its ability to consummate the
transactions contemplated by this Agreement.
(g) FINANCIAL POSITION. Complete and accurate copies of the following
financial statements and materials have been delivered to the Payment and
Disbursement Agent: (i) annual audited financial statements of the Borrower and
its Subsidiaries for the fiscal year ended December 31, 2001, and (ii) quarterly
financial statements for the Borrower and its Subsidiaries for the fiscal
quarter ending December 31, 2001. All financial statements included in such
materials were prepared in all material respects in conformity with GAAP, except
as otherwise noted therein, and fairly present in all material respects the
respective consolidated financial positions, and the consolidated results of
operations and cash flows for each of the periods covered thereby of the
Borrower and its Subsidiaries as at the respective dates thereof. Neither the
Borrower nor any of its Subsidiaries has any Contingent Obligation, contingent
liability or liability for any taxes, long-term leases or commitments, not
reflected in its audited financial statements delivered to the Payment and
Disbursement Agent on or prior to the Closing Date or otherwise disclosed to the
Payment and Disbursement Agent
96
and the Lenders in writing, which will have or is reasonably likely to have a
Material Adverse Effect.
(h) INDEBTEDNESS. SCHEDULE 7.1-H sets forth, as of December 31, 2001,
all Indebtedness for borrowed money of each of the Borrower, the General
Partners and their respective Subsidiaries and, except as set forth on SCHEDULE
7.1-H, there are no defaults in the payment of principal or interest on any such
Indebtedness and no payments thereunder have been deferred or extended beyond
their stated maturity and there has been no material change in the type or
amount of such Indebtedness (except for the repayment of certain Indebtedness)
since December 31, 2001.
(i) LITIGATION; ADVERSE EFFECTS. Except as set forth in SCHEDULE
7.1-I, as of the Closing Date, there is no action, suit, proceeding, Claim,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Company, the Borrower, or any of their respective Subsidiaries, or any Property
of any of them (i) challenging the validity or the enforceability of any of the
Loan Documents, (ii) which will or is reasonably likely to result in any
Material Adverse Effect, or (iii) under the Racketeering Influenced and Corrupt
Organizations Act or any similar federal or state statute where such Person is a
defendant in a criminal indictment that provides for the forfeiture of assets to
any Governmental Authority as a potential criminal penalty. There is no material
loss contingency within the meaning of GAAP which has not been reflected in the
consolidated financial statements of the Company and the Borrower. None of the
Company, the Borrower or any Subsidiary of the Borrower is (A) in violation of
any applicable Requirements of Law which violation will have or is reasonably
likely to have a Material Adverse Effect, or (B) subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority
which will have or is reasonably likely to have a Material Adverse Effect.
97
(j) NO MATERIAL ADVERSE EFFECT. Since December 31, 2001, there has
occurred no event which has had or is reasonably likely to have a Material
Adverse Effect.
(k) TAX EXAMINATIONS. The IRS has examined (or is foreclosed from
examining by applicable statutes) the federal income tax returns of any of the
Company's, the Borrower's or its Subsidiaries' predecessors in interest with
respect to the Projects for all tax periods prior to and including the taxable
year ending December 31, 1997 and the appropriate state Governmental Authority
in each state in which the Company's, the Borrower's or its Subsidiaries'
predecessors in interest with respect to the Projects were required to file
state income tax returns has examined (or is foreclosed from examining by
applicable statutes) the state income tax returns of any of such Persons with
respect to the Projects for all tax periods prior to and including the taxable
year ending December 31, 1997. All deficiencies which have been asserted against
such Persons as a result of any federal, state, local or foreign tax examination
for each taxable year in respect of which an examination has been conducted have
been fully paid or finally settled or are being contested in good faith, and no
issue has been raised in any such examination which, by application of similar
principles, reasonably can be expected to result in assertion of a material
deficiency for any other year not so examined which has not been reserved for in
the financial statements of such Persons to the extent, if any, required by
GAAP. No such Person has taken any reporting positions for which it does not
have a reasonable basis nor anticipates any further material tax liability with
respect to the years which have not been closed pursuant to applicable law.
(l) PAYMENT OF TAXES. All tax returns, reports and similar statements
or filings of each of the Persons described in SECTION 7.1(k), the Company, the
Borrower and its Subsidiaries required to be filed have been timely filed, and,
except for Customary Permitted Liens, all taxes, assessments, fees and other
charges of Governmental
98
Authorities thereupon and upon or relating to their respective Properties,
assets, receipts, sales, use, payroll, employment, income, licenses and
franchises which are shown in such returns or reports to be due and payable have
been paid, except to the extent (i) such taxes, assessments, fees and other
charges of Governmental Authorities are being contested in good faith by an
appropriate proceeding diligently pursued as permitted by the terms of SECTION
9.4 and (ii) such taxes, assessments, fees and other charges of Governmental
Authorities pertain to Property of the Borrower or any of its Subsidiaries and
the non-payment of the amounts thereof would not, individually or in the
aggregate, result in a Material Adverse Effect. All other taxes (including,
without limitation, real estate taxes), assessments, fees and other governmental
charges upon or relating to the respective Properties of the Borrower and its
Subsidiaries which are due and payable have been paid, except for Customary
Permitted Liens and except to the extent described in clauses (i) and (ii)
hereinabove. The Borrower has no knowledge of any proposed tax assessment
against the Borrower, any of its Subsidiaries, or any of the Projects that will
have or is reasonably likely to have a Material Adverse Effect.
(m) PERFORMANCE. Neither the Company, the Borrower nor any of their
Affiliates has received any notice, citation or allegation, nor has actual
knowledge, that (i) it is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
Contractual Obligation applicable to it, (ii) any of its Properties is in
violation of any Requirements of Law or (iii) any condition exists which, with
the giving of notice or the lapse of time or both, would constitute a default
with respect to any such Contractual Obligation, in each case, except where such
default or defaults, if any, will not have or is not reasonably likely to have a
Material Adverse Effect.
(n) DISCLOSURE. The representations and warranties of the Borrower
contained in the Loan Documents, and
99
all certificates and other documents delivered to the Payment and Disbursement
Agent pursuant to the terms thereof, do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading. The Borrower has not intentionally
withheld any fact from the Payment and Disbursement Agent, the Arrangers, the
Co-Agents or the other Lenders in regard to any matter which will have or is
reasonably likely to have a Material Adverse Effect. Notwithstanding the
foregoing, the Lenders acknowledge that the Borrower shall not have liability
under this clause (n) with respect to its projections of future events.
(o) REQUIREMENTS OF LAW. The Borrower and each of its Subsidiaries is
in compliance with all Requirements of Law applicable to it and its respective
businesses and Properties, in each case where the failure to so comply
individually or in the aggregate will have or is reasonably likely to have a
Material Adverse Effect.
(p) ENVIRONMENTAL MATTERS.
(i) Except as disclosed on SCHEDULE 7.1-P:
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply with all applicable
Environmental, Health or Safety Requirements of Law;
(B) the Borrower and each of its Subsidiaries have obtained
all material environmental, health and safety Permits necessary for their
respective operations, and all such Permits are in good standing and the holder
of each such Permit is currently in compliance with all terms and conditions of
such Permits;
(C) none of the Borrower or any of its Subsidiaries or any
of their respective present or past Property or operations are subject to or are
the subject of
100
any investigation, judicial or administrative proceeding, order, judgment,
decree, dispute, negotiations, agreement or settlement respecting (I) any
Environmental, Health or Safety Requirements of Law, (II) any Remedial Action,
(III) any Claims or Liabilities and Costs arising from the Release or threatened
Release of a Contaminant into the environment, or (IV) any violation of or
liability under any Environmental, Health or Safety Requirement of Law;
(D) none of Borrower or any of its Subsidiaries has filed
any notice under any applicable Requirement of Law (I) reporting a Release of a
Contaminant; (II) indicating past or present treatment, storage or disposal of a
hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any state
equivalent; or (III) reporting a violation of any applicable Environmental,
Health or Safety Requirement of Law;
(E) none of the Borrower's or any of its Subsidiaries'
present or past Property is listed or proposed for listing on the National
Priorities List ("NPL") pursuant to CERCLA or on the Comprehensive Environmental
Response Compensation Liability Information System List ("CERCLIS") or any
similar state list of sites requiring Remedial Action;
(F) neither the Borrower nor any of its Subsidiaries has
sent or directly arranged for the transport of any waste to any site listed or
proposed for listing on the NPL, CERCLIS or any similar state list;
(G) to the best of Borrower's knowledge, there is not now,
and to Borrower's knowledge there has never been on or in any Project (I) any
treatment, recycling, storage or disposal of any hazardous waste, as that term
is defined under 40 C.F.R. Part 261 or any state equivalent; (II) any landfill,
waste pile, or surface impoundment; (III) any underground storage tanks the
presence or use of which is or, to Borrower's knowledge, has been in violation
of applicable Environmental, Health or Safety Requirements of Law, (IV) any
asbestos-containing material
101
which such Person has any reason to believe could subject such Person or its
Property to Liabilities and Costs arising out of or relating to environmental,
health or safety matters that would result in a Material Adverse Effect; or (V)
any polychlorinated biphenyls (PCB) used in hydraulic oils, electrical
transformers or other Equipment which such Person has any reason to believe
could subject such Person or its Property to Liabilities and Costs arising out
of or relating to environmental, health or safety matters that would result in a
Material Adverse Effect;
(H) neither the Borrower nor any of its Subsidiaries has
received any notice or Claim to the effect that any of such Persons is or may be
liable to any Person as a result of the Release or threatened Release of a
Contaminant into the environment;
(I) neither the Borrower nor any of its Subsidiaries has
any contingent liability in connection with any Release or threatened Release of
any Contaminants into the environment;
(J) no Environmental Lien has attached to any Property of
the Borrower or any Subsidiary of the Borrower;
(K) no Property of the Borrower or any Subsidiary of the
Borrower is subject to any Environmental Property Transfer Act, or to the extent
such acts are applicable to any such Property, the Borrower and/or such
Subsidiary whose Property is subject thereto has fully complied with the
requirements of such acts; and
(L) neither the Borrower nor any of its Subsidiaries owns
or operates, or, to Borrower's knowledge has ever owned or operated, any
underground storage tank, the presence or use of which is or has been in
violation of applicable Environmental, Health or Safety Requirements of Law, at
any Project.
102
(ii) the Borrower and each of its Subsidiaries are conducting and
will continue to conduct their respective businesses and operations and maintain
each Project in compliance with Environmental, Health or Safety Requirements of
Law and no such Person has been, and no such Person has any reason to believe
that it or any Project will be, subject to Liabilities and Costs arising out of
or relating to environmental, health or safety matters that would result in a
Material Adverse Effect.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate maintains or
contributes to any Plan or Multiemployer Plan other than those listed on
SCHEDULE 7.1-Q hereto. Each such Plan which is intended to be qualified under
Section 401(a) of the Internal Revenue Code as currently in effect has been
determined by the IRS to be so qualified, and each trust related to any such
Plan has been determined to be exempt from federal income tax under Section
501(a) of the Internal Revenue Code as currently in effect. Except as disclosed
in SCHEDULE 7.1-Q, neither the Borrower nor any of its ERISA Affilates maintains
or contributes to any employee welfare benefit plan within the meaning of
Section 3(1) of ERISA which provides benefits to employees after termination of
employment other than as required by Section 601 of ERISA. The Borrower and each
of its ERISA Affiliates is in compliance in all material respects with the
responsibilities, obligations and duties imposed on it by ERISA, the Internal
Revenue Code and regulations promulgated thereunder with respect to all Plans.
No Plan has incurred any accumulated funding deficiency (as defined in Sections
302(a)(2) of ERISA and 412(a) of the Internal Revenue Code) whether or not
waived. Neither the Borrower nor any ERISA Affiliate nor any fiduciary of any
Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt prohibited
transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue
Code or (ii) has taken or failed to take any action which would constitute or
result in a Termination Event. Neither the Borrower nor any ERISA Affiliate is
subject to any liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of
ERISA.
103
Neither the Borrower nor any ERISA Affiliate has incurred any liability to the
PBGC which remains outstanding other than the payment of premiums, and there are
no premium payments which have become due which are unpaid. Schedule B to the
most recent annual report filed with the IRS with respect to each Plan and
furnished to the Payment and Disbursement Agent is complete and accurate in all
material respects. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the Plan
relating to such Schedule B. Neither the Borrower nor any ERISA Affiliate has
(i) failed to make a required contribution or payment to a Multiemployer Plan or
(ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA
from a Multiemployer Plan. Neither the Borrower nor any ERISA Affiliate has
failed to make a required installment or any other required payment under
Section 412 of the Internal Revenue Code on or before the due date for such
installment or other payment. Neither the Borrower nor any ERISA Affiliate is
required to provide security to a Plan under Section 401(a)(29) of the Internal
Revenue Code due to a Plan amendment that results in an increase in current
liability for the plan year. Except as disclosed on SCHEDULE 7.1-Q, neither the
Borrower nor any of its ERISA Affiliates has, by reason of the transactions
contemplated hereby, any obligation to make any payment to any employee pursuant
to any Plan or existing contract or arrangement.
(r) SECURITIES ACTIVITIES. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock.
(s) SOLVENCY. After giving effect to the Loans to be made on the
Initial Funding Date or such other date as Loans requested hereunder are made,
and the disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, the Borrower is Solvent.
(t) INSURANCE. SCHEDULE 7.1-T accurately sets forth as of the Closing
Date all insurance policies and programs currently in effect with respect to the
respective
104
Property and assets and business of the Borrower and its Subsidiaries,
specifying for each such policy and program, (i) the amount thereof, (ii) the
risks insured against thereby, (iii) the name of the insurer and each insured
party thereunder, (iv) the policy or other identification number thereof, and
(v) the expiration date thereof. The Borrower has delivered to the Payment and
Disbursement Agent copies of all insurance policies set forth on SCHEDULE 7.1-T.
Such insurance policies and programs are currently in full force and effect, in
compliance with the requirements of SECTION 9.5 hereof and, together with
payment by the insured of scheduled deductible payments, are in amounts
sufficient to cover the replacement value of the respective Property and assets
of the Borrower and/or its Subsidiaries.
(u) REIT STATUS. The Company qualifies as a REIT under the Internal
Revenue Code.
(v) OWNERSHIP OF PROJECTS, MINORITY HOLDINGS AND PROPERTY. Ownership
of substantially all wholly-owned Projects, Minority Holdings and other Property
of the Consolidated Businesses is held by the Borrower and its Subsidiaries and
is not held directly by any General Partner.
ARTICLE VIII
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Revolving Credit
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to SECTION 15.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent thereto:
VIII.1. BORROWER ACCOUNTING PRACTICES. The Borrower shall maintain,
and cause each of its Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
105
permit preparation of consolidated and consolidating financial statements in
conformity with GAAP, and each of the financial statements and reports described
below shall be prepared from such system and records and in form satisfactory to
the Payment and Disbursement Agent.
VIII.2. FINANCIAL REPORTS. The Borrower shall deliver or cause to be
delivered to the Payment and Disbursement Agent and the Lenders:
(a) QUARTERLY REPORTS.
(i) BORROWER QUARTERLY FINANCIAL REPORTS. As soon as
practicable, and in any event within fifty (50) days after the end of each
fiscal quarter in each Fiscal Year (other than the last fiscal quarter in each
Fiscal Year), a consolidated balance sheet of the Borrower and the related
consolidated statements of income and cash flow of the Borrower (to be prepared
and delivered quarterly in conjunction with the other reports delivered
hereunder at the end of each fiscal quarter) for each such fiscal quarter, in
each case in form and substance satisfactory to the Payment and Disbursement
Agent and, in comparative form, the corresponding figures for the corresponding
periods of the previous Fiscal Year, certified by an Authorized Financial
Officer of the Borrower as fairly presenting the consolidated and consolidating
financial position of the Borrower as of the dates indicated and the results of
their operations and cash flow for the months indicated in accordance with GAAP,
subject to normal quarterly adjustments.
(ii) COMPANY QUARTERLY FINANCIAL REPORTS. As soon as practicable,
and in any event within fifty (50) days after the end of each fiscal quarter in
each Fiscal Year (other than the last fiscal quarter in each Fiscal Year), the
Financial Statements of the Company, the Borrower and its Subsidiaries on Form
10-Q as at the end of such period and a report setting forth in comparative form
the corresponding figures for the corresponding period of the previous Fiscal
Year, certified by an Authorized
106
Financial Officer of the Company as fairly presenting the consolidated and
consolidating financial position of the Company, the Borrower and its
Subsidiaries as at the date indicated and the results of their operations and
cash flow for the period indicated in accordance with GAAP, subject to normal
adjustments.
