$100,000,000
CREDIT AGREEMENT
Dated as of May 19, 2000
by and among
FIRST WASHINGTON REALTY LIMITED PARTNERSHIP,
as Borrower,
FIRST WASHINGTON REALTY TRUST, INC.,
as Parent,
DEUTSCHE BANK ALEX. BROWN,
as Syndication Agent,
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent
[GRAPHIC OMITTED]
NATIONAL BANK,
as Agent,
FIRST UNION SECURITIES, INC.,
as Sole Book Manager,
and
as Sole Lead Arranger
and
THE FINANCIAL INSTITUTIONS PARTY HERETO
AND THEIR ASSIGNEES UNDER SECTION 13.5.,
as Lenders
<PAGE>
TABLE OF CONTENTS
Article I. Definitions 2
Section 1.1. Definitions 2
Section 1.2. General; References to Times 22
Article II. Credit Facility 23
Section 2.1. Revolving Loans 23
Section 2.2. Letters of Credit 24
Section 2.3. Rates and Payment of Interest on Loans 27
Section 2.4. Number of Interest Periods 28
Section 2.5. Repayment of Loans 28
Section 2.6. Prepayments 28
Section 2.7. Continuation 29
Section 2.8. Conversion 29
Section 2.9. Notes 30
Section 2.10. Voluntary Reductions of the Commitment;
Termination of Commitments From Minimum Borrowing Base 30
Section 2.11. Extension of Termination Date 31
Section 2.12. Expiration or Maturity Date of Letters of Credit Past
Termination Date 31
Section 2.13. Increase of Commitments 31
Article III. Payments, Fees and Other General Provisions 32
Section 3.1. Payments 32
Section 3.2. Pro Rata Treatment 33
Section 3.3. Sharing of Payments, Etc. 33
Section 3.4. Several Obligations 34
Section 3.5. Minimum Amounts 34
Section 3.6. Fees 34
Section 3.7. Computations 35
Section 3.8. Usury 35
Section 3.9. Agreement Regarding Interest and Charges 36
Section 3.10. Statements of Account 36
Section 3.11. Defaulting Lenders 36
Section 3.12. Taxes 37
Article IV. Borrowing Base Properties 38
Section 4.1. Eligibility of Properties 38
Section 4.2. Release of Eligible Properties 40
Section 4.3. Frequency of Calculations of Borrowing Base 41
Section 4.4. Additional Appraisals Required under Applicable Law 41
Article V. Yield Protection, Etc. 41
Section 5.1. Additional Costs; Capital Adequacy 41
Section 5.2. Suspension of LIBOR Loans 43
Section 5.3. Illegality 43
Section 5.4. Compensation. 43
Section 5.5. Affected Lenders 44
Section 5.6. Treatment of Affected Loans 45
Section 5.7. Change of Lending Office 45
Section 5.8. Assumptions Concerning Funding of LIBOR Loans 45
Article VI. Conditions Precedent 46
Section 6.1. Initial Conditions Precedent 46
Section 6.2. Conditions Precedent to All Loans and Letters
of Credit 48
Section 6.3. Conditions Precedent to a Property Becoming A
Borrowing Base Property if Borrower Not
Investment Grade 49
Article VII. Representations and Warranties 51
Section 7.1. Representations and Warranties 51
Section 7.2. Survival of Representations and Warranties, Etc. 56
Article VIII. Affirmative Covenants 57
Section 8.1. Preservation of Existence and Similar Matters 57
Section 8.2. Compliance with Applicable Law and Material Contracts 57
Section 8.3. Maintenance of Property 57
Section 8.4. Conduct of Business 58
Section 8.5. Insurance 58
Section 8.6. Payment of Taxes and Claims 59
Section 8.7. Visits and Inspections 60
Section 8.8. Use of Proceeds; Letters of Credit 60
Section 8.9. Environmental Matters 60
Section 8.10. Books and Records 61
Section 8.11. REIT Status 61
Section 8.12. Exchange Listing 61
Section 8.13. Distributions of Income to the Borrower 61
Section 8.14. Subordination, Nondisturbance and Attornment
Agreements 61
Section 8.15. Further Assurances 62
Section 8.16. Additional Guarantors 62
Article IX. Information 62
Section 9.1. Quarterly Financial Statements 62
Section 9.2. Year-End Statements 63
Section 9.3. Compliance Certificate 63
Section 9.4. Other Information 63
Article X. Negative Covenants 65
Section 10.1. Financial Covenants 65
Section 10.2. Indebtedness 67
Section 10.3. Certain Permitted Investments 68
Section 10.4. Investments Generally 68
Section 10.5. Acquisitions 69
Section 10.6. Liens; Agreements Regarding Liens; Other Matters 69
Section 10.7. Restricted Payments 69
Section 10.8. Merger, Consolidation and Substantial Sales of Assets 70
Section 10.9. No Plan Assets 70
Section 10.10. Fiscal Year 71
Section 10.11. Modifications to Material Contracts 71
Section 10.12. Transactions with Affiliates 71
Section 10.13. Hedging Agreements 71
Article XI. Default 71
Section 11.1. Events of Default 71
Section 11.2. Remedies Upon Event of Default 75
Section 11.3. Remedies Upon Default 76
Section 11.4. Allocation of Proceeds 76
Section 11.5. Collateral Account 76
Section 11.6. Performance by Agent 77
Section 11.7. Rights Cumulative 78
Section 11.8. Recission of Acceleration by Requisite Lenders 78
Article XII. The Agent 78
Section 12.1. Authorization and Action 78
Section 12.2. Agent's Reliance, Etc. 79
Section 12.3. Notice of Defaults 80
Section 12.4. First Union as Lender 80
Section 12.5. Approvals of Lenders 80
Section 12.6. Lender Credit Decision, Etc 81
Section 12.7. Indemnification of Agent 81
Section 12.8. Collateral Matters 82
Section 12.9. Successor Agent 83
Section 12.10. Titled Parties Have No Duties 83
Article XIII. Miscellaneous 84
Section 13.1. Notices 84
Section 13.2. Expenses 85
Section 13.3. Setoff 85
Section 13.4. Waiver of Jury Trial; Arbitration 86
Section 13.5. Successors and Assigns 88
Section 13.6. Amendments 90
Section 13.7. Nonliability of Agent and Lenders 91
Section 13.8. Confidentiality 91
Section 13.9. Indemnification 91
Section 13.10. Termination; Survival 93
Section 13.11. Severability of Provisions 93
Section 13.12. GOVERNING LAW 93
Section 13.13. Counterparts 94
Section 13.14. Obligations with Respect to Loan Parties 94
Section 13.15. Limitation of Liability 94
Section 13.16. Entire Agreement 94
Section 13.17. Construction 94
Section 13.18. Release of Collateral Upon Investment Grade Rating 95
Section 13.19. NO NOVATION 95
SCHEDULE 1.1(A) List of Material Subsidiaries
SCHEDULE 4.1. Initial Borrowing Base Properties
SCHEDULE 7.1(b) Ownership Structure
SCHEDULE 7.1(f) Title to Properties; Liens
SCHEDULE 7.1(g) Existing Indebtedness
SCHEDULE 7.1(h) Material Contracts
SCHEDULE 7.1(i) Litigation
SCHEDULE 7.1(q) Environmental Laws
SCHEDULE 10.13 Hedging Agreements
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Assignment Leases and Rents
EXHIBIT C Form of Borrowing Base Certificate
EXHIBIT D Form of Environmental Indemnity Agreement
EXHIBIT E Form of Guaranty
EXHIBIT F Form of Notice of Borrowing
EXHIBIT G Form of Notice of Continuation
EXHIBIT H Form of Notice of Conversion
EXHIBIT I Form of Subordination, Nondisturbance and
Attornment Agreement
EXHIBIT J Form of Security Deed
EXHIBIT K Form of Revolving Note
EXHIBIT L Form of Extension Request
EXHIBIT M Form of Compliance Certificate
EXHIBIT N Form of Compliance Certificate
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THIS CREDIT AGREEMENT dated as of May 19, 2000 by and among FIRST
WASHINGTON REALTY LIMITED PARTNERSHIP, a limited partnership formed under the
laws of the State of Maryland (the "Borrower"), FIRST WASHINGTON REALTY TRUST,
INC., a corporation organized under the laws of the State of Maryland (the
"Parent"), FIRST UNION NATIONAL BANK, as contractual representative of the
Lenders to the extent and in the manner provided in Article XII. below (in such
capacity, the "Agent"), FIRST UNION SECURITIES, INC., as Sole Lead Arranger and
Book Manager, DEUTSCHE BANK ALEX. BROWN, as Syndication Agent, and PNC BANK,
NATIONAL ASSOCIATION, as Documentation Agent, and each of the financial
institutions initially a signatory hereto together with their assignees pursuant
to Section 13.5.
WHEREAS, pursuant to that certain Revolving Credit Agreement dated as
of January 22, 1998 (as amended and in effect immediately prior to the date
hereof, the "Existing Credit Agreement"), by and among the Borrower, the
financial institutions party thereto as "Banks" (the "Existing Banks"), and UBS
AG, New York Branch, successor to Union Bank of Switzerland (New York Branch),
as Agent (the "Existing Agent"), the Existing Banks and the Existing Agent made
a $51,000,000 credit facility available to the Borrower;
WHEREAS, the Existing Lenders, the Existing Agent, the Borrower and
First Union have entered into that certain Assignment and Acceptance Agreement
dated as of the date hereof (the "UBS Assignment Agreement") pursuant to which
such parties provided for, among other things, (a) the assignment by the
Existing Lenders to First Union of a portion of the Existing Lenders' rights and
obligations under the Existing Credit Agreement and the Notes and other Loan
Documents (as each such term is defined in the Existing Credit Agreement) and
(b) the replacement of the Existing Agent with the Agent;
WHEREAS, First Union, the Lenders, the Agent and the Borrower have
entered into that certain Assignment Agreement dated as of the date hereof (the
"First Union Assignment Agreement") pursuant to which such parties provided for,
among other things, (a) the assignment by First Union to certain Lenders of a
proportionate amount of First Union's rights and obligations under the Existing
Credit Agreement and the Notes and other Loan Documents (as each such term is
defined in the Existing Credit Agreement) and (b) the amendment and restatement
of the Existing Credit Agreement; and
WHEREAS, the parties hereto desire to amend and restate the Existing
Credit Agreement on the terms and conditions contained herein, among other
things, to make available to the Borrower a $100,000,000 secured revolving
credit facility, which includes a $5,000,000 letter of credit facility, on the
terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree that the Existing Credit Agreement is amended and restated in its
entirety as follows:
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ARTICLE I.1 Definitions.
In addition to terms defined elsewhere herein, the following terms
shall have the following meanings for the purposes of this Agreement:
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Acquisition" means the acquisition by the Parent directly, or
indirectly through the Borrower or any of its other Subsidiaries, in one or a
series of related transactions, and regardless of the form of such transactions
or series of transactions, of (a) any assets of another Person or (b) Equity
Interest of another Person, whether by purchase of such Equity Interest or upon
the exercise of an option or warrant for, or conversion of securities into, such
Equity Interest. For purposes of this definition a series of transactions will
be considered to be "related" if the transactions are in effect a series of
steps in an integrated transaction or are otherwise interdependent steps with
common legal or business significance.
"Additional Costs" has the meaning given that term in Section 5.1.
"Adjusted Eurodollar Rate" means, with respect to each Interest Period
for any LIBOR Loan, the rate obtained by dividing (a) LIBOR for such Interest
Period by (b) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserves, if any, required to be maintained against
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or against any other category of
liabilities which includes deposits by reference to which the interest rate on
LIBOR Loans is determined or any category of extensions of credit or other
assets which includes loans by an office of any Lender outside of the United
States of America to residents of the United States of America).
"Adjusted Net Operating Income" means, with respect to a Borrowing Base
Property and for a given period, the sum of the following (without duplication):
(a) rents and other revenues received in the ordinary course from operating such
Property (including proceeds of rent loss insurance but excluding pre-paid rents
and revenues and security deposits except to the extent applied in satisfaction
of tenants' obligations for rent) minus (b) all expenses paid or accrued related
to the ownership, operation or maintenance of such Borrowing Base Property,
including but not limited to taxes, assessments and other similar charges,
insurance, utilities, payroll costs, maintenance, repair and landscaping
expenses, and on-site marketing expenses minus (c) an imputed management fee in
the amount of two and one-half of one percent (2.5%) of the total gross revenues
for such Property for such period minus (or plus as appropriate) (d)
straight-line rent leveling adjustments required to be made in accordance with
GAAP with respect to rents received in respect of such Property during such
period minus (e) the Reserves for Capital Expenditures for such Property as of
the end of such period.
"Affiliate" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
the Borrower; (b) directly or indirectly owning or holding five percent (5.0%)
or more of any equity interest in the Borrower; or (c) five percent (5.0%) or
more of whose voting stock or other equity interest is directly or indirectly
owned or held by the Borrower. For purposes of this definition, "control"
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(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with") means the possession directly or indirectly of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or by contract or
otherwise. The Affiliates of a Person shall include any officer or director of
such Person.
"Agent" means First Union National Bank, as contractual representative
for the Lenders under the terms of this Agreement, and any of its successors and
assigns.
"Agreement Date" means the date as of which this Agreement is dated.
"Appraisal" means, in respect of any Property, an M.A.I. appraisal
commissioned by and addressed to the Agent (acceptable to Agent as to form,
substance and appraisal date), prepared by a professional appraiser acceptable
to the Agent, having at least the minimum qualifications required under
Applicable Law governing the Agent and the Lenders, including FIRREA, and
determining the "as is" market value of such Property as between a willing buyer
and a willing seller.
"Appraised Value" means, with respect to any Property, the "as is"
market value of such Property as reflected in the then most recent Appraisal of
such Property as the same may have been reasonably adjusted by the Agent based
upon its internal review of such Appraisal which is based on criteria and
factors then generally used and considered by the Agent in determining the value
of similar properties, which review shall be conducted prior to acceptance of
such Appraisal by the Agent.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" means:
(a) during any period for which the Borrower has not received an
Investment Grade Rating from the Rating Agencies, the percentage rate set forth
below corresponding to the Borrowing Base Leverage Ratio in effect at such time:
Borrowing Base Aplicable Margin Applicable Margin
Level Leverage Ratio for Libor Loans for Base Rate Loans
===== ============== ================ ===================
1 Less than or equal 1.35% 0.0%
to 0.35 to 1.00
2 Greater than 0.35 1.50% 0.0%
to 1.00
The Applicable Margin shall be determined by the Agent under this clause (a)
from time to time, based on the Borrowing Base Leverage Ratio as set forth in
the Compliance Certificate most recently delivered by the Borrower pursuant to
Section 9.3. Any adjustment to the Applicable Margin shall be effective (i) in
the case of a Compliance Certificate delivered in connection with quarterly
financial statements of the Borrower delivered pursuant to Section 9.1., as of
the date 50 days following the end of the last day of the applicable fiscal
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period covered by such ComplianceCertificate, (ii) in the case of a Compliance
Certificate delivered in connection with annual financial statements of the
Parent delivered pursuant to Section 9.2., as of the date 90 days following the
end of the last day of the applicable fiscal period covered by such Compliance
Certificate, and (iii) in the case of any other Compliance Certificate, as of
the date 5 Business Days following the Agent's request for such Compliance
Certificate. Notwithstanding the foregoing, for the period from the Effective
Date through but excluding the date on which the Agent first determines the
Applicable Margin as set forth above, the Applicable Margin for LIBOR Loans
shall equal 1.35%. Thereafter, the Applicable Margin shall be adjusted from time
to time as set forth above; or
(b) during any period for which the Borrower has received an Investment
Grade Rating from the Rating Agencies, the percentage per annum determined, at
any time, based on the range into which the Borrower's Credit Rating then falls,
in accordance with the table set forth below. Any change in the Borrower's
Credit Rating which would cause it to move to a different level in the table
shall effect a change in the Applicable Margin on the Business Day immediately
following the date on which such change occurs. During any period that the
Borrower has received Credit Ratings that are not equivalent, the Applicable
Margin shall be determined by the lower of such two Credit Ratings.
Borrower's Credit Rating Applicable Margin Applicable Margin
Level (S&P/Moody's) for Libor Loans for Base Rate Loans
===== ======================== ================= ===================
1 BBB+/Baa1 (or higher) 1.00% 0.0%
2 BBB/Baa2 1.20% 0.0%
3 BBB-/Baa3 1.30% 0.0%
"Assignee" has the meaning given that term in Section 13.5.(d).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent, substantially in
the form of Exhibit A.
"Assignment of Leases and Rents" means an Assignment of Leases and
Rents executed by a Loan Party in favor of the Agent for the benefit of the
Lenders, substantially in the form of Exhibit B or otherwise in form and
substance satisfactory to the Agent.
"Base Rate" means the per annum rate of interest announced publicly
from time to time by the Agent as its "prime rate". Any change in the Base Rate
resulting from a change in such prime rate shall become effective as of 12:01
a.m. on the Business Day on which each such change occurs. The Base Rate is a
reference rate used by the Agent in determining interest rates on certain loans
and is not necessarily the best or the lowest rate of interest charged by the
Agent or any Lender on any extension of credit to any debtor.
"Base Rate Loan" means a Loan bearing interest at a rate based on the
Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
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<PAGE>
"Borrower" has the meaning set forth in the introductory paragraph
hereof and shall include the Borrower's successors and permitted assigns.
"Borrowing Base" means an amount equal to 60% of the sum of the
Borrowing Base Values of the Borrowing Base Properties; provided, however, to
the extent that the aggregate Borrowing Base Values of all Borrowing Base
Properties owned by Subsidiaries that are not Wholly Owned Subsidiaries would
exceed 20.0% of the Borrowing Base (determined without giving effect to this
proviso), such excess shall be excluded when determining the Borrowing Base.
"Borrowing Base Certificate" means a report in substantially the form
of Exhibit C, certified by the chief financial officer or the controller of the
Borrower, setting forth the calculations required to establish the Borrowing
Base Value for each Borrowing Base Property and the Borrowing Base for all
Borrowing Base Properties as of a specified date, all in form and detail
satisfactory to the Agent.
"Borrowing Base Leverage Ratio" means, at any time, the ratio of (a)
the aggregate principal amount of all outstanding Revolving Loans, together with
the aggregate principal amount of all Letter of Credit Liabilities, to (b) the
Borrowing Base at such time.
"Borrowing Base Property" means a Property which the Agent and the
Requisite Lenders have agreed to include in calculations of the Borrowing Base
pursuant to Section 4.1. A Property shall cease to be a Borrowing Base Property
(a) if at any time it shall cease to be an Eligible Property, or (b) at all
times during which the Borrower does not have an Investment Grade Rating from
the Rating Agencies and either (i) the Agent shall cease to hold a valid and
perfected first priority Lien in such Borrowing Base Property, or (ii) there
shall have occurred and be continuing a default under the Security Deed or
Assignment of Leases and Rents in respect of such Borrowing Base Property.
"Borrowing Base Value" means, with respect to a Borrowing Base
Property, (a) from the date on which such Property first becomes a Borrowing
Base Property through and including the last day of the second complete fiscal
quarter of the Borrower occurring after such date, an amount equal to the
Appraised Value of such Borrowing Base Property, and (b) at all times
thereafter, an amount equal to (i) the Adjusted Net Operating Income of such
Borrowing Base Property for the two most recently ended fiscal quarters of the
Borrower times (ii) 2 divided by (iii) the Capitalization Rate.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which banks in Charlotte, North Carolina are authorized or required to
close and (b) with reference to a LIBOR Loan, any such day that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Capital Expenditures" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets which
are not, in accordance with GAAP, treated as expense items for such Person in
the year made or incurred or as a prepaid expense applicable to a future year or
years.
"Capitalization Rate" means nine and one-half of one percent (9.50%).
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<PAGE>
"Capitalization Value" means, at any time, the sum of (a) Capitalized
EBITDA (except that for purposes of this definition, (i) the aggregate
contribution to Capitalized EBITDA from leasing commissions and management and
development fees shall not exceed 5% of Capitalized EBITDA and (ii) all earnings
and other components of Capitalized EBITDA attributable to any cash and
marketable securities included in Capitalization Value under the immediately
following clause (b) shall be excluded from Capitalized EBITDA), (b) the
Parent's beneficial share of unrestricted cash and marketable securities of the
Parent and its Consolidated Businesses and Unconsolidated Entities, at such
time, as is or would be reflected in the Consolidated Financial Statements at
such time, and (c) without duplication, the Parent's beneficial share of the
cost basis of Properties Under Construction of the Parent and its Consolidated
Businesses and Unconsolidated Entities, as certified by the Borrower, such
certificate to be accompanied by all appropriate documentation supporting such
figure.
"Capitalized EBITDA" means, as of a given date, (a)(i)(A) EBITDA for
the two calendar quarters most recently ended times (B) 2 minus (ii) Reserves
for Capital Expenditures determined for a 365 day period for all Properties of
the Parent, its Subsidiaries and all Unconsolidated Entities divided by (b) the
Capitalization Rate.
"Capitalized Lease Obligation" means obligations under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP. The amount of a Capitalized Lease Obligation is the capitalized amount of
such obligation determined in accordance with GAAP.
"Cash Equivalents" means: (a) securities issued, guaranteed or insured
by the United States of America or any of its agencies with maturities of not
more than one year from the date acquired; (b) certificates of deposit with
maturities of not more than one year from the date acquired issued by a United
States federal or state chartered commercial bank of recognized standing, which
has capital and unimpaired surplus in excess of $500,000,000.00 and which bank
or its holding company has a short-term commercial paper rating of at least A-2
or the equivalent by S&P or at least P-2 or the equivalent by Moody's; (c)
reverse repurchase agreements with terms of not more than seven days from the
date acquired, for securities of the type described in clause (a) above and
entered into only with commercial banks having the qualifications described in
clause (b) above; (d) commercial paper issued by any Person incorporated under
the laws of the United States of America or any State thereof and rated at least
A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof
by Moody's, in each case with maturities of not more than one year from the date
acquired; and (e) investments in money market funds registered under the
Investment Company Act of 1940, which have net assets of at least
$500,000,000.00 and at least 85% of whose assets consist of securities and other
obligations of the type described in clauses (a) through (d) above.
"Collateral" means any collateral security hereafter pledged by any
Loan Party to secure the Obligations or any portion thereof.
"Collateral Account" means a special non-interest bearing deposit
account maintained at the Principal Office of the Agent and under its sole
dominion and control.
"Collateral Documents" means the Security Deeds, the Assignments of
Leases and Rents, and all other security agreements, financing statements, and
other loan and collateral documents creating, evidencing and perfecting Agent's
Liens in any of the Collateral.
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<PAGE>
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1., and to issue (in the case of the
Agent) or participate in (in the case of the other Lenders) Letters of Credit
pursuant to Section 2.2.(a) and 2.2.(i) respectively, in an amount up to, but
not exceeding (but in the case of the Agent excluding the aggregate amount of
participations in the Letters of Credit held by other Lenders), the amount set
forth for such Lender on its signature page hereto as such Lender's "Commitment
Amount" or as set forth in the applicable Assignment and Acceptance Agreement,
as the same may be reduced from time to time pursuant to Section 2.10. or as
appropriate to reflect any assignments to or by such Lender effected in
accordance with Section 13.5.
"Commitment Percentage" means, as to each Lender, the ratio, expressed
as a percentage, of (a) the amount of such Lender's Commitment to (b) the
aggregate amount of the Commitments of all Lenders hereunder; provided, however,
that if at the time of determination the Commitments have terminated or been
reduced to zero, the "Commitment Percentage" of each Lender shall be the
Commitment Percentage of such Lender in effect immediately prior to such
termination or reduction.
"Compliance Certificate" has the meaning given that term in Section
9.3.
"Consolidated Businesses" means, collectively, each Affiliate of the
Parent and the Borrower which is or should be included in the Consolidated
Financial Statements in accordance with GAAP.
"Consolidated Financial Statements" means, collectively, the
consolidated balance sheet and related consolidated statement of operations,
statements of accumulated deficiency in assets and shareholder/partner equity
and statement of cash flows, and footnotes thereto, of the Borrower and the
Parent in each case prepared in accordance with GAAP.
"Consolidated Outstanding Indebtedness" means, as of any time, all
Indebtedness of the Parent and the Borrower and all Indebtedness attributable to
the Parent's beneficial interest in its Consolidated Businesses, including
mortgage and other notes payable and all accounts payable and accrued expenses
determined in accordance with GAAP all as is or would be reflected in the
Consolidated Financial Statements at such time.
"Construction in Process" means, with respect to any Property which is
Under Construction, the aggregate, good faith estimated cost of construction
(including land acquisition costs) for such Property.
"Contingent Liabilities" means, as of any time, the sum of (a) those
liabilities, determined in accordance with GAAP, as is or would be set forth and
quantified as contingent liabilities in the notes to the Consolidated Financial
Statements at such time and (b) contingent liabilities, other than those
described in the immediately preceding clause (a), which represent Indebtedness
in respect of Guarantees of the Parent or the Borrower; provided, however, that
Contingent Liabilities shall exclude contingent liabilities which represent the
"Other Party's Share" of "Duplicated Obligations" (as such quoted terms are
hereinafter defined). "Duplicated Obligations" means, collectively, all those
payment guaranties in respect of Indebtedness of Unconsolidated Entities for
which the Parent or the Borrower and another Person are jointly and severally
liable, where the other Person's Credit
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<PAGE>
Rating is BBB- or better by S&P or Baa3 or better by Moody's. "Other Party's
Share" means such other Person's fractional share of the obligation under the
Unconsolidated Entity in question.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to another Interest Period
pursuant to Section 2.7.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Loan of one Type into a Loan of another Type pursuant to Section 2.8.
"Credit Event" means any of the following: (a) the making (or deemed
making) of any Loan, (b) the Conversion of a Loan and (c) the issuance of a
Letter of Credit.
"Credit Rating" means the lowest rating assigned by a Rating Agency to
each series of rated senior unsecured long term indebtedness of the Borrower.
"Debt Service" means, for any period of time, the sum of (a) Interest
Expense for such period plus (b) the aggregate of all scheduled principal
payments on Indebtedness of such Person made by the Parent, the Borrower and
each Affiliate included in the Consolidated Business during such period
(excluding balloon, bullet or similar payments of principal due upon the stated
maturity of Indebtedness).
"Default" means any of the events specified in Section 11.1., whether
or not there has been satisfied any requirement for the giving of notice, the
lapse of time, or both.
"Defaulting Lender" has the meaning set forth in Section 3.11.
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, for any period of time, (a) revenues less operating
costs before Interest Expense, income taxes, depreciation and amortization and
extraordinary items (including, without limitation, non-recurring items such as
gains or losses from asset sales) and adjusted for non-cash revenue attributable
to straight lining of rents for the Parent and its beneficial interest in its
Consolidated Businesses, plus (b) the Parent's beneficial interest in revenues
less operating costs before Interest Expense, income taxes, depreciation and
amortization and extraordinary items (including, without limitation,
non-recurring items such as gains or losses from asset sales) and adjusted for
non-cash revenue attributable to straight lining of rents and non-cash expenses
associated with executive stock compensation (after eliminating appropriate
intercompany amounts) applicable to each of the Unconsolidated Entities (to the
extent not included above) in all cases as is or would be reflected in the
Consolidated Financial Statements at such time.
"Effective Date" means the later of:(a) the Agreement Date; and (b) the
the date on which all of the conditions precedent set forth in Section 6.1.
shall have been fulfilled or waived in writing by the Requisite Lenders.
