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: November 30,1999
RECKSON SERVICE INDUSTRIES, INC.
(Exact name of Registrant as specified in its Charter)
Delaware
(State of Incorporation)
0-30162 11-3383642
(Commission File Number) (IRS Employer Id. Number)
10 East 50th Street 10022
New York, New York (Zip Code)
(Address of principal executive offices)
(212) 931-8000
(Registrant's telephone number, including area code)
<PAGE>
Item 5. Other Events
On November 30, 1999 Reckson Service Industries, Inc. ("RSI"),
entered into a secured credit facility with Warburn Dillon Read, LLC, as
Arranger and UBS AG ("UBS"), Stamford Branch (the "Lender") as Administrative
Agent (the "Credit Facility"). The Credit Facility matures on May 30, 2000.
RSI may extend any outstanding loans for a three month period upon the
satisfaction of conditions enumerated in Section 2.4(b) of the Credit
Agreement. On November 30, 1999 RSI acquired 6,039,946 shares of VANTAS
Incorporated from Cahill, Warnock Strategic Partners Fund L.P. for 762,941
shares of RSI and $33,823,697.60, with proceeds from the Credit Facility and
other sources. As of such date RSI owned 45% of the outstanding shares of
VANTAS Incorporated ("Vantas").
The Credit Facility provides for a maximum borrowing amount of up to
$60 million at any time outstanding. RSI's ability to borrow under the Credit
Facility will be subject to the satisfaction of, among other things, certain
financial covenants, including covenants relating to the ratio of total
outstanding indebtedness to market equity capitalization and the ratio of the
sum of (i) all indebtedness of Vantas and (ii) the amount of all outstanding
loans under the Credit Facility, to the annual ebitda of Vantas. Borrowings
under the Credit Facility will bear interest, at the option of RSI, at the Base
Rate plus 1.5% (which rate increases .5% every 90 days) or the Eurodollar Rate
plus 2.5% (which rate increases .5% every 90 days). The Base Rate is defined as
the fluctuating rate equal to the higher of: (i) the rate of interest announced
publicly by UBS in Stamford, Connecticut from time to time, as UBS's prime
rate; and (ii) the sum of (A) one-half of one percent (0.50%) per annum plus
(B) the federal funds rate in effect from time to time during such period. The
Eurodollar Rate is generally the rate for U.S. dollar deposits for one month
which are offered by UBS to major banks in the London interbank market at
approximately 11:00 a.m. (London time) on the determination date, as adjusted
for applicable reserve requirements.
Borrowings under the Credit Facility are secured directly or
indirectly by 12,719,441 shares of Vantas and 21,837,184 shares of OnSite
Access Inc.
In December 1999, RSI acquired interests in three Internet related
companies for an aggregate of $21.6 million. These companies include an
Internet related commercial real estate data provider, an online business
agency that enables small business managers to learn about and complete a
broad range of common business tasks in public relations, marketing, human
resources, finance and information technology and an online media marketplace
for media suppliers and media buyers.
Item 7. Financial Statements and Exhibits
(c) Exhibits
10.1 November 30, 1999 Credit Agreement
10.2 November 30, 1999 Equity Interest Pledge and Security
Agreement
10.3 November 30, 1999 Interest Rate Cap Agreement, Pledge and
Security Agreement
10.4 November 30, 1999 Promissory Note
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RECKSON SERVICE INDUSTRIES, INC.
/s/ Michael Maturo
----------------------
Michael Maturo
Executive Vice President
and Chief Financial Officer
Date: December 13, 1999
Exhibit 10.1
===============================================================================
CREDIT AGREEMENT
Dated as of November 30, 1999
among
RECKSON SERVICE INDUSTRIES, INC.,
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO AS LENDERS,
WARBURG DILLON READ, LLC,
AS ARRANGER
and
UBS AG, STAMFORD BRANCH
AS ADMINISTRATIVE AGENT,
===============================================================================
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of November 30, 1999 (as amended,
supplemented or modified from time to time, the "Agreement") is entered into
among RECKSON SERVICE INDUSTRIES, INC. a Delaware corporation ("RSI"), the
institutions from time to time a party hereto as Lenders, whether by execution
of this Agreement or an Assignment and Acceptance, and UBS AG, STAMFORD BRANCH,
as Administrative Agent.
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:
"Additional Vantacq Interest Reserve Amount" means an amount in cash
equal to the interest payment payable subsequent to Vantacq Payment Date II
under the Vantacq Loan Documents reasonably determined by the Administrative
Agent, based upon a schedule of borrowings provided to the Administrative Agent
by the Borrower; it being understood that as a condition to any borrowings by
Vantacq under the Vantacq Loan in excess of amounts, or at an earlier date
than, shown on such schedule, Vantacq or the Borrower must deposit additional
funds as reason ably determined by the Administrative Agent.
"Administrative Agent" means UBS.
"Affiliate", as applied to any Person, means any other Person that
directly or indirectly controls, is controlled by, or is under common control
with, that Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to vote ten percent (10.0%) or more of the equity
Securities having voting power for the election of directors of such Person or
otherwise to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting equity Securities or by
contract or otherwise.
"Agents" means, collectively, UBS in its capacity as Administrative
Agent, each Arranger, 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.
"Annual EBITDA" means, with respect to any Property or Minority
Holding, as of the first day of each fiscal quarter for the immediately
preceding consecutive four fiscal quarters, an amount equal to (i) total
revenues relating to such Property or Minority Holding for such period, less
(ii) total operating expenses relating to such Property or Minority Holding for
such period (it being understood that the foregoing calculation shall exclude
non-cash charges as determined in accordance with GAAP). Each of the foregoing
amounts shall be determined by reference to the Borrower's Statement of
Operations for the applicable periods. An example of the foregoing calculation
is set forth on EXHIBIT G hereto. Notwithstanding the foregoing, (i) with
respect to Properties or Minority Holdings that have been acquired and owned
for at least one fiscal quarter but less than four fiscal quarters, the Annual
EBITDA for such Property or Minority Holding shall be deemed to be an amount
equal to the actual EBITDA from such Property or Minority Holding during such
period, computed on an annualized basis, (ii) with respect to Properties or
Minority Holdings that have been acquired and owned for less than one fiscal
quarter but more than one month, the Annual EBITDA for such Property or
Minority Holding shall be deemed to be the acquisition cost of such Property
divided by five (5), (iii) with respect to Properties or Minority Holdings that
have been acquired and owned for less than one month, such Properties shall not
be included in the calculation of Annual EBITDA, and (iv) with respect to
Properties or Minority Holdings that have been closed or sold during the
immediately preceding consecutive four fiscal quarters, the actual EBITDA from
such sold or closed Property or Minority Holding for the immediately preceding
consecutive four fiscal quarters shall not be included in the calculation of
Annual EBITDA.
"Applicable Lending Office" means, with respect to a particular
Lender, (i) its Eurodollar Lending Office in respect of provisions relating to
Eurodollar Rate Loans, and (ii) its Domestic Lending Office in respect of
provisions relating to Base Rate Loans.
"Applicable Margin" means, (A) with respect to each Eurodollar Loan,
(i) for the period commencing on the date of the Funding Date through the date
which is ninety (90) days thereafter, 2.50%, (ii) for the period thereafter
through the Termination Date, 3.00%, and (iii) in the event that the
Termination Date is extended pursuant to Section 2.4(b) hereof, then for the
period commencing on the day after the original Termination Date through the
extended Termination Date, 3.50%; and (B) with respect to each Base Rate Loan,
(i) for the period commencing on the date of the Funding Date through the date
which is ninety (90) days thereafter, 1.50%, (ii) for the period thereafter
through the Termination Date, 2.00%, and (iii) in the event that the
Termination Date is extended pursuant to Section 2.4(b) hereof, then for the
period commencing on the day after the original Termination Date through the
extended Termination Date, 2.50%
"Arranger" means Warburg Dillon Read LLC, 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 Eurodollar Rate" means, with respect to any Eurodollar Interest
Period applicable to a Borrowing of Eurodollar Rate Loans, an interest rate per
annum determined by the Administrative Agent to be the rate per annum at which
deposits in Dollars are offered by the principal office of the Reference Bank
in London, England to major banks in the London interbank market at
approximately 11:00 a.m. (London time) on the Eurodollar Interest Rate
Determination Date for such Eurodollar Interest Period for a period equal to
such Eurodollar Interest Period and in an amount substantially equal to the
amount of the Eurodollar Rate Loan.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the higher of:
(i) the rate of interest announced publicly by UBS in
Stamford, Connecticut from time to time, as UBS's prime rate; and
(ii) the sum of (A) one-half of one percent (0.50%) per
annum plus (B) the Federal Funds Rate in effect from time to time
during such period.
"Base Rate Loan" means (i) a Loan which bears interest at a rate
determined by reference to the Base Rate and the Applicable Margin as provided
in Section 5.1(a) or (ii) an overdue amount which was a Base Rate Loan
immediately before it became due.
"Borrower" means RSI.
"Borrowing" means a borrowing consisting of Loans of the same type
made, continued or converted on the same day.
"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.
"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.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 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 November 30, 1999.
"CommerceInc Loan" means that certain loan in an amount equal to
$7,128,000 and evidenced by that certain Non-Negotiable Promissory Note dated
November 8, 1999 by the Borrower and RSI CIC, Inc., collectively as maker, in
favor of CommerceInc Corporation, as payee.
"Commission" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"Commitment" means with respect to any Lender, the obligation of such
Lender to make Loans pursuant to the terms and conditions of this Agreement,
and which shall not exceed the principal amount set forth opposite such
Lender's name under the heading "Commitment" on the signature pages hereof or
the signature page of the Assignment and Acceptance by which it became a
Lender, as modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable Assignment and Acceptance, and
"Commitments" means the aggregate principal amount of the Commitments of all
the Lenders, the maximum amount of which shall be $60,000,000 as reduced from
time to time pursuant to Section 4.1, including as a result of a prepayment
pursuant to Section 4.1(a) or (d).
"Compliance Certificate" has the meaning set forth in Section 8.2(b).
"Consolidated" means consolidated, in accordance with GAAP.
"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.
"Contingent Obligation" as to any Person means, without duplication,
(i) any contingent obligation of such Person required to be shown on such
Person's balance sheet in accordance with GAAP, and (ii) any obligation
required to be disclosed in the footnotes to such Person's financial statements
in accordance with GAAP, guaranteeing partially or in whole any non-recourse
Indebtedness, lease, dividend or other obligation, exclusive of contractual
indemnities (including, without limitation, any indemnity or price-adjustment
provision relating to the purchase or sale of securities or other assets) and
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. Notwithstanding the foregoing, any litigation
6
<PAGE>
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), less any
amounts held in escrow or reserved with respect to such obligations, including
amounts held in the Vantacq Interest Reserve Account and the amount guaranteed
under the interest guaranty made by Borrower in connection with the Vantacq
Loan, 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. 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 guaranteed obligations or (Y) such other Person holds an
Credit Rating from either Moody's or S&P of BBB- (or its equivalent) or better,
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.
"Controlled Subsidiary" means any Subsidiary of which the Borrower
controls a majority of the board of directors or can otherwise direct or cause
the direction of the management and policies thereof whether through the
ownership of voting equity Securities or by contract or otherwise.
"Credit Availability" means, at any particular time, the amount by
which the Maximum Credit Amount at such time exceeds the Credit Obligations at
such time.
"Credit Obligations" means, at any particular time, the outstanding
principal amount of the Loans at such time.
"Credit Period" means the period from the Initial Funding Date to the
date which is one hundred and twenty (120) days thereafter.
"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.
"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;
(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 $1,000,000; and
(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 (a) the Lien encumbering the equipment or
machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary, and (b) the Borrower provides a schedule
of all such Liens which secure an amount in the aggregate in excess
of $1,000,000;
(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 $1,000,000, which are
being contested in good faith by appropriate proceedings.
"Designated Lender" has the meaning set forth in Section 13.4.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
"Domestic Lending Office" means, with respect to any Lender, such
Lender's office, located in the United States, specified as the "Domestic
Lending Office" under its name on the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such other United
States office of such Lender as it may from time to time specify by written
notice to the Borrower and the Administrative Agent.
"Duff & Phelps" means Duff & Phelps Credit Rating Co. or any
successor thereto.
"Eligible Assignee" means any Lender having total capital in excess
of $250,000,000.
"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 Properties and Properties.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. Section 1000 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance promulgated thereunder.
"ERISA Affiliate" means (i) any corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Internal Revenue Code) as the Borrower; (ii) a partnership or other trade
or business (whether or not incorporated) which is under common control (within
the meaning of Section 414(c) of the Internal Revenue Code) with the Borrower;
and (iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above.
"ERISA Termination Event" means (i) a Reportable Event with respect
to any Plan 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 the signature pages hereof or on the
Assignment and Acceptance by which it became a Lender or such Affiliate of a
Lender as it may from time to time specify by written notice to the Borrower
and the 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 the signature pages hereof or on the Assignment and Acceptance by which
it became a Lender or such other office or offices of such Lender as it may
from time to time specify by written notice to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, with respect to any Eurodollar Interest
Period applicable to a Eurodollar Rate Loan, an interest rate per annum
obtained by dividing (i) the Base Eurodollar Rate applicable to that Eurodollar
Interest Period by (ii) a percentage equal to 100% minus the Eurodollar Reserve
Percentage in effect on the relevant Eurodollar Interest Rate Determination
Date.
"Eurodollar Rate Loan" means (i) a 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 Loan immediately before it became due.
"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).
"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.
"Extension Fee" has the meaning set forth in Section 5.3(a) hereof.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day in New York, New York, for the next
preceding Business Day) in New York, New York by the Federal Reserve Bank of
New York, or if such rate is not so published for any day which is a Business
Day in New York, New York, the average of the quotations for such day on
transactions by the Reference Bank, as determined by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any Governmental Authority succeeding to its functions.
"Financial Statements" means (i) quarterly and annual consolidated
statements of income and retained earnings, statements of cash flow, and
balance sheets, prepared in accordance with GAAP, consistently applied, and
(ii) such other financial statements of the Borrower and the Minority Holdings
that the Borrower shall routinely and regularly prepare and that the Arranger
or the Requisite Lenders may from time to time reasonably request.
"Fiscal Year" means the fiscal year of 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 IBCA, Inc. or any successor thereto.
"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).
"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 Property.
"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.
"Halpern Loan" means that certain loan in an amount equal to
$5,596,572 and evidenced by that certain Non-Negotiable Term Promissory Note
dated September 29, 1999, by the Borrower, as maker, in favor of JAH Realties,
L.P., as payee.
"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 issued for
such Person's account, (iv) to pay the deferred purchase price of property or
services, except accounts payable and accrued expenses arising in the ordinary
course of business, (v) in respect of Capital Leases, (vi) which are Contingent
Obligations or (vii) under 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; (c) all indebtedness, obligations
or other liabilities of such Person in respect of interest rate contracts and
foreign exchange contracts, net of liabilities owed to such Person by the
counterparties thereon; (d) all preferred stock subject (upon the occurrence of
any contingency or otherwise) to mandatory redemption; and (e) all Contractual
Obligations with respect to any of the foregoing.
"Indemnified Matters" has the meaning set forth in Section 14.3.
"Indemnitees" has the meaning set forth in Section 14.3.
"Initial Funding Amount" shall have the meaning set forth in Section
2.1(a) hereof.
"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.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"knowledge" with reference to the Borrower or any Subsidiary of the
Borrower, means the actual knowledge of such Person after reasonable inquiry
(which reasonable inquiry shall include, without limitation, interviewing and
questioning such other Persons as the Borrower or such Subsidiary, as
applicable, deems reasonably necessary).
"Lease" means a lease, license, concession agreement or other
agreement providing for the use or occupancy of any portion of any Property,
including all amendments, supplements, modifications and assignments thereof
and all side letters or side agreements relating thereto.
"Lender" means each of the Arranger, the Administrative Agent, and
each Person a signatory hereto as a Lender as of the Closing Date and, at any
other given time, each Person which is a party hereto as a Arranger,
Administrative Agent or Lender, whether as a signatory hereto or pursuant to an
Assignment and Acceptance, and regardless of the capacity in which such entity
is acting (i.e. whether as Administrative Agent, Arranger, or Lender).
"Letter of Credit" means the Letter of Credit Number P295105, dated
as of the date hereof, issued by The Chase Manhattan Bank, in an amount equal
to $1,829,119 for the benefit of the Administrative Agent, and in form and
substance satisfactory to the Administrative Agent and from a bank with a
Credit Rating of not less than AA-.
"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.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to Section 9-408 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the
Uniform Commercial Code or other comparable law of any jurisdiction.
"Loan Account" has the meaning set forth in Section 4.3(b).
"Loan Documents" means this Agreement, the Notes, the Pledge, the
Rate Cap Agreement, the Letter of Credit, the Rate Cap Pledge and the Vantacq
Letter.
"Loans" means the loans 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 "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.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Market Equity Capitalization" at any time shall equal the sum of (i)
product of (x) the total number of shares of Capital Stock of the Borrower
issued (other than shares issued in connection with the Permitted Private
Placement) and outstanding multiplied by (y) the average price per share of
such Capital Stock for the twenty (20) Business Day period prior to the date of
determination, plus (ii) the Net Offering Proceeds from the Permitted Private
Placement.
"Material Adverse Effect" means a material adverse effect upon (i)
the financial condition or assets of the Borrower and its Material Subsidiaries
and Minority Holdings taken as a whole, (ii) the ability of the Borrower to
perform its material obligations under the Loan Documents, or (iii) the ability
of the Lenders or the Administrative Agent to enforce any of the Loan
Documents.
"Material Subsidiary" means any Subsidiary of the Borrower in which
the Borrower has invested capital, or committed to invest capital, of no less
than Five Million Dollars ($5,000,000). As of the date hereof, VANTAS, Vantacq,
OSA, RSVP, eSource One, a Delaware corporation, and CommerceInc Corporation, an
Indiana corporation, are deemed to be Material Subsidiaries.
"Maximum Credit Amount" means, at any particular time, the
Commitments at such time.
"Minority Holdings" means any interests in partnerships, joint
ventures, limited liability companies, trusts, associations and corporations
held or owned directly or indirectly by the Borrower which are not wholly-owned
by the Borrower.
"Moody's" means Moody's Investor Services, Inc.
"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 transfer taxes payable in
connection with any asset sale.
"Net Income" means net income as determined in accordance with GAAP.
"Net Offering Proceeds" means all cash or other assets received by
the Borrower or any Subsidiary or Minority Holdings 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 Borrower or any such Subsidiary or Minority Holdings, as the
case may be, less customary costs, expenses and discounts of issuance paid by
the Borrower, Subsidiary or Minority Holdings, as applicable.
"Non Pro Rata Loan" has the meaning set forth in Section 4.2 (b)(v).
"Note" has the meaning set forth in Section 4.3 hereof; "Notes"
means, collectively, all of such Notes outstanding at any given time.
"Notice of Borrowing" means a notice substantially in the form of
EXHIBIT C attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in
the form of EXHIBIT D attached 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, any
other 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, 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.
"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 the partnership, (iii) the by-laws (or the equivalent governing
documents) of the corporation, limited liability company or partnership, and
(iv) any document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such corporation's
Capital Stock or such limited liability company's or partnership's equity or
ownership interests.
"OSA" means OnSite Access, Inc., a Delaware corporation.
"OSHA" means the Occupational Safety and Health Act of 1970, 29
U.S.C. Section 651 et seq., any amendments thereto, any successor statutes and
any regulations or guidance promulgated thereunder.
"Paribas Credit Agreement" means the Amended and Restated Credit
Agreement dated as of August 3, 1999 between VANTAS, as borrower, and Banque
Paribas, as agent.
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission required from any Person, including any Governmental
Approvals.
"Permitted Purchase Money Indebtedness" means non-recourse
Indebtedness incurred by the Borrower or any Subsidiary in connection with the
acquisition of Capital Stock of a Person, which is evidenced by a promissory
note payable to the seller of such Capital Stock in an amount equal to or less
than the purchase price for such Capital Stock and for which the Administrative
Agent shall have approved the final loan documentation, which such approval
shall not be unreasonably withheld.
"Permitted Private Placement" shall have the meaning set forth in
Section 4.1(c)(i) hereof.
"Permitted Securities Options" means the subscriptions, options,
warrants, rights, convertible Securities and other agreements or commitments
relating to the issuance of the Borrower'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 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.
"Pledge" means the Pledge and Security Agreement dated as of the date
hereof, by the Borrower and certain Subsidiaries, collectively, as pledgor, and
the Administrative Agent, as pledgee.
"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).
"Property" means any Real Property or personal property, plant,
building, facility, structure, equipment, general intangible, receivable,
businesses or other asset owned or leased by the Borrower, any Subsidiary, or
any Minority Holding.
"Pro Rata Share" means, with respect to any Lender, the percentage
obtained by dividing (i) the sum of such Lender's 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 Commitments.
"RA" means Reckson Associates Realty Corp., a Maryland corporation.
"Rate Cap Agreement" means that certain Interest Rate Exchange
Agreement, dated as of November 30, 1999 between Borrower and Warburg Dillon
Read Swaps, LLC.
"Rate Cap Pledge" means that certain Rate Cap Pledge and Security
Agreement dated as of the date hereof between the Borrower, as pledgor, and the
Administrative Agent, as pledgee.
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 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
Subsidiaries' 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.
"Reference Bank" means UBS.
"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.
"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
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 greater than fifty percent (50%); provided, however, that, in
the event any of the Lenders shall have failed to fund its Pro Rata Share of
any Loan requested by the Borrower which such Lenders are obligated to fund
under the terms of this Agreement and any such failure has not been cured as
provided in Section 4.2(b)(v)(B), then for so long as such failure continues,
"Requisite Lenders" means Lenders (excluding all Lenders whose failure to fund
their respective Pro Rata Shares of such Loans have not been so cured) whose
Pro Rata Shares represent more than fifty percent (50%) of the aggregate Pro
Rata Shares of such Lenders; provided, further, however, that, in the event
that the 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 more than fifty percent (50%).
"ROP" means Reckson Operating Partnership, L.P., a Delaware limited
partnership.
