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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): January 27, 2003
----------------
Reckson Associates Realty Corp.
and
Reckson Operating Partnership, L.P.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Reckson Associates Realty Corp. - Maryland
Reckson Operating Partnership, L.P. - Delaware
-----------------------------------------------
(State or other jurisdiction of incorporation)
1-13762 Reckson Associates Realty Corp.
----------------------------------- 11-323650
Commission File Number Reckson Operating Partnership, L.P.
11-3233647
-----------------------------------
(IRS Employer Identification No.)
225 Broadhollow Road, Melville, New York 11747
--------------------------------------------------
(Address of principal executive offices) (Zip Code)
(631) 694-6900
----------------------------------------------------
(Registrant's telephone number, including area code)
Item 5. Other Events.
------------
On January 27, 2003, Reckson Associates Realty Corp. announced that
Reckson Operating Partnership, L.P. has refinanced its unsecured revolving
credit facility with a group of banks. J.P. Morgan Securities Inc. and Salomon
Smith Barney Inc. acted as co-lead arrangers and joint bookrunners.
A copy of the press release announcing Reckson Operating Partnership,
L.P.'s signing of the First Amendment to the Second Amended and Restated Credit
Agreement: and a copy of the First Amendment to the Second Amended and Restated
Credit Agreement and a copy of the Second Amended and Restated Credit Agreement
are attached as Exhibits 99.1 and 99.2, respectively, to this Form 8-K and are
incorporated by reference herein.
Item 7. Financial Statements and Exhibits.
---------------------------------
(c) Exhibits.
Exhibit Number Description of Exhibit
-------------- ----------------------
99.1. Press release, dated January 27, 2003.
99.2. First Amendment to the Second Amended and Restated Credit
Agreement, dated as of January 24, 2003, between and among
Reckson Operating Partnership, L.P., JPMorgan Chase Bank, as
Administrative Agent for the institutions from time to time
party thereto as Lenders and Key Bank, N.A., as New Lender;
and Second Amended and Restated Credit Agreement, between and
among Reckson Operating Partnership, L.P., the institutions
from time to time party thereto as Lenders and JPMorgan Chase
Bank, as Administrative Agent.
99.3. Form of Promissory Note to the Second Amended and Restated
Credit Agreement, between and among Reckson Operating
Partnership, L.P., the institutions from time to time party
thereto as Lenders and JPMorgan Chase Bank, as Administrative
Agent.
99.4. Form of Guarantee Agreement to the Second Amended and Restated
Credit Agreement, between and among Reckson Operating
Partnership, L.P., the institutions from time to time party
thereto as Lenders and JPMorgan Chase Bank, as Administrative
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 hereunto duly authorized.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Scott Rechler
--------------------------------------
Name: Scott Rechler
Title: Co-Chief Executive Officer
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.,
its General Partner
By: /s/ Scott Rechler
-------------------------------------
Name: Scott Rechler
Title: Co-Chief Executive Officer
Date: January 27, 2003
Exhibit Index
Exhibit Description
------- -----------
99.1 Press release, dated January 27, 2003.
99.2 First Amendment to the Second Amended and Restated Credit
Agreement, dated as of January 24, 2003, between and among
Reckson Operating Partnership, L.P., JPMorgan Chase Bank, as
Administrative Agent for the institutions from time to time
party thereto as Lenders and Key Bank, N.A., as New Lender;
and Second Amended and Restated Credit Agreement, between
and among Reckson Operating Partnership, L.P., the
institutions from time to time party thereto as Lenders and
JPMorgan Chase Bank, as Administrative Agent.
99.3. Form of Promissory Note to the Second Amended and Restated
Credit Agreement, between and among Reckson Operating
Partnership, L.P., the institutions from time to time party
thereto as Lenders and JPMorgan Chase Bank, as
Administrative Agent.
99.4. Form of Guarantee Agreement to the Second Amended and
Restated Credit Agreement, between and among Reckson
Operating Partnership, L.P., the institutions from time to
time party thereto as Lenders and JPMorgan Chase Bank, as
Administrative Agent.
EXHIBIT 99.1
PRESS RELEASE
- -------------
RECKSON ASSOCIATES REALTY CORP.
225 BROADHOLLOW ROAD
MELVILLE, NEW YORK 11747
(631) 694-6900 (PHONE)
(631) 622-6790 (FACSIMILE)
CONTACT: SCOTT RECHLER, CO-CEO
MICHAEL MATURO, CFO
- --------------------------------------------------------------------------------
FOR IMMEDIATE RELEASE
- ---------------------
RECKSON ASSOCIATES ANNOUNCES REFINANCING OF
-------------------------------------------
UNSECURED REVOLVING CREDIT FACILITY
-----------------------------------
(MELVILLE, NEW YORK, JANUARY 27, 2003) - RECKSON ASSOCIATES REALTY CORP. (NYSE:
RA) announced today that its operating partnership, Reckson Operating
Partnership, L.P., has refinanced its unsecured revolving credit facility,
scheduled to mature in September of 2003, with a group of 14 banks. J.P. Morgan
Securities Inc. and Salomon Smith Barney Inc. acted as co-lead arrangers and
joint bookrunners.
The $500 million credit facility has a three-year term with an option for a
one-year extension. The credit facility is expandable at the option of the
Company, upon receiving additional lender commitments, to $750 million
throughout the term. The credit facility bears interest at a rate equal to LIBOR
plus a spread of 90 basis points, representing a reduction to the pricing spread
of 15 basis points from the previous facility.
The bank participants in the facility include JPMorgan Chase Bank as
administrative agent; Wells Fargo Bank as syndication agent; Citicorp North
America, Inc. and Wachovia Bank as co-documentation agents; Commerzbank AG as
managing agent; The Bank of New York, ING Capital LLC, KeyBank and PNC Bank as
co-agents; and Bayerische Landesbank, Chevy Chase Bank, F.S.B., Dresdner Bank
AG, Erste Bank and UBS AG as participants.
"The refinancing of our credit facility provides Reckson with continued
financial flexibility and demonstrates the financial community's continued
support and confidence in the performance of our company," said Reckson's Chief
Financial Officer, Michael Maturo.
Reckson Associates Realty Corp. is a self-administered and self-managed real
estate investment trust (REIT) specializing in the acquisition, leasing,
financing, management, and development of office and industrial properties.
Reckson's core growth strategy is focused on the markets surrounding and
including New York City. The Company is one of the largest publicly traded
owners, managers and developers of Class A office and industrial properties in
the New York Tri-State area, with 178 properties comprised of approximately 20.4
million square feet either owned or controlled. For additional information on
Reckson Associates Realty Corp., please visit the Company's web site at
www.reckson.com.
- ----------------
Certain matters discussed herein are "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. Although the
Company believes the expectations reflected in such forward-looking statements
are based on reasonable assumptions, forward-looking statements are not
guarantees of results and no assurance can be given that the expected results
will be delivered. Such forward-looking statements are subject to certain risks,
trends and uncertainties that could cause actual results to differ materially
from those expected. Among those risks, trends and uncertainties are the general
economic climate, including the conditions affecting industries in which our
principal tenants compete; credit of our tenants; changes in the supply of and
demand for office and industrial properties in the New York Tri-State area;
changes in interest rate levels; downturns in rental rate levels in our markets
and our ability to lease or re-lease space in a timely manner at current or
anticipated rental rate levels; the availability of financing to us or our
tenants; changes in operating costs, including utility and insurance costs;
repayment of debt owed to the Company by third parties (including FrontLine
Capital Group); risks associated with joint ventures; and other risks associated
with the development and acquisition of properties, including risks that
development may not be completed on schedule, that the tenants will not take
occupancy or pay rent, or that development or operating costs may be greater
than anticipated. For further information on factors that could impact Reckson,
reference is made to Reckson's filings with the Securities and Exchange
Commission. Reckson undertakes no responsibility to update or supplement
information contained in this press release.
###
EXHIBIT 99.2
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "AMENDMENT NO. 1") is made as of January 24, 2003 by and among
(a) Reckson Operating Partnership, L.P. (the "BORROWER"), (b) JPMorgan Chase
Bank, as Administrative Agent (in such capacity, the "ADMINISTRATIVE AGENT") for
the Lenders (as defined below); and (c) KeyBank, N.A. (the "NEW LENDER").
WHEREAS, the Borrower, the lenders party thereto (the "LENDERS") and
the Administrative Agent are parties to a Second Amended and Restated Revolving
Credit Agreement dated as of December 30, 2002 (the "CREDIT AGREEMENT"),
pursuant to which the Lenders have agreed to make loans to the Borrower on the
terms and conditions set forth therein;
WHEREAS, pursuant to ss.2.1(b) of the Credit Agreement, the Borrower
has requested, and the New Lender and the Administrative Agent have agreed to
increase the credit limit of the Credit Agreement and add the New Lender as a
"Lender" under the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and fully intending to be legally bound by this Amendment
No. 1, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. As of the Effective Date (as defined
in ss.4 hereof) the Credit Agreement is hereby amended as follows:
2.1. TOTAL COMMITMENT. In line 10 of the definition of
"Revolving Credit Commitment" in ss.1.1 of the Credit Agreement, the
amount "$470,000,000" is hereby deleted and the amount "$500,000,000"
is substituted in place thereof.
2.2. INCREASE IN TOTAL COMMITMENT. In lines 9 and 10 of
ss.2.1(a) of the Credit Agreement, the amount "Four Hundred and Seventy
Million Dollars ($470,000,000)" is hereby deleted and the amount "Five
Hundred Million Dollars ($500,000,000)" is substituted in place
thereof.
2.3. COMMITMENT PERCENTAGES. SCHEDULE LC to the Credit
Agreement is hereby deleted in its entirety and SCHEDULE LC to this
Amendment No. 1 is substituted in place thereof.
2.4. NEW LENDER. The New Lender hereby agrees to provide a new
Revolving Credit Commitment in the amount of Thirty Million Dollars
($30,000,000) and to accept an assignment of a $5,000,000 Revolving
Credit Commitment from Wells Fargo Bank, National Association. From and
after the date hereof, the New Lender shall be deemed to be a Lender
for all purposes of the Credit Agreement, and each reference to the
Lenders in the Credit Agreement shall be deemed to include the New
Lender. The New Lender hereby expressly covenants and agrees with the
Borrower, the Administrative Agent and each Lender that, from and after
the date hereof, the New Lender shall, and does hereby, assume and
agree to perform and observe each and every covenant, agreement,
obligation or liability of a Lender under the Credit Agreement. The New
Lender hereby further covenants and agrees to become a party to any of
the other Loan Documents as the Administrative Agent may reasonably
request. The New Lenders appoints and authorizes the Administrative
Agent to take such action on its behalf and to exercise such powers
under the Credit Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms thereof, together
with such powers as are reasonably incidental thereto.
2.5. REQUEST UNDER SS.2.1(B) OF CREDIT AGREEMENT . This
Amendment is and shall be deemed to be for all purposes of the Credit
Agreement the first exercise by the Borrower of its rights under
ss.2.1(b) of the Credit Agreement to request an increase of the
Revolving Credit Commitment.
3. PROVISIONS OF GENERAL APPLICATION.
3.1. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants as of the date hereof that (a) each of the
representations and warranties of the Borrower contained in the Credit
Agreement, the other Loan Documents or in any document or instrument
delivered pursuant to or in connection with the Credit Agreement or
this Amendment No. 1 are true as of the date as of which they were made
and are true at and as of the date of this Amendment No. 1 (except to
the extent that such representations and warranties expressly speak as
of a different date) and (b) no Potential Event of Default or Event of
Default exists on the date hereof.
3.2. NO OTHER CHANGES. Except as otherwise expressly provided
or contemplated by this Amendment No. 1, all of the terms, conditions
and
2
provisions of the Credit Agreement remain unaltered and in full
force and effect. The Credit Agreement and this Amendment No. 1 shall
be read and construed as one agreement. The making of the amendments in
this Amendment No. 1 does not imply any obligation or agreement by the
Administrative Agent or any Lender to make any other amendment, waiver,
modification or consent as to any matter on any subsequent occasion.
3.3. GOVERNING LAW. This Amendment No. 1 shall be deemed to be
a contract under the laws of the State of New York. This Amendment No.
1 and the rights and obligations of each of the parties hereto are
contracts under the laws of the State of New York and shall for all
purposes be construed in accordance with and governed by the laws of
such State (excluding the laws applicable to conflicts or choice of
law).
3.4. ASSIGNMENT. This Amendment No. 1 shall be binding upon
and inure to the benefit of each of the parties hereto and their
respective permitted successors and assigns.
3.5. COUNTERPARTS. This Amendment No. 1 may be executed in any
number of counterparts, but all such counterparts shall together
constitute but one and the same agreement. In making proof of this
Amendment No. 1, it shall not be necessary to produce or account for
more than one counterpart thereof signed by each of the parties hereto.
4. EFFECTIVENESS OF THIS AMENDMENT NO. 1. This Amendment No. 1 shall
become effective on the date on which the following conditions precedent are
satisfied (such date being hereinafter referred to as the "EFFECTIVE DATE"):
(a) Execution and delivery to the Administrative Agent by the
New Lender, the Borrower, the Guarantors and the Administrative Agent
of this Amendment No. 1.
(b) Execution and delivery to the Administrative Agent of a
certificate of the Borrower confirming that there have been no changes
to its charter documents since December 30, 2002.
(c) Delivery to the Administrative Agent of resolutions of the
board of directors of the general partner of the Borrower authorizing
this Amendment No. 1, including the increased loan amount requested.
(d) Execution and delivery to the Administrative Agent by the
Borrower of a Revolving Credit Note in favor of KeyBank, N.A. in the
amount of $35,000,000 and a replacement Revolving Credit Note in favor
of Wells Fargo Bank, National Association in the amount of $60,000,000.
3
(e) Execution and delivery by KeyBank, N.A., Wells Fargo Bank,
National Association, and the Administrative Agent of an Assignment and
Acceptance by which Wells Fargo Bank, National Association assigns
$5,000,000 of its Revolving Credit Commitment to KeyBank, N.A. (which
Assignment and Assumption shall be effective simultaneously with this
Amendment No. 1).
(f) Delivery to the Administrative Agent by Fried Frank Harris
Shriver & Jacobson, as counsel to the Borrower, of an opinion addressed
to the Lenders, the New Lender and the Administrative Agent in form and
substance reasonably satisfactory to the Administrative Agent.
(g) Payment by the Borrower of any compensation to the Lenders
as provided in ss.5.2(f) of the Credit Agreement arising out of the
addition of the New Lender as a "Lender" under the Credit Agreement.
(h) Payment by the Borrower of all fees payable pursuant to
the last sentence of the first paragraph of ss.2.1(b) of the Credit
Agreement which fees are set forth in a letter agreement of even date
herewith.
[Remainder of page left blank intentionally]
4
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Amendment No. 1 as of the date first set forth above.
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp., its
general partner
By:
-------------------------------------
Name:
Title:
5
JPMORGAN CHASE BANK, as
Administrative Agent
By:
-------------------------------------
Name: Marc E. Costantino
Title: Vice President
6
KEYBANK, N.A.
By:
----------------------------------
Name:
Title:
7
Each of the undersigned Guarantors hereby acknowledges the foregoing
Amendment No. 1 and reaffirms its guaranty of the Guaranteed Obligations (as
defined in the Guaranty executed and delivered by such Guarantor) under the
Credit Agreement and the other Loan Documents, each as amended hereby or in
connection herewith, in accordance with the Guaranty executed and delivered by
such Guarantor.
RECKSON ASSOCIATES REALTY CORP.
By:
----------------------------------------
Name:
Title:
8
RECKSON FS LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Reckson Financing LLC, a Delaware
limited liability company, its general
partner
By: Reckson Operating Partnership, L.P., a
Delaware limited partnership, its
sole member
By: Reckson Associates Realty Corp., a
Maryland corporation, its
general partner
By:
-----------------------------------------
Name:
Title:
9
360 HAMILTON PLAZA, LLC, a
Delaware limited liability company
By: Reckson Operating Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Reckson Associates Realty
Corp., a Maryland corporation,
its general partner
By:
-----------------------------------------
Name:
Title:
10
METROPOLITAN PARTNERS LLC,
a Delaware limited liability company
By: Reckson Operating Partnership,
L.P., a Delaware limited partnership,
its managing member
By: Reckson Associates Realty
Corp., a Maryland corporation,
its general partner
By:
-----------------------------------------
Name:
Title:
11
METROPOLITAN OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Metropolitan Partners LLC, a Delaware
limited liability company, its
general partner
By: Reckson Operating Partnership,
L.P., a Delaware limited
partnership, its managing member
By: Reckson Associates Realty
Corp., a Maryland corporation,
its general partner
By:
-----------------------------------------
Name:
Title:
12
TOWER MINEOLA LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Metropolitan Mineola GP LLC, a
Delaware limited liability company,
its general partner
By: Metropolitan Operating Partnership,
L.P., a Delaware limited
partnership, its managing member
By: Metropolitan Partners LLC, a Delaware
limited liability company, its
general partner
By: Reckson Operating Partnership, L.P.,
a Delaware limited partnership, its
managing member
By: Reckson Associates Realty
Corp., a Maryland corporation,
its general partner
By:
-----------------------------------------
Name:
Title:
13
EXECUTION COPY
- --------------------------------------------------------------------------------
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF DECEMBER 30, 2002
AMONG
RECKSON OPERATING PARTNERSHIP, L.P.
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS
AND
JPMORGAN CHASE BANK
AS ADMINISTRATIVE AGENT
WITH
WELLS FARGO BANK, NATIONAL ASSOCIATION
AS SYNDICATION AGENT
CITICORP NORTH AMERICA, INC. AND
WACHOVIA BANK, NATIONAL ASSOCIATION
AS CO-DOCUMENTATION AGENTS
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, AS MANAGING AGENT
THE BANK OF NEW YORK, PNC BANK, NATIONAL ASSOCIATION
AND ING CAPITAL LLC, AS CO-AGENTS
AND
J.P. MORGAN SECURITIES INC. AND
SALOMON SMITH BARNEY INC.
AS CO-LEAD ARRANGERS AND JOINT BOOKRUNNERS
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.........................................................2
1.1. Certain Defined Terms..........................................2
1.2. Computation of Time Periods...................................36
1.3. Accounting Terms..............................................37
1.4. Other Terms...................................................37
1.5. Rules of Interpretation.......................................37
ARTICLE II. AMOUNTS AND TERMS OF LOANS........................................38
2.1. Committed Loans...............................................38
2.2. Competitive Bid Loans.........................................41
2.3. Use of Proceeds of Loans and Letters of Credit................46
2.4. Revolving Credit Termination Date; Maturity of
Competitive Bid Loans.........................................46
2.5. Maximum Credit Facility.......................................46
2.6. Authorized Agents.............................................46
ARTICLE III. LETTERS OF CREDIT................................................47
3.1. Letters of Credit.............................................47
3.2. Obligations Several...........................................54
ARTICLE IV. PAYMENTS AND PREPAYMENTS..........................................55
4.1. Prepayments; Reductions in Revolving Credit
Commitments...................................................55
4.2. Payments......................................................57
4.3. Promise to Repay; Evidence of Indebtedness....................61
ARTICLE V. INTEREST AND FEES..................................................62
5.1. Interest on the Loans and other Obligations...................62
5.2. Special Provisions Governing Eurodollar Rate Loans
and Competitive Bid Loans.....................................65
5.3. Fees..........................................................69
ARTICLE VI. CONDITIONS TO LOANS AND LETTERS OF CREDIT.........................71
6.1. Conditions Precedent to the Initial Loans and Letters of
Credit........................................................71
6.2. Conditions Precedent to All Subsequent Loans and Letters of
Credit........................................................73
ARTICLE VII. REPRESENTATIONS AND WARRANTIES...................................74
7.1. Representations and Warranties of the Borrower................74
ARTICLE VIII. REPORTING COVENANTS.............................................84
8.1. Borrower Accounting Practices.................................84
8.2. Financial Reports.............................................85
8.3. Events of Default.............................................88
8.4. Lawsuits......................................................89
8.5. Insurance.....................................................89
8.6. ERISA Notices.................................................90
8.7. Environmental Notices.........................................91
8.8. Labor Matters.................................................92
8.9. Notices of Asset Sales and/or Acquisitions....................92
8.10. Notices of Joint Ventures.....................................93
8.11. Tenant Notifications..........................................94
8.12. Other Reports.................................................94
8.13. Other Information.............................................94
ARTICLE IX. AFFIRMATIVE COVENANTS.............................................94
9.1. Existence. Etc................................................94
9.2. Powers; Conduct of Business...................................95
9.3. Compliance with Laws. Etc.....................................95
9.4. Payment of Taxes and Claims...................................95
9.5. Insurance.....................................................95
9.6. Inspection of Property, Books and Records Discussions.........96
9.7. ERISA Compliance..............................................96
9.8. Maintenance of Property.......................................96
9.9. Company Status................................................96
9.10. Ownership of Projects, Joint Ventures and Property............97
9.11. Maintenance of Operating Accounts.............................97
9.12. Additional Guarantors; Solvency of Guarantors.................97
9.13. Further Assurances............................................98
9.14. Distributions in the Ordinary Course..........................98
ARTICLE X. NEGATIVE COVENANTS.................................................98
10.1. Intentionally Omitted.........................................98
10.2. Liens.........................................................98
10.3. Intentionally Omitted.........................................98
10.4. Conduct of Business...........................................99
10.5. Transactions with Partners and Affiliates.....................99
10.6. Restriction on Fundamental Changes............................99
10.7. Margin Regulations; Securities Laws..........................100
10.8. ERISA........................................................100
10.9. Organizational Documents.....................................101
10.10. Fiscal Year..................................................101
ii
10.11. Financial Covenants..........................................101
10.12. Negative Covenants with respect to the Company...............103
ARTICLE XI. EVENTS OF DEFAULT; RIGHTS AND REMEDIES...........................104
11.1. Events of Default............................................104
11.2. Rights and Remedies..........................................108
ARTICLE XII. THE AGENTS......................................................109
12.1. Appointment..................................................109
12.2. Nature of Duties.............................................110
12.3. Right to Request Instructions................................110
12.4. Reliance.....................................................111
12.5. Indemnification..............................................111
12.6. Agents Individually..........................................111
12.7. Successor Agents.............................................112
12.8. Relations Among the Lenders..................................113
12.9. Standard of Care.............................................113
ARTICLE XIII. YIELD PROTECTION...............................................113
13.1. Taxes........................................................113
13.2. Increased Capital............................................116
13.3. Changes; Legal Restrictions..................................117
13.4. Replacement of Certain Lenders...............................118
13.5. Mitigation...................................................118
ARTICLE XIV. MISCELLANEOUS...................................................118
14.1. Assignments and Participations...............................118
14.2. Expenses.....................................................122
14.3. Indemnity....................................................123
14.4. Change in Accounting Principles..............................124
14.5. Intentionally Omitted........................................125
14.6. Ratable Sharing..............................................125
14.7. Amendments and Waivers.......................................125
14.8. Notices......................................................128
14.9. Survival of Warranties and Agreements........................129
14.10. Failure or Indulgence Not Waiver; Remedies
Cumulative...................................................129
14.11. Payments Set Aside...........................................129
14.12. Severability.................................................129
14.13. Headings.....................................................130
14.14. Governing Law................................................130
14.15. Limitation of Liability......................................130
14.16. Successors and Assigns.......................................130
14.17. Certain Consents and Waivers of the Borrower.................130
iii
14.18. Counterparts; Effectiveness; Inconsistencies.................132
14.19. Limitation on Agreements.....................................132
14.20. Disclaimers..................................................132
14.21. Entire Agreement.............................................133
14.22. Confidentiality..............................................133
14.23. No Bankruptcy Proceedings....................................133
14.24. Transitional Arrangements....................................134
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment and Acceptance
Exhibit B-1 Form of Note
Exhibit B-2 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 Compliance Certificate to Accompany Reports
Exhibit G Sample of Calculations of Financial Covenants
Exhibit H Form of Competitive Bid Quote Request
Exhibit I Form of Invitation for Competitive Bid Quote
Exhibit J Form of Competitive Bid Quote
Exhibit K Form of Designation Agreement
Exhibit L Form of Guaranty
Schedule LC Lenders' Commitments and Notice Addresses
Schedule 1.1.1 Existing Permitted Liens
Schedule 1.1.2 Permitted Securities Options
Schedule 6.1(d) Equity Changes
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-R Securities Activities
Schedule 7.1-T Insurance Policies
iv
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amended and Restated Credit Agreement dated as of December
30, 2002 (as amended, supplemented or modified from time to time, the
"AGREEMENT") is entered into among RECKSON OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("RECKSON"), the institutions from time to time a
party hereto as Lenders, whether by execution of this Agreement or an Assignment
and Acceptance, JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank)
as Administrative Agent, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Syndication
Agent, CITICORP NORTH AMERICA, INC. and WACHOVIA BANK, NATIONAL ASSOCIATION as
Co-Documentation Agents, and J.P. MORGAN SECURITIES INC. (formerly known as
Chase Securities Inc.) and SALOMON SMITH BARNEY INC. as co-lead arrangers and
joint bookrunners.