"Eligible Assignee" means any Person who is: (i) currently a Lender;
(ii) a commercial bank, trust company, insurance company, investment bank or
pension fund organized under the laws of the United States of America, or any
state thereof, and having total assets in excess of
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$5,000,000,000; (iii) a savings and loan association or savings bank organized
under the laws of the United States of America, or any state thereof, and having
a tangible net worth of at least $500,000,000; or (iv) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such Person is not currently a
Lender, such Person's senior unsecured long term indebtedness must be rated BBB
or higher by S&P, Baa2 or higher by Moody's, or the equivalent or higher of
either such rating by another credit rating agency acceptable to the Agent.
"Eligible Property" means a Property which satisfies all of the
following requirements as confirmed by the Agent: (a) such Property is owned in
fee simple by the Parent, the Borrower or a Subsidiary; (b) neither such
Property, nor any interest of the Borrower or such Subsidiary therein, is
subject to any Lien (other than Permitted Liens) or to any Negative Pledge; (c)
if such Property is owned by a Subsidiary, none of the Parent's direct or
indirect ownership interest in such Subsidiary is subject to any Lien (other
than Permitted Liens) or to any Negative Pledge; (d) the Parent or the Borrower
directly, or indirectly through a Subsidiary, has the right to take the
following actions with respect to such Property without the need to obtain the
consent of any Person: (i) to create Liens on such Property as security for
Indebtedness of the Parent, the Borrower or such Subsidiary, as applicable and
(ii) to sell, transfer or otherwise dispose of such Property; (e) if such
Property is owned by a Subsidiary, none of the Parent's or the Borrower's direct
or indirect ownership interest in such Subsidiary is (i) encumbered by any Lien
other than Permitted Liens or (ii) subject to any Negative Pledge; (f) the
Occupancy Rate of such Property equals or exceeds 75%; provided, however, if the
Occupancy Rate of a Property which is in all other respects an Eligible Property
shall fall below 75%, then such Property shall remain an Eligible Property for
purposes of this clause (f) for a period of 90 days following the date on which
the Occupancy Rate fell below 75%; provided further, however, if the Occupancy
Rate of a Property which is in all other respects an Eligible Property shall
fall below 75% by reason of such Property not being actually occupied by tenants
that are not Affiliates, then such Property shall remain an Eligible Property
for purposes of this clause (f) for a period not to exceed nine months from the
date on which the Occupancy Rate fell below 75% so long as (i) no other Property
is an Eligible Property as a result of this application of this proviso and (ii)
the tenants of such Property are paying rent with respect to at least 80% of the
net rentable square footage of such Property at market rates pursuant to binding
leases as to which no monetary default has occurred and is continuing; (g) such
Property is not subject to a ground lease; and (h) such Property is free of all
structural defects, title defects, environmental conditions or other adverse
matters except for defects, conditions or matters individually or collectively
which do not materially and adversely affect the profitable operation of such
Property as determined by the Agent in its reasonable discretion. The parties
hereto waive the requirement contained in the immediately preceding clause
(d)(ii) with respect to the limitations on transfer of (x) the Property know as
Woodmoor Shopping Center, contained in Section 19(a) of the Contribution
Agreement dated as of September 3, 1999 by and between The G&C Properties
Corporation and the Borrower; (y) the Property know as Willston Centre I,
contained in Section 19(a) of the Contribution Agreement dated as of October 1,
1998 by and between Greenwood Associates and the Borrower; and (z) the Property
know as Spring Valley Shopping Center, contained in Section 7(f) of the
Contribution Agreement dated as of October 8, 1997 by and between Spring Valley
Joint Venture and the Borrower.
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"Environmental Indemnity Agreement" means an Environmental Indemnity
Agreement executed by a Loan Party in favor of the Agent and the Lenders and
substantially in the form of Exhibit D.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42
U.S.C.ss.7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.ss.1251 et
seq.; Solid Waste Disposal Act, 42 U.S.C.ss.6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.ss. 9601 et
seq.; National Environmental Policy Act, 42 U.S.C.ss.4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"Equity Interests" means, with respect to any Person, shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or other acquisition from such Person
of shares of capital stock of (or other ownership or profit interests in) such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any
date of determination.
"Equity Issuance" means any issuance or sale by a Person of any Equity
Interest in such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Group" means the Parent, the Borrower, any other Subsidiary and
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Parent, the Borrower or any other Subsidiary, are treated as a single employer
under Section 414 of the Internal Revenue Code.
"Event of Default" means any of the events specified in Section 11.1.,
provided that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Exempt Subsidiary" means any Material Subsidiary of the Parent or the
Borrower which is prohibited from executing the Guaranty or an Accession
Agreement, as applicable, pursuant to Sections 6.1. and 8.16. herein, by (i)
terms of its articles of incorporation, bylaws, operating agreement, partnership
agreement, declaration of trust or other similar organizational document or the
terms of any indenture, contract or instrument evidencing Indebtedness of such
Subsidiary, which terms expressly prohibit such Subsidiary from providing
Guarantees of Indebtedness of any other Person or otherwise incurring any
Indebtedness or (ii) any fiduciary obligation owing by such Subsidiary to the
holders of Equity Interest in such Subsidiary and imposed under Applicable Law.
"Extension Request" has the meaning given that term in Section 2.11.
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"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length transaction, for cash, between a willing
seller and a willing buyer, neither of which is under pressure or compulsion to
complete the transaction. Fair Market Value shall be determined by the Board of
Directors of the Parent acting in good faith and evidenced by a board resolution
thereof delivered to the Agent or, with respect to any asset valued at up to
$1,000,000, such determination may be made by a duly authorized officer of the
Parent evidenced by an officer's certificate delivered to the Agent.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate quoted to the
Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.
"Fees" means the fees and commissions provided for or referred to in
Section 3.6. and any other fees payable by the Borrower hereunder or under any
other Loan Document.
"FIRREA" means the Financial Institution Recovery, Reform and
Enforcement Act of 1989, as amended.
"First Union" means First Union National Bank and its successors and
assigns.
"Fixed Charges" means, for any period of time, the sum of (a) Debt
Service for such period, plus (b) the aggregate of all dividends paid or accrued
by the Parent or the Borrower or any such Affiliate in respect of any Preferred
Stock during such period (except to the extent paid or payable to the Parent or
the Borrower or any other such Affiliate), plus (c) the Interest Expense and
other items listed in the immediately preceding clauses (a) and (b) applicable
to each of the Unconsolidated Entities (to the extent not included above)
multiplied by the Parent's or the Borrower's respective beneficial interests in
the Unconsolidated Entities.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
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Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Guarantor" means any Person that is a party to the Guaranty as a
"Guarantor" and in any event shall include the Parent and each Material
Subsidiary.
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any obligation
means and includes: (a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation, or (b) an
agreement, direct or indirect, contingent or otherwise, and whether or not
constituting a guaranty, the practical effect of which is to assure the payment
or performance (or payment of damages in the event of nonperformance) of any
part or all of such obligation whether by: (i) the purchase of securities or
obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property
or the purchase or sale of services primarily for the purpose of enabling the
obligor with respect to such obligation to make any payment or performance (or
payment of damages in the event of nonperformance) of or on account of any part
or all of such obligation, or to assure the owner of such obligation against
loss, (iii) the supplying of funds to or in any other manner investing in the
obligor with respect to such obligation, (iv) repayment of amounts drawn down by
beneficiaries of letters of credit, or (v) the supplying of funds to or
investing in a Person on account of all or any part of such Person's obligation
under a Guaranty of any obligation or indemnifying or holding harmless, in any
way, such Person against any part or all of such obligation. As the context
requires, "Guaranty" shall also mean the Guaranty to which the Guarantors are
parties substantially in the form of Exhibit E.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TCLP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Hedging Agreements" means, collectively, Interest Rate Agreements,
commodity future or option contracts, currency swap agreements, currency future
or option contracts and other similar agreements.
"Implied Mortgage Debt Service" means, as of a given date, an amount
equal to the annual principal and interest payment sufficient to amortize in
full during a 25-year period the aggregate principal balance of Loans
outstanding as of such date calculated using an interest rate equal to the
greater of (i) the yield on a 10 year United States Treasury Note at such time
as determined by the Agent plus 2.00% or (ii) 8.00%.
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"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) obligations
of such Person in respect of money borrowed; (b) obligations of such Person
(other than trade debt incurred in the ordinary course of business), whether or
not for money borrowed (i) represented by notes payable, or drafts accepted, in
each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase money
indebtedness, conditional sales contracts, title retention debt instruments or
other similar instruments, upon which interest charges are customarily paid or
that are issued or assumed as full or partial payment for property; (c)
Capitalized Lease Obligations of such Person; (d) all reimbursement obligations
of such Person under any letters of credit or acceptances (whether or not the
same have been presented for payment); and (e) all Indebtedness of other Persons
which (i) such Person has Guaranteed or is otherwise recourse to such Person or
(ii) are secured by a Lien on any property of such Person.
"Intellectual Property" has the meaning given that term in Section
7.1.(u).
"Interest Expense" means, for any period of time, the consolidated
interest expense calculated in accordance with GAAP, whether paid, accrued or
capitalized (without deduction of consolidated interest income) of the Parent
and that attributable to the Parent's beneficial interest in its Consolidated
Businesses, including, without limitation or duplication (or, to the extent not
so included, with the addition of), (a) the portion of any rental obligation in
respect of any Capitalized Lease Obligation allocable to interest expense in
accordance with GAAP; (b) the amortization of debt discounts or premiums; (c)
any payments or fees (other than up-front fees) with respect to interest rate
swap or similar agreements; and (d) the interest expense and items listed in
clauses (a) through (c) above applicable to each of the Unconsolidated Entities
(to the extent not included above) multiplied by the Parent's respective
beneficial interests in the Unconsolidated Entities, in all cases as is or would
be reflected in the applicable Consolidated Financial Statements for such
period.
"Interest Period" means, with respect to any LIBOR Loan, each period
commencing on the date such LIBOR Loan is made or the last day of the next
preceding Interest Period for such Loan and ending on the numerically
corresponding day in the first, second or third calendar month thereafter, as
the Borrower may select in a Notice of Borrowing, Notice of Continuation or
Notice of Conversion, as the case may be, except that each Interest Period that
commences on the last Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent calendar
month. Notwithstanding the foregoing: (a) if any Interest Period would otherwise
end after the Termination Date, such Interest Period shall end on the
Termination Date; (b) each Interest Period that would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business Day (or,
if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and (c) notwithstanding the
immediately preceding clause (a), no Interest Period for any LIBOR Loan shall
have a duration of less than one month and, if the Interest Period for any LIBOR
Loan would otherwise be a shorter period, such Loan shall not be available
hereunder for such period.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
contractual agreement or arrangement entered into for the purpose of protecting
against fluctuations in interest rates.
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"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock, evidence of Indebtedness or
other security issued by any other Person; (b) any loan, advance or extension of
credit to, or contribution (in the form of money or goods) to the capital of,
any other Person; (c) any Guaranty of the Indebtedness of any other Person; and
(d) any commitment or option to make an Investment in any other Person.
"Investment Grade Rating" means a Credit Rating of BBB- or higher by
S&P, Baa3 or higher by Moody's, or the equivalent or higher of either such
rating by another Rating Agency.
"L/C Commitment Amount" equals $5,000,000.
"Lender" means each financial institution from time to time party
hereto as a "Lender", together with its respective successors and permitted
assigns.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto or in the
applicable Assignment and Acceptance Agreement, or such other office of such
Lender as such Lender may notify the Agent in writing from time to time.
"Letter of Credit" has the meaning set forth in Section 2.2.(a).
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
"Letter of Credit Liabilities" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of
such Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Agent in its capacity as such) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.2.(i),
and the Agent shall be deemed to hold a Letter of Credit Liability in an amount
equal to its retained interest in the related Letter of Credit after giving
effect to the acquisition by the Lenders other than the Agent of their
participation interests under such Section.
"LIBOR" means, for any LIBOR Loan for any Interest Period therefor, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period. If for any
reason such rate is not available, the term "LIBOR" shall mean, for any LIBOR
Loan for any Interest Period therefor, the rate per annum (rounded upwards, if
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necessary, to the nearest 1/100 of 1%)appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
"LIBOR Loans" means Loans bearing interest at a rate based on LIBOR.
"Lien" as applied to the property of any Person means: (a) any security
interest, encumbrance, mortgage, deed to secure debt, deed of trust, pledge,
lien, charge or lease constituting a Capitalized Lease Obligation, conditional
sale or other title retention agreement, or other security title or encumbrance
of any kind in respect of any property of such Person, or upon the income or
profits therefrom; (b) any arrangement, express or implied, under which any
property of such Person is transferred, sequestered or otherwise identified for
the purpose of subjecting the same to the payment of Indebtedness or performance
of any other obligation in priority to the payment of the general, unsecured
creditors of such Person; (c) the filing of any financing statement under the
Uniform Commercial Code or its equivalent in any jurisdiction; and (d) any
agreement by such Person to grant, give or otherwise convey any of the
foregoing.
"Loan" means a Revolving Loan.
"Loan Document" means this Agreement, each Note, the Guaranty, each
Accession Agreement, each Collateral Document, each Letter of Credit Document
and each other document or instrument now or hereafter executed and delivered by
a Loan Party in connection with, pursuant to or relating to this Agreement.
"Loan Party" means each of the Borrower, each other Person who
guarantees all or a portion of the Obligations and/or who pledges any collateral
security to secure all or a portion of the Obligations.
"Material Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower and its Subsidiaries taken as a whole, (b)
the ability of the Borrower or any other Loan Party to perform its obligations
under any Loan Document to which it is a party, (c) the validity or
enforceability of any of the Loan Documents, (d) the rights and remedies of the
Lenders and the Agent under any of such Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith.
"Material Contract" means any contract or other arrangement (other than
Loan Documents), whether written or oral, to which the Parent, the Borrower, any
Subsidiary or any other Loan Party is a party as to which the breach,
nonperformance, cancellation or failure to renew by any party thereto could
reasonably be expected to have a Material Adverse Effect.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $5,000,000.
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<PAGE>
"Material Subsidiary" means any Subsidiary (other than the Borrower) of
the Parent which (a) owns, or otherwise has any interest in, any Borrowing Base
Property or any other property or asset which is taken into account when
calculating Borrowing Base Value; (b) has total assets greater than or equal to
10% of total assets of the Parent and its Subsidiaries determined on a
consolidated basis (calculated as of the fiscal quarter most recently ending) or
(c) has net earnings greater than or equal to 10% of the net earnings of the
Parent and its Subsidiaries determined on a consolidated basis. In any event,
the term "Material Subsidiaries" shall mean and include each Subsidiary (or
combination of Subsidiaries) of the Parent, which, together with the Borrower
and the Parent, account for 75.0% or more of Capitalization Value. If more than
one combination of Subsidiaries satisfies such threshold, then those
Subsidiaries so determined to be "Material Subsidiaries" shall be specified by
the Parent. The status of a Subsidiary as an Exempt Subsidiary shall not relieve
the Borrower from the obligation resulting from application of the terms of this
definition that the Borrower and the Guarantors account for 75.0% or more of
Capitalization Value. Schedule 1.1.(A) sets forth the Material Subsidiaries as
of the Agreement Date.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Negative Pledge" means a provision of any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien on
any assets of a Person; provided, however, that an agreement that establishes a
maximum ratio of unsecured debt to unencumbered assets, or of secured debt to
total assets, or that otherwise conditions a Person's ability to encumber its
assets upon the maintenance of one or more specified ratios that limit such
Person's ability to encumber its assets but that do not generally prohibit the
encumbrance of its assets, or the encumbrance of specific assets, shall not
constitute a "Negative Pledge" for purposes of this Agreement.
"Net Income" means, with respect to any Person for a given period, such
Person's net income for such period.
"Net Proceeds" means with respect to any Equity Issuance by a Person,
the aggregate amount of all cash and the Fair Market Value of all other property
received by such Person in respect of such Equity Issuance net of investment
banking fees, legal fees, accountants fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"Note" means a Revolving Note.
"Notice of Borrowing" means a notice in the form of Exhibit F to be
delivered to the Agent pursuant to Section 2.1.(b) evidencing the Borrower's
request for a borrowing of Revolving Loans.
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"Notice of Continuation" means a notice in the form of Exhibit G to be
delivered to the Agent pursuant to Section 2.7. evidencing the Borrower's
request for the Continuation of a LIBOR Loan.
"Notice of Conversion" means a notice in the form of Exhibit H to be
delivered to the Agent pursuant to Section 2.8. evidencing the Borrower's
request for the Conversion of a Loan from one Type to another Type.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans, (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities, and (c)
all other indebtedness, liabilities, obligations, covenants and duties of the
Borrower and the other Loan Parties owing to the Agent or any Lender of every
kind, nature and description, under or in respect of this Agreement or any of
the other Loan Documents, including, without limitation, the Fees and
indemnification obligations, whether direct or indirect, absolute or contingent,
due or not due, contractual or tortious, liquidated or unliquidated, and whether
or not evidenced by any promissory note.
"Occupancy Rate" means, with respect to a Property at any time, the
ratio, expressed as a percentage, of (a) the net rentable square footage of such
Property actually occupied by tenants that are not Affiliates paying rent at
market rates pursuant to binding leases as to which no monetary default has
occurred and is continuing to (b) the aggregate net rentable square footage of
such Property.
"Parent's Share of Unconsolidated Entity Outstanding Indebtedness"
means the sum of the Indebtedness of each of the Unconsolidated Entities
contributing to Unconsolidated Entity Outstanding Indebtedness multiplied by the
Parent's respective beneficial fractional interests in each such Unconsolidated
Entity.
"Participant" has the meaning given that term in Section 13.5.(c).
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Permitted Liens" means, as to any Person: (a) Liens securing taxes,
assessments and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor,
materials, supplies or rentals incurred in the ordinary course of business,
which are not at the time required to be paid or discharged under Section 8.6.;
(b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
workmen's compensation, unemployment insurance or similar Applicable Laws; (c)
Liens consisting of encumbrances in the nature of zoning restrictions,
easements, and rights or restrictions of record on the use of real property,
which do not materially detract from the value of such property or impair the
use thereof in the business of such Person; (d) Liens in existence as of the
Agreement Date and set forth in Part II of Schedule 7.1.(f); and (e) Liens in
favor of the Agent for the benefit of the Lenders.
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"Person" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (a) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (b) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was
at such time a member of the ERISA Group for employees of any Person which was
at such time a member of the ERISA Group.
"Post-Default Rate" means, in respect of any principal of any Loan or
any other Obligation that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum equal to four percent (4.0%) plus the Base Rate as in effect from time to
time.
"Preferred Stock" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"Principal Office" means the office of the Agent located at One First
Union Center, Charlotte, North Carolina, or such other office of the Agent as
the Agent may designate from time to time.
"Property" means a retail shopping center owned and operated by a Loan
Party or an Unconsolidated Entity, as the context may require.
"Property Management Agreement" means, collectively, all agreements
entered into by the Parent, the Borrower or a Subsidiary pursuant to which the
Parent, the Borrower or such Subsidiary engages a Person to advise it with
respect to the management of a Borrowing Base Property.
"Rating Agencies" means S&P and Moody's or, if either S&P or Moody's
ceases to monitor and issue credit ratings generally for REITs, any other
nationally recognized securities rating agency selected by the Borrower and
approved of by the Agent and the Requisite Lenders in writing.
"Register" has the meaning given that term in Section 13.5.(e).
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
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or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Requisite Lenders" means, as of any date, Lenders holding at least 66
2/3% of the aggregate amount of the Commitments, or, if the Commitments have
been terminated or reduced to zero, Lenders holding at least 66 2/3% of the
principal amount of the Loans and Letter of Credit Liabilities. In no event
shall a single Lender constitute the Requisite Lenders unless there is only one
Lender at the time of determination.
"Reserves for Capital Expenditures" means, for any period and with
respect to a Property at the end of such period, an amount equal to (a)(i) the
aggregate leaseable square footage of all completed space of such Property or
(ii) the Parent's percentage ownership share of the aggregate leaseable square
footage of all completed space of such Property if such Property is owned by an
Unconsolidated Entity times (b) $0.25 times (c) the number of days in such
period divided by (d) 365.
"Restricted Payment" means: (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock or other
equity interest of the Parent or any of its Subsidiaries now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock
to the holders of that class; (b) any redemption, conversion, exchange,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock or other equity
interest of the Parent or any of its Subsidiaries now or hereafter outstanding;
(c) any payment or prepayment of principal of, premium, if any, or interest on,
redemption, conversion, exchange, purchase, retirement, defeasance, sinking fund
or similar payment with respect to, any Subordinated Debt; and (d) any payment
made to retire, or to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of stock of the Parent or any of
its Subsidiaries now or hereafter outstanding.
"Revolving Loan" means a loan made by a Lender to the Borrower pursuant
to Section 2.1.(a).
"Revolving Note" has the meaning given that term in Section 2.9.(a).
"Secured Indebtedness" means, with respect to any Person, any
Indebtedness of such Person that is secured in any manner by any Lien, and shall
include without duplication such Person's pro rata share of the Secured
Indebtedness of any of such Person's Unconsolidated Affiliates.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, together with all rules and regulations issued thereunder.
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"Security Deed" means a deed to secure debt, deed of trust or other
mortgage executed by a Loan Party in favor of the Agent and substantially in the
form of Exhibit J.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities); and (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature and (c) that the Person has capital not unreasonably small to carry
on its business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Group, a division of McGraw-Hill
Companies, Inc.
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in ac cordance with the terms of such Letter of
Credit.
"Subordinated Debt" means Indebtedness of the Parent or any of its
Subsidiaries of any of the types described in clauses (a) through (c) of the
definition of Indebtedness that is subordinated in right of payment and
otherwise to the Loans and the other Obligations (or in the case of any
Guarantor, such Guarantor's obligations under the Guaranty) in a manner
satisfactory to the Requisite Lenders in their sole and absolute discretion.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the Voting Stock is at the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Tangible Net Worth" means, (a) the Parent's total consolidated assets
(excluding any deductions for depreciation of real property assets) minus (b)
the carrying value of all intangible assets (including deferred costs associated
with goodwill, patents, franchises, organizational expense and the like) minus
(c) the total liabilities of the Parent and its Subsidiaries on a consolidated
basis, all determined in accordance with GAAP. Tangible Net Worth shall be
calculated without adjustments for minority interests.
"Taxes" has the meaning given that term in Section 3.12.
"Termination Date" means May __, 2003, or such later date to which the
Termination Date may be extended pursuant to Section 2.11.
"Tie-In Jurisdiction" means a jurisdiction in which a "tie-in"
endorsement may be obtained for a title insurance policy covering property
located in such jurisdiction which endorsement effectively ties coverage to
other title insurance policies covering properties located in other
jurisdictions.
"Total Outstanding Indebtedness" means the sum, without duplication, of
(a) Consolidated Outstanding Indebtedness, (b) the Parent's Share of
Unconsolidated Entity Outstanding Indebtedness and (c) Contingent Liabilities.
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<PAGE>
"Type" with respect to any Loan, refers to whether such Loan is a LIBOR
Loan or Base Rate Loan.
"Unconsolidated Entity" shall mean, with respect to the Parent, any
other Person in whom the Parent holds, directly or indirectly, an Investment,
which Investment is accounted for in the financial statements of the Parent on
an equity basis of accounting and whose financial results would not be
consolidated under GAAP with the financial results of the Parent in the
Consolidated Financial Statements.
"Unconsolidated Entity Outstanding Indebtedness" means, as of any time,
all Indebtedness of the Unconsolidated Entities, all as is or would be reflected
in the balance sheets of each of the Unconsolidated Entities at such time,
prepared in accordance with GAAP.
"Under Construction" means, with respect to any Property, that
construction of improvements has begun (as evidenced by foundation excavation)
on such Property but has not yet been completed (as such completion shall be
evidenced by the issuance of a certificate of occupancy or its equivalent after
completion of all budgeted amenities).
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"Unsecured Indebtedness" means, with respect to a Person, all
Indebtedness of such Person that is not Secured Indebtedness.
"Variable Rate Debt" means all Indebtedness of the Parent and its
Subsidiaries which bears interest at fluctuating rates (and in any event shall
include all Loans and other Indebtedness of the Borrower under any of the Loan
Documents) and for which the Parent or such Subsidiary has not obtained Interest
Rate Agreements which effectively cause such variable rates to be equivalent to
fixed rates less than or equal to 9.0% per annum.
"Voting Stock" means capital stock issued by a corporation, or
equivalent Equity Interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Subsidiary of a Person which all of
the equity securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are at the time directly or
indirectly owned or controlled by such Person or one or more other Subsidiaries
of such Person or by such Person and one or more other Subsidiaries of such
Person.
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Section 2.1 General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with GAAP in
effect as of the Agreement Date. References in this Agreement to "Sections",
"Articles", "Exhibits" and "Schedules" are to sections, articles, exhibits and
schedules herein and hereto unless otherwise indicated. References in this
Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents, instruments or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, supplemented,
restated or otherwise modified from time to time to the extent permitted hereby
and in effect at any given time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the
singular and plural, and pronouns stated in the masculine, feminine or neuter
gender shall include the masculine, the feminine and the neuter. Unless
explicitly set forth to the contrary, a reference to "Subsidiary" means a
Subsidiary of the Borrower or a Subsidiary of such Subsidiary and a reference to
an "Affiliate" means a reference to an Affiliate of the Parent. Titles and
captions of Articles, Sections, subsections and clauses in this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement. Unless otherwise indicated, all references to time are references to
Charlotte, North Carolina time.
ARTICLE I.2 Credit Facility
Section 1.2 Revolving Loans.
(a) Generally. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, each
Lender severally and not jointly agrees to make Revolving Loans to the Borrower
in an aggregate principal amount at any one time outstanding up to, but not
exceeding, the lesser of (i) the amount of such Lender's Commitment; and (ii)
such Lender's Commitment Percentage of the Borrowing Base. Subject to the terms
and conditions of this Agreement, during the period from the Effective Date to
but excluding the Termination Date, the Borrower may borrow, repay and reborrow
Revolving Loans.
(b) Requesting Revolving Loans. The Borrower shall give the Agent
notice pursuant to a Notice of Borrowing or telephonic notice of each borrowing
of Revolving Loans. Each Notice of Borrowing shall be delivered to the Agent
before 11:00 a.m. (a) in the case of LIBOR Loans, on the date three Business
Days prior to the proposed date of such borrowing and (b) in the case of Base
Rate Loans, on the date one Business Day prior to the proposed date of such
borrowing. Any such telephonic notice shall include all information to be
specified in a written Notice of Borrowing and shall be promptly confirmed in
writing by the Borrower pursuant to a Notice of Borrowing sent to the Agent by
telecopy on the same day of the giving of such telephonic notice. The Agent will
transmit by telecopy the Notice of Borrowing (or the information contained in
such Notice of Borrowing) to each Lender promptly upon receipt by the Agent.
Each Notice of Borrowing or telephonic notice of each borrowing shall be
irrevocable once given and binding on the Borrower.
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(c) Disbursements of Revolving Loan Proceeds. No later than 12:00 noon
on the date specified in the Notice of Borrowing, each Lender will make
available for the account of its applicable Lending Office to the Agent at the
Principal Office, in immediately available funds, the proceeds of the Revolving
Loan to be made by such Lender. With respect to Revolving Loans to be made after
the Effective Date, unless the Agent shall have been notified by any Lender
prior to the specified date of borrowing that such Lender does not intend to
make available to the Agent the Revolving Loan to be made by such Lender on such
date, the Agent may assume that such Lender will make the proceeds of such
Revolving Loan available to the Agent on the date of the requested borrowing as
set forth in the Notice of Borrowing and the Agent may (but shall not be
obligated to), in reliance upon such assumption, make available to the Borrower
the amount of such Revolving Loan to be provided by such Lender. Subject to
satisfaction of the applicable conditions set forth in Article VI. for such
borrowing, the Agent will make the proceeds of such borrowing available to the
Borrower no later than 2:00 p.m. on the date and at the account specified by the
Borrower in such Notice of Borrowing.