"ROP/Chase Revolving Credit Agreement" means the Credit Agreement,
dated as of July 23, 1998, among the ROP, Reckson Morris Operating Partnership,
L.P., The Chase Manhattan Bank, as administrative agent, UBS AG, New York
Branch, as syndication agent, PNC Bank, National Association, as documentation
agent, and the other lenders party thereto, as the same may be amended,
modified or restated.
"ROP Credit Agreement" means the Credit Agreement dated as of June
15, 1998 between ROP, as lender, and RSI, as borrower, as amended on the date
hereof, relating to the operations of RSI.
"RSVP Credit Agreement" means the Credit Agreement dated as of June
15, 1998 between ROP, as lender, and RSI, as borrower, as amended on the date
hereof, relating to RSVP.
"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.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
"Single Purpose Entity" means a Person wholly-owned by the Borrower
and that otherwise meets and complies with the special purpose entity
requirements set forth in S&P's criteria book Structured Finance Ratings Real
Estate Finance pages 112-117, or similar criteria established by Rating
Agencies for special purpose entities; provided that in no event shall a
non-consolidation opinion be required to be delivered.
"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.
"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 one or more
members of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned or controlled by such Person, one
or more of the other subsidiaries of such Person or any combination thereof.
"Taxes" has the meaning set forth in Section 13.1(a).
"Termination Date" means the earlier to occur of (i) May 30, 2000
(or, if not a Business Day, the next preceding Business Day); and (ii) the date
of termination of the Commitments pursuant to the terms of this Agreement, as
the same may be extended pursuant to Section 2.4(b) hereof.
"Total Outstanding Indebtedness" means, for any period, the sum of
(i) the amount of Indebtedness of the Borrower 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 Borrower since the
time of such statements, less any Indebtedness repaid by the Borrower since the
time of such statements, and (ii) the outstanding amount of Minority Holding
Indebtedness set forth on the then most recent quarterly financial statements
of the Borrower or the applicable Minority Holding, prepared in accordance with
GAAP and allocable in accordance with GAAP to the Borrower, plus any additional
Minority Holding Indebtedness incurred by the Minority Holdings allocable in
accordance with GAAP to the Borrower since the time of such statements, less
any Indebtedness repaid by the Minority Holdings allocable in accordance with
GAAP to the Borrower since the time of such statements, and (iii) the
Contingent Obligations of the Borrower and, to the extent allocable to the
Borrower in accordance with GAAP, of the Minority Holdings.
"Treasury Rate" means, as of any date, a rate equal to the annual
yield to maturity on the U.S. Treasury Constant Maturity Series with a ten year
maturity, as such yield is reported in Federal Reserve Statistical Release H.15
- -- Selected Interest Rates, published most recently prior to the date the
applicable Treasury Rate is being determined. Such yield shall be determined by
straight line linear interpolation between the yields reported in Release H.15,
if necessary. In the event Release H.15 is no longer published, the
Administrative Agent shall select, in its reasonable discretion, an alternate
basis for the determination of Treasury yield for U.S. Treasury Constant
Maturity Series with ten year maturities.
"UBS" means UBS AG, Stamford Branch.
"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.
"VANTAS" means VANTAS Incorporated, a Nevada corporation.
"Vantacq" means VANTACQ, LLC, a Delaware limited liability company.
"Vantacq Covenant Test Date" means the date which is the earlier of
(x) the end of the third fiscal quarter after the Closing Date (but not earlier
than September 30, 2000), and (y) the date on which all of the Loans hereunder
are repaid in full.
"Vantacq Interest Reserve Account" shall have the meaning set forth
in Section 9.10(a) hereof.
"Vantacq Interest Reserve Amount" means an amount in cash equal to
the interest payments payable under the Vantacq Loan Documents on Vantacq
Payment Date I and Vantacq Payment Date II, reasonably determined by the
Administrative Agent, based upon a schedule of borrowings provided to the
Administrative Agent by the Borrower; it being understood that as a condition
to any borrowings by Vantacq under the Vantacq Loan in excess of amounts, or at
an earlier date than, shown on such schedule, Vantacq or the Borrower must
deposit additional funds as reasonably determined by the Administrative Agent.
"Vantacq Letter" shall have the meaning set forth in Section 9.9(IV)
hereof.
"Vantacq Loan" means (x) the senior secured loan facility in the
amount of $75,000,000, between RSVP, as lender, and Vantacq, as borrower, or
(y) such other loan as may be approved by the Administrative Agent in its sole
and absolute discretion.
"Vantacq Loan Agreement" shall have the meaning set forth Section
6.1(a)(i) hereof.
"Vantacq Loan Documents" shall have the meaning set forth in Section
9.9 hereof.
"Vantacq Payment Date I" means the date which is ninety (90) days
from closing date of the Vantacq Loan.
"Vantacq Payment Date II" means the date which is one hundred and
eighty (180) days from closing date of the Vantacq Loan.
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 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.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
(a) Availability. Subject to the terms and conditions set forth in
this Agreement, each Lender hereby severally and not jointly agrees to make
loans, in Dollars (each individually, a "Loan" and, collectively, the "Loans")
to the Borrower from time to time during the Credit Period in an amount not to
exceed such Lender's Pro Rata Share of the Credit Availability at such time.
The aggregate amount of Loans to be made hereunder with respect to the Borrower
shall not exceed Sixty Million Dollars ($60,000,000), of which Thirty-Nine
Million Four Hundred Six Thousand Five Hundred Twenty Eight Dollars
($39,406,528) shall be funded on the Initial Funding Date (the "Initial Funding
Amount") and the remaining Credit Availability shall be available for borrowing
in accordance with the funding ratio set forth in Section 2.2 hereof. All 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 Loan hereunder nor shall the
Commitment of any Lender be increased or decreased as a result of any such
failure. Subject to the provisions of Section 5.2(a) hereof, each requested
Borrowing of Loans funded on any Funding Date shall be in a principal amount of
at least $1,000,000 and with integral multiples of $500,000; provided, however,
that if the aggregate undrawn Commitments outstanding at the time of such
requested Borrowing is less than $1,000,000, then the requested Borrowing shall
be for the total amount of such outstanding aggregate undrawn Commitments. The
Borrower may not borrow funds, and the Lenders shall not be obligated to fund
Loans, from and after the occurrence of any of the events described in Section
4.1(c)(iii) hereof.
(b) 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. 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 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, and (v)
instructions for the disbursement of the proceeds of the proposed Borrowing.
Any Notice of Borrowing (or telephonic notice in lieu thereof) given pursuant
to this Section 2.1(b) shall be irrevocable.
(c) Making of Loans. (i) Promptly after receipt of a Notice of
Borrowing under Section 2.1(b), the Administrative Agent shall notify each
Lender by facsimile transmission, or other similar form of transmission, of the
proposed Borrowing (which notice to the Lenders, in the case of a Borrowing of
Eurodollar Rate Loans, shall be at least three (3) Business Days in advance of
the proposed Funding Date for such Loans). Each Lender shall deposit an amount
equal to its Pro Rata Share of the Borrowing requested by the Borrower with the
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, 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,
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 interest rate applicable to such Borrowing.
If such Lender shall pay to the Administrative Agent the corresponding amount,
the amount so paid shall constitute such Lender's Loan, 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(c)(ii) does not relieve any Lender of its obligation
to make its Loan on any applicable Funding Date.
2.2. Funding Ratios. (a) The Borrower may only borrow amounts
hereunder in excess of the Initial Funding Amount (any such amounts, including
any borrowed under subsection (b) hereof, a "Subsequent Borrowing") up to Forty
Million Dollars ($40,000,000) if: (i) for every additional one dollar ($1.00)
to be borrowed, the Borrower has acquired directly and pledged to the
Administrative Agent 0.28455 shares of Capital Stock of VANTAS in excess of the
11,212,967 shares which the Borrower shall own as of the Initial Funding Date
(the "Initial Funding Ratio"), (ii) along with the Notice of Borrowing, the
Borrower delivers to the Administrative Agent an Officer's Certificate setting
forth the number of shares of Capital Stock of VANTAS which Borrower has
acquired since the Initial Funding Date and a calculation of the Initial
Funding Ratio, (iii) the Borrower delivers to the Administrative Agent the
original stock certificates for such shares of Capital Stock in VANTAS, along
with stock powers executed in blank by the Borrower, (iv) the Administrative
Agent shall so request, the Borrower executes any additional documentation
reasonably necessary to create or confirm the pledge by the Borrower of such
additional shares of Capital Stock in VANTAS, and (v) the Administrative Agent
so requests, the Borrower shall deliver confirmation reasonably satisfactory to
the Administrative Agent of the Borrower's compliance with Regulation U.
(b) The Borrower may only borrow Subsequent Borrowings hereunder in
excess of Forty Million Dollars ($40,000,000) if: (i) the Borrower owns, and
shall have pledged to the Administrative Agent as set forth in subsection (a)
above, 11,381,837 shares of Capital Stock o VANTAS, (ii) for every additional
one dollar ($1.00) to be borrowed, the Borrower has acquired directly and
pledged to the Administrative Agent 0.30355 shares of Capital Stock of VANTAS
(the "Subsequent Funding Ratio"), (ii) along with the Notice of Borrowing, the
Borrower delivers to the Administrative Agent an Officer's Certificate setting
forth the number of shares of Capital Stock of VANTAS which Borrower has
acquired since the immediately preceding Subsequent Borrowing and a calculation
of the Subsequent Funding Ratio, (iii) the Borrower delivers to the
Administrative Agent the original stock certificates for such shares of Capital
Stock in VANTAS, along with stock powers executed in blank by the Borrower,
(iv) the Administrative Agent shall so request, the Borrower executes any
additional documentation reasonably necessary to create or confirm the pledge
by the Borrower of such additional shares of Capital Stock in VANTAS, and (v)
the Administrative Agent so requests, the Borrower shall deliver confirmation
reasonably satisfactory to the Administrative Agent of the Borrower's
compliance with Regulation U.
2.3. Use of Proceeds of Loans. The proceeds of the Loans hereunder
may be used for general corporate purposes.
2.4. Termination Date. (a) Subject to the provisions of paragraph (b)
hereof, the Commitments shall terminate, and all outstanding Credit Obligations
shall be paid in full, on the Termination Date. Each Lender's obligation to
make Loans shall terminate on the Business Day next preceding the Termination
Date.
(b) The Borrower may request one (1) three (3) month extension of the
Termination Date by delivering a written request therefor to the Administrative
Agent not more than forty-five (45) days or less than thirty (30) days prior to
the Termination Date (an "Extension Notice"), provided that (i) no Event of
Default shall have occurred and be continuing on the date the Borrower delivers
the Extension Notice to the Administrative Agent and on the Termination Date,
(ii) no Potential Event of Default or Event of Default shall have occurred and
be continuing with respect to any Indebtedness of the Borrower or on the part
of Vantacq under the Vantacq Loan Documents on the date the Borrower delivers
the Extension Notice to the Administrative Agent and the Termination Date,
(iii) each of the representations and warranties of the Borrower contained
herein shall be true and correct as of the date of the Extension Notice and as
of the Termination Date, provided that (A) the Borrower deliver to the
Administrative Agent updated versions of any schedules annexed hereto as may be
necessary to ensure that such representations and warranties of the Borrower
are true and correct and (B) the newly disclosed matters on such schedules are
permitted under the terms hereof, (iv) the Borrower shall have delivered an
irrevocable standby letter of credit in an amount equal to the estimated
interest costs due on the Loans during such three (3) month period based upon
the Eurodollar Rate set forth in the Notice of Conversion/Continuation required
under clause (v) hereof and in form and substance satisfactory to the
Administrative Agent, (v) the Borrower shall have delivered a Notice of
Conversion/Continuation selecting, for all Loans then outstanding, a Eurodollar
Interest Period of three (3) months in duration, (vi) the Borrower shall have
deposited the Additional Vantacq Interest Reserve Amount into the Vantacq
Interest Reserve Account, (vii) the Borrower shall deliver, not more than
forty-five (45) days or less than thirty (30) days prior to the original
Termination Date, an Officer's Certificate of the chief financial officer of
the Borrower certifying that, to the best of such officer's knowledge, there is
no Potential Event of Default under the Vantacq Loan Documents, and (viii) the
Borrower shall pay to the Administrative Agent for the account of the Lenders,
on the Termination Date, the Extension Fee.
2.5. Maximum Credit Facility. Notwithstanding anything in this
Agreement to the contrary, in no event shall the aggregate principal Credit
Obligations exceed the Maximum 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 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, the Arranger, and the Lenders shall be entitled to rely conclusively on
such employee's or agent's authority to request such Loan or such
conversion/continuation until the Administrative Agent and the Arranger receive
written notice to the contrary. None of the Administrative Agent or the
Arranger 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 such conversion/continuation, the Administrative
Agent and the Arranger 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 Arranger 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 Arranger
believes to have been given by a person duly authorized to act on behalf of the
Borrower and the Borrower hereby indemnifies and holds harmless the
Administrative Agent, each Arranger and each other Lender from any loss or
expense the Administrative Agent, the Arranger 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 wilful misconduct.
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments.
(a) Voluntary Prepayments. The Borrower may, at any time and from
time to time, prepay the Loans, in part or in their entirety, subject to the
following limitations. The Borrower shall give at least 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 the notice shall become due and payable on such prepayment date. Each
voluntary partial prepayment of the Loans shall be in a minimum amount of
$1,000,000 and in integral multiples of $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). Amounts prepaid pursuant to this Section 4.1(a) may not be reborrowed.
(b) No Penalty. The prepayments and payments in respect of reductions
and terminations described in clause (a) of this Section 4.1 may be made
without premium or penalty (except as provided in Section 5.2(f)).
(c) Mandatory Prepayment.
(i) If at any time within ninety (90) days after the Closing Date the
Borrower shall receive Net Offering Proceeds (but only in connection with a
private sale of equity interests in the Borrower or any Subsidiary or Minority
Holding of the Borrower) on terms reasonably satisfactory to the Administrative
Agent (the amount of such Net Offering Proceeds up to $100,000,000 being
hereinafter referred to as the "Permitted Private Placement"), then,
simultaneously therewith, the Borrower shall repay the Loans in an amount equal
to the lesser of (x) the aggregate Net Offering Proceeds received by the
Borrower from and after the date hereof in excess of $100,000,000, and (y) the
outstanding principal balance of the Loans. If at any time the Borrower shall
receive Net Offering Proceeds other than pursuant to the Permitted Private
Placement in connection with a public or private sale of equity interests in
the Borrower or any Subsidiary or Minority Holdings, then the Borrower shall
repay the Loans in an amount equal to the lesser of (x) the aggregate Net
Offering Proceeds received by the Borrower, and (y) the outstanding principal
balance of the Loans.
(ii) If at any time during the term of this Agreement, the Borrower
shall receive Net Cash Proceeds, dividends or distributions relating to the
Borrower's interests in VANTAS or OSA, then, simultaneously therewith, the
Borrower shall repay the Loans in an amount equal to the lesser of (x) the
aggregate Net Cash Proceeds, dividends or distributions relating to the
Borrower's interests in VANTAS or OSA, as the case may be, received by the
Borrower from and after the date hereof, and (y) the outstanding Obligations.
If at any time during the term of this Agreement, the Borrower shall receive
Net Cash Proceeds, dividends or distributions relating to the Borrower's
interests in any Subsidiaries or Minority Holdings (other than VANTAS or OSA),
then, simultaneously therewith, the Borrower shall, on a pro rata basis, (A)
repay the Loans in an amount equal to the lesser of (x) the aggregate Net Cash
Proceeds, dividends or distributions relating to the Borrower's interests in
such Subsidiaries or Minority Holdings, as the case may be, received by the
Borrower from and after the date hereof, and (y) the outstanding Obligations,
and (B) repay principal under the ROP Credit Agreement and the RSVP Credit
Agreement on a pari passu basis.
(iii) If at any time from and after the Closing Date:
(A) the Borrower merges or consolidates with
another Person,
(B) any equity interests in the Borrower, any Subsidiary or
Minority Holding (other than the Permitted Private Placement) are
sold by the Borrower, any Subsidiary or Minority Holding, as the case
may be,
(C) all or substantially all of the Property of the Borrower
is sold,
(D) a material amount of the Property of VANTAS is sold,
(E) all or a substantial amount of the Property of OSA is
sold,
(F) any Property of any Subsidiary or Minority Holdings is
sold,
(G) the Persons holding the managerial positions of
President, Chief Executive Officer and Chief Financial Officer of the
Borrower shall no longer continue to hold such managerial positions
with the Borrower,
(H) a majority of the Persons who hold positions on the
Board of Directors of the Borrower no longer continue to hold such
positions, or
(I) the Paribas Credit Agreement is either terminated or
refinanced, provided that VANTAS shall be permitted to issue common
Capital Stock and apply the proceeds thereof towards repayment of the
loans under the Paribas Credit Agreement,
(the date any of the foregoing events shall occur being the "Prepayment Date"),
then the Borrower shall be required to prepay the Loans in their entirety as if
the Prepayment Date were the Termination Date and, the Credit Commitment
thereupon shall be terminated.
Notwithstanding anything contained in this subsection (iii) to the
contrary, in the case of the sale of (x) any equity interests in any Subsidiary
or Minority Holdings (other than VANTAS or OSA) described in clause (B) above
or (y) Property described in clause (F) above, the Borrower shall be required
to prepay the Loans in the manner set forth in the second sentence of Section
4.3(c)(ii) above only to the extent of the Net Offering Proceeds or Net Cash
Proceeds, as the case may be, received by the Borrower in connection with such
sale. The Borrower shall immediately make such prepayment together with
interest accrued to the date of the prepayment on the principal amount prepaid.
(iv) In the event of a contemplated merger or consolidation of VANTAS
with another Person, the Borrower shall deliver written notice thereof to the
Administrative Agent no less than thirty (30) days prior to the effectiveness
of such transaction. Such notice shall set forth in reasonable detail all the
material terms and conditions of such merger or consolidation. In the event
that the terms and conditions of such transaction are not reasonably acceptable
to the Administrative Agent, then, on the date of the effectiveness of such
transaction, the Borrower shall be required to prepay the Loans in their
entirety as if the date of the effectiveness of such transaction were the
Termination Date and the Credit Commitment 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 all other
outstanding Obligations.
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(c) may not be reborrowed.
4.2. Payments.
(a) Manner and Time of Payment. All payments of principal of and
interest on the Loans and other Obligations (including, without limitation,
fees and expenses) which are payable to the Administrative Agent, the Arranger
or any other 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 the Arranger) as it may designate, for
the account of the Administrative Agent, an Arranger, or such other Lender, as
the case may be; and funds received by the Administrative Agent (or the
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 the 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 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 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 UBS for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower,
(B) to pay all other Obligations then due and payable, and
(C) as the Borrower so designates.
Unless otherwise designated by the Borrower, all principal payments in respect
of its 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 UBS 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 Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Lenders;
(D) fourth, to pay interest due in
respect of Loans;
(E) fifth, to the ratable payment or prepayment of principal
outstanding on Loans; and
(F) sixth, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent and the other 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, and fees. The Borrower hereby irrevocably authorize 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, 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 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 Arranger and each other Lender at its primary
address set forth on the appropriate signature page hereof or the signature
page to the Assignment and Acceptance by which it became a Lender, or at such
other address as a Lender 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.
(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 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.
(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 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 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 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 "Notes"; and "Note" means any one of the
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.
(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 Pledge to the contrary, it is expressly understood
and agreed that nothing herein or therein shall be construed as creating any
liability on any officer, trustee, member, director, or employee of the
Borrower, 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 Arranger 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 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; and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to
the sum of (A) the Eurodollar Rate determined for the applicable
Eurodollar Interest Period, plus (B) the then Applicable Margin for
Eurodollar Loans.
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.
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 or a Eurodollar 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, (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; provided, however, that upon the occurrence and during
the continuance of an Event of Default, interest hereunder shall be payable on
a weekly basis.
(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 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 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 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 Loan to be converted/continued, and (C) whether such Loan shall
be converted and/or continued. 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 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 (x) the Base Rate, as in
effect from time to time as interest accrues, plus (y) the Applicable Margin
for Base Rate Loans then in effect, plus (z) five percent (5.0%) per annum.
(e) Computation of Interest. Interest on all Obligations shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; provided, however, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan.
(f) Eurodollar Rate Information. Upon the 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.
(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(b) (with respect to a Borrowing of Eurodollar Rate
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 month in duration except pursuant to Section 2.4(b)(v) hereof
under which the Borrower must select a Eurodollar Interest Period of
three months; provided, however, that the Administrative Agent may
reasonably determine that in connection with the syndication of the
Loans hereunder that the Borrower may only select a Eurodollar
Interest Period of one week in duration pending the successful
syndication of such Loans provided that the Administrative Agent
shall no longer have such right after the date which is three (3)
weeks after the Closing Date;
(ii) 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;
(iii) If any Eurodollar Interest Period would otherwise
expire on a day which is not a Business Day, such Eurodollar Interest
Period shall be extended to expire on the next succeeding Business
Day if the next succeeding Business Day occurs in the same calendar
month, and if there will be no succeeding Business Day in such
calendar month, the Eurodollar Interest Period shall expire on the
immediately preceding Business Day; and
(iv) The Borrower may not select a Eurodollar Interest
Period as to any Loan if such Eurodollar Interest Period terminates
later than the Termination Date.
(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 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 the 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; or
(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;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, 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 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
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 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.
(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 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 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 4.1(d) or Section 5.2(d)
or (e)) 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 when required by the terms of this Agreement. The
Lender making demand for such compensation shall deliver to the Borrower and
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. Any Lender may make, carry or
transfer Eurodollar Rate 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 to any office (other than such Eurodollar Lending Office)
or any Affiliate (other than such Eurodollar Affiliate) than such Lender would
have been entitled to receive immediately prior thereto, unless (i) the
transfer occurred at a time when circumstances giving rise to the claim for
such greater amount did not exist and (ii) such claim would have arisen even if
such transfer had not occurred.
(h) Affiliates Not Obligated. No Eurodollar Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement.
(i) Adjusted Eurodollar Rate. Any failure by any Lender to take into
account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans 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. The Administrative Agent shall hold such principal
amounts allocated for prepayment of Eurodollar Rate Loans until the end of the
applicable Eurodollar Interest Period(s) 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.