RECITALS
WHEREAS, Reckson, an affiliate of Reckson, JPMorgan and certain of the
Lenders entered into that certain Credit Agreement dated as of July 23, 1998, as
amended by First Amendment to Credit Agreement dated as of August 31, 1999 and
as amended by Second Amendment to Credit Agreement dated as of September 27,
1999, (as so amended, the "ORIGINAL REVOLVING CREDIT AGREEMENT");
WHEREAS, Reckson, an affiliate of Reckson, JPMorgan, and certain of the
Lenders entered into that certain Amended and Restated Credit Agreement dated as
of January 12, 1999, as amended by First Amendment to Amended and Restated
Credit Agreement dated as of September 27, 1999 and as amended by Second Amended
and Restated Credit Agreement dated as of December 17, 1999 (as so amended, the
"ORIGINAL TERM LOAN AGREEMENT");
WHEREAS, Reckson, JPMorgan and certain other parties entered into that
certain Amended and Restated Credit Agreement dated as of September 7, 2000 (the
"2000 CREDIT AGREEMENT") pursuant to which they amended and restated the
Original Revolving Credit Agreement in its entirety and terminated the Original
Term Loan Agreement; and
WHEREAS, Reckson, JPMorgan and the other parties hereto wish to amend
and restate the 2000 Credit Agreement in its entirety in accordance with the
terms and provisions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1. 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:
"ADJUSTED UNENCUMBERED NOI" means, for the prior calendar quarter, the
sum of (i) NOI from the Consolidated Businesses attributable to Unencumbered
Projects and Unencumbered New York City Assets which are wholly-owned by a
Consolidated Business; plus (ii) the Borrower's pro rata share of NOI from Joint
Ventures attributable to Unencumbered Projects and Unencumbered New York City
Assets in which the Borrower's beneficial economic interest in such Joint
Ventures is 51% or greater, provided the sale or financing of any Property owned
by such Joint Venture is substantially controlled by the Borrower, subject to
customary provisions set forth in the organizational documents of such Joint
Venture with respect to financings, sales or rights of first refusal granted to
other members of such Joint Venture; plus (iii) the Borrower's pro rata share of
NOI from Joint Ventures attributable to Unencumbered Projects and Unencumbered
New York City Assets in which the Borrower's beneficial economic interest is
less than 51%, provided that a majority of the beneficial economic interests in
such Joint Ventures that is not owned by the Consolidated Businesses is owned or
controlled by Qualified Joint Venture Partners; plus (iv) the Borrower's pro
rata share of Net Income attributable to other Unencumbered assets including
Performing Notes (exclusive of Investment Funds, land and development, and
service company income); less (v) the quotient of Capital Expenditure Coverage
Reserve Amounts for such period relating to such Unencumbered assets divided by
four (4);
provided, the sum of clauses (ii), (iii) and (iv) above shall not exceed twenty
percent (20%) of Adjusted Unencumbered NOI; clause (iii) shall not exceed five
percent (5%) of Adjusted Unencumbered NOI; and clause (iv) shall not exceed
fifteen percent (15%) of Adjusted Unencumbered NOI.
"ADMINISTRATIVE AGENT" means JPMorgan, in its capacity as
administrative agent for the Lenders.
"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
2
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to vote ten percent (10%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"AGENTS" means, collectively, JPMorgan in its capacity as
Administrative Agent, Wells Fargo Bank, National Association, in its capacity as
Syndication Agent, Citicorp North America, Inc. and Wachovia Bank, National
Association in their capacities as Co-Documentation Agents, the Arrangers, and
each successor agent appointed pursuant to the terms of Article XII of this
Agreement.
"AGREEMENT" has the meaning set forth in the preamble 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 (iii) its Competitive Bid Lending Office in
respect of provisions relating to Competitive Bid Loans.
"APPLICABLE MARGIN" means, with respect to each Loan, the respective
percentages per annum determined based on the range into which the Borrower's
Credit Rating then falls, in accordance with the following table. Any change in
the Borrower's Credit Rating causing it to move to a different range on the
table shall to the extent set forth below effect an immediate change in the
Applicable Margin. The Borrower shall notify the Administrative Agent in writing
promptly after becoming aware of any change in any of its Credit Ratings. The
Borrower shall maintain Credit Ratings from at least two (2) Rating Agencies,
one of which must be Moody's or S&P so long as such Persons are in the business
of providing debt ratings for the REIT industry; provided that if the Borrower
fails to maintain at least two Credit Ratings, the Applicable Margin shall be
based upon an S&P rating of less than BBB- in the table below. In the event that
the Borrower receives two (2) Credit Ratings that are not equivalent, the
Applicable Margin shall be determined by the lower of such two (2) Credit
Ratings, at least one of which shall be an Investment Grade Rating. In the event
the Borrower receives more than two (2) Credit Ratings and such Credit Ratings
are not equivalent, the Applicable Margin shall be determined by the lower of
the two highest ratings; provided that each of said two (2) highest ratings
shall be Investment Grade Ratings and at least one of which shall be an
Investment Grade Rating from S&P or Moody's.
3
Range of Applicable
the Borrower's Applicable Margin for
Credit Rating Margin for Euro Base Rate
(S&P/Moody's Dollar Loans Loans
or other Ratings) (% per annum) (% per annum)
----------------- ------------- -------------
A-/A3 or their equivalent or higher 0.60 0
BBB+/Baa1 or their equivalent 0.625 0
BBB/Baa2 or their equivalent 0.70 0
BBB-/Baa3 or their equivalent 0.90 0
Below BBB-/Baa3 or their equivalent 1.20 0
or unrated
The Administrative Agent shall notify the Banks in writing promptly after it
obtains knowledge of any change in the Borrower's Credit Rating which shall
effect a change in the Applicable Margin.
"ARRANGERS" means J.P. Morgan Securities Inc. and Salomon Smith Barney
Inc., each appointed pursuant to the terms of Article XII of this Agreement.
"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 Administrative Agent in
connection with an assignment of a Lender's interest under this Agreement in
accordance with the provisions of Section 14.1.
"AUTHORIZED FINANCIAL OFFICER" means a chief executive officer,
president, chief financial officer, treasurer or other qualified senior officer
acceptable to the Administrative Agent.
"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 JPMorgan in New
York, New York from time to time, as JPMorgan'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.
4
Any change in the Base Rate shall result in a corresponding change on
the same day in the rate of interest accruing from and after such day on the
unpaid balance of any Base Rate Loan.
"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), (ii) an overdue amount which was a Base Rate Loan
immediately before it became due or (iii) for purposes of Section 5.2, any Loan
which bears interest at a rate determined by reference to the Base Rate.
"BENEFIT PLAN" means an employee benefit plan defined in Section 3(3)
of ERISA in respect of which the Borrower or any ERISA Affiliate (i) is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA or (ii) has assumed or is otherwise subject to any
liability.
"BORROWER" means Reckson.
"BORROWER NOTES" has the meaning set forth in Section 4.3(a).
"BORROWER PARTNERSHIP AGREEMENT" means the Reckson Partnership
Agreement as such agreement may be amended, restated, modified or supplemented
from time to time with the consent of the Agents or as permitted under Section
10.9.
"BORROWING" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"BUDGETED CONSTRUCTION COST" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of or
described as vacant buildings, but excluding TI Work and excluding work prior to
erection of the structure of the building) has commenced and is proceeding to
completion in the ordinary course but has not yet been completed (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public), the aggregate
full-budgeted costs of construction of such Improvements (including land
acquisition costs and other soft costs and TI Work relating to such Property, in
accordance with GAAP); provided that Budgeted Construction Cost shall exclude
build-to-suit Projects that are seventy-five percent (75%) pre-leased or
Projects which are less than seventy-five percent (75%) pre-leased but have a
pro-forma yield of ten percent (10%) or more, based upon executed leases and the
cost of acquisition plus the estimated cost to complete the same, which
estimated cost to complete shall be determined in a manner reasonably acceptable
to the Administrative Agent and the Syndication Agent.
5
"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 (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.
"CAPITAL EXPENDITURE VALUATION RESERVE AMOUNTS" means the sum of (a) an
amount per annum equal to $0.40 multiplied by the number of square feet for
office properties (other than New York City Assets) owned, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures; (b) an
amount per annum equal to $0.15 multiplied by the number of square feet for
industrial properties owned, directly or indirectly, by any of the Consolidated
Businesses or Joint Ventures; and (c) an amount per annum equal to $0.50
multiplied by the number of square feet for New York City Assets.
"CAPITAL EXPENDITURE COVERAGE RESERVE AMOUNTS" means the sum of (a) an
amount per annum equal to $1.25 multiplied by the number of square feet for
office properties (other than New York City Assets) owned, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures; (b) an
amount per annum equal to $0.40 multiplied by the number of square feet for
industrial properties owned, directly or indirectly, by any of the Consolidated
Businesses or Joint Ventures; and (c) an amount per annum equal to $1.75
multiplied by the number of square feet for New York City Assets.
"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 unrestricted (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 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.
6
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. ss.ss. 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 December 30, 2002.
"COMBINED EQUITY VALUE" means Total Value, less Total Outstanding
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 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 Reckson Associates Realty Corp., a Maryland
corporation.
"COMPETITIVE BID LENDER" means, as to each Competitive Bid Loan, the
Lender funding such Competitive Bid Loan.
"COMPETITIVE BID 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 Competitive Bid Lending Office by notice to the
Borrower and the Agent.
7
"COMPETITIVE BID LOAN" means a loan made or to be made by a Lender
pursuant to a LIBOR Auction (including such a loan bearing interest at the Base
Rate pursuant to Section 5.2).
"COMPETITIVE BID MARGIN" has the meaning set forth in Section
2.2(d)(ii)(C).
"COMPETITIVE BID QUOTE" means an offer by a Lender to make a
Competitive Bid Loan in accordance with Section 2.2(d).
"COMPETITIVE BID QUOTE REQUEST" has the meaning set forth in Section
2.2(a).
"COMPLIANCE CERTIFICATE" has the meaning set forth in Section 8.2(b).
"CONSOLIDATED" means consolidated, in accordance with GAAP.
"CONSOLIDATED BUSINESSES" means the Company, the Borrower, Reckson FS
Limited Partnership, Metropolitan, MOP and their wholly-owned Subsidiaries.
"CONSTRUCTION ASSET COST" means, with respect to Property on which
vertical construction of Improvements (including redevelopments consisting of or
described as vacant buildings, but excluding TI Work and excluding work prior to
erection of the structure of the building) has commenced and is proceeding to
completion in the ordinary course but has not yet been completed (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public), the aggregate
sums incurred and paid on the construction of such Improvements (including land
acquisition costs and other soft costs and TI Work relating to such Property, in
accordance with GAAP). Any such Property shall continue to be valued (for
financial covenant compliance purposes) at its Construction Asset Cost until the
end of four (4) consecutive quarters following such completion (as such
completion shall be evidenced by a temporary or permanent certificate of
occupancy permitting use of such Property by the general public).
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos containing materials (in any
form or condition), polychlorinated biphenyls (PCBs), or any constituent of any
such substance or waste, and includes, but is not limited to, these terms as
defined in federal, state or local laws or regulations.
8
"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, which obligation guarantees partially or in whole any
non-recourse Indebtedness, lease, dividend or other obligation, exclusive of
contractual indemnities (including, without limitation, any Non-Recourse
Carve-Outs, 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. Notwithstanding the
foregoing, any litigation required to be disclosed in the footnotes to such
Person's financial statements in accordance with GAAP shall not be included as a
"Contingent Obligation" unless the same shall have been reserved for in
accordance with GAAP. 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 Borrower required to be
delivered pursuant hereto; provided that in no event shall the amount of
Contingent Obligations with respect to any guaranties relating to a loan exceed
the principal amount of such loan. 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 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 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
9
guaranteed obligations or (Y) such other Person holds an Investment Grade 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 Debt 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 ratings assigned by not less than two of the
Rating Agencies (at least one of which shall be S&P or Moody's) to the
Borrower's senior long-term unsecured indebtedness. The decision on which two,
or in certain cases three, Rating Agencies to use shall be made by the Borrower
so long as one of such Rating Agencies shall be Moody's or S&P.
"CURE LOANS" has the meaning set forth 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 or levies 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 respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP;
(ii) statutory and common law Liens of landlords against any
Property of the Borrower or any of its Subsidiaries;
(iii) 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 could not reasonably be
expected to result in a Material Adverse Effect;
10
(iv) 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 which do not secure at any time
an aggregate amount of recourse Indebtedness exceeding $10,000,000;
(v) 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 materially
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
(vi) leases or subleases granted to other Persons not
materially interfering with the conduct of the business of the Borrower
and its Subsidiaries taken as a whole;
(vii) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its Subsidiaries
at the time of acquisition thereof by the Borrower or any such
Subsidiary or within 180 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof,
provided that the Lien encumbering the equipment or machinery so
acquired does not encumber any other asset of the Borrower or such
Subsidiary;
(viii) customary restrictions imposed by licensors of software
or trademarks on users thereof;
(ix) interests of licensees and sublicensees in any trademarks
or other intellectual property license or sublicense by the Borrower or
any of its Subsidiaries; and
(x) Environmental Liens less than $5,000,000, which are being
contested in good faith by appropriate proceedings.
11
"DESIGNATED BANK" means a special purpose corporation that (i) shall
have become a party to this Agreement pursuant to Section 14.1(f), and (ii) is
not otherwise a Lender.
"DESIGNATED BANK NOTES" means promissory notes of the Borrower,
substantially in the form of EXHIBIT B-2 hereto, evidencing the obligation of
the Borrower to repay Competitive Bid Loans made by Designated Banks, as the
same may be amended, supplemented, modified or restated from time to time, and
"Designated Bank Note" means any one of such promissory notes issued under
Section 14.1(f) hereof.
"DESIGNATED LENDER" has the meaning set forth in Section 13.4.
"DESIGNATING LENDER" shall have the meaning set forth in Section
14.1(f) hereof.
"DESIGNATION AGREEMENT" means a designation agreement in substantially
the form of EXHIBIT K attached hereto, entered into by a Lender and a Designated
Bank and accepted by the Agent.
"DOCUMENTATION AGENTS" means Citicorp North America, Inc. and Wachovia
Bank, National Association, in their capacities as co-documentation agents for
the Lenders.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLARS" and "$" 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 SCHEDULE LC hereto or as set forth in 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 Administrative Agent.
"ELIGIBLE ASSIGNEE" means (i) a Lender or a Lender Affiliate; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the organization for Economic
Cooperation and Development having total assets in excess of $10,000,000,000; or
(iv) a finance company or other financial institution reasonably acceptable to
the Administrative Agent, which is regularly engaged in making, purchasing or
investing in loans and having total assets in excess of $1,000,000,000 or is
otherwise reasonably acceptable to the Administrative Agent.
12
"ELIGIBLE CASH 1031 PROCEEDS" means the cash proceeds held by a
"qualified intermediary" from the sale of Real Property, which proceeds are
intended to be used by such qualified intermediary to acquire one or more
"replacement properties" that are of "like-kind" to such Real Property in an
exchange that qualifies as a tax-free exchange under Section 1031 of the
Internal Revenue Code, and no portion of which proceeds the Borrower, the
Company or any Affiliate has the right to receive, pledge, borrow or otherwise
obtain the benefits of until such time as provided under the applicable
"exchange agreement" (as such terms in quotations are defined in Treasury
Regulations Section 1.1031(k)-1(g)(4) (the "REGULATIONS")) or until such
exchange is terminated. Upon the cash proceeds no longer being held by such
qualified intermediary pursuant to the Regulations or otherwise no longer
qualifying under the Regulations for like-kind exchange treatment, such proceeds
shall cease being Eligible Cash 1031 Proceeds.
"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".
"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. ss.ss. 1000 et seq., any amendments thereto, any successor statutes, and
any regulations or guidance promulgated thereunder.
13
"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 Benefit Plan or Multiemployer Plan; (ii) the withdrawal of the Borrower or
any ERISA Affiliate from a Benefit 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 Benefit 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 Benefit Plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the institution
by the PBGC of proceedings to terminate a Benefit 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 Benefit 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 SCHEDULE LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender or such Lender Affiliate
as it may from time to time specify by written notice to the Borrower and the
Administrative Agent.
"EURODOLLAR INTEREST PERIOD" has the meaning set forth in Section
5.2(b).
"EURODOLLAR INTEREST RATE DETERMINATION DATE" has the meaning set forth
in Section 5.2(c).
"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 SCHEDULE LC hereto or as set forth in 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
Administrative Agent.
14
"EURODOLLAR RATE" means, for any Eurodollar Interest Period with
respect to any Eurodollar Rate Loan or a Competitive Bid Loan, an interest rate
per annum equal to the rate per annum obtained by multiplying (a) a rate per
annum equal to the rate for Dollar deposits with maturities comparable to such
Eurodollar Interest Period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Eurodollar
Interest Period, provided, however, that if such rate does not appear on
Telerate Page 3750, the "Eurodollar Rate" applicable to a particular Eurodollar
Interest Period shall mean a rate per annum equal to the rate at which Dollar
deposits in an amount approximately equal to the principal balance (or the
portion thereof which will bear interest at a rate determined by reference to
the Eurodollar Rate during the Eurodollar Interest Period to which such
Eurodollar Rate is applicable in accordance with the provisions hereof), and
with maturities comparable to the last day of the Eurodollar Interest Period
with respect to which such Eurodollar Rate is applicable, are offered in
immediately available funds in the London Interbank Market to the London office
of JPMorgan by leading banks in the Eurodollar market at 11:00 a.m., London
time, two (2) Business Days prior to the commencement of the Eurodollar Interest
Period to which such Eurodollar Rate is applicable, by (b) a fraction (expressed
as a decimal) the numerator of which shall be the number one and the denominator
of which shall be the number one minus the Eurodollar Reserve Percentage for
each day during such Eurodollar Interest Period.
"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
or (iii) for purpose of Section 5.2, any Loan which bears interest at a rate
determined by reference to the Eurodollar Rate.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
which is in effect on such day, as prescribed 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).
15
"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.
"EXISTING PERMITTED LIENS" means each of the Liens set forth on
SCHEDULE 1.1.1 hereto.
"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 such transactions
by the Reference Bank, as determined by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"FFO" means "funds from operations" as defined in accordance with
resolutions adopted by the Board of Governors of the National Association of
Real Estate Investment Trusts as in effect from time to time.
"FINANCIAL STATEMENTS" means (i) quarterly and annual consolidated
statements of income and retained earnings, statements of cash flow, and balance
sheets, prepared in accordance with GAAP, consistently applied, and (ii) such
other financial statements of the Borrower, the Company and the other
Consolidated Businesses or Joint Ventures that the Company shall routinely and
regularly prepare and that the Arrangers or the Requisite Lenders may from time
to time reasonably request.
"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.
"FITCH" means Fitch Ratings, a division of Fitch, Inc. or any successor
thereto.
16
"FIXED CHARGES" means, with respect to any fiscal period, the sum of
(a) Total Interest Expense, (b) the aggregate of all scheduled principal
payments on Total Outstanding Indebtedness according to GAAP made or required to
be made during such fiscal period for the Consolidated Businesses and Joint
Ventures (but excluding balloon payments of principal due upon the stated
maturity of an Indebtedness), provided that only the Consolidated Businesses'
pro rata share of the Joint Ventures' scheduled principal payments are to be
included, and (c) the aggregate of all dividends or distributions payable
(whether paid or accrued) on all preferred stock and other preferred securities
or preferential arrangements of the Consolidated Businesses, including, without
limitation, preferred distributions payable to holders of preferred OP Units. As
used herein, "OP Units" means limited partnership interests in Reckson.
"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" 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 subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTIES" means, collectively, the Unconditional Guaranties of
Payment, made by each of the Company, Reckson FS Limited Partnership and the
other Guarantors for the benefit of the Lenders, in substantially the form of
EXHIBIT L hereto.
"GUARANTORS" means, collectively, the Company, Reckson FS Limited
Partnership, 360 Hamilton Plaza LLC, Metropolitan, MOP, Tower Mineola Limited
Partnership and any other Affiliate of the Borrower executing a Guaranty. Any
Guarantor that is the owner or ground lessor of an Unencumbered Project shall be
a wholly-owned Subsidiary of the Borrower.
17
"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 and fees 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 preferred stock
(but only to the extent that such Person shall be contractually obligated to pay
the same), (iii) with respect to letters of credit, bankers' acceptances or
similar facilities issued for such Person's account or for which such Person
otherwise has reimbursement obligations, (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 or so-called
synthetic leases, (vi) which are Contingent Obligations or (vii) under
indemnities but only at such time as a claim shall have been made thereunder;
(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 such Person, all as of
such time, but in a case of obligations of others not assumed by such Person an
amount not in excess of the value of such property; (c) all indebtedness,
obligations or other liabilities of such Person in respect of interest rate
contracts, derivatives contracts and foreign exchange contracts, net of
liabilities owed to such Person by the counterparties thereon; (d) all preferred
stock and preferred equity interests subject (upon the occurrence of any
contingency or otherwise) to mandatory redemption in cash by the holder of such
preferred stock or equity interest; (e) all preferred stock and preferred equity
interests in any Consolidated Business (other than the Company and the Borrower)
which has not provided a Guaranty of the Obligations; and (f) all Contractual
Obligations with respect to any of the foregoing.
"INDEMNIFIED MATTERS" has the meaning set forth in Section 14.3.
18
"INDEMNITEES" has the meaning set forth in Section 14.3.
"INITIAL FUNDING DATE" means the date on or after the Closing Date on
which all of the conditions described in Section 6.1 have been satisfied (or
waived) in a manner satisfactory to the Administrative Agent and the Lenders and
on which the initial Loans under this Agreement are made by the Lenders to the
Borrower.
"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,
(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 all Indebtedness to such Person arising from a sale of property by
such Person other than in the ordinary course of its business, and (iv) any
purchase or other acquisition by that Person of Real Property, whether directly
or indirectly. The amount of any Investment shall be the original cost of such
Investment (together with all capital improvement costs thereafter paid or
incurred with respect to such Investment in accordance with GAAP), without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Investment.
"INVESTMENT FUNDS" means (i) Reckson Strategic Venture Partners LLC,
and (ii) a Person in which FrontLine Capital Group or a Subsidiary thereof is a
general partner or a managing member, in the case of a partnership or limited
liability company, and which, in the case of a corporation, has the right to
elect a majority of the board of directors.
"INVESTMENT GRADE RATING" means a rating for a Person's senior
long-term unsecured debt of BBB- or better from S&P, and a rating of Baa3 or
better from Moody's or a rating equivalent to the foregoing from Fitch or
another Rating Agency.
"INVITATION FOR COMPETITIVE BID QUOTES" means an Invitation for
Competitive Bid Quotes substantially in the form of EXHIBIT I hereto.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
19
"ISSUING BANK" means JPMorgan, or with the consent of the Arrangers
(not to be unreasonably withheld) and the Borrower, another Lender.
"JOINT VENTURES" means any interests in partnerships, joint ventures,
limited liability companies, trusts, associations and corporations held or owned
directly or indirectly by the Borrower and/or the Company which are not
wholly-owned by the Borrower and/or the Company (other than Investment Funds or
any affiliated or unaffiliated operating company that the Borrower includes
under clause (vii) of the definition of Total Value, subject to the limitation
of $100,000,000 investments (valued at the lower of cost or market in accordance
with GAAP)).
"JOINT VENTURE UNENCUMBERED VALUE" means the portion of Total
Unencumbered Value from Joint Ventures attributable to Unencumbered Projects and
Unencumbered New York City Assets.
"JPMORGAN" means JPMorgan Chase Bank.
"KNOWLEDGE" with reference to the Company, the Borrower or any
Subsidiary of any of them, means the actual knowledge of such Person after
reasonable inquiry (which reasonable inquiry shall include, without limitation,
interviewing and questioning such other Persons as the Company, the Borrower or
such Subsidiary, as applicable, deems reasonably necessary).
"LAND/DEVELOPMENT UNENCUMBERED VALUE" means the portion of Total
Unencumbered Value which is attributable to Unencumbered assets consisting of
land and Projects under development.
"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.
"LENDER" means (i) 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 Lender, whether as a signatory hereto or
pursuant to an Assignment and Acceptance, 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 Revolving Credit Commitments or
terms relating to the Committed Loans and the Revolving Credit Commitments and
shall further exclude each Designated Bank for all other purposes hereunder
except that any Designated Bank which funds a Competitive Bid Loan shall,
subject to Section 14.1(f), have the rights (including, without limitation, the
rights given to a Lender contained in Section 14.2 and otherwise in Article XIV)
and obligations of a Lender associated with holding such Competitive Bid Loan.
20
"LENDER AFFILIATE" means with respect to any Lender an Affiliate of
such Lender.
"LETTER OF CREDIT" means any Commercial Letter of Credit or Standby
Letter of Credit.
"LETTER OF CREDIT FEE" has the meaning set forth in Section 5.3(a).
"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 Administrative 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 Competitive Bid Quotes setting
forth Competitive Bid 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
21
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.
"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" has the meaning set forth in Section 4.3(b).
"LOAN DOCUMENTS" means this Agreement, the Notes and the Guaranties.
"LOANS" means Committed Loans and Competitive Bid Loans.
"MANAGEMENT COMPANY" means, collectively (i) Reckson Management Group,
Inc., a Delaware corporation, RANY Management Group, Inc. and their respective
wholly-owned or controlled Subsidiaries and (ii) such other property management
companies controlled (directly or indirectly) by the Company or the Borrower and
which property management companies manage properties owned by the Company, the
Borrower and its Subsidiaries and for which the Borrower has previously provided
the Administrative Agent with: (1) notice of such property management company,
(2) evidence reasonably satisfactory to the Administrative Agent that such
property management company is controlled (directly or indirectly) by the
Company or the Borrower, and (3) evidence reasonably satisfactory to the
Administrative Agent that such property management company manages properties
owned, in whole or in part by the Company or the Borrower or its Subsidiaries.
"MARGIN STOCK" means "margin stock" or "margin security" as such terms
are defined in Regulation U and Regulation X.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
financial condition or assets of the Company, the Borrower and their
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
material obligations under the Loan Documents, (iii) the ability of the
Guarantors to perform their material obligations under the Guaranties, or (iv)
the ability of the Lenders or the Administrative Agent to enforce any of the
Loan Documents.
22
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time, the
Revolving Credit Commitments at such time.
"METROPOLITAN" means Metropolitan Partners, LLC, a Delaware limited
liability company, in which the Borrower currently owns 100% of the common
equity interests.