Section 2.2 Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Agent, on behalf of the Lenders, agrees to issue for the account
of the Borrower during the period from and including the Effective Date to, but
excluding, the date 60 days prior to the Termination Date one or more standby
letters of credit (each a "Letter of Credit") denominated in Dollars up to a
maximum aggregate Stated Amount at any one time outstanding not to exceed the
L/C Commitment Amount.
(b) Terms of Letters of Credit. At the time of issuance, the amount,
form, terms and conditions of each Letter of Credit, and of any drafts or
acceptances thereunder, shall be subject to approval by the Agent and the
Borrower. Notwithstanding the foregoing, in no event may the expiration date of
any Letter of Credit extend beyond the date 30 days prior to the Termination
Date, and any Letter of Credit containing an automatic renewal provision shall
also contain a provision pursuant to which, notwithstanding any other provisions
thereof, it shall have a final expiration date no later than the date 30 days
prior to the Termination Date.
(c) Requests for Issuance of Letters of Credit. The Borrower shall give
the Agent written notice (or telephonic notice promptly confirmed in writing) no
later than 9:00 a.m. two Business Days prior to the requested date of issuance
of a Letter of Credit, such notice to describe in reasonable detail the proposed
terms of such Letter of Credit and the nature of the transactions or obligations
proposed to be supported by such Letter of Credit, and in any event shall set
forth with respect to such Letter of Credit (i) the proposed initial Stated
Amount, (ii) the beneficiary or beneficiaries, and (iii) the proposed expiration
date. The Borrower shall also execute and deliver such customary letter of
credit application forms as requested from time to time by the Agent. Provided
the Borrower has given the notice prescribed by this subsection and subject to
the other terms and conditions of this Agreement, including the satisfaction of
any applicable conditions precedent set forth in Article VI., the Agent shall
issue the requested Letter of Credit on the requested date of issuance. The
Agent shall promptly provide notice to the Lenders of the issuance of any Letter
of Credit issued hereunder which notice shall set forth each Lender's pro rata
share of (1) such Letter of Credit and (2) all Letters of Credit then
outstanding. Upon the written request of the Borrower, the Agent (x) shall make
reasonable efforts to deliver to the Borrower a copy of any Letter of Credit
proposed to be issued hereunder prior to the issuance thereof and (y) shall
deliver
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to the Borrower a copy of each issued Letter of Credit within a reasonable time
after the date of issuance thereof. To the extent any term of a Letter of Credit
Document is inconsistent with a term of any Loan Document, the term of such Loan
Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrower of the amount to be paid by
the Agent as a result of such demand and the date on which payment is to be made
by the Agent to such beneficiary in respect of such demand. The Borrower hereby
unconditionally and irrevocably agrees to pay and reimburse the Agent for the
amount of each demand for payment under such Letter of Credit on or prior to the
date on which payment is to be made by the Agent to the beneficiary thereunder,
without presentment, demand, protest or other formalities of any kind. Upon
receipt by the Agent of any payment in respect of any Reimbursement Obligation,
the Agent shall promptly pay to each Lender that has acquired a participation
therein under the second sentence of Section 2.2.(i) such Lender's Commitment
Percentage of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to
in the immediately preceding subsection (d), the Borrower shall advise the Agent
whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment and, if it does, the Borrower shall submit a timely Notice of Borrowing
as provided in Section 2.1.(b). If the Borrower fails to so advise the Agent, or
if the Borrower fails to reimburse the Agent for a demand for payment under a
Letter of Credit by the date of such payment, then (i) if the applicable
conditions contained in Article VI. would permit the making of Revolving Loans,
the Borrower shall be deemed to have requested a borrowing of Revolving Loans
(which shall be Base Rate Loans but which Loans shall not be subject to the
limitations of Section 3.5.) in an amount equal to the unpaid Reimbursement
Obligation and the Agent shall give each Lender prompt notice of the amount of
the Revolving Loan to be made by such Lender, the proceeds of which such Lender
shall make available to the Agent not later than 3:00 p.m. and (ii) if such
conditions would not permit the making of Revolving Loans, the provisions of
subsection (j) of this Section shall apply.
(f) Effect of Letters of Credit on Commitments. Upon the issuance by
the Agent of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Commitment of each Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to such Lender's
Commitment Percentage of the Stated Amount of such Letter of Credit plus any
related Reimbursement Obligations then outstanding.
(g) Agent's Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligation. In examining documents presented in connection with
drawings under Letters of Credit and making payments under such Letters of
Credit against such documents, the Agent shall use the same standard of care as
it uses in connection with examining documents presented in connection with
drawings under letters of credit in which it has not sold participations and
making payments under such letters of credit. The Borrower assumes all risks of
the acts and omissions of, or misuse of the Letters of Credit by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, neither the Agent nor any of the Lenders shall be responsible for
(i) the form, validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the application for and
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issuance of or any drawing honored under any Letter of Credit even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) failure
of the beneficiary of any Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in trans mission or delivery of any messages, whether by
mail, cable, telex, telecopy or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication
by the beneficiary of any such Letter of Credit, or the proceeds of any drawing
under such Letter of Credit; or (viii) any consequences arising from causes
beyond the control of the Agent or the Lenders. None of the above shall affect,
impair or prevent the vesting of any of the Agent's rights or powers hereunder.
Any action taken or omitted to be taken by the Agent under or in connection with
any Letter of Credit, if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create against the Agent any liability to the
Borrower or any Lender. In this connection, the obligation of the Borrower to
reimburse the Agent for any drawing made under any Letter of Credit shall be
absolute, unconditional and ir revocable and shall be paid strictly in
accordance with the terms of this Agreement under all cir cumstances whatsoever,
including without limitation, the following circumstances: (A) any lack of
validity or enforceability of any Letter of Credit Document or any term or
provisions therein; (B) any amendment or waiver of or any consent to departure
from all or any of the Letter of Credit Documents; (C) the existence of any
claim, setoff, defense or other right which the Borrower may have at any time
against the Agent, any Lender, any beneficiary of a Letter of Credit or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby or in the Letter of Credit Documents or any unrelated
transaction; (D) any breach of contract or dispute between the Borrower, the
Agent, any Lender or any other Person; (E) any demand, statement or any other
document presented under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein or made in
connection therewith being untrue or inaccurate in any respect whatsoever; (F)
any non-application or misapplication by the beneficiary of a Letter of Credit
of the proceeds of any drawing under such Letter of Credit; (G) payment by the
Agent under the Letter of Credit against presentation of a draft or certificate
which does not strictly comply with the terms of the Letter of Credit; and (H)
any other act, omission to act, delay or circumstance whatsoever that might, but
for the provisions of this Section, constitute a legal or equitable defense to
or discharge of the Borrower's Reimbursement Obligations.
(h) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefor be made
through the Agent), and no such amendment, supplement or other modification
shall be issued unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Requisite
Lenders shall have consented thereto; provided, however, no such amendment,
supplement or modification shall result in the extension of the expiration date
of the Letter of Credit without the Requisite Lenders' prior written consent.
(i) Lenders' Participation in Letters of Credit. Immediately upon
the issuance by the vAgent of any Letter of Credit each Lender shall be deemed
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to have irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Commitment Percentage of the liability of the Agent with
respect to such Letter of Credit and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Agent to pay and discharge when
due, such Lender's Commitment Percentage of the Agent's liability under such
Letter of Credit. In addition, upon the making of each payment by a Lender to
the Agent in respect of any Letter of Credit pursuant to the immediately
following subsection (j), such Lender shall, automatically and without any
further action on the part of the Agent or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement Obligation
owing to the Agent by the Borrower in respect of such Letter of Credit and (ii)
a participation in a percentage equal to such Lender's Commitment Percentage in
any interest or other amounts payable by the Borrower in respect of such
Reimbursement Obligation (other than the Fees payable to the Agent pursuant to
the second and last sentences of Section 3.6.(c)).
(j) Payment Obligation of Lenders. Each Lender severally agrees to pay
to the Agent on demand in immediately available funds the amount of such
Lender's Commitment Percentage of each drawing paid by the Agent under each
Letter of Credit to the extent such amount is not reimbursed by the Borrower
pursuant to Section 2.2.(d) and is not available from funds then on deposit in
the Collateral Account. Each such Lender's obligation to make such payments to
the Agent under this subsection, and the Agent's right to receive the same,
shall be absolute, irrevocable and unconditional and shall not be affected in
any way by any circumstance whatsoever, including without limitation, (i) the
failure of any other Lender to make its payment under this subsection, (ii) the
financial condition of the Borrower or any other Loan Party, (iii) the existence
of any Default or Event of Default, including any Event of Default described in
Section 11.1.(f) or 11.1.(g) or (iv) the termination of the Commitments. Each
such payment to the Agent shall be made without any offset, abatement,
withholding or deduction whatsoever.
(k) Information to Lenders. Upon the request of any Lender from time to
time, the Agent shall deliver to such Lender information reasonably requested by
such Lender with respect to any Letter of Credit then outstanding. Other than as
set forth in this subsection or in the immediately preceding subsection (c), the
Agent shall have no duty to notify the Lenders regarding the issuance or other
matters regarding Letters of Credit issued hereunder. The failure of the Agent
to perform its requirements under this subsection or such subsection (c) shall
not relieve any Lender from its obligations under Section 2.2.(j).
Section 3.2 Rates and Payment of Interest on Loans.
(a) Rates. The Borrower promises to pay to the Agent for the account of
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period from and including the date of the making of such Loan to
but excluding the date such Loan shall be paid in full, at the following per
annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at
the Base Rate (as in effect from time to time) plus the Applicable
Margin; and
(ii) during such periods as such Loan is a LIBOR Loan, at the
Adjusted Eurodollar Rate for such Loan for the Interest Period
therefor, plus the Applicable Margin.
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<PAGE>
Notwithstanding the foregoing, during the continuance of an Event of Default,
the Borrower shall pay to the Agent for the account of each Lender interest at
the Post-Default Rate on the outstanding principal amount of any Loan made by
such Lender and on any other amount payable by the Borrower hereunder or under
the Notes held by such Lender to or for the account of such Lender (including
without limitation, accrued but unpaid interest to the extent permitted under
Applicable Law).
(b) Payment of Interest. Accrued interest on each Loan shall be payable
(i) in the case of a Base Rate Loan, monthly on the first Business Day of each
calendar month, (ii) in the case of a LIBOR Loan, on the last day of each
Interest Period therefor and (iii) in the case of any Loan, upon the payment,
prepayment or Continuation thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid or Converted).
Interest payable at the Post-Default Rate shall be payable from time to time on
demand. Promptly after the determination of any interest rate provided for
herein or any change therein, the Agent shall give notice thereof to the Lenders
to which such interest is payable and to the Borrower. All determinations by the
Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.
Section 4. Number of Interest Periods.
There may be no more than 6 different Interest Periods outstanding at
the same time.
Section 5.2 Repayment of Loans.
The Borrower shall repay the entire outstanding principal amount of,
and all accrued but unpaid interest on, the Revolving Loans on the Termination
Date.
Section 6.2 Prepayments.
(a) Optional. Subject to Section 5.4., the Borrower may prepay
any Loan at any time without premium or penalty. The Borrower shall give the
Agent at least 3 Business Days prior written notice of the prepayment of any
Loan.
(b) Mandatory.
(i) Outstandings in Excess of Commitments. If at any time the
aggregate principal amount of all outstanding Revolving Loans, together
with the aggregate principal amount of all Letter of Credit
Liabilities, exceeds the aggregate amount of the Commitments in effect
at such time, the Borrower shall immediately pay to the Agent for the
account of the Lenders the amount of such excess.
(ii) Outstandings in Excess of Borrowing Base. If at any time
the aggregate outstanding principal balance of Loans, together with the
aggregate principal amount of all Letter of Credit Liabilities, exceeds
the Borrowing Base, then the Borrower shall, within 10 days of the
Borrower obtaining actual knowledge of the occurrence of such excess,
send written notice of such excess to the Agent and each of the Lenders
and eliminate such excess.
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If such excess is not eliminated within 45 days of the Borrower
obtaining actual knowledge of the occurrence thereof, then the entire
outstanding principal balance of all Loans, together with an amount
equal to the aggregate principal amount of all Letter of Credit
Liabilities, shall be immediately due and payable in full.
All payments under this Section shall be applied to pay all amounts of principal
outstanding on the Loans and any Reimbursement Obligations pro rata in
accordance with Section 3.2. and the remainder, if any, shall be deposited into
the Collateral Account for application to any Reimbursement Obligations. If the
Borrower is required to pay any outstanding LIBOR Loans by reason of this
Section prior to the end of the applicable Interest Period therefor, the
Borrower shall pay all amounts due under Section 5.4.
Section 7. Continuation.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period
selected under this Section shall commence on the last day of the immediately
preceding Interest Period. Each selection of a new Interest Period shall be made
by the Borrower giving to the Agent a Notice of Continuation not later than
11:00 a.m. on the third Business Day prior to the date of any such Continuation.
Such notice by the Borrower of a Continuation shall be by telephone or telecopy,
confirmed immediately in writing if by telephone, in the form of a Notice of
Continuation, specifying (a) the proposed date of such Continuation, (b) the
LIBOR Loans and portions thereof subject to such Continuation and (c) the
duration of the selected Interest Period, all of which shall be specified in
such manner as is necessary to comply with all limitations on Loans outstanding
hereunder. Each Notice of Continuation shall be irrevocable by and binding on
the Borrower once given. Promptly after receipt of a Notice of Continuation, the
Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission of the proposed Continuation. If the Borrower shall fail to select
in a timely manner a new Interest Period for any borrowing of LIBOR Loans in
accordance with this Section, such Loans will automatically, on the last day of
the current Interest Period therefor, Convert into Base Rate Loans
notwithstanding failure of the Borrower to comply with Section 2.8.
Section 8. Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Agent, Convert all or a portion of a Loan of one
Type into a Loan of another Type. Any Conversion of a LIBOR Loan into a Base
Rate Loan shall be made on, and only on, the last day of an Interest Period for
such LIBOR Loan and, upon Conversion of a Base Rate Loan into a LIBOR Loan, the
Borrower shall pay accrued interest to the date of Conversion on the principal
amount so Converted. Each such Notice of Conversion shall be given not later
than 11:00 a.m. on the Business Day prior to the date of any proposed Conversion
into Base Rate Loans and on the third Business Day prior to the date of any
proposed Conversion into LIBOR Loans. Promptly after receipt of a Notice of
Conversion, the Agent shall notify each Lender by telex or telecopy, or other
similar form of transmission of the proposed Conversion. Subject to the
restrictions specified above, each Notice of Conversion shall be by telephone
(confirmed immediately in writing) or telecopy in the form of
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a Notice of Conversion specifying (a) the requested date of such Conversion, (b)
the Type of Loans to be Converted, (c) the portion of such Type of Loans to be
Converted, (d) the Type of Loans such Loans are to be Converted into and (e) if
such Conversion is into LIBOR Loans, the requested duration of the Interest
Period of such Loans. Each Notice of Conversion shall be irrevocable by and
binding on the Borrower once given.
Section 9.2 Notes.
(a) Revolving Note. The Revolving Loans made by each Lender shall, in
addition to this Agreement, also be evidenced by a promissory note of the
Borrower substantially in the form of Exhibit K (each a "Revolving Note"),
payable to the order of such Lender in a principal amount equal to the amount of
its Commitment as originally in effect and otherwise duly completed.
(b) Records; Endorsement on Transfer. The date, amount of each Loan
made by each Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by such Lender on its books and such
entries shall be binding on the Borrower absent manifest error. Prior to the
transfer of any Note, the Lender shall endorse such items on such Note or any
allonge thereof; provided that the failure of such Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing hereunder or under such Note in
respect of the Loans evidenced by such Note.
Section 10.2 Voluntary Reductions of the Commitment; Termination of Commitments
From Minimum Borrowing Base.
The Borrower shall have the right to terminate or reduce the aggregate
unused amount of the Commitments (for which purpose use of the Commitments shall
be deemed to include the aggregate amount of Letter of Credit Liabilities) at
any time and from time to time without penalty or premium upon not less than 5
Business Days prior written notice to the Agent of each such termination or
reduction, which notice shall specify the effective date thereof and the amount
of any such reduction and shall be irrevocable once given and effective only
upon receipt by the Agent. The Agent will promptly transmit such notice to each
Lender. The Commitments, once terminated or reduced may not be increased or
reinstated; provided, however, that if after giving effect to any such
reduction, the aggregate amount of the Commitments would be less than
$80,000,000, then the Commitments shall be reduced to zero and except as
otherwise provided herein, the provisions of this Agreement shall terminate. In
addition, if the aggregate Borrowing Base Values of all Borrowing Base
Properties shall be (i) less than $100,000,000 at any time or (ii) less than
$120,000,000 but greater than or equal to $100,000,000 for a period in excess of
60 days, then the Requisite Lenders may, by written notice to the Borrower,
terminate all of the Commitments, whereupon all Loans and other Obligations
shall become immediately due and payable in full, and except as otherwise
provided herein, the provisions of this Agreement shall terminate. Any reduction
in the aggregate amount of the Commitments shall result in a proportionate
reduction (rounded to the next lowest integral multiple of $100,000) in the L/C
Commitment Amount.
Section 11. Extension of Termination Date.
The Borrower may request that the Lenders extend the current
Termination Date by one year by executing and delivering to the Agent at least
30 days but not more than 90 days prior to the date
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(the "Anniversary Date") two years before the current Termination Date, a
written request in the form of Exhibit L (an "Extension Request"). The Agent
shall forward to each Lender a copy of each Extension Request delivered to the
Agent promptly after receipt thereof. If all of the Lenders shall have notified
the Agent in writing on or prior to the applicable Anniversary Date that they
accept such Extension Request, then the Termination Date shall be extended for
one year. If any Lender shall not have notified the Agent on or prior to
Anniversary Date that it accepts such Extension Request, the current Termination
Date shall not be extended. The Agent shall promptly notify the Borrower whether
the Extension Request has been accepted or rejected. The Borrower understands
that this Section has been included in this Agreement for the Borrower's
convenience in requesting an extension of the Termination Date and the Borrower
acknowledges that none of the Lenders has promised (either expressly or
impliedly), nor has any obligation or commitment whatsoever, to extend the
Termination Date at any time. This Section shall apply to the initial
Termination Date and to any extensions thereof.
Section 12.3 Expiration or Maturity Date of Letters of Credit
Past Termination Date.
If on the date (the "Facility Termination Date") the Commitments are
terminated (whether voluntarily, by reason of the occurrence of an Event of
Default or otherwise), there are any Letters of Credit outstanding hereunder,
the Borrower shall, on the Facility Termination Date, pay to the Agent an amount
of money equal to the Stated Amount of such Letter(s) of Credit for deposit into
the Collateral Account. If a drawing pursuant to any such Letter of Credit
occurs on or prior to the expiration date of such Letter of Credit, the Borrower
authorizes the Agent to use the monies deposited in the Collateral Account to
make payment to the beneficiary with respect to such drawing or the payee with
respect to such presentment. If no drawing occurs on or prior to the expiration
date of such Letter of Credit, the Agent shall pay to the Borrower (or to
whomever else may be legally entitled thereto) the monies deposited in the
Collateral Account with respect to such outstanding Letter of Credit as provided
in and subject to the terms of Section 11.5.
Section 13.3 Increase of Commitments.
The Borrower shall have the right to request increases in the aggregate
amount of the Commitments from time to time (provided that after giving effect
to any such increase the aggregate amount of the Commitments would not exceed
$150,000,000) by providing written notice to the Agent, which notice shall be
irrevocable once given. The Agent shall promptly notify each Lender of any such
request. Each existing Lender shall have the right to increase its Commitment by
an amount so that such Lender's Commitment Percentage shall not be decreased as
a result of such requested increase in the Commitments. Each Lender shall notify
the Agent within 10 Business Days after receipt of the Agent's notice whether
such Lender wishes to increase the amount of its Commitment. If a Lender fails
to deliver any such notice to the Agent within such time period, then such
Lender shall be deemed to have declined to increase its Commitment. No Lender
shall be required to increase its Commitment and any new Lender(s) becoming a
party to this Agreement in connection with any such requested increase must be
an Eligible Assignee. In the event a new Lender or Lenders become a party to
this Agreement, or if any existing Lender agrees to increase its Commitment,
such Lender shall on the date it becomes a Lender hereunder (or increases its
Commitment, in the case of an existing Lender) (and as a condition thereto)
purchase from the other Lenders its Lender's Commitment Percentage (as
determined after giving effect to the increase of Commitments) of any
outstanding Loans, by making available to the Agent for the account of such
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other Lenders at the Principal Office, in same day funds, an amount equal to the
sum of (A) the portion of the outstanding principal amount of such Loans to be
purchased by such Lender plus (B) the aggregate amount of payments previously
made by such Lender under Section 2.2.(j) which have not been repaid plus (C)
interest accrued and unpaid to and as of such date on such portion of the
outstanding principal amount of such Loans. Upon any such assignment, the
assigning Lender shall be deemed to represent and warrant to such other Lender
that such assigning Lender is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and assumes
no responsibility with respect to any Loan being assigned, the Loan Documents or
any Loan Party. No increase of the Commitments may be effected under this
Section if a Default or Event of Default shall be in existence on the effective
date of such increase. In connection with any increase in the aggregate amount
of the Commitments pursuant to this subsection, the Borrower shall make
appropriate arrangements so that each new Lender, and any existing Lender
increasing its Commitment, receives a new or replacement Note, as appropriate,
in the amount of such Lender's Commitment within 2 Business Days of the
effectiveness of the applicable increase in the aggregate amount of Commitments.
ARTICLE I.3 Payments, Fees and Other General Provisions
Section 1.3 Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement or any other Loan Document shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the Agent at its
Principal Office, not later than 2:00 p.m. on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day). Prior to making
any such payment, the Borrower shall give the Agent notice of such payment. The
Borrower shall, at the time of making each payment under this Agreement or any
Note, specify to the Agent the amounts payable by the Borrower hereunder to
which such payment is to be applied. Each payment received by the Agent for the
account of a Lender under this Agreement or any Note shall be paid to such
Lender at the applicable Lending Office of such Lender no later than 5:00 p.m.
on the date of receipt. If the Agent fails to pay such amount to a Lender as
provided in the previous sentence, the Agent shall pay interest on such amount
until paid at a rate per annum equal to the Federal Funds Rate from time to time
in effect. If the due date of any payment under this Agreement or any other Loan
Document would otherwise fall on a day which is not a Business Day such date
shall be extended to the next succeeding Business Day and interest shall be
payable for the period of such extension.
Section 2.3 Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) shall be made from the Lenders, each payment
of the Fees under Section 3.6.(a) shall be made for the account of the Lenders,
and each termination or reduction of the amount of the Commitments under Section
2.10. shall be applied to the respective Commitments of the Lenders,
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in each case, pro rata according to the amounts of their respective Commitments;
(b) each payment or prepayment of principal of Revolving Loans by the Borrower
shall be made for the account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Revolving Loans held by them,
provided that if immediately prior to giving effect to any such payment in
respect of any Revolving Loans the outstanding principal amount of the Revolving
Loans shall not be held by the Lenders pro rata in accordance with their
respective Commitments in effect at the time such Loans were made, then such
payment shall be applied to the Revolving Loans in such manner as shall result,
as nearly as is practicable, in the outstanding principal amount of the
Revolving Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Revolving Loans by the
Borrower shall be made for the account of the Lenders pro rata in accordance
with the amounts of interest on such Loans then due and payable to the
respective Lenders; (d) the making, Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 5.6.)
shall be made pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of making of Loans) or their respective
Loans (in the case of Conversions and Continuations of Loans) and the then
current Interest Period for each Lender's portion of each Loan of such Type
shall be coterminous; and (e) the Lenders' participation in, and payment
obligations in respect of, Letters of Credit under Section 2.2., shall be pro
rata in accordance with their respective Commitments.
Section 3.3 Sharing of Payments, Etc.
The Borrower agrees that, in addition to (and without limitation of)
any right of set-off, banker's lien or counterclaim a Lender or the Agent may
otherwise have, each Lender and the Agent shall be entitled during the
continuance of an Event of Default, at its option, and in the case of any Lender
subject to receipt of the Agent's prior written consent, to offset balances held
by it for the account of the Borrower at any of such Lender's (or the Agent's)
offices, in Dollars or in any other currency, against any principal of, or
interest on, any of such Lender's Loans hereunder (or other Obligations owing to
such Lender or the Agent hereunder) which is not paid when due (regardless of
whether such balances are then due to the Borrower), in which case such Lender
shall promptly notify the Borrower, all other Lenders and the Agent thereof;
provided, however, such Lender's failure to give such notice shall not affect
the validity of such offset. If the Agent shall not respond to a Lender's
written request that the Agent consent to such Lender exercising a right of
setoff subject to this Section within 10 Business Days of the Agent's receipt of
such request, then the Agent shall be deemed to have consented to such request.
If a Lender shall obtain payment of any principal of, or interest on, any Loan
made by it to the Borrower under this Agreement, or shall obtain payment on any
other Obligation owing by the Borrower or any other Loan Party through the
exercise of any right of set-off, banker's lien or counterclaim or similar right
or otherwise or through voluntary prepayments directly to a Lender or other
payments made by the Borrower to a Lender not in accordance with the terms of
this Agreement and such payment should be distributed to the Lenders pro rata in
accordance with Section 3.2. or Section 11.4., as applicable, such Lender shall
promptly pay such amounts to the other Lenders and make such other adjustments
from time to time as shall be equitable, to the end that all the Lenders shall
share the benefit of such payment (net of any reasonable expenses which may be
incurred by such Lender in obtaining or preserving such benefit) pro rata in
accordance with Section 3.2. or Section 11.4. To such end, all the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
Nothing contained herein shall require any Lender or the Agent to exercise any
such right or shall affect the right of any Lender or the
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Agent to exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of the Borrower or any other
Loan Party.
Section 4.2 Several Obligations.
No Lender shall be responsible for the failure of any other Lender to
make a Loan or to perform any other obligation to be made or performed by such
other Lender hereunder, and the failure of any Lender to make a Loan or to
perform any other obligation to be made or performed by it hereunder shall not
relieve the obligation of any other Lender to make any Loan or to perform any
other obligation to be made or performed by such other Lender.
Section 5. Minimum Amounts.
(a) Borrowings. Each borrowing of Base Rate Loans shall be in an
aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess thereof. Each borrowing of LIBOR Loans, and each Conversion of Base Rate
Loans to LIBOR Loans, shall be in an aggregate minimum amount of $1,000,000 and
integral multiples of $500,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess thereof.
(c) Reductions of Commitments. Each reduction of the Commitments under
Section 2.10. shall be in an aggregate minimum amount of $10,000,000 and
integral multiples of $1,000,000 in excess thereof.
(d) Letters of Credit. The initial Stated Amount of each Letter of
Credit shall be at least $100,000; provided, however, that the Borrower may
request up to four Letters of Credit with an initial Stated Amount less than
$100,000 but greater than or equal to $25,000.
Section 6.3 Fees.
(a) Unused Commitment Fee. During the period commencing on the
Agreement Date through but excluding the Termination Date, the Borrower agrees
to pay to the Agent for the account of the Lenders an unused commitment fee
equal to one-quarter of one percent (0.25%) per annum of the daily aggregate
unused portion of the Commitments. Such fee shall be payable quarterly in
arrears on the first day of each January, April, July and October, commencing on
July 1, 2000 and on the Termination Date. For purposes of clarification, use of
the Commitments shall be deemed to include the aggregate amount of Letter of
Credit Liabilities.
(b) Eligible Property Review Fee. The Borrower agrees to pay to the
Agent for the account of the Lenders a fee equal to $250 per Lender for each
Property which the Borrower has requested become a Borrowing Base Property
(excluding the Properties initially designated as Borrowing Base Properties
under Section 4.1.(a)). Such fee shall be payable upon the Borrower's receipt of
notice that the Agent is prepared to proceed with acceptance of such Property as
a Borrowing Base Property and shall be payable only to each Lender which has
approved (or is deemed to have approved) of the designation of such Property as
a Borrowing Base Property.