5.3. Fees.
(a) Extension Fee. In the event the Borrower exercises its right to
extend the Termination Date (pursuant to Section 2.4(b) hereof), then on the
Termination Date (prior to giving effect to any Extension Notice) the Borrower
shall pay to the Administrative Agent for the account of the Banks ratably in
proportion to their Commitments an extension fee (the "Extension Fee") of .50%
of the Commitments then outstanding and being extended.
(b) 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 the Arranger or
any other Lender, including, without limitation, those referred to in this
Section 5.3, shall bear interest, if not paid when due, at the interest rate
specified in Section 5.1(d) and shall constitute Obligations.
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Initial Loans. The obligation of
each Lender on the Funding Date to make any Loan requested to be made by it,
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, the Pledge, the Letter of Credit,
the Rate Cap Agreement, the Rate Cap Pledge, stock certificates
representing the Borrower's equity interests in VANTAS, OSA, RSI-OSA
Holdings, Inc. and RSI I/O Holdings Inc., undated stock powers
relating to the Borrower's equity interests in VANTAS, OSA, RSI-OSA
Holdings, Inc. and RSI I/O Holdings Inc., duly executed in blank,
UCC-1 Financing Statements, a draft loan agreement with respect to
the Vantacq Loan satisfactory in form and substance to the
Administrative Agent and reflecting the terms and provisions set
forth in the Vantacq Term Sheet attached hereto as EXHIBIT H (the
"Vantacq Loan Agreement") 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, Brown & Wood LLP to prepare and
deliver to the Agents, the Lenders, and Skadden, Arps, Slate, Meagher
& Flom LLP the legal opinions referred to in such List of Closing
Documents; and
(ii) such additional documentation as the Agents may reasonably
request.
(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 on the
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 Subsidiaries or Minority Holdings shall have occurred since September
30, 1999 which change, in the judgment of the Administrative Agent, will have a
Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the
Arranger and the Lenders, since September 30, 1999, the Borrower, shall not
have (i) entered into any 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, other than those described on SCHEDULE 6.1-D
hereto.
(e) No Loss of Material Agreements and Licenses. Since September 30,
1999, 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, 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.
(h) Representations and Warranties. All of the representations and
warranties contained in Section 7.1 and in any of the other Loan Documents
shall be true and correct in all material respects on and as of the Funding
Date.
(i) Fees and Expenses Paid. There shall have been paid to the
Administrative Agent, for the accounts of the Agents and the other Lenders, as
applicable, all fees due and payable on or before the Funding Date and all
expenses due and payable on or before the Funding Date, including, without
limitation, reasonable attorneys' fees and expenses, and other costs and
expenses incurred in connection with the Loan Documents.
(j) Ownership of Interests. The Borrower shall own the equity
interests in the Persons set forth on SCHEDULE 6.1-J hereto.
(k) Organizational Documents. The Borrower shall have delivered, or
shall have caused to be delivered, to the Administrative Agent and the Lenders
all Organizational Documents of VANTAS, Vantacq and OSA, including, without
limitation, all documents creating and setting forth the rights assigned to any
preferred shares of Capital Stock in any of such entities, which shall be in
form and substance reasonably acceptable to the Administrative Agent.
6.2. Conditions Precedent to All Subsequent Loans. The obligation of
each Lender to make any Loan requested to be made by it on any date after the
Initial Funding Date is subject to the following conditions precedent as of
each such date:
(a) Representations and Warranties. As of such date, both before and
after giving effect to the Loans to be made on such date, all of the
representations and warranties of the Borrower contained in Section 7.1 and all
of the representations of the Borrower 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; provided that (A) the
Borrower deliver to the Administrative Agent updated versions of any schedules
annexed hereto as may be necessary to ensure that such representations and
warranties of the Borrower are true and correct and (B) the newly disclosed
matters on such schedules are permitted under the terms hereof.
(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.
(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.
(d) No Material Adverse Effect. The Borrower has not received written
notice from the Administrative Agent 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.
(e) Letter of Credit. The Borrower shall have delivered a
supplemental letter of credit, in the same form and from the same bank as the
Letter of Credit, in an amount which, when taken together with the amounts of
all other letters of credit delivered to the Administrative Agent pursuant to
this Section 6.2 (including, without limitation, the Letter of Credit), will
bear the same ratio to the Loans outstanding hereunder (including the Loan then
being advanced) as the Letter of Credit bears to the Initial Funding Amount.
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, shall constitute a representation and
warranty by the Borrower as of the Funding Date in respect of such Loan, that
all the conditions contained in this Section 6.2 have been satisfied or waived
in accordance with Section 14.7.
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, 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 corporation 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, 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 in connection
with and following the consummation of the transactions contemplated by this
Agreement.
(ii) True, correct and complete copies of the Organizational
Documents of the Borrower, VANTAS, Vantacq and OSA identified on SCHEDULE 7.1-A
have been delivered to the Administrative Agent, each of which is in full force
and effect, has not been modified or amended except to the extent set forth
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 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 and shall deliver to the Administrative Agent true, correct and
complete copies of any of such documents that are hereafter amended, modified
or supplemented, and Borrower shall deliver to the Administrative Agent true,
correct and complete copies of any and all registration statements, proxy
statements, prospectuses or other similar documentation establishing, modifying
or otherwise affecting the rights of any holders of Securities of VANTAS,
Vantacq or OSA, as the case may be.
(b) Authority. (i) The Borrower has the requisite power and authority
to execute and deliver this Agreement and each of the other Loan Documents
which are required to be executed on behalf of the Borrower as required by this
Agreement.
(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 corporate powers,
have been duly authorized by all necessary corporate action and such
authorization has not been rescinded. No other corporate action or proceedings
on the part of the Borrower 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 Borrower and
the Borrower's Subsidiaries on or before the Funding Date have been performed
or complied with, and no Potential Event of Default or Event of Default exists
hereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership
Interests. SCHEDULE 7.1-C (A) contains a diagram indicating the corporate
structure of the Borrower and any other Person in which the Borrower holds a
direct or indirect partnership, joint venture or other equity interest
indicating the nature of such interest with respect to each Person included in
such diagram; and (B) accurately sets forth (1) the correct legal name of such
Person, the jurisdiction of its incorporation or organization and the
jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding
shares or interests of each class of equity Securities of the Borrower and the
Subsidiaries of the Borrower, and (3) the ownership interest of the Borrower
and the Subsidiaries of the Borrower in all Minority Holdings. None of such
issued and outstanding Securities is subject to any vesting, redemption,
repurchase agreement, shareholder agreements or restrictions on transfer except
as set forth on SCHEDULE 7.1-C and satisfactory to the Administrative Agent,
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.
None of such issued and outstanding Securities is subject to any Lien and the
right of the Borrower or Subsidiary, as applicable, to receive dividends or
other distributions from such Persons is not restricted in any manner. The
outstanding Capital Stock of the Borrower is duly authorized, validly issued,
fully paid and nonassessable and the outstanding Securities of the 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's Certificate of
Incorporation and By-Laws as in effect on the Closing Date and such Certificate
of Incorporation and By-Laws have 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. Schedule 7.1-C attached hereto as of the date
hereof is hereby deemed by the Administrative Agent to satisfy the requirements
of this Section 7.1(c).
(d) No Conflict. The execution, delivery and performance of each of
the Loan Documents to which the Borrower is a party, respectively, do not and
will not (i) conflict with the Organizational Documents of the Borrower, (ii)
conflict with, result in a breach of or constitute (with or without notice or
lapse of time or both) a default under any Requirement of Law or material
Contractual Obligation of the Borrower, 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, or (iv) require any approval of shareholders of the
Borrower (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 is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, except filings, consents or
notices which have been made, obtained or given.
(f) Governmental Regulation. The Borrower is not 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 for the Fiscal
Year ended December 31, 1998. 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, and the
consolidated results of operations and cash flows for each of the periods
covered thereby of the Borrower as at the date thereof. The Borrower has no
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,
1999, all Indebtedness for borrowed money of the Borrower and its Subsidiaries
and, except as set forth on SCHEDULE 7.1-H, there are no defaults in the
payment of principal or interest on any such Indebtedness and no payments
thereunder have been deferred or extended beyond their stated maturity and
there has been no material change in the type or amount of such Indebtedness
(except for the repayment of certain Indebtedness) since September 30, 1999.
(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
Borrower or any of its Subsidiaries, or any Property of any of them (i)
challenging the validity or the enforceability of any of the Loan Documents,
(ii) which could be reasonably be expected 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 Borrower. Neither the Borrower nor any
Controlled 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, 1999, 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 Borrower and its Controlled 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 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 Controlled 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 Properties that will have or is
reasonably likely to have a Material Adverse Effect.
(m) Performance. To the knowledge of the Borrower, neither the
Borrower nor any of its 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
contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements contained herein or therein, in
light of the circumstances under which they were made, 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. 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.
(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
nor any of its Subsidiaries or any of their respective present or past Property
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) SCHEDULE 7.1-P sets forth, with respect to OSA, 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;
(E) neither the Borrower nor 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;
(F) none of the Borrower's, or any of its Controlled
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;
(G) to the knowledge of the Borrower, none of the Borrower
nor any of its Subsidiaries has sent or directly arranged for the transport of
any waste to any site listed or proposed for listing on the NPL, CERCLIS or any
similar state list;
(H) to the best of Borrower's knowledge, there is not now,
and to Borrower's knowledge there has never been on or in any Property, (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 Property
to Liabilities and Costs arising out of or relating to environmental, health or
safety matters that would result in a Material Adverse Effect;
(I) to the knowledge of the Borrower, none of the Borrower
nor any of its Subsidiaries has received any notice or Claim to the effect that
any of such Persons is or may be liable to any Person as a result of the
Release or threatened Release of a Contaminant into the environment which would
result in a Material Adverse Effect;
(J) neither the Borrower nor any of its Subsidiaries has
any contingent liability in connection with any Release or threatened Release
of any Contaminants into the environment which will result in a Material
Adverse Effect;
(K) no Environmental Lien has attached to any Property of
the Borrower or any Controlled Subsidiary of the Borrower (other than those
otherwise permitted hereunder) or which do not constitute an Event of Default;
and
(L) no Property of the Borrower or any Controlled
Subsidiary of the Borrower is subject to any Environmental Property Transfer
Act, or to the extent such acts are applicable to any such Property,
the Borrower and/or such Subsidiary whose Property is subject thereto has
complied in all material respects with the requirements of such acts.
(q) ERISA. 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 Controlled 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 Controlled 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 a 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 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
Controlled 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 7.1(R) and except in accordance with the
provisions of Regulation U.
(s) Solvency. After giving effect to the Loans to be made on the
Funding Date or such other date as Loans requested hereunder are made, and the
disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, the Borrower is Solvent.
(t) Insurance. SCHEDULE 7.1-T accurately sets forth as of the Closing
Date all insurance policies and programs currently in effect with respect to
the respective Property and assets and business of the Borrower and its
Controlled 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 copies of all insurance
policies set forth on SCHEDULE 7.1-T. Such insurance policies and programs are
currently in full force and effect, in compliance with the requirements of
Section 9.5 hereof and, together with payment by the insured of scheduled
deductible payments, are, to the knowledge of the Borrower, in amounts which
should reasonably be expected to be sufficient to cover the replacement value
of the respective Property and assets of the Borrower and/or its Controlled
Subsidiaries. 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) Ownership of Assets, Minority Holdings and Property. SCHEDULE
7.1-U attached hereto and made a part hereof sets forth all material assets
owned by the Borrower except as otherwise disclosed on SCHEDULE 7.1-C.
(v) Year 2000 Compliance. The Borrower has commenced a comprehensive
review and assessment of the Borrower's computer applications and has commenced
inquiry of the Borrower's key suppliers, vendors and customers with respect to
the "year 2000 problem" (that is, the risk that computer applications may not
be able to properly perform date sensitive functions after December 31, 1999)
and, based on that review and inquiry, the Borrower does not believe the year
2000 problem will result in a Material Adverse Effect. The Borrower has
completed such review, assessment and inquiry.
(w) Certain Subsidiaries. Each of Vantacq, RSI I/O Holdings Inc.,
Reckson Office Centers, LLC, RSI- OSA Holdings, Inc. and RSI OnSite Holdings
LLC (I) is a Single Purpose Entity, (II) is directly or indirectly wholly owned
by the Borrower, and (III) has a business purpose limited to the ownership of
the Capital Stock of VANTAS (in the case of Vantacq, RSI I/O Holdings Inc. and
Reckson Office Centers, LLC) and OSA (in the case of RSI-OSA Holdings, Inc. and
RSI OnSite Holdings LLC), and taking any actions incidental thereto.
ARTICLE VIII
REPORTING COVENANTS
The Borrower covenants and agrees that so long as any 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.
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) 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 each of the
Borrower, VANTAS and Vantacq and the related consolidated statements
of income and cash flow of each of the Borrower, VANTAS and Vantacq,
respectively, (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 periods of the previous
Fiscal Year, and, in the case of OSA, the same or such other similar
financial statements as shall have been delivered to the Borrower,
certified, except in the case of OSA, by an Authorized Financial
Officer of the Borrower, VANTAS, and Vantacq, as the case may be, as
fairly presenting in all material respects the consolidated financial
position of the Borrower, VANTAS and Vantacq, as applicable, as of
the dates indicated and the results of their operations and cash flow
for the months indicated in accordance with GAAP, subject to normal
quarterly adjustments and, in the case of OSA, certified by an
Authorized Financial Officer of the Borrower as being the true,
correct and complete copies of all such statements delivered to the
Borrower.
(ii) Quarterly Compliance Certificates. Together with each
delivery of any quarterly report pursuant to paragraph (a)(i) of this
Section 8.2, the Borrower, VANTAS and Vantacq each shall deliver
Officer's Certificates of the Borrower, VANTAS and Vantacq,
respectively (the "Quarterly Compliance Certificates"), signed, as
applicable, by the Borrower's, VANTAS's and Vantacq's respective
Authorized Financial Officers representing and certifying (1) that
the Authorized Financial Officer signatory thereto has reviewed the
terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the
consolidated financial condition of the Borrower, VANTAS or Vantacq,
as the case may be, and their 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 Borrower, VANTAS and/or Vantacq
or any of their Subsidiaries has taken, is taking and proposes to
take with respect thereto; (2) a schedule of such entity's
outstanding Indebtedness, including the amount, maturity, interest
rate, amortization requirements, security and prepayment terms, as
well as such other information regarding such Indebtedness as may be
reasonably requested by the Administrative Agent, (3) in the case of
the Borrower, (a) the calculations in the form set forth on EXHIBIT G
hereto for the period then ended which demonstrate compliance with
the financial ratio set forth in Section 10.11(b) and (c) hereof, (b)
a schedule detailing the Net Income for each of the Borrower's
Subsidiaries and Minority Holdings, and (c) when applicable, that no
Event of Default described in Section 11.1 exists, (4) in the case of
VANTAS, (a) a schedule detailing the operating and capital budgets of
VANTAS, (b) a schedule detailing Net Income, occupancies, reserves
and expenses and complete overhead for each Property owned by VANTAS,
(c) the detailed calculations for the period then ended which
demonstrate compliance with the covenants and financial ratios set
forth in Sections 7 and 8 of the Paribas Credit Agreement, (d) when
applicable, that no Event of Default described in Section 11.1
exists, and (e) that none of the events described in Section
4.1(c)(i), (iii), (iv) or (v) hereof has occurred, (5) in the case of
OSA, that attached thereto are true, correct and complete copies of
(a) a schedule detailing the operating and capital budgets of OSA,
and (b) a schedule detailing the net income of OSA in detail
reasonably acceptable to the Administrative Agent, as the same shall
be been delivered to the Borrower, (6) in the case of Vantacq, (a)
the detailed calculations for the period then ended which demonstrate
compliance with all financial covenants and ratios set forth under
the Vantacq Loan Documents, (b) that no event of default has occurred
under the Vantacq Loan Documents, (c) that none of the events set
forth in Section 4.1(c) hereof, as such events relate to Vantacq, has
occurred, and (d) that the interest payments under the Vantacq Loan
Documents were made on the Vantacq Payment Date I or Vantacq Payment
Date II, as the case may be, or that the Vantacq Interest Reserve
Amount or the Additional Vantacq Interest Reserve Amount, as the case
may be, has been deposited in the Vantacq Interest Reserve Account
and attaching evidence thereof reasonably satisfactory to the
Administrative Agent, and (7) copies of minutes of meetings of the
Board of Directors of such entity, certified true, correct and
complete by an authorized officer of such entity.
(b) Annual Reports.
(i) 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 each of the Borrower and VANTAS and each
of their consolidated Subsidiaries 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 Borrower
and VANTAS, respectively, 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 Six" 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 each of the Borrower
and VANTAS and their consolidated Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the
periods indicated in conformity 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)
or, in the case of OSA, the same or such other similar financial
statements and accountant's reports as shall have been delivered to
the Borrower; 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 Borrower, VANTAS or OSA, as the
case may be, or to any officer or employee of either 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
Borrower, VANTAS and OSA, as applicable, (which consent shall not be
unreasonably withheld), communicate directly with such accountants,
with any such communication to occur together with a representative
of the Borrower, VANTAS or OSA at the expense of the Administrative
Agent (or the Lender requesting such communication), upon reasonable
notice and at reasonable times during normal business hours.
(ii) Annual Compliance Certificates. Together with each delivery
of any annual report pursuant to paragraph (i) of this Section
8.2(b), the Borrower and VANTAS each shall deliver Officer's
Certificates of the Borrower and VANTAS, as applicable (the "Annual
Compliance Certificates" and, collectively with the Quarterly
Compliance Certificates, the "Compliance Certificates"), signed, as
applicable, by the Borrower's and VANTAS's respective Authorized
Financial Officers, and audited by Ernst & Young LLP or other
independent certified public accountants acceptable to the
Administrative Agent (it being understood that any "Big Six"
certified public accountants are acceptable to the Administrative
Agent), representing and certifying (1) that the Authorized Financial
Officer signatory thereto has reviewed the terms of the Loan
Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the consolidated
financial condition of the Borrower or VANTAS, as the case may be,
and their 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 Borrower and/or VANTAS or any of their
Subsidiaries has taken, is taking and proposes to take with respect
thereto; (2) a schedule of such entity's outstanding Indebtedness,
including the amount, maturity, interest rate, amortization
requirements, security and prepayment terms, as well as such other
information regarding such Indebtedness as may be reasonably
requested by the Administrative Agent, (3) in the case of the
Borrower, (a) the calculations in the form set forth on EXHIBIT G
hereto for the period then ended which demonstrate compliance with
the financial ratio set forth in Section 10.11(b) hereof, (b) a
schedule detailing the Net Income for each of the Borrower's
Subsidiaries and Minority Holdings, and (c) when applicable, that no
Event of Default described in Section 11.1 exists, (4) in the case of
VANTAS, (a) the calculations in the form set forth on EXHIBIT G
hereto for the period then ended which demonstrate compliance with
the financial ratio set forth in Section 10.11(c) hereof, (b) a
schedule detailing the operating and capital budgets of VANTAS, (c) a
schedule detailing Net Income, occupancies, reserves and expenses and
complete overhead for each Property owned by VANTAS, (d) the detailed
calculations for the period then ended which demonstrate compliance
with the covenants and financial ratios set forth in Sections 7 and 8
of the Paribas Credit Agreement, (e) when applicable, that no Event
of Default described in Section 11.1 exists, and (f) that none of the
events described in Section 4.1(c)(i), (iii), (iv) or (v) hereof has
occurred, (5) in the case of OSA, that attached thereto are true,
correct and complete copies of (a) a schedule detailing the operating
and capital budgets of OSA, and (b) a schedule detailing the net
income of OSA in detail reasonably acceptable to the Administrative
Agent, as the same shall be been delivered to the Borrower, (6) in
the case of Vantacq, (a) the detailed calculations for the period
then ended which demonstrate compliance with all financial covenants
and ratios set forth under the Vantacq Loan Documents, (b) that no
event of default has occurred under the Vantacq Loan Documents, (c)
that none of the events set forth in Section 4.1(c) hereof, as such
events relate to Vantacq, has occurred, and (d) that the interest
payments under the Vantacq Loan Documents were made on the Vantacq
Payment Date I or Vantacq Payment Date II, as the case may be, or
that the Vantacq Interest Reserve Amount or the Additional Vantacq
Interest Reserve Amount, as the case may be, has been deposited in
the Vantacq Interest Reserve Account and attaching evidence thereof
reasonably satisfactory to the Administrative Agent, and (7) copies
of minutes of meetings of the Board of Directors of such entity,
certified true, correct and complete by an authorized officer of such
entity.
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) or 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.
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 Controlled 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 $2,000,000 to the extent not
previously reported) against or affecting the Borrower or any of its Controlled
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 not 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
Controlled Subsidiaries and the duration of such coverage and (ii) an Officer's
Certificate of signed by an Authorized Financial Officer of the Borrower
certifying that all premiums with respect to such coverage have been paid when
due.
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 a Termination Event
has occurred, a written statement of an Authorized Financial Officer
of the Borrower describing such 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;
(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;
(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 written notice of each of the following not
less than five (5) Business Days prior to the occurrence thereof: (a) a sale,
transfer or other disposition of assets, in a single transaction or series
of related transactions, (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 $1,000,000, and (c) the grant of a Lien
with respect to assets, in a single transaction or series of related
transactions. 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,
which certificate shall include pro forma covenant calculations contained in
Section 10.11 hereof after giving effect to such transaction.
To the extent such proposed transaction would result in a failure to comply
with the financial covenants set forth herein, proceeds of such transaction
(together with such additional amounts as may be required), 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, shall be applied to prepay the Obligations.
8.10. Notices of Minority Holdings. The Borrower shall deliver to the
Administrative Agent 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 Minority Holding in excess of $5,000,000, (b) the investment of
an amount in excess of $5,000,000 in a Minority Holding 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
Minority Holding. 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 Minority Holding.