"MOODY'S" means Moody's Investors Service, Inc.
"MOP" means Metropolitan Operating Partnership, L.P., a Delaware
limited partnership, a Subsidiary of Metropolitan.
"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.
"NET CASH PROCEEDS" means all cash when and as received in connection
with the sale or refinancing of any asset, less reasonable costs and expenses,
repayment of secured indebtedness with respect to the applicable asset, and net
of an amount equal to taxable capital gains and real estate transfer taxes
payable in connection with any asset sale.
"NET INCOME" means, with respect to any Person, the net income of such
Person determined in accordance with GAAP.
"NET OFFERING PROCEEDS" means all cash or other assets received by the
Company or the Borrower as a result of the sale of common shares, preferred
shares, partnership interests, limited liability company interests, convertible
securities or other ownership or equity interests in the Company or the
Borrower, less customary costs, expenses and discounts of issuance paid by the
Company or the Borrower, as the case may be.
"NEW YORK CITY ASSET" means Real Property which is Class A office
property located in the borough of Manhattan, New York, New York and which is
owned by one of the Consolidated Businesses or Joint Ventures.
"NOI" means (x) net operating income determined in accordance with
GAAP, before gains or losses from extraordinary items relating to any Real
Property, plus (y) (i) any interest expense relating to such Real Property, (ii)
depreciation and amortization relating to such Real Property, and (iii) Property
Level G&A to the extent included in the calculation of net operating income,
less (z) (i) free rent and accrued rent with respect to tenants that are more
23
than 90 days in arrears in the payment of rent, and further adjusted to omit the
straight line treatment of rent, so as to account for rent on an accrual basis,
(ii) any interest income relating to such Real Property, and (iii) the greater
of Property Level G&A to the extent included in the calculation of net operating
income and an amount equal to 2% of gross revenues with respect to such Real
Property.
"NON PRO RATA LOAN" has the meaning set forth in Section 4.2(b)(v).
"NON-RECOURSE CARVE-OUTS" means exceptions to non-recourse obligations,
such as fraud, misappropriation, waste, environmental liabilities, improper
transfer and breach of restrictions on further financing and breach of single
purpose entity covenants, which are usual and customary in secured transactions
involving institutional lenders or securitized financings and recourse to single
purpose entities that are Consolidated Businesses which have no material assets
other than the Real Property or Properties which are the subject of the Secured
Indebtedness.
"NOTE" means the Borrower Notes and the Designated Lender 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 Competitive Bid Borrowing.
"NOTICE OF COMMITTED BORROWING" means a notice substantially in the
form of EXHIBIT C attached hereto and made a part hereof.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning set forth in
Section 2.2(f).
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in the
form of EXHIBIT D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"OBLIGATIONS" means all Loans, advances, debts, liabilities and
monetary obligations owing by the Borrower to the Administrative Agent, the
Syndication Agent, each Documentation Agent, any Lender, or any Person entitled
to indemnification pursuant to Section 14.3 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, reasonable 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,
24
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 ACCOUNT" has the meaning set forth in Section 9.11 hereof.
"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 equivalent organizational documents) of such corporation
or limited liability company, (ii) the partnership agreement executed by the
partners in such partnership, (iii) the by-laws (or the equivalent governing
documents) of such 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.
"ORIGINAL REVOLVING CREDIT AGREEMENT" has the meaning set forth in the
recitals.
"ORIGINAL TERM LOAN AGREEMENT" has the meaning set forth in the
recitals.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
ss.ss. 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance promulgated thereunder.
"OTHER MANAGEMENT COMPANY" means property management companies
controlled (directly or indirectly) by the Company or the Borrower which may
manage properties owned by third parties.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"PERFORMING NOTES" means mortgage notes, notes receivable and other
investments in Real Property (other than investments in or loans to, directly or
indirectly, an Investment Fund, or joint venture arrangements with an Investment
Fund, or an affiliated or unaffiliated operating company in which such
25
Investment Fund or joint venture arrangements with an Investment Fund owns an
equity interest), valued at the lower of cost or market in accordance with GAAP
and which are not more than 30 days past due or otherwise in default; provided,
that, in the case of mortgage notes, notes receivable and other investments in
Real Property that generate cash and non-cash payments, such mortgage notes,
notes receivable and other investments in Real Property shall be treated as
Performing Notes whose value is determined solely by reference to the cash
payments and references to the income generated by the Performing Notes shall
include only the cash payments which have current payments payable in cash.
"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 1.1.2.
"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.
"PLAN" means a Benefit Plan or a Multiemployer Plan.
"POTENTIAL EVENT OF DEFAULT" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"PREPAYMENT DATE" has the meaning set forth in Section 4.1(d).
"PROJECT" means any office or industrial properties owned, directly or
indirectly, by any of the Consolidated Businesses or Joint Ventures.
"PROPERTY" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable, or
other asset owned or leased by any Consolidated Business or any Joint Venture.
The definition of "Property" shall specifically exclude items of Real Property
or personal property owned or leased by members of the Rechler family.
26
"PROPERTY LEVEL G&A" means general and administrative expenses
allocated to the Properties.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (i) 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. The Pro
Rata Share of each Lender is set forth opposite such Lender's name on SCHEDULE
LC hereto or in the Assignment and Acceptance by which it became a Lender, and
shall be modified from time to time pursuant to this Agreement.
"QUALIFIED JOINT VENTURE PARTNERS" means (a) pension funds, insurance
companies, banks, investment banks or similar institutional entities, each with
significant experience in making investments in commercial real estate and (b)
commercial real estate companies of similar quality and experience.
"RATING AGENCY" means Moody's, S&P, Fitch or another
nationally-recognized rating agency reasonably satisfactory to the
Administrative Agent.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. ss.ss. 6901 et seq., any amendments thereto, any successor statutes, and
any regulations or guidance promulgated thereunder.
"REAL PROPERTY" means all of the Borrower's and the Consolidated
Businesses' 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, and (iv) 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 clause (iii) above.
"RECKSON" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"REFERENCE BANK" means JPMorgan.
27
"REGISTER" has the meaning set forth in Section 14.1(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" has the meaning set forth in Section 3.1(d)(i)(A).
"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(c)
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
28
or any of its property or to which 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 equal to or 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 sixty-six and two-thirds
percent (66.67%) or more 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 sixty-six and two-thirds percent (66.67%) or more.
"RESTRICTED PAYMENT" has the meaning set forth in Section 10.11(h).
"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.
"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 on
SCHEDULE LC hereto or in 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
$470,000,000 as such amount may be increased or reduced from time to time
pursuant to Sections 2.1(b) and 4.1.
29
"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 Competitive Bid 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)
December 30, 2005 (or, if not a Business Day, the next preceding Business Day),
as such date may extended as described below in this definition, and (ii) the
date of termination of the Revolving Credit Commitments pursuant to the terms of
this Agreement. The Borrower may, by written notice to the Administrative Agent
(which shall promptly notify each of the Lenders) given at least sixty (60) days
prior to the Revolving Credit Termination Date, extend the Revolving Credit
Termination Date for one (1) year, provided that no Potential Event of Default
or Event of Default shall have occurred and be continuing on the date of such
written notice and on the effective date of such extension and that the Borrower
pays an aggregate extension fee equal to 0.25% of the then existing Revolving
Credit Commitments (to the Administrative Agent for the ratable benefit of the
Lenders).
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"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.
30
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"SERVICING EBITDA" means, with respect to the Management Company or any
other service company owned by the Borrower or the Company, as of the first day
of each fiscal quarter for the immediately preceding fiscal quarter, an amount,
determined in accordance with GAAP, equal to (i) total earnings relating to such
companies' operations adjusted to exclude amounts that are more than 90 days
delinquent, less (ii) total operating expenses relating to such operations,
including corporate marketing, general and administrative expenses.
"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
(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.
"SYNDICATION AGENT" means Wells Fargo Bank, National Association, in
its capacity as syndication agent for the Lenders.
"TAXES" has the meaning set forth in Section 13.1(a).
31
"TELERATE PAGE 3750" means the display designated as "Page 3750" on the
Associated Press-Dow Jones Market Service (or such other page as may replace
Page 3750 on the Associated Press - Dow Jones Market Service or such other
service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
interest settlement rates for U.S. Dollar deposits). Any Eurodollar Rate
determined on the basis of the rate displayed on Telerate Page 3750 in
accordance with the provisions hereof shall be displayed by the Associated
Press-Dow Jones Telerate Service within one hour of the time when such rate is
first displayed by such service.
"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 improvement 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 EBITDA" means, for any quarterly period, (i) net income
determined in accordance with GAAP, plus (ii) Total Interest Expense,
depreciation and amortization deducted in the calculation of such net income,
plus (iii) taxes on income deducted in the calculation of such net income, less
(iv) the gains (and plus the losses) from extraordinary items, asset sales,
write-ups, debt forgiveness, asset impairments, mark to market adjustments for
marketable securities or fair market valuation adjustments for derivatives
included in the calculation of such net income, less (v) the Capital Expenditure
Coverage Reserve Amounts divided by four.
"TOTAL INTEREST EXPENSE" means the sum of (i) interest expense of the
Consolidated Businesses paid during such period and (ii) interest expense of the
Consolidated Businesses accrued and/or capitalized for such period and (iii) the
pro-rata portion of the interest expense of Joint Ventures allocable to the
Borrower and paid during such period and (iv) the pro-rata portion of the
interest expense of Joint Ventures allocable to the Borrower accrued and/or
capitalized 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.
"TOTAL 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, prepared in
accordance with GAAP, plus any additional Indebtedness incurred by the
Consolidated Businesses since the time of such statements, less any Indebtedness
32
repaid by the Consolidated Businesses since the time of such statements, and
(ii) the outstanding amount of Joint Venture Indebtedness set forth on the then
most recent quarterly financial statements of the Borrower or the applicable
Joint Venture, prepared in accordance with GAAP, plus any additional Joint
Venture Indebtedness incurred by the Joint Ventures since the time of such
statements, less any Indebtedness repaid by the Joint Ventures since the time of
such statements; provided that all of the foregoing shall only include the
Consolidated Businesses' pro rata share of the outstanding and additional
Indebtedness, as the case may be, with respect to any Joint Venture, and (iii)
the Contingent Obligations of the Consolidated Businesses and the pro-rata
portion of Contingent Obligations of the Joint Ventures allocable to the
Consolidated Businesses.
"TOTAL RECOURSE SECURED OUTSTANDING INDEBTEDNESS" means Total Secured
Outstanding Indebtedness under the terms of which any of the Consolidated
Businesses guarantees or is directly obligated for any portion of such
Indebtedness or interest payments thereon (other than Non-Recourse Carve-Outs),
including, without limitation, the pro rata share of such recourse Indebtedness
of Joint Ventures allocable to any of the Consolidated Businesses.
"TOTAL SECURED OUTSTANDING INDEBTEDNESS" means the sum of (i) that
portion of Total Outstanding Indebtedness that is secured by a Lien, including,
without duplication, the pro rata share of such Indebtedness that is Joint
Venture Indebtedness allocable to any of the Consolidated Businesses, plus (ii)
that portion of Total Outstanding Indebtedness attributable to Consolidated
Subsidiaries of the Borrower (or the Joint Ventures) which is recourse to the
Borrower or any of the Consolidated Subsidiaries (other than Non-Recourse
Carve-Outs), regardless of whether it is secured by a Lien (it being understood
that this definition shall not include the Loans hereunder).
"TOTAL UNENCUMBERED VALUE" means the portion of Total Value
attributable to Unencumbered assets (including, without limitation, the
Unencumbered Projects, but excluding Investment Funds and service company
income) owned by the Consolidated Businesses and the Joint Ventures, subject to
the limitations set forth in the next paragraph and the following conditions and
limitations: (i) only the amount of unrestricted Cash and Cash Equivalents in
excess of $40,000,000 shall be included; (ii) Joint Venture Unencumbered Value
for Joint Ventures in which the Borrower's beneficial economic interest is
fifty-one percent (51%) or greater shall be included, provided the sale or
financing of any Property owned by such Joint Venture is substantially
controlled by the Borrower, subject to customary provisions set forth in the
33
organizational documents of such Joint Venture with respect to financings, sales
or rights of first refusal granted to other members of such Joint Venture; (iii)
Joint Venture Unencumbered Value for Joint Ventures in which the Borrower's
beneficial economic interest is less than fifty-one percent (51%) shall be
included, provided that a majority of the beneficial economic interests in such
Joint Ventures that are not owned by the Consolidated Businesses is owned or
controlled by Qualified Joint Venture Partners; (iv) the portion of Total
Unencumbered Value attributable to Performing Notes shall be included; (v)
Land/Development Unencumbered Value shall be included; (vi) the portion of Total
Unencumbered Value attributable to Unencumbered office and industrial Projects
owned by the Consolidated Businesses for less than four (4) fiscal quarters and
which have received a certificate of occupancy but have not achieved an
occupancy rate of eighty-five percent (85%) shall be included; and (vii) the
portion of Total Unencumbered Value attributable to Unencumbered office and
industrial Projects owned by the Consolidated Businesses for more than four (4)
fiscal quarters and which have received a certificate of occupancy but have not
achieved an occupancy rate of eighty-five percent (85%) shall be included.
The sum of clauses (ii), (iii), (iv) and (v) above shall not exceed
twenty percent (20%) of Total Unencumbered Value. Clause (iii) shall not exceed
five percent (5%) of Total Unencumbered Value. Clause (iv) shall not exceed
fifteen percent (15%) of Total Unencumbered Value. Clause (v) shall not exceed
ten percent (10%) of Total Unencumbered Value. Neither clause (vi) nor (vii)
shall separately exceed fifteen percent (15%) of Total Unencumbered Value;
provided that any Total Unencumbered Value attributable to assets described in
clauses (vi) and (vii) in excess of such fifteen percent (15%) limitations may
nonetheless be included in Total Unencumbered Value to the extent that aggregate
amount of such excess, together with the sum of clauses (ii), (iii), (iv) and
(v) above, shall not exceed twenty percent (20%) of Total Unencumbered Value.
"TOTAL UNSECURED OUTSTANDING INDEBTEDNESS" means that portion of Total
Outstanding Indebtedness that is not secured by a Lien. Without limiting the
foregoing, Total Unsecured Outstanding Indebtedness shall include, without
double counting, (i) all amounts outstanding under this Agreement, (ii) all
Indebtedness of the Consolidated Businesses, including the Consolidated
Businesses' pro rata share of Indebtedness of Joint Ventures, which is not
secured by a Lien, (iii) all outstanding undrawn letters of credit of the
Consolidated Businesses (and the pro rata share of such letters of credit
34
allocable to any of the Consolidated Businesses) less those outstanding undrawn
letters of credit for the benefit of any tenant, prospective tenant or lender at
any Real Property to secure the Consolidated Businesses' leasing obligations
relating to tenant improvement work or third party leasing commissions which
have previously been paid, as evidenced by a schedule provided by the Borrower
to the Administrative Agent upon the request of the Administrative Agent.
"TOTAL VALUE" means (a) the sum of (i) Valuation NOI divided by (A)
eight and one-half percent (8.50%) for all New York City Assets, (B) nine and
one-quarter percent (9.25%) for all other office Real Property, and (C) nine and
one-half percent (9.50%) for industrial Real Property; (ii) the Investment in
office and industrial Projects owned by the Consolidated Businesses for less
than four fiscal quarters; (iii) unrestricted Cash and Cash Equivalents; (iv)
land cost (at book value) and Construction Asset Cost, which credit will be
limited to fifteen percent (15%) of Total Value (exclusive of build-to-suit
Projects that are seventy-five percent (75%) pre-leased or Projects which are
less than seventy-five percent (75%) pre-leased but have a pro-forma yield of
ten percent (10%) or more, based upon executed leases and the cost of
acquisition plus the estimated cost to complete the same, which estimated cost
to complete shall be determined in a manner reasonably acceptable to the
Administrative Agent and the Syndication Agent); (v) NOI from all other Real
Property not otherwise set forth in this definition, divided by twelve percent
(12%); (vi) Servicing EBITDA of the Management Company or other such service
companies for the immediately preceding four (4) consecutive quarters, divided
by twenty percent (20%); (vii) any investment in or loan to (based on the actual
cash investment in or loan to), directly or indirectly, an affiliated or
unaffiliated operating company and investments in or loans to Investment Funds
either directly or indirectly or joint venture arrangements with Investment
Funds, which credit will be limited to $100,000,000 (valued at the lower of cost
or market in accordance with GAAP), other than (x) investments in, loans to, or
joint venture arrangements with Joint Ventures and (y) Performing Notes; (viii)
Performing Notes, which credit will be limited in the aggregate to fifteen
percent (15%) of Total Value; and (ix) Eligible Cash 1031 Proceeds;
less (b) the quotient of the Capital Expenditure Valuation Reserve Amounts for
such period, divided by (A) eight and one-half percent (8.50%) for all New York
City Assets, (B) nine and one-quarter percent (9.25%) for all other office
Property, and (C) nine and one-half percent (9.50%) for industrial Property; and
provided, the sum of items (a) (iv), (vii) and (viii) above shall not exceed
twenty-five percent (25%) of Total Value.
"2000 CREDIT AGREEMENT" has the meaning set forth in the recitals.
35
"UNENCUMBERED" means, with respect to any asset (other than a Project)
as of any date of determination, that such asset, the equity interests in such
asset and the revenues generated by such asset are not subject to any Liens
(excluding Customary Permitted Liens) or preferred equity interests.
"UNENCUMBERED PROJECT" means any Project located in the United States
that on any date of determination: (a) is not subject (nor are any equity
interests therein subject) to any Liens (excluding Customary Permitted Liens) or
preferred equity interests, (b) has been improved with Improvements which (1)
have been issued a certificate of occupancy (where available) or is otherwise
lawfully occupied for its intended use, and (2) are fully operational, including
in each case, an Unencumbered Project that is being renovated or restored and
such renovation is proceeding to completion without undue delay from Permit
denial, construction delays or otherwise, (c) has not been the subject of an
event or occurrence that has had a Material Adverse Effect, and (d) if owned by
a wholly-owned Subsidiary of the Borrower, such Subsidiary has executed and
delivered a Guaranty.
"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 INTEREST EXPENSE" means the interest expense paid, accrued
or capitalized on the Total Unsecured Outstanding Indebtedness for the
applicable period.
"VALUATION NOI" means, with respect to any office or industrial Project
or any office or industrial Joint Venture (exclusive of projects under
development), which has been owned by the Borrower for not less than four
consecutive quarters, as of the first day of each fiscal quarter, an amount
equal to the NOI relating to such Project or the Borrower's pro rata share of
such Joint Venture for the immediately preceding consecutive four fiscal
quarters.
"WHOLLY-OWNED" means, with respect to the ownership of any asset by any
Person, that such Person owns 100% of the voting and economic interests in such
asset; provided that, with the written approval of the Administrative Agent,
such Person may be deemed to wholly-own an asset if it owns less than 100% of
the voting and economic interests in such asset so long as such Person owns 100%
of the interests generally having the right to vote with respect to such asset
and at least 90% of the economic interests in such asset.
1.2. 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
36
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.
1.3. ACCOUNTING TERMS. Subject to Section 14.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4. 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.
1.5. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) The words "include", "includes" and "including" are not
limiting.
(f) Reference to a particular "Section" refers to that section
of this Agreement unless otherwise indicated, and reference to a particular
"Exhibit" or "Schedule" refers to that exhibit or schedule to this Agreement
unless otherwise indicated.
37
ARTICLE II.
AMOUNTS AND TERMS OF LOANS
2.1. 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. Subject to the
provisions of Section 2.1(b) below, the aggregate amount of Loans to be made
hereunder together with the Letter of Credit Obligations with respect to the
Borrower, shall not exceed Four Hundred and Seventy Million Dollars
($470,000,000). 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 $3,000,000 and with
integral multiples of $500,000; provided, however, that if the aggregate
Revolving Credit Availability outstanding at the time of such requested
Borrowing is less than $3,000,000, then the requested Borrowing shall be for the
total amount of such outstanding aggregate Revolving Credit Availability.
(b) Increase in Commitment. Unless a Potential Event of
Default or an Event of Default has occurred and is continuing, the Borrower, by
written notice to the Administrative Agent (which shall promptly notify each of
the Lenders), may request on up to five (5) occasions during the term of this
Agreement that the Revolving Credit Commitment be increased by an amount not
less than $25,000,000 per request and not more than $280,000,000 in the
aggregate (such that the Revolving Credit Commitment after such increase(s)
shall never exceed $750,000,000); provided that for any such request (i) the
Borrower shall not have requested the one-year extension of the Revolving Credit
Termination Date pursuant to the definition thereof, (ii) any Lender that is a
party to this Agreement prior to such request for an increase, at its sole
discretion, may elect to increase its Revolving Credit Commitment but shall not
have any obligation to so increase its Revolving Credit Commitment, and (iii) in
the event that each Lender does not elect to increase its Revolving Credit
38
Commitment, the Arrangers shall use commercially reasonable efforts to locate
additional lenders willing to hold commitments for the requested increase,
subject to the approval of any such proposed lender by the Borrower, and the
Borrower may also identify additional lenders willing to hold commitments for
the requested increase, provided that the Administrative Agent shall have the
right to approve any such additional lender, which approval will not be
unreasonably withheld or delayed. In the event that lenders commit to any such
increase, the Revolving Credit Commitments of the committed Lenders shall be
increased, the Pro Rata Shares of the Lenders shall be adjusted, new Notes shall
be issued, the Borrower shall make such borrowings and repayments as shall be
necessary to effect the reallocation of the Revolving Credit Loans, and other
changes shall be made to the Loan Documents as may be necessary to reflect the
aggregate amount, if any, by which Lenders have agreed to increase their
respective Revolving Credit Commitments or make new Revolving Credit Commitments
pursuant to this Section 2.1(b), in each case without requiring the consent of
the Lenders other than those Lenders increasing their Revolving Credit
Commitments. The fees payable by the Borrower upon any such increase in the
Revolving Credit Commitments shall be agreed upon by the Arrangers and the
Borrower at the time of such increase.
Notwithstanding the foregoing, nothing in this Section 2.1(b)
shall constitute or be deemed to constitute an agreement or commitment by any
Lender to increase its Revolving Credit Commitment hereunder.
(c) Notice of Borrowing. When the Borrower desires to borrow
under this Section 2.1, the Borrower shall deliver to the Administrative Agent a
Notice of Borrowing, signed by it (x) 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 and (y) no later than 11:00 a.m. (New 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; provided, however, that no
more than two (2) Borrowings may be made within any five (5) Business Day
period. Such Notice of 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 or
Eurodollar Rate Loans, (v) in the case of Eurodollar Rate Loans, the requested
39
Eurodollar Interest Period, (vi) instructions for the disbursement of the
proceeds of the proposed Borrowing, (vii) an Officer's Certificate of the
Borrower with respect to compliance with (including calculation thereof)
Sections 10.11(a) and 10.11(e), and (viii) that no Potential Event of Default or
Event of Default shall have occurred and be continuing or would result
therefrom. Any Notice of Borrowing (or telephonic notice in lieu thereof) given
pursuant to this Section 2.1(c) shall be irrevocable.
(d) Making of Loans. (i) Promptly after receipt of a Notice of
Borrowing under Section 2.1(c), the Administrative Agent shall notify each
Lender by facsimile transmission, or other similar written 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 Administrative 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
Administrative Agent shall make the proceeds of such amounts received by it
available to the Borrower at the Administrative 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
Administrative Agent on the applicable Funding Date shall not relieve any other
Lender of its obligations hereunder to make its 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 Administrative
Agent shall promptly return, by wire transfer of immediately available funds,
the amount deposited by each Lender to such Lender.
(ii) Unless the Administrative 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
Loan requested to be made on such Funding Date, the Administrative Agent may
assume that such Lender has funded its Loan and is depositing the proceeds
thereof with the Administrative Agent on the Funding Date therefor, and the
Administrative 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 Administrative Agent but are not in fact deposited with the
Administrative Agent by such Lender on or prior to the applicable Funding Date,
40
such Lender agrees to pay, and in addition the Borrower, agrees to repay, to the
Administrative Agent forthwith on demand such corresponding amount, together
with interest thereon, for each day from the date such amount is disbursed to or
for the benefit of the Borrower until the date such amount is paid or repaid to
the Administrative Agent, at the average Federal Funds Rate for such period. If
such Lender shall pay to the Administrative Agent the corresponding amount, the
amount so paid shall constitute such Lender's Loan as of the Funding Date
thereof, and if both such Lender and the Borrower shall pay and repay such
corresponding amount, the Administrative Agent shall promptly pay to the
Borrower such corresponding amount. This Section 2.1(d)(ii) does not relieve any
Lender of its obligation to make its Loan on any applicable Funding Date.
2.2. COMPETITIVE BID LOANS.
(a) The Competitive Bid Option. For so long as the Borrower
shall maintain an Investment Grade Rating from at least two (2) Rating Agencies,
one (1) of which shall be Moody's or S&P, from time to time during the Revolving
Credit Period, the Borrower may, as set forth in this Section 2.2, request the
Lenders during the Revolving Credit Period to make offers to make Competitive
Bid Loans to the Borrower (a "COMPETITIVE BID QUOTE REQUEST"), such Competitive
Bid Loan not to exceed, at such time (i) together with all Competitive Bid Loans
then outstanding, fifty percent (50%) of the Maximum Revolving Credit Amount, or
(ii) the Revolving Credit Availability. Subject to the provisions of this
Agreement, the Borrower may repay any outstanding Competitive Bid Loan on any
day which is a Business Day and any amounts so repaid may be reborrowed, up to
the amount available under this Section 2.2(a) at the time of such Borrowing,
until the Business Day next preceding the Revolving 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) Competitive Bid Quote Request. When the Borrower wishes
to request offers to make Competitive Bid Loans under this Section, the Borrower
shall transmit to the Administrative Agent by telex or facsimile transmission a
Competitive Bid 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 fourth
(4th) Business Day prior to the date of Borrowing proposed therein (or such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Competitive Bid Quote Request for the first LIBOR Auction for which such
change is to be effective) specifying:
41
(i) the proposed date of Borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Borrowing, which shall be
$20,000,000 or a larger multiple of $1,000,000 (which shall not exceed
the Revolving Credit Availability);
(iii) the duration of the Eurodollar Interest Period
applicable thereto, subject to the provisions of Section 5.2(b); and
(iv) the amount of all Competitive Bid Loans then outstanding
(which, together with the requested Borrowing shall not exceed, in the
aggregate, fifty percent (50%) of the Maximum Revolving Credit Amount).