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(c) Letter of Credit Fees. In respect of each Letter of Credit, the
Borrower agrees to pay to the Agent for account of each Lender a letter of
credit fee (determined on a per annum basis) in an amount equal to (i) the
initial Stated Amount of such Letter of Credit times the Applicable Margin for
LIBOR Loans determined as of the date of issuance of such Letter of Credit
calculated for the period from and including the date of issuance of such Letter
of Credit to and including the initial date such Letter of Credit is to expire,
and (ii) in the case of the extension of the expiration date of any Letter of
Credit (whether as a result of the operation of an automatic extension clause or
otherwise), the Stated Amount of such Letter of Credit on the effective date of
such extension times the Applicable Margin for LIBOR Loans determined as of such
date calculated for the period from but excluding the previous expiration date
to and including the extended expiration date. In addition, the Borrower shall
pay to the Agent for its own account and not the account of any Lender, a
fronting fee in respect of each Letter of Credit at the rate equal to one-eighth
of one percent (0.125%) per annum on the initial Stated Amount of such Letter of
Credit calculated for the same such period. The fees provided for in the
immediately preceding two sentences shall be nonrefundable upon and due and
payable in full on the date of issuance of the applicable Letter of Credit. The
Borrower shall pay directly to the Agent from time to time on demand all
commissions, charges, costs and expenses in the amounts customarily charged by
the Agent from time to time in like circumstances with re spect to the issuance
of each Letter of Credit, drawings, amendments and other transactions relating
thereto.
Section 7.3 Computations.
Unless otherwise expressly set forth herein, any accrued interest on
any Loan, any Fees or other Obligations due hereunder shall be computed on the
basis of a year of 360 days and the actual number of days elapsed.
Section 8.3 Usury.
In no event shall the amount of interest due or payable on the Loans or
other Obligations exceed the maximum rate of interest allowed by Applicable Law
and, if any such payment is paid by the Borrower or received by any Lender, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the respective Lender in writing that the Borrower elects to have
such excess sum returned to it forthwith. It is the express intent of the
parties hereto that the Borrower not pay and the Lenders not receive, directly
or indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under Applicable Law.
Section 9.3 Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge
imposed upon the Borrower for the use of money in connection with this Agreement
is and shall be the interest specifically described in Section 2.3.(a)(i) and
(a)(ii). Notwithstanding the foregoing, the parties hereto further agree and
stipulate that all agency fees, syndication fees, unused commitment fees, letter
of credit fees, underwriting fees, default charges, late charges, funding or
"breakage" charges, increased cost charges, attorneys' fees and reimbursement
for costs and expenses paid by the Agent or any Lender to third parties or for
damages incurred by the Agent or any Lender, are charges made to compensate the
Agent or any such Lender for underwriting or administrative services and costs
or losses performed or incurred, and to be performed or incurred, by the Agent
and the Lenders in connection
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with this Agreement and shall under no circumstances be deemed to be charges for
the use of money. All charges other than charges for the use of money shall be
fully earned and nonrefundable when due.
Section 10.3 Statements of Account.
The Agent will account to the Borrower monthly with a statement of
Loans, Letters of Credit, accrued interest and Fees, charges and payments made
pursuant to this Agreement and the other Loan Documents, and such account
rendered by the Agent shall be deemed conclusive upon Borrower absent manifest
error. The failure of the Agent to deliver such a statement of accounts shall
not relieve or discharge the Borrower from any of its obligations hereunder.
Section 11. Defaulting Lenders.
(a) Generally. If for any reason any Lender (a "Defaulting Lender")
shall fail or refuse to perform any of its obligations under this Agreement or
any other Loan Document to which it is a party within the time period specified
for performance of such obligation or, if no time period is specified, if such
failure or refusal continues for a period of 2 Business Days after notice from
the Agent, then, in addition to the rights and remedies that may be available to
the Agent or the Borrower under this Agreement or Applicable Law, such
Defaulting Lender's right to participate in the administration of the Loans,
this Agreement and the other Loan Documents, including without limitation, any
right to vote in respect of, to consent to or to direct any action or inaction
of the Agent or to be taken into account in the calculation of the Requisite
Lenders, shall be suspended during the pendency of such failure or refusal. If a
Lender is a Defaulting Lender because it has failed to make timely payment to
the Agent of any amount required to be paid to the Agent hereunder (without
giving effect to any notice or cure periods), in addition to other rights and
remedies which the Agent or the Borrower may have under the immediately
preceding provisions or otherwise, the Agent shall be entitled (i) to collect
interest from such Defaulting Lender on such delinquent payment for the period
from the date on which the payment was due until the date on which the payment
is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in
satisfaction of the defaulted payment and any related interest, any amounts
otherwise payable to such Defaulting Lender under this Agreement or any other
Loan Document and (iii) to bring an action or suit against such Defaulting
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. Any amounts received by the Agent in respect of a
Defaulting Lender's Loans shall not be paid to such Defaulting Lender and shall
be held uninvested by the Agent and either applied against the purchase price of
such Loans under the following subsection (b) or paid to such Defaulting Lender
upon the Defaulting Lender's curing of its default.
(b) Purchase of Defaulting Lender's Commitment. Any Lender who is not a
Defaulting Lender shall have the right, but not the obligation, in its sole
discretion, to acquire all of a Defaulting Lender's Commitment. Any Lender
desiring to exercise such right shall give written notice thereof to the Agent
no sooner than 2 Business Days and not later than 10 Business Days after such
Defaulting Lender became a Defaulting Lender. If more than one Lender exercises
such right, each such Lender shall have the right to acquire an amount of such
Defaulting Lender's Commitment in proportion to the Commitments of the other
Lenders exercising such right. Upon any such purchase, the Defaulting Lender's
interest in the Loans and its rights hereunder (but not its liability in respect
thereof or under the Loan Documents or this Agreement to the extent the same
relate to the period
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prior to the effective date of the purchase) shall terminate on the date of
purchase, and the Defaulting Lender shall promptly execute all documents
reasonably requested to surrender and transfer such interest to the purchaser
thereof, including an appropriate Assignment and Acceptance Agreement and,
notwithstanding Section 13.5.(d), shall pay to the Agent an assignment fee in
the amount of $6,000. The purchase price for the Commitment of a Defaulting
Lender shall be equal to the amount of the principal balance of the Loans
outstanding and owed by the Borrower to the Defaulting Lender. Prior to payment
of such purchase price to a Defaulting Lender, the Agent shall apply against
such purchase price any amounts retained by the Agent pursuant to the last
sentence of the immediately preceding subsection (a). The Defaulting Lender
shall be entitled to receive amounts owed to it by the Borrower under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by the Agent from or on behalf of
the Borrower. There shall be no recourse against any Lender or the Agent for the
payment of such sums except to the extent of the receipt of payments from any
other party or in respect of the Loans.
Section 12.3 Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits and (iv)
any taxes arising after the Agreement Date solely as a result of or attributable
to a Lender changing its designated Lending Office after the date such Lender
becomes a party hereto (such non-excluded items being collectively called
"Taxes"). If any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority
the full amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received
by the Agent or such Lender will equal the full amount that the Agent
or such Lender would have received had no such withholding or deduction
been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes
when due to the appropriate Governmental Authority or fails to remit to the
Agent, for its account or the account of the respective Lender, as the case may
be, the required receipts or other required documentary evidence, the Borrower
shall indemnify the Agent and the Lenders for any incremental Taxes, interest or
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penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
(c) Tax Forms. Prior to the date that any Lender or participant
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the Agent
such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto (including Internal
Revenue Service Forms W-8ECI or W-8BEN, as applicable, or appropriate successor
forms), properly completed, currently effective and duly executed by such Lender
or participant establishing that payments to it hereunder and under the Notes
are (i) not subject to United States Federal backup withholding tax or (ii) not
subject to United States Federal withholding tax under the Code because such
payment is either effectively connected with the conduct by such Lender or
participant of a trade or business in the United States or totally exempt from
United States Federal withholding tax by reason of the application of the
provisions of a treaty to which the United States is a party or such Lender is
otherwise exempt.
ARTICLE I.3 Borrowing Base Properties
Section 1. Eligibility of Properties.
(a) As of the Agreement Date, the Lenders have approved for inclusion in
calculations of the Borrowing Base the Properties identified on Schedule 4.1.,
as well as the Borrowing Base Value initially attributable to each such
Property. Upon satisfaction of the conditions set forth in Section 6.3., such
Properties shall become Borrowing Base Properties.
(b) If, after the Agreement Date, the Borrower desires that the Lenders
include any additional Property in calculations of the Borrowing Base, the
Borrower shall so notify the Agent in writing. No Property will be evaluated by
the Lenders unless it is an Eligible Property, and unless and until the Borrower
delivers to the Agent the following, in form and substance satisfactory to the
Agent:
(i) a description of such Property, such description to
include the age, location, size and Occupancy Rate of such Property;
(ii) an operating statement and a rent roll for such Property
for the two prior fiscal years, for the current fiscal year through the
fiscal quarter most recently ending and for the current fiscal quarter,
certified by a representative of the Borrower to the best of such
representative's knowledge as being true and correct in all material
respects provided that, with respect to any period such Property was
not owned by a Loan Party, such information shall only be required to
be delivered to the extent reasonably available to the Borrower;
(iii) an operating budget for such Property with respect to the
current fiscal year;
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(iv) copies of all engineering, mechanical, structural and
maintenance studies performed with respect to such Property not more
than twelve months old;
(v) a "Phase I" environmental assessment of such Property not
more than 12 months old prepared by an environmental engineering firm
acceptable to the Agent, and any additional environmental studies or
assessments available to the Borrower performed with respect to such
Property;
(vi) a copy of the most recent ALTA Owner's Policy of Title
Insurance (or if such policy has not been issued, a binding commitment
to issue such policy) relating to such Property showing fee simple
title being vested in the Borrower or a Subsidiary and all matters of
record;
(vii) evidence that such Property complies with applicable
zoning and land use laws;
(viii) copies of any leases covering 5,000 square feet or more of
such Property;
(ix) copies of (A) all Property Management Agreements and all
other material contracts, if any, which will relate to the use,
occupancy, operation, maintenance, enjoyment or ownership of such
Property, and (B) if such Property is not yet owned by the Borrower or
a Subsidiary, the purchase agreement pursuant to which the Borrower or
a Subsidiary is to acquire such Property; and
(x) such other information the Agent or Lenders may reasonably
request in order to evaluate such Property.
(c) If, after receipt and review of the foregoing documents and
information, the Agent is prepared to proceed with acceptance of such Property
as a Borrowing Base Property, the Agent will so notify the Borrower and each
Lender within 10 Business Days after receipt of all of the information provided
above, and the Agent will obtain an Appraisal of such Property in order to
determine the Appraised Value thereof. After obtaining such Appraisal, the Agent
will promptly submit the foregoing documents and information, including the
Appraisal and the Appraised Value, to the Lenders, for approval by the Requisite
Lenders within 10 Business Days thereafter. Each Lender shall notify the Agent
whether it approves of the designation of such Property as a Borrowing Base
Property within 10 Business Days of receipt of all such documents and
information. If a Lender shall fail to so notify the Agent, then such Lender
shall be deemed to have approved of such Property. Upon approval of such
Property by the Requisite Lenders, and upon execution and delivery of all of the
following, such Property shall become a Borrowing Base Property:
(i) if at such time the Borrower does not have an Investment Grade Rating from
the Rating Agencies, all of the documents required to be provided under
Section 6.3. if not previously delivered to the Agent; and
(ii) such other items or documents as may be appropriate under the circumstances
as reasonably requested by the Agent.
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Section 2. Release of Eligible Properties.
From time to time the Borrower may request, upon not less than 30 days
prior written notice to the Agent, that a Borrowing Base Property that is
subject to a Security Deed be released from the Liens created by such Security
Deed and the other Collateral Documents applicable thereto, which release (the
"Property Release") shall be effected by the Agent if the Agent determines all
of the following conditions are satisfied as of the date of such Property
Release:
(a) no Default or Event of Default has occurred and is then continuing
or will occur after giving effect to such Property Release and the reduction in
the Borrowing Base by reason of the release of such Borrowing Base Property;
(b) the Borrower shall have delivered to the Agent a Borrowing Base
Certificate reflecting the Borrowing Base after giving effect to such Property
Release;
(c) the Borrower shall have delivered to the Agent all documents and
instruments reasonably requested by the Agent in connection with such Property
Release including, without limitation, the following:
(i) the quitclaim deed or other instrument to be used to effect such Property
Release; and
(ii) an appropriate endorsement to the mortgagee title insurance policy in
effect with respect to the affected Borrowing Base Property (and
appropriate corrective endorsements with respect to any other mortgagee
policies of title insurance on Borrowing Base Properties which have tie-in
clauses which are affected by the release); and
(d) Agent shall have determined that the outstanding principal balance
of the Loans, together with the aggregate principal amount of all Letter of
Credit Liabilities, will not exceed the Borrowing Base after giving effect to
such Property Release and any prepayment to be made and/or the acceptance of any
Property pursuant to Section 4.1. which is to be given concurrently with such
Property Release as an additional or replacement Borrowing Base Property.
Section 3.1.4. Frequency of Calculations of Borrowing Base.
Initially, the Borrowing Base shall be the amount set forth as such in
the Borrowing Base Certificate delivered under Section 6.1. Thereafter, the
Borrowing Base shall be the amount set forth as such in the Borrowing Base
Certificate delivered from time to time under Section 9.4.(b) or 4.2.(b). Any
increase in the Borrowing Base Value of an Eligible Property shall become
effective as of the next determination of the Borrowing Base as provided in this
Section, provided that prior to such date of determination (a) the applicable
Borrowing Base Certificate substantiates such increase and (b) if at such time
such Borrowing Base Property is subject to a Security Deed, the Borrower
delivers to the Agent (i) if the Property is not located in a Tie-In
Jurisdiction, an endorsement to the title insurance policy in favor of the Agent
with respect to such Property increasing the coverage amount thereof as related
to such Property to not less than 100% of the Borrowing Base Value for such
Property and (ii) if the Property is located in a Tie-In Jurisdiction, an
endorsement to the title insurance policy in favor of the Agent with respect to
such Property
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increasing the coverage amount thereof as related to such Property to not less
than the Borrowing Base Value of such Property, as well as endorsements to all
other existing title insurance policies issued to the Agent with respect to all
other Properties located in Tie-In Jurisdictions reflecting an increase in the
aggregate insured amount under the "tie-in" endorsements to an amount equal to
the aggregate amount of the Borrowing Base Values of all such Properties
(including the Property which experienced the increase in Borrowing Base Value)
but in no event in an amount in excess of the aggregate amount of the
Commitments.
Section 4. Additional Appraisals Required under Applicable Law.
If under FIRREA or any other Applicable Law, a Lender is required to
obtain an Appraisal of any Eligible Property subject to a Mortgage in addition
to any other Appraisal previously obtained with respect to such Eligible
Property pursuant to this Agreement, the Agent shall have the right to cause
such an Appraisal to be prepared at the Borrower's cost and expense. The
Borrowing Base Value of such Eligible Property shall only be redetermined as a
result of delivery of any such new Appraisal if Applicable Law requires such
redetermination, in which case such Borrowing Base Value shall be redetermined
in the manner required under such Applicable Law.
ARTICLE I.4 Yield Protection, Etc.
Section 1.3 Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly pay to the Agent for
the account of a Lender from time to time such amounts as such Lender may
reasonably determine to be necessary to compensate such Lender for any costs
incurred by such Lender that it determines are attributable to its making or
maintaining of any LIBOR Loans or its obligation to make any LIBOR Loans
hereunder, any reduction in any amount receivable by such Lender under this
Agreement or any of the other Loan Documents in respect of any of such Loans or
such obligation or the maintenance by such Lender of capital in respect of its
Loans or its Commitments (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or any of the other Loan Documents in
respect of any of such Loans or its Commitments (other than taxes imposed on or
measured by the overall net income of such Lender or of its Lending Office for
any of such Loans by the jurisdiction in which such Lender has its principal
office or such Lending Office); or (ii) imposes or modifies any reserve, special
deposit or similar requirements (other than Regulation D of the Board of
Governors of the Federal Reserve System or other reserve requirement utilized in
the determination of the Adjusted Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender, or any commitment of such Lender (including,
without limitation, the Commitments of such Lender hereunder); or (iii) has or
would have the effect of reducing the rate of return on capital of such Lender
to a level below that which such Lender could have achieved but
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for such Regulatory Change (taking into consideration such Lender's policies
with respect to capital adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of
the provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert any other Type of
Loans into, LIBOR Loans hereunder shall be suspended until such Regulatory
Change ceases to be in effect (in which case the provisions of Section 5.6.
shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting
the obligations of the Borrower under the preceding subsections of this Section
(but without duplication), if as a result of any Regulatory Change or any
risk-based capital guideline or other requirement heretofore or hereafter issued
by any Governmental Authority there shall be imposed, modified or deemed
applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of
Credit and the result shall be to increase the cost to the Agent of issuing (or
any Lender purchasing participations in) or maintaining its obligation hereunder
to issue (or purchase participations in) any Letter of Credit or reduce any
amount receivable by the Agent or any Lender hereunder in respect of any Letter
of Credit, then, upon demand by the Agent or such Lender, the Borrower shall pay
immediately to the Agent for its account or the account of such Lender, as
applicable, from time to time as specified by the Agent or a Lender, such
additional amounts as shall be sufficient to compensate the Agent or such Lender
for such increased costs or reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the
Agent and each Lender agrees to notify the Borrower of any event occurring after
the Agreement Date entitling the Agent or such Lender to compensation under any
of the preceding subsections of this Section as promptly as practicable;
provided, however, the failure of the Agent or any Lender to give such notice
shall not release the Borrower from any of its obligations hereunder. The Agent
and or such Lender agrees to furnish to the Borrower a certificate setting forth
the basis and amount of each request by the Agent or such Lender for
compensation under this Section. Determinations by the Agent or any Lender of
the effect of any Regulatory Change shall be conclusive, provided that such
determinations are made on a reasonable basis and in good faith.
Section 2.2 Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any Adjusted Eurodollar Rate for any Interest Period:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Adjusted Eurodollar Rate for such Interest Period, or
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(b) the Agent determines (which determination shall be
conclusive) that the Adjusted Eurodollar Rate will not adequately and
fairly reflect the cost to the Lenders of making or maintaining LIBOR
Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to, and shall not, make additional LIBOR Loans, Continue LIBOR Loans
or Convert Loans into LIBOR Loans and the Borrower shall, on the last day of
each current Interest Period for each outstanding LIBOR Loan, either repay such
Loan or Convert such Loan into a Base Rate Loan.
Section 3. Illegality.
Notwithstanding any other provision of this Agreement, if it becomes
unlawful for any Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy to the Agent) and such Lender's obligation to make or Continue, or to
Convert Loans of any other Type into, LIBOR Loans shall be suspended until such
time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 5.6. shall be applicable).
Section 4.2 Compensation.
The Borrower shall pay to the Agent for the account of each Lender,
upon the request of such Lender through the Agent, such amount or amounts as
shall be sufficient (in the reasonable opinion of such Lender) to compensate it
for any loss, cost or expense that such Lender determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional)
of a LIBOR Loan, or Conversion of a LIBOR Loan, made by such Lender for
any reason (including, without limitation, acceleration) on a date
other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the applicable conditions
precedent specified in Article VI. to be satisfied) to borrow a LIBOR
Loan from such Lender on the date for such borrowing, or to Convert a
Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the
requested date of such Conversion or Continuation,
such compensation to include, without limitation, an amount equal to the excess,
if any, of (i) the amount of interest that otherwise would have accrued on the
principal amount so paid, prepaid or Converted or not borrowed for the period
from the date of such payment, prepayment, Conversion or failure to borrow or
Convert to the last day of the then current Interest Period for such Loan (or,
in the case of a failure to borrow or Convert, the Interest Period for such Loan
that would have commenced on the date specified for such borrowing or
Conversion) at the applicable rate of interest for such Loan provided for herein
plus such Lender's normal administrative charges, if any, associated with such
payment, prepayment, Conversion or failure to borrow over (ii) the amount of
interest that otherwise would have accrued on such principal amount at a rate
per annum equal to LIBOR at such time for an amount comparable to such principal
amount and for a maturity
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comparable to such period (as reasonably determined by such Lender). Upon the
Borrower's request, any Lender requesting compensation under this Section shall
provide the Borrower with a statement setting forth the basis for requesting
such compensation and the method for determining the amount thereof. Any such
statement shall be conclusive absent manifest error.
Section 5. Affected Lenders.
If any Lender requests compensation pursuant to Section 3.12. or 5.1.,
or the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
5.1.(b), 5.2. or 5.3., then, so long as there does not then exist any Default or
Event of Default, the Borrower may demand that such Lender (the "Affected
Lender"), and upon such demand the Affected Lender shall promptly, assign its
Commitments to an Eligible Assignee subject to and in accordance with the
provisions of Section 13.5.(d) for a purchase price equal to the aggregate
principal balance of Loans then owing to the Affected Lender plus any accrued
but unpaid interest thereon and accrued but unpaid fees owing to the Affected
Lender. Each of the Agent and the Affected Lender shall reasonably cooperate in
effectuating the replacement of such Affected Lender under this Section, but at
no time shall the Agent, such Affected Lender nor any other Lender be obligated
in any way whatsoever to initiate any such replacement or to assist in finding
an Eligible Assignee. The exercise by the Borrower of its rights under this
Section shall be at the Borrower's sole cost and expenses and at no cost or
expense to the Agent, the Affected Lender or any of the other Lenders. The terms
of this Section shall not in any way limit the Borrower's obligation to pay to
any Affected Lender compensation owing to such Affected Lender pursuant to
Section 3.12. or 5.1.
Section 6. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or
to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 5.1.(b), 5.2. or 5.3., then such Lender's LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 5.1.(b) or 5.3., on such earlier date as such Lender may
specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.1., 5.2. or 5.3. that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as Base
Rate Loans, and all Base Rate Loans of such Lender that would otherwise
be Converted into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.1. or 5.3. that gave rise to the Conversion
of such Lender's LIBOR Loans pursuant to this Section no longer exist (which
such Lender agrees to do promptly upon such circumstances ceasing to exist) at a
time when LIBOR Loans made by other Lenders are outstanding,
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then such Lender's Base Rate Loans shall be automatically Converted, on the
first day(s) of the next succeeding Interest Period(s) for such outstanding
LIBOR Loans, to the extent necessary so that, after giving effect thereto, all
Loans held by the Lenders holding LIBOR Loans and by such Lender are held pro
rata (as to principal amounts, Types and Interest Periods) in accordance with
their respective Commitments.
Section 7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.12., 5.1. or 5.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
Section 8. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article V.
shall be made as though such Lender had actually funded LIBOR Loans through the
purchase of deposits in the relevant market bearing interest at the rate
applicable to such LIBOR Loans in an amount equal to the amount of the LIBOR
Loans and having a maturity comparable to the relevant Interest Period;
provided, however, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article V.
ARTICLE I.4 Conditions Precedent
Section 1.4 Initial Conditions Precedent.
The obligation of the Lenders to make the initial Loans hereunder,
whether as the making of any Revolving Loans or the issuance of a Letter of
Credit, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes executed by the Borrower, payable to each Lender and
complying with the terms of Section 2.9.;
(iii)the Guaranty executed by each of the Guarantors initially to be a party
thereto;
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(iv) favorable UCC, tax, judgment and lien search reports with respect to the
Borrower in all necessary or appropriate jurisdictions and under all legal
and appropriate trade names indicating that there are no prior liens on any
of the assets of the Borrower other than Permitted Liens or Liens which
were terminated prior to the Effective Date;
(ix) an opinion of Ballard Spahr Andrews & Ingersoll, LLP, counsel to the
Parent, the Borrower and the other Loan Parties, and addressed to the Agent
and the Lenders in substantially the form of Exhibit M;
(x) An opinion of Manning, Fulton and Skinner, counsel to the Parent, the
Borrower and the other Loan Parties, addressed to the Agent and the
Lenders, regarding the enforceability of the Agreement and the other Loan
Documents under the laws of the State of North Carolina, and such other
matters of North Carolina law as the Agent may reasonably request;
(xi) the Certificate of Limited Partnership of the Borrower certified as of a
recent date by the State Department of Assessments and Taxation of the
State of Maryland;
(xii)a Certificate of Good Standing with respect to the Borrower issued as of a
recent date by the State Department of Assessments and Taxation of the
State of Maryland and certificates of qualification to transact business or
other comparable certificates with respect to the Borrower issued by each
Secretary of State (and any state department of taxation, as applicable) of
each state in which the Borrower is required to be so qualified;
(xiii) a certificate of incumbency signed by the Secretary or Assistant
Secretary of the Parent with respect to each of the officers of the Parent
authorized to execute and deliver Loan Documents to which the Parent or the
Borrower is a party and to execute and deliver on behalf of the Borrower
Notices of Borrowing, Notices of Conversion and Notices of Continuation and
to request the issuance of Letters of Credit;
(xiv)a certified copy (certified by the Secretary or Assistant Secretary of the
Parent) of the agreement of limited partnership of the Borrower and of all
necessary action taken by the Parent to authorize the execution, delivery
and performance of the Loan Documents to which the Parent or the Borrower
is a party;
(xv) the certificate or articles of incorporation, articles of organization,
certificate of limited partnership, declaration of trust or other
comparable organizational instrument (if any) of the Parent and each other
Loan Party certified as of a recent date by the Secretary of State of the
State of formation of such Person;
(xvi)a Certificate of Good Standing or certificate of similar meaning with
respect to the Parent and each other Loan Party issued as of a recent date
by the Secretary of State of the State of formation of each such Person and
certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state department of
taxation, as applicable) of each state in which such Person is required to
be so qualified;
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(xvii) copies certified by the Secretary or Assistant Secretary of the Parent
and each other Loan Party (or other individual performing similar
functions) of (i) the by-laws of such Person, if a corporation, the
operating agreement, if a limited liability company, the partnership
agreement, if a limited or general partnership, or other comparable
document in the case of any other form of legal entity and (ii) all
corporate, partnership, member or other necessary action taken by such
Person to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(xviii) the UBS Assignment Agreement and the First Union Assignment Agreement
executed and delivered by the respective parties thereto;
(xix)a Borrowing Base Certificate calculated as of the Effective Date, which
Borrowing Base Certificate shall indicate that the Borrower has borrowing
capacity hereunder in an amount at least equal to the aggregate amount of
the obligations outstanding under the Existing Credit Agreement immediately
prior to the effectiveness of this Agreement;
(xx) a Compliance Certificate calculated on a pro forma basis as of December 31,
1999, except for the calculation of the Borrowing Base Leverage Ratio which
shall be calculated as of the Effective Date, assuming the occurrence of
the initial Credit Event; and
(xxi)such other documents and instruments as the Agent, or any Lender through
the Agent, may reasonably request; and
(b) In the good faith judgment of the Agent:
(i) There shall not have occurred or become known to the Agent or the Lenders
any event, condition, situation or status since the date of the information
contained in the financial and business projections, budgets, pro forma
data and forecasts concerning the Parent, the Borrower, and other Loan
Party or any of the other Subsidiaries delivered to the Agent and the
Lenders prior to the Agreement Date that has had or could reasonably be
expected to have a Material Adverse Effect;
(ii) No litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened which
could reasonably be expected to (A) result in a Material Adverse Effect or
(B) restrain or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of the Borrower or
any other Loan Party to fulfill its obligations under the Loan Documents to
which it is a party;
(iii)The Parent, the Borrower, each other Loan Party and each other Subsidiary
of the Parent shall have received all approvals, consents and waivers, and
shall have made or given all necessary filings and notices as shall be
required to consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of (A) any
Applicable Law or (B) any agreement, document or instrument to which any
such Person is a party or by which it or its respective properties is
bound, except for such approvals, consents, waivers, filings and notices
the receipt, making or giving of which, or the failure to make, give or
receive which, would not reasonably be likely to (1) have a Material
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Material Adverse Effect, or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and adversely affect the
ability of the Borrower or any other Loan Party to fulfill its obligations
under the Loan Documents to which it is a party; and
(iv) There shall not have occurred or exist any material disruption of financial
or capital markets that could reasonably be expected to materially and
adversely affect the transactions contemplated by the Loan Documents.