8.11. Other Reports. The Borrower shall deliver or cause to be
delivered to the Administrative Agent (with copies for each of the other
Lenders) copies of all financial statements and reports, if any, sent or made
available generally by the Borrower to its respective Securities holders,
including, without limitation, supplemental quarterly forms, (to the extent not
otherwise provided hereunder), all press releases made available generally by
the Borrower or any of its Subsidiaries to the public concerning material
adverse developments in the business of the Borrower or any such Subsidiary,
all material notifications received by the Borrower or its Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder,
and all filings made by or on behalf of the Borrower, any Subsidiary or any
Minority Holding with the Securities and Exchange Commission.
8.12. 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 other Lenders)
such other information with respect to the Borrower or any of its Subsidiaries,
as from time to time may be reasonably requested by the Administrative Agent or
any Arranger.
ARTICLE IX
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any 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
Controlled Subsidiaries to, at all times maintain its corporate existence or
existence as a limited partnership or joint venture, as applicable, and
preserve and keep, or cause to be preserved and kept, in full force and effect
its rights and franchises material to its businesses, except where the loss or
termination of such rights and franchises will not have a Material Adverse
Effect.
9.2. Powers; Conduct of Business. The Borrower shall remain
qualified, and shall cause each of its Subsidiaries to qualify and remain
qualified, to do business and maintain its good standing in each jurisdiction
in which the nature of its business and the ownership of its Property requires
it to be so qualified and in good standing 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 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 Properties) 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 Controlled Subsidiaries 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 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
Controlled Subsidiaries, or shall cause each of its Controlled 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 and a financial size category of not
less than IX.
9.6. Inspection of Property; Books and Records; Discussions. The
Borrower shall permit, and cause each of its Controlled Subsidiaries to permit,
any authorized representative(s) designated by the Administrative Agent or any
Arranger or other Lender to visit and inspect any of the Properties, 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
Controlled Subsidiaries to keep and maintain, in all material respects proper
books of record and account in which entries in conformity with GAAP.
9.7. ERISA Compliance. The Borrower shall, and shall cause each of
its Controlled Subsidiaries and ERISA Affiliates to, establish, maintain and
operate all Plans to comply in all material respects with the provisions of
ERISA, the Internal Revenue Code, all other applicable laws, and the
regulations and interpretations thereunder and the respective requirements of
the governing documents for such Plans.
9.8. Maintenance of Property. The Borrower shall, and shall cause
each of its Controlled 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, renewal 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 the Properties in a manner such that each Property can be used
in the manner and substantially for the purposes such Property is used on the
Closing Date, including, without limitation, maintaining all utilities, access
rights, zoning and necessary Permits for such Property.
9.9. Vantacq Loan Documents. Provided that the Borrower shall have
delivered, or shall have caused to be delivered to the Administrative Agent,
simultaneously with the closing of the Vantacq Loan, executed copies of all
documents relating to the Vantacq Loan (the "Vantacq Loan Documents"), which
documents:
(I) shall be reasonably satisfactory to the Administrative
Agent;
(II) shall provide for payments of interest on a quarterly
basis, in arrears;
(III) shall prohibit the testing of any leverage ratios or other
financial covenants contained therein prior to the Vantacq Covenant
Test Date;
(IV) shall permit the Administrative Agent to purchase the
lender's interest in the Vantacq Loan upon the occurrence of a
default thereunder or an event which would permit the lender
thereunder to declare a default by Vantacq upon ten (10) days' prior
written notice from the Administrative Agent to such lender, for an
amount equal to the sum of (x) the then-outstanding principal
balance, (y) all accrued interest and other sums due thereunder, and
(z) the prepayment premium set forth in the Vantacq Loan Documents,
which such provision shall also be evidenced by a separate letter
agreement among the Administrative Agent, Vantacq and the lender
under the Vantacq Loan Documents (the "Vantacq Letter");
(V) shall require the lender thereunder to send copies of all
notices of default to the Administrative Agent and to send the
Administrative Agent notices of any events of default thereunder not
requiring notice to Vantacq of which the lender has knowledge, all
such notices to be sent pursuant to the notice provisions in Section
14.8 hereof;
(VI) shall provide that any such notices of defaults thereunder
are not effective unless and until the Administrative Agent shall
have been sent a copy thereof in accordance with the notice
provisions in Section 14.8 hereof, as provided in the preceding
clause (V),
(VII) shall permit the Administrative Agent to cure a default
under the Vantacq Loan Documents within the same grace and/or cure
periods granted to Vantacq, plus an additional five (5) Business
Days;
(VIII) shall not permit Vantacq or the lender thereunder to
enter into any amendment or modification thereof without the prior
written consent of the Administrative Agent, such consent not to be
unreasonably withheld, conditioned or delayed; and
(IX) shall provide that it shall be an event of default
thereunder if either of the Persons who hold the managerial positions
of the President, Chief Executive Officer or the Chief Financial
Officer of the Borrower shall no longer continue to hold such
managerial positions,
then the Administrative Agent shall, in accordance with the provisions of the
Pledge, release the equity interests of the Borrower in Vantacq pledged to the
Administrative Agent pursuant to the Pledge.
9.10. Vantacq Interest Reserve.
(a) On or prior to the earlier of (I) the date which is five (5)
Business Days before Vantacq Payment Date I, and (II) March 31, 2000, the
Borrower shall deposit, or shall cause to be deposited, the Vantacq Interest
Reserve Amount into an escrow account (the "Vantacq Interest Reserve Account")
to be established by the Borrower at a bank satisfactory to the Administrative
Agent whereby the Administrative Agent shall have the right to instruct the
bank to pay the Vantacq Interest Reserve Amounts if such amounts are not
otherwise paid by Vantacq when due under the Vantacq Loan Documents. Vantacq
may, on Vantacq Payment Date I, Vantacq Payment Date II, or any subsequent
interest payment date under the Vantacq Loan Documents, as applicable, transfer
amounts on deposit in the Vantacq Interest Reserve Account to the lender under
the Vantacq Loan Documents in payment of interest due thereunder.
(b) If a default shall occur under the Vantacq Loan Documents, the
Administrative Agent may cure such default within the same grace and/or cure
periods during which Vantacq may cure such default plus an additional five (5)
Business Days. Any such cure by the Administrative Agent may include applying
all or any portion of the Vantacq Interest Reserve Amount or the Additional
Vantacq Interest Reserve Amount towards the payment of any amounts, including
principal and interest, due under the Vantacq Loan Documents.
9.11. Permitted Private Placement. In the event of a Permitted
Private Placement, the Borrower may use the Net Offering Proceeds received
therefrom only: (i) for repayment of the Loans and other Obligations
outstanding hereunder, subject to the payment of any amounts under Section
5.2(f) hereof,(ii) for the acquisition of interests in businesses consistent
with the businesses described in Section 10.4 hereof, and (iii) up to a maximum
of $25,000,000, for working capital and general corporate purposes.
9.12. Ownership of OSA. The Borrower owns at least thirty-seven
percent (37%) of the equity interests of OSA, all of which constitute direct
voting and economic interests, and all of which equity interests comprise at
least thirty-four percent (34%) of the equity interests of OSA on a fully
diluted basis.
ARTICLE X
NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply with the following
covenants so long as any 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 of 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 Property owned by a Minority
Holding), 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 Property;
(b) Existing Permitted Liens;
(c) Liens securing Secured Indebtedness permitted by Section
10.11 hereof; and
(d) Customary Permitted Liens.
10.3. Intentionally Omitted.
10.4. Conduct of Business. The Borrower and its Controlled
Subsidiaries may not engage in any business, enterprise or activity other than
identifying and acquiring interests in and developing a network of
business-to-business e-commerce and e-service companies that service small and
medium sized enterprises, independent professionals and the mobile workforce of
larger companies.
10.5. Transactions with Partners and Affiliates. Neither the Borrower
nor any of its Controlled 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, unless such transaction is determined by the Board
of Directors (or managers or trustees) of the Borrower to be no less favorable
to the Borrower or any of their 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 permitted by
Section 2.3). Nothing contained in this Section 10.5 shall prohibit (a)
increases in compensation and benefits for officers and employees of 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 Borrower or
any Minority Holdings.
10.6. Restriction on Fundamental Changes. Neither the Borrower any
Subsidiary nor any Person in which the Borrower holds a Minority Holding shall
enter into any merger or consolidation, or liquidate, wind-up or dissolve (or
suffer any liquidation or dissolution) unless simultaneously therewith the
Borrower repays the Loans to the extent required under Section 4.1(c)(iii) and
(iv) hereof.
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 except
in accordance with Regulation U.
10.8. ERISA. The Borrower shall not and shall not permit any of its
Controlled 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.
10.9. Organizational Documents. Neither the Borrower nor any Material
Subsidiary shall amend, modify or otherwise change any of the terms or
provisions in any of their respective Organizational Documents as in effect on
the Closing Date unless the Borrower shall have delivered written notice
thereof to the Administrative Agent no less than ten (10) Business Days prior
to the effective date thereof and the Administrative Agent shall have consented
thereto in writing except amendments to effect (a) a change of name of the
Borrower, 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 permitted under this Agreement.
10.10. Fiscal Year. Neither the Borrower nor any of its Controlled
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.
(i) Neither the Borrower nor any Controlled Subsidiary shall directly
or indirectly create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, except Indebtedness (a)
that is incurred by the Borrower under the ROP Credit Agreement, (b) that is
incurred by the Borrower under the RSVP Credit Agreement, up to a maximum of
Seventy-Eight Million Dollars ($78,000,000), (c) which is payable by the
Borrower to RA or ROP and is hereafter incurred, so long as (I) the payment
obligations of the Borrower under such Indebtedness are subordinate to the
Obligations of the Borrower hereunder, and (II) RA or ROP, as the case may be,
assigns their rights to vote in a bankruptcy, in their capacity as unsecured
creditors of the Borrower, to the Lenders, (d) that is incurred by Vantacq
pursuant to the Vantacq Loan, (e) with respect to the Halpern Loan, (f) with
respect to the CommerceInc Loan, (g) that is incurred by RSVP or any of its
Subsidiaries, and (h) that is Permitted Purchase Money Indebtedness.
(ii) VANTAS shall not (a) directly or indirectly create, incur,
assume or otherwise become or remain directly or indirectly liable with respect
to any Indebtedness, except for Indebtedness now or hereafter incurred under
the Paribas Credit Agreement and trade payables incurred in the ordinary course
of business or (b) issue any preferred shares of Capital Stock.
(b) Total Outstanding Indebtedness to Market Equity Capitalization.
The ratio of Total Outstanding Indebtedness to Market Equity Capitalization
shall at no time exceed one hundred percent (100%).
(c) VANTAS Indebtedness to Annual EBITDA. At no time shall the ratio
of (A) sum of (i) all Indebtedness of VANTAS and (ii) the amount of all
outstanding Loans hereunder, to (B) the Annual EBITDA of VANTAS be greater than
5.0 to 1.0.
(d) Dividend Limitation. Other than in connection with the Permitted
Private Placement, the Borrower shall not make any Restricted Payment during
any of its fiscal quarters unless the Administrative Agent shall have consented
to such Restricted Payment in writing. For purposes of this provision,
"Restricted Payment" means (i) any dividend or other distribution on any shares
of the Borrower'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), or (ii) any payment on account of the purchase, redemption,
retirement or acquisition of (a) any shares of the Borrower's capital stock, or
(b) any option, warrant or other right to acquire shares of the Borrower's
capital stock.
(e) Negative Pledge. Neither the Borrower nor any of its Controlled
Subsidiaries shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to the equity interests of the Borrower in
any Subsidiary or Minority Holdings other than (I) a pledge by the Borrower of
its equity interests in Vantacq made to RSVP in connection with the Vantacq
Loan and (II) a pledge by the Borrower or any Subsidiary made in connection
with any Permitted Purchase Money Indebtedness, provided that such Lien
encumbers only the equity interests in such Person which are attributable to
such Permitted Purchase Money Indebtedness. In addition, the Borrower will not,
and will not permit any Controlled Subsidiary to, enter into any agreement
(other than customary restrictions contained in mortgages on particular
properties or the organizational documents of Minority Holdings) prohibiting
the creation or assumption of any Lien upon the equity interests of the
Borrower or any Controlled Subsidiary in any Subsidiary or Minority Holdings,
including, without limitation, Vantacq, or restricting the ability of the
Borrower to amend or modify this Agreement or any other Loan Document.
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
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, 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, 9.9, 9.10, 9.11 or Article X.
(c) Breach of Representation or Warranty. Any representation or
warranty made by the Borrower to the Administrative Agent, any Arranger or any
other Lender herein or by the Borrower or any of its Subsidiaries in any of the
other Loan Documents or in any statement or certificate at any time given by
any such Person pursuant to any of the Loan Documents shall be false or
misleading in any material respect on the date as of which made.
(d) Other Defaults. The Borrower shall default in the performance of
or compliance with any term contained in this Agreement (other than as
identified in paragraphs (a), (b) or (c) of this Section 11.1), or any default
or event of default shall occur under any of the other Loan Documents, and such
default or event of default shall 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 (I) any instrument, agreement or indenture, including, without
limitation, the ROP Credit Agreement and the RSVP Credit Agreement, pertaining
to any Indebtedness (other than the Obligations) in excess of $1,000,000 of the
Borrower or its Material Subsidiaries, other than Permitted Purchase Money
Indebtedness, or (II) the Vantacq Loan, 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 Material
Subsidiaries (other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Borrower, OSA,
VANTAS, Vantacq, RSVP or any Material Subsidiary of the Borrower in which the
Borrower has invested capital, or committed to invest capital, of more than
$20,000,000 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 Borrower, OSA, VANTAS, Vantacq, RSVP or any Material Subsidiary
of the Borrower in which the Borrower has invested capital, or committed to
invest capital, of more than $20,000,000 in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter 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 Borrower, OSA, VANTAS, Vantacq, RSVP or any Material Subsidiary of the
Borrower in which the Borrower has invested capital, or committed to invest
capital, of more than $20,000,000 (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 Borrower, OSA, VANTAS, Vantacq,
RSVP or any Material Subsidiary of the Borrower in which the Borrower has
invested capital, or committed to invest capital, of more than $20,000,000, or
over all or a substantial part of the Property of any of such entities shall be
entered; or an interim receiver, trustee or other custodian of the Borrower,
OSA, VANTAS, Vantacq, RSVP or any Material Subsidiary of the Borrower in which
the Borrower has invested capital, or committed to invest capital, of more than
$20,000,000 or of all or a substantial part of the Property of any such
entities shall be appointed or a warrant of attachment, execution or similar
process against any substantial part of the Property of any of such entities
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
board of directors of the Borrower, OSA, VANTAS, Vantacq, RSVP or any Material
Subsidiary of the Borrower in which the Borrower has invested capital, or
committed to invest capital, of more than $20,000,000 (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 Borrower,
OSA, VANTAS, Vantacq, RSVP or any Material Subsidiary of the Borrower in which
the Borrower has invested capital, or committed to invest capital, of more than
$20,000,000 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 Borrower,
OSA, VANTAS, Vantacq, RSVP or any Material Subsidiary of the Borrower in which
the Borrower has invested capital, or committed to invest capital, of more than
$20,000,000 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, VANTAS,
Vantacq, RSVP or any Material Subsidiary of the Borrower in which the Borrower
has invested capital, or committed to invest capital, of more than $20,000,000
or any of their respective assets involving in any case an amount in excess of
$1,000,000, or, in the case of OSA only, 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, OSA, VANTAS, Vantacq, RSVP or any Material Subsidiary of
the Borrower in which the Borrower has invested capital, or committed to invest
capital, of more than $20,000,000 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 $1,000,000.
(iii) An Environmental Lien is filed against any Property 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 $1,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered
against the Borrower, OSA, VANTAS, Vantacq, RSVP or any Material Subsidiary of
the Borrower in which the Borrower has invested capital, or committed to invest
capital, of more than $20,000,000 decreeing its involuntary dissolution or
split up; or the Borrower, OSA, VANTAS, Vantacq, RSVP or any Material
Subsidiary of the Borrower in which the Borrower has invested capital, or
committed to invest capital, of more than $20,000,000 shall otherwise dissolve
or cease to exist except as specifically permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document
ceases to be in full force and effect or the Borrower seeks to repudiate its
obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs which
the 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 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) Ownership of Certain Subsidiaries. If either Vantacq, RSI I/O
Holdings Inc., Reckson Office Centers LLC, RSI-OSA Holdings Inc. or RSI OnSite
Holdings LLC shall no longer be (I) a wholly owned direct or indirect
Subsidiary of the Borrower or (II) a
Single Purpose Entity.
(o) Certain Defaults Relating to OSA. The Borrower shall fail to
comply with Section 9.13 hereof.
(p) Merger or Liquidation of the Borrower. The Borrower shall merge
or liquidate with or into any other Person.
(q) Vantacq Loan Agreement. The loan agreement delivered pursuant to
Section 9.9(I) with respect to the Vantacq Loan hereof shall not be in form and
substance reasonably consistent with the Vantacq Loan Agreement delivered to
the Administrative Agent pursuant to Section 6.1(a)(i) hereof.
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 Commitments shall
automatically and immediately terminate and the unpaid principal amount of, and
any and all accrued interest on, the Obligations and all accrued fees shall
automatically become immediately due and payable, without presentment, demand,
or protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower, and, upon the occurrence and during the continuance of any other
Event of Default, the Administrative Agent shall at the request, or may with
the consent, of the Requisite Lenders, by written notice to the Borrower, (i)
declare that the Commitments are terminated, whereupon the Commitments and the
obligation of each Lender to make any Loan hereunder shall immediately
terminate, and/or (ii) declare the unpaid principal amount of and any and all
accrued and unpaid interest on the Obligations to be, and the same shall
thereupon be, immediately due and payable, without presentment, demand, or
protest or other requirements of any kind (including, without limitation,
valuation and appraisement, diligence, presentment, notice of intent to demand
or accelerate and of acceleration), all of which are hereby expressly waived by
the Borrower.
(b) Rescission. If at any time after termination of the 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 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 Commitments and/or the acceleration and their consequences may be rescinded
and annulled; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right or remedy consequent thereon.
The provisions of the preceding sentence are intended merely to bind the
Lenders to a decision which may be made at the election of the Requisite
Lenders; they are not intended to benefit the Borrower and do not give the
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are met.
(c) Enforcement. The Borrower acknowledges that in the event the
Borrower or any of its Subsidiaries fails to perform, observe or discharge any
of their respective obligations or liabilities under this Agreement or any
other Loan Document, any remedy of law may prove to be inadequate relief to the
Administrative Agent, the Arranger and the other Lenders; therefore, the
Borrower agrees that the Administrative Agent, the Arranger and the other
Lenders shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
ARTICLE XII
THE AGENTS
12.1. Appointment. (a) Each Lender hereby designates and appoints UBS
as the Administrative Agent and the Arranger as the Arranger of such Lender
under this Agreement, and each Lender hereby irrevocably authorizes the
Administrative Agent and the Arranger to take such actions on its behalf under
the provisions of this Agreement and the Loan Documents and to exercise such
powers as are set forth herein or therein together with such other powers as
are reasonably incidental thereto. The Administrative Agent and the Arranger
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 Arranger and the other Lenders, and neither the
Borrower 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, and the Arranger shall act solely as
agents of the Lenders and do not assume and shall not be deemed to have assumed
any obligation or relationship of agency, trustee or fiduciary with or for the
Borrower or any Subsidiary of the Borrower. The Administrative Agent and the
Arranger may perform any of their respective duties hereunder, or under the
Loan Documents, by or through their respective agents or employees.
12.2. Nature of Duties. The Administrative Agent and the Arranger
shall not have any duties or responsibilities except those expressly set forth
in this Agreement or in the Loan Documents. The duties of the Administrative
Agent and the Arranger shall be mechanical and administrative in nature. None
of the Administrative Agent or the Arranger shall have by reason of this
Agreement a fiduciary relationship in respect of any Lender. Nothing in this
Agreement or any of the Loan Documents, expressed or implied, is intended to or
shall be construed to impose upon the Administrative Agent or any Arranger any
obligations in respect of this Agreement or any of the Loan Documents except as
expressly set forth herein or therein. The Administrative Agent and the
Arranger 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 the Agent to the Borrower and promptly notifying
each Lender upon its obtaining actual knowledge of the occurrence of the 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)) and
8.3.
12.3. Right to Request Instructions. The Administrative Agent and the
Arranger 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 the
Agent is permitted or required to take or to grant, and the 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 the Agent is required to obtain such instructions for the pertinent
matter in accordance with the Loan Documents. Without limiting the generality
of the foregoing, the Agent shall take any action, or refrain from taking any
action, which is permitted by the terms of the Loan Documents upon receipt of
instructions from those Lenders from whom such Agent is required to obtain such
instructions for the pertinent matter in accordance with the Loan Documents,
provided, that no Lender shall have any right of action whatsoever against the
Administrative Agent or the 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 and the Arranger 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 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 or
the 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 or the Arranger shall not be indemnified to the extent
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suit, 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 and all other Obligations
and the termination of this Agreement.
12.6. Agent Individually. With respect to their respective Pro Rata
Share of the Commitments hereunder, if any, and the Loans made by them, if any,
the Administrative Agent and the Arranger shall have and may exercise the same
rights and powers hereunder and are subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
terms "Lenders" or "Requisite Lenders" or any similar terms shall, unless the
context clearly otherwise indicates, include UBS in its respective individual
capacity as a Lender or as one of the Requisite Lenders. UBS and each of its
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 UBS was not acting as the Administrative Agent.
12.7. Successor Agent.
(a) Resignation. The 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 other Lenders,
unless applicable law requires a shorter notice period or that there be no
notice period, in which instance such applicable law shall control. 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 a 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
which 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 which
shall not be unreasonably withheld, provided, however, that such successor
Administrative Agent shall have total assets of not less than $500,000,000.
(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 Commitment except
in accordance with Section 11.2(a).
12.9. Standard of Care. The Administrative Agent and the Arranger
shall administer the Loans in the same manner that the 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 its respective Notes or other document 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 Commitments and all other
liabilities with respect thereto excluding, in the case of each Lender, taxes
imposed on or measured by net income or overall gross receipts and capital and
franchise taxes imposed on it by (i) the United States, (ii) the Governmental
Authority of the jurisdiction in which such Lender's Applicable Lending Office
is located or any political subdivision thereof or (iii) the Governmental
Authority in which such Person is organized, managed and controlled or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges and withholdings being hereinafter referred to as "Taxes").