The Borrower may request offers to make Competitive Bid Loans for one, two or
three Eurodollar Interest Periods in a single Competitive Bid Quote Request.
Borrower may not make more than two (2) Competitive Bid Quote Requests in any
thirty (30) day period.
(c) Invitation for Competitive Bid Quotes. Promptly upon
receipt of a Competitive Bid Quote Request, the Administrative Agent shall send
to the Lenders by telex or facsimile transmission an Invitation for Competitive
Bid Quotes substantially in the form of EXHIBIT I hereto, which shall constitute
an invitation by the Borrower to each Lender to submit Competitive Bid Quotes
offering to make the Competitive Bid Loans to which such competitive Bid Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Competitive Bid Quotes. (i)
Each Lender may submit a Competitive Bid Quote containing an offer or offers to
make Competitive Bid Loans in response to any Invitation for Competitive Bid
Quotes. Each Competitive Bid Quote must comply with the requirements of this
subsection (d) and must be submitted to the Administrative Agent by telex or
facsimile transmission not later than 9:30 A.M. (New York City time) on the
third (3rd) Business Day prior to the proposed date of Borrowing (or such other
time or date as the Borrower and the Administrative Agent shall have mutually
agreed and shall have notified the Lenders not later than the date of the
Competitive Bid Quote Request for the first LIBOR Auction for which such change
is to be effective); provided that Competitive Bid Quotes submitted by the
Person serving as the Administrative Agent (or any affiliate of the Person
serving as the Administrative Agent) in the capacity of a Lender may be
submitted, and may only be submitted, if
42
the Person serving as the Administrative Agent or such affiliate
notifies the Borrower of the terms of the offer or offers contained
therein not later than one-quarter (1/4) hour prior to the deadline for
the other Lenders. Any Competitive Bid Quote so made shall be
irrevocable. Competitive Bid Loans to be funded pursuant to a
Competitive Bid Quote may, as provided in Section 14.1(f), be funded by
a Lender's Designated Bank. A Lender making a Competitive Bid Quote
may, but shall not be required to, specify in its Competitive Bid Quote
whether the related Competitive Bid Loans are intended to be funded by
such Lender's Designated Bank, as provided in Section 14.1(f).
(ii) Each Competitive Bid 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 Competitive Bid 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 (or, if the
Revolving Credit Availability then is less than $5,000,000,
such lesser amount), (y) may not exceed the principal amount
of Competitive Bid Loans for which offers were requested and
(z) may be subject to an aggregate limitation as to the
principal amount of Competitive Bid Loans for which offers
being made by such quoting Lender may be accepted;
(C) the margin above or below the applicable
Eurodollar Rate (the "COMPETITIVE BID MARGIN") offered for
each such Competitive Bid Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate offered for each Competitive
Bid Loan; and
(D) the identity of the quoting Lender.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(A) is not substantially in conformity with EXHIBIT J
hereto or does not specify all of the information required by
subsection (d)(ii) above;
(B) except as provided in subsection (d)(ii)(B)(z)
above, proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes;
or
43
(C) arrives after the time set forth in subsection
(d)(i) above.
(e) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower, of the terms (x) of any Competitive Bid Quote
submitted by a Lender that is in accordance with subsection (d) of this Section
and (y) of any Competitive Bid Quote that amends, modifies or is otherwise
inconsistent with a previous Competitive Bid Quote submitted by such Lender with
respect to the same Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by the Administrative Agent unless
such subsequent Competitive Bid Quote is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's notice to
the Borrower shall specify (A) the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Eurodollar Interest Period
specified in the related Competitive Bid Quote Request, (B) the principal
amounts and Competitive Bid Margins so offered and (C) if applicable,
limitations on the aggregate principal amount of Competitive Bid Loans for which
offers in any single Competitive Bid Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 11:00
A.M. (New York City time) on the third (3rd) Business Day prior to the proposed
date of Borrowing (or such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have notified the
Lenders not later than the date of the Competitive Bid Quote Request for the
first LIBOR Auction for which such change is to be effective), the Borrower
shall telephonically notify the Administrative Agent of its acceptance or
non-acceptance of the offers so notified to it pursuant to subsection (e) of
this Section, and the Borrower shall confirm such telephonic notification in
writing not later than the third (3rd) Business Day prior to the proposed date
of Borrowing. In the case of acceptance, such notice (a "NOTICE OF COMPETITIVE
BID BORROWING"), whether telephonic or in writing, shall specify the aggregate
principal amount of offers for each Eurodollar Interest Period that are accepted
and shall be accompanied by an Officer's Certificate of the Borrower with
respect to compliance with (including calculation of) Sections 10.11(a) and (e).
The Borrower may accept any Competitive Bid Quote in whole or in part; provided
that:
(i) the aggregate principal amount of each Competitive Bid
Loan Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request;
(ii) the principal amount of each Competitive Bid Loan
Borrowing must be $20,000,000 or a larger multiple of $1,000,000 (or,
if the Revolving Credit Availability then is less than $20,000,000,
such lesser amount);
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(iii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Quotes; and
(iv) the Borrower may not accept any offer that is described
in subsection (d)(iii) of this Section or that otherwise fails to
comply with the requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Lenders with the same Competitive Bid Margins for a greater
aggregate principal amount than the amount in respect of which such
offers are permitted to be accepted for the related Eurodollar Interest
Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the Administrative
Agent among such Lenders as nearly as possible (in multiples of
$1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers; provided,
that the principal amount of such Competitive Bid Loans shall be
allocated among such Lenders, in ascending order from those subject to
the lowest Competitive Bid Margin to those subject to the highest
Competitive Bid Margin, as applicable to provide to the Borrower the
lowest effective cost based on offers accepted. Determinations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The Administrative Agent
shall notify the Borrower of all offers.
(h) Notification by Administrative Agent. Upon receipt of the
Borrower's Notice of Competitive Bid Borrowing in accordance with
Section 2.2(f) hereof, the Administrative Agent shall, on the date such
Notice of Competitive Bid Borrowing is received by the Administrative
Agent, notify each Lender of the principal amount of the Competitive
Bid Loan Borrowing accepted by the Borrower and of such Lender's share
(if any) of such Competitive Bid Loan Borrowing and such Notice of
Competitive Bid Borrowing shall not thereafter be revocable by the
Borrower. A Lender who is notified that it has been selected to make a
Competitive Bid Loan may designate its Designated Bank (if any) to fund
such Competitive Bid Loan on its behalf, as described in Section
14.1(f). Any Designated Bank which funds a Competitive Bid Loan shall
on and after the time of such funding become the obligee under such
Competitive Bid Loan and be entitled to receive payment thereof when
due. No Lender shall be relieved of its obligation to fund a
Competitive Bid Loan, and no Designated Bank shall assume such
obligation, prior to the time the applicable Competitive Bid Loan is
funded.
45
2.3. 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 general working capital needs of the
Borrower and other general corporate purposes.
2.4. REVOLVING CREDIT TERMINATION DATE; MATURITY OF COMPETITIVE BID
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 Issuing Banks 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 Competitive Bid Loan included in any Competitive Bid Loan
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 applicable to such Borrowing.
2.5. MAXIMUM CREDIT FACILITY. Notwithstanding anything in this
Agreement to the contrary, in no event shall the aggregate principal amount of
Revolving Credit Obligations exceed the Maximum Revolving Credit Amount.
2.6. AUTHORIZED AGENTS. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative 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
Administrative Agent, each Documentation Agent, the Syndication Agent, the
Arrangers, the Lenders and any Issuing Bank shall be entitled to rely
conclusively on such employee's or agent's authority to request such Loan or
Letter of Credit or such conversion/continuation until the Administrative Agent
and the Arrangers receive written notice to the contrary. Neither the
Administrative Agent nor 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
46
conversion/continuation, the Administrative 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 Administrative 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
Administrative Agent or the Arrangers believe 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 Administrative Agent, the Arrangers and each
Lender from any loss or expense the Administrative Agent, the Arrangers or the
Lenders might incur in acting in good faith as provided in this Section 2.6;
provided, however, that Borrower shall not indemnify the applicable party for
acts resulting from its own gross negligence or willful misconduct.
ARTICLE III.
LETTERS OF CREDIT
3.1. LETTERS OF CREDIT. Subject to the terms and conditions set forth
in this Agreement, including, without limitation, Section 3.1(c)(ii), each
Issuing Bank hereby severally agrees to issue for the account of the Borrower
one or more Letters of Credit, subject to the following provisions:
(a) Types and Amounts. An Issuing Bank shall not have any
obligation to issue, amend or extend, and 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 Administrative 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) ten Business Days
preceding the scheduled Revolving Credit Termination Date; or
47
(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 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 Administrative
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 Administrative Agent written notice that it requires the issuance 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 Issuing Bank and such request shall
specify (A) that the requested Letter of Credit is either a Commercial
Letter of Credit or a Standby Letter of Credit, (B) the stated amount
of the Letter of Credit requested, (C) the effective date (which shall
be a Business Day) of issuance of such Letter of Credit, (D) the date
on which such Letter of Credit is to expire (which shall be a Business
Day and no later than ten (10) Business Days preceding the scheduled
Revolving Credit Termination Date), (E) the Person for whose benefit
such Letter of Credit is to be issued, (F) other relevant terms of such
Letter of Credit, (G) the Revolving Credit Availability at such time,
and (H) the amount of the then outstanding Letter of Credit
Obligations. Such request shall be accompanied by an Officer's
Certificate of the Borrower with respect to compliance with (and
calculation of) Sections 10.11(a) and (e).
(ii) The Issuing Bank shall give the Administrative 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 Administrative Agent shall promptly transmit by
telegram, facsimile transmission, or similar transmission to the
Borrower and each Lender).
48
(d) Reimbursement Obligations; Duties of Issuing Bank and
other Lenders; Funding of a Loan.
(i) Notwithstanding any provisions to the contrary in any
Letter of Credit Reimbursement Agreement:
(A) the Borrower shall reimburse each 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) the date that payment
has been made under such Letter of Credit by such 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) Each Issuing Bank shall give the Administrative Agent
written notice, or telephonic notice 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 Administrative Agent shall
promptly transmit by telegram, facsimile transmission or similar
transmission to each Lender).
(iii) Solely as between the applicable Issuing Bank and the
other Lenders, in determining whether to pay under any Letter of
Credit, such 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.
(iv) If any draft shall be presented or other demand for
payment shall be made under any Letter of Credit, the applicable
Issuing Bank shall notify the Administrative Agent (and the
Administrative Agent shall notify the Borrower and the Lenders) of the
date and amount of the draft presented or demand for payment and of the
date and time when it expects to pay such draft or honor such demand
for payment, and, except as provided in this Section 3.1(d)(iv), the
Borrower shall reimburse such Issuing Bank, as set forth in Section
3.1(d)(i) above. Notwithstanding anything contained in Section
49
3.1(d)(i) above or this Section 3.1(d)(iv) to the contrary, however,
unless the Borrower shall have notified the Administrative Agent and
the applicable Issuing Bank prior to 11:00 a.m. (New York time) on the
Business Day immediately prior to the date of such drawing that the
Borrower intends to reimburse such Issuing Bank for the amount of such
drawing with funds other than the proceeds of Committed Loans, the
Borrower shall be deemed to have timely given a Notice of Borrowing
pursuant to Section 2.1(c) to the Administrative Agent, requesting a
Base Rate Loan on the date on which such drawing is honored and in an
amount equal to the amount of such drawing. The Borrower may thereafter
convert any such Base Rate Loan in accordance with Section 5.1(c). Each
Lender shall, in accordance with Section 2.1(d), make available such
Lender's Pro Rata Share of such Borrowing to the Administrative Agent,
the proceeds of which shall be applied directly by the Administrative
Agent to reimburse the Issuing Bank for the amount of such draw. In the
event that any Lender fails to make available to the Administrative
Agent the amount of such Lender's Pro Rata Share of such Borrowing on
the date of the drawing, the Administrative Agent shall be entitled to
recover such amount on demand from such Lender plus any additional
amounts payable under Section 2.1(d)(ii) in the event of a late funding
by a Lender.
(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 that Issuing
Bank under Section 3.1) 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 that Issuing Bank
on the Reimbursement Date and a Base Rate Loan has not been made with
respect to such payment pursuant to Section 3.1(d)(iv), that Issuing
Bank shall promptly notify the Administrative Agent, which shall
promptly notify each other Lender, and each Lender shall promptly and
unconditionally pay to the Administrative Agent for the account 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 Administrative Agent shall promptly pay
50
to such Issuing Bank such amounts received by it, and any other amounts
received by the Administrative 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 Administrative
Agent, such Lender agrees to pay to the Administrative 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 Administrative 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 Administrative 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 Administrative Agent. Notwithstanding anything to
the contrary set forth herein, the aggregate amount to be paid by any
Lender with respect to any drawing under a Letter of Credit (whether as
a payment pursuant to this Section 3.1(e) or as a Loan pursuant to
Section 3.1(d)(iv)) shall not exceed its Pro Rata Share of such
drawing.
(iii) Whenever an Issuing Bank receives a payment on account
of a Reimbursement Obligation, including any interest thereon, as to
which the Administrative 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
Administrative Agent and the Administrative 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 Administrative 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 11:00 a.m.
(New York time) on such Business Day, and otherwise on the next
succeeding Business Day.
(iv) The Issuing Banks shall promptly furnish the Lenders
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 may be deemed reasonable.
(v) The obligations of a Lender to make payments to the
Administrative 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
51
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 any Letter of Credit having been determined to
be forged, fraudulent, 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
Administrative 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
52
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 Administrative Agent
the following 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 such 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 such 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 then in effect. 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 in writing
from time to time.
(h) Letter of Credit Reporting Requirement. Each Issuing Bank
shall, no later than the tenth (10th) Business Day following the last day of
each calendar quarter, provide to the Administrative Agent (who shall promptly
provide to 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 Administrative 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), any information requested by the Administrative
Agent or the Borrower relating to the date of issue, account party, amount,
expiration 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 Administrative 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), reasonable costs,
reasonable charges and reasonable expenses (including reasonable attorneys' fees
but excluding taxes) which the Administrative Agent, the Issuing Banks, or such
other Lender may incur or be subject to as a consequence, direct or indirect, of
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(A) the issuance of any Letter of Credit other than as a result of the gross
negligence or willful misconduct of the applicable Issuing Bank, as determined
by a court of competent jurisdiction, or (B) the failure of the applicable
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 Administrative
Agent, the applicable Issuing Bank 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 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 Administrative Agent, the Issuing Banks or the other Lenders,
other than any of the foregoing resulting from the gross negligence or willful
misconduct of the Issuing Bank.
3.2. OBLIGATIONS SEVERAL. The obligations of the Administrative 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 obligations hereunder,
respectively, of any other Issuing Bank or other Lender.
54
ARTICLE IV.
PAYMENTS AND PREPAYMENTS
4.1. PREPAYMENTS; REDUCTIONS IN REVOLVING CREDIT COMMITMENTS.
(a) Voluntary Prepayments. The Borrower may, at any time and
from time to time, prepay the Loans, other than Competitive Bid Loans, in part
or in their entirety, subject to the following limitations. The Borrower shall
give at least three (3) Business Days prior written notice to the Administrative
Agent (which the Administrative 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 prepayment is delivered as provided
herein, the outstanding principal amount of the Loans on the prepayment date
specified in such 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 $500,000 in excess of that amount (or
such lesser amount in the event the unpaid principal amount of any Loan is less
than such minimum prepayment amount). Eurodollar Rate Loans may be prepaid in
part or in their entirety only upon payment of the amounts described in Section
5.2(f). Notwithstanding anything contained in this Agreement to the contrary,
Competitive Bid Loans may not be voluntarily prepaid without the consent of the
Lender(s) making such Competitive Bid Loans.
(b) Voluntary Reductions In Revolving Credit Commitments. The
Borrower may, upon at least three (3) Business Days' prior written notice to the
Administrative Agent (which the Administrative 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 (i)
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, which amount shall become due and payable on the
date specified in such notice and (ii) in the case of a reduction, the minimum
Revolving Credit Commitments that shall remain outstanding shall be $100,000,000
unless the Revolving Credit Commitments have been terminated and reduced to
zero. 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 Administrative Agent under this Section
4.l(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.
55
(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, the Company, the Borrower, or any of its Consolidated Subsidiaries
receives proceeds from the sale, transfer, assignment, conveyance or refinancing
of an Unencumbered Project, the Borrower shall be required to (x) prepay a
portion of the Loans in an amount equal to the Net Cash Proceeds received by the
Borrower or the Company or the Borrower's pro rata share of Net Cash Proceeds
received by such Consolidated Subsidiary, to the extent such proceeds are not
otherwise applied pursuant to clauses (y) or (z); (y) segregate the Net Cash
Proceeds of such transaction in an escrow account with the Administrative Agent
or with a financial institution reasonably acceptable to the Administrative
Agent and apply such Net Cash Proceeds solely to a qualified, deferred exchange
under ss.1031 of the Internal Revenue Code for other real property that becomes
an Unencumbered Project upon acquisition or with the prior written approval of
the Requisite Lenders to another use, to the extent such proceeds are not
otherwise applied pursuant to clauses (x) or (z); or (z) complete an exchange of
such Unencumbered Project for other real property of equivalent value under
ss.1031 of the Internal Revenue Code so long as such other real property becomes
an Unencumbered Project upon acquisition, to the extent such proceeds are not
otherwise applied pursuant to clauses (x) or (y). If at any time from and after
the Closing Date: (i) the Company or the Borrower merges or consolidates with
another Person and the Company or Borrower, as the case may be, is not the
surviving entity and does not control the management of such surviving entity,
or (ii) the Company, the Borrower, any of its Affiliates or Consolidated
Subsidiaries or the Management Company ceases to provide property management and
leasing services to at least 80% of the total number of Projects in which the
Borrower has a direct ownership interest (the date any such event shall occur
being the "PREPAYMENT DATE"), the Borrower shall be required to prepay the Loans
in their entirety as if the Prepayment Date were the Revolving Credit
Termination Date and, the Revolving Credit Commitments thereupon shall be
terminated. 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
56
Issuing Bank. 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) (other
than amounts prepaid pursuant to the first sentence of this Section 4.1(d)) may
not be reborrowed. As used in this Section 4.1(d) only, the phrase "sale,
transfer, assignment or conveyance" shall not include (i) sales or conveyances
among Borrower and any of its Consolidated Subsidiaries, or (ii) mortgages or
other security interests secured by Real Property or other Property which are
permitted under this Agreement. Such prepayment shall not affect any rights and
remedies that the Agents and Lenders may otherwise have hereunder.
4.2. 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 Administrative Agent, the Arrangers or any Lender
shall be made without condition or reservation of right, in immediately
available funds, delivered to the Administrative Agent not later than
12:00 noon (New York time) on the date and at the place due, to such
account of the Administrative Agent (or an Arranger) as it may
designate, for the account of the Administrative Agent, the Arrangers,
or such Lender, as the case may be; and funds received by the
Administrative Agent (or an 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
Administrative Agent (or an Arranger) after that time shall be deemed
to have been paid on the next succeeding Business Day. Payments
actually received by the Administrative Agent for the account of a
Documentation Agent, the Syndication Agent and the Lenders, or any of
them, shall be paid to them by the Administrative Agent promptly after
receipt thereof.
(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
Administrative 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 Administrative Agent may have advanced on behalf of any
Lender other than JPMorgan for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower;
57
(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 its Committed Loans shall be applied first, to repay its outstanding Base
Rate Loans, and then to repay its outstanding Eurodollar Rate Loans with those
Eurodollar Rate Loans which have earlier expiring Eurodollar Interest Periods
being repaid prior to those which have later expiring Eurodollar Interest
Periods.
(ii) After the occurrence of an Event of Default and while the
same is continuing which results in an acceleration of the Obligations
in accordance with Section 11.2, the Administrative 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 Administrative Agent may have
advanced on behalf of any Lender other than JPMorgan for which
the Administrative 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
Administrative 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 Administrative Agent to provide
cash collateral in respect of such Obligations);
(D) fourth, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the
Lenders;
(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.
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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 Administrative Agent and the Lenders
as among themselves. 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 Administrative Agent.
(iii) The Administrative 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 Section 2.1 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. The Borrower hereby irrevocably authorizes the
Lenders to make Loans, which Loans shall be Base Rate Loans, in each
case, upon notice from the Administrative Agent as described in the
following sentence for the purpose of paying principal, interest,
Reimbursement Obligations and fees due from the Borrower, 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 Administrative 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 written form of transmission
(which notice the Administrative 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 Administrative Agent
shall promptly distribute to the Arrangers and each Lender at its
primary address set forth on SCHEDULE LC hereto or as set forth in the
Assignment and Acceptance by which it became a Lender, or at such other
address as a Lender may request in writing, such funds as such Person
may be entitled to receive, subject to the provisions of Article XII;
provided that the Administrative Agent shall under no circumstances be
bound to inquire into or determine the validity, scope or priority of
any interest or entitlement of any Lender 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.
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(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 hereinafter 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 Administrative 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 Administrative 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 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 its
outstanding Base Rate Loans shall be applied first, ratably to
its Base Rate Loans constituting Non Pro Rata Loans, second,
ratably to its Base Rate Loans other than those constituting
Non Pro Rata Loans or Cure Loans and, third, ratably to its
Base Rate Loans constituting Cure Loans.
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(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)(iv), the next
preceding Business Day).
4.3. PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS.
(a) Promise to Repay. The Borrower hereby agrees to pay when
due, without setoff or counterclaim, 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
the form of EXHIBIT B-1 attached hereto with blanks appropriately completed,
evidencing the Loans and thereafter shall execute and deliver such other
promissory notes as are necessary to evidence the Loans made to it owing to the
Lenders after giving effect to any assignment thereof pursuant to Section 14.1,
all in the form of EXHIBIT B-1 attached hereto with blanks appropriately
completed (all such promissory notes and all amendments thereto, replacements
thereof and substitutions therefor being collectively referred to as the
"BORROWER NOTES"; and "BORROWER NOTE" means any one of the Borrower Notes).
(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.
(c) Control Account. The Register maintained by the
Administrative Agent pursuant to Section 14.1(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 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 Administrative Agent from
the Borrower hereunder and each Lender's share thereof.
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(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. Notwithstanding anything contained in this
Agreement, any Note, or the Guaranties to the contrary, it is expressly
understood and agreed that nothing herein or therein shall be construed as
creating any liability on any Limited Partner, or any partner, officer,
shareholder or director of any Limited Partner or any officer, trustee, member,
director, or employee of the Borrower or any Guarantor, to pay any of the
Obligations other than liability arising under applicable law from or in
connection with (i) its own fraud or (ii) the misappropriation or misapplication
by it 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
Administrative Agent, the Arrangers 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 such other Persons to pay money.
ARTICLE V.
INTEREST AND FEES
5.1. 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;
(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 Loans; and
(iii) If a Competitive Bid Loan, at a rate per annum equal to
the sum of (A) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period (determined as if the related Competitive
62
Bid Loan were a Committed Loan which is Eurodollar Rate Loan) plus (B)
the Competitive Bid Margin quoted by the Lender making such Competitive
Bid Loan in accordance with Section 2.2.
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 Administrative
Agent; provided, however, the Borrower may not select the Eurodollar 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 has occurred and is continuing or if
Eurodollar Rate Loans are not available pursuant to Section 5.2(d) or (e). If on
any day any Loan is outstanding with respect to which notice has not been timely
delivered to the Administrative Agent in accordance with the terms of this
Agreement specifying the basis for determining the rate of interest on that day,
then for that day interest on that Loan shall be determined by reference to the
Base Rate.
(b) Interest Payments. (i) Interest accrued on each Loan,
whether a Base Rate Loan, a Eurodollar Loan or a Competitive Bid 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 Loan, and on the last day of the
applicable Eurodollar Interest Period with respect to a Competitive Bid Loan,
(B) upon the payment or prepayment thereof in full or in part, and (C) if not
theretofore paid in full, at maturity (whether by acceleration or otherwise) of
such Loan.
(ii) 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 (1st) Business 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; (B) to convert all or any part of outstanding
Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the
same date to Base Rate Loans on such expiration date; or (C) 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
63
expiration date; provided, however, no such outstanding Loan may be continued
as, or be converted into, a Eurodollar 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 has occurred and is continuing. Any conversion into or
continuation of Eurodollar Rate Loans under this Section 5.1(c) shall be in a
minimum amount of $3,000,000 and in integral multiples of $500,000 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 Committed Loan under Section
5.1(c)(i), the Borrower shall deliver a Notice of Conversion/Continuation to the
Administrative 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 Committed Loan to be converted/continued, (C) whether such Loan
shall be converted and/or continued, and (D) in the case of a conversion to, or
continuation of, a Eurodollar Rate Loan, the requested Eurodollar Interest
Period. Promptly after receipt of a Notice of Conversion/Continuation under this
Section 5.1(c)(ii), the Administrative Agent shall notify each Lender by
facsimile transmission, or other similar written 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, upon the
expiration of the Eurodollar Interest Period applicable thereto, such Loans
shall automatically be converted to a Base Rate Loan.