Section 2.4 Conditions Precedent to All Loans and Letters of Credit.
The obligation of the Lenders to make any Loans and of the Agent to
issue any Letter of Credit is subject to the further condition precedent that:
(a) no Default or Event of Default shall have occurred and be continuing as of
the date of the making of such Loan or date of issuance of such Letter of
Credit, or would exist immediately after giving effect thereto, including
without limitation, a Default resulting from the existence of the condition
referred to in Section 2.6.(b)(ii); (b) the representations and warranties made
or deemed made by the Borrower and each other Loan Party in the Loan Documents
to which any of them is a party, shall be true and correct on and as of the date
of the making of such Loan or date of issuance of such Letter of Credit with the
same force and effect as if made on and as of such date except to the extent
that such representations and warranties expressly relate solely to an earlier
date (in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically and expressly permitted hereunder; (c) the aggregate
outstanding principal balance of Loans together with the aggregate amount of all
Letter of Credit Liabilities does not exceed the Borrowing Base as of the date
of the making of such Loan or issuance of such Letter of Credit or would exceed
the Borrowing Base immediately after giving effect thereto ; and (d) in the case
of the borrowing of Revolving Loans, the Agent shall have received a timely
Notice of Borrowing. Each Credit Event shall constitute a certification by the
Borrower to the effect set forth in the preceding sentence (both as of the date
of the giving of notice relating to such Credit Event and, unless the Borrower
otherwise notifies the Agent prior to the date of such Credit Event, as of the
date of the occurrence of such Credit Event). In addition, if such Credit Event
is the making of a Loan or the issuance of a Letter of Credit, the Borrower
shall be deemed to have represented to the Agent and the Lender at the time such
Loan is made or Letter of Credit is issued that all conditions to the making of
such Loan or issuance of such Letter of Credit contained in Article VI. have
been satisfied.
Section 3.1.5. Conditions Precedent to a Property Becoming A Borrowing Base
Property if Borrower Not Investment Grade.
No Property shall become a Borrowing Base Property if at such time the
Borrower does not have an Investment Grade Rating from the Rating Agencies until
the Borrower shall have (or shall have caused to be) executed and delivered to
the Agent and the Lenders all documents and instruments required to be so
executed and delivered under Section 4.1., the Requisite Lenders shall have
approved of such Property as provided in such Section, and the Borrower shall
have (or shall have caused to be) executed and delivered to the Agent the
following instruments, documents and agreements in respect of such Property,
each to be in form and substance satisfactory to the Agent:
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(a) a Security Deed encumbering such Property in favor of the Agent for
the benefit of the Lenders, the form of such Security Deed to be modified as
appropriate to conform to the Applicable Laws of the jurisdiction in which such
Property is located;
(b) an Assignment of Leases and Rents, the form of such Assignment of
Leases and Rents to be modified as appropriate to conform to the Applicable Laws
of the jurisdiction in which such Property is located;
(c) an Environmental Indemnity Agreement;
(d) if requested by the Agent, collateral assignments of the other
Material Contract and any other rights or benefits of such Property, relating to
the use, occupancy, operation, maintenance, enjoyment or ownership of such
Property;
(e) an ALTA 1992 Form mortgagee's Policy of Title Insurance (with
deletion of the creditor's rights exclusion and deletion of the mandatory
arbitration provision) or other form acceptable to the Agent in favor of the
Agent for the benefit of the Lenders with respect to such Property, including
endorsements with respect to such items of coverage as the Agent may request
(and which endorsements are available in the applicable state), in a coverage
amount equal to no less than 100% of the Appraised Value of such Property
(excluding the value of any personal property located at such Property), issued
by a title insurance company acceptable to the Agent and with coinsurance or
reinsurance (with direct access agreements) with title insurance companies
acceptable to the Agent, showing the fee simple title to the land and
improvements described in the applicable Security Deed as vested in the Borrower
or a Subsidiary, and insuring that the Lien granted by such Security Deed is a
valid first priority Lien against such Property, subject only to such
restrictions, encumbrances, easements and reservations as are acceptable to the
Agent;
(f) copies of all documents of record reflected in Schedule B of such
Policy of Title Insurance;
(g) if such Property is located in a Tie-In Jurisdiction, endorsements
to all other existing title insurance policies issued to the Agent with respect
to all other Properties located in Tie-In Jurisdictions reflecting an increase
in the aggregate insured amount under the "tie-in" endorsements to an amount
equal to the aggregate amount of the Borrowing Base Values of all such
Properties (including the Property to be included as a Borrowing Base Property)
but in no event in an amount in excess of the aggregate amount of the
Commitments;
(h) a current or currently certified survey of such Property certified
by a surveyor licensed in the jurisdiction where such Property is located to
have been prepared in accordance with the then effective Minimum Standard Detail
Requirements for ALTA/ACSM Land Title Surveys, and if not adequately covered by
the survey certification, a certificate from a licensed engineer or other
professional satisfactory to the Agent that such Property is not located in a
Special Flood Hazard Area as defined by the Federal Insurance Administration;
(i) UCC, tax, judgment and lien search reports with respect to the
Borrower (or if the Property is owned by a Subsidiary, such Subsidiary) and such
Property in all necessary or appropriate jurisdictions and under all legal and
appropriate trade names indicating that there are no
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Liens of record on such Property or any of the Collateral relating thereto other
than Permitted Liens or Liens to be terminated prior to such Property's
acceptance as a Borrowing Base Property;
(j) estoppel certificates from each tenant leasing in 5,000 square feet
or more of such Property as may be reasonably requested by the Agent;
(k) an opinion of counsel admitted to practice law in the jurisdiction
in which such Property is located and acceptable to the Agent, addressed to the
Agent and each Lender covering such legal matters relating to the transactions
contemplated hereby as the Agent may reasonably request;
(l) an opinion of counsel admitted to practice law in the jurisdiction
in which the Borrower is formed (and if the Property is owned by a Subsidiary,
also in the jurisdiction where such Subsidiary is formed) acceptable to the
Agent, addressed to the Agent and each Lender covering such legal matters
relating to the formation and existence and power of the Person executing
documents, and the due authorization, execution and delivery of the Collateral
Documents and other documents for consummating the transactions contemplated
hereby as the Agent may reasonably request;
(m) a Borrowing Base Certificate calculated giving effect to the
inclusion of such Property as a Borrowing Base Property;
(n) if such Property is owned by a Subsidiary that is not already a
Guarantor, all of the items required to be delivered to the Agent under Section
8.16.;
(o) final certificates of occupancy relating to such Property, if
available;
(p) evidence that the insurance required for such Property under
Section 8.5. is then in effect;
(q) if requested by the Agent, a subordination, nondisturbance and
attornment agreement from each tenant selected by the Agent and which leases
5,000 square feet or more of such Property, such subordination, nondisturbance
and attornment agreement to be substantially in the form of Exhibit I or
otherwise in a form reasonably satisfactory to the Agent;
(r) if requested by the Agent, a subordination agreement with respect
to any Property Management Agreement to which such Property is subject, executed
by the applicable property manager; and
(s) such other due diligence materials, instruments, documents,
agreements, financing statements, certificates, opinions and other Collateral
Documents as the Agent may reasonably request.
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ARTICLE I.5 Representations and Warranties
Section 1.5 Representations and Warranties.
In order to induce the Agent and each Lender to enter into this
Agreement and to make Loans and issue Letters of Credit, the Borrower represents
and warrants to the Agent and each Lender as follows:
(a) Organization; Power; Qualification. Each of the Parent, the
Borrower, the other Loan Parties and each other Subsidiary of the Parent is a
corporation, partnership or other legal entity, duly organized or formed,
validly existing and in good standing under the jurisdiction of its
incorporation or formation, has the power and authority to own or lease its
respective properties and to carry on its respective business as now being and
hereafter proposed to be conducted and is duly qualified and is in good standing
as a foreign corporation, partnership or other legal entity, and authorized to
do business, in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification or authorization and
where the failure to be so qualified or authorized would have, in each instance,
a Material Adverse Effect.
(b) Ownership Structure. Part I of Schedule 7.1.(b) is a complete and
correct list of all Subsidiaries of the Parent (including all Subsidiaries of
the Borrower) setting forth for each such Subsidiary, (a) the jurisdiction of
organization of such Subsidiary, (b) each Person holding any Equity Interests in
such Subsidiary (except in the case of the Borrower, each Person holding 5.0% or
more of the outstanding Equity Interest of the Borrower) and (c) the nature of
the Equity Interests held by each such Person and (d) the percentage of
ownership of such Subsidiary represented by such Equity Interests. Except as
disclosed in such Schedule (i) each of the Parent and its Subsidiaries owns,
free and clear of all Liens, and has the unencumbered right to vote, all
outstanding Equity Interests in each Person shown to be held by it on such
Schedule, (ii) all of the issued and outstanding capital stock of each such
Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including,
without limitation, any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, any such Person. Part II of Schedule
7.1.(b) correctly sets forth all Unconsolidated Entities of the Parent,
including the correct legal name of such Person, the type of legal entity which
each such Person is, and all Equity Interests in such Person held directly or
indirectly by the Parent.
(c) Authorization of Agreement, Notes, Loan Documents and Borrowings.
The Borrower has the right and power, and has taken all necessary action to
authorize it, to borrow hereunder. The Parent, the Borrower and each other Loan
Party has the right and power, and has taken all necessary action to authorize
it, to execute, deliver and perform each of the Loan Documents to which it is a
party in accordance with their respective terms and to consummate the
transactions contemplated hereby and thereby. The Loan Documents to which the
Parent, the Borrower or other Loan Party is a party have been duly executed and
delivered by the duly authorized officers of such Person and each is a legal,
valid and binding obligation of such Person enforceable against such Person in
accordance with its respective terms.
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(d) Compliance of Agreement, Notes, Loan Documents and Borrowing with
Laws, etc. The execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents to which the Parent, the Borrower or any other Loan
Party is a party in accordance with their respective terms and the borrowings
hereunder do not and will not, by the passage of time, the giving of notice, or
both: (i) require any Governmental Approval or violate any Applicable Law
(including all Environmental Laws) relating to the Parent, the Borrower, any
other Loan Party or any other Subsidiary of the Parent; (ii) conflict with,
result in a breach of or constitute a default under the articles of
incorporation or the bylaws of Parent, the Borrower, any other Loan Party or any
other Subsidiary of the Parent, or any indenture, agreement or other instrument
to which Parent, the Borrower, any other Loan Party or any other Subsidiary of
the Parent is a party or by which it or any of its respective properties may be
bound; or (iii) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by Parent, the
Borrower, any other Loan Party or any other Subsidiary of the Parent other than
in favor of the Agent for the benefit of the Lenders.
(e) Compliance with Law; Governmental Approvals. The Parent, the
Borrower, each other Loan Party and each other Subsidiary of the Parent is in
compliance with each Governmental Approval applicable to it and in compliance
with all other Applicable Law relating to such Person except for noncompliances
which, and Governmental Approvals the failure to possess which, would not,
individually or in the aggregate, cause a Default or Event of Default or have a
Material Adverse Effect.
(f) Title to Properties; Liens. As of the Agreement Date, Part I of
Schedule 7.1.(f) sets forth all of the real property owned or leased by the
Parent, the Borrower, each other Loan Party and each other Subsidiary of the
Parent and the applicable Occupancy Rate thereof. Each of the Parent, the
Borrower, each other Loan Party and each other Subsidiary of the Parent has
good, marketable and legal title to, or a valid leasehold interest in, its
respective assets. As of the Agreement Date, there are no Liens against any
assets of the Parent, the Borrower, any other Loan Party or any other Subsidiary
except for Permitted Liens.
(g) Existing Indebtedness. Other than the Obligations hereunder and as
set forth on Schedule 7.1.(g), neither the Parent, the Borrower, any other Loan
Party, any of the other Subsidiaries of the Parent, nor any Unconsolidated
Entities has any Indebtedness. The Parent, the Borrower, each other Loan Party,
each of such other Subsidiaries, and each Unconsolidated Entities have performed
and are in compliance with all of the terms of such Indebtedness and all
instruments and agreements relating thereto, and no default or event of default,
or event or condition which with the giving of notice, the lapse of time, a
determination of materiality, the satisfaction of any other condition or any
combination of the foregoing, would constitute such a default or event of
default, exists with respect to any such Indebtedness.
(h) Material Contracts. Schedule 7.1.(h) is, as of the Agreement Date,
a true, correct and complete listing of all Material Contracts. Each of the
Parent, the Borrower, the other Loan Parties and the other Subsidiaries of the
Parent that are parties to any Material Contract has performed and is in
compliance with all of the terms of such Material Contract, and no default or
event of default by the Borrower, any other Loan Party or any other Subsidiary,
or event or condition which with the giving of notice, the lapse of time, a
determination of materiality, the satisfaction of any other condition or any
combination of the foregoing, would constitute such a default or event of
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default by the Borrower, any other Loan Party or any other Subsidiary, exists
with respect to any such Material Contract.
(i) Litigation. Except as set forth on Schedule 7.1.(i), there are no
actions, suits or proceedings pending (nor, to the knowledge of the Borrower,
are there any actions, suits or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting the
Parent, the Borrower, any other Loan Party, any other Subsidiary of the Parent
or any of their respective property in any court or before any arbitrator of any
kind or before or by any other Governmental Authority which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect, and
there are no strikes, slow downs, work stoppages or walkouts or other labor
disputes in progress or threatened relating to the Parent, the Borrower, any
other Loan Party or any other Subsidiary.
(j) REIT Status. The Parent is in compliance with all requirements and
conditions imposed under the Internal Revenue Code to allow the Parent to
maintain its status as a REIT.
(k) Borrowing Base Properties. Each of the Borrowing Base Properties
is an Eligible Property.
(l) Taxes. All federal, state and other tax returns of the Borrower and
any Subsidiary or Loan Party required by Applicable Law to be filed have been
duly filed, and all federal, state and other taxes, assessments and other
governmental charges or levies upon the Borrower, any Subsidiary and each Loan
Party and its respective properties, income, profits and assets which are due
and payable have been paid, except any such nonpayment which is at the time
permitted under Section 8.6. None of the United States income tax returns of the
Borrower, its Subsidiaries or any Loan Party are under audit. All charges,
accruals and reserves on the books of the Borrower and each of its Subsidiaries
in respect of any taxes or other governmental charges are in accordance with
GAAP.
(m) Financial Statements. The Borrower has furnished to each Lender
copies of (i) the audited Consolidated Financial Statements for the fiscal year
ending December 31, 1998, with the opinion thereon of PricewaterhouseCoopers,
LLP, and (ii) the unaudited Consolidated Financial Statements the fiscal quarter
ending September 30, 1999. Such financial statements (including in each case
related schedules and notes) are complete and correct and present fairly, in
accordance with GAAP consistently applied throughout the periods involved, the
consolidated financial position of the Borrower and its consolidated
Subsidiaries as at their respective dates and the results of operations and the
cash flow for such periods (subject, as to interim statements, to changes
resulting from normal year-end audit adjustments). Neither the Borrower nor any
of its Subsidiaries has on the Agreement Date any material contingent
liabilities, liabilities, liabilities for taxes, unusual or long-term
commitments or unrealized or forward anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said
financial statements.
(n) No Material Adverse Change. Since December 31, 1998, there has been
no material adverse change in the consolidated financial condition, results of
operations, business or prospects of the Parent, the Borrower and the Parent's
other consolidated Subsidiaries taken as a whole. Each of the Parent, the
Borrower, its Subsidiaries and the other Loan Parties is Solvent.
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(o) ERISA. Each member of the ERISA Group is in compliance with its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member
of the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
(p) Absence of Defaults. Neither the Parent, the Borrower, any other
Loan Party or any other Subsidiary of the Parent is in default under its
articles of incorporation, bylaws, partnership agreement or other similar
organizational documents, and no event has occurred, which has not been
remedied, cured or waived: (i) which constitutes a Default or an Event of
Default; or (ii) which constitutes, or which with the passage of time, the
giving of notice, a determination of materiality, the satisfaction of any
condition, or any combination of the foregoing, would constitute, a default or
event of default by any such Person under any agreement (other than this
Agreement) or judgment, decree or order to which any such Person is a party or
by which any such Person or any of its respective properties may be bound where
such default or event of default could, individually or in the aggregate, have a
Material Adverse Effect.
(q) Environmental Laws. To the best of the Borrower's knowledge after
due inquiry and except as set forth on Schedule 7.1.(q), (i) each of the Parent,
the Borrower, each other Loan Party and each other Subsidiary of the Parent has
obtained all Governmental Approvals which are required under Environmental Laws
and is in compliance with all terms and conditions of such Governmental
Approvals which the failure to obtain or to comply with could reasonably be
expected to have a Material Adverse Effect and (ii) each of the Parent, the
Borrower, each other Loan Party and each other Subsidiary of the Parent is also
in compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules, and timetables contained in
the Environmental Laws which the failure to comply with could reasonably be
expected to have a Material Adverse Effect. Except for any of the following
matters that could not be reasonably expected to have a Material Adverse Effect
and except as set forth on such Schedule, the Borrower is not aware of, and has
not received notice of, any past, present, or future events, conditions,
circumstances, activities, practices, incidents, actions, or plans which, with
respect to the Parent, the Borrower, each other Loan Party and each other
Subsidiary of the Parent, may interfere with or prevent compliance or continued
compliance with Environmental Laws, or may give rise to any common-law or legal
liability, or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing, study, or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any pollutant, contaminant, chemical, or industrial,
toxic, or other Hazardous Material; and there is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter,
notice of violation, investigation, or proceeding pending or, to the Borrower's
knowledge after due inquiry, threatened, against the Parent, the Borrower, each
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other Loan Party and each other Subsidiary of the Parent relating in any way to
Environmental Laws.
(r) Investment Company; Public Utility Holding Company. Neither the
Parent, the Borrower, any other Loan Party or any other Subsidiary of the Parent
is (i) an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
(ii) a "holding company" or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (iii) subject to any other Applicable Law which purports to
regulate or restrict its ability to borrow money or to consummate the
transactions contemplated by this Agreement or to perform its obligations under
any Loan Document to which it is a party.
(s) Margin Stock. Neither the Parent, the Borrower, any other Loan
Party or any other Subsidiary of the Parent is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System.
(t) Affiliate Transactions. Except as permitted by Section 10.12.,
neither the Parent, the Borrower, any other Loan Party or any other Subsidiary
of the Parent is a party to or bound by any agreement or arrangement (whether
oral or written) to which any Affiliate of the Borrower, any Subsidiary or other
Loan Party is a party.
(u) Intellectual Property. The Parent, the Borrower, each other Loan
Party and each other Subsidiary of the Parent owns or has the right to use,
under valid license agreements or otherwise, all material patents, licenses,
franchises, trademarks, trademark rights, trade names, trade name rights, trade
secrets and copyrights (collectively, "Intellectual Property") necessary to or
used in the conduct of its businesses as now conducted and as contemplated by
the Loan Documents, without known conflict with any patent, license, franchise,
trademark, trade secret, trade name, copyright, or other proprietary right of
any other Person. All such Intellectual Property is fully protected and/or duly
and properly registered, filed or issued in the appropriate office and
jurisdictions for such registrations, filing or issuances. No material claim has
been asserted by any Person with respect to the use of any Intellectual
Property, or challenging or questioning the validity or effectiveness of any
Intellectual Property.
(v) Business. As of the Agreement Date, the Borrower and its
Subsidiaries are engaged in the business of acquiring, owning, managing,
leasing, renovating and developing principally supermarket-anchored neighborhood
shopping centers.
(w) Accuracy and Completeness of Information. All written information,
reports and other papers and data furnished to the Agent or any Lender by, on
behalf of, or at the direction of, the Borrower, any Subsidiary or any other
Loan Party were, at the time the same were so furnished, complete and correct in
all material respects, to the extent necessary to give the recipient a true and
accurate knowledge of the subject matter, or, in the case of financial
statements, present fairly, in accordance with GAAP consistently applied
throughout the periods involved, the financial position of the Persons involved
as at the date thereof and the results of operations for such periods. No fact
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is known to the Borrower which has had, or may in the future have (so far as the
Borrower can reasonably foresee), a Material Adverse Effect which has not been
set forth in the financial statements referred to in Section 7.1.(m) or in such
information, reports or other papers or data or otherwise disclosed in writing
to the Agent and the Lenders prior to the Effective Date. No document furnished
or written statement made to the Agent or any Lender in connection with the
negotiation, preparation of execution of this Agreement or any of the other Loan
Documents contains or will contain any untrue statement of a fact material to
the creditworthiness of the Borrower, any Subsidiary or any other Loan Party or
omits or will omit to state a material fact necessary in order to make the
statements contained therein not misleading.
Section 2.5 Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower, any Subsidiary or
any other Loan Party to the Agent or any Lender pursuant to or in connection
with this Agreement or any of the other Loan Documents (including, but not
limited to, any such statement made in or in connection with any amendment
thereto or any statement contained in any certificate, financial statement or
other instrument delivered by or on behalf of the Borrower prior to the
Agreement Date and delivered to the Agent or any Lender in connection with
closing the transactions contemplated hereby) shall constitute representations
and warranties made by the Borrower under this Agreement. All representations
and warranties made under this Agreement and the other Loan Documents shall be
deemed to be made at and as of the Agreement Date, the Effective Date and at and
as of the date of the occurrence of any Credit Event, except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate on and as of such earlier date) and except for changes in factual
circumstances specifically permitted hereunder. All such representations and
warranties shall survive the effectiveness of this Agreement, the execution and
delivery of the Loan Documents and the making of the Loans and issuance of any
Letter of Credit.
ARTICLE I.6 Affirmative Covenants
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 13.6., all of the Lenders) shall
otherwise consent in the manner provided for in Section 13.6., the Borrower, or
the Parent, as applicable, shall comply with the following covenants:
Section 1.6 Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 10.8., the Parent shall,
and shall cause the Borrower, each other Loan Party, and each other Subsidiary
of the Parent to, preserve and maintain its respective existence, rights,
franchises, licenses and privileges in the jurisdiction of its incorporation or
formation and qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
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business requires such qualification and authorization and where the failure to
be so authorized and qualified could reasonably be expected to have a Material
Adverse Effect.
Section 2.6 Compliance with Applicable Law and Material Contracts.
The Parent shall, and shall cause the Borrower, each other Loan Party
and each other Subsidiary of the Parent to, comply with (a) all Applicable Law,
including the obtaining of all Governmental Approvals, if the failure with which
to comply could reasonably be expected to have a Material Adverse Effect, and
(b) all terms and conditions of all Material Contracts to which it is a party.
Section 3.6 Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the
Parent shall, and shall cause the Borrower, each other Loan Party and each other
Subsidiary of the Parent to (a) protect and preserve all of its material
properties, including, but not limited to, all Intellectual Property, and
maintain in good repair, working order and condition all tangible properties,
ordinary wear and tear excepted, and (b) from time to time, make or cause to be
made, all needed and appropriate repairs, renewals, replacements and additions
to such properties, so that the business carried on in connection therewith may
be properly and advantageously conducted at all times.
Section 4.6 Conduct of Business.
The Parent shall, and shall cause the Borrower, each other Loan Party
and each other Subsidiary of the Parent to, carry on at all times its respective
businesses as described in Section 7.1.(v) and not enter into, and prohibit the
Borrower, each other Loan Party and each other Subsidiary of the Parent from
entering into, any field of business not otherwise engaged in by such Person as
of the Agreement Date.
Section 5.6 Insurance.
(a) Generally. In addition to the requirements of any of the other Loan
Documents, the Parent shall, and cause the Borrower, each other Loan Party and
each other Subsidiary of the Parent to, maintain insurance with financially
sound and reputable insurance companies against such risks and in such amounts
customarily maintained by Persons engaged in similar businesses or as may be
required by Applicable Law. Such insurance companies, insured risks and insured
amounts shall, in any event, be acceptable to the Agent in its reasonably
discretion. The Parent shall deliver to the Agent or any Lender upon its request
a detailed list, together with copies of all policies of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
(b) Insurance for Borrowing Base Properties. Without limiting the
foregoing, the Parent shall, and cause the Borrower and each other Loan Party
owning a Borrowing Base Property to, maintain for the benefit of the Agent and
the Lenders original paid up insurance policies or certified copies of paid up
insurance policies (or, if there is blanket coverage, the Agent shall require an
underlier policy with the applicable Borrowing Base Property identified and
specifically allocated amounts shown) in such amounts, form and substance, and
with such expiration dates, as are
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acceptable to the Agent, and containing non-contributory standard mortgagee
clauses (naming "First Union National Bank, as the Agent, its successors and/or
assigns" as first mortgagee), their equivalent, or a satisfactory mortgagee loss
payable endorsement in favor of the Agent, and being addressed to First Union
National Bank, Attention: Insurance Department, P. O. Box 700308, Dallas, Texas
75370, providing the following types of insurance on the applicable Borrowing
Base Property:
(i) During any periods of construction, non-reporting form
"all risk" Builder's Risk Insurance (including hazard and material
stockpile clauses), without co-insurance, in an amount equal to at
least 100% of the replacement cost of the improvements. The policy term
must concur with the applicable construction period. Thereafter, the
policy must then be converted to a Standard Fire Insurance Policy with
Extended Coverage Endorsement;
(ii) Standard Fire Insurance with Extended Coverage
Endorsement including Vandalism and Malicious Mischief, without
co-insurance, in an amount equal to at least 100% of the replacement
cost of the improvements;
(iii) Coverage for the peril of Sprinkler Leakage;
(iv) Boiler and Machinery Insurance to cover the sudden and
accidental breakdown of specific types of equipment as required by the
Agent;
(v) Comprehensive Plate Glass Insurance;
(vi) Rental Loss Insurance and Business Interruption Insurance
in an amount equal to the greater of (A) an amount sufficient to cover
debt service, real estate taxes, and insurance premiums allocable to
the applicable Borrowing Base Property for a period of at least twelve
(12) months, or (B) the rents and other amounts due under all leases of
the subject Borrowing Base Property for a period of at least twelve
(12) months;
(vii) If any improvements are or will be located in an area
identified by the U.S. Department of Housing and Urban Development as
an area having "special flood hazards", flood insurance in an amount
equal to the lesser of the applicable Borrowing Base Value of the
Borrowing Base Property or the maximum limit of coverage available
under the National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973, and the Housing and Community Development Acts
of 1974 and 1977, all as amended;
(viii) Single limit comprehensive general liability insurance
in an amount satisfactory to the Agent against claims and liability for
bodily injury or property damage to persons or property occurring on
the applicable Borrowing Base Property; and
(ix) Such other insurance on each Borrowing Base Property or
any replacements or substitutions therefor and in such amounts as may
from time to time be reasonably required by the Agent against other
insurable casualties which at the time are commonly insured against in
the case of premises similarly situated, due regard being given to the
type of the improvements, their construction, location, use, and
occupancy, or any replacements or substitutions therefor.
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Section 6.6 Payment of Taxes and Claims.