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 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
Section 13.1 hereof. 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 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 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 1001
(or any successor or substitute form or forms)) or (II) under Sections
1442(c)(1) and 1442(a) of the Internal Revenue Code (in which case the
certificate shall be accompanied by two duly completed copies of IRS Form 4224
(or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to the Borrower and the
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 Lender agrees to deliver to 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 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 the Lender from duly completing and delivering such form has occurred
prior to the date on which any such delivery would otherwise be required and
the Lender promptly advises the Borrower that it is not capable of receiving
payments hereunder and under the Notes without any deduction or withholding of
United States federal income tax.
(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 Section 13.1(d), or (y) such Lender's
failure or inability to furnish under Section 13.1(d) an original of an
extension or renewal of a Form 1001 or Form 4224 (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 the
making or maintenance by any Lender of its Loans, any Lender's participation in
or obligation to participate in the Loans or other advances made hereunder or
the existence of any Lender's obligation to make Loans, 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
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 Commitments
of the Lenders to make Eurodollar Rate Loans 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 (other than 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 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;
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 Commitment 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.
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 Commitment and all
Loans 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 Agreement
(including all of its rights and obligations with respect to the Loans) in
accordance with the provisions of this Section 14.1.
(b) Limitations on Assignments. For so long as no Potential Event of
Default or Event of Default has occurred and is continuing, each assignment
shall be subject to the following conditions: (i) each assignment shall be of a
constant, and not a varying, ratable percentage of all of the assigning
Lender's rights and obligations under this Agreement and, in the case of a
partial assignment, shall be in a minimum principal amount of $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 shall
be subject to the reasonable approval of the Agent and the Borrower, 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 a Potential
Event of Default or 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 and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such assigning Lender's
rights and obligations under this Agreement, the assigning Lender shall cease
to be a party hereto) and (C) the Borrower shall execute and deliver to the
assignee thereunder a Note evidencing its obligations to such assignee with
respect to the Loans.
(c) The Register. The 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 Commitment of, and
the principal amount of the Loans under the 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 and the other Lenders.
(e) Participations. Each Lender may sell participations to one or
more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its
Commitment hereunder and the Loans owing to it); provided, however, that (i)
such Lender's obligations under this Agreement (including, without limitation,
its 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 Lender in connection with
such Lender's rights and obligations under this Agreement, (iv) each
participation 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 (A) increase
in the Commitment of the Lender from whom such participant purchased a
participation, (B) reduction of the principal of, or rate or amount of interest
on the Loans subject to such participation (other than by the payment or
prepayment thereof), (C) postponement of any date fixed for any payment of
principal of, or interest on, the Loan(s) subject to such participation and (D)
release of any guarantor of the Obligations.
(f) 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.
(g) 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.
(h) 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 Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
(i) Market Adjustment. In the event that after the Closing Date the
Arranger, in its sole discretion, determines that the Applicable Margin or any
fees payable hereunder need to be increased in order to ensure a successful
syndication of the Loans, then the Administrative Agent and the Borrower shall
enter into an amendment of this Agreement effecting such modifications,
provided that so long as no Event of Default shall have occurred and be
continuing, (a) in no event shall the Maximum Credit Amount be modified, and
(b) with respect to Loans in the aggregate principal amount of $30,000,000 or
less, in no event shall the Applicable Margin or any fees paid to the
Administrative Agent or its Affiliates, other than the Extension Fee, be
increased. Additionally, (i) no increase in the Applicable Margin shall apply
retroactively, and (ii) the Administrative Agent's rights under this subsection
(i) shall terminate upon the syndication or participation of $30,000,000 of the
Commitments.
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 Skadden, Arps, Slate, Meagher & Flom LLP (but not of other
legal counsel) and for all other reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent or each Arranger in connection with (i)
the preparation, negotiation, and execution of the Loan Documents; (ii) the
preparation, negotiation, execution and interpretation of this Agreement
(including, without limitation, the satisfaction or attempted satisfaction of
any of the conditions set forth in Article VI), the Loan Documents, and the
making of the Loans hereunder; (iii) 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 Arranger 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 Property, 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 Arranger and each
and all of the other 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 Documents, the making of the Loans hereunder, the use or
intended use of the proceeds of the Loans hereunder, or any of the other
transactions contemplated by the Loan Documents, or (ii) any Liabilities and
Costs relating to violation of any Environmental, Health or Safety Requirements
of Law, the past, present or future operations of the Borrower, any of its
Subsidiaries or any of their respective predecessors in interest, or, the past,
present or future environmental, health or safety condition of any respective
Property of the Borrower or any of its Subsidiaries, the presence of
asbestos-containing materials at any respective Property of the Borrower or any
of its Subsidiaries, or the Release or threatened Release of any Contaminant
into the environment (collectively, the "Indemnified Matters"); provided,
however, the Borrower shall have no obligation to an Indemnitee hereunder with
respect to Indemnified Matters caused by or resulting from the willful
misconduct or gross negligence of such Indemnitee, as determined by a court of
competent jurisdiction in a non-appealable final judgment; and (b) not to
assert any claim against any of the Indemnitees, on any theory of liability,
for consequential or punitive damages arising out of, or in any way in
connection with, the Commitments, the Credit Obligations, or the other matters
governed by this Agreement and the other Loan Documents. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable 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 Borrower with the agreement of its independent certified
public accountants and such changes result in a change in the method of
calculation of any of the covenants, standards or terms found in Article X, the
parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating compliance with such covenants, standards and terms
by the Borrower shall be the same after such changes as if such changes had not
been made; provided, however, no change in GAAP that would affect the method of
calculation of any of the covenants, standards or terms shall be given effect
in such calculations until such provisions are amended, in a manner
satisfactory to the 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 costs and fees described in Sections
3.1(g), 5.2(f), and 5.3 and Article XIII) equitable adjustment will be made so
that, in effect, all such amounts will be shared among them ratably in
accordance with their Pro Rata Shares, whether received by voluntary payment,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross-action or by the enforcement of any or all of the Obligations (excluding
the costs and fees described in Sections 3.1(g), 5.2(f), and 5.3 and Article
XIII), (ii) if any of them shall by voluntary payment or by the exercise of any
right of counterclaim, setoff, banker's lien or otherwise, receive payment of a
proportion of the aggregate amount of the Obligations held by it, which is
greater than the 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;
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 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 Arranger or the other 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.
(b) Amendments, Consents and Waivers by Affected Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) waiver of any of the conditions specified in Sections 6.1
and 6.2 (except with respect to a condition based upon another
provision of this Agreement, the waiver of which requires only the
concurrence of the Requisite Lenders),
(ii) increase in the amount of such Lender's Commitment,
(iii) reduction of the principal of, rate or amount of interest
on the Loans, 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
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 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 Termination Date, or increase in the
Maximum Revolving Credit Amount to any amount in excess of
$60,000,000,
(ii) change in the definition of Requisite Lenders or in the
aggregate Pro Rata Share of the Lenders which shall be required for
the Lenders or any of them to take action hereunder or under the
other Loan Documents,
(iii) amendment of Section 14.6 or this Section 14.7,
(iv) release of any Collateral (as defined in the Pledge) except
in accordance with the terms and conditions of the Loan Documents,
(v) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by the Borrower, and
(vi) waiver of any Event of Default under Section 11.1(a),
Section 11.1(f) or Section 11.1(g).
(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 Lenders' 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.
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 as set forth below each party's name
on the signature pages hereof or the signature page of any applicable
Assignment and Acceptance, or, as to each party, at such other address as may
be designated by such party in a written notice to all of the other parties to
this Agreement.
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 and, in the case of any Lender that may assign any
interest in its Commitment or Loans 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) 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 other 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 other
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 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,
the 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 similar
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 Arranger 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 10.7, the rights hereunder of the Borrower or any interest
therein, may not be assigned without the written consent of all Lenders.
14.17. Certain Consents and Waivers of the Borrower.
(a) Personal Jurisdiction. (i) EACH OF THE AGENT, THE LENDERS, THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY,
TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT
SITTING IN NEW YORK, NEW YORK, AND ANY COURT HAVING JURISDICTION OVER APPEALS
OF MATTERS HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.
EACH OF THE AGENTS, THE LENDERS, 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, 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
OTHER LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE ADMINISTRATIVE AGENT OR ANY OTHER 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 PROCESS AGENT OR THE BORROWER'S NOTICE ADDRESS
SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. THE BORROWER
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION
SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE
AGENT OR THE OTHER LENDERS TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION.
(C) WAIVER OF JURY TRIAL. EACH OF THE AGENT AND THE OTHER LENDERS AND
THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
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 Arranger 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 Arranger and the
other Lenders shall not be liable to any contractor, subcontractor, supplier,
laborer, architect, engineer, tenant or other party for services performed or
materials supplied in connection with any work performed on the Properties. The
Administrative Agent, the Arranger and the other Lenders shall not be liable
for any debts or claims accruing in favor of any such parties against the
Borrower or others or against any of the Properties. The Borrower is not and
shall not be an agent of the Agent, the Arranger or the other Lenders for any
purposes and none of the Lenders, the Arranger, or the Agents shall be deemed
partners or joint venturers with Borrower. None of the Administrative Agent,
the Arranger or the other Lenders shall be deemed to be in privity of contract
with any contractor or provider of services to any Property, nor shall any
payment of funds directly to a contractor or subcontractor or provider of
services be deemed to create any third party beneficiary status or recognition
of same by any of the Administrative Agent, the Arranger or the other Lenders
and the Borrower agrees to hold the Administrative Agent, the Arranger and the
other Lenders harmless from any of the damages and expenses resulting from such
a construction of the relationship of the parties or any assertion thereof.
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 Agent, the Arranger 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 Affiliate of any Lender (provided such 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 (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 or (i) upon the advice of counsel that such disclosure is required by
law.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
BORROWER:
---------
RECKSON SERVICES INDUSTRIES, INC., a
Delaware corporation
By: __________________________________
Name:
Title:
Notice Address:
---------------
c/o Reckson Associates Realty Corp.
225 Broadhollow Road
Melville, New York 11747
Telephone: 516-694-6900
Telecopy: 516-622-6786
Attention: Michael Maturo
Chief Financial Officer
ADMINISTRATIVE AGENT,
AND LENDER: UBS AG, STAMFORD BRANCH
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Notice Address, Domestic and Eurodollar
Lending Office:
UBS, AG, Stamford Branch
299 Park Avenue
New York, NY 10171
Attn: Ms. Xiomara Martez
Telecopy: (212) 821-4138
Pro Rata Share: 100%
Commitment: $60,000,000
<PAGE>
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
<PAGE>
LIST OF EXHIBITS AND SCHEDULES
Exhibit A-- Form of Assignment and Acceptance
Exhibit B-- Form of Note
Exhibit C-- Form of Notice of Borrowing
Exhibit D-- Form of Notice of Conversion/Continuation
Exhibit E-- List of Closing Documents
Exhibit F-- Intentionally Omitted
Exhibit G-- Sample Calculations of Financial Covenants
Exhibit H-- Vantacq Loan Term Sheet
Schedule 1.1.1 -- Existing Permitted Liens
Schedule 1.1.2 -- Permitted Securities Options
Schedule 6.1-D -- Equity Changes
Schedule 6.1-J -- Ownership Interests
Schedule 7.1-A -- Organizational Documents
Schedule 7.1-C -- Corporate Structure; Outstanding Capital Stock and
Partnership Interests; Certificate of Incorporation
and By-Laws
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
Schedule 7.1-U -- Properties Owned by Borrower
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms..................................................1
1.2. Computation of Time Periods...........................................29
1.3. Accounting Terms......................................................29
1.4. Other Terms...........................................................29
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans.................................................................29
2.2. Funding Ratio.........................................................32
2.3. Use of Proceeds of Loans..............................................33
2.4. Termination Date......................................................33
2.5. Maximum Credit Facility...............................................34
2.6. Authorized Agents.....................................................34
ARTICLE III
INTENTIONALLY OMITTED
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments; Reductions in Commitments................................35
4.2. Payments..............................................................38
4.3. Promise to Repay; Evidence of Indebtedness............................42
ARTICLE V
INTEREST AND FEES
5.1. Interest on the Loans and other Obligations...........................44
5.2. Special Provisions Governing Eurodollar Rate Loans....................47
5.3. Fees..................................................................51
ARTICLE VI
CONDITIONS TO LOANS
6.1. Conditions Precedent to the Initial Loans.............................52
6.2. Conditions Precedent to All Subsequent Loans..........................56
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of the Borrower........................57
ARTICLE VIII
REPORTING COVENANTS
8.1. Borrower Accounting Practices.........................................69
8.2. Financial Reports.....................................................69
8.3. Events of Default.....................................................73
8.4. Lawsuits..............................................................74
8.5. Insurance.............................................................75
8.6. ERISA Notices.........................................................75
8.7. Environmental Notices.................................................78
8.8. Labor Matters.........................................................79
8.9. Notices of Asset Sales and/or Acquisitions............................79
8.10. Notices of............................................................80
8.11. Other Reports.........................................................80
8.12. Other Information.....................................................80
ARTICLE IX
AFFIRMATIVE COVENANTS
9.1. Existence, Etc........................................................81
9.2. Powers; Conduct of Business...........................................81
9.3. Compliance with Laws, Etc.............................................81
9.4. Payment of Taxes and Claims...........................................81
9.5. Insurance.............................................................82
9.6. Inspection of Property; Books and Records; Discussions................82
9.7. ERISA Compliance......................................................83
9.8. Maintenance of Property...............................................83
9.9. Vantacq Interest Reserve..............................................83
9.10. Ownership of Properties, Minority Holdings and Property...............84
9.11. Maintenance of Operating Accounts.....................................84
9.12. Permitted Private Placement...........................................84
9.13. Ownership of OSA......................................................84
ARTICLE X
NEGATIVE COVENANTS
10.1. Intentionally Omitted................................................85
10.2. Liens................................................................85
10.3. Sale of Assets.......................................................85
10.4. Conduct of Business..................................................85
10.5. Transactions with Partners and Affiliates............................85
10.6. Restriction on Fundamental Changes...................................86
10.7. Margin Regulations; Securities Laws..................................86
10.8. ERISA................................................................86
10.9. Organizational Documents.............................................87
10.10. Fiscal Year..........................................................88
10.11. Financial Covenants..................................................88
ARTICLE XI
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1. Events of Default....................................................89
11.2. Rights and Remedies..................................................94
ARTICLE XII
THE AGENTS
12.1. Appointment..........................................................95
12.2. Nature of Duties.....................................................96
12.3. Right to Request Instructions........................................96
12.4. Reliance.............................................................97
12.5. Indemnification......................................................97
12.6. Agent Individually...................................................98
12.7. Successor Agent......................................................98
12.8. Relations Among the Lenders..........................................99
12.9. Standard of Care.....................................................99
ARTICLE XIII
YIELD PROTECTION
13.1. Taxes...............................................................100
13.2. Increased Capital...................................................103
13.3. Changes; Legal Restrictions.........................................104
13.4. Replacement of Certain Lenders......................................105
13.5. Mitigation..........................................................106
ARTICLE XIV
MISCELLANEOUS
14.1. Assignments and Participations......................................106
14.2. Expenses............................................................110
14.3. Indemnity...........................................................111
14.4. Change in Accounting Principles.....................................112
14.5. Intentionally Omitted...............................................112
14.6. Ratable Sharing.....................................................112
14.7. Amendments and Waivers..............................................113
14.8. Notices.............................................................116
14.9. Survival of Warranties and Agreements...............................116
14.10. Failure or Indulgence Not Waiver; Remedies Cumulative...............117
14.11. Payments Set Aside..................................................117
14.12. Severability........................................................117
14.13. Headings............................................................117
14.14. Governing Law.......................................................118
14.15. Limitation of Liability.............................................118
14.16. Successors and Assigns..............................................118
14.17. Certain Consents and Waivers of the Borrower........................118
14.18. Counterparts; Effectiveness; Inconsistencies........................119
14.19. Limitation on Agreements............................................120
14.20. Disclaimers.........................................................120
14.21. Entire Agreement....................................................121
14.22. Confidentiality.....................................................121
Exhibit 10.2
EQUITY INTEREST PLEDGE AND SECURITY AGREEMENT
between
THE PARTIES LISTED ON SCHEDULE 1 ATTACHED HERETO
as Pledgors
and
UBS AG, STAMFORD BRANCH,
as Administrative Agent
as Pledgee
Dated as of November 30, 1999
Page 1
<PAGE>
EQUITY INTEREST PLEDGE AND SECURITY AGREEMENT
EQUITY INTEREST PLEDGE AND SECURITY AGREEMENT, dated as of November
30, 1999 (this "AGREEMENT"), is made by and between the parties listed on
SCHEDULE 1 attached hereto and made a part hereof (each, individually, a
"PLEDGOR" and all such Pledgors collectively, the "PLEDGORS"), each having its
chief executive office at 225 Broadhollow Road, Melville, New York 11747, to UBS
AG, STAMFORD BRANCH, as Administrative Agent, or its assigns ("PLEDGEE") having
its principal office at 299 Park Avenue, New York, New York.
W I T N E S S E T H:
WHEREAS, Reckson Services Incorporated (the "BORROWER"), as borrower,
and UBS AG, Stamford Branch, as Administrative Agent for the Lenders, and the
Lenders listed on the signature pages thereto (together with their successors
and assigns, collectively, the "LENDERS") have entered into the Credit
Agreement, dated of even date herewith (as the same may be amended, modified or
restated, the "CREDIT AGREEMENT"), pursuant to which the Lenders have agreed to
make a loan to Borrower in the principal amount of $60,000,000, subject to all
the terms and conditions of the Credit Agreement;
WHEREAS, as set forth on SCHEDULE 2 attached hereto and made a part
hereof, each Pledgor is the legal and beneficial owner of a direct equity
interest in one or more of the entities set forth on SCHEDULE 2 hereto (each
such entity and successor thereof being referred to as a "PLEDGED ENTITY", and
collectively as the "PLEDGED ENTITIES"), under and subject to the respective
corporate governing documents set forth on SCHEDULE 2 hereto next to such
Pledged Entity's name (as each of such agreements may hereafter be amended or
otherwise modified from time to time, a "GOVERNING DOCUMENT"); and
WHEREAS, the Borrower has covenanted to cause the Pledgors to execute
and deliver to the Pledgee this Agreement as collateral for the Obligations.
NOW, THEREFORE, in consideration of the foregoing, and in order to
induce the Lenders to enter into the Credit Agreement, the receipt of which is
hereby acknowledged, each Pledgor does hereby agree with Pledgee, as follows:
1. DEFINITIONS. Unless the context otherwise requires, capitalized
terms used herein without definition shall have the respective meanings
provided therefor in the Credit Agreement and the following terms shall have the
following meanings:
"CODE" shall mean the Uniform Commercial Code, as enacted in the State
of New York, as amended.
"DEFAULT" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"EQUITY INTERESTS" shall mean, collectively, all of each Pledgor's
right, title and interest in and to the Pledged Entities, including, without
limitation, (a) all of each Pledgor's right, title and interest in, to and under
any and all agreements relating to such Pledged Entities or to which such
Pledged Entities are a party, (b) any and all rights of first refusal to which
Pledgor may be entitled in connection with any Equity Interest or the applicable
Governing Documents, and (c) all of Pledgor's right, title and interest in and
to the profits, capital, surplus, assets, allocations and distributions under
the applicable Governing Documents, both during the term of the applicable
Pledged Entity and upon any dissolution or liquidation of the applicable
Pledged Entity, if any shall occur.
"EVENT OF DEFAULT" shall mean the occurrence of any one or more of the
following events:
(a) Any representation or warranty made by Pledgors contained in this
Agreement was false or misleading in any material respect on the date when
made; or
(b) Any Pledgor's failure to comply with, or breach of any term,
covenant or agreement contained in Section 4 hereof, if such failure or
breach, as the case may be, shall continue for thirty (30) days after
notice shall have been given by Pledgee specifying such failure or breach,
as the case may be, and requiring such failure or breach, as the case may
be, to be remedied; or
(c) Any Pledgor's failure to comply with, or breach of any material
term, covenant or agreement contained in this Agreement (other than as
referred to in paragraph (b) above) if such failure or breach, as the case
may be, shall continue for thirty (30) days after notice shall have been
given by Pledgee specifying such failure or breach, as the case may be, and
requiring such failure or breach, as the case may be, to be remedied; or
(d) The occurrence and continuance beyond any applicable grace periods
(if any) of any default under the Credit Agreement.
"PLEDGED STOCK" shall mean the issued and outstanding capital stock of
any Pledged Entity owned by the Pledgors as of the Closing Date, as more
particularly described on SCHEDULE 2 hereto and hereafter, all shares of capital
stock pledged pursuant to the Credit Agreement, and all options, warrants and
other rights to acquire such capital stock.
"VANTACQ" shall mean VANTACQ, LLC, a Delaware limited liability
company.
"VANTAS" shall mean VANTAS, Incorporated, a Nevada corporation.