(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 (A) in
the case of any Eurodollar Rate Loans outstanding as of the date of occurrence
of any Event of Default, the sum of (x) the applicable Eurodollar Rate, plus (y)
six percent (6.0%) per annum, and (B) in the case of any Base Rate Loan
(including any Eurodollar Loan that is converted to a Base Rate Loan at
maturity) the sum of (x) the Base Rate, as in effect from time to time as
interest accrues, plus (y) five percent (5.0%) per annum.
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(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 such 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.
(f) Eurodollar Rate Information. Upon the request of the
Borrower, the Administrative Agent shall promptly provide to the Borrower such
information with respect to the applicable Eurodollar Rate as may be so
requested.
5.2. SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS AND
COMPETITIVE BID LOANS.
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate
Loan shall be in a minimum principal amount of $3,000,000 and in integral
multiples of $500,000 in excess of that amount.
(b) Determination of Eurodollar Interest Period. By giving
notice as set forth in Section 2.1(c) (with respect to a Borrowing of Eurodollar
Rate Loans), Section 2.2 (with respect to a Borrowing of Competitive Bid 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, a
"EURODOLLAR 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, a Eurodollar Interest Period of one, two,
three or six months in duration;
(ii) The Borrower may only select, as to a particular
Borrowing of Competitive Bid 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
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there will be no succeeding Business Day in such calendar month, such
Eurodollar Interest Period shall expire on the immediately preceding
Business Day;
(v) The Borrower may not select a Eurodollar Interest Period
as to any Loan if such Eurodollar Interest Period terminates later than
the Revolving Credit Termination Date;
(vi) The Borrower may not select a Eurodollar 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 of which the Borrower is aware on the date of
such request, in the case of a payment pursuant to Section 4.1(d)
hereof; and
(vii) There shall be no more than ten (10) Eurodollar Interest
Periods in effect at any one time with respect to Eurodollar Rate
Loans.
(c) Determination of Eurodollar Interest Rate. 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 Administrative 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
Competitive Bid 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 or by
facsimile confirmed in writing) to the Borrower and to each Lender. The
Administrative Agent's determination shall be presumed to be correct,
absent manifest error, and shall be binding upon the Borrower.
(d) Interest Rate Unascertainable, Inadequate or Unfair. In
the event that at least one (1) Business Day before an Eurodollar
Interest Rate Determination Date:
(i) the Administrative Agent is advised 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
(ii) the Administrative Agent determines that adequate and
fair means do not exist for ascertaining the applicable interest rates
by reference to which the Eurodollar Rate then being determined is to
be fixed;
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(iii) the Requisite Lenders advise the Administrative Agent
that 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 equal to such Eurodollar Interest Period;
or
(iv) the applicable Lender(s) advise the Administrative Agent
that the Eurodollar Rate for Competitive Bid 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)' Competitive Bid Loans in Dollars
and for a period equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon (until the Administrative 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 shall be suspended and each outstanding Eurodollar Rate Loan and
Competitive Bid Loan shall be converted into a Base Rate Loan on the last day of
the then current Eurodollar Interest Period therefor, notwithstanding any prior
election by the Borrower to the contrary.
(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 or Competitive Bid 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 Administrative Agent, and the
Administrative 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 to the Borrower shall be
immediately suspended, and such Lender shall make a Base Rate Loan as part of
any requested Borrowing of Eurodollar Rate Loans and (B) if the affected
Eurodollar Rate Loan or Loans or Competitive Bid 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 Administrative Agent and the affected Lender, convert each such
Loan into a Base Rate Loan.
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(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, such Lender shall promptly give notice of that determination, in writing,
to the Borrower and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender. The Borrower's right to
request, and such Lender's obligation, if any, to make Eurodollar Rate Loans to
the Borrower 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 or
Competitive Bid 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 Competitive Bid 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 does not commence after notice therefor is
given pursuant to Section 5.1(c), other than pursuant to Sections 5.2(d) or (e),
or (ii) if for any reason any Eurodollar Rate Loan is prepaid (other than
pursuant to Section 5.2(d) or (e)) or converted on a date which is not the last
day of the applicable Eurodollar Interest Period or (iii) as a consequence of
any failure by the Borrower to repay a Eurodollar Rate Loan or Competitive Bid
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 the amount of
compensation due to that Lender, absent manifest error.
(g) Booking of Eurodollar Rate Loans and Competitive Bid
Loans. Any Lender may make, carry or transfer Eurodollar Rate Loans and
Competitive Bid 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 or Competitive Bid Loan to any office (other than such Eurodollar Lending
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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 Competitive Bid 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.
(j) Application of Mandatory Prepayments. The principal amount
of any mandatory prepayment pursuant to Section 4.1(d) hereof, shall be applied,
first, to the outstanding Base Rate Loans and then, to the outstanding
Eurodollar Rate Loans. Unless the Borrower otherwise pays breakage costs in
accordance with Section 5.2(f), the Administrative Agent shall hold such
principal amounts allocated for prepayment of Eurodollar Rate Loans until the
end of the applicable Eurodollar Interest Periods) and, during the interim
period, shall invest said sums in Cash Equivalents. Interest earned thereon
shall be forwarded to the Borrower upon the payment of the Eurodollar Rate Loans
at the end of said Eurodollar Interest Period. Interest shall continue to accrue
on the principal amount of such Eurodollar Rate Loans until so paid.
5.3. FEES.
(a) Letter of Credit Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders in proportion to
their interests in respective undrawn Letters of Credit, a Letter of
Credit Fee as more particularly set forth in Section 3.1(g) hereof.
(b) Facility Fee. The Borrower shall pay to the Administrative
Agent for the account of the Lenders based on their respective Pro Rata
Shares, a facility fee on the Revolving Credit Commitments at the
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respective percentages per annum based upon the Borrower's Credit
Rating in accordance with the following table:
Range of
the Borrower's
Credit Rating
(S&P/Moody's Facility Fee
Ratings) (% per annum)
--------------- -------------
A-/A3 or higher 0.15
BBB+/Baa1 0.175
BBB/Baa2 0.20
BBB-/Baa3 0.20
Below BBB-/Baa3 or unrated 0.30
The facility fee shall be payable quarterly, in arrears, on the first Business
Day of each January, April, July and October, commencing on the first such day
after the Closing Date. Any change in the Borrower's Credit Rating causing it to
move into a different range on the table shall effect an immediate change in the
applicable percentage per annum. The Borrower shall maintain Credit Ratings from
at least two (2) Rating Agencies, one of which must be Moody's or S&P so long as
such Persons are in the business of providing debt ratings for the REIT
industry; provided that if the Borrower fails to maintain at least two Credit
Ratings, the applicable percentage shall be based upon an S&P rating of less
than BBB- in the table above. In the event that the Borrower's Credit Rating is
such that the Rating Agencies' ratings are split between a higher and a lower
rating, the applicable percentage per annum shall be based upon the lower of
such two (2) Credit Ratings. In the event that the Borrower receives more than
two (2) Credit Ratings and such Credit Ratings are not equivalent, the
applicable fee shall be determined by the lower of the two (2) highest ratings,
provided that each of said two (2) highest ratings shall be Investment Grade
Ratings and at least one of which shall be an Investment Grade Rating from S&P
or Moody's.
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
70
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, and shall be allocated among such performing Lenders
ratably based upon their relative Revolving Credit Commitments.
(c) Competitive Bid Fee. Simultaneously with the delivery of
each Notice of Competitive Bid Borrowing, the Borrower shall pay to the
Administrative Agent for its own account, a fee equal to $2,500.
(d) 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 Administrative Agent at its office in New York, New
York in immediately available funds unless otherwise set forth herein. All fees
shall be fully earned and nonrefundable when paid. All fees due to any Arranger
or any 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
6.1. 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 Administrative 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 form and substance satisfactory
to the Agents; without limiting the foregoing, the Borrower hereby
directs its counsel, Fried Frank Harris Shriver & Jacobson to prepare
and deliver to the Agents, the Lenders, and Bingham McCutchen LLP the
legal opinions referred to in such List of Closing Documents; and
(ii) such additional documentation as the Agents may
reasonably request.
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(b) No Legal Impediments. No law, regulation, order, judgment
or decree of any Governmental Authority shall, and the Administrative
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 September
30, 2002 which change, in the judgment of the Administrative Agent and
the Syndication Agent, will have a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the
Arrangers and the Lenders, since September 30, 2002, neither the
Borrower nor the Company shall have (i) entered into any (as determined
in good faith by the Administrative Agent and the Syndication 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, in each case other than those
described on SCHEDULE 6.1(D) hereto.
(e) No Loss of Material Agreements and Licenses. Since
September 30, 2002, no agreement or license relating to the business,
operations or employee relations of the Borrower or any of its Real
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
Administrative Agent and the Syndication Agent, would result in a
Material Adverse Effect.
(f) No Market Changes. Since the Closing Date no material
adverse change shall have occurred in the conditions in the capital
markets.
(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 Sections 7.1, 9.12(b) and 9.14 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.
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(i) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the accounts of the Agents and the 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.
6.2. 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 on any date after the Initial Funding Date shall
be 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, all of the representations and warranties of the
Borrower contained in Sections 7.1, 9.12(b) and 9.14 and all of the
representations of the Borrower and the parties to the Guaranties 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. Each of the
Lenders shall have received the Officer's Certificate as provided in Section
2.1(c)(vii), 2.2(f) or 3.1(c).
(c) No Legal Impediments. No law, regulation, order, judgment
or decree of any Governmental Authority shall, and the Administrative Agent
shall not have received from such Lender notice that, in the reasonable judgment
of such Lender, litigation is pending or threatened which is likely to, enjoin,
prohibit or restrain 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 shall not have
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 Administrative Agent of a Notice of
Borrowing with respect to a Loan, each acceptance by the Borrower of the
proceeds of each Loan made hereunder, each submission by the Borrower to a
Lender of a request for issuance of a Letter of Credit and the issuance of such
73
Letter of Credit, shall constitute a representation and warranty by the Borrower
as of the Funding Date in respect of such Loan and the date of issuance of such
Letter of Credit, that all the conditions contained in this Section 6.2 have
been satisfied or waived in accordance with Section 14.7 (it being understood
that with respect to the condition set forth in Section 6.2(c), the same shall
constitute a representation and warranty by the Borrower only to the extent that
the Borrower shall have knowledge of any of the events set forth therein).
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
7.1. 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 a Material
Adverse Effect, (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 in connection with
and following the consummation of the transactions contemplated by this
Agreement, and (D) 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 Maryland,
(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 a Material Adverse Effect, and
(C) has all requisite corporate power and authority to own, operate and
encumber its Property and to conduct its business as presently
conducted.
(iii) True, correct and complete copies of the Organizational
Documents of the Borrower and the Company identified on SCHEDULE 7.1-A
have been delivered to Administrative Agent, each of which is in full
force and effect, has not been modified or amended except to the extent
set forth or indicated therein or as otherwise permitted hereby 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
74
or giving of notice or both, would constitute a default under such
Organizational Documents. Borrower shall update SCHEDULE 7.1-A from
time to time in order to keep said Schedule true and correct.
(iv) Neither the Borrower nor the Company is a "foreign
person" within the meaning of Section 1445 of the Internal Revenue
Code.
(b) Authority. (i) The Company has the requisite power and
authority to execute and deliver 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. The
Company is the Person who has executed this Agreement and such other
Loan Documents on behalf of the Borrower and is the sole general
partner 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 Company acting on
behalf of the Borrower in connection therewith, all necessary corporate
action of the Company) and such authorization has not been rescinded.
No other partnership or corporate action or proceedings on the part of
the Borrower or the Company is necessary to consummate such
transactions.
(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, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
or by general principles of equity regardless of whether enforcement is
considered in a proceeding at law or in equity. Each of the Loan
Documents to which Borrower is a party 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 or Event of Default exists.
(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
75
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 equity Securities of
the Company, the Borrower and the Subsidiaries of the Borrower, and (3)
the ownership interest of the Borrower, the Company and the
Subsidiaries of the Borrower in all Joint Ventures. 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 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, except as otherwise permitted hereby. Borrower shall
update SCHEDULE 7.1-C as of the first day of each fiscal quarter, and
shall deliver the same together with the Quarterly Compliance
Certificates, to the extent required, in order to keep said Schedule
true and correct.
(ii) Except where failure would not have a Material Adverse
Effect, each of the Subsidiaries of the Borrower: (A) is a corporation,
limited liability company or partnership, as indicated on SCHEDULE
7.1-C, duly organized or formed, 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 have a Material
Adverse Effect, 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.
(iii) As to each Guarantor, a provision similar, as applicable
to (a), (b) and (c) above shall be included in each such Subsidiary's
Guaranty, and the Borrower shall be deemed to make for itself and on
behalf of such Subsidiary a representation as to such provisions.
(d) No Conflict. The execution, delivery and performance of
each of the Loan Documents to which the Borrower, the Company or any
Guarantor is a party, and the consummation of the transactions
expressly contemplated thereby respectively, do not and will not (i)
conflict with the Organizational Documents of the Borrower, the Company
or any Guarantor, (ii) conflict with, result in a breach of or
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constitute (with or without notice or lapse of time or both) a default
under any Requirement of Law or material Contractual Obligation of the
Borrower, the Company or any Guarantor, or require termination of any
such material Contractual Obligation which would subject the
Administrative 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, the
Company or any Guarantor, or (iv) require any approval of shareholders
of the Company (other than such approvals that have been obtained and
are in full force and effect).
(e) Governmental Consents. The execution, delivery and
performance of each of the Loan Documents to which the Borrower, the
Company or any Guarantor is a party and the consummation of the
transactions expressly contemplated thereby 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. None of the Borrower, the Company
or the Guarantors 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 as contemplated by this Agreement.
(g) Financial Position. Complete and accurate copies of the
following financial statements and materials have been delivered to the
Administrative Agent: annual unaudited financial statements of the
Borrower, annual audited financial statements of the Company for the
fiscal year ended December 31, 2001 and unaudited financial statements
of the Company for the fiscal quarter ended September 30, 2002. All
annual financial statements of the Borrower shall be accompanied by an
Officer's Certificate of the Borrower, and shall be certified by the
Chief Financial Officer of the Borrower as fairly presenting in all
material respects the financial position of the Borrower. 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 as of the date referred to therein, and the
consolidated results of operations and cash flows for each of the
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periods covered thereby of the Borrower and the Company. Neither the
Borrower nor the Company has any Contingent Obligation, contingent
liability or liability for any taxes, long-term leases or commitments
not reflected in its financial statements delivered to the
Administrative Agent on or prior to the Closing Date or otherwise
disclosed to the Administrative Agent and the Lenders in writing on or
prior to the Closing Date, which will have a Material Adverse Effect.
(h) Indebtedness. SCHEDULE 7.1-H sets forth, as of September
30, 2002, all Indebtedness for borrowed money of each of the Borrower,
the Company and their respective Subsidiaries and, except as set forth
on SCHEDULE 7.1-H, there are no defaults in the payment of principal of
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 September 30,
2002.
(i) Litigation; Adverse Effects. Except as set forth in
SCHEDULE 7.1-I, as of the Closing Date, there is no action, suit,
proceeding, 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 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) 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 a Material Adverse Effect.
(j) No Material Adverse Effect. Since September 30, 2002,
there has occurred no event which has had a Material Adverse Effect.
(k) Intentionally Omitted.
(l) Payment of Taxes. All material tax returns, reports and
similar statements or filings of the Company, the Borrower and their
respective Subsidiaries required to be filed have been timely filed (or
extensions to file have been obtained), and, except for Customary
Permitted Liens, all material taxes, assessments, fees and other
charges of Governmental 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
78
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 material 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. To the knowledge of the Borrower, neither the
Company, the Borrower nor any of their Subsidiaries has received any
written notice or citation, 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, or (ii) 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 a Material
Adverse Effect.
(n) Disclosure. The representations and warranties of the
Borrower and the Guarantors contained in the Loan Documents, and all
certificates and other documents delivered to the Administrative Agent
or any Lender 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, taken as a whole, not
misleading. 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 or for any financial
projections.
(o) Requirements of Law. Each of 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 a
Material Adverse Effect.
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(p) Environmental Matters.
(i) Except as disclosed on SCHEDULE 7.1-P (the Borrower shall
update SCHEDULE 7.1-P as of the first day of each fiscal quarter, and
deliver the same together with the Quarterly Compliance Certificates,
to the extent required, in order to keep said Schedule true and
correct):
(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, except to the extent any failure to do so would not have
a Material Adverse Effect;
(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, except to the extent any failure
to do so would not have a Material Adverse Effect;
(C) to the knowledge of the Borrower, none of the
Borrower, its Subsidiaries or any of their respective present
or past Properties or operations are subject to or are the
subject of any investigation of any Governmental Authority,
judicial or administrative proceeding, order, judgment or
decree, negotiations, agreement or settlement respecting (I)
any Remedial Action, (II) any Claims or Liabilities and Costs
arising from the Release or threatened Release of a
Contaminant into the environment, or (III) any violation of or
liability under any Environmental, Health or Safety
Requirement of Law, except to the extent none of the foregoing
would have a Material Adverse Effect;
(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 with
respect to any of the foregoing, the substance of which would
have a Material Adverse Effect;
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(E) none of the Borrower's or any of its
Subsidiaries' present or past Property is listed or, to the
knowledge of the Borrower, 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) to the knowledge of the Borrower, none of the
Borrower or 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 the Borrower's knowledge, there is
not now, and to the Borrower's knowledge there has never been,
on or in any Project (I) any treatment, recycling, storage
away from the site of generation or disposal of any hazardous
waste, as that term is defined under 40 C.F.R. Part 261 or any
state equivalent, (II) any solid waste management facility,
(III) any underground storage tanks the presence or use of
which is in violation of applicable Environmental, Health or
Safety Requirements of Law, (IV) any asbestos-containing
material which, in its present state, 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, in any such case, would subject the Borrower
or its Subsidiaries or their respective Properties to
Liabilities and Costs arising out of or relating to
environmental, health or safety matters that would result in a
Material Adverse Effect;
(H) to the knowledge of the Borrower, none of the
Borrower or 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 which would
result in a Material Adverse Effect;
(I) none of the Borrower or any of its Subsidiaries
has any contingent liability in connection with any Release or
threatened Release of any Contaminants into the environment
which will result in a Material Adverse Effect;
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(J) no Environmental Lien has attached to any
Property of the Borrower or any of its Subsidiaries (other
than those otherwise permitted hereunder) or which do not
constitute an Event of Default; and
(K) no Property of the Borrower or any of its
Subsidiaries 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 complied in all material respects with
the requirements of such acts.
(q) ERISA. As of the date hereof, neither the Borrower nor any
ERISA Affiliate maintains or contributes to any Benefit Plan or Multiemployer
Plan other than those listed on SCHEDULE 7.1-Q hereto. Each 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 Subsidiaries maintains or contributes to any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA that provides benefits to employees
after termination of employment other than as required by Section 601 of ERISA.
The Borrower and each of its Subsidiaries 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 Benefit 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 an ERISA Termination Event.
Neither the Borrower nor any ERISA Affiliate is subject to any liability under
Sections 4063, 4064, or 4204 of ERISA which would have a Material Adverse
Effect. Neither the Borrower nor any ERISA Affiliate is subject to any liability
under Sections 4069 or 4212 (c) of ERISA or 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 Benefit Plan
has been furnished to the Administrative Agent and 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
Benefit 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
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Multiemployer Plan or (ii) made a complete or partial withdrawal under Sections
4203 or 4205 of ERISA from a Multiemployer Plan which would have a Material
Adverse Effect. 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 Benefit Plan under Section 401(a)(29) of the Internal Revenue Code
due to a Benefit Plan amendment that results in an increase in current liability
for the plan year. Except as disclosed on SCHEDULE 7.1-Q, which shall be updated
by Borrower as of the first day of each fiscal quarter, to the extent required,
neither the Borrower nor any of its Subsidiaries 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 except as described on SCHEDULE 7.L-R.
(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, each of the Borrower and each Guarantor 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 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 Administrative Agent certificates of insurance or other satisfactory
evidence of all insurance policies set forth on SCHEDULE 7.1-T. Such insurance
policies and programs or their replacements obtained in compliance with Section
9.5 are currently in full force and effect, in compliance with the requirements
of Section 9.5 hereof and provide coverage against such casualties and
contingencies as are commercially reasonable and in accordance with the
customary and general practices of businesses having similar operations and real
83
estate portfolios in similar geographic areas and are in amounts, containing
such terms, in such forms and for such periods as are reasonable and prudent for
such businesses. Borrower shall update SCHEDULE 7.1-T, which shall be updated by
Borrower annually, to the extent required, in order to keep said Schedule true
and correct (or more frequently if an insurance policy or program shall be
terminated and/or replaced).
(u) REIT Status. The Company qualifies as a REIT under the
Internal Revenue Code.
(v) Ownership of Projects, Joint Ventures and Property.
Ownership of all wholly owned Projects, Joint Ventures and other Property of the
Consolidated Businesses is held by the Borrower and its Subsidiaries and is not
held directly by the Company.
(w) Title to Properties. The Borrower, the Guarantors and
their respective Subsidiaries that own Real Property each has good title to all
of its respective Real Property purported to be owned by it, including, without
limitation, that:
(a) Either (i) the Borrower or (ii) a Guarantor is the owner
of or the holder of a fee or ground leasehold interest (under an effective
ground lease) in the Unencumbered Projects which are wholly-owned by the
Borrower and the Consolidated Businesses, free from any Lien, except for
Customary Permitted Liens, or preferred equity interest.
(b) The Company, the Borrower and their Consolidated
Subsidiaries will, as of the Closing Date, own all of the assets as reflected in
the financial statements of the Borrower and the Company described in Section
7.1(g) or acquired since the date of such financial statements (except property
and assets sold or otherwise disposed of in the ordinary course of business
since that date).
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 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent thereto:
8.1. BORROWER ACCOUNTING PRACTICES. The Borrower shall maintain, and
cause each of its consolidated Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in conformity with GAAP.
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8.2. FINANCIAL REPORTS. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders):
(a) Quarterly Reports.
(i) Borrower Quarterly Financial Reports. As soon as
practicable, and in any event within forty-five (45) 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, and, in comparative
form, the corresponding figures for the corresponding dates and periods
of the previous Fiscal Year, certified by an Authorized Financial
Officer of the Borrower as fairly presenting in all material respects
the consolidated financial position of the Borrower as of the dates
indicated and the consolidated results of its operations and cash flow
for the months indicated in accordance with GAAP, subject to normal
adjustments.
(ii) Company Quarterly Financial Reports. As soon as
practicable, and in any event within forty-five (45) 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
and its consolidated 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 dates and period of the previous Fiscal
Year, certified by an Authorized Financial Officer of the Company as
fairly presenting in all material respects the consolidated financial
position of the Company and its consolidated Subsidiaries as at the
date indicated and the consolidated 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, Officer's Certificates of the Borrower and the Company in
the form of EXHIBIT F hereto (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
85
Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the consolidated
financial condition of the Company and its Consolidated Subsidiaries,
for 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 an Event of Default or
Potential Event of Default or mandatory prepayment event, or, if any
such condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower or
any of their Subsidiaries has taken, is taking and proposes to take
with respect thereto; (2) the calculations in the form of EXHIBIT G
hereto for the period then ended which demonstrate compliance with the
covenants and financial ratios set forth in Sections 9.9, 9.11, 10.2,
10.6, 10.7, 10.11, and 10.12 hereof 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 Administrative Agent, (4) a schedule of Total Adjusted EBITDA,
and (5) a schedule of Adjusted Unencumbered NOI.
(b) Annual Reports.
(i) Borrower Financial Statements. As soon as practicable, and
in any event within ninety (90) days after the end of each Fiscal Year,
the Financial Statements of the Borrower and its Subsidiaries as at the
end of such Fiscal Year, accompanied by an Officer's Certificate of the
Borrower, signed by the Chief Financial Officer of the Borrower, that
such Financial Statements fairly present in all material respects the
consolidated financial position of the Borrower and its Subsidiaries as
of the dates indicated and the results of their operations and cash
flow for the periods indicated in conformity with GAAP consistently
applied, and which Officer's Certificate shall explain any
inconsistencies between the Financial Statements of the Borrower and
the Financial Statements of the Company.
(ii) Company Financial Statements. As soon as practicable, and
in any event within ninety (90) days after the end of each Fiscal Year,
(i) the Financial Statements of the Company and its consolidated
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 as of the end of and for the prior Fiscal Year; (ii) a
report with respect thereto of Ernst & Young LLP or other independent
certified public accountants acceptable to the Administrative Agent (it
being understood that any "Big Four" certified public accountants are
acceptable to the Administrative Agent), which report shall be
unqualified and shall state that such financial statements fairly
present the consolidated financial position of the Company and its
consolidated Subsidiaries as at the dates indicated and the results of
their operations and cash flow for the periods indicated in conformity
86
with GAAP (except for changes with which Ernst & Young LLP 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
Administrative Agent and each Lender (through the Administrative 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 together with a representative of
the Company, at the expense of the Administrative 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), Officer's Certificates of the Borrower and the Company
in the form of EXHIBIT F hereto (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
(1) that 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 consolidated
financial condition of the Company and its consolidated Subsidiaries,
for the accounting period covered by such reports, that such review has
not disclosed the existence 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 an Event of Default or Potential
Event of Default or mandatory prepayment event, or, if any such
condition or event existed or exists, the nature and period of
existence thereof and what action the Company and/or the Borrower or
any of their Subsidiaries has taken, is taking and proposes to take
with respect thereto; (2) the calculations in the form of EXHIBIT G
hereto for the period then ended which demonstrate compliance with the
covenants and financial ratios set forth in Sections 9.9, 9.11, 10.2,
87
10.6, 10.7, 10.11, and 10.12 hereof 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 Administrative Agent, (4) a schedule of Total Adjusted EBITDA
and (5) a schedule of Adjusted Unencumbered NOI.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year, a
written report, in form reasonably satisfactory to the Administrative
Agent, of all bankruptcy proceedings filed by or against any tenant of
any of the Projects, which tenant occupies three and one half percent
(3.5%) or more of the gross leasable area in the Projects in the
aggregate. The Borrower shall deliver to the Administrative 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 three and one half percent (3.5%) or more of the gross
leasable area in the Projects in the aggregate.