(iii) QUARTERLY COMPLIANCE CERTIFICATES. Together with each
delivery of any quarterly report pursuant to paragraph (a)(i) of this SECTION
8.2, the Borrower shall deliver Officer's Certificates of the Borrower and the
Company (the "QUARTERLY COMPLIANCE CERTIFICATES"), signed by the Borrower's and
the Company's respective Authorized Financial Officers representing and
certifying (1) that the Authorized Financial Officer signatory thereto has
reviewed the terms of the Loan Documents, and has made, or caused to be made
under his/her supervision, a review in reasonable detail of the transactions and
consolidated and consolidating financial condition of the Company, the Borrower
and its Subsidiaries, during the fiscal quarter covered by such reports, that
such review has not disclosed the existence during or at the end of such fiscal
quarter, and that such officer does not have knowledge of the existence as at
the date of such Officer's Certificate, of any condition or event which
constitutes an Event of Default or Potential Event of Default or mandatory
prepayment event, or, if any such condition or event existed or exists, and
specifying the nature and period of existence thereof and what action the
General Partners and/or the Borrower or any of its Subsidiaries has taken, is
taking and proposes to take with respect thereto, (2) the calculations (with
such specificity as the Payment and Disbursement Agent may reasonably request)
for the period then ended which demonstrate compliance with the covenants and
financial ratios set forth in ARTICLES IX AND X and, when applicable, that no
Event of Default described in SECTION 11.1 exists, (3) a schedule of the
Borrower's outstanding Indebtedness, including the amount, maturity, interest
rate and amortization requirements, as well as such other information regarding
such Indebtedness as may be reasonably requested by the Payment and Disbursement
Agent,
107
(4) a schedule of Combined EBITDA, (5) a schedule of Unencumbered Combined
EBITDA, (6) calculations, in the form of EXHIBIT G attached hereto, evidencing
compliance with each of the financial covenants set forth in ARTICLE X hereof,
and (7) a schedule of the estimated taxable income of the Borrower for such
fiscal quarter.
(iv) HEDGING STATUS REPORT. The Borrower shall deliver, within
fifty (50) days after the end of each fiscal quarter of each Fiscal Year, a
written report which sets forth the details of the "Interest Rate Hedges"
required under SECTION 9.9.
(b) ANNUAL REPORTS.
(i) BORROWER FINANCIAL STATEMENTS. As soon as practicable, and
in any event within ninety-five (95) days after the end of each Fiscal Year, (i)
the Financial Statements of the Borrower and its Subsidiaries as at the end of
such Fiscal Year, (ii) a report with respect thereto of Arthur Andersen & Co. or
other independent certified public accountants acceptable to the Payment and
Disbursement Agent, which report shall be unqualified and shall state that such
financial statements fairly present the consolidated and consolidating financial
position of each of the Borrower and its Subsidiaries as at the dates indicated
and the results of their operations and cash flow for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except for
changes with which Arthur Andersen & Co. or any such other independent certified
public accountants, if applicable, shall concur and which shall have been
disclosed in the notes to the financial statements), and (iii) in the event that
the report referred to in clause (ii) above is qualified, a copy of the
management letter or any similar report delivered to the General Partners or to
any officer or employee thereof by such independent certified public accountants
in connection with such financial statements (which letter or report shall be
subject to the confidentiality limitations set forth herein). The Payment and
Disbursement Agent and each Lender (through the Payment and Disbursement Agent)
108
may, with the consent of the Borrower (which consent shall not be unreasonably
withheld), communicate directly with such accountants, with any such
communication to occur together with a representative of the Borrower, at the
expense of the Payment and Disbursement Agent (or the Lender requesting such
communication), upon reasonable notice and at reasonable times during normal
business hours.
(ii) COMPANY FINANCIAL STATEMENTS. As soon as practicable, and in
any event within ninety-five (95) days after the end of each Fiscal Year, (i)
the Financial Statements of the Company and its Subsidiaries on Form 10-K as at
the end of such Fiscal Year and a report setting forth in comparative form the
corresponding figures from the consolidated Financial Statements of the Company
and its Subsidiaries for the prior Fiscal Year; (ii) a report with respect
thereto of Arthur Andersen & Co. or other independent certified public
accountants acceptable to the Payment and Disbursement Agent, which report shall
be unqualified and shall state that such financial statements fairly present the
consolidated and consolidating financial position of each of the Company and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flow for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except for changes with which Arthur Andersen & Co.
or any such other independent certified public accountants, if applicable, shall
concur and which shall have been disclosed in the notes to the financial
statements)(which report shall be subject to the confidentiality limitations set
forth herein); and (iii) in the event that the report referred to in clause (ii)
above is qualified, a copy of the management letter or any similar report
delivered to the Company or to any officer or employee thereof by such
independent certified public accountants in connection with such financial
statements. The Payment and Disbursement Agent and each Lender (through the
Payment and Disbursement Agent) may, with the consent of the Company (which
consent shall not be unreasonably withheld), communicate directly with such
accountants, with any such communication to occur
109
together with a representative of the Company, at the expense of the Payment and
Disbursement Agent (or the Lender requesting such communication), upon
reasonable notice and at reasonable times during normal business hours.
(iii) ANNUAL COMPLIANCE CERTIFICATES. Together with each delivery
of any annual report pursuant to clauses (i) and (ii) of this SECTION 8.2(b),
the Borrower shall deliver Officer's Certificates of the Borrower and the
Company (the "ANNUAL COMPLIANCE CERTIFICATES" and, collectively with the
Quarterly Compliance Certificates, the "COMPLIANCE CERTIFICATES"), signed by the
Borrower's and the Company's respective Authorized Financial Officers,
representing and certifying that (1) the officer signatory thereto has reviewed
the terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the transactions and
consolidated and consolidating financial condition of the General Partners, the
Borrower and its Subsidiaries, during the accounting period covered by such
reports, that such review has not disclosed the existence during or at the end
of such accounting period, and that such officer does not have knowledge of the
existence as at the date of such Officer's Certificate, of any condition or
event which constitutes an Event of Default or Potential Event of Default or
mandatory prepayment event, or, if any such condition or event existed or
exists, and specifying the nature and period of existence thereof and what
action the General Partners and/or the Borrower or any of its Subsidiaries has
taken, is taking and proposes to take with respect thereto, (2) the calculations
(with such specificity as the Payment and Disbursement Agent may reasonably
request) for the period then ended which demonstrate compliance with the
covenants and financial ratios set forth in ARTICLES IX AND X and, when
applicable, that no Event of Default described in SECTION 11.1 exists, (3) a
schedule of the Borrower's outstanding Indebtedness including the amount,
maturity, interest rate and amortization requirements, as well as such other
information regarding such Indebtedness as may be reasonably requested
110
by the Payment and Disbursement Agent, (4) a schedule of Combined EBITDA, (5) a
schedule of Unencumbered Combined EBITDA, (6) calculations, in the form of
EXHIBIT G attached hereto, evidencing compliance with each of the financial
covenants set forth in ARTICLE X hereof, and (7) a schedule of the estimated
taxable income of the Borrower for such fiscal year.
(iv) TENANT BANKRUPTCY REPORTS. As soon as practicable, and in
any event within ninety-five (95) days after the end of each Fiscal Year, the
Borrower shall deliver a written report, in form reasonably satisfactory to the
Payment and Disbursement Agent, of all bankruptcy proceedings filed by or
against any tenant of any of the Projects, which tenant occupies 3% or more of
the gross leasable area in the Projects in the aggregate. The Borrower shall
deliver to the Payment and Disbursement Agent and the Lenders, immediately upon
the Borrower's learning thereof, of any bankruptcy proceedings filed by or
against, or the cessation of business or operations of, any tenant of any of the
Projects which tenant occupies 3% or more of the gross leasable area in the
Projects in the aggregate.
(v) PROPERTY REPORTS. When reasonably requested by the Payment
and Disbursement Agent or any other Arranger or Co-Agent, a rent roll, tenant
sales report and income statement with respect to any Project.
VIII.3. EVENTS OF DEFAULT. Promptly upon the Borrower obtaining
knowledge (a) of any condition or event which constitutes an Event of Default or
Potential Event of Default, or becoming aware that any Lender or the Payment and
Disbursement Agent has given any notice to the Borrower with respect to a
claimed Event of Default or Potential Event of Default under this Agreement; (b)
that any Person has given any notice to the Borrower or any Subsidiary of the
Borrower or taken any other action with respect to a claimed default or event or
condition of the type referred to in SECTION 11.1(e); or (c) of any condition or
event which has or is reasonably likely to have a Material
111
Adverse Effect, the Borrower shall deliver to the Payment and Disbursement Agent
and the Lenders an Officer's Certificate specifying (i) the nature and period of
existence of any such claimed default, Event of Default, Potential Event of
Default, condition or event, (ii) the notice given or action taken by such
Person in connection therewith, and (iii) what action the Borrower has taken, is
taking and proposes to take with respect thereto.
VIII.4. LAWSUITS. (i) Promptly upon the Borrower's obtaining
knowledge of the institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting the
Borrower or any of its Subsidiaries not previously disclosed pursuant to SECTION
7.1(i), which action, suit, proceeding, governmental investigation or
arbitration exposes, or in the case of multiple actions, suits, proceedings,
governmental investigations or arbitrations arising out of the same general
allegations or circumstances which expose, in the Borrower's reasonable
judgment, the Borrower or any of its Subsidiaries to liability in an amount
aggregating $1,000,000 or more and is not covered by Borrower's insurance, the
Borrower shall give written notice thereof to the Payment and Disbursement Agent
and the Lenders and provide such other information as may be reasonably
available to enable each Lender and the Payment and Disbursement Agent and its
counsel to evaluate such matters; (ii) as soon as practicable and in any event
within fifty (50) days after the end of each fiscal quarter of the Borrower, the
Borrower shall provide a written quarterly report to the Payment and
Disbursement Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration (not previously reported) against or affecting the Borrower or any
of its Subsidiaries or any Property of the Borrower or any of its Subsidiaries
not previously disclosed by the Borrower to the Payment and Disbursement Agent
and the Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Payment and Disbursement
Agent and its counsel to evaluate such matters; and (iii) in
112
addition to the requirements set forth in clauses (i) and (ii) of this SECTION
8.4, the Borrower upon request of the Payment and Disbursement Agent or the
Requisite Lenders shall promptly give written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration covered by a
report delivered pursuant to clause (i) or (ii) above and provide such other
information as may be reasonably available to it to enable each Lender and the
Payment and Disbursement Agent and its counsel to evaluate such matters.
VIII.5. INSURANCE. As soon as practicable and in any event by
January 1st of each calendar year, the Borrower shall deliver to the Payment and
Disbursement Agent and the Lenders (i) a report in form and substance reasonably
satisfactory to the Payment and Disbursement Agent and the Lenders outlining all
insurance coverage maintained as of the date of such report by the Borrower and
its Subsidiaries and the duration of such coverage and (ii) evidence that all
premiums with respect to such coverage have been paid when due.
VIII.6. ERISA NOTICES. The Borrower shall deliver or cause to be
delivered to the Payment and Disbursement Agent and the Lenders, at the
Borrower's expense, the following information and notices as soon as reasonably
possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that an ERISA Termination Event has
occurred, a written statement of the chief financial officer of the
Borrower describing such ERISA Termination Event and the action, if any,
which the Borrower or any ERISA Affiliate has taken, is taking or proposes
to take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or has
reason to know that a
113
prohibited transaction (defined in Sections 406 of ERISA and Section 4975
of the Internal Revenue Code) has occurred, a statement of the chief
financial officer of the Borrower describing such transaction and the
action which the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the same
with the DOL, IRS or PBGC, copies of each annual report (form 5500 series),
including Schedule B thereto, filed with respect to each Plan;
(d) within fifteen (15) Business Days after receipt by the Borrower
or any ERISA Affiliate of each actuarial report for any Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan,
copies of each such report;
(e) within fifteen (15) Business Days after the filing of the same
with the IRS, a copy of each funding waiver request filed with respect to
any Plan and all communications received by the Borrower or any ERISA
Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of any
material increase in the benefits of any existing Plan or Multiemployer
Plan or the establishment of any new Plan or the commencement of
contributions to any Plan or Multiemployer Plan to which the Borrower or
any ERISA Affiliate was not previously contributing, notification of such
increase, establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice of the PBGC's intention to terminate a Plan
114
or to have a trustee appointed to administer a Plan, copies of each such
notice;
(h) within fifteen (15) Business Days after the Borrower or any of
its Subsidiaries receives notice of any unfavorable determination letter
from the IRS regarding the qualification of a Plan under Section 401(a) of
the Internal Revenue Code, copies of each such letter;
(i) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
(j) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due
date for such installment or payment, a notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know (i) a Multiemployer Plan has been
terminated, (ii) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (iii) the PBGC has instituted
or will institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, notification of such termination, intention to
terminate, or institution of proceedings.
For purposes of this SECTION 8.6, the Borrower and any ERISA Affiliate shall be
deemed to know all facts known by the "Administrator" of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
115
VIII.7. ENVIRONMENTAL NOTICES. The Borrower shall notify the Payment
and Disbursement Agent and the Lenders in writing, promptly upon any
representative of the Borrower or other employee of the Borrower responsible for
the environmental matters at any Property of the Borrower learning thereof, of
any of the following (together with any material documents and correspondence
received or sent in connection therewith):
(a) notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release
or threatened Release of any Contaminant into the environment, if such
liability would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is subject to
investigation by any Governmental Authority evaluating whether any Remedial
Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of violation by the Borrower or any of its Subsidiaries of
any Environmental, Health or Safety Requirement of Law;
(e) any condition which might reasonably result in a violation by the
Borrower or any Subsidiary of the Borrower of any Environmental, Health or
Safety Requirement of Law, which violation would result in a Material
Adverse Effect;
(f) commencement or threat of any judicial or administrative
proceeding alleging a violation by the Borrower or any of its Subsidiaries
of any
116
Environmental, Health or Safety Requirement of Law, which would result in a
Material Adverse Effect;
(g) new or proposed changes to any existing Environmental, Health or
Safety Requirement of Law that could result in a Material Adverse Effect;
or
(h) any proposed acquisition of stock, assets, real estate, or
leasing of Property, or any other action by the Borrower or any of its
Subsidiaries that could subject the Borrower or any of its Subsidiaries to
environmental, health or safety Liabilities and Costs which could result in
a Material Adverse Effect.
VIII.8. LABOR MATTERS. The Borrower shall notify the Payment and
Disbursement Agent and the Lenders in writing, promptly upon the Borrower's
learning thereof, of any labor dispute to which the Borrower or any of its
Subsidiaries may become a party (including, without limitation, any strikes,
lockouts or other disputes relating to any Property of such Persons' and other
facilities) which could result in a Material Adverse Effect.
VIII.9. NOTICES OF ASSET SALES AND/OR ACQUISITIONS. The Borrower
shall deliver to the Payment and Disbursement Agent and the Lenders written
notice of each of the following upon the occurrence thereof: (a) a sale,
transfer or other disposition of assets, in a single transaction or series of
related transactions, for consideration in excess of $50,000,000, (b) an
acquisition of assets, in a single transaction or series of related
transactions, for consideration in excess of $50,000,000, and (c) the grant of a
Lien with respect to assets, in a single transaction or series of related
transactions, in connection with Indebtedness aggregating an amount in excess of
$50,000,000.
117
VIII.10. TENANT NOTIFICATIONS. The Borrower shall promptly notify the
Payment and Disbursement Agent upon obtaining knowledge of the bankruptcy or
cessation of operations of any tenant to which greater than 3% of the Borrower's
share of consolidated minimum rent is attributable.
VIII.11. OTHER REPORTS. The Borrower shall deliver or cause to be
delivered to the Payment and Disbursement Agent and the other Lenders copies of
all financial statements, reports, notices and other materials, if any, sent or
made available generally by any General Partner and/or the Borrower to its
respective Securities holders or filed with the Commission, all press releases
made available generally by any General Partner and/or the Borrower or any of
its Subsidiaries to the public concerning material developments in the business
of any General Partner, the Borrower or any such Subsidiary and all
notifications received by the General Partners, the Borrower or its Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
VIII.12. OTHER INFORMATION. Promptly upon receiving a request
therefor from the Payment and Disbursement Agent or any Arranger or Co-Agent,
the Borrower shall prepare and deliver to the Payment and Disbursement Agent and
the other Lenders such other information with respect to any General Partner,
the Borrower, or any of its Subsidiaries, as from time to time may be reasonably
requested by the Payment and Disbursement Agent or any Arranger.