2. GRANT OF SECURITY INTEREST, ETC. As security for the full and
punctual payment and performance of the Obligations when due, Pledgors hereby
grant and pledge a continuing first priority lien on and security interest in,
and, as a part of such grant and pledge, hereby transfer and assign to Pledgee
as security, all of the following (the "COLLATERAL") whether now owned or
hereafter acquired: (i) the Equity Interests; (ii) any other equity interest(s)
now owned or hereafter acquired by any Pledgor in any Pledged Entity which the
Pledgors are required to pledge pursuant to the terms of the Credit Agreement
(the "ADDITIONAL EQUITY INTERESTS"); (iii) all of Pledgors' right, title and
interest in the undated stock powers relating to the Pledged Stock duly executed
in blank and (subject to the provisions of Section 8 hereof) all income and
profits thereof, all distributions thereon, and all rights and privileges
pertaining thereto; (iv) all of any Pledgor's right, title and interest in any
of the Pledged Entities, including without limitation: (a) all of each
Pledgor's interest in the capital of the Pledged Entities, and each Pledgor's
interest in all profits and distributions to which such Pledgor shall at any
time be entitled in respect of the Equity Interests and in respect of any
Additional Equity Interests; (b) all other payments, if any, due or to become
due to each Pledgor in respect of the Equity Interests and in respect of any
Additional Equity Interests, under or arising out of any Governing Document,
whether as contractual obligations, damages, insurance proceeds, condemnation
awards or otherwise; (c) all of each Pledgor's claims, rights, powers,
privileges, authority, options, security interest, liens and remedies, if any,
under or arising out of any Governing Document or the ownership of any Equity
Interests pursuant thereto and Additional Equity Interests; (d) all present and
future claims, if any, of any Pledgor against any Pledged Entities, under or
arising out of the applicable Governing Document for monies loaned or advanced,
for services rendered or otherwise; and (e) to the extent permitted by
applicable law, all of each Pledgor's rights, if any, under any Governing
Document or at law, to exercise and enforce every right, power, remedy,
authority, option and privilege of such Pledgor relating to the Equity Interests
(or any Additional Equity Interests), including any power to terminate, cancel
or modify any Governing Documents, to execute any instruments and to take any
and all other action on behalf of and in the name of such Pledgor in respect of
the Equity Interests and Additional Equity Interests and any Pledged Entities,
to make determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice, consent,
amendment, waiver or approval, together with full power and authority to
demand, receive, enforce or collect any of the foregoing or any property of any
Pledged Entities, to enforce or execute any checks, or other instruments or
orders, to file any claims and to take any action in connection with any of the
foregoing; and (v) to the extent not otherwise included, all proceeds of any or
all of the foregoing.
3. POWERS OF PLEDGORS PRIOR TO AN EVENT OF DEFAULT.
Prior to the occurrence and continuance of an Event of Default,
Pledgors shall be entitled to receive and retain all distributions with respect
to the Equity Interests (and any Additional Equity Interests). Notwithstanding
anything else herein to the contrary, unless an Event of Default shall have
occurred and then be continuing, Pledgors shall be entitled to exercise their
respective voting, consent and other rights and remedies under the Governing
Documents or other applicable organizational documents, as the case may be, or
otherwise with respect to the Equity Interests (and any Additional Equity
Interests); PROVIDED, HOWEVER, that no action shall be taken or fail to be taken
which could adversely affect Pledgee's rights to the Collateral or the value of
the Collateral.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each Pledgor hereby covenants with, and represents and warrants to,
Pledgee, as follows:
(a) Each Pledgor has the full power and authority to acquire, own and
pledge that portion of the Equity Interests relating to its ownership
interests in the Pledged Entities and to execute and deliver and perform
its obligations hereunder.
(b) The execution and delivery by each Pledgor of this Agreement, each
Pledgor's performance of its respective obligations hereunder and the
creation of the security interests and liens provided for in this Agreement
have been duly authorized by all requisite action on the part of each
Pledgor, including the consent of any Person where required, and will not
violate any provision of law, any order of any court or other Governmental
Authority, the Governing Documents, or any indenture, agreement or other
instrument to which any Pledgor is a party, or by which any Pledgor is
bound, or be in conflict with, result in a breach of, or constitute (with
due notice or lapse of time or both) a default under, or except as may be
provided by this Agreement, result in the creation or imposition of any
lien, of any nature whatsoever upon any of the property or assets of any
Pledgor pursuant to any such indenture, agreement or instrument. No Pledgor
is required to obtain any consent, approval or authorization from, or to
file any declaration or statement with, any Governmental Authority or other
agency in connection with or as a condition to the execution, delivery or
performance of this Agreement.
(c) Each Pledgor owns the percentage equity interest (each such equity
interest referred to herein as a "CURRENT EQUITY INTEREST") in the Pledged
Entities set forth under each Pledgor's names on SCHEDULE 2 annexed hereto
and made a part hereof pursuant to the terms of each Governing Document,
and, except as permitted by the Credit Agreement, will at all times
hereafter during the term of this Agreement continue to hold its Current
Equity Interest in each of the Pledged Entities. No Pledgor has any
outstanding options or rights or other agreements to sell or otherwise
transfer all or any portion of its respective Equity Interest (or any
Additional Equity Interests). In the event that (i) any Pledgor acquires an
Additional Equity Interest or (ii) in accordance with the terms of this
Agreement any Pledgor transfers all or any portion of any Equity Interest
(or Additional Equity Interests), Pledgors agree to enter into an
amendment to this Agreement modifying SCHEDULE 2 hereof to account for
such change and, in the case of clause (i) above, Pledgors shall provide
Pledgee with notice thereof immediately upon any such acquisition.
(d) Pledgors will defend Pledgee's right, title and interest in and to
the Equity Interests and any Additional Equity Interests and in and to the
Collateral pledged by it pursuant hereto and in which it has granted a
security interest pursuant hereto against the claims and demands of all
other Persons.
(e) Each Pledgor is the legal and beneficial owner of and has good
title to the Equity Interests relating to its ownership interest in the
Pledged Entities and in and to the Collateral in which it has granted a
security interest pursuant hereto, free and clear of all claims or security
interests of every nature whatsoever, except the security interests as are
created pursuant to this Agreement. Each Pledgor has the unqualified right
to pledge and grant a security interest in the same (and to transfer the
same, whether pursuant to foreclosure or otherwise) as herein provided
without the consent of any other Person other than any such consent that
has been obtained and there are no restrictions upon the exercise of the
voting rights associated with, or the transfer of, any of the Pledged
Stock.
(f) The Equity Interests have been validly acquired by Pledgors and
are duly and validly pledged hereunder. All consents and approvals required
for the execution and delivery of this Agreement and the consummation of
the transactions contemplated by this Agreement have been obtained.
(g) Each Pledgor agrees that it will not mortgage, encumber, pledge or
grant a security interest in, any of the Collateral or any interest
therein, or suffer or permit any of the same to occur or exist, except as
expressly permitted in this Agreement or the Credit Agreement, and any
mortgage, pledge, encumbrance or security interest whatsoever made in
violation of this covenant shall be a nullity and of no force and effect,
and upon demand of Pledgee, shall forthwith be canceled or satisfied by an
appropriate instrument in writing. Any sale, assignment or transfer of the
Collateral shall be made in accordance with the provisions of the Credit
Agreement. Without limiting the generality of the foregoing, Pledgors
will, within thirty (30) days after Pledgors have actual notice thereof,
discharge or cause to be discharged as a lien of record by payment or
filing of the bond required by law, or otherwise, any judgment, tax or
other involuntary liens filed or otherwise asserted against the
Collateral, and any proceedings for the enforcement thereof; PROVIDED,
HOWEVER, so long as no Event of Default shall have occurred and be
continuing here under, Pledgors shall have the right to contest in good
faith and with reasonable diligence the validity of any such judgment,
liens or tax or other such involuntary liens upon the filing of such bond
or, if no such bond is required by law to be filed, establishing reserves
in accordance with GAAP. If Pledgors fail to so discharge or bond or
contest liens in the manner provided above, then Pledgee may, but shall not
be required to, procure the release and discharge of any such lien and any
judgment or decree thereon, and in furtherance thereof may effect any
reasonable settlement or compromise or furnish any security or indemnity as
may be required. Pledgors shall reimburse Pledgee, upon demand, for any
reasonable amounts expended by Pledgee in connection with the provisions of
this Paragraph (g), and all amounts expended by Pledgee hereunder shall be
secured by this Agreement. In settling, compromising or arranging for the
discharge of any liens under this Paragraph (g), Pledgee shall not be
required to establish or confirm the validity or amount thereof.
(h) The chief executive office of each Pledgor, and the principal
place where the records of each Pledgor concerning the Collateral are kept,
is 225 Broadhollow Road, Melville, New York 11747. No Pledgor shall change
such chief executive office or remove such records unless such Pledgor
shall provide Pledgee with written notice thereof within fifteen (15) days
after such change (but in any event, within the period required pursuant to
the Code) and there shall have been taken such action, satisfactory to
Pledgee, as may be necessary to maintain the security interest of Pledgee
hereunder at all times fully perfected and in full force and effect. No
Pledgor shall change its name unless such Pledgor shall have given Pledgee
written notice thereof within fifteen (15) days after such change (but in
any event, within the period required pursuant to the Code) and shall have
taken such action, satisfactory to Pledgee, as may be necessary to maintain
the security interest of Pledgee in the Collateral granted hereunder at all
times fully perfected and in full force and effect.
(i) Giving effect to the aforesaid grant and assignment to Pledgee,
Pledgee has, as of the date of this Agreement, and as to Collateral
acquired from time to time after the date hereof, shall have, a valid,
perfected and continuing first priority lien upon and security interest in
the Collateral; PROVIDED, HOWEVER, that no representation or warranty is
made with respect to the perfected status of the security interest of
Pledgee in the proceeds of Collateral consisting of "cash proceeds" or
"non-cash proceeds" as defined in the Code except if, and to the extent,
the provisions of Section 9-306 of the Code shall be complied with.
(j) There are no financing statements under the Code covering any or
all of the Collateral and no Pledgor will, without the prior written
consent of Pledgee, execute and, until payment in full of all of the
Obligations, there will not ever be on file in any public office, any
enforceable financing statement or statements covering any or all of the
Collateral, except financing statements filed or to be filed in favor of
Pledgee as secured party.
(k) Each of the Governing Documents have been duly executed and
delivered by the Pledgor(s) which is/are a party(ies) thereto and
constitutes the legal, valid and binding obligation of such Pledgor(s),
enforceable in accordance with its terms, except as enforceability may be
limited by applicable insolvency, bankruptcy or other laws affecting
creditors rights generally, or general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law. No
Pledgor is in default under or with respect to, nor has any Pledgor
received any notice alleging any default that remains uncured under or with
respect to, such Pledgor's obligations under any Governing Documents.
(l) Each of the Governing Documents delivered to Pledgee is a true,
correct and complete copy of a signed copy thereof of the complete and
entire Governing Document in effect on the date hereof and has not, as of
the date hereof, been further modified or amended.
(m) Pledgors shall deliver to Pledgee a copy of each notice of default
given or received by them under any Governing Document, promptly, but in
any event within ten (10) days after, any Pledgor gives or receives such
notice.
(n) Except as permitted by the Credit Agreement, no Pledgor shall
withdraw as a shareholder of any of the Pledged Entities, or file or pursue
or take any action which may, directly or indirectly, cause a dissolution
or liquidation of any of the Pledged Entities or seek a partition of any
property of the Pledged Entities.
(o) Except as permitted by the Credit Agreement, no Pledgor shall
terminate or agree to terminate or amend or modify, or agree to amend or
modify, any Governing Documents or waive compliance with any provision of
any Governing Documents with out the prior written consent of Pledgee in
each instance.
(p) None of the Collateral is, as of the date of this Agreement, and
as to Collateral which arises from time to time after such date will be,
evidenced by any instrument, note or chattel paper except such as have been
or will be duly endorsed to Pledgee or in blank, and delivered to Pledgee
by Pledgors simultaneously with the creation thereof.
(q) Each Pledgor shall, at its sole cost and expense, keep, observe,
perform and discharge, duly and punctually, all and singular the
obligations, terms, covenants, conditions, representations and warranties
of the Governing Documents to which it is a party on the part of the
applicable Pledgor to be kept, observed, performed and discharged. Pledgors
shall hold Pledgee harmless and indemnify it against any cost or expense
(including reasonable attorneys' fees and disbursements) that Pledgee may
incur or sustain by reason of the failure on any Pledgor's part to so
perform and observe any Governing Document or to satisfy, perform and
observe such conditions thereunder.
(r) All the shares of the Pledged Stock have been duly and validly
issued, are fully paid and non-assessable. Except as set forth on SCHEDULE
3 attached hereto and made a part hereof, none of the Pledged Entities has
outstanding any options or rights or other agreements to issue stock or
other equity interests not outstanding on the date hereof or to sell or
otherwise transfer all or any portion of any interests in any of such
Pledged Entities.
(s) The Pledged Stock is not listed on any recognized stock exchange
in the United States of America.
5. INTENTIONALLY OMITTED.
6. DISTRIBUTIONS.
(a) Subject to the terms of the Credit Agreement, unless an Event of
Default shall have occurred and be continuing, Pledgors at any time may
receive and retain all distributions or dividends with respect to its
interest in the capital or profits or other cash distributions or
dividends, liquidating or otherwise, with respect to the Equity Interests
(and any Additional Equity Interests).
5 (b) If Pledgor at any time shall be entitled to receive any cash
distributions or dividends with respect to the Equity Interests and/or
any Additional Equity Interests or otherwise pursuant to any Governing
Document, all such amounts shall, immediately upon receipt by any
Pledgor, be remitted to Pledgee for application to the Obligations and
until so remitted shall be received and held by Pledgor in trust for
Pledgee. In the event a non-cash distribution or dividends shall be paid
or made to any Pledgor, such Pledgor shall receive the same in trust for
the sole purpose of forthwith delivering the same in kind (appropriately
endorsed) to Pledgee, subject to the terms hereof, to be added to the
Collateral hereunder.
If any Pledgor shall become entitled to receive or shall receive
from any Pledged Entity any instrument, certificate, option or right, as
an addition to and in respect of, in substitution of, or in exchange for,
that portion of the Equity Interests (and/or any Additional Equity
Interests) relating to its ownership interest in the Pledged Entities or
any part of any of the foregoing, such Pledgor shall hold the same as the
agent and in trust for Pledgee, and shall deliver it forthwith to Pledgee
in the exact form received, with such Pledgor's endorsement or assignment
or other instrument as Pledgee may reasonably deem appropriate, to be
held by Pledgee, as further Collateral for the Obligations.
7. APPLICATION OF COLLATERAL. All proceeds of any Collateral now or at
any time hereafter received or retained by Pledgee pursuant to the provisions of
this Agreement (including, without limitation, any proceeds from the sale of all
or any portion of the Equity Interests (and/or any Additional Equity Interests)
and all distributions, liquidating and otherwise, received by Pledgee in respect
of the Equity Interests (and/or any Additional Equity Interests) shall, after an
Event of Default and acceleration of the Loans, be applied by Pledgee to the
Obligations in the priority set forth in the Credit Agreement, and, if after all
of the Obligations shall have been paid in full, any surplus then remaining
shall be paid to Pledgors.
8. REMEDIES. If an Event of Default shall occur and then be
continuing:
(a) Pledgee, without obligation to resort to any other security, right
or remedy granted under any other agreement or instrument, shall have the
right to, in addition to all rights, powers and remedies of a secured party
pursuant to the Code, at any time and from time to time, (i) cause any or
all of the Equity Interests (and/or any Additional Equity Interests) to be
registered in or transferred into the name of Pledgee or into the name of a
nominee or nominees, or designee or designees, of Pledgee; and/or (ii)
sell, resell, assign and deliver, in its sole discretion, any or all of
the Collateral or any other collateral security for the Obligations
(whether in whole or in part and at the same or different times) and all
right, title and interest, claim and demand therein and right of redemption
thereof, at public or private sale, for cash, upon credit or for future
delivery as Pledgee may deem appropriate in a commercially reasonable
manner, and in connection therewith Pledgee may grant options and may
impose reasonable conditions such as requiring any purchaser to represent
that any "securities" constituting any part of the Collateral are being
purchased for investment only, Pledgors hereby waiving and releasing any
and all equity or right of redemption. If all or any of the Collateral is
sold by Pledgee upon credit or for future delivery, Pledgee shall not be
liable for the failure of the purchaser to purchase or pay for the same
and, in the event of any such failure, Pledgee may resell such Collateral.
It is expressly agreed that Pledgee may exercise its rights with respect to
less than all of the Collateral, leaving unexercised its rights with
respect to the remainder of the Collateral, PROVIDED, HOWEVER, that such
partial exercise shall in no way restrict or jeopardize Pledgee's right to
exercise its rights with respect to all or any other portion of the
Collateral at a later time or times.
(b) Pledgee may exercise, either by itself or by its nominee or
designee, in the name of Pledgors, all of the rights, powers and remedies
granted to Pledgee in Section 2 hereof in respect of the Governing
Documents, the Equity Interests (and/or any Additional Equity Interests),
the Pledged Entities, and the other Collateral, and may exercise and
enforce all of Pledgee's rights and remedies hereunder and under law. Such
rights and remedies shall include, without limitation, the right to
exercise all voting, consent and other rights relating to the Equity
Interests (and/or any Additional Equity Interests) whether in the name of
any Pledgor or otherwise.
(c) Pledgee may exercise all of the rights and remedies of a secured
party under the Code.
(d) Without limiting any other provision of this Agreement, and
without waiving or releasing Pledgors from any obligation or default
hereunder, Pledgee shall have the right, but not the obligation, to
perform any act or take any appropriate action, as it, in its reasonable
judgment, may deem necessary to cure such Event of Default or cause any
term, covenant, condition or obligation required under this Agreement, the
Credit Agreement, the Notes or any Governing Documents, to be performed or
observed by any Pledgor, to be promptly performed or observed on behalf of
any Pledgor or to protect the security of this Agreement. All amounts
advanced by, or on behalf of, Pledgee in exercising its rights under this
Section 8 (including, but not limited to, reasonable legal expenses and
disbursements incurred in connection therewith), together with interest
thereon at the rate set forth in Section 5.1(d) of the Credit Agreement
(the "DEFAULT RATE"), shall be payable by Pledgors to Pledgee upon demand
and shall be secured by this Agreement.
9. ATTORNEY-IN-FACT.
(a) Each Pledgor hereby irrevocably authorizes and empowers Pledgee
and its successors and/or assigns and transfers unto Pledgee, and
constitutes and appoints Pledgee its true and lawful attorney-in-fact, and
as its agent, irrevocably, with full power of substitution for it and in
its name, for the purpose of carrying out the provisions of this Agreement
and taking any action and executing any instrument which Pledgee may deem
necessary or advisable to accomplish the purposes hereof. With out limiting
the generality of the foregoing, upon the occurrence and during the
continuation of an Event or Default, Pledgee shall have the right to
exercise and enforce every right, power, remedy, authority, option and
privilege of Pledgors under the Governing Documents or with respect to the
Pledged Stock, including, without limitation, any power to subordinate,
terminate, cancel or modify any Governing Documents or to give any notices,
or to take any action resulting in such subordination, termination,
cancellation or modification and to furnish any information, to make any
demands, to execute any instruments and to take any and all other action on
behalf of and in the name of Pledgor which, in the opinion of Pledgee, may
be necessary or appropriate to be given, furnished, made, exercised or
taken under any Governing Documents or with respect to the Pledged Stock in
order to comply therewith, to perform the conditions thereof or to prevent
or remedy any default by any Pledgor there under or to enforce any of any
Pledgor's rights thereunder or with respect to the Pledged Stock. Pledgee
may, during the continuation of an Event of Default, without notice to, or
assent by, any Pledgor or any other Person (to the extent permitted by
law), but without affecting any of the Obligations, in the name of Pledgor
or in the name of Pledgee, notify any other party to any Governing
Documents to make payment and performance directly to Pledgee; extend the
time of payment and performance of, compromise or settle for cash, credit
or otherwise, and upon any terms and conditions, any obligations owing to
Pledgors, or claims of any Pledgor, under any Governing Documents or with
respect to the Pledged Stock; file any claims, commence, maintain or
discontinue any actions, suits or other proceedings deemed by Pledgee
necessary or advisable for the purpose of collecting upon or enforcing any
Governing Documents or with respect to the Pledged Stock; execute and file
proof claim for the full amount of any Collateral and vote such claims for
the full amount thereof (x) for or against proposal or resolution, (y) for
a trustee or trustees or for a receiver or receivers or for a committee of
creditors and/or (z) for the acceptance or rejection of any proposed
arrangement, plan or reorganization, composition or extension, and Pledgee
or its nominee may receive any payment or distribution and give acquittance
therefor and may exchange or release Collateral; and execute any instrument
and do all other things deemed necessary and proper by Pledgee to protect
and preserve and realize upon the Collateral and the other rights
contemplated hereby. This power-of-attorney is irrevocable and coupled with
an interest, and any similar or dissimilar powers heretofore given by
Pledgors in respect of the Equity Interests (and/or any Additional Equity
Interests) to any other Person are hereby revoked.
(b) Further, without limiting the generality of the foregoing,
Pledgee, after the occurrence and during the continuation of an Event of
Default, shall have the right and power to receive, endorse and collect all
checks and other orders for the payment of money made payable to any
Pledgor representing any interest, payment of principal or other
distribution payable in respect of the Collateral or any part thereof, and
for and in the name, place and stead of such Pledgor, to execute
endorsements, assignments or other instruments of conveyance or transfer in
respect of the Equity Interests (and/or any Additional Equity Interests) or
any other property which is or may become a part of the Collateral
hereunder.
10. SALES OF COLLATERAL. No demand, advertisement or notice, all of
which are hereby expressly waived by Pledgors, shall be required in connection
with any sale or other disposition of all or any part of the Collateral, except
that Pledgee shall give Pledgors at least ten (10) days' prior written notice of
the time and place of any public sale or of the time and the place where any
private sale or other disposition is to be made, which notice Pledgors hereby
agree is reasonable, all other demands, advertisements and notices being hereby
waived. To the extent permitted by law, Pledgee shall not be obligated to make
any sale of the Collateral if it shall determine not to do so, regardless of the
fact that notice of sale may have been given, and Pledgee may without notice or
publication adjourn any public or private sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. Upon each private sale of the Collateral of a type customarily sold
in a recognized market and upon each public sale, unless prohibited by any
applicable statute which cannot be waived, Pledgee (or its nominee or designee)
may purchase any or all of the Collateral being sold, free and clear of and
discharged from any trusts, claims, equity or right of redemption of any Pledgor
all of which are hereby waived and released to the extent permitted by law, and
may make payment there for by credit against any of the Obligations in lieu of
cash or any other obligations. In the case of all sales of the Collateral,
public or private, Pledgors will pay all costs and expenses of every kind for
sale or delivery, including, without limitation, brokers' and reason able
attorneys' fees and disbursements and any stamp, transfer or other tax imposed
thereon. However, the proceeds of sale of Collateral shall be available to cover
such costs and expenses, and, after deducting such costs and expenses from the
proceeds of sale, Pledgee shall apply any residue to the payment of the
Obligations.
11. SECURITIES ACT OF 1933, ETC. Pledgors recognize that Pledgee may
be unable to effect a public sale of all or a part of the Collateral by reason
of certain prohibitions contained in the Securities Act of 1933, as amended, as
now or hereafter in effect, or in applicable Blue Sky or other state securities
laws, as now or hereafter in effect, but may be compelled to resort to one or
more private sales to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire such Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. If, at the
time of any sale of Collateral, the same or any part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the Securities
Act of 1933, as then in effect, Pledgee, in its sole and absolute discretion, is
hereby authorized to sell such Collateral or such part thereof by private sale
in such manner and under such circumstances as Pledgee may reasonably deem
necessary or advisable in order that such sale may legally be effected without
registration. Each Pledgor acknowledges that private sales so made may be at
prices and on other terms less favorable to the seller than if such Collateral
were sold at public sales, and agrees that Pledgee has no obligation to delay
the sale of any such Collateral for the period of time necessary to permit the
issuer of such Collateral, even if such issuer would agree, to register such
Collateral for public sale under such applicable securities laws. Each Pledgor
agrees that private sales made under the foregoing circumstances shall not,
because so made, be deemed to have been made in a commercially unreasonable
manner.
12. WAIVERS; MODIFICATIONS. No delay on the part of Pledgee in
exercising any of its options, powers or rights, or partial or single exercise
thereof, shall constitute a waiver thereof. None of the terms and conditions of
this Agreement may be discharged, changed, waived, modified or varied in any
manner unless in a writing duly signed by the parties hereto.
13. REMEDIES CUMULATIVE. All rights and remedies afforded to Pledgee
by reason of this Agreement are separate and cumulative remedies, and shall be
in addition to all other rights and remedies in favor of Pledgee existing at law
or in equity or otherwise. No one of such remedies, whether or not exercised by
Pledgee, shall be deemed to exclude, limit or prejudice the exercises of any
other legal or equitable remedy or remedies available to Pledgee.
14. NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) addressed to Pledgors at the address provided
on the first page of this Agreement, Attention: Jason Barnett, with a copy to:
Brown & Wood, One World Trade Center, New York, New York 10048, Attention:
Jeffrey Feigelson, Esq.; and addressed to Pledgee at the address provided on
this first page of this Agreement, Attention: David Goldman, with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York
10022, Attention: Martha Feltenstein, Esq., Telephone: (212) 735-2272, Telecopy:
(212) 735-2000; or in the case of any party, such other address or telecopy
number as such party may hereafter specify for the purpose by notice to the
other party. Each such notice, request or other communication shall be effective
(i) if given by telecopy, when such telecopy is transmitted to the telecopy
number specified in this Section, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section 14.
15. JURISDICTION, ETC. Any legal action or proceeding with respect to
this Agreement and any action for enforcement of any judgment in respect thereof
may be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Agreement, each Pledgor hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts. Each Pledgor 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 such Pledgor at its address set forth in Section 14 hereof.
Each Pledgor 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 Agreement 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 Pledgee to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against any Pledgor
in any other jurisdiction.
16. SUCCESSORS AND ASSIGNS. This Agreement, and all representations,
warranties and covenants of Pledgors made herein, shall be binding upon and
inure to the benefit of each Pledgor and its respective successors and assigns,
provided that nothing in this Section 16 shall be deemed to constitute the
consent of Pledgee to any transaction in this Agreement elsewhere not permitted.
This Agreement shall be binding upon and shall inure to the benefit of Pledgee
and its successors and assigns.
17. PLEDGEE NOT BOUND.
(a) Nothing herein shall be construed to make Pledgee liable as a
partner of any Pledged Entity, and Pledgee, by virtue of this Agreement or
other wise (except as referred to in the following sentence) shall not
have any of the duties, obligations or liabilities of a partner of any
Pledged Entity. The parties hereto expressly agree that, unless and until
Pledgee shall become the absolute owner of all or any portion of the Equity
Interests (and/or any Additional Equity Interests) pursuant hereto, this
Agreement shall not be construed as creating a partnership or joint venture
between Pledgee and any Pledgor.
(b) Pledgee, by accepting this Agreement, does not intend to become a
partner of any Pledged Entity or any Pledgor or otherwise be deemed to be a
co-venturer with respect to any Pledged Entity or any Pledgor either before
or after an Event of Default shall have occurred. Pledgee shall have only
those powers set forth herein and shall assume none of the duties,
obligations or liabilities of a partner of any Pledged Entity or of any
Pledgor.
(c) Pledgee shall not be obligated to perform or discharge any
obligation of Pledgors as a result of the collateral assignment hereby
effected.
(d) The acceptance by Pledgee of this Agreement, with all the rights,
powers, privileges and authority so created, shall not at any time or in
any event obligate Pledgee to appear in or defend any action or proceeding
relating to the Collateral to which it is not a party, or to take any
action hereunder or thereunder, or to expend any money or incur any
expenses or perform or discharge any obligation, duty or liability under
the Collateral.
18. ACTS OF PLEDGEE. All Collateral at any time delivered to Pledgee
pursuant hereto shall be held by Pledgee subject to the terms, covenants and
conditions set forth in this Agreement. Neither Pledgee nor any of Pledgee's
directors, officers, agents, employees or counsel shall be liable for any action
taken or omitted to be taken by such party or parties relative to any of the
Collateral, except for such party's or parties' own gross negligence or willful
misconduct. Pledgee shall be entitled to rely in good faith upon any writing or
other document, telegram or telephone conversation reasonably believed by it to
be genuine and correct and to have been signed, sent or made by the proper
person or persons, and, with respect to any legal matter, Pledgee may rely in
acting or in refraining from acting upon the advice of counsel selected by it
concerning all matters hereunder. Each Pledgor hereby agrees to indemnify and
hold harmless Pledgee, its successors and as signs, and any of Pledgee's
directors, officers, agents, and employees and their respective successors and
as signs (collectively, the "INDEMNIFIED PARTIES") from and against any and all
claims, demands, losses, judgments and liabilities arising out of or resulting
from the sale or disposition of all or a portion of the Collateral, including,
without limitation, the Equity Interests (and/or any Additional Equity
Interests), together with interest on such sums at the Default Rate, from the
date such expenses were paid by Pledgee to the date of payment to Pledgee of
such sums. In any action to enforce this Agreement, the provisions of this
Section 18 shall, to the extent permitted by law, prevail notwithstanding any
provision of applicable law respecting the recovery of costs, disbursements and
allowances to the contrary.
19. CUSTODY OF COLLATERAL; NOTICE OF EXERCISE OF REMEDIES. Pledgee
shall not have any duty as to the collection or protection of the Collateral or
any income thereon or payments with respect thereto, or as to the preservation
of any rights pertaining thereto beyond exercising reasonable care with respect
to the custody of any thereof actually in its possession. Each Pledgor hereby
waives notice of acceptance hereof, and except as otherwise specifically
provided herein or required by provision of law which may not be waived, hereby
waives any and all notices or demands with respect to any exercise by Pledgee
of any rights or powers which it may have or to which it may be entitled with
respect to the Collateral.
20. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall be found to be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby, and this
Agreement shall continue in full force and effect in accordance with its
remaining terms.
21. FURTHER ASSURANCES. Each Pledgor agrees to do such further acts
and things and to execute and deliver to Pledgee such additional conveyances,
assignments, agreements and instruments as Pledgee from time to time may
reasonably require or deem advisable to carry into effect this Agreement or to
further assure and confirm unto Pledgee its rights, powers and remedies
hereunder. Each Pledgor hereby agrees to sign and deliver to Pledgee financing
statements, in form accept able to Pledgee, as Pledgee may from time to time
reasonably request or as are necessary in the opinion of Pledgee to establish
and maintain a valid and perfected security interest in the Collateral and to
pay any filing fees relative thereto. Each Pledgor also authorizes Pledgee, to
the extent permitted by law, to file such financing statements without the
signature of such Pledgor and further authorizes Pledgee, to the extent
permitted by law, to file a photographic or other reproduction of this
Agreement or of a financing statement in lieu of a financing statement.
22. HEADINGS. The Article and/or Section headings in this Agreement
are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
23. RELEASE. Pledgee agrees to release its security interest in all or
any part of the Collateral, as the case may be, upon satisfaction of all of the
following conditions precedent:
(a) That the documents to effect such release be prepared by Pledgors'
counsel, in form and sub stance reasonably satisfactory to Pledgee, at the
expense of Pledgors;
(b) That the Obligations secured by the pledge of that portion of the
Collateral to be released shall have been fully paid;
(c) That (i) all costs, fees, expenses and other sums paid or incurred
by or on behalf of Pledgee in exercising any of its rights, powers,
options, privileges and remedies hereunder or under the Credit Agreement,
including, without limitation, reasonable attorneys' fees and
disbursements, and (ii) any and all other obligations and liabilities of
Pledgors to Pledgee arising out of or in connection with or otherwise
related to this Agreement shall have been fully paid; and
(d) There shall be remaining, after giving effect to such release, at
least 0.41667 shares of VANTAS pledged to the Pledgee hereunder for every
dollar of Loans outstanding as of the date of such release.
Any release of a portion of the Collateral hereunder shall be made
on a PRO RATA basis in accordance with the amount of Obligations secured by
such Collateral. Any such release and any documents delivered to confirm the
same shall expressly provide that such release is made without recourse and
without any representation or warranty, express or implied (except that
Pledgee shall represent that such release has been and is duly authorized,
that all necessary consents to the execution and delivery thereof have been
obtained and that it has not assigned or encumbered the Collateral or its
interest therein). If the Collateral is so released, Pledgee, at the request
and sole cost and expense of Pledgors will execute and deliver to Pledgors a
proper instrument or instruments acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver,
without recourse and without any representation or warranty, express or implied
(except that Pledgee shall represent that such release has been and is
duly authorized, that all necessary consents to the execution and delivery
thereof have been obtained and that it has not assigned or encumbered the
Collateral or its interest therein), to Pledgors such of the Collateral as may
be in the possession of Pledgee and as has not theretofore been sold or other
wise applied or released pursuant to this Agreement, together with any moneys
at the time held by Pledgee hereunder and not applied to the payment of the
Obligations. Notwithstanding the foregoing, the Pledgor may obtain a release
of (x) up to 759,943 shares of Capital Stock of VANTAS without complying with
the provisions of clause (b) above so long as such shares are transferred by
Pledgor to Vantacq immediately after such release, and (y) the Collateral
consisting of the equity interests in Vantacq pledged hereunder without
complying with the provisions of clause (b) above so long as the Pledgor
shall have delivered the Vantacq Loan Documents to Pledgee in accordance with
the terms of the Credit Agreement.
24. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
contracts entered into and to be performed entirely within such State and
without regard to the conflicts or choice of laws rules of such State. This
Agreement, together with the Credit Agreement and the other Loan Documents, set
forth the entire understanding of the parties hereto and thereto with respect to
the subject matter hereof and thereof and supersedes all prior agreements and
understandings, whether oral or written, relating thereto.
25. MISCELLANEOUS.
(a) In enforcing any rights hereunder or under the Credit Agreement,
Pledgee shall not be required to resort to any particular security, right
or remedy through foreclosure or otherwise or to proceed in any particular
order of priority, or otherwise act or refrain from acting, and, to the
extent permitted by law, each Pledgor hereby waives and releases any right
to a marshalling of assets or a sale in inverse order of alienation.
(b) Whenever any payment or performance of any obligation hereunder
shall be due on a day which is not a Business Day, such payment or
performance shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the time period
within which such payment may be made or performance rendered without an
Event of Default occurring hereunder.
(c) Except as set forth in Section 14.15 of the Credit Agreement, each
Pledgor hereby waives any claim for monetary damages against Pledgee which
it may have based on any assertion that Pledgee has unreasonably withheld
or unreasonably delayed any determination, consent or approval hereunder,
and each Pledgor agrees that its sole remedy shall be an action or
proceeding to enforce any such provision or for specific performance,
injunction or declaratory judgment with respect thereto. In the event of
such a determination in favor of any Pledgor(s) in an action or proceeding
seeking only the relief permitted hereunder, the requested determination,
consent or approval shall be deemed to have been granted. However, Pledgee
shall have no liability to any Pledgor for its refusal or failure to give
such determination, consent or approval.
(d) Pledgee agrees at any time and from time to time upon not less
than ten (10) Business Days' prior notice by Pledgors to execute,
acknowledge and deliver to Pledgors or any other party specified by
Pledgors a statement in writing certifying that this Agreement is
unmodified and in full force and effect (or if there have been
modifications, that the same, as modified, is in full force and effect and
stating the modifications), and stating whether or not to the best
knowledge of Pledgee there is a continuing Event of Default, and, if so,
specifying each such Event of Default.
(e) Each Pledgor agrees at any time and from time to time upon not
less than ten (10) Business Days' prior notice by Pledgee to execute,
acknowledge and deliver to Pledgee, or any other party specified by
Pledgee, a statement in writing certifying that this Agreement is
unmodified and in full force and effect (or if there have been
modifications, that the same, as modified, is in full force and effect and
stating the modifications) and stating whether or not to the best
knowledge of Pledgors there is a continuing Default or Event of Default,
and, if so, specifying each such Event of Default.
[THE REMAINDER OF THIS PAGE
IS INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement in the City of New York as of the day and year first above written.
PLEDGORS:
RECKSON SERVICE INDUSTRIES, INC.
By: _____________________
Name:
Title:
RSI-OSA HOLDINGS, INC.
By: _____________________
Name:
Title:
RSI ONSITE HOLDINGS LLC
By: Reckson Service Industries,
Inc., its managing member
By: _____________________
Name:
Title:
RSI I/O HOLDINGS, INC.
By: _____________________
Name:
Title:
RECKSON OFFICE CENTERS, LLC
By: RSI I/O Holdings, Inc.,
its managing member
By: _____________________
Name:
Title:
<PAGE>
PLEDGEE:
UBS AG, STAMFORD BRANCH, as
Administrative Agent for the Lenders
By: _____________________
Name:
Title:
By: _____________________
Name:
Title:
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 1
LIST OF PLEDGORS
NAME: STATE OF FORMATION/INCORPORATION:
- ----- ---------------------------------
<S> <C>
Reckson Service Industries, Inc. Delaware
RSI-OSA Holdings, Inc. Delaware
RSI OnSite Holdings, LLC Delaware
RSI I/O Holdings, Inc. Delaware
Reckson Office Centers LLC Delaware
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 2
LIST OF OWNERSHIP INTERESTS
<S> <C> <C>
Name of Pledged Entity Current Equity Interest Governing Documents
and the Holder Thereof
VANTAS, Incorporated, a 4,694,560 shares of Amended and Restated Arti-
Nevada corporation Series A Convertible cles of Incorporation
Preferred Stock owned
by RSI I/O Holdings, Fifth Amended and Restated
Inc. which are convert- Certificate of Designation
ible to common shares of VANTAS Incorporated
representing ___% of
the equity interests in Second Amended and Restated
such company Certificate of Designation
of VANTAS Incorporated
626,202 shares of Series
B Convertible Pre- Amended and Restated Cer-
ferred Stock owned by tificate of Designation of
RSI I/O Holdings, Inc. VANTAS Incorporated
which are convertible
to common shares repre- Amended and Restated Cer-
senting ___% of the tificate of Designation of
equity interests in VANTAS Incorporated
such company
Certificate of Designation
1,318,633 shares of of VANTAS Incorporated
Series C Convertible
Preferred Stock owned Restated By-Laws
by Reckson Office Cen-
ters LLC which are con-
vertible to common
shares representing
___% of the equity in-
terests in such company
3,711,287 shares of Series
D Convertible Preferred
Stock owned by RSI I/O
Holdings, Inc. which are
convert ible to common
shares representing ___%
of the equity interests in
such company
143,101 shares of Series D
Convertible Preferred
Stock owned by Reckson
Office Centers LLC which
are convertible to common
shares representing ___%
of the equity interests in
such company
719,184 shares of Common
Stock owned by RSI I/O
Holdings, Inc.
OnSite Access, Inc., 8,859,315 shares of Certificate of Incorpora-
a Delaware corporation Series B Redeemable tion
Preferred Stock owned
Preferred Stock owned
by RSI OnSite Holdings By-Laws
LLC
4,511,473 shares of
Series C Convertible
Preferred Stock owned by
RSI OnSite Holdings LLC
which are convertible to
common shares representing
___% of the equity
interests in such company
5,869,000 shares of Series
A Convertible Preferred
Stock owned by RSI-OSA
Holdings, Inc. which are
convertible to common
shares representing ___% of
the equity interests in
such company
2,597,396 shares of Common
Stock owned by RSI-OSA
Holdings, Inc.
RSI OnSite Holdings LLC 100% of membership Certificate of Formation,
interests as amended
Operating Agreement
RSI-OSA Holdings Inc. 100 shares of Common Certificate of Incorpora-
Stock (100% of all issued tion, as amended
& outstanding shares)
By-Laws
RSI I/O Holdings, Inc. 100 shares of Common Certificate of Incorpora-
Stock (100% of all issued tion, as amended
& outstanding shares)
By-Laws
Reckson Office Centers 100% of membership Certificate of Formation,
LLC interests as amended
Operating Agreement
VANTACQ, LLC 100% of membership Certificate of Formation,
interests as amended
Operating Agreement
</TABLE>
<PAGE>
SCHEDULE 3
OUTSTANDING STOCK OPTIONS
AND SHAREHOLDER AGREEMENTS
(See Schedule 7.1-C of the Credit Agreement)
Exhibit 10.3
INTEREST RATE CAP AGREEMENT
PLEDGE AND SECURITY AGREEMENT
between
RECKSON SERVICE INDUSTRIES, INC.
as Pledgor
and
UBS AG, STAMFORD BRANCH,
as Administrative Agent
as Pledgee
Dated as of November 30, 1999
<PAGE>
INTEREST RATE CAP AGREEMENT
PLEDGE AND SECURITY AGREEMENT
INTEREST RATE CAP AGREEMENT PLEDGE AND SECURITY AGREEMENT, dated as of
November 30, 1999 (this "Pledge Agreement"), by and between RECKSON SERVICE
INDUSTRIES, INC., a Delaware corporation ("Pledgor"), as pledgor, having an
address at 250 Broadhollow Road, Melville, New York 11747, and UBS AG, STAMFORD
BRANCH, as Administrative Agent, as pledgee (together with its successors and
assigns, "Pledgee"), having an address at 299 Park Avenue, New York, New York
10171.
W I T N E S S E T H:
--------------------
WHEREAS, Pledgor, Pledgee and certain Lenders have entered into a
Credit Agreement (the "Credit Agreement") dated as of the date hereof pursuant
to which the Lenders have agreed to make Loans in the aggregate principal amount
of $60,000,000 (the "Loan");
WHEREAS, Pledgor and Warburg Dillon Read (SWAPS) LLC (the
"Counterparty") have entered into an Interest Rate Cap Agreement, dated as of
November 30, 1999 (the "Interest Rate Agreement") and certain Swap Transactions
thereunder (the "Transactions") (a copy of the Interest Rate Agreement,
including the Confirmation (as defined therein) for a Swap Transaction
thereunder, is attached hereto as Exhibit A); and
WHEREAS, Pledgor desires to pledge the Interest Rate Agreement to
Pledgee;
NOW, THEREFORE, in consideration of the foregoing and the Loan to
Pledgor and for other good and valuable consideration, the receipt of which is
hereby acknowledged, Pledgor does hereby agree with Pledgee, as follows:
1. Definitions. Unless the context otherwise requires, capitalized
terms used but not otherwise defined herein shall have the respective meanings
provided therefor in the Credit Agreement, and the following terms shall have
the following meanings:
"Code" shall mean the Uniform Commercial Code, as enacted in the State
of New York, as amended.
"Collateral" shall have the meaning assigned thereto in Section 2
hereof.
2. Grant of Security Interest, Etc. As security for the full and
punctual payment and performance of the Obligations when due (whether upon
stated maturity, by acceleration, early termination or otherwise), Pledgor
hereby pledges, assigns, hypothecates, transfers and delivers to Pledgee and
hereby grants to Pledgee a continuing first priority lien on and security
interest in, to and under all of the following (the "Collateral") whether now
owned or hereafter acquired and whether now existing or hereafter arising: all
of the right, title and interest of Pledgor in and to (i) the Interest Rate
Agreement and the Transactions; (ii) all payments due or to become due to
Pledgor in respect of the Interest Rate Agreement or the Transactions or arising
out of the Interest Rate Agreement or the Transactions, whether as contractual
obligations, damages or otherwise; and (iii) all of Pledgor's claims, rights,
powers, privileges, authority, options, security interests, liens and remedies,
if any, under or arising out of the Interest Rate Agreement or the Transactions,
in each case including all accessions and additions to, substitutions for and
replacements, products and proceeds of any of the foregoing.
3. Powers of Pledgor Prior to an Event of Default. Prior to an Event
of Default, Pledgor shall be entitled to receive and retain all payments
belonging to Pledgor pursuant to the terms of the Interest Rate Agreement and to
exercise all rights, powers and privileges of Pledgor under, and to control the
prosecution of all claims with respect to, the Interest Rate Agreement and the
Transactions and the other Collateral.
4. Representations, Warranties and Covenants. Pledgor hereby covenants
with, and represents and warrants to, Pledgee as follows:
(a) The Interest Rate Agreement is the legal, valid and binding
obligation of Pledgor, enforceable against Pledgor in accordance with its terms.
(b) Pledgor will defend Pledgee's right, title and interest in
and to the Collateral pledged by it pursuant hereto or in which it has granted a
security interest pursuant hereto against the claims and demands of all other
Persons.
(c) The Collateral is free and clear of all Liens of every kind
and nature whatsoever, except such as are created pursuant to this Pledge
Agreement and the other Loan Documents, and Pledgor has the right to pledge and
grant a security interest in the same as herein provided without the consent of
any other Person other than any such consent that has been obtained and is in
full force and effect.
(d) The Collateral has been duly and validly pledged hereunder.
All consents and approvals required for the consummation of the transactions
contemplated by this Pledge Agreement have been obtained.