(v) Update of Schedule 7.1-C. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year,
the Borrower shall deliver an update of Schedule 7.1-C.
8.3. 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; (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 a Material Adverse Effect,
the Borrower shall deliver to the Administrative Agent (with copies for each of
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.
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8.4. 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 the Borrower's or such Subsidiary's insurance, the
Borrower shall give written notice thereof to the Administrative Agent (with
copies for each of the Lenders) and provide such other information as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; (ii) as soon as practicable and in any event
within forty-five (45) days after the end of each fiscal quarter of the
Borrower, the Borrower shall provide a written quarterly report to the
Administrative Agent and the Lenders covering the institution of, or written
threat of, any action, suit, proceeding, governmental investigation or
arbitration in an amount equal to or in excess of $50,000,000 (to the extent 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 Administrative Agent and the
Lenders, and shall provide such other information at such time as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; and (iii) in addition to the requirements set
forth in clauses (i) and (ii) of this Section 8.4, the Borrower upon request of
the Administrative 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 requested and
available to it to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters. Notwithstanding the foregoing, the Borrower
shall not be required to disclose any information which is subject to the
attorney-client privilege.
8.5. INSURANCE. As soon as practicable and in any event by January 31st
of each calendar year, the Borrower shall deliver to the Administrative Agent
(with copies for each of the Lenders) (i) a report in form and substance
reasonably satisfactory to the Administrative Agent, 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) an Officer's Certificate
signed by an Authorized Financial Officer of the Borrower certifying that all
premiums with respect to such coverage have been paid when due.
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8.6. ERISA NOTICES. The Borrower shall deliver or cause to be delivered
to the Administrative Agent (with copies for each of 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 an Authorized 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 non-exempt prohibited transaction (as defined in
Sections 406 of ERISA and Section 4975 of the Internal Revenue Code) has
occurred with respect to the Borrower, any ERISA Affiliate or any Plan, a
statement of an Authorized Financial Officer of the Borrower describing such
transaction with respect to the Borrower, any ERISA Affiliate or any Plan 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 Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any Benefit 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 Benefit Plan and all written 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 Benefit Plan or
Multiemployer Plan or the establishment of any new Benefit Plan or the
commencement of contributions to any Benefit Plan or Multiemployer Plan to which
the Borrower or any ERISA Affiliate to which the Borrower or any ERISA Affiliate
was not previously contributing, notification of such increase, establishment or
commencement;
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(g) within fifteen (15) Business Days after the Borrower or
any ERISA Affiliate receives notice of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit 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 to the extent any of the
foregoing would have a Material Adverse Effect;
(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 which failure has not been cured, 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
has given written notice that it 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.
8.7. ENVIRONMENTAL NOTICES. The Borrower shall notify the
Administrative Agent (with copies for each of the Lenders) in writing, promptly
upon any officer 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;
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(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 which would have a Material Adverse Effect;
(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 which
violation would have a Material Adverse Effect;
(e) commencement or written threat of any judicial or
administrative proceeding alleging a violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law, which
would result in a Material Adverse Effect; or
(f) any proposed acquisition of stock, assets, real estate, or
leasing of Property by the Borrower or any of its Subsidiaries that would
subject the Borrower or any of its Subsidiaries to environmental, health or
safety Liabilities and Costs which would result in a Material Adverse Effect.
8.8. LABOR MATTERS. The Borrower shall notify the Administrative Agent
(with copies for each of the Lenders) in writing, promptly upon the Borrower's
learning thereof, of any labor dispute to which the Borrower or any of its
Subsidiaries is reasonably expected to become a party (including, without
limitation, any strikes, lockouts or other disputes relating to any Property of
such Persons and other facilities) which would result in a Material Adverse
Effect.
8.9. NOTICES OF ASSET SALES AND/OR ACQUISITIONS. The Borrower shall
deliver to the Administrative Agent and the Lenders written notice of each of
the following events affecting the Company, the Borrower or their respective
Subsidiaries not less than five (5) Business Days prior to the occurrence
thereof: (a) a sale, transfer or other disposition of (i) an Unencumbered
Project or (ii) other assets, in a single transaction or series of related
transactions within the two preceding calendar quarter periods, for
consideration in excess of $50,000,000, (b) an acquisition of assets, in a
single transaction or series of related transactions within the two preceding
calendar quarter period, for consideration in excess of $50,000,000, (c) the
grant of a Lien with respect to (i) an Unencumbered Project or (ii) other
assets, in a single transaction or series of related transactions within the two
preceding calendar quarter periods, for consideration in excess of $50,000,000
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and (d) a release from an escrow account of the proceeds of a qualified,
deferred exchange under ss.1031 of the Internal Revenue Code. In addition,
simultaneously with delivery of any such notice, the Borrower shall deliver to
the Administrative Agent a certificate of an Authorized Officer certifying that
Borrower is in compliance with this Agreement and the other Loan Documents both
on a historical basis and on a pro forma basis, exclusive of the property sold,
transferred and/or encumbered and inclusive of the property to be acquired or
the indebtedness to be incurred.
To the extent such proposed transaction would result in a failure to comply with
the covenants set forth herein, the Borrower shall (i) apply the proceeds of
such transaction (together with such additional amounts as may be required), to
prepay the Obligations in an amount, as determined by the Administrative Agent,
equal to that which would be required to reduce the Obligations so that Borrower
will be in compliance with the covenants set forth herein upon the consummation
of the contemplated transaction, to the extent such proceeds are not applied
pursuant to clauses (ii) or (iii); (ii) to the extent applicable, segregate the
net proceeds of such transaction in an escrow account with the Administrative
Agent or with a financial institution reasonably acceptable to the
Administrative Agent and apply such net proceeds solely to a qualified, deferred
exchange under ss.1031 of the Internal Revenue Code that results in compliance
with the covenants set forth herein upon the consummation of the contemplated
transaction, or with the prior written approval of the Requisite Lenders to
another use, to the extent such proceeds are not applied pursuant to clauses (i)
or (iii); or (iii) to the extent applicable, complete an exchange of such assets
for other real property of equivalent value under ss.1031 of the Internal
Revenue Code that results in compliance with the covenants set forth herein upon
the consummation of the contemplated transaction, to the extent such proceeds
are not applied pursuant to clauses (i) or (ii).
8.10. NOTICES OF JOINT VENTURES. The Borrower shall deliver to the
Administrative Agent and the Lenders written notice of each of the following not
less than two (2) Business Days prior to the occurrence thereof: (a) the
acquisition of an interest in a Joint Venture in excess of $5,000,000, (b) the
investment of an amount in excess of $5,000,000 in a Joint Venture of which the
Administrative Agent and the Lenders have not previously received notice, and
(c) the sale of an interest in a Subsidiary that results in the same becoming a
Joint Venture. Simultaneously with the delivery of the Compliance Certificates,
the Borrower shall deliver to the Administrative Agent and the Lenders written
notice of the formation of any other Joint Venture.
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8.11. TENANT NOTIFICATIONS. The Borrower shall promptly notify the
Administrative Agent upon obtaining knowledge of the bankruptcy or cessation of
operations of any tenant to which greater than three and one half percent (3.5%)
of the Borrower's share of annual base rent (as reported in the Borrower's most
recent quarterly financial statements) is attributable to such tenant.
8.12. OTHER REPORTS. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the Lenders)
copies of all financial statements and reports, if any, sent or made available
generally by the Company and/or the Borrower to its respective Securities
holders, including, without limitation, supplemental quarterly forms, or (to the
extent not otherwise provided hereunder), all press releases made available
generally by the Company and/or the Borrower or any of its Subsidiaries to the
public concerning material adverse developments in the business of the Company,
the Borrower or any such Subsidiary and all material notifications received by
the Company, the Borrower or their Subsidiaries pursuant to the Securities
Exchange Act and the rules promulgated thereunder.
8.13. OTHER INFORMATION. Promptly upon receiving a request therefor
from the Administrative Agent or any Arranger, the Borrower shall prepare and
deliver to the Administrative Agent (with copies for each of the Lenders) such
other information with respect to the Company, the Borrower, or any of their
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent or any Arranger, including without limitation, rent rolls,
title reports, environmental site assessments, and tax returns.
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 14.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent:
9.1. EXISTENCE. ETC. The Borrower shall, and shall cause each of its
Subsidiaries and the Company to, at all times maintain its corporate existence
or existence as a limited partnership, limited liability company 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
will not have a Material Adverse Effect.
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9.2. POWERS; CONDUCT OF BUSINESS. The Borrower shall remain qualified,
and shall cause each of its Subsidiaries and the Company 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 if the failure to do so will have a
Material Adverse Effect.
9.3. COMPLIANCE WITH LAWS. ETC. The Borrower shall, and shall cause
each of its Subsidiaries and the Company to, (a) comply with all Requirements of
Law and all restrictive covenants affecting such Person or the business,
Property 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 will not have a Material
Adverse Effect.
9.4. PAYMENT OF TAXES AND CLAIMS. (a) The Borrower shall pay, and cause
each of its Subsidiaries and the Company to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
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 material 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 10.2 or a Customary Permitted Lien for property
taxes and assessments not yet due upon any of the Borrower's, the Company's or
any of the Borrower's Subsidiaries' Property, 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.
9.5. 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 Administrative Agent. All such policies and
programs shall be maintained with insurers having an Alfred M. Best Company,
Inc. rating of "A" or better (or if approved by the Administrative Agent, a
rating of "A-") and a financial size category of not less than VIII.
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9.6. INSPECTION OF PROPERTY, BOOKS AND RECORDS DISCUSSIONS. The
Borrower shall permit, and cause each of its Subsidiaries and the Company to
permit, any authorized representative(s) designated by the Administrative Agent
or any Arranger or Lender (coordinated through the Administrative Agent) to
visit and inspect any of the Projects, to examine, audit, and check their
respective financial and accounting records, books, journals, orders, receipts
and any correspondence and other data relating to their respective 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, 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 proper books of record and account in which
entries are made in conformity with GAAP.
9.7. ERISA COMPLIANCE. The Borrower shall, and shall cause each of its
Subsidiaries and ERISA Affiliates to, establish, maintain and operate all
Benefit 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.
9.8. 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 (ordinary wear and tear excepted), 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, renewals and replacements thereof,
including, without limitation, any capital improvements which may be required to
maintain the same; 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
each Project that is an office or industrial Project as an office or industrial
Project.
9.9. COMPANY STATUS. The Borrower shall cause the Company to, and the
Company shall, at all times (1) remain a publicly traded company listed on the
New York Stock Exchange; (2) maintain its status as a REIT under the Internal
Revenue Code, and (3) retain direct or indirect management and control of the
Borrower.
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9.10. OWNERSHIP OF PROJECTS, JOINT VENTURES AND PROPERTY. The ownership
of substantially all wholly owned Projects, Joint Ventures and other Property of
the Consolidated Businesses shall be held by the Borrower and its Subsidiaries
and shall not be held directly by the Company.
9.11. MAINTENANCE OF OPERATING ACCOUNTS. The Borrower shall at all
times during the Revolving Credit Period maintain a demand deposit account held
by Administrative Agent (the "OPERATING ACCOUNT") and shall cause funds to be
deposited therein in an amount sufficient to permit the Administrative Agent to
automatically deduct therefrom the respective interest payments on the
obligations at 12:00 p.m. on the first Business Day of each month.
9.12. ADDITIONAL GUARANTORS; SOLVENCY OF GUARANTORS.
(a) If, after the Closing Date, a Subsidiary of the Borrower
that is not a Guarantor acquires any Real Property that then or thereafter
qualifies under the definition of Unencumbered Project or any other Unencumbered
asset and such Property or asset is directly or indirectly wholly-owned or
ground leased by the Borrower, the Borrower shall cause such Person (which
Person must be or become a wholly-owned Subsidiary of the Borrower) to execute
and deliver a Guaranty to the Administrative Agent and the Lenders in
substantially the form of EXHIBIT L hereto. Such Guaranty shall evidence
consideration and equivalent value.
(b) The Borrower, the Company, and each other Guarantor are
Solvent. The Borrower and the Company each acknowledge that, subject to the
indefeasible payment and performance in full of the Obligations, the rights of
contribution among each of them and the other Guarantors are in accordance with
applicable laws and in accordance with each such Person's benefits under the
Loans and this Agreement. The Borrower further acknowledges that, subject to the
indefeasible payment and performance in full of the Obligations, the rights of
subrogation of the Guarantors as against the Borrower and the Company are in
accordance with applicable laws.
(c) Other than during the continuance of a Potential Event of
Default or Event of Default, at the request of the Borrower following the
delivery of the certificate of an Authorized Officer in accordance with Section
8.9 hereof, the Guaranty of any Guarantor shall be released by the
Administrative Agent if and when all of the Real Property owned or ground-leased
by such Guarantor shall cease (not thereby creating a Potential Event of Default
or Event of Default) to be an Unencumbered Project which is wholly-owned by a
Consolidated Business, provided the foregoing shall never permit the release of
the Company.
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9.13. FURTHER ASSURANCES. The Borrower will, and will cause each
Guarantor to, cooperate with, and to cause each of its Subsidiaries to cooperate
with, the Administrative Agent and the Lenders and execute such further
instruments and documents as the Lenders or the Administrative Agent shall
reasonably request to carry out to their reasonable satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
9.14. DISTRIBUTIONS IN THE ORDINARY COURSE. In the ordinary course of
business the Borrower causes all of its Subsidiaries to make net transfers of
cash and cash equivalents upstream to the Borrower and the Company, and shall
continue to follow such ordinary course of business. The Borrower shall not make
net transfers of cash and cash equivalents downstream to its Subsidiaries except
in the ordinary course of business consistent with past practice.
ARTICLE X.
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 14.3 not yet due), unless the Requisite Lenders
shall otherwise give prior written consent:
10.1. INTENTIONALLY OMITTED.
10.2. 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:
(a) Liens with respect to Capital Leases of Equipment entered
into in the ordinary course of business of the Borrower or its Subsidiaries
pursuant to which the aggregate Indebtedness under such Capital Leases does not
exceed $1,000,000 for any Project;
(b) Existing Permitted Liens;
(c) Liens securing permitted Secured Indebtedness; provided
that the incurrence of such Liens shall be subject to compliance with Section
4.1(d) and Section 8.9 hereof; and
(d) Customary Permitted Liens.
10.3. INTENTIONALLY OMITTED.
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10.4. 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, financing, leasing and
managing predominantly office and industrial Projects and portfolios of like
Projects, (b) any business or activities which are substantially similar,
related or incidental thereto, (c) investments in and loans to Investment Funds,
FrontLine Capital Group, Subsidiaries, Affiliates and Joint Ventures and
unaffiliated entities (to the extent permitted hereunder) and (d) other
activities referred to in Section 2.3 hereof.
10.5. 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 or
the Company, unless such transaction is determined by the Board of Directors of
the Company to be no 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 (other than
transactions referred to in Section 2.3). Nothing contained in this Section 10.5
shall prohibit (a) increases in compensation and benefits for officers and
employees of the Company, the Borrower or any of its Subsidiaries; (b) payment
of officers', managers', trustees', directors', partners' and other similar
indemnities; (c) performance of any obligations arising under the Loan
Documents; or (d) loans to Persons in connection with such Person's contribution
of Real Property to the Consolidated Businesses or Joint Ventures.
10.6. RESTRICTION ON FUNDAMENTAL CHANGES. The Borrower shall not, and
shall not permit any of the Guarantors to, enter into any merger, consolidation
or amalgamation, 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 such Guarantor's business or Property, whether now or hereafter
acquired, except in connection with issuance, transfer, conversion or repurchase
of limited partnership interests in the Borrower. Notwithstanding the foregoing,
(a) the Borrower or a Guarantor shall be permitted to merge, consolidate or
amalgamate with another Person so long as the Borrower or such Guarantor, as the
case may be, is the surviving Person following such merger, consolidation or
amalgamation, (b) a Guarantor (other than the Company) shall be permitted to
merge, consolidate or amalgamate with or into the Borrower or another Guarantor,
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and (c) so long as no Potential Event of Default or Event of Default has
occurred and is continuing and following the delivery by the Borrower to the
Administrative Agent of a certificate of an Authorized Officer certifying that
Borrower is in compliance with this Agreement and the other Loan Documents on a
pro forma basis, exclusive of the properties owned by a Guarantor, such
Guarantor (other than the Company) shall be permitted to merge, consolidate or
amalgamate with or into another Person.
10.7. 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.
10.8. 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, except to the extent engaging in such transaction would
not have a Material Adverse Effect;
(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 Benefit 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 Benefit
Plan;
(d) terminate any Benefit 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, except to the extent such failure would not have a Material Adverse
Effect;
(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 Benefit 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.
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10.9. ORGANIZATIONAL DOCUMENTS. Neither the Company nor the Borrower
shall, and the Borrower shall not permit any Guarantor to, 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 such Guarantor, provided that the
Borrower shall have provided the Administrative Agent with thirty (30) 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
prohibited under this Agreement.
10.10. FISCAL YEAR. Neither the Company, the Borrower nor any of their
Subsidiaries 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.
10.11. FINANCIAL COVENANTS.
(a) 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 (i) Total Outstanding Indebtedness which would not exceed fifty-five
percent (55%) of Total Value as of the date of incurrence, (ii) Total Secured
Outstanding Indebtedness which would not exceed forty percent (40%) of Total
Value as of the date of incurrence or (iii) Total Recourse Secured Outstanding
Indebtedness which would not exceed ten percent (10%) of Total Value as of the
date of incurrence.
(b) Minimum Combined Equity Value. The Combined Equity Value
shall at no time be less than $1,250,000,000, plus an amount equal to seventy
percent (70%) of all Net Offering Proceeds received by the Company after the
date hereof.
(c) Office and Industrial Unencumbered Value. As of the first
day of each calendar quarter for the immediately preceding calendar quarter, at
least eighty percent (80%) of Total Unencumbered Value shall be attributable to
the sum, without duplication, of (i) the value of office and industrial
properties and assets, (ii) the amount of unrestricted Cash and Cash Equivalents
in excess of $40,000,000, and (iii) Eligible Cash 1031 Proceeds.
(d) Minimum Unsecured Interest Coverage Ratio. As of the first
day of each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Adjusted Unencumbered NOI to (ii) Unsecured Interest Expense shall
not be less than 2.0 to 1.0.
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(e) Limitation on Total Unsecured Outstanding Indebtedness. As
of the first day of each calendar quarter for the immediately preceding calendar
quarter, the ratio of (i) Total Unsecured Outstanding Indebtedness to (ii) Total
Unencumbered Value (including Eligible Cash 1031 Proceeds, to the extent not
already included) shall not exceed 0.60 to 1.0.
(f) Minimum Total Interest Coverage Ratio. As of the first day
of each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Total Adjusted EBITDA to (ii) Total Interest Expense shall not be
less than 2.0 to 1.0.
(g) Minimum Fixed Charge Coverage Ratio. As of the first day
of each calendar quarter for the immediately preceding calendar quarter, the
ratio of (i) Total Adjusted EBITDA to (ii) Fixed Charges shall not be less than
1.60 to 1.0.
(h) Maximum Dividend Payout Ratio. The Company shall not make
any Restricted Payment during any of its fiscal quarters, which, when added to
all Restricted Payments made during the three immediately preceding fiscal
quarters, exceeds the greater of (i) 90% of FFO, and (ii) the amounts required
to maintain its status as a REIT under the Internal Revenue Code, and, provided
an Event of Default shall not have occurred and be continuing, to avoid federal
income and excise tax liability. For purposes of this provision, "Restricted
Payment" means any cash dividend or other cash distribution on any shares of the
Company's capital stock (except dividends payable solely in shares of its
capital stock or in rights to subscribe for or purchase shares of its capital
stock).
(i) Development Activities. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Budgeted Construction Cost to (ii) the sum of (a) Total Value minus (b)
Construction Asset Cost plus (c) Budgeted Construction Cost shall not exceed
0.15 to 1.0.
(j) Negative Pledge. From and after the date hereof, neither
the Borrower nor the Company will, and will not permit any of their respective
Subsidiaries, to enter into any agreement containing any provision prohibiting
the creation or assumption of any Lien upon its properties, revenues or assets
(other than with respect to (i) prohibitions on subordinate liens or
prohibitions on pledges of direct or indirect ownership interests (other than
pledges of direct ownership interests in the Borrower or any Subsidiary that
owns an Unencumbered Project) set forth in a mortgage on a particular property,
(ii) customary restrictions contained in the Organizational Documents of a Joint
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Venture, or (iii) restrictions contained in the Organizational Documents of the
Borrower on the ability of its general partner and limited partner to pledge and
transfer partnership interests in the Borrower), whether now owned or hereafter
acquired, or restricting the ability of the Borrower to amend or modify this
Agreement or any other Loan Document.
(k) Pro Forma Calculations. The Borrower shall comply with the
financial ratios set forth in this Section 10.11 as of the date of each
Borrowing. The Borrower shall recalculate the financial ratios by adding the
deemed amount equal to the applicable Borrowing to the Indebtedness reflected on
the most recently available financial statements, and adding thereto any
Indebtedness incurred since the date of such financial statement and adding,
without duplication, the cash from such Borrowing and the value of any assets
(determined at cost) acquired with such Indebtedness to Total Value.
10.12. NEGATIVE COVENANTS WITH RESPECT TO THE COMPANY.
(a) From and after the date hereof, the Company will not
acquire any assets of any nature whatsoever other than additional units in the
Borrower, Cash or Cash Equivalents in the ordinary course of business or in
connection with the payment of dividends.
(b) From and after the date hereof, the Company will not incur
any Indebtedness or any other obligations or liabilities except (i) as imposed
by operation of law on the Company in its capacity as the general partner of the
Borrower, (ii) Indebtedness, the net proceeds of which are contributed to the
Borrower simultaneously with the incurrence thereof by the Company, (iii)
guarantees of Indebtedness which are recourse to the Borrower, (iv) in
connection with the payment of a declared dividend and (v) otherwise as imposed
by law.
(c) From and after the date hereof, the Company will not
retain any Net Offering Proceeds, and the same will be contributed by the
Company to the Borrower simultaneously with receipt thereof by the Company.
(d) The Company shall not 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, any of its business or assets, including
its interests in the Borrower. Notwithstanding the foregoing, the Company shall
be permitted to merge with another Person so long as the Company is the
surviving Person following such merger.
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ARTICLE XI.
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. 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 2.4, Section 4.1(a), or Section 4.1(d) or
(ii) when due, any interest payment on the obligations, provided,
however, that the Borrower shall be entitled to a five (5) day grace
period with respect to any interest payment but not more than one time
in any twelve (12) month period during the term hereof, or (iii) when
due, any principal payment on the Obligations not referenced in clauses
(i) or (ii) hereinabove or (iv) when due, any fees due pursuant to the
terms of Section 5.3 and such default shall continue for five (5) days.
(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 9.1, 9.4, 9.5, 9.10,
9.11 or Article X.
(c) Breach of Representation or Warranty. Any representation
or warranty made or deemed made by the Borrower or any of the parties
to the Guaranties to the Administrative Agent, any Arranger or any
Lender herein or by the Borrower or any of the parties to the
Guaranties or any of their 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 or
deemed made or given.
(d) Other Defaults. The Borrower shall default in the
performance of or compliance with any terms 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
continue for thirty (30) days after receipt of written notice from the
Administrative Agent thereof.
(e) Acceleration of Other Indebtedness. Any breach, default or
event of default shall occur and be continuing, or any other condition
shall exist under any instrument, agreement or indenture pertaining to
any recourse Indebtedness (other than the Obligations) of the Company,
the Borrower or their Subsidiaries aggregating more than $10,000,000,
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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; or any such
Indebtedness shall not be repaid at maturity (after taking into account
grace and cure periods).
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the
Company, the Borrower or any of its Subsidiaries to which $25,000,000
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 the
Company, the Borrower or any such Subsidiaries of the Borrower in an
involuntary case, under any applicable bankruptcy, 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 the Company, or General
Partner or Limited Partners of the Borrower or the board of directors
or partners of any such Subsidiaries of the Borrower (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 the
Company, the Borrower or any of their Subsidiaries to which $25,000,000
or more of the Combined Equity Value is attributable, or over all or a
substantial part of the Property of the Company, the Borrower or any of
such Subsidiaries, shall be entered; or an interim receiver, trustee or
other custodian of the Company, the Borrower or any of such
Subsidiaries or of all or a substantial part of the Property of the
Company, 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 Company, the Borrower,
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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 Company or 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. The
Company, the Borrower or any of their Subsidiaries to which $25,000,000
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 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 the Company, 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 $5,000,000 (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.
(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 Administrative Agent
within sixty (60) days after the filing thereof or the date upon which
the Administrative 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, equals or
exceeds $5,000,000.
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(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 all other such Environmental Liens,
equals or exceeds $5,000,000.
(i) Dissolution. Any order, judgment or decree shall be
entered against the Borrower or any Guarantor decreeing its involuntary
dissolution or split up; or the Borrower or any Guarantor 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 or any
Guarantor seeks to repudiate its obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event
occurs which the Administrative Agent believes could subject any of the
Borrower or any ERISA Affiliate to liability in excess of $500,000.
(l) Waiver Application. The plan administrator of any Benefit
Plan applies under Section 412 (d) of the Internal Revenue Code for a
waiver of the minimum funding standards of Section 412 (a) of the
Internal Revenue Code and the Administrative 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) Material Adverse Effect. An event shall occur which has a
Material Adverse Effect.