ARTICLE IX
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Revolving Credit
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to SECTION 15.3 not yet due),
unless
118
the Requisite Lenders shall otherwise give prior written consent:
IX.1. EXISTENCE, ETC. The Borrower shall, and shall cause each of
its Subsidiaries to, at all times maintain its corporate existence or existence
as a limited partnership or joint venture, as applicable, and preserve and keep,
or cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses, except where the loss or termination of
such rights and franchises is not likely to have a Material Adverse Effect.
IX.2. POWERS; CONDUCT OF BUSINESS. The Borrower shall remain
qualified, and shall cause each of its Subsidiaries to qualify and remain
qualified, to do business and maintain its good standing in each jurisdiction in
which the nature of its business and the ownership of its Property requires it
to be so qualified and in good standing.
IX.3. COMPLIANCE WITH LAWS, ETC. The Borrower shall, and shall
cause each of its Subsidiaries to, (a) comply with all Requirements of Law and
all restrictive covenants affecting such Person or the business, Property,
assets or operations of such Person, and (b) obtain and maintain as needed all
Permits necessary for its operations (including, without limitation, the
operation of the Projects) and maintain such Permits in good standing, except
where noncompliance with either CLAUSE (a) or (b) above is not reasonably likely
to have a Material Adverse Effect; PROVIDED, HOWEVER, that the Borrower shall,
and shall cause each of its Subsidiaries to, comply with all Environmental,
Health or Safety Requirements of Law affecting such Person or the business,
Property, assets or operations of such Person.
IX.4. PAYMENT OF TAXES AND CLAIMS. (a) The Borrower shall pay, and
shall cause each of its Subsidiaries to pay, (i) all taxes, assessments and
other governmental charges imposed upon it or on any of its
119
Property or assets or in respect of any of its franchises, licenses, receipts,
sales, use, payroll, employment, business, income or Property before any penalty
or interest accrues thereon, and (ii) all Claims (including, without limitation,
claims for labor, services, materials and supplies) for sums which have become
due and payable and which by law have or may become a Lien (other than a Lien
permitted by SECTION 10.3 or a Customary Permitted Lien for property taxes and
assessments not yet due upon any of the Borrower's or any of the Borrower's
Subsidiaries' Property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; PROVIDED, HOWEVER, that no such taxes,
assessments, fees and governmental charges referred to in clause (i) above or
Claims referred to in clause (ii) above need be paid if being contested in good
faith by appropriate proceedings diligently instituted and conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
IX.5. INSURANCE. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on SCHEDULE 7.1-T or
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Payment and Disbursement Agent. All such
policies and programs shall be maintained with insurers reasonably acceptable to
the Payment and Disbursement Agent.
IX.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The
Borrower shall permit, and cause each of its Subsidiaries to permit, any
authorized representative(s) designated by either the Payment and Disbursement
Agent or any Arranger, Co-Agent or other Lender to visit and inspect any of the
Projects or inspect the MIS of the Borrower or any of its Subsidiaries which
relates to the Projects, to examine, audit, check and make copies of their
respective financial and accounting records, books, journals, orders, receipts
and any correspondence and other data relating to their respective
120
businesses or the transactions contemplated hereby (including, without
limitation, in connection with environmental compliance, hazard or liability),
and to discuss their affairs, finances and accounts with their officers and
independent certified public accountants, all with a representative of the
Borrower present, upon reasonable notice and at such reasonable times during
normal business hours, as often as may be reasonably requested. Each such
visitation and inspection shall be at such visitor's expense. The Borrower shall
keep and maintain, and cause its Subsidiaries to keep and maintain, in all
material respects on its MIS and otherwise proper books of record and account in
which entries in conformity with GAAP shall be made of all dealings and
transactions in relation to their respective businesses and activities.
IX.7. ERISA COMPLIANCE. The Borrower shall, and shall cause each
of its Subsidiaries and ERISA Affiliates to, establish, maintain and operate all
Plans to comply in all material respects with the provisions of ERISA, the
Internal Revenue Code, all other applicable laws, and the regulations and
interpretations thereunder and the respective requirements of the governing
documents for such Plans.
IX.8. MAINTENANCE OF PROPERTY. The Borrower shall, and shall cause
each of its Subsidiaries to, maintain in all material respects all of their
respective owned and leased Property in good, safe and insurable condition and
repair and in a businesslike manner, and not permit, commit or suffer any waste
or abandonment of any such Property and from time to time shall make or cause to
be made all material repairs, renewal and replacements thereof, including,
without limitation, any capital improvements which may be required to maintain
the same in a businesslike manner; PROVIDED, HOWEVER, that such Property may be
altered or renovated in the ordinary course of business of the Borrower or such
applicable Subsidiary. Without any limitation on the foregoing, the Borrower
shall maintain the Projects in a manner such that each Project can be used in
the manner and substantially for the
121
purposes such Project is used on the Closing Date, including, without
limitation, maintaining all utilities, access rights, zoning and necessary
Permits for such Project.
IX.9. HEDGING REQUIREMENTS. The Borrower shall maintain "Interest
Rate Hedges" (as defined below) on a notional amount of Indebtedness of the
Borrower and its Subsidiaries which, when added to the aggregate principal
amount of Indebtedness of the Borrower and its Subsidiaries which bears interest
at a fixed rate, equals or exceeds 75% of the Total Adjusted Oustanding
Indebtedness of the Borrower and its Subsidiaries. "INTEREST RATE HEDGES" shall
mean interest rate exchange, collar, cap, swap, adjustable strike cap,
adjustable strike corridor or similar agreements having terms, conditions and
tenors reasonably acceptable to the Payment and Disbursement Agent entered into
by the Borrower and/or its Subsidiaries in order to provide protection to, or
minimize the impact upon, the Borrower and/or such Subsidiaries of increasing
floating rates of interest applicable to Indebtedness.
IX.10. COMPANY STATUS. The Company shall at all times (1) remain a
publicly traded company listed on the New York Stock Exchange or other national
stock exchange; (2) maintain its status as a REIT under the Internal Revenue
Code, (3) retain direct or indirect management and control of the Borrower, and
(4) own, directly or indirectly, no less than ninety-nine percent (99%) of the
equity Securities of any other General Partner of the Borrower.
IX.11. OWNERSHIP OF PROJECTS, MINORITY HOLDINGS AND PROPERTY. The
ownership of substantially all wholly-owned Projects, Minority Holdings and
other Property of the Consolidated Businesses shall be held by the Borrower and
its Subsidiaries and shall not be held directly by any General Partner.
ARTICLE X
122
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any Revolving Credit Commitments are outstanding and
thereafter until payment in full of all of the Obligations (other than
indemnities pursuant to SECTION 15.3 not yet due), unless the Requisite Lenders
shall otherwise give prior written consent:
X.1. INDEBTEDNESS. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except Indebtedness which, when aggregated with Total Adjusted Outstanding
Indebtedness of the Borrower as of the time of determination, would not exceed
(i) sixty percent (60%) of Capitalization Value as of the date of incurrence, or
(ii) in the case of Secured Indebtedness of the Consolidated Businesses and the
Borrower's proportionate share of Secured Indebtedness of its Minority Holdings,
fifty-five percent (55%) of the Capitalization Value. In addition, neither the
Borrower nor any of its Subsidiaries shall incur, directly or indirectly,
Indebtedness for borrowed money from any of the General Partners, unless such
Indebtedness is unsecured and expressly subordinated to the payment of the
Obligations.
X.2. SALES OF ASSETS. Neither the Borrower nor any of its
Subsidiaries shall sell, assign, transfer, lease, convey or otherwise dispose of
any Property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so which would result in a Material
Adverse Effect.
X.3. LIENS. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or permit to exist any Lien
on or with respect to any Property, except:
123
(a) Liens with respect to Capital Leases of Equipment entered into in
the ordinary course of business of the Borrower pursuant to which the
aggregate Indebtedness under such Capital Leases does not exceed $100,000
for any Project;
(b) Liens securing permitted Secured Indebtedness; and
(c) Customary Permitted Liens.
X.4. INVESTMENTS. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly make or own any Investment except:
(a) Investments in Cash Equivalents;
(b) Subject to the limitations of clause (e) below, Investments in
the Borrower's Subsidiaries, the Borrower's Affiliates and the Management
Company;
(c) Investments in the form of advances to employees in the ordinary
course of business; PROVIDED THAT the aggregate principal amount of all
such advances at any time outstanding shall not exceed $1,000,000;
(d) Investments received in connection with the bankruptcy or
reorganization of suppliers and lessees and in settlement of delinquent
obligations of, and other disputes with, lessees and suppliers arising in
the ordinary course of business;
(e) Investments (i) in any individual Project (other than Mall of
America), which when combined with like Investments of the General Partners
in such Project, do not exceed ten percent (10%) of the Capitalization
Value after giving effect to such Investments of the Borrower or (ii) in a
single Person owning a Project or Property, or a portfolio of Projects or
Properties,
124
which when combined with like Investments of the General Partners in such
Person, do not exceed thirty-three percent (33%) of the Capitalization
Value after giving effect to such Investments of the Borrower, it being
understood that no Investment in any individual Person will be permitted if
the Borrower's allocable share of the Investment of such Person in any
individual Project would exceed the limitation described in clause (i)
hereinabove.
X.5. CONDUCT OF BUSINESS. Neither the Borrower nor any of its
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, re-developing and managing
predominantly retail and mixed use Projects and portfolios of like Projects and
(b) any business or activities which are substantially similar, related or
incidental thereto.
X.6. TRANSACTIONS WITH PARTNERS AND AFFILIATES. Neither the
Borrower nor any of its Subsidiaries shall directly or indirectly enter into or
permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any holder or holders of more than five percent (5%) of any class of equity
Securities of the Borrower, or with any Affiliate of the Borrower which is not
its Subsidiary, on terms that are determined by the respective Boards of
Directors of the General Partners to be less favorable to the Borrower or any of
its Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such a holder or
Affiliate. Nothing contained in this SECTION 10.6 shall prohibit (a) increases
in compensation and benefits for officers and employees of the Borrower or any
of its Subsidiaries which are customary in the industry or consistent with the
past business practice of the Borrower or such Subsidiary, PROVIDED THAT no
Event of Default or Potential Event of Default has occurred and is continuing;
(b) payment of customary partners' indemnities;
125
or (c) performance of any obligations arising under the Loan Documents.
X.7. RESTRICTION ON FUNDAMENTAL CHANGES. Neither the Borrower nor
any of its Subsidiaries shall enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, all or substantially all of the Borrower's or any such
Subsidiary's business or Property, whether now or hereafter acquired, except in
connection with issuance, transfer, conversion or repurchase of limited
partnership interests in Borrower. Notwithstanding the foregoing, the Borrower
shall be permitted to merge with another Person so long as the Borrower is the
surviving Person following such merger.
X.8. MARGIN REGULATIONS; SECURITIES LAWS. Neither the Borrower
nor any of its Subsidiaries shall use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
X.9. ERISA. The Borrower shall not and shall not permit any of
its Subsidiaries or ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections 406 of
ERISA or 4975 of the Internal Revenue Code for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the DOL;
(b) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Internal Revenue Code), with respect
to any Plan, whether or not waived;
(c) fail to pay timely required contributions or annual installments
due with respect to any waived funding deficiency to any Plan;
126
(d) terminate any Plan which would result in any liability of
Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer
Plan which Borrower or any ERISA Affiliate may be required to make under
any agreement relating to such Multiemployer Plan, or any law pertaining
thereto;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before the
due date for such installment or other payment; or
(g) amend a Plan resulting in an increase in current liability for
the plan year such that the Borrower or any ERISA Affiliate is required to
provide security to such Plan under Section 401(a)(29) of the Internal
Revenue Code.
X.10. ORGANIZATIONAL DOCUMENTS. Neither the General Partners, the
Borrower nor any of its Subsidiaries shall amend, modify or otherwise change any
of the terms or provisions in any of their respective Organizational Documents
as in effect on the Closing Date, except amendments to effect (a) a change of
name of the Borrower or any such Subsidiary, PROVIDED THAT the Borrower shall
have provided the Payment and Disbursement Agent with sixty (60) days prior
written notice of any such name change, or (b) changes that would not affect
such Organizational Documents in any material manner not otherwise permitted
under this Agreement.
X.11. FISCAL YEAR. Neither the Company, the Borrower nor any of
its Consolidated Businesses shall change its Fiscal Year for accounting or tax
purposes from a period consisting of the 12-month period ending on December 31
of each calendar year.
127
X.12. OTHER FINANCIAL COVENANTS.
(a) MINIMUM COMBINED EQUITY VALUE. The Combined Equity Value shall at
no time be less than $5,000,000,000.
(b) CONSOLIDATED INTEREST COVERAGE RATIO. As of the first day of each
fiscal quarter for the immediately preceding consecutive four fiscal quarters,
the ratio of (i) Combined EBITDA to (ii) Combined Interest Expense shall not be
less than 1.8 to 1.0.
(c) MINIMUM DEBT SERVICE COVERAGE RATIO. As of the first day of each
fiscal quarter for the immediately preceding consecutive four fiscal quarters,
the ratio of Combined EBITDA to Combined Debt Service shall not be less than
1.60 to 1.00.
(d) MINIMUM DEBT YIELD. As of the first day of each fiscal quarter
for the immediately preceding consecutive four fiscal quarters, the ratio
(expressed as a percentage) (the "DEBT YIELD") of (1) Combined EBITDA to (2)
Total Adjusted Outstanding Indebtedness (less unrestricted Cash and Cash
Equivalents of the Borrower) shall not be less than 13.5%.
(e) UNENCUMBERED COMBINED EBITDA TO TOTAL UNSECURED OUTSTANDING
INDEBTEDNESS. As of the first day of each fiscal quarter for the immediately
preceding consecutive four fiscal quarters, the ratio (expressed as a
percentage) (the "UNSECURED DEBT YIELD") of (i) the Unencumbered Combined EBITDA
to (ii) Total Unsecured Outstanding Indebtedness (less unrestricted Cash and
Cash Equivalents of the Borrower) shall not be less than 11%.
(f) UNENCUMBERED COMBINED EBITDA TO UNSECURED INTEREST EXPENSE. As of
the first day of each fiscal quarter for the immediately preceding consecutive
four fiscal quarters, the ratio of (i) the Unencumbered Combined EBITDA to (ii)
Unsecured Interest Expense shall not be less than 1.5 to 1.0.
128
X.13. PRO FORMA ADJUSTMENTS. In connection with an acquisition of
a Project, a Property, or a portfolio of Projects or Properties, by any of the
Consolidated Businesses or any Minority Holding (whether such acquisition is
direct or through the acquisition of a Person which owns such Property), the
financial covenants contained in this Agreement shall be calculated as follows
on a PRO FORMA basis (with respect to the PRO RATA share of the Borrower in the
case of an acquisition by a Minority Holding), which PRO FORMA calculation shall
be effective until the last day of the fourth fiscal quarter following such
acquisition (or such earlier test period, as applicable), at which time actual
performance shall be utilized for such calculations.
(a) ANNUAL EBITDA. Annual EBITDA for the acquired Property shall be
deemed to be an amount equal to (i) the net purchase price of the acquired
Property (or the Borrower's pro rata share of such net purchase price in the
event of an acquisition by a Minority Holding) for the first fiscal quarter
following such acquisition, multiplied by 8.25% and (ii) for the succeeding
three fiscal quarters, Annual EBITDA shall be deemed the greater of (A) the net
purchase price multiplied by 8.25%, or (B) the actual EBITDA from such acquired
Property during the period following Borrower's (direct or indirect)
acquisition, computed on an annualized basis, provided that such annualized
EBITDA shall in no event exceed the final product obtained after multiplying (1)
the net purchase price by (2) 1.1, and then by (3) 8.25%.
(b) COMBINED EBITDA. The pro forma calculation of Annual EBITDA for
the acquired Property shall be added to the calculation of Combined EBITDA.
(c) UNENCUMBERED COMBINED EBITDA. If, after giving effect to the
acquisition, the acquired Property will not be encumbered by Secured
Indebtedness, then the pro forma Annual EBITDA for the acquired Property shall
be added to the calculation of Unencumbered Combined EBITDA.
129
(d) SECURED INDEBTEDNESS. Any Indebtedness secured by a Lien incurred
and/or assumed in connection with such acquisition of a Property shall be added
to the calculation of Secured Indebtedness.
(e) TOTAL ADJUSTED OUTSTANDING INDEBTEDNESS. Any Indebtedness
incurred and/or assumed in connection with such acquisition shall be added to
the calculation of Total Adjusted Outstanding Indebtedness.