The Parent shall, and shall cause the Borrower, each other Loan Party
and each other Subsidiary of the Parent to, pay and discharge when due (a) all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or upon any properties belonging to it, and (b) all lawful
claims of materialmen, mechanics, carriers, warehousemen and landlords for
labor, materials, supplies and rentals which, if unpaid, might become a Lien on
any properties of such Person; provided, however, that this Section shall not
require the payment or discharge of any such tax, assessment, charge, levy or
claim which is being contested in good faith by appropriate proceedings which
operate to suspend the collection thereof and for which adequate reserves have
been established on the books of the Parent, the Borrower, such Subsidiary or
such other Loan Party, as applicable, in accordance with GAAP.
Section 7.6 Visits and Inspections.
The Parent shall, and shall cause the Borrower, each other Loan Party
and each other Subsidiary of the Parent to, permit representatives or agents of
the Agent or any Lender, from time to time, as often as may be reasonably
requested, but only during normal business hours, and at the expense of the
Borrower to: (a) visit and inspect all properties of the Parent, the Borrower,
such Subsidiary or such other Loan Party; (b) inspect and make extracts from
their respective relevant books and records, including but not limited to
management letters prepared by independent accountants; and (c) discuss with its
principal officers, and its independent accountants, its business, assets,
liabilities, financial conditions, results of operations and business prospects.
If requested by the Agent, the Parent shall execute an authorization letter
addressed to its accountants authorizing the Agent or any Lender to discuss the
financial affairs of the Parent and any Subsidiary of the Parent with its
accountants.
Section 8.6 Use of Proceeds; Letters of Credit.
The Borrower shall use the proceeds of Revolving Loans and all Letters
of Credit only for general corporate purposes, including but not limited to the
acquisition and redevelopment of neighborhood shopping center properties, and
the refinancing of existing Indebtedness. The Borrower shall not, and shall not
permit any Loan Party or any other Subsidiary to, use any part of such proceeds
or Letters of Credit to purchase or carry, or to reduce or retire or refinance
any credit incurred to purchase or carry, any margin stock (within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock except for purchases of the common stock of the Parent made in
compliance with such Regulation and other Applicable Law.
Section 9.6 Environmental Matters.
The Parent shall, and shall cause the Borrower, each other Loan Party
and each other Subsidiary of the Parent to, comply with all Environmental Laws
the failure with which to comply could reasonably be expected to have a Material
Adverse Effect. If the Parent, the Borrower, any other Loan Party or any other
Subsidiary of the Parent shall (a) receive notice that any violation of any
Environmental Law may have been committed or is about to be committed by such
Person,
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(b) receive notice that any administrative or judicial complaint or order has
been filed or is about to be filed against such Person alleging violations of
any Environmental Law or requiring such Person to take any action in connection
with the release of Hazardous Materials or (c) receive any notice from a
Governmental Authority or private party alleging that such Person is or may be
liable or responsible for costs associated with a response to or cleanup of a
release of a Hazardous Materials or any damages caused thereby, and such
notices, individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect, the Borrower shall provide the Agent with a copy of
such notice within 30 days after the receipt thereof by the Parent, the
Borrower, such other Loan Party or such other Subsidiary, as the case may be.
The Parent shall, and shall cause the Borrower, each other Loan Party and each
other Subsidiary of the Parent to, take promptly all actions necessary to
prevent the imposition of any Liens on any of their respective properties
arising out of or related to any Environmental Laws.
Section 10.6 Books and Records.
The Parent shall, and shall cause the Borrower, each other Loan Party
and each other Subsidiary of the Parent to, maintain books and records
pertaining to its business operations in such detail, form and scope as is
consistent with good business practice in accordance with GAAP.
Section 11. REIT Status.
The Parent shall at all times maintain its status as a REIT.
Section 12. Exchange Listing.
The Parent shall maintain at least one class of common shares of the
Parent having trading privileges on the New York Stock Exchange or the American
Stock Exchange or which is the subject of price quotations in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System.
Section 13. Distributions of Income to the Borrower.
The Borrower shall cause all of its Subsidiaries to distribute
(directly or indirectly through any intermediate Subsidiaries) to the Borrower
and pro rata to holders of Equity Interests in such Subsidiaries, not less
frequently than once each fiscal quarter of the Borrower and whether in the form
of dividends, distributions or otherwise, all profits, proceeds or other income
relating to or arising from its Subsidiaries' use, operation, financing,
refinancing, sale or other disposition of their respective assets and properties
after (a) the payment by each Subsidiary of its applicable portion of total debt
service and operating expenses for such quarter and (b) the establishment of
reasonable reserves for the payment of operating expenses not paid on at least a
quarterly basis and capital improvements to be made to such Subsidiary's assets
and properties approved by such Subsidiary in the ordinary course of business
consistent with its past practices.
Section 14. Subordination, Nondisturbance and Attornment Agreements.
Within 10 Business Days of the Agent's receipt of the Borrower's
written request and at the Borrower's cost and expense, the Agent agrees to
execute and deliver to the Borrower a
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subordination, nondisturbance and attornment agreement with respect to any lease
of 2,500 square feet or more of any Borrowing Base Property, if requested by the
tenant thereunder, provided that (a) such tenant is not an Affiliate of the
Parent, the Borrower or any Guarantor, (b) the form of applicable lease is
reasonably satisfactory to the Agent, (c) the leasing parameters in respect of
such Borrowing Base Property are reasonably satisfactory to the Agent, (d) the
Borrower shall promptly return to Agent a counterpart of such subordination,
nondisturbance and attornment agreement, fully executed on behalf of Borrower
and such tenant, and (e) the terms of such subordination, attornment and
nondisturbance agreement are in substantially the form of Exhibit I or are
otherwise acceptable to the Agent. The Lenders authorize the Agent to execute
and deliver any subordination, attornment and nondisturbance agreements provided
for hereunder. The requirement that the Agent execute and deliver a
subordination, attornment and nondisturbance agreement under this Section shall
apply only to Borrowing Base Properties on which the Agent has a Lien under a
Security Deed.
Section 15. Further Assurances.
At the Borrower's cost and expense, upon request of the Agent, the
Parent and the Borrower shall execute and deliver, or cause to be duly executed
and delivered, to the Agent such further instruments, documents and
certificates, and do and cause to be done such further acts that may be
reasonably necessary or advisable in the reasonable opinion of the Agent to
carry out more effectively the provisions and purposes of this Agreement and the
other Loan Documents.
Section 16.6 Additional Guarantors.
Within 5 Business Days of any Person (other than an Exempt Subsidiary)
becoming a Material Subsidiary after the Agreement Date, deliver to the Agent
each of the following in form and substance satisfactory to the Agent: (a) an
Accession Agreement executed by such Material Subsidiary and (b) the items that
would have been delivered under Sections 6.1.(a)(ix), (x), (xiii), (xv) through
(xvii) and (xx) if such Material Subsidiary had been one on the Agreement Date;
provided, however, promptly (and in any event within 5 Business Days) upon any
Exempt Subsidiary ceasing to be subject to the restriction which prevented it
from delivering an Accession Agreement pursuant to this Section, such Subsidiary
shall comply with the provisions of this Section.
ARTICLE I.7 Information
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 13.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 13.6., the Borrower shall
furnish to each Lender (or to the Agent if so provided below) at its Lending
Office:
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Section 1.7 Quarterly Financial Statements.
As soon as available and in any event within 50 days after the close of
each of the first, second and third fiscal quarters of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such period and the related consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for such period, setting forth in each case in
comparative form the figures for the corresponding periods of the previous
fiscal year, all of which shall be certified by the chief financial officer of
the Borrower, in his or her opinion, to present fairly, in accordance with GAAP,
the consolidated financial position of the Borrower and its Subsidiaries as at
the date thereof and the results of operations for such period (subject to
normal year-end audit adjustments).
Section 2.7 Year-End Statements.
As soon as available and in any event within 100 days after end of each
fiscal year of the Borrower, the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year and the related consolidated
statements of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for such fiscal year, setting forth in comparative form the figures
as at the end of and for the previous fiscal year, all of which shall be
certified by (a) the chief financial officer of the Borrower, in his or her
opinion, to present fairly, in accordance with GAAP, the financial position of
the Borrower and its Subsidiaries as at the date thereof and the result of
operations for such period and (b) independent certified public accountants of
recognized national standing acceptable to the Requisite Lenders, whose
certificate shall be unqualified and in scope and substance satisfactory to the
Requisite Lenders and who shall have authorized the Borrower to deliver such
financial statements and certification thereof to the Agent and the Lenders
pursuant to this Agreement.
Section 3.7 Compliance Certificate.
At the time the quarterly or annual financial statements are furnished
pursuant to Sections 9.1. and 9.2., and within 5 Business Days of the Agent's
request with respect to any other fiscal period, a certificate substantially in
the form of Exhibit N (a "Compliance Certificate") executed by the chief
financial officer of the Parent: (a) setting forth in reasonable detail as at
the end of such quarterly accounting period, fiscal year, or other fiscal
period, as the case may be, the calculations required to establish whether or
not the Parent and the Borrower were in compliance with the covenants contained
in Sections 10.1., as well as a calculation of the Borrowing Base Leverage Ratio
as of the end of the applicable fiscal period, and (b) stating that, to the best
of his or her knowledge, information and belief, no Default or Event of Default
exists, or, if such is not the case, specifying such Default or Event of Default
and its nature, when it occurred, whether it is continuing and the steps being
taken by the Borrower with respect to such event, condition or failure.
Section 4.7 Other Information.
(a) Securities Filings. Within 10 Business Days of the filing thereof,
copies of all registration statements (excluding the exhibits thereto and any
registration statements on Form S-8 or its equivalent), reports on Forms 10-K,
10-Q and 8-K (or their equivalents) and all other periodic reports which the
Parent, the Borrower, any other Loan Party or any other Subsidiary shall file
with the Securities and Exchange Commission (or any Governmental Authority
substituted therefor) or any national securities exchange.
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(b) Borrowing Base Certificate. As soon as available and in any event
within 50 days after the end of each fiscal quarter of the Borrower, a Borrowing
Base Certificate setting forth the information to be contained therein as of the
last day of such fiscal quarter.
(c) Quarterly Operating Summaries. Within 50 days after the end of each
fiscal quarter of the Borrower, an operating summary with respect to each
Borrowing Base Property, including without limitation, a quarterly and
year-to-date statement of total revenues, expenses, net operating income and an
occupancy status report together with a current rent roll for each such
Property.
(d) Annual Operating Statements. Within 45 days after the end of each
fiscal year of the Borrower, an operating summary with respect to all
Properties, including without limitation, an annual statement of Adjusted Net
Operating Income.
(e) Quarterly Property Schedules. No later than 45 days after the end
of each fiscal quarter of the Borrower, a schedule of all of the real property
owned or leased by the Parent, the Borrower, each other Loan Party and each
other Subsidiary of the Parent and the applicable Occupancy Rate thereof, such
schedule certified by the chief financial officer or chief accounting officer of
the Parent as true, correct and complete as of the date such information is
delivered.
(f) ERISA Notices. If and when any member of the ERISA Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security, a
certificate of the controller of the Borrower setting forth details as to such
occurrence and action, if any, which the Borrower or applicable member of the
ERISA Group is required or proposes to take.
(g) Litigation and Governmental Proceedings. To the extent the Borrower
is aware of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator against or in
any other way relating adversely to, or adversely affecting, the Parent, the
Borrower, any other Loan Party or any other Subsidiary or any of their
respective properties, assets or businesses which, if determined or resolved
adversely to such Person, could reasonably be expected to have a Material
Adverse Effect, and prompt notice of the receipt of notice that any
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United States income tax returns of the Borrower or any of its Subsidiaries are
being audited.
(h) Modification of Organizational Documents. A copy of any material
amendment to the declaration of trust, certificate or articles of incorporation,
bylaws, partnership agreement or other similar organizational documents of the
Parent, the Borrower, any other Loan Party or any other Subsidiary within 5
Business Days of the effectiveness thereof.
(i) Material Adverse Change. Prompt notice of any other Loan Party and
any change in the business, assets, liabilities, financial condition, results of
operations or business prospects of the Borrower, any Subsidiary or any other
Loan Party which has had or could reasonably be expected to have Material
Adverse Effect.
(j) Default. Prompt notice of the occurrence of any Default or Event of
Default or the occurrence of any event which constitutes or which with the
passage of time, the giving of notice, or otherwise, would constitute a default
or event of default by the Borrower, any other Loan Party or any other
Subsidiary under any Material Contract to which any such Person is a party or by
which any such Person or any of its respective properties may be bound.
(k) Material Contracts. Promptly upon entering into any Material
Contract after the Agreement Date, a copy to the Agent of such Material
Contract.
(l) Calculation of Ownership Share of Subsidiaries and Unconsolidated
Entities. Promptly upon the request of the Agent, evidence of the Borrower's
calculation of its ownership percentage with respect to a Subsidiary or an
Unconsolidated Entity, such evidence to be in form and detail satisfactory to
the Agent and the Requisite Lenders.
(m) Other Information, Etc. From time to time and promptly upon each
request, such data, certificates, reports, statements, opinions of counsel,
documents or further information regarding the business, assets, liabilities,
financial condition, results of operations or business prospects of the
Borrower, any other Loan Party or any other Subsidiary as the Agent (or any
Lender through the Agent) may reasonably request.
ARTICLE I.8 Negative Covenants
For so long as this Agreement is in effect, unless the Requisite
Lenders (or, if required pursuant to Section 13.6., all of the Lenders) shall
otherwise consent in the manner set forth in Section 13.6., the Borrower or the
Parent, as applicable, shall comply with the following covenants:
Section 1.8 Financial Covenants.
(a) Financial Covenants Applicable When Not Investment Grade. The
Parent and the Borrower shall comply with the following covenants so long as the
Borrower has not received an Investment Grade Rating from the Rating Agencies:
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(i) Leverage. The Parent and the Borrower shall not permit at
any time (x) Total Outstanding Indebtedness of the Parent and its
Subsidiaries at such time determined on a consolidated basis to exceed
(y) 60.0% of Capitalization Value at such time.
(ii) Interest Coverage. The Parent and the Borrower shall not
permit at any time the ratio of (x) EBITDA for the two consecutive
fiscal quarter period most recently ended minus Reserves for Capital
Expenditures for such two-quarter period for all Properties of the
Parent, its Subsidiaries and its Unconsolidated Entities to (y)
Interest Expense for such two- fiscal quarter period, to be less than
1.80 to 1.00.
(iii) Cash Flow Coverage. The Parent and the Borrower shall
not permit at any time the ratio of (x) EBITDA for the two consecutive
fiscal quarter period most recently ended minus Reserves for Capital
Expenditures for such two-quarter period for all Properties of the
Parent, its Subsidiaries and its Unconsolidated Entities to (y) Fixed
Charges for such two-fiscal quarter period, to be less than 1.50 to
1.00.
(iv) Borrowing Base Cash Flow Coverage. The Parent and the
Borrower shall not permit at any time the ratio of (x) the Adjusted Net
Operating Income for all Borrowing Base Properties for the fiscal
quarter most recently ended to (y) Implied Mortgage Debt Service for
such fiscal quarter determined on a consolidated basis, to be less than
1.50 to 1.00.
(v) Variable Rate Debt. The Parent and the Borrower shall not
permit at any time the ratio of (x) the aggregate outstanding principal
amount of Variable Rate Debt of the Parent and its Subsidiaries
determined on a consolidated basis to (y) the Capitalization Value at
such time, to be greater than 0.25 to 1.00.
(b) Financial Covenants Applicable While Investment Grade. The Parent
and Borrower shall comply with the following covenants at all times after the
Borrower shall have first received an Investment Grade Rating from the Rating
Agencies and whether or not the Borrower shall maintain such Investment Grade
Rating:
(i) Interest Coverage. The Parent and the Borrower shall not
permit at any time the ratio of (x) EBITDA for the two consecutive
fiscal quarter period most recently ended minus Reserves for Capital
Expenditures for such two-quarter period for all Properties of the
Parent, its Subsidiaries and its Unconsolidated Entities to (y)
Interest Expense for such two- fiscal quarter period, to be less than
2.20 to 1.00.
(ii) Cash Flow Coverage. The Parent and the Borrower shall not
permit at any time the ratio of (x) EBITDA for the two consecutive
fiscal quarter period most recently ended minus Reserves for Capital
Expenditures for such two-quarter period for all Properties of the
Parent, its Subsidiaries and its Unconsolidated Entities to (y) Fixed
Charges for such two-fiscal quarter period, to be less than 1.750 to
1.00.
(iii) Leverage. The Parent and the Borrower shall not permit
at any time (x) Total Outstanding Indebtedness of the Parent and its
Subsidiaries at such time determined on a consolidated basis to exceed
(y) 50.0% of Capitalization Value at such time.
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(iv) Unsecured Leverage. The Parent and the Borrower shall not
permit at any time the ratio of (x) the sum of the Borrowing Base
Values of all Eligible Properties to (y) all Unsecured Indebtedness of
the Parent and its Subsidiaries determined on a consolidated basis, to
be less than 2.00 to 1.00.
(v) Unencumbered Cash Flow Coverage. The Parent and the
Borrower shall not permit at any time the ratio of (x) the Adjusted Net
Operating Income for all Eligible Properties for the fiscal quarter
most recently ended to (y) Debt Service for such fiscal quarter
determined on a consolidated basis, to be less than 2.00 to 1.00 at the
end of such fiscal quarter.
(vi) Secured Debt. The Parent and the Borrower shall not
permit at any time the ratio of (i) Secured Indebtedness of the Parent
and its Subsidiaries determined on a consolidated basis to (ii)
Capitalization Value, to be greater than 0.35 to 1.00.
(c) Financial Covenants Applicable Regardless of Credit Rating. The Parent
and the Borrower shall at all times (regardless of the Borrower's Credit Rating)
comply with the following covenant:
(i) Occupancy Rate. The Parent and the Borrower shall not
permit the aggregate Occupancy Rate of all Borrowing Base Properties to
be less than 80% at any time.
(ii) Minimum Net Worth. The Parent and the Borrower shall not
permit at any time Tangible Net Worth to be less than (x) $305,000,000
plus (y) 80% of the Net Proceeds of all Equity Issuances effected by
the Parent or any of its Consolidated Subsidiaries to any Person other
than the Parent or any of its Consolidated Subsidiaries at any time
after September 30, 1999.
(iii) Development. The Parent and the Borrower shall not
permit at any time (x) Construction in Process at such time to be
greater than (y) 15.0% of Capitalization Value at such time.
Section 2.8 Indebtedness.
The Parent shall not, and shall not permit any of the other Loan
Parties or any other Subsidiaries of the Parent to, create, incur, assume, or
permit or suffer to exist, any Indebtedness other than the following:
(a) the Obligations;
(b) Indebtedness set forth on Schedule 7.1.(g);
(c) Subordinated Debt;
(d) intercompany Indebtedness among the Borrower and its Wholly Owned
Subsidiaries; provided, however, that the obligations of each obligor of such
Indebtedness shall be subordinate to the Obligations on terms acceptable to the
Agent in its sole discretion;
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(e) Indebtedness incurred in connection with revolving credit
facilities not to exceed $15,000,000 in aggregate outstanding principal at any
time and which facilities mature by their terms on dates subsequent to the
Termination Date from time to time in effect; or
(f) any other Indebtedness of a type not described above in this
Section and created, incurred or assumed after the Agreement Date so long as
immediately prior to the creation, incurring or assumption thereof, and
immediately thereafter and after giving effect thereto, no Default or Event of
Default is or would be in existence, including without limitation, a Default or
Event of Default resulting from a violation of any of the covenants contained in
Section 10.1.
Section 3. Certain Permitted Investments.
The Parent and the Borrower shall not, and shall not permit any other
Subsidiary of the Parent to, make any Investment in or otherwise own the
following items which would cause the aggregate value of such holdings of the
Parent, the Borrower and such other Subsidiaries to exceed the applicable
percentage of Capitalization Value at such time:
(a) Investments in partnerships, joint ventures and other
Persons which are not corporations and which Investments are accounted
for on an equity basis in accordance with GAAP, such that the aggregate
book value of such Investments exceeds 15.0% of Capitalization Value;
and
(b) Unimproved real estate, such that the aggregate book value
of all such unimproved real estate exceeds 5.0% of Capitalization
Value.
Section 4. Investments Generally.
The Parent shall not, and shall not permit any other Loan Party or any
other Subsidiary to, acquire, make or purchase, or permit any Investment of the
Parent, the Borrower, any such Subsidiary or other Loan Party to be outstanding
on and after the Agreement Date, other than the following:
(a) Investments in Subsidiaries in existence on the Agreement Date and
disclosed on Part I of Schedule 7.1.(b);
(b) Investments to acquire Equity Interests of a Subsidiary or any other
Person who after giving effect to such acquisition would be a Subsidiary, so
long as in each case (i) immediately prior to such Investment, and after giving
effect thereto, no Default or Event of Default is or would be in existence and
(ii) if such Subsidiary is (or after giving effect to such Investment would
become) a Material Subsidiary, the terms and conditions set forth in Section
8.16. are satisfied;
(c) Investments permitted under Section 10.3.;
(d) Investments in Cash Equivalents;
(e) intercompany indebtedness among the Parent, the Borrower and the other
Subsidiaries provided that such indebtedness is permitted by the terms of
Section 10.2.;
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(f) acquisitions by the Borrower of Equity Interest in the Parent; and
(g) loans and advances to employees for moving, entertainment, travel and
other similar expenses in the ordinary course of business consistent with past
practices.
Section 5. Acquisitions.
Notwithstanding any other term of this Agreement or any other Loan
Document, the Parent shall not, and shall not permit the Borrower, any other
Loan Party or any other Subsidiary to, make any Acquisition in which the
aggregate amount of consideration paid (whether by way of payment of cash,
issuance of capital stock, assumption of Indebtedness, or otherwise) by the
Parent, the Borrower, and its other Subsidiaries equals or exceeds 30% of
Capitalization Value as of the end of the fiscal quarter most recently ended.
Section 6.8 Liens; Agreements Regarding Liens; Other Matters
The Parent shall not, and shall not permit any other Loan Party or any
of its other Subsidiaries to, do any of the following:
(a) Create, assume, incur or permit or suffer to exist any Lien upon
any Borrowing Base Property other than Permitted Liens;
(b) Enter into or assume any agreement (other than the Loan Documents)
containing, or otherwise becoming bound by, a Negative Pledge with respect to
any of the Borrowing Base Properties; or
(c) Create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to: (i) pay dividends or make any other distribution on any of such
Subsidiary's Equity Interests owned by the Borrower or any Subsidiary of the
Borrower; (ii) pay any Indebtedness owed to the Borrower or any Subsidiary of
the Borrower; (iii) make loans or advances to the Borrower or any Subsidiary; or
(iv) transfer any of its property or assets to the Borrower or any Subsidiary of
the Borrower.
Section 7.8 Restricted Payments.
If a Default or an Event of Default under Sections 11.1.(a), (b), (f)
or (g) shall have occurred and be continuing neither the Parent, the Borrower
nor any Subsidiary (other than Wholly Owned Subsidiaries) shall directly or
indirectly declare or make, or incur any liability to make, any Restricted
Payments. If an Event of Default under Section 11.1.(c)(i) shall have occurred
and be continuing, neither the Parent, the Borrower nor any Subsidiary (other
than Wholly Owned Subsidiaries) shall directly or indirectly declare or make, or
incur any liability to make, any Restricted Payments except, the Parent may make
cash distributions to its equity holders, and the Borrower and each Subsidiary
may make cash distributions to holders of their respective Equity Interests, in
the minimum amount necessary to maintain compliance with Section 8.11.
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Section 8.8 Merger, Consolidation and Substantial Sales of Assets.
The Parent shall not, and shall not permit the Borrower, any other Loan
Party or any other Subsidiary of the Parent to: (a) enter into any transaction
of merger or consolidation; (b) liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution); or (c) convey, sell, lease, sublease, transfer
or otherwise dispose of, in one transaction or a series of transactions, all or
any substantial part of its business or assets, or the capital stock of or other
equity interests in any of its Subsidiaries, whether now owned or hereafter
acquired; provided, however, that:
(i) any Subsidiary of the Borrower may merge or consolidate with the Borrower
or a Wholly Owned Subsidiary of the Borrower;
(ii) any Subsidiary or other Loan Party may sell, transfer or dispose of its
assets to the Borrower or a Wholly Owned Subsidiary which is a Guarantor;
(iii)a Wholly Owned Subsidiary may liquidate provided that immediately prior to
such liquidation and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would be in existence;
(iv) a Subsidiary that is not a Material Subsidiary, does not own a Borrowing
Base Property and is not a Guarantor (an "Excluded Subsidiary"), may merge
or consolidate with another Person, so long as immediately prior to such
merger or consolidation, and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would be in existence; and
(v) an Excluded Subsidiary may sell all or substantially all of its business or
assets, and the Borrower or any Excluded Subsidiary may sell all or
substantially all of the capital stock of or other equity interests in any
Subsidiary that is itself an Excluded Subsidiary, so long as immediately
prior to any such sale, and immediately thereafter and after giving effect
thereto, no Default or Event of Default is or would be in existence.
Section 9. No Plan Assets.
The Parent shall not, and shall not permit the Borrower, any other Loan
Party or any other Subsidiary to, permit any of its respective assets to become
or be deemed to be "plan assets" within the meaning of ERISA, the Internal
Revenue Code and the respective regulations promulgated thereunder.
Section 10.8 Fiscal Year.
The Parent shall not, and shall not permit the Borrower, any other Loan
Party or any other Subsidiary to change its fiscal year from that in effect as
of the Agreement Date.
Section 11.8 Modifications to Material Contracts.
The Parent shall not, and shall not permit the Borrower, any other Loan
Party or any other Subsidiary to enter into any amendment or modification to any
Material Contract which could reasonably be expected to have a Material Adverse
Effect or permit any Material Contract to be canceled or terminated prior to its
stated maturity.
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Section 12.8 Transactions with Affiliates.
The Parent shall not, and shall not permit the Borrower, any other Loan
Party or any other Subsidiary to permit to exist or enter into any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate or with any director, officer or
employee of any Affiliate, except for transactions in the ordinary course of and
pursuant to the reasonable requirements of the business of the Borrower or any
of its Subsidiaries and upon fair and reasonable terms and are no less favorable
to the Borrower or such Subsidiary than would be obtained in a comparable arm's
length transaction with a Person that is not an Affiliate.
Section 13.8 Hedging Agreements.
The Parent shall not, and shall not permit the Borrower, any other Loan
Party or any other Subsidiary to, create, incur or suffer to exist any
obligations in respect of Hedging Agreements other than (a) Hedging Agreements
existing on the date hereof and described in Schedule 10.13.; and (b) interest
rate Hedging Agreements entered into from time to time after the date hereof
with counterparties that are nationally recognized, investment grade financial
institutions; provided that, no Hedging Agreement otherwise permitted hereunder
may be speculative in nature.
ARTICLE I.9 Default
Section 1.9 Events of Default.
Each of the following shall constitute an Event of Default, whatever
the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of Applicable Law or pursuant to any judgment or order of
any Governmental Authority:
(a) Default in Payment of Principal. The Borrower shall fail to pay
when due (whether upon demand, at maturity, by reason of acceleration or
otherwise) the principal of any of the Loans.
(b) Default in Payment of Interest and Other Obligations. The Borrower
shall fail to pay when due any interest on any of the Loans or any of the other
payment Obligations owing by the Borrower under this Agreement or any other Loan
Document, or any other Loan Party shall fail to pay when due any payment
Obligation owing by such Loan Party under any Loan Document to which it is a
party and such failure shall continue for a period of 2 days after the earlier
of (i) the date upon which the Borrower or such Loan Party obtains knowledge of
such failure or (ii) the date upon which the Borrower has received written
notice of such failure from the Agent.
(c) Default in Performance. (i) The Borrower shall fail to perform or
observe any term, covenant, condition or agreement contained in Section 9.4.(j)
or Article X. or (ii) the Borrower or any other Loan Party shall fail to perform
or observe any term, covenant, condition or agreement contained in this
Agreement or any other Loan Document (other than any Security Deed or any
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Assignment of Leases and Rents) to which it is a party and not otherwise
mentioned in this Section and in the case of this clause (ii) only such failure
shall continue for a period of 45 days after the earlier of (x) the date upon
which the Borrower or such Loan Party obtains knowledge of such failure or (y)
the date upon which the Borrower has received written notice of such failure
from the Agent.
(d) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of the Borrower or any other Loan
Party under this Agreement or under any other Loan Document (other than any
Security Deed or any Assignment of Leases and Rents), or any amendment hereto or
thereto, or in any other writing or statement at any time furnished or made or
deemed made by or on behalf of the Borrower or any other Loan Party to the Agent
or any Lender, shall at any time prove to have been incorrect or misleading in
any material respect when furnished or made.
(e) Indebtedness Cross-Default. (i) The Borrower or any other Loan Party
shall fail to pay when due and payable the principal of, or interest on, any
Indebtedness (other than the Loans) having an aggregate outstanding principal
amount of $5,000,000 or more; or (ii) the maturity of any such Indebtedness
shall have (x) been accelerated in accordance with the provisions of any
indenture, contract or instrument evidencing, providing for the creation of or
otherwise concerning such Indebtedness or (y) been required to be prepaid or
repurchased prior to the stated maturity thereof; or (iii) any other event shall
have occurred an be continuing which, with or without the passage of time, the
giving of notice, a determination of materiality, the satisfaction of any
condition or any combination of the foregoing, would permit any holder or
holders of such Indebtedness, any trustee or agent acting on behalf of such
holder or holders or any other Person, to accelerate the maturity of any such
Indebtedness or require any such Indebtedness to be prepaid or repurchased prior
to its stated maturity.
(f) Voluntary Bankruptcy Proceeding. The Borrower or any other Loan Party
shall: (i) commence a voluntary case under the Bankruptcy Code of 1978, as
amended or other federal bankruptcy laws (as now or hereafter in effect); (ii)
file a petition seeking to take advantage of any other Applicable Laws, domestic
or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; (iii) consent to, or fail to contest in a
timely and appropriate manner, any petition filed against it in an involuntary
case under such bankruptcy laws or other Applicable Laws or consent to any
proceeding or action described in the immediately following subsection; (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign; (v) admit in writing its inability to pay its debts as they
become due; (vi) make a general assignment for the benefit of creditors; (vii)
make a conveyance fraudulent as to creditors under any Applicable Law; or (viii)
take any corporate or partnership action for the purpose of effecting any of the
foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Borrower, any Subsidiary or any other Loan Party, in any
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court of competent jurisdiction seeking: (i) relief under the Bankruptcy Code of
1978, as amended or other federal bankruptcy laws (as now or hereafter in
effect) or under any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; or (ii) the appointment of a trustee, receiver, custodian, liquidator
or the like of such Person, or of all or any substantial part of the assets,
domestic or foreign, of such Person, and such case or proceeding shall continue
undismissed or unstayed for a period of 60 consecutive calendar days, or an
order granting the remedy or other relief requested in such case or proceeding
against the Borrower or such Subsidiary (including, but not limited to, an order
for relief under such Bankruptcy Code or such other federal bankruptcy laws)
shall be entered.
(h) Litigation. The Borrower or any other Loan Party shall disavow,
revoke or terminate, or attempt to do any of the foregoing with respect to, any
Loan Document to which it is a party or shall otherwise challenge or contest in
any action, suit or proceeding in any court or before any Governmental Authority
or arbitral body the validity or enforceability of this Agreement, any Note or
any other Loan Document.
(i) Judgment. A judgment or order for the payment of money shall be
entered against the Borrower, any other Loan Party, any other Subsidiary by any
court or other tribunal and (i) such judgment or order shall continue for a
period of 30 days without being paid stayed or dismissed through appropriate
appellate proceedings and (ii) either (A) the amount of such judgment or order
for which insurance has not been acknowledge in writing by the applicable
insurance carrier (or the amount as to which the insurer has denied liability)
exceeds, individually or together with all other such judgments or orders
entered against the Borrower, the other Loan Party, and such other Subsidiaries,
$5,000,000 in amount or (B) in the case of a judgment could reasonably be
expected to have a Material Adverse Effect.
(j) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Borrower or any other Loan
Party which exceeds, individually or together with all other such warrants,
writs, executions and processes, $5,000,000 in amount and such warrant, writ,
execution or process shall not be discharged, vacated, stayed or bonded for a
period of 30 days; provided, however, that if a bond has been issued in favor of
the claimant or other Person obtaining such warrant, writ, execution or process,
the issuer of such bond shall execute a waiver or subordination agreement in
form and substance satisfactory to the Agent pursuant to which the issuer of
such bond subordinates its right of reimbursement, contribution or subrogation
to the Obligations and waives or subordinates any Lien it may have on the assets
of any Loan Party.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $5,000,000.
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(l) Loan Documents. An Event of Default (as defined therein) shall occur
under any of the other Loan Documents (other than any Security Deed or any
Assignment of Leases and Rents).
(m) Change of Control; Change in Management.
(i) Any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person will be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 25.0% of the total voting power of the then
outstanding Voting Stock of the Borrower;
(ii) During any twelve-month period (commencing either before
or after the Agreement Date), a majority of the Board of Directors of
the Parent shall no longer be composed of individuals (x) who were
members of such Board of Directors on the first date of such period,
(y) whose election or nomination to such Board of Directors was
approved by individuals referred to in clause (x) above constituting at
the time of such election or nomination at least a majority of such
Board of Directors or (z) whose election or nomination to such Board of
Directors was approved by individuals referred to in clauses (x) and
(y) above constituting at the time of such election or nomination at
least a majority of such Board of Directors;
(iii) If any two of Stuart D. Halpert, James G. Blumenthal and
William J. Wolfe shall cease for any reason (including death or
disability) to occupy the positions of Chairman, President, Chief
Executive Officer or Chief Financial Officer (or other more senior
office) of the Parent, and such individuals have not been replaced
within 120 days with other individuals having comparable industry
experience; or
(iv) Neither the Parent nor a Wholly Owned Subsidiary of the
Parent shall be the general partner of the Borrower having the sole and
exclusive power to exercise all management and control over the
Borrower.
(n) Failure of Security. The Agent shall cease to have a valid and
perfected first priority security interest in the Collateral (subject to
Permitted Liens), in each case, for any reason other than the failure of the
Agent to take any action within its control.
Section 2.9 Remedies Upon Event of Default.
Upon the occurrence of an Event of Default the following provisions
shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default specified in Sections
11.1.(f) or 11.1.(g), (A)(i) the principal of, and all accrued interest on,
the Loans and the Notes at the time outstanding, (ii) an amount equal to
the Stated Amount of all Letters of Credit then outstanding, and (iii) all
of the other Obligations of the Borrower, including,
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but not limited to, the other amounts owed to the Lenders and the Agent
under this Agreement, the Notes or any of the other Loan Documents shall
become immediately and automatically due and payable by the Borrower
without presentment, demand, protest, or other notice of any kind, all of
which are expressly waived by the Borrower and (B) the Commitments and the
obligation of the Lenders to make Loans hereunder shall immediately and
automatically terminate.
(ii) Optional. If any other Event of Default shall have occurred and be
continuing, the Agent may, and at the direction of the Requisite Lenders
shall: (I) declare (1) the principal of, and accrued interest on, the Loans
and the Notes at the time outstanding, (2) an amount equal to the Stated
Amount of all Letters of Credit then outstanding and (3) all of the other
Obligations, including, but not limited to, the other amounts owed to the
Lenders and the Agent under this Agreement, the Notes or any of the other
Loan Documents to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by the Borrower
and (II) terminate the Commitments and the obligation of the Lenders to
make Loans hereunder.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise any and all of its rights under any and all
of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and the
Agent if so directed shall, exercise all other rights and remedies it may have
under any Applicable Law.
(d) Appointment of Receiver. To the extent permitted by Applicable Law, the
Agent and the Lenders shall be entitled to the appointment of a receiver for the
assets and properties of the Borrower and its Subsidiaries, without notice of
any kind whatsoever and without regard to the adequacy of any security for the
Obligations or the solvency of any party bound for its payment, to take
possession of all or any portion of the Collateral and/or the business
operations of the Borrower and its Subsidiaries and to exercise such power as
the court shall confer upon such receiver.
Section 3. Remedies Upon Default.
Upon the occurrence of a Default specified in Sections 11.1.(f) or
11.1.(g), the Commitments, and the obligation of the Agent to issue Letters of
Credit, shall immediately and automatically terminate.
Section 4. Allocation of Proceeds.
If a Default or Event of Default shall have occurred and be continuing
and maturity of any of the Obligations has been accelerated, all payments
received by the Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the
Borrower hereunder or thereunder, shall be applied in the following order and
priority:
(a) amounts due to the Agent and the Lenders in respect of Fees and expenses
due under Section 13.2.;
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(b) payments of interest on Loans and Reimbursement Obligations, to be applied
for the ratable benefit of the Lenders;
(c) payments of principal of Loans and Reimbursement Obligations, to be applied
for the ratable benefit of the Lenders;
(d) payments of cash amounts to the Agent in respect of outstanding Letters of
Credit pursuant to Section 2.12.;
(e) amounts due to the Agent and the Lenders pursuant to Sections 12.7. and
13.9.;
(f) payments of all other amounts due under any of the Loan Documents, if any,
to be applied for the ratable benefit of the Lenders; and
(g) any amount remaining after application as provided above, shall be paid to
the Borrower or whomever else may be legally entitled thereto.
Section 5. Collateral Account.
(a) As collateral security for the prompt payment in full when due of
all Letter of Credit Liabilities, the Borrower hereby pledges and grants to the
Agent, for the benefit of the Agent and the Lenders as provided herein, a
security interest in all of its right, title and interest in and to the
Collateral Account and the balances from time to time in the Collateral Account
(including the investments and reinvestments therein provided for below). The
balances from time to time in the Collateral Account shall not constitute
payment of any Letter of Credit Liabilities until applied by the Agent as
provided herein. Anything in this Agreement to the contrary notwithstanding,
funds held in the Collateral Account shall be subject to withdrawal only as
provided in this Section and in Section 2.12.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Agent in such Cash Equivalents as the Agent shall determine in
its sole discretion. All such investments and reinvestments shall be held in the
name of and be under the sole dominion and control of the Agent. The Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the Agent
accords other funds deposited with the Agent, it being understood that the Agent
shall not have any responsibility for taking any necessary steps to preserve
rights against any parties with respect to any funds held in the Collateral
Account.
(c) If an Event of Default shall have occurred and be continuing, the
Agent may (and, if instructed by the Requisite Lenders, shall) in its (or their)
discretion at any time and from time to time elect to liquidate any such
investments and reinvestments and credit the proceeds thereof to the Collateral
Account and apply or cause to be applied such proceeds and any other balances in
the Collateral Account to the payment of any of the Letter of Credit Liabilities
due and payable.
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(d) If (i) no Default or Event of Default has occurred and is
continuing and (ii) all of the Letter of Credit Liabilities have been paid in
full, the Agent shall, from time to time, at the request of the Borrower,
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, such of the balances in the Collateral Account as
exceed the aggregate amount of Letter of Credit Liabilities at such time. When
all of the Obligations shall have been paid in full and no Letters of Credit
remain outstanding, the Agent shall promptly deliver to the Borrower, against
receipt but without any recourse, warranty or representation whatsoever, the
balances remaining in the Collateral Account.
(e) The Borrower shall pay to the Agent from time to time such fees as
the Agent normally charges for similar services in connection with the Agent's
administration of the Collateral Account and investments and reinvestments of
funds therein.
Section 6.9 Performance by Agent.
If the Borrower shall fail to perform any covenant, duty or agreement
contained in any of the Loan Documents, the Agent may perform or attempt to
perform such covenant, duty or agreement on behalf of the Borrower after the
expiration of any cure or grace periods set forth herein. In such event, the
Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent,
together with interest thereon at the applicable Post-Default Rate from the date
of such expenditure until paid. Notwithstanding the foregoing, neither the Agent
nor any Lender shall have any liability or responsibility whatsoever for the
performance of any obligation of the Borrower under this Agreement or any other
Loan Document.
Section 7.9 Rights Cumulative.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the Agent and
the Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
Section 8.9 Recission of Acceleration by Requisite Lenders.
If at any time after acceleration of the maturity of the Obligations,
the Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by
Applicable Law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Defaults (other than nonpayment of principal of
and accrued interest on the Obligations due and payable solely by virtue of
acceleration) shall be remedied or waived to the satisfaction of the Requisite
Lenders, then by written notice to the Borrower, the Requisite Lenders may
elect, in the sole discretion of such Requisite Lenders, to rescind and annul
the acceleration and its consequences; but such action shall not affect any
subsequent Default or Event of Default or impair any right or remedy consequent
thereon. The provisions of the preceding sentence are intended merely to bind
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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 satisfied.
ARTICLE I.10 The Agent
Section 1.10 Authorization and Action.
Each Lender hereby appoints and authorizes the Agent to take such
action as contractual representative on such Lender's behalf and to exercise
such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Nothing herein shall be
construed to deem the Agent a trustee or fiduciary for any Lender nor to impose
on the Agent duties or obligations other than those expressly provided for
herein. Not in limitation of the foregoing, each Lender confirms and agrees that
the Agent has no fiduciary obligations to such Lender under this Agreement, any
other Loan Document or otherwise. At the request of a Lender, the Agent will
forward to such Lender copies or, where appropriate, originals of the documents
delivered to the Agent pursuant to this Agreement or the other Loan Documents.
The Agent will also furnish to any Lender, upon the request of such Lender, a
copy of any certificate or notice furnished to the Agent by the Borrower, any
other Loan Party or any other affiliate of the Borrower, pursuant to this
Agreement or any other Loan Document not already required to be delivered to
such Lender pursuant to the terms of this Agreement or any such other Loan
Document. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of any of the
Obligations), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders (or all of the Lenders if explicitly required under any
other provision of this Agreement), and such instructions shall be binding upon
all Lenders and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Agent shall not
be required to take any action (a) which is contrary to this Agreement or any
other Loan Document or Applicable Law or (b) if the Agent reasonably believes
that such action would expose it to personal liability and, in the case of this
clause (b), is not provided, upon its request therefor, written confirmation
from the Requisite Lenders that the Agent's indemnity by the Lenders contained
in Section 12.7. would apply without exception for such directed action. The
Agent shall not exercise any right or remedy it or the Lenders may have under
any Loan Document upon the occurrence of a Default or an Event of Default unless
the Requisite Lenders have so directed the Agent to exercise such right or
remedy.
Section 2.10 Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other
Loan Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement,
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except to the extent found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from its or their own gross negligence
or willful misconduct. Without limiting the generality of the foregoing, the
Agent: (a) may treat the payee of any Note as the holder thereof until the Agent
receives written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to the Agent; (b) may consult with legal counsel
(including its own counsel or counsel for the Borrower or any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender or any other Person and shall not be
responsible to any Lender or any other Person for any statements, warranties or
representations made by any Person in or in connection with this Agreement or
any other Loan Document; (d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any of this Agreement or any other Loan Document or the satisfaction of any
conditions precedent under this Agreement or any Loan Document on the part of
the Borrower or other Persons or inspect the property, books or records of the
Borrower or any other Person; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document, any other instrument or
document furnished pursuant thereto or any Collateral covered thereby or the
perfection or priority of any Lien in favor of the Agent on behalf of the
Lenders in any such Collateral; and (f) shall incur no liability under or in
respect of this Agreement or any other Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telephone
or telecopy) believed by it to be genuine and signed, sent or given by the
proper party or parties.
Section 3. Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender (excluding First Union as a Lender) or the Borrower referring to
this Agreement, describing with reasonable specificity such Default or Event of
Default and stating that such notice is a "notice of default." If any Lender
becomes aware of any Default or Event of Default, it shall promptly send to the
Agent such a "notice of default." Further, if the Agent receives such a "notice
of default", the Agent shall give prompt notice thereof to the Lenders.
Section 4.10 First Union as Lender.
First Union, as a Lender, shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include First Union in each case in
its individual capacity. First Union and its affiliates may each accept deposits
from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with the Borrower, any other Loan Party or any other
affiliate thereof as if it were any other bank and without any duty to account
therefor to the other Lenders. Further, the Agent and any affiliate may accept
fees and other consideration from the Borrower for services in connection with
this Agreement and otherwise without having to account for the same to the other
Lenders.
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Section 5. Approvals of Lenders.
Except as specifically provided otherwise in this Agreement, including
without limitation, the approval provisions contained in Sections 2.11., 2.13.
and 4.1., all communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given in
the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials provided to the Agent by the Borrower or the
Parent in respect of the matter or issue to be resolved, and (d) shall include
the Agent's recommended course of action or determination in respect thereof.
Each Lender shall reply promptly, but in any event within 10 Business Days (or
such lesser period as may be required under the Loan Documents for the Agent to
respond). Unless a Lender shall give written notice to the Agent that it objects
to the recommendation or determination of the Agent (together with a written
explanation of the reasons behind such objection) within the applicable time
period for reply, such Lender shall be deemed to have conclusively approved of
or consented to such recommendation or determination.
Section 6.10 Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the Agent
nor any of its officers, directors, employees, agents, counsel,
attorneys-in-fact or other affiliates has made any representations or warranties
as to the financial condition, operations, creditworthiness, solvency or other
information concerning the business or affairs of the Borrower, any other Loan
Party, any Subsidiary or other Person to such Lender and that no act by the
Agent hereafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any such representation or warranty by the Agent
to any Lender. Each Lender acknowledges that it has, independently and without
reliance upon the Agent, any other Lender or counsel to the Agent, or any of
their respective officers, directors, employees and agents, and based on the
financial statements of the Borrower, the Subsidiaries or any other Affiliate
thereof, and inquiries of such Persons, its independent due diligence of the
business and affairs of the Borrower, the Loan Parties, the Subsidiaries and
other Persons, its review of the Loan Documents, the legal opinions required to
be delivered to it hereunder, the advice of its own counsel and such other
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the transaction
contemplated hereby. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, any other Lender or counsel to the Agent or
any of their respective officers, directors, employees and agents, and based on
such review, advice, documents and information as it shall deem appropriate at
the time, continue to make its own decisions in taking or not taking action
under the Loan Documents. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent under
this Agreement or any of the other Loan Documents, the Agent shall have no duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrower, any other Loan Party or any other Affiliate
thereof which may come into possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or other Affiliates. Each Lender
acknowledges that the Agent's legal counsel in connection with the transactions
contemplated by this Agreement is only acting as counsel to the Agent and is not
acting as counsel to such Lender.
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Section 7.10 Indemnification of Agent.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so)
pro rata in accordance with such Lender's respective Commitment Percentage, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Agent (in its capacity as Agent but not as a Lender) in any way
relating to or arising out of the Loan Documents, any transaction contemplated
hereby or thereby or any action taken or omitted by the Agent under the Loan
Documents (collectively, "Indemnifiable Amounts"); provided, however, that no
Lender shall be liable for any portion of such Indemnifiable Amounts to the
extent found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the Agent's gross negligence or willful
misconduct or if the Agent fails to follow the written direction of the
Requisite Lenders unless such failure is pursuant to the advice of counsel of
which the Lenders have received notice. Without limiting the generality of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees of the
counsel(s) of the Agent's own choosing) incurred by the Agent in connection with
the preparation, execution, administration, or enforcement of, or legal advice
with respect to the rights or responsibilities of the parties under, the Loan
Documents, any suit or action brought by the Agent to enforce the terms of the
Loan Documents and/or collect any Obligations, any "lender liability" suit or
claim brought against the Agent and/or the Lenders, and any claim or suit
brought against the Agent and/or the Lenders arising under any Environmental
Laws, to the extent that the Agent is not reimbursed for such expenses by the
Borrower. Such out-of-pocket expenses (including counsel fees) shall be advanced
by the Lenders on the request of the Agent notwithstanding any claim or
assertion that the Agent is not entitled to indemnification hereunder upon
receipt of an undertaking by the Agent that the Agent will reimburse the Lenders
if it is actually and finally determined by a court of competent jurisdiction
that the Agent is not so entitled to indemnification. The agreements in this
Section shall survive the payment of the Loans and all other amounts payable
hereunder or under the other Loan Documents and the termination of this
Agreement. If the Borrower shall reimburse the Agent for any Indemnifiable
Amount following payment by any Lender to the Agent in respect of such
Indemnifiable Amount pursuant to this Section, the Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.
Section 8.10 Collateral Matters.
(a) The Agent is authorized on behalf of all of the Lenders, without
the necessity of any notice to or further consent from any Lender, from time to
time prior to an Event of Default, to take any action with respect to any
Collateral or Loan Documents which may be necessary to perfect and maintain
perfected the Liens upon the Collateral granted pursuant to any of the Loan
Documents.
(b) The Lenders hereby authorize the Agent, at its option and in its
discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Commitments and payment and satisfaction
of all of the Obligations at any time arising under or in respect of this
Agreement or the Loan Documents or the transactions contemplated hereby or
thereby; or (ii) as required or permitted by Section 4.2. Upon request by the
Agent at any time, the Lenders will confirm in writing the Agent's authority to
release particular types or items of
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Collateral pursuant to this Section or any other applicable provision of any of
the other Loan Documents.
(c) Upon any sale and transfer of Collateral which is expressly
permitted pursuant to the terms of this Agreement, and upon at least 5 Business
Days' prior written request by the Borrower, the Agent shall (and is hereby
irrevocably authorized by all of the Lenders to) execute such documents as may
be necessary to evidence the release of the Liens granted to the Agent for the
benefit of the Lenders herein or pursuant hereto upon the Collateral that was
sold or transferred; provided, however, that (i) the Agent shall not be required
to execute any such document on terms which, in the Agent's opinion, would
expose the Agent to liability or create any obligation or entail any consequence
other than the release of such Liens without recourse or warranty; and (ii) such
release shall not in any manner discharge, affect or impair the Obligations or
any Liens upon (or obligations of the Borrower or any Loan Party in respect of)
all interests retained by the Borrower or any Subsidiary, including (without
limitation) the proceeds of the sale, all of which shall continue to constitute
part of the Collateral. In the event of any sale or transfer of Collateral, or
any foreclosure with respect to any of the Collateral, the Agent shall be
authorized to deduct all of the expenses reasonably incurred by the Agent from
the proceeds of any such sale, transfer or foreclosure.
(d) The Agent shall have no obligation whatsoever to the Lenders or to
any other Person to assure that the Collateral exists or is owned by the
Borrower or any Subsidiary or is cared for, protected or insured or that the
Liens granted to the Agent herein or pursuant hereto have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to continue exercising at
all or in any manner or under any duty of care, disclosure or fidelity any of
the rights, authorities and powers granted or available to the Agent in this
Section or in any of the Loan Documents, it being understood and agreed that in
respect of the Collateral, or any act, omission or event related thereto, the
Agent may act in any manner it may deem appropriate, in its sole discretion,
given the Agent's own interest in the Collateral as one of the Lenders and that
the Agent shall have no duty or liability whatsoever to the Lenders, except to
the extent found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the Agent's gross negligence or willful
misconduct.
Section 9.10 Successor Agent.
The Agent may resign at any time as Agent under the Loan Documents by
giving written notice thereof to the Lenders and the Borrower. The Agent may be
removed for cause by all of the Lenders (excluding the Agent as a Lender) giving
the Agent written notice of such removal. Upon any such resignation or removal,
the Requisite Lenders shall have the right to appoint a successor Agent which
appointment shall, provided no Default or Event of Default shall have occurred
and be continuing, be subject to the Borrower's approval, which approval shall
not be unreasonably withheld or delayed. If no successor Agent shall have been
so appointed by the Requisite Lenders, and shall have accepted such appointment,
within 30 days after the resigning Agent's giving of notice of resignation or
the Lenders giving notice of removal, as the case may be, then the resigning or
removed Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a Lender, if any Lender shall be willing to serve, and otherwise shall
be a commercial bank having total combined assets of at least $50,000,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
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rights, powers, privileges and duties of the resigning or removed Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. After any resigning Agent's resignation hereunder as Agent, or
any Agent's removal 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
Agent under the Loan Documents.
Section 10.10 Titled Parties Have No Duties.
Neither the Book Manager, the Lead Arranger, the Syndication Agent nor
the Documentation Agent (each in such capacity, a "Titled Party") assumes any
responsibility or obligation hereunder, including, without limitation, for
servicing, enforcement or collection of any of the Loans, nor any duties as an
agent hereunder for Lenders. The titles of "Lead Arranger," "Book Manager,"
"Syndication Agent," and "Documentation Agent" are solely honorific and imply no
fiduciary responsibility on the part of the Titled Parties to the Agent, the
Borrower or any Lender and the use of such titles does not impose on the Titled
Parties any duties or obligations greater than those of any other Lender.
ARTICLE I.11 Miscellaneous
Section 1.11 Notices.
Unless otherwise provided herein, communications provided for hereunder
shall be in writing and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
First Washington Realty Limited Partnership
c/o First Washington Realty Trust, Inc.
4350 East-West Highway, Suite 400
Bethesda, Maryland 20814
Attention: President
Telecopy Number:(301) 907-7800
Telephone Number:(301) 907-4911
If to the Agent:
First Union National Bank
One First Union Center, DC-6
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: John A. Schissel
Telecopy Number:(704) 383-6205
Telephone Number:(704) 383-1967
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If to a Lender:
To such Lender's address or telecopy number, as applicable,
set forth on its signature page hereto or in the applicable
Assignment and Acceptance Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered. Notwithstanding the immediately preceding sentence,
all notices or communications to the Agent or any Lender under Article II. shall
be effective only when actually received. Neither the Agent nor any Lender shall
incur any liability to the Borrower (nor shall the Agent incur any liability to
the Lenders) for acting upon any telephonic notice referred to in this Agreement
which the Agent or such Lender, as the case may be, believes in good faith to
have been given by a Person authorized to deliver such notice or for otherwise
acting in good faith hereunder.
Section 2.11 Expenses.
The Borrower agrees (a) to pay or reimburse the Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation, negotiation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents, and the consummation of the
transactions contemplated thereby, including the reasonable fees and
disbursements of counsel to the Agent and all costs and expenses of the Agent in
connection with the review of Properties for inclusion in calculations of the
Borrowing Base and the Agent's other activities under Article IV., including the
reasonable fees and disbursements of counsel to the Agent relating thereto, (b)
to pay or reimburse the Agent and the Lenders for all their costs and expenses
incurred in connection with the enforcement or preservation of any rights under
the Loan Documents, including the reasonable fees and disbursements of their
respective counsel (including the allocated fees and expenses of in- house
counsel) and any payments in indemnification or otherwise payable by the Lenders
to the Agent pursuant to the Loan Documents, (c) to pay, indemnify and hold the
Agent and the Lenders harmless from any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any failure to pay or
delay in paying, documentary, stamp, excise and other similar taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of any of the Loan Documents, or consummation of any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, any Loan Document and (d) to the extent not already covered by any
of the preceding subsections, to pay the fees and disbursements of counsel to
the Agent and any Lender incurred in connection with the representation of the
Agent or such Lender in any matter relating to or arising out of any bankruptcy
or other proceeding of the type described in Sections 11.1.(f) or 11.1.(g),
including, without limitation (i) any motion for relief from any stay or similar
order, (ii) the negotiation, preparation, execution and delivery of any document
relating to the Obligations and (iii) the negotiation and preparation of any
debtor-in-possession financing or any plan of reorganization of the Borrower or
any other Loan Party, whether proposed by the Borrower, such Loan Party, the
Lenders or any other Person, and whether such fees and expenses are incurred
prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding.