(e) Pledgor will not sell, assign, or otherwise dispose of, or
mortgage, pledge or grant a security interest in, any of the Collateral or any
interest therein, and any sale, assignment, mortgage, pledge or security
interest whatsoever made in violation of this covenant shall be a nullity and of
no force and effect, and upon demand of Pledgee, shall forthwith be cancelled or
satisfied by an appropriate instrument in writing.
(f) Pledgor covenants and agrees that (i) it will not, without
the prior written consent of Pledgee, modify, amend or supplement the terms of
the Interest Rate Agreement, (ii) it will not, without the prior written consent
of Pledgee, except in accordance with the terms of the Interest Rate Agreement,
cause the termination of the Interest Rate Agreement prior to its stated
maturity date, (iii) it will not, without the prior written consent of Pledgee,
except as aforesaid, waive or release any obligation of the Counterparty (or any
successor or substitute party to the Interest Rate Agreement) under the Interest
Rate Agreement, (iv) it will not, without the prior written consent of Pledgee,
consent or agree to any act or omission to act on the part of the Counterparty
(or any successor or substitute party to the Interest Rate Agreement), which,
without such consent or agreement, would constitute a default under the Interest
Rate Agreement, (v) it will not fail to exercise promptly and diligently each
and every right which it may have under the Interest Rate Agreement, (vi) it
will not take or omit to take any action or suffer or permit any action to be
omitted or taken, the taking or omission of which would result in any right of
offset against sums payable under the Interest Rate Agreement or any defense by
the Counterparty (or any successor or substitute party to the Interest Rate
Agreement), to payment, and (vii) it will give prompt notice to Pledgee of any
notice of default given by or to Pledgor under or with respect to the Interest
Rate Agreement, together with a complete copy of such notice.
(g) The chief executive office of Pledgor is 250 Broadhollow
Road, Melville, New York 11747. Pledgor will not change such chief executive
office unless Pledgor shall provide Pledgee with written notice thereof within
thirty (30) days after such change (but in any event, within the period required
pursuant to the Code in order to maintain the priority and perfection of the
Liens created hereunder) and there shall have been taken such action, reasonably
satisfactory to Pledgee, as may be necessary to maintain the Liens in favor of
Pledgee hereunder at all times fully perfected and in full force and effect as
first priority Liens. Pledgor shall not change its name unless such Pledgor
shall have given Pledgee written notice thereof within thirty (30) days after
such change (but in any event, within the period required pursuant to the Code
in order to maintain the priority and perfection of the Liens created hereunder)
and shall have taken such action, reasonably satisfactory to Pledgee, as may be
necessary to maintain the Liens of Pledgee in the Collateral granted hereunder
at all times fully perfected and in full force and effect as first priority
Liens.
(h) Giving effect to the aforesaid grant and assignment to
Pledgee, Pledgee has, as of the date of this Pledge Agreement, and as to
Collateral acquired from time to time after such date, shall have, a valid, and
upon proper filing, perfected and continuing first priority lien upon and
security interest in the Collateral.
(i) Except for financing statements filed or to be filed in favor
of Pledgee as secured party, there are no financing statements under the Code
covering any or all of the Collateral and Pledgor will not, without the prior
written consent of Pledgee, until payment in full of all of the Obligations,
execute and file in any public office, any enforceable financing statement or
statements covering any or all of the Collateral, except financing statements
filed or to be filed in favor of Pledgee as secured party.
5. Intentionally Omitted.
6. Remedies. (i) Subject to the provisions of the Interest Rate
Agreement, if an Event of Default shall occur and then be continuing:
(a) Pledgee, without obligation to resort to any other security,
right or remedy granted under any other agreement or instrument, shall have the
right to, in addition to all rights, powers and remedies of a secured party
pursuant to the Code, at any time and from time to time, sell, resell, assign
and deliver, in its sole discretion, any or all of the Collateral (in one or
more parcels and at the same or different times) and all right, title and
interest, claim and demand therein and right of redemption thereof, at public or
private sale, for cash, upon credit or for future delivery, and in connection
therewith Pledgee may grant options and may impose reasonable conditions such as
requiring any purchaser to represent that any "securities" constituting any part
of the Collateral are being purchased for investment only, Pledgor hereby
waiving and releasing any and all equity or right of redemption to the fullest
extent permitted by the Code or applicable law. If all or any of the Collateral
is sold by Pledgee upon credit or for future delivery, Pledgee shall not be
liable for the failure of the purchaser to purchase or pay for the same and, in
the event of any such failure, Pledgee may resell such Collateral. It is
expressly agreed that Pledgee may exercise its rights with respect to less than
all of the Collateral, leaving unexercised its rights with respect to the
remainder of the Collateral, provided, however, that such partial exercise shall
in no way restrict or jeopardize Pledgee's right to exercise its rights with
respect to all or any other portion of the Collateral at a later time or times.
(b) Pledgee may exercise, either by itself or by its nominee or
designee, in the name of Pledgor, all of Pledgee's rights, powers and remedies
in respect of the Collateral, hereunder and under law.
(c) Pledgor hereby irrevocably, in the name of Pledgor or
otherwise, authorizes and empowers Pledgee and assigns and transfers unto
Pledgee, and constitutes and appoints Pledgee its true and lawful
attorney-in-fact, and as its agent, irrevocably, with full power of substitution
for Pledgor and in the name of Pledgor, provided that Pledgee shall only
exercise such powers and rights during the continuance of an Event of Default,
(i) to exercise and enforce every right, power, remedy, authority, option and
privilege of Pledgor under the Interest Rate Agreement and the Transaction,
including any power to subordinate or modify the Interest Rate Agreement or the
Transactions, or to give any notices, or to take any action resulting in such
subordination, termination, cancellation or modification, and (ii) in order to
more fully vest in Pledgee the rights and remedies provided for herein, to
exercise all of the rights, remedies and powers granted to Pledgee in this
Pledge Agreement, and Pledgor further authorizes and empowers Pledgee, as
Pledgor's attorney-in-fact, and as its agent, irrevocably, with full power of
substitution for Pledgor and in the name of Pledgor, provided that Pledgee shall
only exercise such powers and rights during the continuance of an Event of
Default, to give any authorization, to furnish any information, to make any
demands, to execute any instruments and to take any and all other action on
behalf of and in the name of Pledgor which in the judgment of Pledgee reasonably
exercised may be necessary or appropriate to be given, furnished, made,
exercised or taken under the Interest Rate Agreement and the Transactions, in
order to comply therewith, to perform the conditions thereof or to prevent or
remedy any default by Pledgor thereunder or to enforce any of the rights of
Pledgor thereunder. This power-of-attorney is irrevocable and coupled with an
interest, and any similar or dissimilar powers heretofore given by Pledgor in
respect of the Collateral to any other Person are hereby revoked.
(d) Pledgee may, without notice to, or assent by, Pledgor or any
other Person (to the extent permitted by law), but without affecting any of the
Obligations, in the name of Pledgor or in the name of Pledgee, notify the
Counterparty, or if applicable, any other party to the Interest Rate Agreement
or the Transactions, to make payment and performance directly to Pledgee; extend
the time of payment and performance of, compromise or settle for cash, credit or
otherwise, and upon any terms and conditions, any obligations owing to Pledgor,
or claims of Pledgor, under the Interest Rate Agreement or the Transactions;
file any claims, commence, maintain or discontinue any actions, suits or other
proceedings deemed by Pledgee necessary or advisable for the purpose of
collecting upon or enforcing the Interest Rate Agreement and the Transactions;
and execute any instrument and do all other things deemed necessary and proper
by Pledgee to protect and preserve and realize upon the Collateral and the other
rights contemplated hereby.
(e) Pursuant to the power-of-attorney provided for above, Pledgee
may take any action and exercise and execute any instrument which it may deem
necessary or advisable to accomplish the purposes hereof; provided, however,
that Pledgee shall not be permitted to take any action pursuant to said
power-of-attorney that would conflict with any limitation on Pledgee's rights
with respect to the Collateral. Without limiting the generality of the
foregoing, Pledgee, after the occurrence of an Event of Default, shall have the
right and power to receive, endorse and collect all checks and other orders for
the payment of money made payable to Pledgor representing: (i) any payment of
obligations owed pursuant to the Interest Rate Agreement or the Transactions,
(ii) interest accruing on any of the Collateral or (iii) any other payment or
distribution payable in respect of the Collateral or any part thereof, and for
and in the name, place and stead of Pledgor, to execute endorsements,
assignments or other instruments of conveyance or transfer in respect of any
property which is or may become a part of the Collateral hereunder.
(f) Pledgee may exercise all of the rights and remedies of a
secured party under the Code.
(g) Without limiting any other provision of this Pledge
Agreement, and without waiving or releasing Pledgor from any obligation or
default hereunder, Pledgee shall have the right, but not the obligation, to
perform any act or take any appropriate action, as it, in its reasonable
judgment, may deem necessary to cure such Event of Default or cause any term,
covenant, condition or obligation required under this Pledge Agreement, the
Interest Rate Agreement or the Transactions to be performed or observed by
Pledgor to be promptly performed or observed on behalf of Pledgor or to protect
the security of this Pledge Agreement. All amounts advanced by, or on behalf of,
Pledgee in exercising its rights under this Section 6 (including, but not
limited to, reasonable legal expenses and disbursements incurred in connection
therewith), together with interest thereon at the Default Rate (as defined in
the Note) (if such advanced amounts have not been reimbursed to Pledgee within
ten (10) days of demand on Pledgor therefor) from the date of each such advance,
shall be payable by Pledgor to Pledgee upon demand and shall be secured by this
Pledge Agreement.
7. Sales of Collateral. No demand, advertisement or notice, all of
which are hereby expressly waived by Pledgor, shall be required in connection
with any sale or other disposition of all or any part of the Collateral, except
that Pledgee shall give Pledgor at least ten (10) days' prior written notice of
the time and place of any public sale or of the time when the place where any
private sale or other disposition is to be made, which notice Pledgor hereby
agrees is reasonable, all other demands, advertisements and notices being hereby
waived. To the extent permitted by law, Pledgee shall not be obligated to make
any sale of the Collateral if it shall determine not to do so, regardless of the
fact that notice of sale may have been given, and Pledgee may without notice or
publication adjourn any public or private sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. Upon each private sale of the Collateral of a type customarily sold
in a recognized market and upon each public sale, unless prohibited by any
applicable statute which cannot be waived, Pledgee (or its nominee or designee)
may purchase any or all of the Collateral being sold, free and discharged from
any trusts, claims, equity or right of redemption of Pledgor, all of which are
hereby waived and released to the extent permitted by law, and may make payment
therefor by credit against any of the Obligations in lieu of cash or any other
obligations. In the case of all sales of the Collateral, public or private,
Pledgor will pay all reasonable costs and expenses of every kind for sale or
delivery, including brokers' and attorneys' fees and disbursements and any tax
imposed thereon. However, the proceeds of sale of Collateral shall be available
to cover such costs and expenses, and, after deducting such costs and expenses
from the proceeds of sale, Pledgee shall apply any residue to the payment of the
Obligations.
8. Public Sales Not Possible. Pledgor acknowledges that the terms of
the Interest Rate Agreement may prohibit public sales, that the Collateral may
not be of the type appropriately sold at public sales, and that such sales may
be prohibited by law. In light of these considerations, Pledgor agrees that
private sales of the Collateral shall not be deemed to have been made in a
commercially unreasonably manner by mere virtue of having been made privately.
9. Receipt of Sale Proceeds. Upon any sale of the Collateral by
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt by Pledgee or the
officer making the sale of the proceeds of such sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold, and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to Pledgee or such officer or be answerable
in any way for the misapplication or non-application thereof.
10. Events of Default. An "Event of Default" shall exist if any of the
following shall have occurred:
(a) The failure by Pledgor to comply with any of its covenants or
agreements under this Pledge Agreement, where such failure continues for ten
(10) days after Pledgee delivers written notice thereof to Pledgor. If cure of
such failure cannot be effected within such ten (10) day period despite
Pledgor's diligence in prosecuting such cure, the cure period shall be extended
to such time as may be reasonably necessary to cure such failure; provided,
however, that in no event shall such extended period exceed sixty (60) days.
(b) An Event of Default shall occur under the Credit Agreement.
11. Waivers; Modifications. No delay on the part of Pledgee in
exercising any of its options, powers or rights, or partial or single exercise
thereof, shall constitute a waiver thereof. None of the terms and conditions of
this Pledge Agreement may be discharged, changed, waived, modified or varied in
any manner unless in a writing duly signed by the parties hereto.
12. Remedies Cumulative. All rights and remedies afforded to Pledgee
by reason of this Pledge Agreement are separate and cumulative remedies, and
shall be in addition to all other rights and remedies in favor of Pledgee
existing at law or in equity or otherwise. No one of such remedies, whether or
not exercised by Pledgee, shall be deemed to exclude, limit or prejudice the
exercise of any other legal or equitable remedy or remedies available to
Pledgee.
13. Notices. Any notice, election, request or demand which by any
provision of this Pledge Agreement is required or permitted to be given or
served hereunder shall be in writing and shall be given or served in accordance
with the Credit Agreement.
14. Jurisdiction, Etc. Any legal action or proceeding with respect to
this Pledge Agreement 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 Pledge Agreement, Pledgor and Pledgee each hereby accepts for
itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and appellate courts from any
thereof. Pledgor and Pledgee each 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
Pledgor or Pledgee, as the case may be, at its address for notices set forth
herein. Pledgor and Pledgee each 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 Pledge
Agreement 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 Pledgee to serve process in any
other manner permitted by law.
15. Successors and Assigns. This Pledge Agreement, and all
representations, warranties and covenants of Pledgor made herein, shall be
binding upon and inure to the benefit of Pledgor and its successors and assigns.
This Pledge Agreement shall be binding upon and shall inure to the benefit of
Pledgee and its successors and assigns.
16. Pledgee Not Bound.
(a) This Pledge Agreement shall not be construed as creating a
partnership or joint venture agreement between Pledgee and Pledgor.
(b) Pledgee shall not be obligated to perform or discharge any
obligation of Pledgor as a result of the collateral assignment hereby effected.
(c) The acceptance by Pledgee of this Pledge Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate Pledgee to appear in or defend any action or proceeding
relating to the Collateral to which it is not a party, or to take any action
hereunder or thereunder, or to expend any money or incur any expenses or perform
or discharge any obligation, duty or liability under the Collateral.
17. Acts of Pledgee. All Collateral at any time delivered to Pledgee
pursuant hereto shall be held by Pledgee subject to the terms, covenants and
conditions herein set forth. Neither Pledgee nor any of its respective
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by such party or parties relative to any of the Collateral,
except for such party's or parties' own gross negligence or willful misconduct
or breach of this Pledge Agreement. Pledgee shall be entitled to rely in good
faith upon any writing or other document, telegram or telephone conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper person or persons, and, with respect to any legal
matter, Pledgee may rely in acting or in refraining from acting upon the advice
of counsel selected by it concerning all matters hereunder. Pledgor hereby
agrees to indemnify and hold harmless Pledgee and any of its directors,
officers, agents or employees (collectively, the "Indemnified Parties") from and
against any and all claims, demands, losses, judgments and liabilities of
whatsoever kind or nature without limitation, arising out of or resulting from
this Pledge Agreement or the exercise by Pledgee of any right or remedy granted
to it hereunder, such as administering, selling or disposing of the property of
Pledgor, including, without limitation, the Collateral, and to reimburse, within
ten (10) days after demand therefor, Pledgee for all costs and expenses,
including reasonable attorneys' fees and disbursements, together with interest
on such sums at the Default Rate (as defined in the Note), from the date such
expenses were paid by Pledgee and demand for payment made to Pledgor to the date
of payment to Pledgee of such sums (other than those claims, demands, losses,
judgments, liabilities or costs and expenses resulting from Pledgee's gross
negligence or willful misconduct or breach of this Pledge Agreement). In any
action to enforce this Pledge Agreement, the provisions of this Section shall,
to the extent permitted by law, prevail notwithstanding any provision of
applicable law respecting the recovery of costs, disbursements and allowances to
the contrary.
18. Custody of Collateral; Notice of Exercise of Remedies. Pledgee
shall not have any duty as to the collection or protection of the Collateral or
any income thereon or payments with respect thereto, or as to the preservation
of any rights pertaining thereto beyond exercising reasonable care with respect
to the custody of any thereof actually in its possession. Pledgor hereby waives
notice of acceptance hereof. Pledgor hereby acknowledges and agrees that ten
(10) days notice for the scheduling of a sale of the Collateral shall be deemed
to be commercially reasonable and sufficient.
19. Severability. In case any one or more of the provisions contained
in this Pledge Agreement shall be found to be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired
thereby, and this Pledge Agreement shall continue in full force and effect in
accordance with its remaining terms.
20. Further Assurances. Pledgor agrees to do such further acts and
things and to execute and deliver to Pledgee such additional conveyances,
assignments, agreements and instruments as Pledgee from time to time may
reasonably require to carry into effect this Pledge Agreement or to further
assure and confirm unto Pledgee its rights, powers and remedies hereunder.
Pledgor hereby agrees to sign and deliver to Pledgee such financing statements,
in form reasonably acceptable to Pledgee, as Pledgee may from time to time
reasonably request or as are necessary in the reasonable opinion of Pledgee to
establish and maintain a valid and perfected security interest in the Collateral
and to pay any filing fees relative thereto. Pledgor also authorizes Pledgee, to
the extent permitted by law, to file such financing statements without the
signature of Pledgor and further authorizes Pledgee, to the extent permitted by
law, to file a photographic or other reproduction of this Pledge Agreement or of
a financing statement in lieu of a financing statement.
21. Release. The security interest in the Collateral granted to
Pledgee hereunder shall be released upon satisfaction of all of the following
conditions precedent:
(a) That the principal amount of and interest on the Note and any
costs or fees relative thereto and the other Obligations, shall have been fully
paid and satisfied, and any accrued interest thereon as provided in the Loan
Documents shall have been fully paid; and
(b) That all costs, fees, expenses and other sums paid or
incurred by or on behalf of Pledgee in exercising any of its rights, powers,
options, privileges and remedies hereunder or, with respect to the Obligations,
under any of the Loan Documents, including, without limitation, reasonable
attorneys' fees and disbursements, plus any accrued interest thereon as provided
in the Loan Documents shall have been fully paid.
In connection with any release of Collateral pursuant to this
Section 21, Pledgee shall execute such documents as may be reasonably requested
by Pledgor to acknowledge such release. Any documents delivered to confirm such
release shall be prepared by counsel for Pledgee at the reasonable expense of
Pledgor and shall expressly provide that such confirmation is without recourse
and without any representation or warranty, express or implied (except that
Pledgee shall represent that such document has been and is duly authorized, that
all necessary consents to the execution and delivery thereof have been obtained
and that it has not assigned or encumbered the Collateral). If the Collateral is
released in its entirety, Pledgee, at the request and sole cost and expense of
Pledgor made at the time of any such release, will execute and deliver to
Pledgor a proper instrument or instruments acknowledging the satisfaction and
termination of this Pledge Agreement, and will duly assign and transfer, without
recourse and without any representation or warranty, express or implied (except
that Pledgee shall represent that such termination and such assignment and
transfer has been and is duly authorized, that all necessary consents to the
execution and delivery thereof have been obtained and that it has not assigned
or encumbered the Collateral), the Collateral (and deliver so much thereof as
shall be in its possession and as has not theretofore been sold or otherwise
applied or released pursuant to this Pledge Agreement, together with any monies
at the time held by Pledgee hereunder and not applied to the payment of the
Obligations to Pledgor).
22. Governing Law. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE AND WITHOUT REGARD TO THE CONFLICTS OR CHOICE OF LAWS RULES OF SUCH STATE.
THIS PLEDGE AGREEMENT SETS FORTH THE ENTIRE UNDERSTANDING OF THE PARTIES HERETO
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS
AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING THERETO.
23. Miscellaneous.
(a) In enforcing any rights hereunder Pledgee shall not be
required to resort to any particular security, right or remedy through
foreclosure or otherwise or to proceed in any particular order of priority, or
otherwise act or refrain from acting, and, to the extent permitted by law,
Pledgor hereby waives and releases any right to a marshaling of assets or a sale
in inverse order of alienation.
(b) Pledgee agrees at any time and from time to time upon not
less than ten (10) days' prior notice by Pledgor to execute, acknowledge and
deliver to Pledgor or any other party specified by Pledgor a statement in
writing certifying that this Pledge Agreement is unmodified and in full force
and effect (or if there have been modifications, that the same, as modified, is
in full force and effect and stating the modifications), and stating whether or
not to the best knowledge of Pledgee there is a continuing Default or Event of
Default, and, if so, specifying each such Default or Event of Default.
(c) Pledgor agrees at any time and from time to time upon not
less than ten (10) days' prior notice by Pledgee to execute, acknowledge and
deliver to Pledgee or any other party specified by Pledgee, a statement in
writing certifying that this Pledge Agreement is unmodified and in full force
and effect (or if there have been modifications, that the same, as modified, is
in full force and effect and stating the modifications) and stating whether or
not to the best knowledge of Pledgor there is a continuing Default or Event of
Default, and, if so, specifying each such Default or Event of Default.
(d) This Pledge Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Pledge Agreement in the City of New York as of the day and year first above
written.
PLEDGOR:
--------
RECKSON SERVICE INDUSTRIES, INC., a Delaware
corporation
By: ___________________________________
Name:
Title:
PLEDGEE:
--------
UBS AG, STAMFORD BRANCH
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
<PAGE>
Exhibit A
Interest Rate Agreement
Exhibit 10.4
PROMISSORY NOTE
$60,000,000
New York, New York
November 30, 1999
For value received, Reckson Service Industries, Inc., a Delaware
corporation (the "Borrower"), promises to pay to the order of UBS AG, STAMFORD
BRANCH (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
Termination Date (as such term is defined 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 Credit Agreement,
dated as of November 30, 1999, among the Borrower, the institutions from time to
time party thereto, UBS AG, Stamford Branch, as Administrative Agent (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 for
provisions for the prepayment hereof and the acceleration of the maturity hereof
upon the happening of certain events.
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 SERVICE INDUSTRIES, INC., a
Delaware corporation
By: _______________________________
Name:
Title:
<PAGE>
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