(f) COMBINED INTEREST EXPENSE. If any Indebtedness is incurred or
assumed in connection with such acquisition, then the amount of interest expense
to be incurred on such Indebtedness during the period following such
acquisition, computed on an annualized basis during the applicable period, shall
be added to the calculation of Combined Interest Expense.
(g) TOTAL UNSECURED OUTSTANDING INDEBTEDNESS. Any Indebtedness which
is not secured by a Lien and which is incurred and/or assumed in connection with
such acquisition shall be added to the calculation of Total Unsecured
Outstanding Indebtedness.
(h) UNSECURED INTEREST EXPENSE. If any unsecured Indebtedness is
incurred or assumed in connection with such acquisition, then the amount of
interest expense to be incurred on such Indebtedness during the period following
such acquisition, computed on an annualized basis during the applicable period,
shall be added to the calculation of Unsecured Interest Expense.
(i) DEBT YIELD AND UNENCUMBERED DEBT YIELD. For purposes of
calculating Debt Yield and Unencumbered Debt Yield only, non-recourse
Indebtedness and completion guarantees incurred for the construction of new
Projects shall, until such time as the interest expense associated with such
financing need no longer be capitalized in accordance with GAAP, be excluded
from the calculation of Total Adjusted Outstanding Indebtedness (provided that
recourse Indebtedness and repayment guarantees shall be included in such
calculation).
130
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
XI.1. EVENTS OF DEFAULT. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower shall fail to pay
(i) when due any principal payment on the Obligations which is due on the
Revolving Credit Termination Date or pursuant to the terms of SECTION 2.1(a),
SECTION 2.2, SECTION 2.4, or SECTION 4.1(d) or (ii) within five Business Days
after the date on which due, any interest payment on the Obligations or any
principal payment pursuant to the terms of SECTION 4.1(a) or (iii) when due, any
principal payment on the Obligations not referenced in clauses (i) or (ii)
hereinabove.
(b) BREACH OF CERTAIN COVENANTS. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on such Person under SECTIONS 8.3, 9.1, 9.2, 9.3, 9.4, 9.5, 9.6, or ARTICLE X.
(c) BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made by the Borrower to the Payment and Disbursement Agent, any
Arranger or any other Lender herein or by the Borrower or any of its
Subsidiaries in any of the other Loan Documents or in any statement or
certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as of
which made.
(d) OTHER DEFAULTS. Except as set forth in the next sentence, the
Borrower shall default in the performance of or compliance with any term
contained in this Agreement (other than as identified in paragraphs (a), (b) or
(c) of this SECTION 11.1), or any default or event of default shall occur under
any of the other Loan Documents, and such default or event of default shall
131
continue for twenty (20) days after receipt of written notice from the Payment
and Disbursement Agent thereof. With respect to any failure in the performance
of or compliance with the terms of SECTION 9.9, such failure or noncompliance
shall not constitute an Event of Default so long as the Borrower cures such
failure or noncompliance within one hundred eighty (180) days after the receipt
of written notice from the Payment and Disbursement Agent thereof.
(e) ACCELERATION OF OTHER INDEBTEDNESS. Any breach, default or event
of default shall occur, or any other condition shall exist under any instrument,
agreement or indenture pertaining to any recourse Indebtedness (other than the
Obligations) of the Borrower or its Subsidiaries aggregating $30,000,000 or
more, and the effect thereof is to cause an acceleration, mandatory redemption
or other required repurchase of such Indebtedness, or permit the holder(s) of
such Indebtedness to accelerate the maturity of any such Indebtedness or require
a redemption or other repurchase of such Indebtedness; or any such Indebtedness
shall be otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed or otherwise repurchased by the Borrower or
any of its Subsidiaries (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof.
(f) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case under any applicable bankruptcy, insolvency
or similar law now or hereafter in effect shall be commenced against any General
Partner, the Borrower, or any of its Subsidiaries to which $150,000,000 or more
of the Combined Equity Value is attributable, and the petition shall not be
dismissed, stayed, bonded or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of any General Partner, the
Borrower or any of its Subsidiaries in an involuntary case, under any applicable
bankruptcy,
132
insolvency or other similar law now or hereafter in effect; or any other similar
relief shall be granted under any applicable federal, state, local or foreign
law; or the respective board of directors of any General Partner or Limited
Partners of the Borrower or the board of directors or partners of any of the
Borrower's Subsidiaries (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the foregoing.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over any of the General Partners, the
Borrower, or any of its Subsidiaries to which $150,000,000 or more of the
Combined Equity Value is attributable, or over all or a substantial part of the
Property of any of the General Partners, the Borrower or any of such
Subsidiaries shall be entered; or an interim receiver, trustee or other
custodian of any of the General Partners, the Borrower or any of such
Subsidiaries or of all or a substantial part of the Property of any of the
General Partners, the Borrower or any of such Subsidiaries shall be appointed or
a warrant of attachment, execution or similar process against any substantial
part of the Property of any of the General Partners, the Borrower or any of such
Subsidiaries shall be issued and any such event shall not be stayed, dismissed,
bonded or discharged within sixty (60) days after entry, appointment or
issuance; or the respective board of directors of any of the General Partners or
Limited Partners of the Borrower or the board of directors or partners of any of
Borrower's Subsidiaries (or any committee thereof) adopts any resolution or
otherwise authorizes any action to approve any of the foregoing.
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. Any of the
General Partners, the Borrower, or any of its Subsidiaries to which $150,000,000
or more of the Combined Equity Value is attributable, shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall
133
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking possession by a receiver, trustee
or other custodian for all or a substantial part of its Property; or any of the
General Partners, the Borrower or any of such Subsidiaries shall make any
assignment for the benefit of creditors or shall be unable or fail, or admit in
writing its inability, to pay its debts as such debts become due.
(h) JUDGMENTS AND UNPERMITTED LIENS.
(i) Any money judgment (other than a money judgment covered
by insurance as to which the insurance company has acknowledged coverage), writ
or warrant of attachment, or similar process against the Borrower or any of its
Subsidiaries or any of their respective assets involving in any case an amount
in excess of $15,000,000 (other than with respect to Claims arising out of
non-recourse Indebtedness) is entered and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days or in any event later than
five (5) days prior to the date of any proposed sale thereunder; PROVIDED,
HOWEVER, if any such judgment, writ or warrant of attachment or similar process
is in excess of $30,000,000 (other than with respect to Claims arising out of
non-recourse Indebtedness), the entry thereof shall immediately constitute an
Event of Default hereunder.
(ii) A federal, state, local or foreign tax Lien is filed
against the Borrower which is not discharged of record, bonded over or otherwise
secured to the satisfaction of the Payment and Disbursement Agent within fifty
(50) days after the filing thereof or the date upon which the Payment and
Disbursement Agent receives actual knowledge of the filing thereof for an amount
which, either separately or when aggregated with the amount of any judgments
described in clause (i) above and/or the amount of the Environmental Lien Claims
described in clause (iii) below, equals or exceeds $15,000,000.
134
(iii) An Environmental Lien is filed against any Project with
respect to Claims in an amount which, either separately or when aggregated with
the amount of any judgments described in clause (i) above and/or the amount of
the tax Liens described in clause (ii) above, equals or exceeds $15,000,000.
(i) DISSOLUTION. Any order, judgment or decree shall be entered
against the Borrower decreeing its involuntary dissolution or split up; or the
Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(j) LOAN DOCUMENTS. At any time, for any reason, any Loan Document
ceases to be in full force and effect or the Borrower seeks to repudiate its
obligations thereunder.
(k) ERISA TERMINATION EVENT. Any ERISA Termination Event occurs which
the Payment and Disbursement Agent believes could subject either the Borrower or
any ERISA Affiliate to liability in excess of $500,000.
(l) WAIVER APPLICATION. The plan administrator of any Plan applies
under Section 412(d) of the Code for a waiver of the minimum funding standards
of Section 412(a) of the Internal Revenue Code and the Payment and Disbursement
Agent believes that the substantial business hardship upon which the application
for the waiver is based could subject either the Borrower or any ERISA Affiliate
to liability in excess of $500,000.
(m) INTENTIONALLY OMITTED.
(n) CERTAIN DEFAULTS PERTAINING TO THE GENERAL PARTNERS. The Company
shall fail to (i) maintain its status as a REIT for federal income tax purposes,
(ii) continue as a general partner of the Borrower, (iii) maintain ownership of
no less than 99% of the equity Securities of any other General Partner of the
Borrower,
135
(iv) comply with all Requirements of Law applicable to it and its businesses and
Properties, in each case where the failure to so comply individually or in the
aggregate will have or is reasonably likely to have a Material Adverse Effect,
(v) remain listed on the New York Stock Exchange or other national stock
exchange, or (vi) file all tax returns and reports required to be filed by it
with any Governmental Authority as and when required to be filed or to pay any
taxes, assessments, fees or other governmental charges upon it or its Property,
assets, receipts, sales, use, payroll, employment, licenses, income, or
franchises which are shown in such returns, reports or similar statements to be
due and payable as and when due and payable, except for taxes, assessments, fees
and other governmental charges (A) that are being contested by the Company in
good faith by an appropriate proceeding diligently pursued, (B) for which
adequate reserves have been made on its books and records, and (C) the amounts
the non-payment of which would not, individually or in the aggregate, result in
a Material Adverse Effect.
(o) MERGER OR LIQUIDATION OF THE GENERAL PARTNERS OR THE BORROWER.
Any General Partner shall merge or liquidate with or into any other Person and,
as a result thereof and after giving effect thereto, (i) such General Partner is
not the surviving Person or (ii) such merger or liquidation would effect an
acquisition of or Investment in any Person not otherwise permitted under the
terms of this Agreement. The Borrower shall merge or liquidate with or into any
other Person and, as a result thereof and after giving effect thereto, (i) the
Borrower is not the surviving Person or (ii) such merger or liquidation would
effect an acquisition of or Investment in any Person not otherwise permitted
under the terms of this Agreement.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with SECTION 15.7.
XI.2. RIGHTS AND REMEDIES.
136
(a) ACCELERATION AND TERMINATION. Upon the occurrence of any Event of
Default described in SECTIONS 11.1(f) or 11.1(g), the Revolving Credit
Commitments shall automatically and immediately terminate and the unpaid
principal amount of, and any and all accrued interest on, the Obligations and
all accrued fees shall automatically become immediately due and payable, without
presentment, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and of acceleration), all of which are hereby
expressly waived by the Borrower; and upon the occurrence and during the
continuance of any other Event of Default, the Payment and Disbursement Agent
shall at the request, or may with the consent, of the Requisite Lenders, by
written notice to the Borrower, (i) declare that the Revolving Credit
Commitments are terminated, whereupon the Revolving Credit Commitments and the
obligation of each Lender to make any Loan hereunder and of each Lender to issue
or participate in any Letter of Credit not then issued shall immediately
terminate, and/or (ii) declare the unpaid principal amount of and any and all
accrued and unpaid interest on the Obligations to be, and the same shall
thereupon be, immediately due and payable, without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower.
(b) RESCISSION. If at any time after termination of the Revolving
Credit Commitments and/or acceleration of the maturity of the Loans, the
Borrower shall pay all arrears of interest and all payments on account of
principal of the Loans and Reimbursement Obligations which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than nonpayment
of principal of and accrued interest on the Loans due and
137
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to SECTION 15.7, then upon the written consent of the Requisite Lenders and
written notice to the Borrower, the termination of the Revolving Credit
Commitments and/or the acceleration and their consequences may be rescinded and
annulled; but such action shall not affect any subsequent Event of Default or
Potential Event of Default or impair any right or remedy consequent thereon. The
provisions of the preceding sentence are intended merely to bind the Lenders to
a decision which may be made at the election of the Requisite Lenders; they are
not intended to benefit the Borrower and do not give the Borrower the right to
require the Lenders to rescind or annul any acceleration hereunder, even if the
conditions set forth herein are met.
(c) ENFORCEMENT. The Borrower acknowledges that in the event the
Borrower or any of its Subsidiaries fails to perform, observe or discharge any
of their respective obligations or liabilities under this Agreement or any other
Loan Document, any remedy of law may prove to be inadequate relief to the
Payment and Disbursement Agent, the Arrangers and the other Lenders; therefore,
the Borrower agrees that the Payment and Disbursement Agent, the Arrangers and
the other Lenders shall be entitled to temporary and permanent injunctive relief
in any such case without the necessity of proving actual damages.
ARTICLE XII
THE AGENTS
XII.1. APPOINTMENT. (a) Each Lender hereby designates and appoints
UBS as the Payment and Disbursement Agent, the Arrangers as the Arrangers, and
the Co-Agents as the Co-Agents of such Lender under this Agreement, and each
Lender hereby irrevocably authorizes the Payment and Disbursement Agent, the
Arrangers, and the Co-Agents to take such actions on its behalf under the
provisions of this Agreement and the Loan Documents and to exercise such powers
as are set forth herein or therein together with
138
such other powers as are reasonably incidental thereto. The Payment and
Disbursement Agent, the Arrangers and the Co-Agents each agree to act as such on
the express conditions contained in this ARTICLE XII. The Payment and
Disbursement Agent shall administer this Agreement and service the Loans with
the same degree of care as the Payment and Disbursement Agent would use in
servicing a loan of similar size and type for its own account.
(b) The provisions of this ARTICLE XII are solely for the benefit of
the Payment and Disbursement Agent, the Arrangers, the Co-Agents and the other
Lenders, and neither the Borrower, the General Partners nor any Subsidiary of
the Borrower shall have any rights to rely on or enforce any of the provisions
hereof (other than as expressly set forth in SECTION 12.7). In performing their
respective functions and duties under this Agreement, the Payment and
Disbursement Agent, each Arranger, and each Co-Agent shall act solely as agents
of the Lenders and do not assume and shall not be deemed to have assumed any
obligation or relationship of agency, trustee or fiduciary with or for any
General Partner, the Borrower or any Subsidiary of the Borrower. The Payment and
Disbursement Agent, each Arranger and each Co-Agent may perform any of their
respective duties hereunder, or under the Loan Documents, by or through their
respective agents or employees.
XII.2. NATURE OF DUTIES. The Payment and Disbursement Agent, the
Arrangers and the Co-Agents shall not have any duties or responsibilities except
those expressly set forth in this Agreement or in the Loan Documents. The duties
of the Payment and Disbursement Agent, the Arrangers, and the Co-Agents shall be
mechanical and administrative in nature. None of the Payment and Disbursement
Agent, any Arranger, or any Co-Agent shall have by reason of this Agreement a
fiduciary relationship in respect of any Holder. Nothing in this Agreement or
any of the Loan Documents, expressed or implied, is intended to or shall be
construed to impose upon the Payment and Disbursement Agent or any Arranger, or
Co-Agent any
139
obligations in respect of this Agreement or any of the Loan Documents except as
expressly set forth herein or therein. The Payment and Disbursement Agent and
each Arranger and Co-Agent each hereby agrees that its duties shall include
providing copies of documents received by such Agent from the Borrower which are
reasonably requested by any Lender and promptly notifying each Lender upon its
obtaining actual knowledge of the occurrence of any Event of Default hereunder.
In addition, the Payment and Disbursement Agent shall promptly deliver to each
of the Lenders copies of all notices of default and other formal notices
(including, without limitation, requests for waivers or modifications) sent or
received.
XII.3. RIGHT TO REQUEST INSTRUCTIONS. The Payment and Disbursement
Agent and each Arranger and Co-Agent may at any time request instructions from
the Lenders with respect to any actions or approvals which by the terms of any
of the Loan Documents such Agent is permitted or required to take or to grant,
and such Agent shall be absolutely entitled to refrain from taking any action or
to withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Loan Documents until it shall have received such instructions from those
Lenders from whom such Agent is required to obtain such instructions for the
pertinent matter in accordance with the Loan Documents. Without limiting the
generality of the foregoing, such Agent shall take any action, or refrain from
taking any action, which is permitted by the terms of the Loan Documents upon
receipt of instructions from those Lenders from whom such Agent is required to
obtain such instructions for the pertinent matter in accordance with the Loan
Documents, PROVIDED, that no Holder shall have any right of action whatsoever
against the Payment and Disbursement Agent or any Arranger or Co-Agent as a
result of such Agent acting or refraining from acting under the Loan Documents
in accordance with the instructions of the Requisite Lenders or, where required
by the express terms of this Agreement, a greater proportion of the Lenders.
140
XII.4. RELIANCE. The Payment and Disbursement Agent and each
Arranger and Co-Agent shall each be entitled to rely upon any written notices,
statements, certificates, orders or other documents or any telephone message
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining to
this Agreement or any of the Loan Documents and its duties hereunder or
thereunder, upon advice of legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it.
XII.5. INDEMNIFICATION. To the extent that the Payment and
Disbursement Agent or any Arranger or Co-Agent is not reimbursed and indemnified
by the Borrower, the Lenders will reimburse and indemnify such Agent solely in
its capacity as such Agent and not as a Lender for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
and reasonable costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against it in any way relating
to or arising out of the Loan Documents or any action taken or omitted by such
Agent under the Loan Documents, in proportion to each Lender's Pro Rata Share,
unless and to the extent that any such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, and reasonable costs, expenses or
disbursements shall arise as a result of such Agent's gross negligence or
willful misconduct. Such Agent agrees to refund to the Lenders any of the
foregoing amounts paid to it by the Lenders which amounts are subsequently
recovered by such Agent from the Borrower or any other Person on behalf of the
Borrower. The obligations of the Lenders under this SECTION 12.5 shall survive
the payment in full of the Loans, the Reimbursement Obligations and all other
Obligations and the termination of this Agreement.
XII.6. AGENTS INDIVIDUALLY. With respect to their respective Pro
Rata Share of the Revolving Credit Commitments hereunder, if any, and the Loans
made by them, if any, the Payment and Disbursement Agent, the Arrangers
141
and the Co-Agents shall have and may exercise the same rights and powers
hereunder and are subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender. The terms "Lenders" or "Requisite
Lenders" or any similar terms shall, unless the context clearly otherwise
indicates, include the Payment and Disbursement Agent, each Arranger and each
other Co-Agent in its respective individual capacity as a Lender or as one of
the Requisite Lenders. The Payment and Disbursement Agent and each other
Arranger and Co-Agent and each of their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking, trust
or other business with the Borrower or any of its Subsidiaries as if they were
not acting as the Payment and Disbursement Agent, the Arrangers, and Co-Agents
pursuant hereto.
XII.7. SUCCESSOR AGENTS.
(a) RESIGNATION AND REMOVAL. Any Lead Arranger may resign from the
performance of all its functions and duties hereunder at any time by giving at
least thirty (30) Business Days' prior written notice to the Borrower and the
other Lenders, unless applicable law requires a shorter notice period or that
there be no notice period, in which instance such applicable law shall control.
Any Lead Arranger may be removed (i) at the direction of Lenders whose Pro Rata
Shares, in the aggregate, are greater than fifty percent (50%), in the event the
Lead Arranger is not also a Lender having a Revolving Credit Commitment of at
least $20,000,000 or six percent (6%) of the Revolving Credit Commitments at
such time or (ii) at the direction of the Requisite Lenders, in the event such
Lead Arranger shall commit gross negligence or willful misconduct in the
performance of its duties hereunder. Such resignation or removal shall take
effect upon the acceptance by a successor Lead Arranger of appointment pursuant
to this SECTION 12.7.
(b) APPOINTMENT BY REQUISITE LENDERS. Upon any such resignation or
removal becoming effective, (i) if an
142
Arranger or Co-Agent shall then be acting with respect to this Agreement, such
Arranger or Co-Agent shall become the Payment and Disbursement Agent or (ii) if
no Arranger or Co-Agent shall then be acting with respect to this Agreement, the
Lenders shall have the right to appoint a successor Payment and Disbursement
Agent selected from among the Lenders.
(c) APPOINTMENT BY RETIRING AGENT. If a successor Payment and
Disbursement Agent shall not have been appointed within the thirty (30) Business
Day or shorter period provided in PARAGRAPH (a) of this SECTION 12.7, the
retiring Agent shall then appoint a successor Agent who shall serve as Payment
and Disbursement Agent until such time, if any, as the Lenders appoint a
successor Agent as provided above.
(d) RIGHTS OF THE SUCCESSOR AND RETIRING AGENTS. Upon the acceptance
of any appointment as Payment and Disbursement Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this ARTICLE XII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this Agreement.
XII.8. RELATIONS AMONG THE LENDERS. Each Lender agrees that it will
not take any legal action, nor institute any actions or proceedings, against the
Borrower hereunder with respect to any of the Obligations, without the prior
written consent of the Lenders. Without limiting the generality of the
foregoing, no Lender may accelerate or otherwise enforce its portion of the
Obligations, or unilaterally terminate its Revolving Credit Commitment except in
accordance with SECTION 11.2(a).
143
ARTICLE XIII
YIELD PROTECTION
XIII.1. TAXES.
(a) PAYMENT OF TAXES. Any and all payments by the Borrower hereunder
or under any Note or other document evidencing any Obligations shall be made, in
accordance with SECTION 4.2, free and clear of and without reduction for any and
all present or future taxes, levies, imposts, deductions, charges, withholdings,
and all stamp or documentary taxes, excise taxes, ad valorem taxes and other
taxes imposed on the value of the Property, charges or levies which arise from
the execution, delivery or registration, or from payment or performance under,
or otherwise with respect to, any of the Loan Documents or the Revolving Credit
Commitments and all other liabilities with respect thereto excluding, in the
case of each Lender, taxes imposed on or measured by net income or overall gross
receipts and capital and franchise taxes imposed on it by (i) the United States,
(ii) the Governmental Authority of the jurisdiction in which such Lender's
Applicable Lending Office is located or any political subdivision thereof or
(iii) the Governmental Authority in which such Person is organized, managed and
controlled or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges and withholdings being hereinafter referred
to as "TAXES"). If the Borrower shall be required by law to withhold or deduct
any Taxes from or in respect of any sum payable hereunder or under any such Note
or document to any Lender, (x) the sum payable to such Lender shall be increased
as may be necessary so that after making all required withholding or deductions
(including withholding or deductions applicable to additional sums payable under
this SECTION 13.1) such Lender receives an amount equal to the sum it would have
received had no such withholding or deductions been made, (y) the Borrower shall
make such withholding or deductions, and (z) the Borrower shall pay the full
amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law.
144
(b) INDEMNIFICATION. The Borrower will indemnify each Lender against,
and reimburse each Lender on demand for, the full amount of all Taxes
(including, without limitation, any Taxes imposed by any Governmental Authority
on amounts payable under this SECTION 13.1 and any additional income or
franchise taxes resulting therefrom) incurred or paid by such Lender or any of
its Affiliates and any liability (including penalties, interest, and
out-of-pocket expenses paid to third parties) arising therefrom or with respect
thereto, whether or not such Taxes were lawfully payable. A certificate as to
any additional amount payable to any Person under this SECTION 13.1 submitted by
it to the Borrower shall, absent manifest error, be final, conclusive and
binding upon all parties hereto. Each Lender agrees, within a reasonable time
after receiving a written request from the Borrower, to provide the Borrower and
the Payment and Disbursement Agent with such certificates as are reasonably
required, and take such other actions as are reasonably necessary to claim such
exemptions as such Lender may be entitled to claim in respect of all or a
portion of any Taxes which are otherwise required to be paid or deducted or
withheld pursuant to this SECTION 13.1 in respect of any payments under this
Agreement or under the Notes.
(c) RECEIPTS. Within thirty (30) days after the date of any payment
of Taxes by the Borrower, the Borrower will furnish to the Payment and
Disbursement Agent, at its address referred to in SECTION 15.8, the original or
a certified copy of a receipt evidencing payment thereof.
(d) FOREIGN BANK CERTIFICATIONS. (i) Each Lender that is not created
or organized under the laws of the United States or a political subdivision
thereof shall deliver to the Borrower and the Payment and Disbursement Agent on
the Closing Date or the date on which such Lender becomes a Lender pursuant to
SECTION 15.1 hereof a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender to the effect that such Lender is
eligible to receive payments hereunder and under the
145
Notes without deduction or withholding of United States federal income tax (I)
under the provisions of an applicable tax treaty concluded by the United States
(in which case the certificate shall be accompanied by two duly completed copies
of IRS Form 1001 (or any successor or substitute form or forms)) or (II) under
Sections 1442(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to the Borrower and
the Payment and Disbursement Agent from time to time a true and accurate
certificate executed in duplicate by a duly authorized officer of such Lender
before or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Borrower and the
Payment and Disbursement Agent pursuant to this SECTION 13.1(d). Each
certificate required to be delivered pursuant to this SECTION 13.1(d)(ii) shall
certify as to one of the following:
(A) that such Lender can continue to receive payments hereunder and
under the Notes without deduction or withholding of United States federal
income tax;
(B) that such Lender cannot continue to receive payments hereunder
and under the Notes without deduction or withholding of United States
federal income tax as specified therein but does not require additional
payments pursuant to SECTION 13.1(a) because it is entitled to recover the
full amount of any such deduction or withholding from a source other than
the Borrower; or
(C) that such Lender is no longer capable of receiving payments
hereunder and under the Notes without deduction or withholding of United
146
States federal income tax as specified therein and that it is not capable
of recovering the full amount of the same from a source other than the
Borrower.
Each Lender agrees to deliver to the Borrower and the Payment and Disbursement
Agent further duly completed copies of the above-mentioned IRS forms on or
before the earlier of (x) the date that any such form expires or becomes
obsolete or otherwise is required to be resubmitted as a condition to obtaining
an exemption from withholding from United States federal income tax and (y)
fifteen (15) days after the occurrence of any event requiring a change in the
most recent form previously delivered by such Lender to the Borrower and Payment
and Disbursement Agent, unless any change in treaty, law, regulation, or
official interpretation thereof which would render such form inapplicable or
which would prevent the Lender from duly completing and delivering such form has
occurred prior to the date on which any such delivery would otherwise be
required and the Lender promptly advises the Borrower that it is not capable of
receiving payments hereunder and under the Notes without any deduction or
withholding of United States federal income tax.
XIII.2. INCREASED CAPITAL. If after the date hereof any Lender
determines that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender or banks or financial institutions generally (whether or not having the
force of law), compliance with which affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and (ii) the amount of such capital is increased by or
based upon (A) the making or maintenance by any Lender of its Loans, any
Lender's participation in or obligation to participate in the Loans, Letters of
Credit or other advances made hereunder or the existence of any
147
Lender's obligation to make Loans or (B) the issuance or maintenance by any
Lender of, or the existence of any Lender's obligation to issue, Letters of
Credit, then, in any such case, upon written demand by such Lender (with a copy
of such demand to the Payment and Disbursement Agent), the Borrower shall
immediately pay to the Payment and Disbursement Agent for the account of such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation therefor. Such demand
shall be accompanied by a statement as to the amount of such compensation and
include a brief summary of the basis for such demand. Such statement shall be
conclusive and binding for all purposes, absent manifest error.
XIII.3. CHANGES; LEGAL RESTRICTIONS. If after the date hereof any
Lender determines that the adoption or implementation of or any change in or in
the interpretation or administration of any law or regulation or any guideline
or request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) does or will subject a Lender (or its Applicable Lending Office
or Eurodollar Affiliate) to charges (other than taxes) of any kind which
such Lender reasonably determines to be applicable to the Revolving Credit
Commitments of the Lenders to make Eurodollar Rate Loans or IBOR Rate Loans
or issue and/or participate in Letters of Credit or change the basis of
taxation of payments to that Lender of principal, fees, interest, or any
other amount payable hereunder with respect to Eurodollar Rate Loans, IBOR
Rate Loans, Letters of Credit or Money Market Loans; or
(b) does or will impose, modify, or hold applicable, in the
determination of a Lender, any
148
reserve (other than reserves taken into account in calculating the
Eurodollar Rate), special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other
liabilities (including those pertaining to Letters of Credit) in or for the
account of, advances or loans by, commitments made, or other credit
extended by, or any other acquisition of funds by, a Lender or any
Applicable Lending Office or Eurodollar Affiliate of that Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Revolving Credit Commitment or
issuing or participating in the Letters of Credit or to reduce any amount
receivable thereunder; then, in any such case, upon written demand by such
Lender (with a copy of such demand to the Payment and Disbursement Agent), the
Borrower shall immediately pay to the Payment and Disbursement Agent for the
account of such Lender, from time to time as specified by such Lender, such
amount or amounts as may be necessary to compensate such Lender or its
Eurodollar Affiliate for any such additional cost incurred or reduced amount
received. Such demand shall be accompanied by a statement as to the amount of
such compensation and include a brief summary of the basis for such demand. Such
statement shall be conclusive and binding for all purposes, absent manifest
error.
XIII.4. REPLACEMENT OF CERTAIN LENDERS. In the event a Lender (a
"DESIGNEE LENDER") shall have requested additional compensation from the
Borrower under SECTION 13.2 or under SECTION 13.3, the Borrower may, at its sole
election, (a) make written demand on such Designee Lender (with a copy to the
Payment and Disbursement Agent) for the Designee Lender to assign, and such
Designee Lender shall assign pursuant to one or more duly executed Assignment
and Acceptances to one or more Eligible Assignees which the Borrower or the
Payment and Disbursement Agent shall have identified for such purpose, all of
such Designee Lender's
149
right and obligations under this Agreement and the Notes (including, without
limitation, its Revolving Credit Commitment, all Loans owing to it, and all of
its participation interests in Letters of Credit) in accordance with SECTION
15.1 or (b) repay all Loans owing to the Designee Lender together with interest
accrued with respect thereto to the date of such repayment and all fees and
other charges accrued or payable under the terms of this Agreement for the
benefit of the Designee Lender to the date of such repayment and remit to the
Payment and Disbursement Agent to be held as cash collateral an amount equal to
the participation interest of the Designee Lender in Letters of Credit. Any such
repayment and remittance shall be for the sole credit of the Designee Lender and
not for any other Lender. Upon delivery of such repayment and remittance in
immediately available funds as aforesaid, the Designee Lender shall cease to be
a Lender under this Agreement. All expenses incurred by the Payment and
Disbursement Agent in connection with the foregoing shall be for the sole
account of the Borrower and shall constitute Obligations hereunder. In no event
shall Borrower's election under the provisions of this SECTION 13.4 affect its
obligation to pay the additional compensation required under either SECTION 13.2
or SECTION 13.3.
ARTICLE XIV
INTENTIONALLY OMITTED
ARTICLE XV
MISCELLANEOUS
XV.1. ASSIGNMENTS AND PARTICIPATIONS.
(a) ASSIGNMENTS. No assignments or participations of any Lender's
rights or obligations under this Agreement shall be made except in accordance
with this SECTION 15.1. Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and
150
obligations under this Agreement (including all of its rights and obligations
with respect to the Loans and the Letters of Credit) in accordance with the
provisions of this SECTION 15.1.
(b) LIMITATIONS ON ASSIGNMENTS. For so long as no Event of Default
has occurred and is continuing, each assignment shall be subject to the
following conditions: (i) each assignment shall be of a constant, and not a
varying, ratable percentage of all of the assigning Lender's rights and
obligations under this Agreement and, in the case of a partial assignment, shall
be in a minimum principal amount of $15,000,000, (ii) each such assignment shall
be to an Eligible Assignee, (iii) the parties to each such assignment shall
execute and deliver to the Payment and Disbursement Agent, for its acceptance
(in accordance with Section 15.1(d)) and recording in the Register, an
Assignment and Acceptance, (iv) each Arranger shall maintain a minimum Revolving
Credit Commitment in an amount greater than the Revolving Credit Commitment of
any other Lender (other than the other Arrangers) or an amount sufficient to
maintain such Arranger's Pro Rata Share as of the Closing Date, whichever is
less, and (v) each Co-Agent shall maintain a minimum Revolving Credit Commitment
in an amount greater than the Revolving Credit Commitment of any other Lender
(other than the other Co-Agents and the Arrangers) or an amount sufficient to
maintain such Co-Agent's Pro Rata Share as of the Closing Date, whichever is
less. Upon the occurrence and continuance of an Event of Default, none of the
foregoing restrictions on assignments shall apply. Upon such execution,
delivery, acceptance (in accordance with Section 15.1(d)) and recording in the
Register, from and after the effective date specified in each Assignment and
Acceptance and agreed to by the Payment and Disbursement Agent, (A) the assignee
thereunder shall, in addition to any rights and obligations hereunder held by it
immediately prior to such effective date, if any, have the rights and
obligations hereunder that have been assigned to it pursuant to such Assignment
and Acceptance and shall, to the fullest extent permitted by law, have the same
rights and benefits hereunder as if it were an
151
original Lender hereunder, (B) the assigning Lender shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such assigning Lender's
rights and obligations under this Agreement, the assigning Lender shall cease to
be a party hereto) and (C) the Borrower shall execute and deliver to the
assignee thereunder a Note evidencing its obligations to such assignee with
respect to the Loans.
(c) THE REGISTER. The Payment and Disbursement Agent shall maintain
at its address referred to in SECTION 15.8 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders, the Revolving Credit
Commitment of, and the principal amount of the Loans under the Revolving Credit
Commitments owing to, each Lender from time to time and whether such Lender is
an original Lender or the assignee of another Lender pursuant to an Assignment
and Acceptance. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower and each of its
Subsidiaries, the Payment and Disbursement Agent and the other Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) FEE. Upon its receipt of an Assignment and Acceptance executed by
the assigning Lender and an Eligible Assignee and a processing and recordation
fee of $3,500 (payable by the assignee to the Payment and Disbursement Agent),
the Payment and Disbursement Agent shall, if such Assignment and Acceptance has
been completed and is in compliance with this Agreement and in substantially the
form of EXHIBIT A hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein
152
in the Register and (iii) give prompt notice thereof to the Borrower and the
other Lenders.
(e) PARTICIPATIONS. Each Lender may sell participations to one or
more other entities in or to all or a portion of its rights and obligations
under and in respect of any and all facilities under this Agreement (including,
without limitation, all or a portion of any or all of its Revolving Credit
Commitment hereunder and the Committed Loans owing to it and its undivided
interest in the Letters of Credit); PROVIDED, HOWEVER, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Revolving
Credit Commitment hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the Borrower, the Payment and Disbursement Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, (iv)
each participation shall be in a minimum amount of $10,000,000, and (v) such
participant's rights to agree or to restrict such Lender's ability to agree to
the modification, waiver or release of any of the terms of the Loan Documents,
to consent to any action or failure to act by any party to any of the Loan
Documents or any of their respective Affiliates, or to exercise or refrain from
exercising any powers or rights which any Lender may have under or in respect of
the Loan Documents, shall be limited to the right to consent to (A) increase in
the Revolving Credit Commitment of the Lender from whom such participant
purchased a participation, (B) reduction of the principal of, or rate or amount
of interest on the Loans subject to such participation (other than by the
payment or prepayment thereof), (C) postponement of any date fixed for any
payment of principal of, or interest on, the Loan(s) subject to such
participation and (D) release of any guarantor of the Obligations.
Participations by a Person in a Money Market Loan of any Lender shall not be
deemed "participations" for purposes of this SECTION 15.1(e) and shall not be
subject to the restrictions on "participations" contained herein.
153
(f) Any Lender (each, a "DESIGNATING LENDER") may at any time
designate one Designated Bank to fund Money Market Loans on behalf of such
Designating Lender subject to the terms of this SECTION 15.1(f) and the
provisions in SECTION 15.1 (b) AND (e) shall not apply to such designation. No
Lender may designate more than one (1) Designated Bank. The parties to each such
designation shall execute and deliver to the Payment and Disbursement Agent for
its acceptance a Designation Agreement. Upon such receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Bank, the Payment and Disbursement Agent
will accept such Designation Agreement and will give prompt notice thereof to
the Borrower, whereupon, (i) the Borrower shall execute and deliver to the
Designating Bank a Designated Bank Note payable to the order of the Designated
Bank, (ii) from and after the effective date specified in the Designation
Agreement, the Designated Bank shall become a party to this Agreement with a
right to make Money Market Loans on behalf of its Designating Lender pursuant to
Section 2.2 after the Borrower has accepted a Money Market Loan (or portion
thereof) of the Designating Lender, and (iii) the Designated Bank shall not be
required to make payments with respect to any obligations in this Agreement
except to the extent of excess cash flow of such Designated Bank which is not
otherwise required to repay obligations of such Designated Bank which are then
due and payable; provided, however, that regardless of such designation and
assumption by the Designated Bank, the Designating Lender shall be and remain
obligated to the Borrower, the Payment and Disbursement Agent, the Arrangers,
the Co-Agents and the other Lenders for each and every of the obligations of the
Designating Lender and its related Designated Bank with respect to this
Agreement, including, without limitation, any indemnification obligations under
SECTION 12.5 hereof and any sums otherwise payable to the Borrower by the
Designated Bank. Each Designating Lender shall serve as the administrative agent
of the Designated Bank and shall on behalf of, and to the exclusion of, the
Designated Bank: (i) receive any and all payments made for the benefit of
154
the Designated Bank and (ii) give and receive all communications and notices and
take all actions hereunder, including, without limitation, votes, approvals,
waivers, consents and amendments under or relating to this Agreement and the
other Loan Documents. Any such notice, communication, vote, approval, waiver,
consent or amendment shall be signed by the Designating Lender as administrative
agent for the Designated Bank and shall not be signed by the Designated Bank on
its own behalf but shall be binding on the Designated Bank to the same extent as
if actually signed by the Designated Bank. The Borrower, the Payment and
Disbursement Agent, the Arrangers, Co-Agents and Lenders may rely thereon
without any requirement that the Designated Bank sign or acknowledge the same.
No Designated Bank may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than assignments to the
Designating Lender which originally designated such Designated Bank or otherwise
in accordance with the provisions of SECTION 15.1 (b) AND (e).
(g) INFORMATION REGARDING THE BORROWER. Any Lender may, in connection
with any assignment or participation or proposed assignment or participation
pursuant to this SECTION 15.1, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the Borrower or
its Subsidiaries furnished to such Lender by the Payment and Disbursement Agent
or by or on behalf of the Borrower; PROVIDED that, prior to any such disclosure,
such assignee or participant, or proposed assignee or participant, shall agree,
in writing, to preserve in accordance with SECTION 15.20 the confidentiality of
any confidential information described therein.
(h) SPC ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, any Lender (a "GRANTING LENDER") may grant to a special
purpose funding vehicle (a "SPC"), identified in writing from time to time by
the Granting Lender to the Payment and Disbursement Agent, the option to
purchase from the Granting Lender all or any part of any Loan that such Granting
Lender would otherwise be obligated to make as provided herein, PROVIDED that
(i)
155
nothing herein shall constitute a commitment to purchase any Loan by any SPC,
and (ii) if a SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Lender shall be obligated to fund
such Loan pursuant to the terms hereof. The funding of a Loan by a SPC hereunder
shall utilize the Revolving Credit Commitment of the Granting Lender to the same
extent, and as if, such Loan were funded by such Granting Lender. Each party
hereby agrees that no SPC shall be liable for any indemnity or payment under
this Agreement for which a Lender would otherwise be liable, for so long as, and
to the extent, the Granting Lender provides such indemnity or makes such
payment. In furtherance of the foregoing, each party hereto hereby agrees that,
prior to the date that is one year and one day after the payment in full of all
outstanding Loans of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States. Notwithstanding anything to the contrary
contained in this Agreement, the Granting Lender may disclose to a SPC and any
SPC may disclose to any Rating Agency or provider of any surety or guarantee to
such SPC any information relating to the SPC's funding of Loans, all on a
confidential basis. This clause (h) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Loans are being funded
by a SPC at the time of such amendment.
(i) PAYMENT TO PARTICIPANTS. Anything in this Agreement to the
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties required hereby as if no such participation had been
sold.
(j) LENDERS' CREATION OF SECURITY INTERESTS. Notwithstanding any
other provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this
156
Agreement (including, without limitation, Obligations owing to it and any Note
held by it) in favor of any Federal Reserve bank in accordance with Regulation A
of the Federal Reserve Board.
XV.2. EXPENSES.
(a) GENERALLY. The Borrower agrees upon demand to pay or reimburse
the Payment and Disbursement Agent and each Arranger for all of their respective
reasonable external audit and investigation expenses, and for the fees, expenses
and disbursements of Skadden, Arps, Slate, Meagher & Flom LLP (but not of other
legal counsel) and for all other out-of-pocket costs and expenses of every type
and nature incurred by the Payment and Disbursement Agent or each Arranger in
connection with (i) the audit and investigation of the Consolidated Businesses,
the Projects and other Properties of the Consolidated Businesses in connection
with the preparation, negotiation, and execution of the Loan Documents; (ii) the
preparation, negotiation, execution and interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any of the conditions set forth in ARTICLE VI), the Loan Documents, and the
making of the Loans hereunder; (iii) the ongoing administration of this
Agreement and the Loans, including consultation with attorneys in connection
therewith and with respect to the Payment and Disbursement Agent's rights and
responsibilities under this Agreement and the other Loan Documents; (iv) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (v) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, any
Project, the Borrower, any of its Subsidiaries, this Agreement or any of the
other Loan Documents; (vi) the response to, and preparation for, any subpoena or
request for document production with which the Payment and Disbursement Agent or
any other Agents or any other Lender is served or deposition or other proceeding
in which any Lender is called to testify, in each case, relating in any way to
the Obligations, a Project, the Borrower,
157
any of the Consolidated Businesses, this Agreement or any of the other Loan
Documents; and (vii) any amendments, consents, waivers, assignments,
restatements, or supplements to any of the Loan Documents and the preparation,
negotiation, and execution of the same.
(b) AFTER DEFAULT. The Borrower further agrees to pay or reimburse
the Payment and Disbursement Agent, the Arrangers, the Co-Agents and each of the
Lenders upon demand for all out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of internal
counsel and costs of settlement) incurred by such entity after the occurrence of
an Event of Default (i) in enforcing any Loan Document or Obligation or any
security therefor or exercising or enforcing any other right or remedy available
by reason of such Event of Default; (ii) in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or in any insolvency or bankruptcy proceeding; (iii) in
commencing, defending or intervening in any litigation or in filing a petition,
complaint, answer, motion or other pleadings in any legal proceeding relating to
the Obligations, a Project, any of the Consolidated Businesses and related to or
arising out of the transactions contemplated hereby or by any of the other Loan
Documents; and (iv) in taking any other action in or with respect to any suit or
proceeding (bankruptcy or otherwise) described in clauses (i) through (iii)
above.
XV.3. INDEMNITY. The Borrower further agrees (a) to defend,
protect, indemnify, and hold harmless the Payment and Disbursement Agent, the
Arrangers, the Co-Agents and each and all of the other Lenders and each of their
respective officers, directors, employees, affiliates, attorneys and agents
(including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
ARTICLE VI) (collectively, the "INDEMNITEES") from and against any and all
liabilities, obligations, losses (other than loss of profits), damages,
158
penalties, actions, judgments, suits, claims, costs, reasonable expenses and
disbursements of any kind or nature whatsoever (excluding any taxes and
including, without limitation, the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of (i) this Agreement or the other Loan
Documents, or any act, event or transaction related or attendant thereto, the
making of the Loans and the issuance of and participation in Letters of Credit
hereunder, the management of such Loans or Letters of Credit, the use or
intended use of the proceeds of the Loans or Letters of Credit hereunder, or any
of the other transactions contemplated by the Loan Documents, or (ii) any
Liabilities and Costs relating to violation of any Environmental, Health or
Safety Requirements of Law, the past, present or future operations of the
Borrower, any of its Subsidiaries or any of their respective predecessors in
interest, or, the past, present or future environmental, health or safety
condition of any respective Property of the Borrower or any of its Subsidiaries,
the presence of asbestos-containing materials at any respective Property of the
Borrower or any of its Subsidiaries, or the Release or threatened Release of any
Contaminant into the environment (collectively, the "INDEMNIFIED MATTERS");
PROVIDED, HOWEVER, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused by or resulting from the
willful misconduct or gross negligence of such Indemnitee, as determined by a
court of competent jurisdiction in a non-appealable final judgment; and (b) not
to assert any claim against any of the Indemnitees, on any theory of liability,
for consequential or punitive damages arising out of, or in any way in
connection with, the Revolving Credit Commitments, the Revolving Credit
Obligations, or the other matters governed by this Agreement and the other Loan
Documents. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable
159
because it is violative of any law or public policy, the Borrower shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified Matters
incurred by the Indemnitees.
XV.4. CHANGE IN ACCOUNTING PRINCIPLES. If any change in the
accounting principles used in the preparation of the most recent financial
statements referred to in SECTIONS 8.1 or 8.2 are hereafter required or
permitted by the rules, regulations, pronouncements and opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by any General Partner or the Borrower, as applicable, with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the covenants,
standards or terms found in ARTICLE X, the parties hereto agree to enter into
negotiations in order to amend such provisions so as to equitably reflect such
changes with the desired result that the criteria for evaluating compliance with
such covenants, standards and terms by the Borrower shall be the same after such
changes as if such changes had not been made; PROVIDED, HOWEVER, no change in
GAAP that would affect the method of calculation of any of the covenants,
standards or terms shall be given effect in such calculations until such
provisions are amended, in a manner satisfactory to the Payment and Disbursement
Agent and the Borrower, to so reflect such change in accounting principles.
XV.5. SETOFF. In addition to any Liens granted under the Loan
Documents and any rights now or hereafter granted under applicable law, upon the
occurrence and during the continuance of any Event of Default, each Lender and
any Affiliate of any Lender is hereby authorized by the Borrower at any time or
from time to time, without notice to any Person (any such notice being hereby
expressly waived) to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of
160
deposit, whether matured or unmatured (but not including trust accounts)) and
any other Indebtedness at any time held or owing by such Lender or any of its
Affiliates to or for the credit or the account of the Borrower against and on
account of the Obligations of the Borrower to such Lender or any of its
Affiliates, including, but not limited to, all Loans and Letters of Credit and
all claims of any nature or description arising out of or in connection with
this Agreement, irrespective of whether or not (i) such Lender shall have made
any demand hereunder or (ii) the Payment and Disbursement Agent, at the request
or with the consent of the Requisite Lenders, shall have declared the principal
of and interest on the Loans and other amounts due hereunder to be due and
payable as permitted by ARTICLE XI and even though such Obligations may be
contingent or unmatured. Each Lender agrees that it shall not, without the
express consent of the Requisite Lenders, and that it shall, to the extent it is
lawfully entitled to do so, upon the request of the Requisite Lenders, exercise
its setoff rights hereunder against any accounts of the Borrower now or
hereafter maintained with such Lender or any Affiliate.
XV.6. RATABLE SHARING. The Lenders agree among themselves that (i)
with respect to all amounts received by them which are applicable to the payment
of the Obligations (excluding the repayment of Money Market Loans to a
particular Money Market Lender and the fees described in SECTIONS 3.1(g),
5.2(f), and 5.3 and ARTICLE XIII) equitable adjustment will be made so that, in
effect, all such amounts will be shared among them ratably in accordance with
their Pro Rata Shares, whether received by voluntary payment, by the exercise of
the right of setoff or banker's lien, by counterclaim or cross-action or by the
enforcement of any or all of the Obligations (excluding the repayment of Money
Market Loans to a particular Money Market Lender and the fees described in
SECTIONS 3.1(g), 5.2(f), and 5.3 and ARTICLE XIII), (ii) if any of them shall by
voluntary payment or by the exercise of any right of counterclaim, setoff,
banker's lien or otherwise, receive payment of a proportion of the aggregate
amount of the Obligations held by it, which is greater than the
161
amount which such Lender is entitled to receive hereunder, the Lender receiving
such excess payment shall purchase, without recourse or warranty, an undivided
interest and participation (which it shall be deemed to have done simultaneously
upon the receipt of such payment) in such Obligations owed to the others so that
all such recoveries with respect to such Obligations shall be applied ratably in
accordance with their Pro Rata Shares; PROVIDED, HOWEVER, that if all or part of
such excess payment received by the purchasing party is thereafter recovered
from it, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such party to the extent necessary to
adjust for such recovery, but without interest except to the extent the
purchasing party is required to pay interest in connection with such recovery.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this SECTION 15.6 may, to the fullest extent permitted by
law, exercise all its rights of payment (including, subject to SECTION 15.5, the
right of setoff) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
XV.7. AMENDMENTS AND WAIVERS.
(a) GENERAL PROVISIONS. Unless otherwise provided for or required in
this Agreement, no amendment or modification of any provision of this Agreement
or any of the other Loan Documents shall be effective without the written
agreement of the Requisite Lenders (which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion) and the Borrower; PROVIDED,
HOWEVER, that the Borrower's agreement shall not be required for any amendment
or modification of SECTIONS 12.1 through 12.8. No termination or waiver of any
provision of this Agreement or any of the other Loan Documents, or consent to
any departure by the Borrower therefrom, shall be effective without the written
concurrence of the Requisite Lenders, which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion.
162
All amendments, waivers and consents not specifically reserved to the Payment
and Disbursement Agent, the Arrangers, the other Co-Agents or the other Lenders
in SECTION 15.7(b), 15.7(c), and in other provisions of this Agreement shall
require only the approval of the Requisite Lenders. Any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which it was given. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances. Notwithstanding the foregoing, no amendment, waiver or
consent shall, unless in writing and signed by the Designating Lender on behalf
of its Designated Bank affected thereby, (a) subject such Designated Bank to any
additional obligations, (b) reduce the principal of, interest on, or other
amounts due with respect to, the Designated Bank Note made payable to such
Designated Bank, or (c) postpone any date fixed for any payment of principal of,
or interest on, or other amounts due with respect to the Designated Bank Note
made payable to the Designated Bank.