(n) Certain Defaults Pertaining to the Company. The Company
shall fail to comply with Section 9.9, or any representation or
warranty contained in Section 7.1(a)(ii), (b), (d), (l), or (o) shall
be false or misleading in any material respect on the date as of which
made.
(o) Merger or Liquidation of the Company, the Borrower. The
Company shall merge or liquidate with or into any other Person and, as
a result thereof and after giving effect thereto, (i) the Company is
not the surviving Person or (ii) such merger or liquidation would
effect an acquisition of or Investment in any Person which is
prohibited or results in a Potential Event of Default or an Event of
Default 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 which is prohibited or results in a
Potential Event of Default or an Event of Default under the terms of
this Agreement.
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An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 14.7.
11.2. RIGHTS AND REMEDIES.
(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 and other Obligations 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 Administrative Agent shall at the request, or may with the consent, of the
Lenders whose Pro Rata Shares, in the aggregate, are greater than fifty-one
percent (51%), 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 and all other
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 and/or (iii) require the
Borrower to provide cash collateral in an amount equal to the sum of (A) all
outstanding Reimbursement Obligations plus (B) the aggregate undrawn face amount
of all outstanding Letters of Credit.
(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 payable solely by
virtue of acceleration) shall be remedied or waived pursuant to Section 14.7,
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
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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, the Guarantors or any of their 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 Administrative Agent, the Arrangers and the Lenders;
therefore, the Borrower agrees that the Administrative Agent, the Arrangers and
the 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
12.1. APPOINTMENT. (a) Each Lender hereby designates and appoints
JPMorgan as the Administrative Agent, Wells Fargo Bank, National Association, as
the Syndication Agent, Citicorp North America, Inc. and Wachovia Bank, National
Association as the Co-Documentation Agents and the Arrangers as the arrangers of
such Lender under this Agreement, and each Lender hereby irrevocably authorizes
the Administrative Agent, the other Agents and the Arrangers to take such
actions on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers in each case only as are set forth herein
or therein together with such other powers as are reasonably incidental thereto.
The Administrative Agent, the other Agents and the Arrangers each agrees to act
as such on the express conditions contained in this Article XII.
(b) The provisions of this Article XII are solely for the
benefit of the Administrative Agent, the Syndication Agent, the Documentation
Agents, the Arrangers and the Lenders, and neither the Borrower, the Company 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 its respective functions and duties under this Agreement, the
Administrative Agent, the Documentation Agents, the Syndication Agent, and the
Arrangers shall act solely as agents of the Lenders and do not assume and shall
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not be deemed to have assumed any obligation or relationship of agency, trustee
or fiduciary with or for the Company, the Borrower or any Subsidiary of the
Borrower. The Administrative Agent, the Documentation Agents, the Syndication
Agent and the Arrangers may perform any of their respective duties hereunder, or
under the other Loan Documents, by or through their respective agents or
employees.
12.2. NATURE OF DUTIES. The Administrative Agent, the Documentation
Agents, the Syndication Agent and the Arrangers shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
other Loan Documents. The duties of the Administrative Agent, the Documentation
Agents, the Syndication Agent and the Arrangers shall be mechanical and
administrative in nature. None of the Administrative Agent, a Documentation
Agent, the Syndication Agent or any Arranger shall have by reason of this
Agreement a fiduciary relationship in respect of any Lender. Nothing in this
Agreement or any of the other Loan Documents, expressed or implied, is intended
to or shall be construed to impose upon the Administrative Agent, a
Documentation Agent, the Syndication Agent or any Arranger any obligations in
respect of this Agreement or any of the other Loan Documents except as expressly
set forth herein or therein. The Administrative Agent, the Documentation Agents,
the Syndication Agent and the Arrangers 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, furnishing copies of documents to
each Lender, upon request, of documents sent by such Agent to the Borrower and
promptly notifying each Lender upon its obtaining actual knowledge of the
occurrence of any Event of Default hereunder. In addition, the Administrative
Agent shall deliver to each Lender, promptly after receipt thereof, copies of
those documents and reports received by it pursuant to Sections 8.2 (other than
clause (b)(iv)), 8.3, 8.4, 8.7 and 8.12.
12.3. RIGHT TO REQUEST INSTRUCTIONS. The Administrative Agent, the
Documentation Agents, the Syndication Agent and the Arrangers 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
110
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 Lender shall have any
right of action whatsoever against the Administrative Agent, a Documentation
Agent, the Syndication Agent or any Arranger 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.
12.4. RELIANCE. The Administrative Agent, the Documentation Agents, the
Syndication Agent and the Arrangers shall each be entitled to rely upon any
written notices, statements, certificates, orders or other documents 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 other 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.
12.5. INDEMNIFICATION. To the extent that the Administrative Agent, a
Documentation Agent, the Syndication Agent or any Arranger is not reimbursed and
indemnified by the Borrower, the Lenders will reimburse and indemnify such Agent
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. Notwithstanding anything to the
contrary contained herein, the Administrative Agent, a Documentation Agent, the
Syndication Agent or any Arranger shall not be indemnified to the extent such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs and expenses result from such Person's gross negligence, willful
misconduct or breach of this Article XII. 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.
12.6. 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 Persons serving as the Administrative Agent, the
Documentation Agents, the Syndication Agent and the Arrangers 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
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Lender. The terms "LENDERS" or "REQUISITE LENDERS" or any similar terms shall,
unless the context clearly otherwise indicates, include JPMorgan, Citicorp North
America, Inc., Wells Fargo Bank, National Association and Wachovia Bank,
National Association, each in its respective individual capacity as a Lender or
as one of the Requisite Lenders. JPMorgan, J.P. Morgan Securities Inc. and each
other Arranger 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 JPMorgan and J.P.
Morgan Securities Inc. were not acting as an Agent or Arranger pursuant hereto.
12.7. SUCCESSOR AGENTS.
(a) Resignation. Any Agent 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 Lenders, unless
applicable law requires a shorter notice period or that there be no notice
period, in which instance such applicable law shall control. Such resignation
shall take effect upon the acceptance by a successor Agent of appointment
pursuant to this Section 12.7.
(b) Appointment by Requisite Lenders. Upon any such
resignation becoming effective, (i) if an Arranger shall then be acting with
respect to this Agreement, such Arranger shall become the Administrative Agent
or (ii) if no Arranger shall then be acting with respect to this Agreement, the
Requisite Lenders shall have the right to appoint a successor Administrative
Agent selected from among the Lenders with the prior written consent of the
Borrower (so long as no Event of Default then exists), which consent shall not
be unreasonably withheld.
(c) Appointment by Retiring Agent. If a successor
Administrative 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
Administrative Agent until such time, if any, as the Requisite Lenders appoint a
successor Agent as provided above with the prior written consent of the Borrower
(so long as no Event of Default then exists) which shall not be unreasonably
withheld, provided, however, that such successor Administrative Agent shall have
total assets of not less than $10,000,000,000.
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(d) Rights of the Successor and Retiring Agents. Upon the
acceptance of any appointment as Administrative 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.
12.8. RELATIONS AMONG THE LENDERS. Each Lender agrees that it will not
take any legal action, nor institute any actions or proceedings, against the
Borrower or any other obligor 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).
12.9. STANDARD OF CARE. The Administrative Agent, the Documentation
Agents, the Syndication Agent and the Arrangers shall administer the Loans in
the same manner that such Agent administers loans made for its own account.
ARTICLE XIII.
YIELD PROTECTION
13.1. TAXES.
(a) Payment of Taxes. Any and all payments by the Borrower
hereunder or under the Notes or other documents evidencing any Obligations of
such Person 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 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,
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deductions, charges and withholdings being hereinafter referred to as "TAXES").
Except as otherwise provided herein, 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.
(b) Indemnification. Except as otherwise provided herein, the
Borrower will indemnify each Lender against, and reimburse each Lender within
ten (10) Business Days after written 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 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, to the extent not paid by the Borrower pursuant to
this Section 13.1. 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 Administrative Agent with such
certificates and other documents 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 other Loan
Documents. If any Lender receives any refund with respect to any Taxes, such
Lender shall promptly remit such refund to the Borrower.
(c) Receipts. Within thirty (30) days after the date of any
payment of Taxes by the Borrower, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 14.8, 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 each of the Borrower and the Administrative
Agent on the Closing Date or the date on which such Lender becomes a Lender
pursuant to Section 14.1 hereof a true and accurate certificate executed in
duplicate by a duly authorized
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officer of such Lender to the effect that such Lender is eligible to receive
payments hereunder and under the 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 W-8BEN (or any successor or
substitute form or forms)) or (II) under Sections 1441(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 W-8ECI (or any successor or substitute form or
forms)).
(ii) Each Lender referred to in Section 13.1(d)(i) further
agrees to deliver to each of the Borrower and the Administrative 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 Administrative 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 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 such Lender agrees to deliver to each of the Borrower and the
Administrative 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
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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
Administrative Agent, unless any change in treaty, law, regulation, or official
interpretation thereof which would render such form inapplicable or which would
prevent such Lender from duly completing and delivering such form has occurred
prior to the date on which any such delivery would otherwise be required and
such 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.
(iii) Notwithstanding anything to the contrary contained in
this Section 13.1, the Borrower will not be required to make any additional
payment to or for the account of any Lender under Section 13.1(a) or (b) by
reason of (x) a breach by such Lender of any certification or representation set
forth in any form furnished to the Borrower under this Section 13.1(d), or (y)
such Lender's failure or inability to furnish, if required to do so, under this
Section 13.1(d) an original or renewal of a Form W-8ECI or Form W-8BEN (or
successor form), as applicable, unless such failure or inability results from a
change (after the date such Lender became a Lender party hereto) in any
applicable law or regulation or in the interpretation thereof by any regulatory
authority (including without limitation any change in any applicable tax
treaty).
13.2. 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 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 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, within ten (10)
Business Days after written demand by such Lender (with a copy of such demand to
the Administrative Agent), the Borrower shall immediately pay to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
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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.
13.3. 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) subjects 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 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,
Competitive Bid Loans or Letters of Credit (other than taxes covered by
Section 13.1(a) hereof and taxes excluded in Section 13.1(a) hereof); or
(b) imposes, modifies, or holds applicable, in the
determination of a Lender, any reserve, 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 in respect of Eurodollar Loans or Letters of Credit;
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, within ten (10) Business Days
after written demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall immediately pay to the Administrative
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.
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13.4. REPLACEMENT OF CERTAIN LENDERS. In the event a Lender (a
"DESIGNATED LENDER") shall have (i) requested additional compensation from the
Borrower under Section 13.1 or under Section 13.2 or under Section 13.3, (ii)
failed to make its Pro Rata Share of any Loan requested to be made hereby or
(iii) failed to make any Loan at the Eurodollar Rate, the Borrower may, at its
sole election, make written demand on such Designated Lender (with a copy to the
Administrative Agent) for the Designated Lender to assign, and such Designated
Lender shall assign pursuant to one or more duly executed Assignment and
Acceptances to one or more Eligible Assignees which the Borrower or the
Administrative Agent shall have identified for such purpose, all of such
Designated Lender's right and obligations under this Agreement, the Notes and
the other Loan Documents (including, without limitation, its Revolving Credit
Commitment, all Loans owing to it, and all of its participation interests in
Letters of Credit and all other Obligations owing to it) in accordance with
Section 14.1. All out-of-pocket expenses incurred by the Administrative 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 13.1, Section 13.2 or
Section 13.3.
13.5. MITIGATION. Each Lender shall notify the Borrower of any event
occurring after the date of this Agreement entitling such Lender to compensation
under Sections 13.1, 13.2 or 13.3 as promptly as practicable, but in any event,
within 45 days, after such Lender obtains actual knowledge thereof; provided
that (i) if any Lender fails to give such notice within 45 days after it obtains
actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to Sections 13.1, 13.2 or 13.3 in respect of any
costs resulting from such event, only be entitled to payment under Sections
13.1, 13.2 or 13.3 for costs incurred from and after the date 45 days prior to
the date that such Lender does give such notice and (ii) each Lender will
designate a different Applicable Lending Office for the Loans of such Lender
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable judgment of
such Lender, be disadvantageous to such Lender.
ARTICLE XIV.
MISCELLANEOUS
14.1. 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 14.1. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
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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
14.1.
(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 to an
assignee which is not a Lender or a Lender Affiliate, shall be in a minimum
principal amount of $5,000,000 (and the assignor shall maintain a minimum amount
of $5,000,000 for its own account unless the assignor shall assign or
participate its entire interest), (ii) each such assignment shall be to an
Eligible Assignee, (iii) each assignment to an assignee which is not a Lender or
a Lender Affiliate shall be subject to the approval of the Administrative Agent
and the Borrower (which approval of the Administrative Agent and the Borrower
shall not be unreasonably withheld and which approval of the Borrower shall be
deemed to have been given if the Borrower fails to object to such proposed
assignment within five (5) Business Days of its receipt of a request for
approval), and (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance. Upon the occurrence and continuance of
an Event of Default, none of the foregoing restrictions on assignments shall
apply, provided, however, that while an Event of Default (other than an Event of
Default that shall have required that the Administrative Agent shall have
delivered a notice of the underlying default) shall be continuing but prior to
acceleration of the Loans, the applicable Lender shall give the Borrower five
(5) days written notice by telecopy of its intention to assign any or all of its
interest in this Agreement. Upon such execution, delivery, acceptance and
recording in the Register, from and after the effective date specified in each
Assignment and Acceptance and agreed to by the Administrative 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 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 (except as otherwise provided in Section 14.9) 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
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rights and obligations under this Agreement, the assigning Lender shall cease to
be a party hereto, except as otherwise provided in Section 14.9) 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 Administrative Agent shall maintain at
its address referred to in Section 14.8 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, the Administrative Agent
and the other Lenders and each other party to a Loan Document 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 Assignee and a processing and
recordation fee of $3,500 (payable by the assignee to the Administrative Agent),
the Administrative 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 in the Register and (iii) give prompt notice
thereof to the Borrower.
(e) Participations. Each Lender may sell participations to
one or more other financial institutions or other Persons 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 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 Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
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Lender in connection with such Lender's rights and obligations under this
Agreement, (iv) each participation (other than a participation to an Affiliate)
shall be in a minimum amount of $5,000,000, 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 any (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 Loans) subject to such participation and (D)
release of any guarantor of the Obligations. Participations by a Person in a
Competitive Bid Loan of any Lender shall not be deemed "participations" for
purposes of this Section 14.1(e) and shall not be subject to the restrictions on
"participations" contained herein.
(f) Any Lender (each, a "DESIGNATING LENDER") may at any time
designate one Designated Bank to fund Competitive Bid Loans on behalf of such
Designating Lender subject to the terms of this Section 14.1(f) and the
provisions in Section 14.1(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 Administrative Agent for its
acceptance a Designation Agreement. Upon such receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Bank, the Administrative Agent will accept
such Designation Agreement and will give prompt notice thereof to the 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 Competitive Bid
Loans on behalf of its Designating Lender pursuant to Section 2.2 after the
Borrower has accepted a Competitive Bid Loan (or portion thereof) of the
Designating Lender, and (iii) the Designated Bank shall not be required to make
payments with respect to any obligations in this 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
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Borrower, the Administrative Agent, the Syndication Agent, the Documentation
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 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 Administrative
Agent, the Documentation Agents, the Syndication Agent and Lenders may rely
thereon without any requirement that the Designated Bank sign or acknowledge the
same. No Designated Bank may assign or transfer all or any portion of its
interest hereunder or under any other Loan Document, other than assignments to
the Designating Lender which originally designated such Designated Bank.
(g) Information Regarding the Borrower. Any Lender may,
subject to the provisions of Section 14.22, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
14.1, 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 Administrative Agent or by or on behalf of the
Borrower.
(h) 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.
(i) 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
Agreement (including, without limitation, Obligations owing to it and any Note
held by it) in favor of any Person.
14.2. EXPENSES.
(a) Generally. The Borrower agrees promptly upon demand to
pay, or reimburse the Administrative Agent for the reasonable fees, expenses and
disbursements of counsel to the Administrative Agent (but not of other legal
counsel) and for all other reasonable out-of-pocket costs and expenses incurred
by the Administrative Agent, the Syndication Agent or the Arrangers in
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connection with (i) the preparation, negotiation, and execution of the Loan
Documents; (ii) the preparation, negotiation, execution, syndication 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 and other
extensions of credit hereunder; (iii) any amendments, consents, waivers,
assignments, restatements, or supplements to any of the Loan Documents and the
preparation, negotiation, and execution of the same; and (iv) any other
amendments, modifications, agreements, assignments, restatements or supplements
to any of the Loan Documents requested by Borrower and the preparation,
negotiation, and execution of the same.
(b) After Default. The Borrower further agrees to pay or
reimburse the Administrative Agent, the Arrangers and each of the Lenders upon
demand for all reasonable out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees (including allocated costs of internal
counsel and costs of settlement) incurred by the such entity after the
occurrence and during the continuance of an Event of Default (i) in enforcing
any Loan Document or Obligation, the collection of any Obligation or exercising
or enforcing any other right or remedy available by reason of such Event of
Default; or (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, or 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.
14.3. INDEMNITY. The Borrower further agrees (a) to defend, protect,
indemnify, and hold harmless the Administrative Agent, the Arrangers and each
and all of the Lenders and each of their respective officers, directors,
employees, attorneys and agents (collectively, the "INDEMNITEES") from and
against any and all liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, claims, reasonable
costs, reasonable expenses and reasonable disbursements (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
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Documents, the making of the Loans and the issuance of and participation in
Letters of Credit hereunder, 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 provided further that payment of the costs of
preparation of the Loan Documents shall be governed by Section 14.2(a) hereof;
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 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 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.
14.4. 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 the
Company 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
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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 Administrative Agent and the Borrower, to so reflect such change in
accounting principles.
14.5. INTENTIONALLY OMITTED.
14.6. 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 Competitive Bid Loans to a
particular Competitive Bid Lender and the costs, fees and other payments
described in Sections 3.1(g), 5.2(f), and 5.3, Article XIII and Section 14.1)
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 Competitive Bid Loans to a
particular Competitive Bid Lender and the costs, fees and other payments
described in Sections 3.1(g), 5.2(f), and 5.3, Article XIII and Section 14.1),
(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 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 14.6 may, to the
fullest extent permitted by law, exercise all its rights of payment with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
14.7. 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;
125
provided, however, that the Borrower's agreement shall not be required for any
amendment or modification of Sections 12.1 through 12.8 (other than Section
12.7). In the event that the Administrative Agent shall request the agreement of
the Lenders to any amendment, modification or waiver, if any Lender shall fail
to respond to any such request within fifteen (15) days after receipt of such
request, such Lender's approval thereto shall be deemed to have been given;
provided, however, that such request shall state, in capital letters that
"FAILURE TO RESPOND TO THIS REQUEST WITHIN FIFTEEN (15) DAYS AFTER RECEIPT,
SHALL BE DEEMED CONSENT TO THE ENCLOSED REQUEST". 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 or deemed concurrence of the Requisite Lenders, which the Requisite
Lenders shall have the right to grant or withhold in their sole discretion. All
amendments, waivers and consents not specifically reserved to the Administrative
Agent, the Arrangers or the Lenders in Section 14.7(b), 14.7(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),
126
(ii) change the amount of such Lender's Revolving Credit Commitment
(other than pursuant to an assignment permitted under Section 14.1 or a
reduction of the Revolving Credit Commitments by the Borrower under
Section 4.1(b)),
(iii) reduction of the principal of, or the rate or amount of interest
on, the Loans or the Reimbursement Obligations, 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 14.7(c)(i)) fixed for any payment of principal of, or
interest on, the Loans or 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 (except for
the one-year extension thereof as provided in the second sentence of
the definition thereof), or increase in the Maximum Revolving Credit
Amount to any amount in excess of $470,000,000, except for the
increases thereof to an amount not to exceed $750,000,000 as provided
in Section 2.1(b);
(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 14.6 or this Section 14.7,
(iv) assignment of any right or interest in or under this Agreement or
any of the other Loan Documents by the Borrower,
(v) waiver of any Event of Default under Section 11.1(a), Section
11.1(f) or Section 11.1(g), and
127
(vi) amendment or release of the Guaranties, except in connection with
the permitted sale of an Unencumbered Project by a Guarantor.
(d) Administrative Agent Authority. Subject to the second
succeeding sentence of this subsection (d), the Administrative Agent may, but
shall have no obligation to, with the written concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of that Lender.
Notwithstanding anything to the contrary contained in this Section 14.7, no
amendment, modification, waiver or consent shall affect the rights or duties of
the Administrative Agent under this Agreement and the other Loan Documents,
unless made in writing and signed by the Administrative 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 fifteen (15) days after such
request, then such Lender hereby irrevocably authorizes the Administrative Agent
to agree or disagree, in full or in part, and in the Administrative Agent's sole
discretion, to such requests on behalf of such Lender as such Lender's
attorney-in-fact and to execute and deliver any writing approved by the
Administrative Agent which evidences such agreement as such Lender's duly
authorized agent for such purposes; provided, however, that such request shall
state, in capital letters that "FAILURE TO RESPOND TO THIS REQUEST WITHIN
FIFTEEN (15) DAYS AFTER RECEIPT, SHALL BE DEEMED AUTHORIZATION TO THE
ADMINISTRATIVE AGENT WITH RESPECT TO THE ENCLOSED REQUEST".
14.8. 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 or United States certified mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to Articles II, IV or XII shall not be effective
until received by the Administrative Agent. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section 14.8) shall be (i) for Borrower, at 225 Broadhollow
Road, Melville, New York 11747, Attention: Michael Maturo, and (ii) for the
128
Lenders, as set forth on SCHEDULE LC hereto or on the applicable Assignment and
Acceptance by which such party became a Lender hereunder, 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.
14.9. 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, in the case of any Lender that may assign any interest in its
Revolving Credit Commitment, Loans or participation interests in Letters of
Credit hereunder, shall survive the making of such assignment, notwithstanding
that such assigning Lender may cease to be a "Lender" hereunder, and, except for
the representations and warranties, the termination of this Agreement other than
any of the foregoing set forth in Section 13.1 or Section 13.2 or Section 13.3
or Section 5.2(f), which shall survive for thirty (30) days after termination of
this Agreement.
14.10. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of the Administrative Agent or any Lender 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.
14.11. PAYMENTS SET ASIDE. To the extent that the Borrower makes a
payment or payments to the Administrative Agent, any Arranger or any Lender or
any such Person exercises its rights of setoff, 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 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.
14.12. 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
129
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.
14.13. 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.
14.14. 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.
14.15. LIMITATION OF LIABILITY. No claim may be made by any Lender, any
Arranger, the Administrative 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, the Arrangers and the Administrative 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.
14.16. 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. Except as otherwise
provided in Section 10.6, the rights and obligations hereunder of the Borrower,
or any interest therein, may not be assigned without the written consent of all
Lenders (and any such attempted assignment without such consent shall be null
and void).
14.17. CERTAIN CONSENTS AND WAIVERS OF THE BORROWER.
(a) Personal Jurisdiction. (i) EACH OF THE AGENTS, 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
130
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. EACH OF THE AGENTS, 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 MANNER PROVIDED BY LAW. EACH OF THE AGENTS, THE LENDERS, AND 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 ADMINISTRATIVE 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 ADMINISTRATIVE AGENT AND THE
LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE
ADMINISTRATIVE AGENT OR ANY LENDER. THE BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH THE ADMINISTRATIVE 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 BORROWER'S PROCESS AGENT OR THE BORROWER'S NOTICE
ADDRESS SPECIFIED IN SECTION 14.8 HEREOF, 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
131
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF THE ADMINISTRATIVE AGENT OR THE LENDERS TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
(C) WAIVER OF JURY TRIAL. EACH OF THE AGENTS AND THE LENDERS
AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
14.18. 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 Agent and 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.
14.19. LIMITATION ON AGREEMENTS. All agreements between the Borrower,
the Administrative Agent, the Arrangers and each Lender in the Loan 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.
14.20. DISCLAIMERS. The Administrative Agent, the Arrangers and the
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 Projects, including any TI
Work. The Administrative Agent, the Arrangers and the 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 Agent, the Arrangers or the Lenders for any purposes and
none of the Lenders, the Arrangers, or the Agents shall be deemed partners or
joint venturers with Borrower. None of the Administrative Agent, the Arrangers
or the 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
132
third party beneficiary status or recognition of same by any of the
Administrative Agent, the Arrangers or the Lenders and the Borrower agrees to
hold the Administrative Agent, the Arrangers and the Lenders harmless from any
of the damages and expenses resulting from such a construction of the
relationship of the parties or any assertion thereof.
14.21. 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.
14.22. CONFIDENTIALITY. Each of the Agents, the Arrangers and the
Lenders agrees to keep confidential all non-public information provided to it by
the Borrower pursuant to this Agreement that is designated by the Borrower as
confidential; provided that nothing herein shall prevent the Agents or the
Lenders from disclosing any such information (a) to the Agents, any other Lender
or any Lender Affiliate (provided such Lender Affiliate is made aware of the
confidentiality of such information and agrees to keep such information
confidential), (b) to any Assignee, Participant or prospective Assignee or
Participant or any actual or prospective counterparty (or its advisors) to any
swap or derivative transactions relating to the Borrower and its Obligations
(provided such Person is made aware of the confidentiality of such information
and agrees to keep such information confidential), (c) to the employees,
directors, agents, attorneys, accountants and other professional advisors of any
Lender, Assignee, Participant, prospective Assignee or Participant who are
advised of the provisions of this Section, (d) upon the request or demand of any
Governmental Authority having or asserting jurisdiction over either Agent or any
Lender, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(f) if requested or required to do so in connection with the exercise of any
remedy hereunder or under any other Loan Document, (g) upon the advice of
counsel that such disclosure is required by law, (h) with the consent of the
Borrower, (i) in connection with any litigation to which any Agent, Arranger or
Lender is a party, or (j) to the extent such information becomes publicly
available other than as a result of a breach of this Section 14.22 or becomes
available to any Agent, Arranger or Lender on a nonconfidential basis from a
source other than the Borrower.