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Section 3.11 Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant is hereby authorized by the
Borrower, at any time or from time to time during the continuance of an Event of
Default, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, but subject to receipt of the Agent's prior
written consent to set-off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of such the Agent or such Lender, to or for the credit or the account
of the Borrower against and on account of any of the Obligations, irrespective
of whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by
Section 11.2., and although such Obligations shall be contingent or unmatured.
Section 4.11 Waiver of Jury Trial; Arbitration.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND
EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE LENDERS, THE AGENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR IN CONNECTION WITH
ANY COLLATERAL OR ANY LIEN OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR
DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF THE
LENDERS OF ANY KIND OR NATURE.
(b) EACH OF THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT
ANY FEDERAL DISTRICT COURT IN NORTH CAROLINA OR, AT THE OPTION OF THE AGENT, ANY
STATE COURT LOCATED IN CHARLOTTE, NORTH CAROLINA, SHALL HAVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE
AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, THE LOANS, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER
ARISING HEREFROM OR THEREFROM OR THE COLLATERAL. THE BORROWER AND EACH OF THE
LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. EACH PARTY FURTHER WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
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ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE
JURISDICTION.
(c) UPON DEMAND OF ANY PARTY HERETO, WHETHER MADE BEFORE OR AFTER
INSTITUTION OF ANY JUDICIAL PROCEEDING, ANY CLAIM OR CONTROVERSY ARISING OUT OF,
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS ("DISPUTES") BETWEEN
OR AMONG ANY SUCH PARTIES SHALL BE RESOLVED BY BINDING ARBITRATION CONDUCTED
UNDER AND GOVERNED BY THE COMMERCIAL FINANCIAL DISPUTES ARBITRATION RULES (THE
"ARBITRATION RULES") OF THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA") AND THE
FEDERAL ARBITRATION ACT. DISPUTES MAY INCLUDE, WITHOUT LIMITATION, TORT CLAIMS,
COUNTERCLAIMS, DISPUTES AS TO WHETHER A MATTER IS SUBJECT TO ARBITRATION, CLAIMS
BROUGHT AS CLASS ACTIONS, AND CLAIMS ARISING FROM LOAN DOCUMENTS EXECUTED IN THE
FUTURE. A JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION. NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION PROVISION DOES NOT
APPLY TO DISPUTES UNDER OR RELATED TO INTEREST RATE AGREEMENTS TO WHICH ANY
LENDER IS A PARTY. ALL ARBITRATION HEARINGS SHALL BE CONDUCTED IN CHARLOTTE,
NORTH CAROLINA. A HEARING SHALL BEGIN WITHIN 90 DAYS OF DEMAND FOR ARBITRATION
AND ALL HEARINGS SHALL CONCLUDED WITHIN 120 DAYS OF DEMAND FOR ARBITRATION.
THESE TIME LIMITATIONS MAY NOT BE EXTENDED UNLESS A PARTY SHOWS CAUSE FOR
EXTENSION AND THEN NO MORE THAN A TOTAL EXTENSION OF 60 DAYS. THE EXPEDITED
PROCEDURES SET FORTH IN RULE 51 ET. SEQ. OF THE ARBITRATION RULES SHALL BE
APPLICABLE TO CLAIMS OF LESS THAN $1,000,000. ARBITRATORS SHALL BE LICENSED
ATTORNEYS SELECTED FROM THE COMMERCIAL FINANCIAL DISPUTE ARBITRATION PANEL OF
THE AAA. THE PARTIES DO NOT WAIVE ANY APPLICABLE LAWS EXCEPT AS PROVIDED HEREIN.
NOTWITHSTANDING THE PRECEDING BINDING ARBITRATION PROVISIONS, THE PARTIES AGREE
TO PRESERVE, WITHOUT DIMINUTION, THE FOLLOWING REMEDIES THAT THE AGENT OR THE
LENDERS MAY EXERCISE BEFORE OR AFTER AN ARBITRATION PROCEEDING IS BROUGHT.
SUBJECT TO THE OTHER TERMS HEREOF, THE AGENT AND THE LENDERS SHALL HAVE THE
RIGHT TO PROCEED IN ANY COURT OF PROPER JURISDICTION OR BY SELF-HELP TO EXERCISE
OR PROSECUTE THE FOLLOWING REMEDIES, AS APPLICABLE: (I) ALL RIGHTS TO FORECLOSE
AGAINST ANY REAL OR PERSONAL PROPERTY OR OTHER SECURITY BY EXERCISING A POWER OF
SALE OR UNDER APPLICABLE LAW BY JUDICIAL FORECLOSURE INCLUDING A PROCEEDING TO
CONFIRM THE SALE; (II) ALL RIGHTS OF SELF-HELP INCLUDING PEACEFUL OCCUPATION OF
REAL PROPERTY AND COLLECTION OF RENTS, SET-OFF, AND PEACEFUL POSSESSION OF
PERSONAL PROPERTY; (III) OBTAINING PROVISIONAL OR ANCILLARY REMEDIES INCLUDING
INJUNCTIVE RELIEF, SEQUESTRATION, GARNISHMENT, ATTACHMENT, APPOINTMENT OF
RECEIVER AND FILING AN INVOLUNTARY BANKRUPTCY PROCEEDING; AND (IV) WHEN
APPLICABLE, A JUDGMENT BY CONFESSION OF JUDGMENT. ANY CLAIM OR CONTROVERSY WITH
REGARD TO PARTIES ENTITLEMENT TO SUCH REMEDIES IS A DISPUTE. THE PARTIES HERETO
ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED
ANY RIGHT THEY MAY HAVE TO A JURY TRIAL WITH REGARD TO A DISPUTE.
(d) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY
WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER
AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION
OF THIS AGREEMENT.
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Section 5. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, except that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement without the prior written consent of all
Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an affiliate of such
Lender except to the extent such transfer would result in increased costs to the
Borrower.
(c) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender; provided, however, (i) any
such participating interest must be for a constant and not a varying percentage
interest, and (ii) after giving effect to any such participation by a Lender,
the amount of its Commitment, or if the Commitments have been terminated, the
aggregate outstanding principal balance of Notes held by it, in which it has not
granted any participating interests must be at least $5,000,000. Except as
otherwise provided in Section 13.3., no Participant shall have any rights or
benefits under this Agreement or any other Loan Document. In the event of any
such grant by a Lender of a participating interest to a Participant, such Lender
shall remain responsible for the performance of its obligations hereunder, and
the Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided, however, such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase, or extend the term or extend the time or
waive any requirement for the reduction or termination of, such Lender's
Commitment, (ii) extend the date fixed for the payment of principal of or
interest on the Loans or portions thereof owing to such Lender, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at which interest
is payable thereon or (v) any release of all or substantially all of the
Collateral. An assignment or other transfer which is not permitted by subsection
(d) below shall be given effect for purposes of this Agreement only to the
extent of a participating interest granted in accordance with this subsection
(c). The selling Lender shall notify the Agent and the Borrower of the sale of
any participation hereunder and the terms thereof.
(d) Any Lender may, with the prior written consent of the Agent, assign
to one or more Eligible Assignees (each an "Assignee") all or a portion of its
Commitment and its other rights and obligations under this Agreement and the
Notes; provided, however, (i) no such consent by the Borrower shall be required
(x) in the case of any assignment to another Lender or any affiliate of such
Lender or another Lender or (y) if an Event of Default or Default shall then be
existing; (ii) any partial assignment shall be in an amount at least equal to
$10,000,000 and after giving effect to such assignment the assigning Lender
retains a Commitment, or if the Commitments have been terminated, holds Notes
having an aggregate outstanding principal balance, of at least $10,000,000;
(iii) each such assignment shall be effected by means of an Assignment and
Acceptance Agreement and (iv) the Agent, in its capacity as a Lender, shall not
effect any assignment of its Commitment, if after giving effect thereto, the
amount of such Commitment would be less than the amount of any other Lender's
Commitment. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Lender of an amount equal to the purchase price
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agreed between such transferor Lender and such Assignee, such Assignee shall be
deemed to be a Lender party to this Agreement as of the effective date of the
Assignment and Acceptance Agreement and shall have all the rights and
obligations of a Lender with a Commitment as set forth in such Assignment and
Acceptance Agreement, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (d), the transferor Lender, the Agent and the
Borrower shall make appropriate arrangements so that new Notes are issued to the
Assignee and such transferor Lender, as appropriate. In connection with any such
assignment, the transferor Lender shall pay to the Agent an administrative fee
for processing such assignment in the amount of $3,000.
(e) The Agent shall maintain at the Principal Office a copy of each
Assignment and Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of each Lender from time to time (the "Register"). The Agent shall
give each Lender and the Borrower notice of the assignment by any Lender of its
rights as contemplated by this Section. The Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register and copies of each
Assignment and Acceptance Agreement shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note
subject to such assignment (the "Surrendered Note"), the Agent shall, if such
Assignment and Acceptance Agreement has been completed and if the Agent receives
the processing and recording fee described in subsection (d) above, (i) accept
such Assignment and Acceptance Agreement, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower.
(f) In addition to the assignments and participations permitted under
the foregoing provisions of this Section, any Lender may assign and pledge all
or any portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular issued
by such Federal Reserve Bank, and such Loans and Notes shall be fully
transferable as provided therein. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower, any
other Loan Party or any of their respective Subsidiaries in the possession of
such Lender from time to time to Assignees and Participants (including
prospective Assignees and Participants) subject to compliance with Section 13.8.
(h) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to the
Borrower, any other Loan Party or any of their respective Affiliates or
Subsidiaries.
(i) Each Lender agrees that, without the prior written consent of the
Borrower and the Agent, it will not make any assignment hereunder in any manner
or under any circumstances that would require registration or qualification of,
or filings in respect of, any Loan or Note under the Securities Act or any other
securities laws United States of America or of any other jurisdiction.
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Section 6.11 Amendments.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement or in any Loan Document to
be given by the Lenders may be given, and any term of this Agreement or of any
other Loan Document may be amended, and the performance or observance by the
Borrower or any Loan Party or Subsidiary of any terms of this Agreement or such
other Loan Document or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Requisite Lenders
(and, in the case of an amendment to any Loan Document, the written consent of
the Borrower). Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing, and signed by all of the Lenders (or the Agent at the
written direction of the Lenders), do any of the following: (i) increase the
Commitments of the Lenders (except as contemplated by Section 2.13.) or subject
the Lenders to any additional obligations; (ii) reduce the principal of, or
interest rates that have accrued or that will be charged on the outstanding
principal amount of, any Loans or other Obligations; (iii) reduce the amount of
any Fees payable hereunder; (iv) postpone any date fixed for any payment of any
principal of, interest on, or Fees with respect to, any Loans or any other
Obligations; (v) change the Commitment Percentages (except as contemplated by
Section 2.13.); (vi) amend this Section or amend the definitions of the terms
used in this Agreement or the other Loan Documents insofar as such definitions
affect the substance of this Section; (vii) modify the definition of the term
"Requisite Lenders" or modify in any other manner the number or percentage of
the Lenders required to make any determinations or waive any rights hereunder or
to modify any provision hereof; (viii) release any Guarantor from its
obligations under the Guaranty; (ix) modify the pro rata provisions of Section
3.2.; (x) release all or substantially all of the Collateral; (xi) amend the
definitions of "Eligible Property" or "Borrowing Base" (and the definitions used
in such definition and the percentages and rates used in the calculation
thereof); or (xii) waive any Default or Event of Default which occurred under
Section 11.1.(m)(iii) within 180 days after the Borrower or the Parent was the
subject of any transaction covered by Section 10.8. (whether or not the
Requisite Lenders shall have consented to such transaction). Further, no
amendment, waiver or consent unless in writing and signed by the Agent, in
addition to the Lenders required hereinabove to take such action, shall affect
the rights or duties of the Agent under this Agreement or any of the other Loan
Documents. Further, no Collateral shall be released or disposed of by the Agent
unless all of the Lenders so direct the Agent or unless released or disposed of
as permitted by, and in accordance with, Section 12.8. No waiver shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. No course of
dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. Except as otherwise explicitly provided for herein or in
any other Loan Document, no notice to or demand upon the Borrower shall entitle
the Borrower to other or further notice or demand in similar or other
circumstances.
Section 7.11 Nonliability of Agent and Lenders.
The relationship between the Borrower and the Lenders and the Agent
shall be solely that of borrower and lender. Neither the Agent nor any Lender
shall have any fiduciary responsibilities to the Borrower and no provision in
this Agreement or in any of the other Loan Documents, and no course of dealing
between or among any of the parties hereto, shall be deemed to create any
fiduciary
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duty owing by the Agent or any Lender to any Lender, the Borrower, any
Subsidiary or any other Loan Party. Neither the Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or operations.
Section 8.11 Confidentiality.
Except as otherwise provided by Applicable Law, the Agent and each
Lender shall utilize all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential or
proprietary by the Borrower in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe and
sound banking practices but in any event may make disclosure: (a) to any of
their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
required by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required by any Governmental Authority or representative thereof or pursuant to
legal process; (d) to the Agent's or such Lender's independent auditors and
other professional advisors (provided they shall be notified of the confidential
nature of the information); and (e) after the happening and during the
continuance of an Event of Default, to any other Person, in connection with the
exercise by the Agent or the Lenders of rights hereunder or under any of the
other Loan Documents.
Section 9.11 Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent, any affiliate of the Agent and each of the Lenders and their
respective directors, officers, shareholders, agents, employees and counsel
(each referred to herein as an "Indemnified Party") from and against any and all
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses
of every kind and nature (including, without limitation, amounts paid in
settlement, court costs and the fees and disbursements of counsel incurred in
connection with any litigation, investigation, claim or proceeding or any advice
rendered in connection therewith) (the foregoing items referred to herein as
"Claims and Expenses") incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration,
investigation or settlement, consent decree or other proceeding (the foregoing
referred to herein as an "Indemnity Proceeding") which is in any way related
directly or indirectly to: (i) this Agreement or any other Loan Document or the
transactions contemplated thereby; (ii) the making of any Loans or issuance of
Letters of Credit hereunder; (iii) any actual or proposed use by the Borrower of
the proceeds of the Loans or Letters of Credit; (iv) the Agent's or any Lender's
entering into this Agreement; (v) the fact that the Agent and the Lenders have
established the credit facility evidenced hereby in favor of the Borrower; (vi)
the fact that the Agent and the Lenders are creditors of the Borrower and have
or are alleged to have information regarding the financial condition, strategic
plans or business operations of the Borrower and the Subsidiaries; (vii) the
fact that the Agent and the Lenders are material creditors of the Borrower and
are alleged to influence directly or indirectly the business decisions or
affairs of the Borrower and the Subsidiaries or their financial condition;
(viii) the exercise of any right or remedy the Agent or the Lenders may have
under this Agreement or the other Loan Documents including, but not limited to,
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the foreclosure upon, or seizure of, any Collateral or the exercise of any other
rights of a secured party; provided, however, that the Borrower shall not be
obligated to indemnify any Indemnified Party for any acts or omissions of such
Indemnified Party in connection with matters described in this clause (viii)
that constitute gross negligence or willful misconduct; (ix) any violation or
non-compliance by the Borrower or any Subsidiary of any Applicable Law
(including any Environmental Law) including, but not limited to, any Indemnity
Proceeding commenced by (A) the Internal Revenue Service or state taxing
authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a
Governmental Authority or other Person seeking remedial or other action to cause
the Borrower or its Subsidiaries (or its respective properties) (or the Agent
and/or the Lenders as successors to the Borrower) to be in compliance with such
Environmental Laws.
(b) The Borrower's indemnification obligations under this Section shall
apply to all Indemnity Proceedings arising out of, or related to, the foregoing
whether or not an Indemnified Party is a named party in such Indemnity
Proceeding. In this connection, this indemnification shall cover all costs and
expenses of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena
requesting the production of documents). This indemnification shall, among other
things, apply to any Indemnity Proceeding commenced by other creditors of the
Borrower or any Subsidiary, any shareholder of the Borrower or any Subsidiary
(whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account
debtor of the Borrower or any Subsidiary or by any Governmental Authority.
(c) This indemnification shall apply to any Indemnity Proceeding
arising during the pendency of any bankruptcy proceeding filed by or against the
Borrower and/or any Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to
third-persons by, an Indemnified Party shall be advanced by the Borrower at the
request of such Indemnified Party notwithstanding any claim or assertion by the
Borrower that such Indemnified Party is not entitled to indemnification
hereunder upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally
determined by a court of competent jurisdiction that such Indemnified Party is
not so entitled to indemnification hereunder.
(e) An Indemnified Party may conduct its own investigation and defense
of, and may formulate its own strategy with respect to, any Indemnified
Proceeding covered by this Section and, as provided above, all costs and
expenses incurred by the Indemnified Party shall be reimbursed by the Borrower.
No action taken by legal counsel chosen by an Indemnified Party in investigating
or defending against any such Indemnified Proceeding shall vitiate or in any way
impair the obligations and duties of the Borrower hereunder to indemnify and
hold harmless each such Indemnified Party; provided, however, that (i) if the
Borrower is required to indemnify an Indemnified Party pursuant hereto and (ii)
the Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to reimburse such
Indemnified Party for any amount paid by such Indemnified Party with respect to
such Indemnified Proceeding, such Indemnified Party shall not settle or
compromise any such Indemnified Proceeding without the prior written consent of
the Borrower (which consent shall not be unreasonably withheld or delayed).
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<PAGE>
(f) If and to the extent that the obligations of the Borrower hereunder
are unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law.
(g) The Borrower's obligations hereunder shall survive any termination
of this Agreement and the other Loan Documents and the payment in full of the
Obligations, and are in addition to, and not in substitution of, any other of
their obligations set forth in this Agreement or any other Loan Document to
which it is a party.
Section 10.11 Termination; Survival.
At such time as (a) all of the Commitments have been terminated, (b)
none of the Lenders is obligated any longer under this Agreement to make any
Loans, (c) the Agent is no longer obligated any longer under this Agreement to
issue any Letters of Credit, (d) no Letters of Credit remain outstanding and (e)
all Obligations (other than obligations which survive as provided in the
following sentence) have been paid and satisfied in full, this Agreement shall
terminate. Notwithstanding any termination of this Agreement, or of the other
Loan Documents, the indemnities to which the Agent and the Lenders are entitled
under the provisions of Sections 12.7., 13.2. and 13.9. and any other provision
of this Agreement and the other Loan Documents, and the provisions of Section
13.4., shall continue in full force and effect and shall protect the Agent and
the Lenders against events arising after such termination as well as before.
Section 11.11 Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions or affecting the
validity or enforceability of such provision in any other jurisdiction.
Section 12.11 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NORTH CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO
BE FULLY PERFORMED, IN SUCH STATE.
Section 13.11 Counterparts.
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument.
Section 14.11 Obligations with Respect to Loan Parties.
The obligations of the Borrower to direct or prohibit the taking of
certain actions by the other Loan Parties as specified herein shall be absolute
and not subject to any defense the Borrower may have that the Borrower does not
control such Loan Parties.
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Section 15.11 Limitation of Liability.
Neither the Agent nor any Lender, nor any affiliate, officer, director,
employee, attorney, or agent of the Agent or any Lender, shall have any
liability with respect to, and the Borrower hereby waives, releases, and agrees
not to sue any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by the Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other
Loan Documents, or any of the transactions contemplated by this Agreement or any
of the other Loan Documents, except to the extent found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from its or their own gross negligence or willful misconduct. The Borrower
hereby waives, releases, and agrees not to sue the Agent or any Lender or any of
the Agent's or any Lender's affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to, this Agreement or any of the
other Loan Documents, or any of the transactions contemplated by this Agreement
or financed hereby, except to the extent found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from its or their
own gross negligence or willful misconduct.
Section 16.11 Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to
herein embody the final, entire agreement among the parties hereto and supersede
any and all prior commitments, agreements, representations, and understandings,
whether written or oral, relating to the subject matter hereof and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto.
Section 17.11 Construction.
The Agent, the Borrower, the Parent and each Lender acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Agent, the Borrower, the Parent
and each Lender.
Section 18. Release of Collateral Upon Investment Grade Rating.
Upon the Borrower receiving an Investment Grade Rating by the Rating
Agencies, the Agent shall release the Collateral Documents with respect to each
of the Borrowing Base Properties so long as (a) the Agent shall have received
the Borrower's written request for such release accompanied by evidence
satisfactory to the Agent regarding such Investment Grade Ratings; (b) no
Default or Event of Default shall have occurred and be continuing or would occur
after giving effect to such release; and (c) the Agent shall have received a
Compliance Certificate calculated on a pro forma basis as of the Borrower's
fiscal quarter most recently ended establishing that the Parent and the Borrower
would have been in compliance with the covenants contained in Sections 10.1.(b)
as of the end of such quarter.
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<PAGE>
Section 19. NO NOVATION.
THE EXISTING CREDIT AGREEMENT IS BEING AMENDED AND RESTATED IN ITS
ENTIRETY BY THIS AGREEMENT FOR THE CONVENIENCE OF THE PARTIES. THIS AGREEMENT
MERELY AMENDS, MODIFIES AND RESTATES THE INDEBTEDNESS, LIABILITIES AND
OBLIGATIONS EVIDENCED BY THE EXISTING CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT AGREEMENT) AND DOES NOT CONSTITUTE,
AND IT IS THE EXPRESS INTENT OF THE PARTIES HERETO THAT THIS AGREEMENT DOES NOT
EFFECT, A NOVATION OF THE EXISTING INDEBTEDNESS, LIABILITIES AND OBLIGATIONS
OWING BY THE BORROWER PURSUANT TO THE EXISTING CREDIT AGREEMENT. ALL SUCH
INDEBTEDNESS, LIABILITIES AND OBLIGATIONS CONTINUE TO REMAIN OUTSTANDING AND
EVIDENCED BY THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
[Signatures on Following Pages]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed by their authorized officers all as of the day and year
first above written.
BORROWER:
FIRST WASHINGTON REALTY LIMITED PARTNERSHIP
By: FIRST WASHINGTON REALTY TRUST, INC., its
sole general partner
/s/
By:_____________________________________
Name:
Title:
PARENT:
FIRST WASHINGTON REALTY TRUST, INC.
/s/
By:_________________________________________
Name:
Title:
[Signatures Continued on Next Page]
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<PAGE>
[Signature Page to Credit Agreement dated as of
May 19, 2000 with First Washington Realty Limited Partnership]
FIRST UNION NATIONAL BANK, as Agent and as a Lender
/s/
By:________________________________________________
Name:
Title:
Commitment Amount:
$16,000,000
Lending Office (all Types of Loans):
First Union National Bank
REIT Banking Group
One First Union Center, 6th Floor
301 South College Street
Charlotte, North Carolina 28288
Attn: Joy Auten
Telecopier: (704) 383-7989
Telephone: (704) 715-1381
[Signatures Continued on Next Page]
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<PAGE>
[Signature Page to Credit Agreement dated as of
May 19, 2000 with First Washington Realty Limited Partnership]
ALLFIRST BANK
/s/
By:__________________________________________
Name:
Title:
Commitment Amount:
$15,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Allfirst Bank
25 South Charles Street, Mail Code 101-747
Baltimore, Maryland 21201
Attn: Robert S. Palmer
Telecopier: (410) 545-2385
Telephone: (410) 545-2426
[Signatures Continued on Next Page]
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<PAGE>
[Signature Page to Credit Agreement dated as of
May 19, 2000 with First Washington Realty Limited Partnership]
CRESTAR BANK
/s/
By:_______________________________________
Name:
Title:
Commitment Amount:
$15,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Crestar Bank
8245 Boone Blvd., Suite 820
Vienna, Virginia 22182
Attn: Gregory T. Horstman
Telecopier: (703) 902-9245
Telephone: (703) 902-9384
[Signatures Continued on Next Page]
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<PAGE>
[Signature Page to Credit Agreement dated as of
May 19, 2000 with First Washington Realty Limited Partnership]
PNC BANK, NATIONAL ASSOCIATION
/s/
By:________________________________________
Name:
Title:
Commitment Amount:
$14,000,000
Lending Office (all Types of Loans):
PNC Bank
249 Fifth Avenue, Mailstop P1-P0PP-19-2
Pittsburgh, Pennsylvania 15222
Attn: Barbara Burzio
Telecopier: (412) 768-5754
Telephone: (412) 762-7924
Address for Notices:
PNC Bank
249 Fifth Avenue, Mailstop P1-P0PP-19-2
Pittsburgh, Pennsylvania 15222
Attn: Barbara Burzio
Telecopier: (412) 768-5754
Telephone: (412) 762-7924
and
PNC Bank
1401 Eye Street, N.W., Suite 200
Washington, D.C. 20005
Attn: Ashley Smith
Telecopier: (202) 393-1545
Telephone: (202) 393-2752
[Signatures Continued on Next Page]
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<PAGE>
[Signature Page to Credit Agreement dated as of
May 19, 2000 with First Washington Realty Limited Partnership]
AMSOUTH BANK
/s/
By:________________________________________
Name:
Title:
Commitment Amount:
$10,000,000
Lending Office (all Types of Loans) and
Address for Notices:
AmSouth Bank
1900 5th Avenue North
AST - 9th Floor
Birmingham, Alabama 35203
Attn: Katherine Allen/ Crystal Cassels
Telecopier: (205) 326-4075
Telephone: (205) 326-4783
[Signatures Continued on Next Page]
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<PAGE>
[Signature Page to Credit Agreement dated as of
May 19, 2000 with First Washington Realty Limited Partnership]
BANKERS TRUST COMPANY
/s/
By:________________________________________
Name:
Title:
Commitment Amount:
$10,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Bankers Trust Company
130 Liberty Street, 25th Floor
New York, New York 10006
Attn: Amy Sinensky
Telecopier: (212) 669-0735
Telephone: (212) 250-2617
[Signatures Continued on Next Page]
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[Signature Page to Credit Agreement dated as of
May 19, 2000 with First Washington Realty Limited Partnership]
BRANCH BANKING & TRUST COMPANY
/s/
By:_____________________________________
Name:
Title:
Commitment Amount:
$10,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Branch Banking & Trust Company
1909 K Street, N.W.
Washington, D.C. 20006
Attn: Ron Gudbrandsen/ Carolyn Brown
Telecopier: (202) 835-9287
Telephone: (202) 835-9226
[Signatures Continued on Next Page]
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<PAGE>
[Signature Page to Credit Agreement dated as of
May 19, 2000 with First Washington Realty Limited Partnership]
CHEVY CHASE BANK, FSB
/s/
By:______________________________________
Name:
Title:
Commitment Amount:
$10,000,000
Lending Office (all Types of Loans) and
Address for Notices:
Chevy Chase Bank
8401 Connecticut Avenue, 9th Floor
Chevy Chase, Maryland 20815
Attn: Jordan O'Neill
Telecopier: (301) 986-7516
Telephone: (301) 986-7003
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SCHEDULE 1.1(A)
Material Subsidiaries
=======================
F-W Bryans Road Limited Partnership
Branchwood Apartments Limited Partnership
<PAGE>
EXHIBIT J Form of Security Deed
EXHIBIT K Form of Revolving Note
EXHIBIT L Form of Extension Request
SCHEDULE 4.1.
Initial Borrowing Base Properties
Initial Borrowing
Property Location Base Value
========= ======== =================
Shoppes of Graylyn Wilmington, Delaware
Spring Valley Shopping Center Washington, DC
Riverside Square Chicago, Illinois
Bryans Road Shopping Center Bryans Road, Maryland
Watkins Park Plaza Mitchellville, Maryland
Woodmoor Silver Spring, Maryland
Takoma Park Takoma Park, Maryland
Newtown Square Newtown Square, Pennsylvania
Kenhorst Plaza Reading, Pennsylvania
Kamp Washington Fairfax, Virginia
Willston Centre I Falls Church, Virginia
Brafferton Center Garrisonville, Virginia
The Village Shopping Center Richmond, Virginia
<PAGE>