(b) AMENDMENTS, CONSENTS AND WAIVERS BY AFFECTED LENDERS. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in SECTIONS 6.1 and 6.2
(except with respect to a condition based upon another provision of this
Agreement, the waiver of which requires only the concurrence of the
Requisite Lenders),
(ii) increase in the amount of such Lender's Revolving Credit Commitment,
(iii) reduction of the principal of, rate or amount of interest on the
Loans, the Reimbursement Obligations,
163
or any fees or other amounts payable to such Lender (other than by the
payment or prepayment thereof), and
(iv) postponement or extension of any date (other than the Revolving Credit
Termination Date postponement or extension of which is governed by SECTION
15.7(c)(i)) fixed for any payment of principal of, or interest on, the
Loans, the Reimbursement Obligations or any fees or other amounts payable
to such Lender (except with respect to any modifications of the application
provisions relating to prepayments of Loans and other Obligations which are
governed by SECTION 4.2(b)).
(c) AMENDMENTS, CONSENTS AND WAIVERS BY ALL LENDERS. Any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement of the Revolving Credit Termination Date, or increase in
the Maximum Revolving Credit Amount to any amount in excess of
$1,250,000,000,
(ii) change in the definition of Requisite Lenders or in the aggregate Pro
Rata Share of the Lenders which shall be required for the Lenders or any of
them to take action hereunder or under the other Loan Documents,
(iii) amendment of SECTION 15.6 or this SECTION 15.7,
(iv) assignment of any right or interest in or under this Agreement or any
of the other Loan Documents by the Borrower, and
(v) waiver of any Event of Default described in SECTIONS 11.1(a), (f), (g),
(i), (n), and (o).
(d) PAYMENT AND DISBURSEMENT AGENT AUTHORITY. The Payment and Disbursement
Agent may, but shall have no obligation to, with the written concurrence of any
Lender, execute amendments, modifications, waivers or consents on
164
behalf of that Lender. Notwithstanding anything to the contrary contained in
this SECTION 15.7, no amendment, modification, waiver or consent shall affect
the rights or duties of the Payment and Disbursement Agent under this Agreement
and the other Loan Documents, unless made in writing and signed by the Payment
and Disbursement Agent in addition to the Lenders required above to take such
action. Notwithstanding anything herein to the contrary, in the event that the
Borrower shall have requested, in writing, that any Lender agree to an
amendment, modification, waiver or consent with respect to any particular
provision or provisions of this Agreement or the other Loan Documents, and such
Lender shall have failed to state, in writing, that it either agrees or
disagrees (in full or in part) with all such requests (in the case of its
statement of agreement, subject to satisfactory documentation and such other
conditions it may specify) within thirty (30) days after such Lender receives
such request, then such Lender hereby irrevocably authorizes the Payment and
Disbursement Agent to agree or disagree, in full or in part, and in the Payment
and Disbursement Agent's sole discretion, to such requests on behalf of such
Lender as such Lenders' attorney-in-fact and to execute and deliver any writing
approved by the Payment and Disbursement Agent which evidences such agreement as
such Lender's duly authorized agent for such purposes.
XV.8. NOTICES. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, sent by facsimile transmission or by
courier service and shall be deemed to have been given when delivered in person
or by courier service, or upon receipt of a facsimile transmission. Notices to
the Payment and Disbursement Agent pursuant to ARTICLES II, IV or XII shall not
be effective until received by the Payment and Disbursement Agent. For the
purposes hereof, the addresses of the parties hereto (until notice of a change
thereof is delivered as provided in this SECTION 15.8) shall be as set forth
below each party's name on the signature pages hereof or the signature page of
any
165
applicable Assignment and Acceptance, or, as to each party, at such other
address as may be designated by such party in a written notice to all of the
other parties to this Agreement.
XV.9. SURVIVAL OF WARRANTIES AND AGREEMENTS. All representations
and warranties made herein and all obligations of the Borrower in respect of
taxes, indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans, the issuance and discharge of Letters of Credit
hereunder and the termination of this Agreement and shall not be limited in any
way by the passage of time or occurrence of any event and shall expressly cover
time periods when the Payment and Disbursement Agent, any of the other Agents or
any of the other Lenders may have come into possession or control of any
Property of the Borrower or any of its Subsidiaries.
XV.10. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of the Payment and Disbursement Agent, any other
Lender or any other Agent in the exercise of any power, right or privilege under
any of the Loan Documents shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under the Loan Documents are cumulative to and not
exclusive of any rights or remedies otherwise available.
XV.11. MARSHALLING; PAYMENTS SET ASIDE. None of the Payment and
Disbursement Agent, any other Lender or any other Co-Agent shall be under any
obligation to marshall any assets in favor of the Borrower or any other party or
against or in payment of any or all of the Obligations. To the extent that the
Borrower makes a payment or payments to the Payment and Disbursement Agent, any
Agent or any other Lender or any such Person exercises its rights of setoff,
166
and such payment or payments or the proceeds of such enforcement or setoff or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party, then to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, right and remedies therefor,
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or setoff had not occurred.
XV.12. SEVERABILITY. In case any provision in or obligation under
this Agreement or the other Loan Documents shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
XV.13. HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement or be given any substantive effect.
XV.14. GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
XV.15. LIMITATION OF LIABILITY. No claim may be made by any Lender,
any Co-Agent, any Arranger, the Payment and Disbursement Agent, or any other
Person against any Lender (acting in any capacity hereunder) or the Affiliates,
directors, officers, employees, attorneys or agents of any of them for any
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement, or any act, omission or event occurring in
connection therewith; and each Lender, each Co-Agent, each Arranger and the
167
Payment and Disbursement Agent hereby waives, releases and agrees not to sue
upon any such claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
XV.16. SUCCESSORS AND ASSIGNS. This Agreement and the other Loan
Documents shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and permitted assigns of the Lenders. The rights hereunder of the
Borrower, or any interest therein, may not be assigned without the prior written
consent of all Lenders.
XV.17. CERTAIN CONSENTS AND WAIVERS OF THE BORROWER.
(a) PERSONAL JURISDICTION. (i) EACH OF THE LENDERS AND THE BORROWER
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT SITTING
IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS OF MATTERS
HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT
OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT
OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE BORROWER
IRREVOCABLY DESIGNATES AND APPOINTS CT CORPORATION SYSTEM, 1633 BROADWAY, NEW
YORK, NEW YORK 10019, AS ITS AGENT (THE "PROCESS AGENT") FOR SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE
LENDERS AND THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER
168
MANNER PROVIDED BY LAW. THE BORROWER WAIVES IN ALL DISPUTES ANY OBJECTION THAT
IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE PAYMENT AND DISBURSEMENT AGENT
SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT
IN ANY LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE PAYMENT AND DISBURSEMENT
AGENT AND THE OTHER LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED
IN FAVOR OF THE PAYMENT AND DISBURSEMENT AGENT OR ANY OTHER LENDER. THE BORROWER
AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING
BROUGHT BY THE PAYMENT AND DISBURSEMENT AGENT, ANY LENDER OR ANY OTHER AGENT TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE PAYMENT AND DISBURSEMENT
AGENT, ANY LENDER OR ANY SUCH OTHER AGENT. THE BORROWER WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE PAYMENT AND
DISBURSEMENT AGENT, ANY OTHER AGENT OR ANY LENDER MAY COMMENCE A PROCEEDING
DESCRIBED IN THIS SECTION.
(b) SERVICE OF PROCESS. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT OR THE BORROWER'S NOTICE ADDRESS SPECIFIED
BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE PAYMENT AND DISBURSEMENT AGENT
OR THE OTHER LENDERS TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF
ANY OTHER JURISDICTION.
169
(C) WAIVER OF JURY TRIAL. EACH OF THE PAYMENT AND DISBURSEMENT AGENT
AND THE OTHER LENDERS AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
XV.18. COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES. This Agreement
and any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
each Lender on the Closing Date. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one with
the other, but to the extent that the terms and conditions of this Agreement are
actually inconsistent with the terms and conditions of any other Loan Document,
this Agreement shall govern. In the event the Lenders enter into any co-lender
agreement with the Arrangers pertaining to the Lenders' respective rights with
respect to voting on any matter referenced in this Agreement or the other Loan
Documents on which the Lenders have a right to vote under the terms of this
Agreement or the other Loan Documents, such co-lender agreement shall be
construed to the extent reasonable to be consistent with this Agreement and the
other Loan Documents, but to the extent that the terms and conditions of such
co-lender agreement are actually inconsistent with the terms and conditions of
this Agreement and/or the other Loan Documents, such co-lender agreement shall
govern. Notwithstanding the foregoing, any rights reserved to the Payment and
Disbursement Agent or the Arrangers or the Co-Agents under this Agreement and
the other Loan Documents shall not be varied or in any way affected by such
co-lender agreement and the rights and obligation of the Borrower under the Loan
Documents will not be varied.
XV.19. LIMITATION ON AGREEMENTS. All agreements between the
Borrower, the Payment and Disbursement Agent, each Arranger, each Co-Agent and
each Lender in the Loan
170
Documents are hereby expressly limited so that in no event shall any of the
Loans or other amounts payable by the Borrower under any of the Loan Documents
be directly or indirectly secured (within the meaning of Regulation U) by Margin
Stock.
XV.20. CONFIDENTIALITY. Subject to SECTION 15.1(g), the Lenders
shall hold all nonpublic information obtained pursuant to the requirements of
this Agreement, and identified as such by the Borrower, in accordance with such
Lender's customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices (provided that
such Lender may share such information with its Affiliates in accordance with
such Lender's customary procedures for handling confidential information of this
nature and provided further that such Affiliate shall hold such information
confidential) and in any event the Lenders may make disclosure reasonably
required by a bona fide offeree, transferee or participant in connection with
the contemplated transfer or participation or as required or requested by any
Governmental Authority or representative thereof or pursuant to legal process
and shall require any such offeree, transferee or participant to agree (and
require any of its offerees, transferees or participants to agree) to comply
with this SECTION 15.20. In no event shall any Lender be obligated or required
to return any materials furnished by the Borrower; PROVIDED, HOWEVER, each
offeree shall be required to agree that if it does not become a transferee or
participant it shall return all materials furnished to it by the Borrower in
connection with this Agreement. Any and all confidentiality agreements entered
into between any Lender and the Borrower shall survive the execution of this
Agreement.
XV.21. DISCLAIMERS. The Payment and Disbursement Agent, the
Arrangers, the other Co-Agents and the other Lenders shall not be liable to any
contractor, subcontractor, supplier, laborer, architect, engineer, tenant or
other party for services performed or materials supplied in connection with any
work performed on the
171
Projects, including any TI Work. The Payment and Disbursement Agent, the
Arrangers, the other Co-Agents and the other Lenders shall not be liable for any
debts or claims accruing in favor of any such parties against the Borrower or
others or against any of the Projects. The Borrower is not and shall not be an
agent of any of the Payment and Disbursement Agent, the Arrangers, the other
Co-Agents or the other Lenders for any purposes and none of the Lenders, the
Co-Agents, the Arrangers, or the Payment and Disbursement Agent shall be deemed
partners or joint venturers with Borrower or any of its Affiliates. None of the
Payment and Disbursement Agent, the Arrangers, the other Co-Agents or the other
Lenders shall be deemed to be in privity of contract with any contractor or
provider of services to any Project, nor shall any payment of funds directly to
a contractor or subcontractor or provider of services be deemed to create any
third party beneficiary status or recognition of same by any of the Payment and
Disbursement Agent, the Arrangers, the other Co-Agents or the other Lenders and
the Borrower agrees to hold the Payment and Disbursement Agent, the Arrangers,
the Co-Arrangers, the other Co-Agents and the other Lenders harmless from any of
the damages and expenses resulting from such a construction of the relationship
of the parties or any assertion thereof.
XV.22. NO BANKRUPTCY PROCEEDINGS. Each of the Borrower, the
Arrangers, the Co-Agents and the other Lenders hereby agrees that it will not
institute against any Designated Bank or join any other Person in instituting
against any Designated Bank any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, until the later to occur of (i) one year and one day after the
payment in full of the latest maturing commercial paper note issued by such
Designated Bank and (ii) the Revolving Credit Termination Date.
XV.23. RETAINED PROPERTIES. Notwithstanding anything contained in
this Agreement to the contrary, the Company or any Subsidiary thereof will
retain direct or
172
indirect ownership of the Retained Properties, or, if the Company shall elect to
sell or otherwise transfer any of the Retained Properties, it shall retain any
and all proceeds received in connection therewith, and will not contribute any
portion thereof to the Borrower or any other entity or distribute any portion
thereof to any of its shareholders.
XV.24. ENTIRE AGREEMENT. This Agreement, taken together with all of
the other Loan Documents, embodies the entire agreement and understanding among
the parties hereto and supersedes all prior agreements and understandings,
written and oral, relating to the subject matter hereof.
173
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWER: SIMON PROPERTY GROUP, L.P.,
a Delaware limited partnership
By: SIMON PROPERTY GROUP, INC.,
as Managing General Partner
By: /s/ David Simon
--------------------
David Simon
Chief Executive Officer
NOTICE ADDRESS:
Merchants Plaza
P.O. Box 7033
Indianapolis, Indiana 46207
Attn: Mr. David Simon
Telecopy: (317) 263-7037
with a copy to:
Simon Property Group, L.P.
Merchants Plaza
P.O. Box 7033
Indianapolis, Indiana 46207
Attn: General Counsel
Telecopy: (317) 685-7221
PAYMENT AND DISBURSEMENT
AGENT AND LENDER: UBS AG, STAMFORD BRANCH
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
Notice Address, Domestic
Lending Office and
Eurodollar LENDING OFFICE:
UBS AG, Stamford Branch
677 Washington Boulevard
Stamford, CT 06901
Attn: Ms. Denise Conzo
Telecopy: 203-719-3888
Pro Rata Share: 6.8000%
Revolving Credit Commitment: $85,000,000
SYNDICATION AGENT
AND LENDER: JPMORGAN CHASE BANK
By: /s/ John Mix
---------------------
Name: John Mix
Title: Vice President
NOTICE ADDRESS, DOMESTIC AND EURODOLLAR
LENDING OFFICE:
JPMorgan Chase Bank
One Chase Manhattan Plaza
New York, New York 10081
Attention: Christina Colaitis
Telecopy: 212-552-5701
Reference: Simon Property Group, L.P. Loan #
FOR MONEY MARKET LOANS:
JPMorgan Chase Bank
One Chase Manhattan Plaza
New York, New York 10081
Attention: Chris Consomer
Telecopy: (212) 552-5627
Reference: Simon Property Group, L.P.
WITH COPY OF ALL NOTICES TO:
JPMorgan Chase Bank
270 Park Avenue
New York, New York 10017
Attention: John Mix
Telecopy: (212) 270-3513
Reference: Simon Property
Group, L.P. Loan #
Pro Rata Share: 7.2800%
Revolving Credit Commitment: $91,000,000
SYNDICATION AGENT
AND LENDER: BANK OF AMERICA, N. A.
By: /s/ Renee Sampson
---------------------
Name: Renee Sampson
Title: Vice President
NOTICE ADDRESS; DOMESTIC AND
EURODOLLAR LENDING OFFICE:
Bank of America, N.A.
901 Main Street, 66th Floor
Dallas, TX 75202
Attn: Dolores Lucio
Telecopy: 214-209-1559
Pro Rata Share: 7.2800%
Revolving Credit Commitment: $91,000,000
SENIOR MANAGING AGENT
AND LENDER: DRESDNER BANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Maureen Slentz
-------------------------
Name: Maureen Slentz
Title: Director
By: /s/ Ryan Huddlestun
-------------------------
Name: Ryan Huddlestun
Title: Vice President
NOTICE ADDRESS AND DOMESTIC AND EURODOLLAR
LENDING OFFICE:
Dresdner Bank AG, New York and Grand
Cayman Branches
75 Wall Street, 33rd Floor
New York, New York 10005
Attn: Mr. Garrett Thelander
Telecopy: (212) 429-2130
Reference: Simon Property Group
With copy to: Dresdner Bank AG, Chicago Branch
190 South LaSalle Street
Suite 2700
Chicago, Illinois 60603
Attn: Ms. Maureen Slentz
Telecopy: (312) 444-1305
Reference: Simon Property Group
BORROWING AND OTHER ADMINISTRATIVE AND
OPERATIONAL NOTICES:
Dresdner Bank AG
75 Wall Street, 33rd Floor
New York, New York 10005
Attn: Mr. Donald Scott
Telecopy: (212) 429-2130
Reference: Simon Property Group
Pro Rata Share: 5.2000%
Revolving Credit Commitment: $65,000,000
LENDER: BANK ONE, NA
By: /s/ Angela Kleiman
---------------------
Name: Angela Kleiman
Title: Associate Director
NOTICE ADDRESS:
Bank One, NA
Bank One Plaza
Suite 0151
Chicago, Illinois 60670
Attention: Angela Kleiman
Telecopy: (312) 732-5939
Reference: Simon Property Group
DOMESTIC LENDING OFFICE AND
EURODOLLAR LENDING OFFICE OR
EURODOLLAR AFFILIATE:
Bank One, NA
Bank One Plaza
Suite 0318
Chicago, Illinois 60670
Attention: Elizabeth Graves
Telecopy: (312) 732-1582
Reference: Simon Property Group
Pro Rata Share: 1.6000%
Revolving Credit Commitment: $20,000,000
SYNDICATION AGENT
AND LENDER: CITICORP REAL ESTATE, INC.
By: /s/ David Bouton
-----------------------
Name: David Bouton
Title: Vice President
NOTICE ADDRESS:
Citicorp Real Estate, Inc.
390 Greenwich Street
1st Floor
New York, NY 10013
Attn: David Bouton
Telecopy: 212-723-8380
DOMESTIC LENDING OFFICE, EURODOLLAR
LENDING OFFICE OR
EURODOLLAR AFFILIATE:
Citicorp Real Estate, Inc.
390 Greenwich Street
1st Floor
New York, NY 10013
Attn: Mark Brown
Telecopy: 212-723-8380
And to:
Citicorp Real Estate, Inc.
388 Greenwich Street
26th Foor
New York, NY 10013
Attn: Patricia Ekman, Esq.
Assistant General Counsel
Telecopy: (212) 816-2021
Pro Rata Share: 6.3200%
Revolving Credit Commitment: $79,000,000
SENIOR MANAGING AGENT
AND LENDER: BAYERISCHE HYPO- UND VEREINSBANK
AG, ACTING THROUGH ITS NEW YORK BRANCH
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
BAYERISCHE HYPO-VEREINSBANK AG
NEW YORK BRANCH
150 East 42nd Street
New York, New York 10017-4679
Attn: Larney Bisbano
Director
Telecopy: 212-672-5527
and to:
Attn: Mr. Stephen Altman
Managing Director
Telecopy: 212-672-5583
Pro Rata Share: 5.2000%
Revolving Credit Commitment: $65,000,000
DOCUMENTATION AGENT
AND LENDER: COMMERZBANK AG, NEW YORK BRANCH
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
Commerzbank AG
2 World Financial Center
New York, New York 10281
Attn: Mr. Doug Traynor
Telecopy: 212-266-7565
Pro Rata Share: 6.3200%
Revolving Credit Commitment: $79,000,000
184
SENIOR MANAGING AGENT
AND LENDER: DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
Deutsche Bank Trust Company Americas
90 Hudson Street
MS JCY05-0511
Jersey City, New Jersey 07302
Attn: Mary Rodwell
Telecopy: 201-593-2308
With a copy to:
Deutsche Bank Trust Company Americas
31 West 52nd Street
MS NYC01-0701
New York, New York 10017
Attn: Edward Carey
Telecopy: 646-324-7450
Pro Rata Share: 5.2000%
Revolving Credit Commitment: $65,000,000
185
186
SENIOR MANAGING AGENT
AND LENDER: FLEET NATIONAL BANK
By: /s/ Margaret A. Mulcahy
--------------------------
Name: Margaret A. Mulcahy
Title: Director
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
Fleet Bank
100 Federal Street
Mail Stop: MA DE 10008H
Boston, Massachusetts 02110
Attn: Ludy Zhu
Telecopy: 617-434-6401
and to:
Attn: Margaret A. Mulcahy
Telecopy: 617-434-6355
Pro Rata Share: 5.2000%
Revolving Credit Commitment: $65,000,000
MANAGING AGENT AND
LENDER: NATIONAL CITY BANK OF INDIANA
By:
---------------------
Name:
Title:
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
National City Bank of Indiana
101 West Washington Street
Indianapolis, Indiana 46255
Attn: Kim Kord
Telecopy: 317-267-3987
and to:
Attn: Nancy Chambers
Telecopy: 317-267-3987
Pro Rata Share: 3.2000%
Revolving Credit Commitment: $40,000,000
SENIOR MANAGING AGENT
AND LENDER: PNC BANK, NATIONAL ASSOCIATION
By: /s/ Terri Wyda
---------------------
Name: Terri Wyda
Title: Vice President
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
One PNC Plaza
P1-POPP-19-2
249 Fifth Avenue
Pittsburgh, Pennsylvania
15222-2707
Attn: Michael E. Smith
Telecopy: 412-762-6500
and to:
Attn: Carrie McDonough
Loan Administrator
Telecopy: 412-768-5754
Pro Rata Share: 4.8000%
Revolving Credit Commitment: $60,000,000
MANAGING AGENT AND
LENDER: KEYBANK, NATIONAL ASSOCIATION
By: /s/ Ann Marie Dixon
---------------------
Name: Ann Marie Dixon
Title:Vice President
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
KeyBank
227 West Monroe Street, 18th Floor
Chicago, IL 6060
Attn: Ann Marie Dixon
Telecopy: 312-730-2755
and to:
Attn: Florentina Djulvezan
Telecopy: 216-689-3566
Pro Rata Share: 3.6000%
Revolving Credit Commitment: $45,000,000
MANAGING AGENT
AND LENDER: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Deborah Brown
---------------------
Name: Deborah Brown
Title: Commercial Banking Officer
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
U.S. Bank National Association
400 North Michigan Avenue
1st Floor
Chicago, IL 60611
Attn: Deborah Brown
Telecopy: 312-836-6702
And to:
Attn: Paul Castino
Telecopy: 312-228-9402
Pro Rata Share: 3.2000%
Revolving Credit Commitment: $40,000,000
CO-AGENT AND LENDER: BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS BRANCH
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
NOTICE ADDRESS AND DOMESTIC
LENDING OFFICE, AND EURODOLLAR
LENDING OFFICE:
Bayerische Landesbank
560 Lexington Avenue
New York, New York 10022
Attn: John Wain
Telecopy: 212-310-9868
and to:
Attn: Patricia Sanchez
Telecopy: 212-310-9930
Pro Rata Share: 2.5600%
Revolving Credit Commitment: $32,000,000
CO-AGENT AND LENDER: LANDESBANK HESSEN-THURINGEN
GIRONZENTRALE, NEW YORK BRANCH
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
Landesbank Hessen-Thuringen
420 Fifth Avenue, 24th floor
New York, New York 10018
Attn: Alfred Koch
Telecopy: 212-703-5296
and to:
Attn: Gudrun Dronca
Telecopy: 212-703-5256
Pro Rata Share: 2.5600%
Revolving Credit Commitment: $32,000,000
193
LENDER: UNION BANK OF CALIFORNIA, N.A
By: /s/ David Murphy
---------------------
Name: David Murphy
Title: Vice President
By: /s/ Annette Billingsly
------------------------
Name: Annette Billingsly
Title: Senior Vice President
NOTICE ADDRESS:
Union Bank of California
350 California Street
7th Floor
San Francisco, California 94104
Attn: David Murphy
Telecopy: 415-433-7438
DOMESTIC LENDING AND EURODOLLAR
LENDING OFFICE:
Union Bank of California
Real Estate Loan Administration
18300 Von Karman Avenue
Suite 200
Irvine, CA 926103
Attn: Ms. Cynthia Rafael
Telecopy: 949-553-7123
Pro Rata Share: 1.6000%
Revolving Credit Commitment: $20,000,000
LENDER: SUMITOMO MITSUI BANKING CORPORATION
By:
---------------------
Name:
Title:
NOTICE ADDRESS, DOMESTIC
LENDING OFFICE AND EURODOLLAR
LENDING OFFICE:
Sumitomo Mitsui Banking
Corporation
277 Park Avenue
New York, NY 10172
Attn: Mr. Charles Sullivan
Telecopy: 212-224-4887
and to:
Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, New York 10172
Attn: Martin Lebovits
Telecopy: 212-224-4504
Pro Rata Share: 1.8400%
Revolving Credit Commitment: $23,000,000
LENDER: FIFTH THIRD BANK
By: /s/ David O'Neal
---------------------
Name: David O'Neal
Title:
NOTICE ADDRESS:
Fifth Third Bank
251 North Illinois
Suite 1000
Indianapolis, IN 46204
Attention: David O'Neal
Telecopy: 317-383-2320
DOMESTIC LENDING OFFICE, AND
EURODOLLAR LENDING OFFICE:
Fifth Third Bank
251 North Illinois
Suite 1000
Indianapolis, IN 46204
Attention: Rita Holden
Telecopy: 317-383-2320
Pro Rata Share: .8000%
Revolving Credit Commitment: $10,000,000
LENDER: COMERICA BANK
By: /s/ Scott M. Helmer
---------------------
Name: Scott M. Helmer
Title: Vice President
NOTICE ADDRESS AND DOMESTIC
LENDING OFFICE, AND EURODOLLAR
LENDING OFFICE:
Comerica Bank
500 Woodward Avenue, 7th Floor
Detroit, Michigan 48226
Attn: Scott M. Helmer
Telecopy: 313-222-9295
and to:
Attn: Betsy Branson
Telecopy: 313-222-3697
U.S. Mail should be directed to:
Comerica Bank
P.O. Box 75000
Detroit Michigan 48275-3256
M/C 3256
Attn: Scott M. Helmer and
Attn: Betsy Branson
Pro Rata Share: 1.6000%
Revolving Credit Commitment: $20,000,000
LENDER: MELLON BANK, N.A.
By:
---------------------
Name:
Title:
NOTICE ADDRESS AND DOMESTIC
LENDING OFFICE, AND EURODOLLAR
LENDING OFFICE:
Mellon Bank, N.A.
One Mellon Bank Center
Room 5325
Pittsburgh, Pennsylvania
15259-0001
Attn: Mr. David Tetrick
Telecopy: (412) 234-8657
Pro Rata Share: 1.2000%
Credit Commitment: $15,000,000
LENDER: LASALLE BANK NATIONAL ASSOCIATION
By: /s/ John Thorne
---------------------
Name: John Thorne
Title: First Vice President
NOTICE ADDRESS AND DOMESTIC
LENDING OFFICE, AND EURODOLLAR
LENDING OFFICE:
LaSalle Bank National Association
One American Square, Suite 1600
Indianapolis, IN 46282
Attn: John Thorne
Telecopy: 317-756-9913
With a copy to:
LaSalle Bank National Association
135 South LaSalle, Suite 1225
Chicago, IL 60603
Attention: Sheila Davis
Telecopy: 312-904-6691
Pro Rata Share: 1.7600%
Revolving Credit Commitment: $22,000,000
CO-AGENT AND LENDER: THE BANK OF NOVA SCOTIA,
NEW YORK AGENCY
By: /s/ Robert Boese
---------------------
Name: Robert Boese
Title: Managing Director
NOTICE ADDRESS AND DOMESTIC
LENDING OFFICE, AND EURODOLLAR
LENDING OFFICE OR EURODOLLAR
AFFILIATES:
The Bank of Nova Scotia
Atlanta Agency, for Nassau
Corporate Branch
600 Peachtree Street NE
Suite 2700
Atlanta, Georgia 30308
Attn: Nadine Bell
Telecopy: (404) 888-8998
Pro Rata Share: 2.5600%
Credit Commitment: $32,000,000
LENDER: SOUTHTRUST BANK
By: /s/ Ann Peck
---------------------
Name: Ann Peck
Title: Assistant Vice President
NOTICE ADDRESS:
SouthTrust Bank
Corporate Banking - 11th Floor
420 North 20th Street
Birmingham, AL 35203
Attn: Ann Peck
Telecopy: 205-254-8270
DOMESTIC LENDING OFFICE, AND
EURODOLLAR LENDING OFFICE OR
EURODOLLAR AFFILIATES:
SouthTrust Bank
6434 First Avenue North
Birmingham, AL 35212
Attn: Natalie Horton
Operations Specialist
Telecopy: 205-599-4350
With a copy to:
SouthTrust Bank, National Association
Corporate Banking - 11th Floor
420 North 20th Street
Birmingham, AL 35203
Attn: Ann Peck
Telecopy: 205-254-8270
Pro Rata Share: 2.0000%
Credit Commitment: $25,000,000
CO-AGENT AND LENDER: ING CAPITAL LLC
By: /s/ David Lattimer
---------------------
Name: David Lattimer
Title: Vice President
NOTICE ADDRESS AND DOMESTIC
LENDING OFFICE, AND EURODOLLAR
LENDING OFFICE OR EURODOLLAR
AFFILIATES:
ING Capital LLC
1325 Avenue of the Americas
New York, NY 10019
Attn: David Lattimer
Vice President
Telecopy: 646-424-6210
Pro Rata Share: 2.5600%
Credit Commitment: $32,000,000
202
CO-AGENT AND LENDER: CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By: /s/ William O'Daly
---------------------
Name: William O'Daly
Title: Director
By:
---------------------
Name:
Title:
NOTICE ADDRESS:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
11 Madison Avenue
10th Floor
New York, NY 10010
Attn: William O'Daly
Telecopy: 212-743-2254
DOMESTIC LENDING OFFICE, AND
EURODOLLAR LENDING OFFICE OR
EURODOLLAR AFFILIATES:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
One Madison Avenue, 8th Floor
New York, NY 10010-3629
Attn: Nirmala Durgana
Telecopy: 212-538-3477
Pro Rata Share: 2.5600%
Credit Commitment: $32,000,000
203
MANAGING AGENT AND
LENDER: MERRILL LYNCH BANK USA
By:
---------------------
Name:
Title:
NOTICE ADDRESS:
Merrill Lynch Bank USA
15 W. South Temple, Suite 300
Salt Lake City, UT 84101
Attn: Butch Alder
Telecopy: 801-531-7470
DOMESTIC LENDING OFFICE, AND
EURODOLLAR LENDING OFFICE OR
EURODOLLAR AFFILIATES:
Merrill Lynch Bank USA
15 W. South Temple, Suite 300
Salt Lake City, UT 84101
Attn:Frank Stepan
Telecopy: 801-359-4667
MONEY MARKET BIDS:
Merrill Lynch Bank USA
15 W. South Temple, Suite 300
Salt Lake City, UT 84101
Attn: Butch Alder
Telecopy: 801-531-7470
Pro Rata Share: 3.2000%
Credit Commitment: $40,000,000
204
LENDER: KBC BANK N.V.
By: /s/ Francis X. Payne
---------------------
Name: Francis X. Payne
Title: Vice President
By:
---------------------
Name:
Title:
NOTICE ADDRESS AND DOMESTIC
LENDING OFFICE:
KBC Bank N.V., New York Branch
125 West 55th Street
New York, New York 10019
Attn: Francis X. Payne
Telecopy: 212-541-0793
and to:
Attn: Lynda Resuma
Telecopy: 212-956-5580
EURODOLLAR LENDING OFFICE OR
EURODOLLAR AFFILIATE:
KBC Bank N.V., Grand Cayman Branch
125 West 55th Street
New York, New York 10019
Attn: Francis X. Payne
Telecopy: 212-541-0793
and to:
Attn: Lynda Resuma
Telecopy: 212-956-5580
205
Pro Rata Share: 2.0000%
Revolving Credit Commitment: $25,000,000
206
LIST OF EXHIBITS AND SCHEDULES
Exhibit A-- Form of Assignment and Acceptance
Exhibit B-- Form of Note
Exhibit B-1-- Form of Designated Bank Note
Exhibit C-- Form of Notice of Borrowing
Exhibit D-- Form of Notice of Conversion/Continuation
Exhibit E-- List of Closing Documents
Exhibit F-- Form of Officer's Certificate
Exhibit G-- Sample Calculations of Financial Covenants
Exhibit H-- Form of Money Market Quote Request
Exhibit I-- Form of Invitation for Money Market Quote
Exhibit J-- Form of Money Market Quote
Exhibit K-- Form of Designation Agreement
Schedule 1.1.4 -- Permitted Securities Options
Schedule 1.1.5 - Unsecured Bond Offerings
Schedule 7.1-A -- Organizational Documents
Schedule 7.1-C -- Corporate Structure; Outstanding Capital Stock and Partnership
Interests; Partnership Agreement
Schedule 7.1-H -- Indebtedness for Borrowed Money; Contingent Obligations
Schedule 7.1-I -- Pending Actions
Schedule 7.1-P -- Environmental Matters
Schedule 7.1-Q -- ERISA Matters
Schedule 7.1-T -- Insurance Policies
Schedule 15.23 -- Retained Properties
i