14.23. NO BANKRUPTCY PROCEEDINGS. Each of the Borrower the
Administrative Agent, the Documentation Agents, the Syndication Agent and the
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
133
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.
14.24. TRANSITIONAL ARRANGEMENTS.
(a) 2000 Credit Agreement Superseded. This Agreement shall
supersede the 2000 Credit Agreement in its entirety, except as provided in this
Section 14.24. On the Closing Date, the rights and obligations of the parties
under the 2000 Credit Agreement and the "Notes" defined therein shall be
subsumed within and be governed by this Agreement and the Notes; provided
however, that any of the "Revolving Credit Obligations" (as defined in the 2000
Credit Agreement) outstanding under the 2000 Credit Agreement shall, for
purposes of this Agreement, be Revolving Credit Obligations hereunder. The
Lenders' interests in such Revolving Credit Obligations, and participations in
such Letters of Credit shall be reallocated on the Closing Date in accordance
with each Lender's applicable Pro Rata Share.
(b) Return and Cancellation of Notes. Upon its receipt of the
Revolving Credit Notes to be delivered hereunder on the Closing Date, each
Lender will promptly return to the Borrower, marked "Cancelled" or "Replaced",
the notes of the Borrower held by such Lender pursuant to the 2000 Credit
Agreement.
(c) Interest and Fees Under Original Agreement. All interest
and all commitment, facility and other fees and expenses owing or accruing under
or in respect of the 2000 Credit Agreement shall be calculated as of the Closing
Date (prorated in the case of any fractional periods), and shall be paid on the
Closing Date in accordance with the method specified in the 2000 Credit
Agreement as if such agreement were still in effect.
[Remainder of Page Intentionally Left Blank--Signature Pages to Follow]
134
IN WITNESS WHEREOF the undersigned have duly executed this Agreement as
a sealed instrument as of the date first set forth above.
BORROWER:
RECKSON OPERATING PARTNERSHIP, L.P.
By: Reckson Associates Realty Corp.
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
LENDERS:
JPMORGAN CHASE BANK, individually
and as Administrative Agent
By:
-------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
CITICORP NORTH AMERICA, INC.
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
BAYERISCHE LANDESBANK, CAYMAN
ISLANDS BRANCH
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
CHEVY CHASE BANK, F.S.B.
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
THE BANK OF NEW YORK
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
ERSTE BANK
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
ING CAPITAL LLC, as successor to ING
(U.S.) CAPITAL LLC
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
UBS AG, STAMFORD BRANCH
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT WITH RECKSON OPERATING PARTNERSHIP, L.P.
EXHIBIT 99.3
EXHIBIT B-1
to
Second Amended and Restated Credit Agreement
dated as of December __, 2002
FORM OF PROMISSORY NOTE
- --------------------------------------------------------------------------------
$________________ New York, New York
_____, 2002
For value received, Reckson Operating Partnership, L.P., a Delaware
limited partnership (the "BORROWER"), promises to pay to the order of
_____________________________ (the "LENDER") the unpaid principal amount of each
Loan made by the Lender to the Borrower pursuant to the Credit Agreement
referred to below on the Revolving Credit Termination Date (as such term is
defined in the Credit Agreement) or on such other dates as may be specified in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in federal or other
immediately available funds at the office of the Administrative Agent (as such
term is defined in the Credit Agreement).
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Second Amended and
Restated Credit Agreement, dated as of December __, 2002, among the Borrower,
the institutions from time to time party thereto, JPMorgan Chase Bank, as
Administrative Agent, the other Agents party thereto, and J.P. Morgan Securities
Inc. and Salomon Smith Barney Inc., as co-lead arrangers and joint bookrunners
(as the same may be amended, supplemented, restated, or otherwise modified from
time to time, the "CREDIT AGREEMENT"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
B-1.2
for provisions for the prepayment hereof, the acceleration of the maturity
hereof upon the happening of certain events and certain waivers by the Borrower.
THIS NOTE 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 CONFLICT OF LAWS PRINCIPLES.
BORROWER:
RECKSON OPERATING
PARTNERSHIP, L.P., a Delaware
limited partnership
By: RECKSON ASSOCIATES
REALTY CORP., a Maryland
corporation, its general partner
By:
------------------------------------
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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EXHIBIT 99.4
EXHIBIT L
to
Second Amended and Restated Credit Agreement
dated as of December __, 2002
-----------------------------------------------------------
FORM OF GUARANTY
GUARANTY AGREEMENT
UNCONDITIONAL GUARANTY OF PAYMENT (this "GUARANTY"), is made as of
December __, 2002 by ____________________________________ (the "GUARANTOR"), in
favor of JPMORGAN CHASE BANK, as administrative agent and WELLS FARGO BANK,
NATIONAL ASSOCIATION, as syndication agent (collectively, "AGENTS") for the
benefit of the banks (the "LENDERS") that are from time to time parties to that
certain Second Amended and Restated Credit Agreement (the "CREDIT AGREEMENT"),
dated as of December __, 2002, among Reckson Operating Partnership, L.P., the
Lenders and the Agents.
Capitalized terms not otherwise defined in this Guaranty shall have the
meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Credit Agreement, Reckson
Operating Partnership, L.P. (the "BORROWER") requested that the Lenders make
Loans to and issue Letters of Credit for the account of the Borrower, to be
guaranteed by Guarantor and to be evidenced by certain Promissory Notes (the
"NOTES"), each dated as of December __, 2002, in the aggregate principal amount
of $470,000,000, payable by the Borrower to the order of the Lenders;
WHEREAS, this Guaranty is one of the "GUARANTIES" referred to in the
Credit Agreement;
WHEREAS, the Guarantor is [a wholly-owned subsidiary of the Borrower];
WHEREAS, (i) the obligations of the Guarantor under this Guaranty are
necessary or convenient to the conduct, promotion or attainment of the business
of the Guarantor, and (ii) the Guarantor will receive consideration, including
access to the financing to be provided under the Credit Agreement, for the
issuance of this Guaranty; and
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WHEREAS, in order to induce the Agents and the Lenders to make the
Loans to and to issue Letters of Credit for the account of the Borrower, and to
satisfy one of the conditions contained in the Credit Agreement with respect
thereto, the Guarantor has agreed to enter into this Guaranty.
NOW THEREFORE, in consideration of the premises and the direct and
indirect benefits to be derived from the making of the Loans and other
extensions of credit by the Lenders to the Borrower, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor hereby agrees as follows:
1. (a) Guarantor, on behalf of itself and its successors and assigns,
hereby irrevocably, absolutely, and unconditionally guarantees the full and
punctual payment when due, whether at stated maturity or otherwise, of all
obligations of the Borrower now or hereafter existing under the Credit
Agreement, under the Notes, under any Letter of Credit or Letter of Credit
Reimbursement Agreement or under any of the other Loan Documents to which the
Borrower is a party; and
(b) Guarantor, on behalf of itself and its successors and
assigns, hereby irrevocably, absolutely, and unconditionally guarantees the full
and punctual payment when due of any and all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by the Agents and the Lenders in enforcing their rights under this
Guaranty (all such obligations set forth in this Paragraph 1 being referred to
as the "GUARANTEED OBLIGATIONS").
2. It is agreed that the obligations of Guarantor hereunder are primary
and this Guaranty shall be enforceable against Guarantor and its successors and
assigns without the necessity for any suit or proceeding of any kind or nature
whatsoever brought by the Agents or the Lenders against the Borrower, or its
respective successors or assigns or any other party or against any security for
the payment and performance of the Guaranteed Obligations and, to the extent
permitted by applicable law, without the necessity of any notice of non-payment
or non-observance or of any notice of acceptance of this Guaranty or of any
notice or demand to which Guarantor might otherwise be entitled (including,
without limitation, diligence, presentment, notice of maturity, extension of
time, change in nature or form of the Guaranteed Obligations, acceptance of
further security, release of further security, imposition or agreement arrived
at as to the amount of or the terms of the Guaranteed Obligations, notice of
adverse change in the Borrower's financial condition or any other fact which
might materially increase the risk to Guarantor), all of which Guarantor, to the
extent permitted by applicable law, hereby expressly waives; and, to the extent
permitted by applicable law, Guarantor hereby expressly agrees that the validity
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of this Guaranty and the obligations of the Guarantor hereunder shall in no way
be terminated, affected, diminished, modified or impaired by reason of the
assertion of, or the failure to assert by the Agents or the Lenders against the
Borrower or its respective successors or assigns, any of the rights or remedies
reserved to the Agents and the Lenders pursuant to the provisions of the Loan
Documents. Guarantor hereby agrees that, to the extent permitted by applicable
law, any notice or directive given at any time to the Agents or the Lenders
which is inconsistent with the waiver in the immediately preceding sentence
shall be void and may be ignored by the Agents and the Lenders, and, in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty, unless the Agents
have specifically agreed otherwise in writing, signed by a duly authorized
officer. Guarantor specifically acknowledges and agrees that the foregoing
waivers are of the essence of this transaction and that, but for this Guaranty
and such waivers, the Agents and the Lenders would not make the requested Loans
and other extensions of credit to the Borrower.
3. To the extent permitted by applicable law, Guarantor hereby waives,
and covenants and agrees that it will not at any time insist upon, plead or in
any manner whatsoever claim or take the benefit or advantage of, any and all
appraisal, valuation, stay, extension, marshalling-of-assets or redemption laws,
or right of homestead exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by Guarantor of its
obligations under, or the enforcement by the Agents and the Lenders of, this
Guaranty. To the extent permitted by applicable law, Guarantor further covenants
and agrees not to set up or claim any defense, counterclaim, offset, set-off or
other objection of any kind to any action, suit or proceeding in law, equity or
otherwise, or to any demand or claim that may be instituted or made by the
Agents or the Lenders, other than the defense of the actual timely payment and
performance by the Borrower of the Guaranteed Obligations hereunder. Guarantor
represents, warrants and agrees that, as of the date hereof, its obligations
under this Guaranty are not subject to any counterclaims, offsets or defenses
against the Agents or the Lenders of any kind.
It is the intention and agreement of Guarantor, the Agents and the
Lenders that the obligations of Guarantor under this Guaranty shall be valid and
enforceable against Guarantor to the maximum extent permitted by applicable law.
Accordingly, if any provision of this Guaranty creating any obligation of
Guarantor in favor of the Agents and the Lenders shall be declared to be invalid
or unenforceable in any respect or to any extent, it is the stated intention and
agreement of Guarantor, the Agents and the Lenders that any balance of the
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obligation created by such provision and all other Guaranteed Obligations shall
remain valid and enforceable. Likewise, if by final order a court of competent
jurisdiction shall declare any sums which the Agents or the Lenders may be
otherwise entitled to collect from Guarantor under this Guaranty to be in excess
of those permitted under any law (including any federal or state fraudulent
conveyance or like statute or rule of law) applicable to Guarantor's obligations
under this Guaranty, it is the stated intention and agreement of Guarantor, the
Agents and the Lenders that all sums not in excess of those permitted under such
applicable law shall remain fully collectible by the Agents and the Lenders from
Guarantor. Nothing in the foregoing limits the covenant of the Borrower
contained in Section 9.12(b) of the Credit Agreement.
4. The provisions of this Guaranty are for the benefit of the Agents on
behalf of the Lenders and their successors and permitted assigns, and nothing
herein contained shall impair as among the Borrower, the Lenders and the Agents
the obligations of the Borrower under the Loan Documents.
5. This Guaranty shall be a continuing, unconditional (regardless of
any circumstances that might otherwise constitute a defense of the Guarantor or
the Borrower), irrevocable and absolute guaranty and, to the extent permitted by
applicable law, the liability of Guarantor hereunder shall in no way be
terminated, affected, modified, impaired or diminished by reason of the
happening, from time to time, of any of the following, although without notice
or the further consent of Guarantor:
(a) any assignment, amendment, modification or waiver of or
change in any of the terms, covenants, conditions or provisions of any
of the Guaranteed Obligations or the Loan Documents or the invalidity
or unenforceability of any of the foregoing; or
(b) any extension of time that may be granted by the Agents or
the Lenders to the Borrower, any guarantor, or their respective
successors or assigns; or
(c) any action which the Agents or the Lenders may take or
fail to take under or in respect of any of the Loan Documents or by
reason of any waiver of, or failure to enforce any of the rights,
remedies, powers or privileges available to the Agents or the Lenders
under this Guaranty or any of the other Loan Documents or available to
the Agents or the Lenders at law, in equity or otherwise, or any action
on the part of the Agents or the Lenders granting indulgence or
extension in any form whatsoever; or
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(d) any sale, exchange, release, or other disposition of any
property pledged, mortgaged or conveyed, or any property in which the
Agents and/or the Lenders have been granted a lien or security interest
to secure any indebtedness of the Borrower to the Agents and/or the
Lenders or any impairment of or failure to perfect any such lien or
security interest; or
(e) any release of any person or entity who may be liable in
any manner for the payment and collection of any amounts owed by the
Borrower to the Agents and/or the Lenders; or
(f) the application of any sums by whomsoever paid or however
realized to any amounts owing by the Borrower to the Agents and/or the
Lenders under the Loan Documents in such manner as the Agents and the
Lenders shall determine in their sole discretion; or
(g) the Borrower's or any guarantor's voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of their
respective assets and liabilities, appointment of a trustee, receiver,
liquidator, sequestrator or conservator for all or any part of the
Borrower's or any guarantor's assets, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment, or the commencement of other similar
proceedings affecting the Borrower or any guarantor or any of the
assets of any of them, including, without limitation, (i) the release
or discharge of the Borrower or any guarantor from the payment and
performance of its respective obligations under any of the Loan
Documents by operation of law, or (ii) the impairment, limitation or
modification of the liability of the Borrower or any guarantor in
bankruptcy, or of any remedy for the enforcement of the Guaranteed
Obligations under any of the Loan Documents, or Guarantor's liability
under this Guaranty, resulting from the operation of any present or
future provisions of the Bankruptcy Code or other present or future
federal, state or applicable statute or law or from the decision in any
court; or
(h) any improper disposition by the Borrower of any Letter of
Credit or the proceeds of the Loans, it being acknowledged by Guarantor
that the Agents and the Lenders shall be entitled to honor any request
made by the Borrower for a disbursement of such proceeds and that the
Agents and the Lenders shall have no obligation to see the proper
disposition by the Borrower of such Letter of Credit or proceeds.
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6. Guarantor hereby agrees that if at any time all or any part of any
payment at any time received by the Agents or the Lenders from the Borrower
under any of the Notes or other Loan Documents or Guarantor under or with
respect to this Guaranty is or must be rescinded or returned by the Agents or
the Lenders for any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of the Borrower or Guarantor or any
other guarantor), then Guarantor's obligations hereunder shall, to the extent of
the payment rescinded or returned, be deemed to have continued in existence
notwithstanding such previous receipt by the Agents or the Lenders, and
Guarantor's obligations hereunder shall continue to be effective or reinstated,
as the case may be, as to such payment, as though such previous payment to the
Agents or the Lenders had never been made.
7. Until this Guaranty is terminated pursuant to the terms hereof, the
Guarantor (i) shall have no right of subrogation against the Borrower or any
entity comprising same by reason of any payments or acts of performance by
Guarantor in compliance with the obligations of Guarantor hereunder; (ii) hereby
waives any right to enforce any remedy which Guarantor now or hereafter shall
have against the Borrower, or any entity comprising the same, by reason of any
one or more payment or acts of performance in compliance with the obligations of
Guarantor hereunder; and (iii) shall subordinate any liability or indebtedness
of the Borrower or any entity comprising same now or hereafter held by Guarantor
to the obligations of the Borrower, as applicable, under the Loan Documents;
provided that nothing contained herein shall limit the right of the Guarantor to
receive any amount from the Borrower, as applicable, or any entity comprising
the same that is not prohibited by the terms of the Loan Documents.
8. Guarantor hereby represents and warrants on its own behalf to the
Agents with the knowledge that the Agents and the Lenders are relying upon the
same, as follows:
(a) as of the date hereof, Guarantor is a wholly-owned
subsidiary of the Borrower, and Guarantor is familiar with the
financial condition of Borrower;
(c) based upon such relationship, Guarantor has determined
that it is in its best interest to enter into this Guaranty;
(d) this Guaranty is necessary and convenient to the conduct,
promotion and attainment of Guarantor's business, and is in furtherance
of Guarantor's business purposes;
(e) the benefits to be derived by Guarantor from the
Borrower's access to funds made possible by the Loan Documents are at
least equal to the obligations of Guarantor undertaken pursuant to this
Guaranty;
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(f) Guarantor is Solvent and has full corporate, partnership,
limited liability company or trust power, as the case may be, and legal
right to enter into this Guaranty and to perform its obligations under
the terms hereof and (i) Guarantor is organized or formed and validly
existing under the laws of the state of its establishment or formation,
(ii) Guarantor has complied with all provisions of applicable law in
connection with all aspects of this Guaranty, and (iii) the person
executing this Guaranty on behalf of Guarantor has all the requisite
power and authority to execute and deliver this Guaranty; and
(g) this Guaranty has been duly executed by Guarantor and
constitutes the legal, valid and binding obligation of Guarantor,
enforceable against it in accordance with its terms except as
enforceability may be limited by applicable insolvency, bankruptcy or
other laws affecting creditors' rights generally or general principles
of equity whether such enforceability is considered in a proceeding in
equity or at law.
9. Guarantor and the Agents acknowledge and agree that this Guaranty is
a guaranty of payment and not of collection and enforcement in respect of any
obligations which may accrue to the Agents and/or the Lenders from the Borrower
under the provisions of any Loan Document.
10. Subject to the terms and conditions of the Credit Agreement, and
only in conjunction with a transfer permitted thereunder, the Agents and the
Lenders may assign any or all of their respective rights under this Guaranty.
11. Guarantor agrees, upon the written request of the Agents, to
execute and deliver to the Agents, from time to time, any modification or
amendment hereto or any additional instruments or documents reasonably
considered necessary by the Agents or its counsel to cause this Guaranty to be,
become or remain valid and effective in accordance with its terms or in order to
implement more fully the intent of this Guaranty, provided, that, any such
modification, amendment, additional instrument or document shall not increase
Guarantor's obligations or diminish its rights hereunder and shall be reasonably
satisfactory as to form to Guarantor and to Guarantor's counsel.
12. The representation and warranties of the Guarantor set forth in
this Guaranty shall survive until this Guaranty shall terminate in accordance
with the terms hereof and shall be deemed repeated on the date of each extension
of credit under the Credit Agreement.
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13. This Guaranty together with the Credit Agreement and the other Loan
Documents contains the entire agreement among the parties with respect to the
Loans and other extensions of credit being made to the Borrower, and supersedes
all prior agreements relating to such Loans and other extensions of credit and
may not be modified, amended, supplemented or discharged except by a written
agreement signed by Guarantor and the Agents (acting with the requisite consent
of the Lenders as provided in the Credit Agreement).
14. If all or any portion of any provision contained in this Guaranty
shall be determined to be invalid, illegal or unenforceable in any respect for
any reason, such provision or portion thereof shall be deemed stricken and
severed from this Guaranty and the remaining provisions and portions thereof
shall continue in full force and effect.
15. In order for any demand, request or notice to the respective
parties hereto to be effective, such demand, request or notice shall be given,
in writing, by delivering the same personally or by nationally recognized
overnight courier service or by mailing, by certified or registered mail,
postage prepaid or by telecopying the same, addressed to such party at the
address set forth below or to such other address as may be identified by any
party in a written notice to the others. Any such demand, request or notice sent
as aforesaid shall be deemed to have been received by the party to whom it is
addressed upon delivery, if personally delivered and on the actual receipt
thereof, if sent by certified or registered mail or by telecopier, and when
transmitted, if sent by telex:
If to
Guarantor: __________________________
225 Broadhollow Road
Melville, New York 11747
Attention: Michael Maturo
Telecopy: (631) 622-6780
With Copies of
Notices to the
Guarantor to: Fried Frank Harris
Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Lee Parks, Esq.
Telecopy: (212) 859-4000
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If to the Agents: JPMorgan Chase Bank
270 Park Avenue
New York, New York 10017
Attention: Marc E. Costantino
Telecopy: (212) 270-9554
With Copies to: Bingham McCutchen LLP
150 Federal Street
Boston, MA 02110
Attention: Stephen M. Miklus, Esq.
Telecopy: (617) 951-8736
16. This Guaranty shall be binding upon Guarantor and its successors
and assigns and shall inure to the benefit of the Agents and the Lenders and
their successors and assigns. This Guaranty shall not be assigned except in
accordance with the terms and provisions set forth in the Credit Agreement,
including, without limitation, Section 14.16 thereof, as if references therein
to "Borrower" were references to the Guarantor.
17. The failure of the Agents to enforce any right or remedy hereunder,
or promptly to enforce any such right or remedy, shall not constitute a waiver
thereof, nor give rise to any estoppel against the Agents or the Lenders, nor
excuse Guarantor from its obligations hereunder. Any waiver of any such right or
remedy to be enforceable against the Agents must be expressly set forth in a
writing signed by the Agents (acting with the requisite consent of the Lenders
as provided in the Credit Agreement).
18. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this
Guaranty and any action for enforcement of any judgment in respect thereof may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Guaranty, Guarantor hereby accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of the
aforesaid courts and appellate courts from any thereof. Guarantor irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to Guarantor at the address for notices set
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forth herein. Guarantor hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in the
courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. Nothing herein shall
affect the right of the Agents and the Lenders to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Guarantor in any other jurisdiction.
(c) GUARANTOR AND AGENTS BY THEIR EXECUTION HEREOF AND THE
LENDERS' ACCEPTANCE HEREOF EACH HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY.
IT IS HEREBY ACKNOWLEDGED BY GUARANTOR THAT THE WAIVER OF A JURY TRIAL IS A
MATERIAL INDUCEMENT FOR THE AGENTS TO ACCEPT THIS GUARANTY AND THAT THE LOANS
MADE BY THE LENDERS ARE MADE IN RELIANCE UPON SUCH WAIVER. GUARANTOR FURTHER
WARRANTS AND REPRESENTS THAT SUCH WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY
MADE, FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION,
THIS GUARANTY MAY BE FILED BY THE AGENTS IN COURT AS A WRITTEN CONSENT TO A
NON-JURY TRIAL.
(d) Guarantor does hereby further covenant and agree to and
with the Agents that Guarantor may be joined in any action against the Borrower
in connection with the Loan Documents and that recovery may be had against
Guarantor in such action or in any independent action against Guarantor (with
respect to the Guaranteed Obligations), without the Agents or the Lenders first
pursuing or exhausting any remedy or claim against the Borrower, its successors
or assigns. Guarantor also agrees that, in an action brought with respect to the
Guaranteed Obligations in any jurisdiction, it shall be conclusively bound by
the judgment in any such action by the Agents (wherever brought) against the
Borrower, or its successors or assigns, as if Guarantor were a party to such
action, even though Guarantor was not joined as parties in such action.
(e) Guarantor hereby agrees to pay all expenses (including,
without limitation, reasonable attorneys fees and disbursements) which may be
incurred by the Agents and the Lenders in connection with the enforcement of
their rights under this Guaranty, whether or not suit is initiated; provided,
however, that such expenses shall be paid by the Agents if a final judgment in
favor of Guarantor is rendered by a court of competent jurisdiction. Moreover,
Guarantor covenants and agrees to indemnify and save harmless the Agents and the
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Lenders of and from, and defend it against, all losses, out-of-pocket costs and
expenses, liabilities, damages or claims arising by reason of Guarantor's
failure to perform its obligations hereunder.
19. Subject to the terms of Section 6 hereof, this Guaranty shall
terminate and be of no further force or effect upon the full performance and
final payment of the Guaranteed Obligations hereunder. Upon termination of this
Guaranty in accordance with the terms of this Guaranty, the Agents promptly
shall deliver to Guarantor such documents as Guarantor or Guarantor's counsel
reasonably may request in order to evidence such termination.
20. All of the Agents' and the Lenders' rights and remedies under each
of the Loan Documents or under this Guaranty are intended to be distinct,
separate and cumulative and no such right or remedy therein or herein mentioned
is intended to be in exclusion of or a waiver of any other right or remedy
available to the Agents.
21. Recourse with respect to any claim arising under or in connection
with this Guaranty by Agents, the Arrangers and the Lenders shall be limited to
the same extent as is provided in Section 4.3(e) of the Credit Agreement with
respect to claims against the Guarantor and the other parties named therein and
the terms, covenants and conditions of Section 4.3(e) of the Credit Agreement
are hereby incorporated by reference as if fully set forth herein.
22. By executing and delivering this Guaranty, Guarantor hereby agrees
that it shall be bound by, and shall comply with, all warranties and covenants
applicable to it set forth in the Credit Agreement. [For Guaranty of Reckson
Associates Realty Corp., reference the covenants set out in Section 10.12 of the
Credit Agreement and add the following sentence: "The Borrower and the Guarantor
each acknowledge that, subject to the indefeasible payment and performance in
full of the Guaranteed Obligations, the rights of contribution among each of
them and the other guarantors are in accordance with applicable laws and in
accordance with each such party's benefits under the Credit Agreement and this
Guaranty."]
23. Guarantor shall make no claim against any Lender (acting in any
capacity under the Credit Agreement), any Arranger, the Administrative Agent, or
any other Person, 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 Guaranty, or any act,
omission or event occurring in connection therewith; and Guarantor hereby
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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.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
duly executed and delivered as of the date first set forth above.
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By:
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Name:
Title: